EXHIBIT 10.1

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “Agreement”) is made as of December 22, 2021 (the “Signing Date”), by and among UFP Technologies, Inc., a Delaware corporation (“Buyer”), DAS Medical Holdings LLC, a Georgia limited liability company (the “Company”), Parallax Investments, LLC, a Georgia limited liability company (“Seller”), and the Purchase Price Beneficiaries defined in Article XII and set forth on the signature pages to this Agreement. The Purchase Price Beneficiaries are parties to this Agreement solely with respect to Section 3.10 (Limited Reliance Disclaimer), 9.5 (Confidentiality), Article V (Indemnification) and Section 11.17 (Representation of the Company and Company Entities). Buyer, Company, Seller, and the Additional Parties may be collectively referenced herein as “Parties” and individually referenced herein as “Party”.

BACKGROUND

A.       On September 29, 2021, Seller was organized as a Georgia limited liability company upon the filing of articles of organization with the Office of the Secretary of the State of Georgia. Seller made an election to be treated as an S corporation within the meaning of Section 1361 of the Code effective as of such date. Seller has conducted no business and had no assets or liabilities prior to the Reorganization (as defined below).

B.       On October 14, 2021, pursuant to a Contribution Agreement by and among the Purchase Price Beneficiaries and Seller, each of the Purchase Price Beneficiaries contributed all of such Purchase Price Beneficiaries’ issued and outstanding equity interests in Company to Seller in exchange for all of the issued and outstanding membership interests of Seller (the “Contribution”).

C.       Immediately prior to the Contribution, the Purchase Price Beneficiaries owned, beneficially and of record, all of the issued and outstanding equity interests in Company, which at the time of the Contribution qualified as an “S corporation” pursuant to Section 1361(a) of the Code.

D.       On the date of the Contribution, Seller made an election to treat Company as a “qualified subchapter S subsidiary” pursuant to Section 1361(b)(3) of the Code effective as of the date of the Contribution (the “QSub Election”).

E.       At least one day after the date of the Contribution and at least one day prior to the Closing Date, Seller made an election to treat Company as a “disregarded entity” for tax purposes (the “Check-the-Box Election” and, together with the Contribution and the QSub Election, the “Reorganization”).

F.       The Reorganization is completed and is intended to constitute a reorganization as defined in Section 368(a)(1)(F) of the Code as described in Rev. Rul. 2008-18.

G.       Seller is the record holder and beneficial owner of all of the issued and outstanding equity interests in the Company (the “Interests”);

H.       Seller desires to sell all of the Interests to Buyer, and Buyer desires to purchase all of the Interests from Seller, pursuant to the terms and conditions of this Agreement.

I.       Contemporaneously with the consummation of the transactions contemplated by this Agreement, (i) the Personal Goodwill Sellers will sell all of their Personal Goodwill related to the Business and operations conducted by the Company and Company Subsidiaries under a separate Personal Goodwill Purchase Agreement to be executed as of Closing, between Buyer and each of the Personal Goodwill Sellers with additional aggregate sums to be paid thereunder of $20,000,000; and (ii) each of the Purchase Price Beneficiaries will enter into Non-Competition Agreements between the Buyer and each Purchase Price Beneficiaries to be executed as of Closing, with additional sums to be paid thereunder, including $10,000,000 under the Key Owner Non-Competition Agreements.

J.       The purchase of the Interests by Buyer as contemplated by this Agreement is intended to be treated for all Federal Income Tax purposes as an acquisition by Buyer of an undivided interest in each asset of the Company, including Company Subsidiaries, with each such asset being transferred subject to the liabilities of the Company (collectively, the “Intended Tax Treatment”).

K.       The capitalized terms that are used in this Agreement are defined in the sections in which they first appear or in Article XII.

NOW, THEREFORE, in consideration of the representations, warranties, covenants, and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

Article I – PURCHASE AND SALE

1.1               Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller hereby sells, transfers, assigns, and delivers to Buyer, and Buyer hereby purchases from Seller, all of the Interests, for the consideration specified in Section 1.2.

1.2               Purchase Price. Subject to the terms and conditions of this Agreement, the aggregate consideration for the purchase of the Interests (the “Purchase Price”), shall be equal to the net sum of:

(a)                $75,000,000 (the “Base Amount”),

(b)                plus Closing Cash,

(c)                minus Closing Debt,

(d)                minus Seller’s Transaction Expense,

(e)                plus or minus, as applicable, the Closing Working Capital Adjustment, and

(f)                 plus the Earnout Payments, if any, but solely to the extent earned and paid in accordance with Section 1.6 and Schedule 1.6 of this Agreement.

1.3               Estimated Closing Statement. Not later than three (3) Business Days prior to the Closing Date, Seller shall cause the Company to deliver to Buyer (a) a statement substantially in the form provided in Exhibit A (the “Estimated Closing Statement”) setting forth the Company’s good faith estimate of the amount and calculation of the Closing Price (the “Estimated Closing Price”), including the amount and calculation of its component parts: the estimated Closing Cash, the estimated Closing Debt, the estimated Seller’s Transaction Expense, the estimated Closing Working Capital, and the estimated Closing Working Capital Adjustment, as well as (b) the Company’s good faith estimated unaudited balance sheet of the Company Entities as of the Closing Date, substantially in the form provided in Exhibit A-1, from which the Company derived the Estimated Closing Price and each component part thereof (the “Estimated Closing Balance Sheet”). The Estimated Closing Statement and the Estimated Closing Balance Sheet shall be prepared from the books of account of the Company in accordance with GAAP, applied consistently with the Company’s past practice to the extent such practices are compliant with GAAP. “Closing Price” means the total of the Base Amount plus or minus, as applicable, the estimated Closing Cash, the estimated Closing Debt, the estimated Seller’s Transaction Expense, and the estimated Closing Working Capital Adjustment.

1.4               Closing Payment. Subject to the terms and conditions of this Agreement, Buyer or its designee will pay the Estimated Closing Price on the Closing Date by wire transfer of immediately available funds, or hold back of funds as provided below, as follows (the “Closing Payment”):

(a)                Reserved

(b)                Seller’s Transaction Expense: to the payees of all unpaid Seller’s Transaction Expense listed in the Flow of Funds Memorandum attached as Exhibit B, in accordance with the amounts and wire transfer instructions set forth therein (the “Unpaid Seller’s Transaction Expense”);

(c)                Escrow: to the Escrow Agent in accordance with the wire transfer instructions set forth in the Flow of Funds Memorandum), the sum of $10,000,000 (the “Escrow Amount”) to be held in accordance with the Escrow Agreement and Section1.5(c) and Section 10.7 of this Agreement (the “Escrow”); and

(d)                Payment to Seller: to Seller, the balance of the Estimated Closing Price in accordance with the amounts and wire transfer instructions set forth in the Flow of Funds Memorandum.

1.5               Post-Closing Adjustment.

(a)                Closing Statement. Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller (a) a statement substantially in the form provided in Exhibit C, setting forth the amount and calculation of the Closing Price (the “Closing Statement”), including the amount and calculation of each component thereof as well as (b) a balance sheet of the Company Entities as of the Closing Date, substantially in the form provided in Exhibit C-1, from which the Buyer derived the Closing Price and each component thereof (the “Closing Balance Sheet”). The Closing Statement and the Closing Balance Sheet shall be prepared from the books of account of the Company in accordance with GAAP applied consistently with the Company’s past practices to the extent such practices are compliant with GAAP. The Closing Statement shall become final and binding upon the Parties 30 days after the Seller’s receipt thereof, unless Seller, within such 30 day period, delivers to Buyer written notice of its objection(s) to the Closing Statement (the “Objection Notice”), in which case the Closing Statement shall not be binding upon the Parties and such dispute shall be resolved pursuant to Section 1.5(b). Buyer will furnish to the Seller such work papers and other documents and information relating to the Closing Statement as the Seller may reasonably request.

(b)                Dispute Resolution.

(i)                 Procedure. Within 10 Business Days after Buyer receives the Objection Notice, Seller and Buyer shall negotiate in good faith in an effort to resolve their differences with respect to the disputed items set forth in the Objection Notice (the “Disputed Items”). If Seller and Buyer are able to resolve any of the Disputed Items within such 10 Business Days, then each such resolved Disputed Item and its corresponding resolution shall be memorialized in a written agreement signed by Buyer and by Seller (collectively, the “Resolved Items”). If Seller and Buyer are unable to resolve all of the Disputed Items within such 10 Business Day period, then either of such Parties may submit the Closing Statement, the Objection Notice, and an identification of the Unresolved Disputed Items (the “Submission”) to RSM US LLP (the “Accounting Firm”)¹, who will be jointly engaged to resolve such Unresolved Disputed Items. The Seller and Buyer will each be provided the opportunity to present to the Accounting Firm material that is relevant to the determination. “Unresolved Disputed Items” means the Disputed Items other than the Resolved Items.

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¹ NTD: Please advise if Buyer has any suggestions regarding accounting firm. Seller would propose Bennett Thrasher, LLP, a regional firm based in Atlanta, to resolve any disputes.

(ii)               Accounting Firm Decision. The Accounting Firm’s role shall be limited to resolving the Unresolved Disputed Items and the Accounting Firm shall strictly apply the provisions of this Agreement regarding the determination of the Closing Price (including the determination of Closing Cash, Closing Debt, Seller’s Transaction Expense, Closing Working Capital, and the Closing Working Capital Adjustment) in achieving such resolution. With respect to each Unresolved Disputed Item, the decision of the Accounting Firm shall be within the range of the values proposed by Buyer and Seller, and the Accounting Firm may not assign a value to any Unresolved Disputed Item greater than the greatest value for such item, or less than the lowest value for such item, claimed by Buyer or Seller. The Accounting Firm shall render its decision in writing within 30 days of its receipt of the Submission. The decision of the Accounting Firm, functioning as an expert and not an arbitrator, shall be final and binding upon the Parties and shall be in substitution for and precludes the bringing of any actions in any court in connection with the resolution of any Unresolved Disputed Item(s) under this Section 1.5, other than enforcement of the Accounting Firm’s determination, if necessary. The fees and expenses of the Accounting Firm incurred in resolving the Unresolved Disputed Items (“Accounting Firm Fees”) shall be borne by a party to the extent the Unresolved Disputed Items were not resolved in favor of such party. For example, if the Unresolved Disputed Items total $1,000 and the Accounting Firm awards $600 to Seller and $400 to Buyer, then 60% of the Accounting Firm Fees would be borne by Buyer and 40% of the Accounting Firm Fees would be borne by Seller.

(c)                Purchase Price Adjustment and Payment. If the Closing Price, as finally determined pursuant to this Section 1.5, is (i) less than the Estimated Closing Price (the “Shortfall Amount”), then, within 5 Business Days after such determination, Buyer and Seller shall execute and deliver Joint Written Instructions to the Escrow Agent to pay out of the then-remaining Escrow Amount an amount equal to the Shortfall Amount and to the extent the then-remaining Escrow Amount is less than the Shortfall Amount, Seller shall pay to Buyer the remaining portion of the Shortfall Amount within 5 Business Days of such determination of the Shortfall Amount or (ii) more than the Estimated Closing Price (the “Excess Amount”), then Buyer shall pay the Excess Amount to Seller within 5 Business Days of such determination. Any payments made pursuant to this Section (whether out of the Escrow or by Seller directly) shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.

1.6               Earnout Payments. Subject to the terms and conditions set forth in Schedule 1.6 (the “Earnout Payment Schedule”) and the other terms and conditions of this Agreement, Buyer shall pay to Seller such Earn-Out Payments, if any, as are required to be paid pursuant to the Earn-Out Payment Schedule (the “Earn-Out Payments”).Any payments made pursuant to this Section (whether out of the Escrow or by Seller directly) shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.

1.7               Withholding. If a payment is required to be made pursuant to this Agreement (or any other Transaction Agreement) that is subject to withholding pursuant to applicable Law, Buyer (or such other applicable withholding agent) shall be entitled to deduct and withhold from such payment any amount it is legally required to deduct and withhold. To the extent any such amounts are deducted or withheld, such amounts shall be treated for all purposes under this Agreement (or any other Transaction Agreement) as having been paid to the Person to whom such amounts would otherwise have been paid.

Article II - REPRESENTATIONS AND WARRANTIES REGARDING SELLER AND ITS SUBSIDIARIES²

Seller represents and warrants to Buyer as of the Signing Date as follows:

2.1               Organization.

(a)                Each of the Company, Sterimed, LLC and One Degree Medical Holdings, LLC, is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Georgia, has full power and authority to own, lease, and operate its assets and to conduct its business as it is currently being conducted.

(b)                DAS Medical Corporation is a corporation duly organized, validly existing, and in good standing under the laws of the state of Delaware, has full power and authority to own, lease, and operate its assets and to conduct its business as it is currently being conducted.

(c)                DAS Medical International, S.R.L (D.R.), is a company of limited responsibility duly organized, validly existing, and in good standing under the laws of the Dominican Republic, has full power and authority to own, lease, and operate its assets and to conduct its business as it is currently being conducted.

(d)                Company has provided to Buyer complete and accurate copies of the Organizational Documents of each of the Company Entities.

(e)                None of the Company Entities is in violation of any of the provisions in its Organizational Documents.

2.2               Foreign Qualifications. Schedule 2.2 sets forth a complete and accurate list of all jurisdictions in which each of the Company Entities (a) owns or leases real property, manufactures products, sells products or services, or employs employees and (b) is qualified to do business.

2.3               Due Authorization; Binding Obligation.

(a)                The Company has all requisite power and authority and has taken all corporate action required on its part to permit it to execute and deliver and to carry out the terms of this Agreement and of the other Transaction Agreements to be executed by the Company and to consummate the Transactions.

(b)                This Agreement and the other Transaction Agreements to be executed by the Company have been duly executed and delivered by the Company and constitute the legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally and by general principles of equity (the “Enforceability Exceptions”).

2.4               Non-Contravention. Except as set forth in Schedule 2.4, the execution, delivery and performance of this Agreement and of the other Transaction Agreements to be executed by the Company and the consummation of the Transactions by the Company do not and will not contravene the Organizational Documents of any of the Company Entities or violate any applicable Law, and do not and will not conflict with or result in (a) a material breach of or material default or material increase of any obligation or liability under any contract to which any of the Company Entities is a party or (b) a violation of or default under any judgment, decree, order, or ruling by which any of the Company Entities is bound or any of its respective material assets or properties is bound or affected.

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² NTD: Subject to ongoing review by Seller’s D.R. counsel.

2.5               Approvals, Consents and Filings. Except for approvals required under the HSR Act and applicable Competition Laws, or as set forth in Schedule 2.5, no approval, authorization, consent, order, filing, registration or notification is required to be obtained by any of the Company Entities from, or made or given by any of the Company Entities to, any Governmental Authority or any other Person in connection with the execution, delivery, or performance of this Agreement or any other Transaction Agreement to be executed by the Company or the consummation of the Transactions, other than such consents or approvals as have been duly obtained and are in full force and effect. Schedule 2.5 lists each Material Contract that requires any Company Entity to obtain consent from the other contracting party prior to the Closing in connection with (a) the execution, delivery and performance of this Agreement or any other Transaction Agreement to which any Company Entity is a party or (b) the consummation of the Transactions.

2.6               Capitalization; Debt; Subsidiaries.

(a)                The Interests constitute one hundred percent (100%) of the issued and outstanding equity interests in the Company. Seller is the record holder and beneficial owner of all of the Interests.

(b)                Except as set forth in Schedule 2.6(b), there are no preemptive or other outstanding rights, options, warrants, conversion rights, exchange rights, redemption rights, repurchase rights, agreements, arrangements or commitments under which the Company is or may become obligated to issue or sell, or which give any Person a right to subscribe for or acquire, any equity interests in the Company or obligations exercisable or exchangeable for or convertible into any equity interests in the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no outstanding equity appreciation, phantom equity, or profit participation rights with respect to the equity securities of the Company.

(c)                All of the Interests have been offered, issued, and sold by the Company in compliance in all material respects with, or pursuant to valid exemptions from, all applicable federal and state securities laws.

(d)                None of the Company Entities has any Debt, other than the Debt disclosed on Schedule 2.6(d).

(e)                Other than the Company Subsidiaries, the Company does not have any subsidiaries and does not own any equity interests in any Person. Each of the Company Subsidiaries is a direct wholly owned subsidiary of the Company, except DAS Medical International, S.R.L. (D.R.) which is a direct wholly owned subsidiary of DAS Medical Corporation, a direct wholly owned subsidiary of the Company. Except for the Company’s equity interests in DAS Medical Corporation (which equity interests are certificated), the Company’s wholly owned equity interests in the Company Subsidiaries are uncertificated and DAS Medical Corporation's wholly owned equity interests in DAS Medical International, S.R.L. (D.R.) are also uncertificated.

2.7               Financial Statements. Schedule 2.7 contains complete and accurate copies of the (a) unaudited consolidated balance sheets of the Company and the Company’s Subsidiaries as of the close of business on August 31, 2021 (the “Interim Balance Sheet” and the “Interim Balance Sheet Date” respectively), and the related unaudited consolidated statements of income and cash flows for the eight month period beginning on January 1, 2021, and ending on the Interim Balance Sheet Date (the “Interim Income Statements” and, together with the Interim Balance Sheet, the “Interim Financial Statements”), and (b) the internally-prepared consolidated balance sheets of the Company and Subsidiaries as of the close of business on December 31, 2020, and the related consolidated statements of income and cash flows for the twelve month period ended on December 31, 2020 (collectively, the “2020 Financial Statements” and, together with the Interim Financial Statements, the “Financial Statements”). Except as set forth therein, in the notes thereto or on Schedule 2.7 (and subject, in the case of interim financial statements, to normal year-end adjustments), the Financial Statements have been prepared from the books and records of the Company Entities and present accurately and fairly in all material respects, in accordance with GAAP, the financial positions and results of operations and cash flows of the Company Entities as of their respective dates and for the respective periods covered thereby.

2.8               No Undisclosed Liabilities. The Company Entities are not subject to and do not have any Liability which is material to the Company Entities either individually or in the aggregate, except: (a) to the extent disclosed or reserved against in the Interim Balance Sheet; (b) for Liabilities that were reasonably incurred after the Interim Balance Sheet Date in the Ordinary Course of Business consistent in amount and kind with the past practice of the applicable Company Entity; (c) performance obligations under the executory portion of any Material Contract by which the Company is bound; (d) liabilities disclosed in Schedules 2.6(d) and 2.22; or (e) the Unpaid Seller’s Transaction Expense.

2.9               Absence of Changes. Except as set forth in Schedule 2.9, from the Interim Balance Sheet Date until the Signing Date:

(a)                Each of the Company Entities has conducted its business in the Ordinary Course of Business;

(b)                no Lien has been placed upon the assets of any of the Company Entities, other than Permitted Liens;

(c)                the Company has not declared any dividend or distribution or redeemed any of its equity securities;

(d)                none of the Company Entities has acquired or disposed of any material asset other than Inventory in the Ordinary Course of Business;

(e)                there has been no damage, destruction, or casualty loss with respect to any of the material assets of any of the Company Entities;

(f)                 none of the Company Entities has increased the compensation or employee benefits paid or payable to any officer or other employee;

(g)                none of the Company Entities has (i) settled or compromised any pending or threatened legal proceeding, (ii) waived any material rights under any Material Contract or Permit, or (iii) canceled or compromised any material debt or claim of the Company Entities other than in the Ordinary Course of Business;

(h)                none of the Company Entities has made any change in the accounting or auditing or tax methods, practices, or principles of such Company Entity except to the extent required by changes in GAAP that would have the effect of materially increasing the Tax liability or materially reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period;

(i)                 other than in connection with the Reorganization, none of the Company Entities has made or rescinded any express or deemed election relating to Taxes or any Tax exemption, amended any Tax Return or settled or compromised any claim, action, suit, litigation, proceeding, arbitration, investigation, audit, or controversy relating to Taxes that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period;

(j)                 none of the Company Entities has incurred any Debt;

(k)                none of the Company Entities has deferred or agreed to defer payment of any payables of such Company Entity, or accelerated or agreed to accelerate the collection of any receivables of such Company Entity, in each case outside of the Ordinary Course of Business;

(l)                 other than the orders placed for the Select Equipment, none of the Company Entities has incurred, or agreed to incur, a single capital expenditure (or series of capital expenditures) in excess of $100,000 for additions to property, plant or equipment or capital leases, and which, if purchased, would be reflected in the property, plant or equipment accounts or capital lease accounts of the Interim Balance Sheet;

(m)              none of the Company Entities has loaned or advanced money or other property to any present or former director, officer, manager, employee, owner, member, or consultant of the Company;

(n)                neither the Company nor any ERISA Affiliate has (i) established, adopted, entered into, amended or terminated any Benefit Plan, (ii) adopted any resolutions in respect of any of the foregoing actions or (iii) established or amended any severance policy, plan or arrangement for employees, officers, or directors of Company or any ERISA Affiliate; or

(o)                none of the Company Entities has taken, committed to undertake, or failed to take any action that would result in the occurrence of any of the foregoing.

2.10           Material Contracts.

(a)                Schedule 2.10(a) sets forth a list, as of the Signing Date, of the following contracts of the Company:

(i)                 contracts (including any purchase orders or leases) which resulted in payments made by any of the Company Entities of more than $100,000 within the 12-month period ending on the Signing Date;

(ii)               contracts (including any purchase orders or leases) which any of the Company Entities reasonably expects to result in payments made by such Company Entity of more than $100,000 within the 12-month period from and after the Signing Date;

(iii)             contracts (including any purchase orders or leases) which resulted in payments received by any Company Entity of more than $100,000 within the 12-month period ending on the Signing Date;

(iv)              contracts (including any purchase orders or leases) which any of the Company Entities reasonably expects to result in payments to be received by such Company Entity of more than $100,000 within the 12-month period from and after the Signing Date;

(v)                contracts relating to Debt of any of the Company Entities;

(vi)              contracts that: (A) limit the freedom of any of the Company Entities to engage in any line of business, to operate its business, or to compete with any Person or (B) restrict in any way the use, ownership, operation, or alienability of the assets of any of the Company Entities (including with respect to (A) or (B) any contracts with non-solicitation, non-compete, or exclusivity provisions);

(vii)            any offer letter or employment agreement with any current U.S.-based employee that is not immediately terminable at-will by any of the Company Entities without notice (excluding statutory notice) or payment of severance (excluding statutory severance) and the standard form contract for employees in the Dominican Republic;

(viii)          retention agreements or other contracts providing for change in control benefits, in each case that may or will become due as a result of the Closing;

(ix)              contracts with any current or former member or Affiliate of the Company (except for any contracts relating to normal compensation or welfare benefits provided for services as an officer, director, manager, or employee of any of the Company Entities);

(x)                each Government Contract;

(xi)              any license or other agreement relating to Intellectual Property Rights (excluding any “off-the-shelf” software or “shrink-wrap” or “click-through” license agreements), including the In-Licenses and Out-Licenses listed in Schedule 2.13(c)(i) and Schedule 2.13(c)(ii);

(xii)            any agency, dealer, sales representative, or marketing agreement;

(xiii)          any collective bargaining agreement; and

(xiv)          any co-promotion, partnership or joint venture agreement.

(b)                The Company has provided to Buyer true and complete copies of each contract required to be disclosed pursuant to sub-section (a) hereof (each, a “Material Contract”).

(c)                With respect to each Material Contract and except as set forth on Schedule 2.10(c), (i) neither any of the Company Entities nor, to the Knowledge of the Company, any other party thereto is in breach of any Material Contract, (ii) none of the Company Entities has given notice of termination or non-renewal with respect to any Material Contract and no other party thereto has given written notice of termination or non-renewal or, to the Knowledge of the Company, oral notice of termination or non-renewal of any Material Contract, (iii) to the Knowledge of the Company, no event has occurred or circumstance exists that, individually or in the aggregate, would give any other party thereto the right to accelerate any Company Entity’s obligations or to terminate any Material Contract, and (iv) each Material Contract is in full force and effect and constitutes a valid, binding, and enforceable agreement in accordance with its terms by and against the Company Entity party thereto and, to the Knowledge of the Company, the other party thereto, except to the extent that enforceability may be limited by the Enforceability Exceptions and except to the extent such Material Contract has been performed in full or expired by its own terms prior to the Signing Date.

2.11           Tangible Personal Property. Schedule 2.11 sets forth a complete and correct list of all tangible personal property with a net book value in excess of $25,000 (a) owned by any of the Company Entities (the “Owned Personal Property”), (b) leased by any of the Company Entities (the “Leased Personal Property”), or (c) which the Company Entities have a right to use for so long as they manufacture products for the customer which owns such personal property (the “Right of Use Personal Property” and, together with the Owned Personal Property and Leased Personal Property, the “Personal Property”). Each of the Company Entities has (i) good and valid title to all of the Owned Personal Property owned by such Company Entity, free and clear of all Liens other than Permitted Liens, (ii) valid and enforceable leasehold interests in all of the Leased Personal Property of such Company Entity, free and clear of all Liens other than Permitted Liens and (iii) the right to use the Right of Use Personal Property. To the Knowledge of the Company, the Personal Property, together with any immaterial tangible personal property currently in each Company Entity’s possession and to which it has good and valid title, constitutes all tangible personal property reasonably necessary for the Company Entities to operate, in all material respects, the business of the Company Entities as presently conducted. Except as set forth on Schedule 2.11, the Personal Property is maintained by the applicable Company Entity in good operating condition and repair, reasonable wear and tear excepted. The Company has provided to Buyer true and complete copies of all material leases of Personal Property.

2.12           Real Property.

(a)                None of the Company Entities owns real property.

(b)                Schedule 2.12(b) sets forth all real properties leased by any of the Company Entities (the “Leased Real Properties”). With respect to each lease agreement pursuant to which such real properties are leased (each, a “Real Property Lease”), (i) none of the Company Entities or, to the Knowledge of the Company, any other party thereto is in breach thereof, (ii) none of the Company Entities has received a written notice of termination or, to the Knowledge of the Company, an oral notice of termination thereof, and (iii) all rent and other charges currently due and payable thereunder have been paid. Each Real Property Lease is valid, binding, and enforceable in accordance with its terms by and against the applicable Company Entity, subject to the Enforceability Exceptions, and the applicable Company Entity holds a valid and existing leasehold interest under each Real Property Lease. The Company has provided to Buyer a true and complete copy of each Real Property Lease.

(c)                To the Knowledge of the Company, the use of the Leased Real Properties, as presently used by the applicable Company Entity, does not violate any local zoning or similar land use laws or governmental regulations or any covenant, condition, restriction, order or easement. To the Knowledge of the Company, there is no pending or threatened (i) condemnation actions affecting the Leased Real Properties, or (ii) zoning, building code, or other moratorium action or similar matter which is reasonably expected to materially and adversely affect the Company Entities’ ability to operate the Leased Real Properties after the Closing in the same manner as they are currently operated. The Leased Real Properties and the improvements thereon are in good operating condition and repair (ordinary wear and tear excepted).

2.13           Intellectual Property.

(a)             Registered Intellectual Property. Schedule 2.13(a) sets forth a complete and accurate list of all (i) Intellectual Property Registrations that are registered or filed in the name of any Company Entity (the “Company Registrations”), enumerating specifically the applicable filing or registration number, title, jurisdiction in which filing was made or from which registration issued, date of filing, date of issuance, and names of all current applicant(s) and registered owner(s), as applicable. All assignments of Intellectual Property Registrations to any of the Company Entities have been properly executed and recorded. All Company Registrations are owned by and registered or applied for solely in the name of a Company Entity, are enforceable, subsisting, have not been abandoned and, to the Knowledge of the Company, valid; and all issuance, renewal, maintenance, and other payments that are or will become due with respect thereto within one hundred twenty (120) days after the Signing Date have been paid by or on behalf of a Company Entity.

(b)                Material Non-Registered Intellectual Property. Schedule 2.13(b) sets forth a complete and accurate list of all Material Non-Registered Intellectual Property.

(c)                Licensed Intellectual Property. Schedule 2.13(c)(i) sets forth a complete and accurate list of all licenses, sublicenses, or other agreements under which any of the Company Entities is granted Intellectual Property Rights by another Person (other than licenses of commercially available, unmodified, “off the shelf” software or software-as-a-service service agreements) (“In-Licenses”). Schedule 2.13(c)(ii) sets forth a true and complete list of all licenses, sublicenses, or other agreements under which any of the Company Entities has granted Intellectual Property Rights to another Person, other than licenses granted to end users in the ordinary course of business on such Company Entity’s standard form of commercial agreement, without material modification (“Out-Licenses”).

(d)                Ownership and Sufficiency. Each item of Company Intellectual Property is owned, or available for use under a valid license, by one or more of the Company Entities, and following the Closing, will continue to be owned, or available for use, by one or more of the Company Entities on substantially identical terms and conditions as it was to one or more of the Company Entities immediately prior to the Closing, without restriction and without additional payment of any kind to any third party (other than amounts that would have been payable by a Company Entity even if the Transactions did not occur). The Company Intellectual Property constitutes all Intellectual Property Rights reasonably necessary to conduct the Business in all material respects in the manner currently conducted by the Company Entities.

(e)                Claims; Orders. There are no Claims (including any motions, petitions, oppositions, interferences or re-examinations) settled in the past twelve (12) months, or pending, or that to the Company’s Knowledge are threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property Rights of any third party by any of the Company Entities, (ii) challenging the validity, enforceability, registrability or ownership of any Company Owned Intellectual Property, or (iii) by any of the Company Entities alleging any infringement, misappropriation, dilution, or violation by any third party of the Company Intellectual Property. No Company Owned Intellectual Property is subject to any proceeding or outstanding governmental order or settlement agreement or stipulation that restricts in any manner the use, transfer, or licensing of any such Company Owned Intellectual Property or of any Company Entity’s Products.

(f)                 Infringement by the Company. None of the Company Owned Intellectual Property infringes, violates, or constitutes a misappropriation of (or, during the five (5) year period prior to Closing, infringed, violated, or constituted a misappropriation of) any Intellectual Property Right of any other Person.

(g)                Reserved.

(h)                Company Source Code. None of the Company Entities has or has used any Company Source Code.

(i)                 Open Source Code. None of the Company Entities owns any Open Source Code or has incorporated any Open Source Code into any Product.

(j)                 Reserved.

(k)                Trade Secrets; Proprietary Information. Each of the Company Entities has taken commercially reasonable measures to maintain in confidence all trade secrets and confidential information comprising a part thereof. There has been no disclosure of any trade secrets of any of the Company Entities. There has been no disclosure of material confidential or proprietary information of any of the Company Entities to any Person other than pursuant to binding and enforceable confidentiality and non-use agreements with such Persons. Each of the Company Entities has complied in all material respects with all contractual and legal requirements pertaining to any third party proprietary or confidential information in the possession, custody, or control of such Company Entity and there has been no unauthorized disclosure of such information by such Company Entity.

(l)                 Reserved.

(m)              Support and Funding. Except as specifically set forth in Schedule 2.13(m), none of the Company Entities has received any support, funding, resources or assistance from any federal, state, local, or foreign Governmental or quasi-Governmental Authority or funding source in connection with the exploitation of the Products or the Company Owned Intellectual Property and does not have a pending application or other request for any such support, funding, resources, or assistance.

2.14           Data Privacy and Security.

(a)                Reserved.

(b)                Information Privacy and Security. Each of the Company Entities has complied in all material respects with all contractual requirements and Information Privacy and Security Laws pertaining to information privacy and security applicable to the Business. No written complaint (and, to the Knowledge of the Company, no oral complaint) relating to an improper use or disclosure of, or a breach in the security of, any Protected Information in any Company Entity’s possession or control has been made or, to the Knowledge of the Company, threatened against any Company Entity.

(c)                Protected Information. Schedule 2.14(c)(i) identifies all categories of Protected Information collected by any of the Company Entities in the ordinary course of business, excluding such information that a Company Entity processes on behalf of a customer of such Company Entity. From the date that is three (3) years before the Signing Date, each of the Company Entities has taken commercially reasonable steps (including implementing adequate measures with respect to technical and physical security) designed to ensure that all Protected Information in its possession or under its control is protected against loss and against unauthorized access, use, modification, disclosure, or other misuse. Each Company Entity’s receipt, collection, monitoring, maintenance, creation, transmission, use, analysis, disclosure, storage, disposal and security of all Protected Information has complied, and complies, in all material respects, with (i) all Contracts to which such Company Entity is party, and (ii) all Information Privacy and Security Laws.

(d)                Information Technology Assets. Each of the Company Entities has sufficient rights to reasonably use all Software, firmware, networks, middleware and systems, and information technology equipment used or held for use in connection with the operation of its business (the “IT Assets”) and associated documentation, all of which rights shall survive unchanged upon the consummation of the Transactions. To the Knowledge of the Company, the IT Assets perform reliably in all material respects, and since the date that is three (3) years prior to the Signing Date, there has been no material failure or other material substandard performance of any of the IT Assets that has caused any material disruption to the Business. The IT Assets provide commercially reasonable redundancy and speed to meet the performance requirements of the Company Entities’ Business as currently conducted. To the Knowledge of the Company, the IT Assets do not contain any viruses, malware, Trojan horses, worms, other undocumented contaminants, material bugs, vulnerabilities identified in the U.S. National Vulnerability Database maintained by the Department of Homeland Security and the National Institute of Standards and Technology as “high” or “critical”, faults, disabling codes, or other devices or effects that reasonably could (i) enable or assist any Person to access without authorization the IT Assets or any information in the IT Assets, or (ii) otherwise adversely affect the functionality of the IT Assets in any material respect. Each of the Company Entities complies with industry standard practice to periodically review patches, updates and hotfixes offered or recommended by any third-party developer or supplier of IT Assets or Third Party Software and deploy such patches, updates and hotfixes that it believes are commercially prudent. To the Knowledge of the Company, no Person has gained unauthorized access to any IT Assets.

(e)                Policies and Procedures. Each of the Company Entities has disaster recovery plans, procedures and facilities in place that are, to the Knowledge of the Company, reasonably appropriate to minimize the disruption of its Business in the event of any material failure of any of the IT Assets in all material respects with applicable Laws and Company Contracts, and each affected Company Entity has regularly tested such plans, procedures and facilities. Except as set forth on Schedule 2.14(e), from the date that is three (3) years before the Signing Date, to the Knowledge of the Company, none of the Company Entities has experienced any data security breach resulting in unauthorized access to any IT Assets or unauthorized access, use or disclosure of any Protected Information owned, used, stored, received, or controlled by or on behalf of such Company Entity, including any unauthorized access, use or disclosure of Protected Information, that would constitute a breach for which notification to individuals, third parties and/or Governmental Authority is required under any applicable Information Privacy and Security Laws or Company Contracts.

2.15           Employee Benefits.

(a)                Benefit Plans. Schedule 2.15(a) lists each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all equity-incentive, severance, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, gross up, retiree, medical, disability, welfare, employee loan and all other compensation, employee benefit plans, agreements, or arrangements (i) under which any current or former employee, director, consultant other service provider of any Company Entity or any ERISA Affiliate has any claim or right to benefits and which are or have been since the earliest date of organization of any Company Entity contributed to, entered into, sponsored by or maintained by any Company Entity or (ii) under which any Company Entity has any liability, contingent, present, future or otherwise, including, without limitation, as result of any ERISA Affiliate (all such plans, agreements, and arrangements shall be collectively referred to as the “Benefit Plans”), other than any (A) offer letter or employment agreement with any current employee that is not immediately terminable at-will by a Company Entity or any applicable ERISA Affiliate without notice (other than statutory notice) or payment of severance (other than statutory severance) and (B) consulting, advisor or contractor agreement that is terminable by a Company Entity with no more than sixty (60) days’ notice (other than statutory notice).

(b)                Plan Documents; Contributions; Termination. With respect to each Benefit Plan, Company has provided to Buyer true and complete copies of: (i) any and all plan documents, trusts, instruments and agreements pursuant to which the plan is maintained and operated; (ii) any and all outstanding summary plan descriptions and material modifications thereto; (iii) the three (3) most recent completed Forms 5500/annual reports with all schedules thereto, if applicable; (iv) the most recent annual and periodic accounting of plan assets, if applicable; and (v) all nondiscrimination testing for the last three (3) completed plan years, if applicable; and (vi) the most recent IRS determination or opinion letter, if applicable. All contributions required to be made under the terms of any Benefit Plan have, as of the date hereof, been made or, if such contributions were not due as of the date hereof, accrued on the Financial Statements. Each material Benefit Plan is in writing and where a Benefit Plan has not been reduced to writing, the Company has provided a written summary of the material plan terms. Each Benefit Plan may be amended (to the extent permitted by applicable Law) or terminated at any time without liability to the Company, any ERISA Affiliate, the Benefit Plan or the Benefit Plan fiduciaries except for reasonable administrative costs associated with such termination and the payment of any vested accrued liabilities through the date of such termination.

(c)                Benefit Plan Compliance and Status. Except as set forth on Schedule 2.15(c), with respect to each Benefit Plan (i) each such Benefit Plan has been established, maintained and administered in all material respects in accordance with its terms and all applicable Law including, without limitation (and as applicable), the Code, ERISA, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and the Patient Protection and Affordable Care Act; (ii) to the Knowledge of the Company, no breach of fiduciary duty has occurred with respect to which any Benefit Plan fiduciary, any Company Entity or any Benefit Plan is liable; (iii) no condition exists that would subject any Company Entity, or any ERISA Affiliate to any material tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Laws, rules and regulations; (iv) no disputes (other than routine claims for benefits in the ordinary course) nor any audits or investigations by any Governmental Authority are pending or, to the Knowledge of the Company, threatened; (v) no “prohibited transaction” (within the meaning of either Code Section 4975(c) or Section 406 of ERISA) has occurred with respect to which any Company Entity, Benefit Plan fiduciary or any Benefit Plan is liable; (vi) each Benefit Plan subject to Section 401(a) of the Code has received a favorable determination letter from the IRS or is the subject of a favorable opinion letter and nothing has occurred since the issuance of such letter that would adversely affect the qualification status of such plan or the favorable letter; (vii) no Benefit Plan or other arrangement maintained by any Company Entity or by any entity with which any Company Entity is or has been considered a single employer under Section 4001 of ERISA or Section 414 of the Code is, or has been, subject to Title IV of ERISA or funding requirements under Section 412 of the Code and Section 302 of ERISA; (viii) no Benefit Plan is a multiple employer welfare arrangement as is set forth in Section 3(40) of ERISA, a multiple employer plan as is set forth in Section 413 of the Code or subject to Sections 419 or 419A of the Code; (ix) no Benefit Plan provides health or welfare benefits after termination of employment or service except as is required by COBRA, or similar state law; and (x) no Benefit Plan is maintained pursuant to a “professional employer organization” contract, third party leasing arrangement or co-employment relationship.

(d)                Non-Qualified Deferred Compensation Plans. Each Benefit Plan that is a “nonqualified deferred compensation plan” described in Section 409A(d)(1) of the Code (the “NQDC Plans”) has been maintained in material compliance with Section 409A of the Code and all related Treasury and IRS Guidance (collectively, “Section 409A”), as to both form and operation, since the later of (i) the inception of the applicable NQDC Plan or (ii) the effective date of Section 409A including any extensions granted pursuant to applicable transition provisions of Section 409A. No amount or payment under any NQDC Plan has been or will, upon vesting, be includible in income as a result of Section 409A(a)(1) of the Code or Section 409A generally. No Benefit Plan that provides for any equity or equity related compensation including, without limitation, stock options, stock appreciation rights, restricted stock, restricted stock units or phantom stock, is a NQDC Plan.

(e)                Effect of this Agreement; Gross-Up Payments. Except as set forth in Schedule 2.15(e), neither the execution, delivery or performance of this Agreement nor the consummation of the Transactions (whether alone or in connection with any other events(s)) will: (i) accelerate the time of payment or vesting or funding or increase benefits or the amount payable or funding of any benefits under any Benefit Plan or other arrangement, (ii) result in any payments becoming due to any current or former employee, director, consultant or other service provider (other than the Sale Bonuses) or (iii) result in any payments that (1) would not be deductible under Section 280G of the Code or (2) would result in any excise tax on any current or former employee, director, consultant or other service provider of any Company Entity or an ERISA Affiliate under Section 4999 of the Code or any other comparable applicable Law. No Benefit Plan provides for any “gross-up” payments for any taxes due under the Code including, without limitation, Section 4999 of the Code or Section 409A(a)(1) of the Code.

2.16           Employees. Schedule 2.16 sets forth a complete and accurate list of all persons who are employees of (or independent contractors or consultants that perform services for) any of the Company Entities as of the Signing Date (the “Business Employees”) and each such person’s name, current position (including identification of whether such person is an employee, independent contractor, or consultant), hire date, base annual compensation, and other annual compensation (including most recently received annual commission and/or bonus amounts). Except as set forth on Schedule 2.16, none of the Business Employees are receiving short-term disability, long-term disability, or workers’ compensation benefits or are otherwise on a leave of absence.

2.17           Employment and Labor Matters.

(a)                Labor Unions. None of the Company Entities are a party to or otherwise bound by any collective bargaining agreement or contract with a labor union or other labor organization, nor is any Company Entity the subject of any proceeding or claim asserting that it or any of its employees has committed an unfair labor practice or seeking to compel it to bargain with any labor union or labor organization. None of the Company Entities have since its organization been subject to any labor union organizing activity, or any labor strike, dispute with any labor union or labor organization, walkout, work stoppage, slow-down or lockout involving any Company Entity, and none of the foregoing is pending, nor, to the Knowledge of the Company, threatened.

(b)                Employment Law Compliance. Each of the Company Entities is, and since its organization has been, in compliance in all material respects with all laws, regulations and orders relating to the employment of labor in the jurisdiction in which each Company Entity is bound, including, as applicable, all such laws, regulations and orders relating to employee classification, wages, hours, the Fair Labor Standards Act, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax.

2.18           Environmental Matters; Health and Safety. Except as set forth in Schedule 2.18:

(a)                Each of the Company Entities is, and since its organization has been, in compliance with all Environmental, Health, and Safety Requirements applicable to such Company Entity, to its operation of the Business, and to its ownership or use of its assets, including the Leased Real Properties;

(b)                None of the Company Entities has released Hazardous Substances on or at the Leased Real Properties, or any real property previously owned or leased by any Company Entity. To the Knowledge of the Company, there has not been a release of nor is there a threatened release of Hazardous Substances on or at the Leased Real Properties, or any real property previously owned or leased by any Company Entity;

(c)                None of the Company Entities has received any written notice or claim (nor to the Knowledge of the Company has it received any oral notice or claim) alleging that it has violated any Environmental, Health, and Safety Requirements or that it has any liability or obligation to any Person as a result of the presence or release of any Hazardous Substances, and, to the Knowledge of the Company, there is no basis for any such claim; and

(d)                None of the Company Entities is a party to or, to the Knowledge of the Company, affected by any proceedings, investigations, or agreements concerning Environmental, Health, and Safety Requirements or the presence or release of any Hazardous Substances.

2.19           Compliance with Applicable Laws; Permits.

(a)                Applicable Laws. Each of the Company Entities is, and since its formation has been, in compliance in all material respects with all applicable Law. Each of the Company Entities has duly obtained and possesses all permits, concessions, grants, franchises, licenses and other governmental authorizations, agreements and approvals (collectively “Permits”) necessary for the conduct of the Business in all material respects as currently conducted. None of the Company Entities has received any written notice of violation of any applicable Law from any Governmental Authority.

(b)                Unlawful Payments. Each of the Company Entities is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., the United Kingdom Bribery Act 2010, legislation implementing the Organization for Economic Cooperation and Development Convention Against Bribery of Foreign Public Officials in International Business Transactions, and all applicable anti-corruption or bribery Laws in any jurisdiction in which such Company Entity has conducted its business (including the Business) (collectively, “Anti-Bribery Laws”), and none of the Company Entities nor, to the Knowledge of the Company, any of its Representatives has authorized, directed or participated in any act in violation of any provision of any Anti-Bribery Law. None of the Company Entities has received any written communication from any Governmental Authority that alleges that it, or any current or former Representatives thereof, is or may be in violation of, or has, or may have, any liability under, any Anti-Bribery Laws, and the Company does not have Knowledge of violations of Anti-Bribery Laws. None of the Company Entities has made, nor does it anticipate making, any disclosures to any Governmental Authority for potential violations of Anti-Bribery Laws.

2.20           Taxes.

(a)                Tax Returns. The Company Entities have duly and timely filed all Tax Returns required to be filed under applicable Law and such Tax Returns are true, correct and complete in all respects, were prepared in compliance with applicable Law, and correctly reflect in all respects the liability for Taxes and other information required to be reported thereon. Such Tax Returns do not contain (and were not required to contain in order to avoid the imposition of a penalty) a disclosure statement under Sections 6662, 6662A and 6707A of the Code (or any predecessor provision or comparable provision of state, local or foreign law) and Treasury Regulations Section 1.6011-4.

(b)                Extensions. The Company Entities have not requested nor received an extension of time to file any Tax Return with respect to a Tax Return not yet filed and has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency except with respect to matters that have been finally resolved as of the Signing Date.

(c)                Payment. The Company Entities have timely paid all Taxes (whether or not shown or required to be shown on any Tax Return) that have become due and payable, and the Company Entities have adequately provided in the Financial Statements for all Taxes accrued through the date of such Financial Statements that were not yet due and payable as of the date thereof. All Taxes of the Company Entities accrued following the end of the most recent period covered by the Financial Statements have been accrued in the ordinary course of business consistent with past practice and do not exceed comparable amounts incurred in similar periods (or partial periods, as applicable) in prior years (taking into account any changes in the Company’s operating results). The Company Entities have withheld or collected all Taxes required to be withheld or collected under applicable Law, including sales and use taxes, and paid such withholding Taxes to the appropriate Governmental Authority in compliance with applicable Law in connection with any amounts paid or owing to any Person.

(d)                Post-Closing Periods. The Company Entities have not agreed to nor will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any change in method of accounting for Tax purposes made prior to the Closing, (ii) any “closing agreement” as described in §7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S. income Tax Law) executed prior to the Closing, or (iii) inclusion under Section 965(a) of the Code or any election under Section 965(h) or Section 965(i) of the Code.

(e)                Taxes Arising from the Agreement. The payment of the Purchase Price to Seller for the Interests pursuant to this Agreement will not give rise to any payments required to be treated as payments in exchange for services rendered (or to be rendered) nor liability for Tax to the Company (including of the Company for payroll withholding Taxes).

(f)                 Obligations for Taxes. The Company has not been a member of an affiliated, consolidated, combined, unitary or similar group for federal, state, local or foreign Tax purposes. The Company is not liable for the Taxes of any other Person (including the Company predecessors during the period the Company was an “S Corporation” and a “qualified subchapter S subsidiary”) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign law, as applicable), as a transferee or successor, by contract, or otherwise, other than an agreement (such as a lease) the principal purpose of which is not the sharing or allocation of Tax.

(g)                Tax Action. No claim for assessment or collection of Taxes by a Taxing Authority has been asserted for any period for which the applicable statute of limitations has not yet expired or is presently being asserted or is otherwise outstanding against any of the Company Entities; no rationale underlying a claim for Taxes has been asserted previously by any Taxing Authority that reasonably could be expected to be asserted in any other period for any period for which the applicable statute of limitations has not yet expired; and there is no dispute, claim, demand, action, suit, proceeding, arbitration or investigation by any Taxing Authority pending or threatened in writing against any of the Company Entities; and there are no Liens for Taxes upon any of the assets of any of the Company Entities except for liens for Taxes not yet due and payable. None of the Company Entities has an outstanding power of attorney with respect to Taxes.

(h)                Tax Agreements. None of the Company Entities is a party to or bound by any obligation under any Tax sharing, Tax allocation, Tax indemnity or similar agreement or arrangement, other than an agreement (such as a lease) the principal purpose of which is not the sharing or allocation of Tax. None of the Company Entities has agreed to nor is required to make any adjustments pursuant to §481(a) of the Code (or any corresponding provision of applicable tax law) for any Pre-Closing Tax Period. None of the Company Entities has entered into a transaction covered under §355 of the Code.

(i)                 Jurisdictions. Each of the Company Entities has been at all times resident for Tax purposes in its place of organization and is not and has not at any time been treated as resident in any other jurisdiction for any Tax purpose (including any double taxation arrangement). Each of the Company Entities is not and has not been subject to Tax in any jurisdiction other than its place of organization by virtue of having a permanent establishment, a permanent representative or other place of business or taxable presence in the jurisdiction. No claim has been made to any of the Company Entities in writing by a Taxing Authority where such Company Entity does not file a particular type of Tax Return that such Company Entity is or was required to file such Tax Return or may be subject to Tax with respect to such Tax Return.

(j)                 Tax Returns. The Company has made available to Buyer complete and correct copies of (i) all Tax Returns of the Company Entities for all tax years commencing on or after January 1, 2017, and (ii) any audit report, ruling, closing agreement, technical advice memorandum, tax holiday or similar document issued by a Taxing Authority since the inception of the Company (or otherwise with respect to any audit or proceeding in progress) relating to Taxes of any of the Company Entities. No election has been made with respect to Taxes of the Company Entities in any Tax Return that has not been made available to Purchaser.

(k)                Listed Transactions. Each of the Company Entities is not and has not been a party to any “listed transaction” as defined in Code §6707A(c)(2) and Reg. §1.6011-4(b)(2).

(l)                 Tax Compliance. Each of the Company Entities is in material compliance with all terms and conditions of all Tax grants, abatements or incentives granted by any Governmental Authority for the benefit of such Company Entity and the consummation of the Transactions shall not have any adverse effect on the continued validity and effectiveness of any such Tax grants, abatements or incentives.

(m)              S Corporation Status. Seller, the Company (and any predecessor of the Company) and the Purchase Price Beneficiaries have duly, properly, and timely completed the Reorganization to the extent each of them was required to participate in the Reorganization by applicable Law and the Company’s governing documents. The Company (and any predecessor of the Company) was a validly electing “S corporation,” as that term is defined in §1361(a) and §1362 of the Code, for U.S. federal income tax purposes and under any applicable corresponding state Law, at all times since June 11, 2015 and until the date of the Contribution (the “S Election”). On the date of the Contribution and until the date of the Check-the-Box Election, the Company was a “qualified subchapter S subsidiary” pursuant to Section 1361(b)(3) of the Code. On the effective date of the Check-the-Box Election, the Company became and will be on the Closing Date a “disregarded entity” for tax purposes. There are no grounds for the revocation of the QSub Election or the Check-the-Box Election and the Company has not taken any action that would cause, or would result in, the termination of the Company’s former status as a qualified subchapter S subsidiary and present status as a “disregarded entity”.

2.21           Insurance. Schedule 2.21 lists all insurance policies maintained by or on behalf of any of the Company Entities as of the Signing Date and includes a description of any self-insurance arrangements currently in effect with respect to any of the Company Entities (collectively, the “Insurance Policies”). All Insurance Policies are valid and enforceable and in full force and effect (except as such enforceability may be limited by the Enforceability Exceptions) and none of the Company Entities has received notice of any cancellation with respect to any such Insurance Policy. There are no claims pending as to which the insurer under any Insurance Policy has denied liability or is reserving its rights, and all claims thereunder have been timely and properly filed.

2.22           Claims; Litigation. Except as set forth in Schedule 2.22, (a) there is no action, suit, proceeding, arbitration, investigation, dispute, claim or demand (collectively, “Claims”) pending or threatened in writing against any of the Company Entities or, to the Knowledge of the Company, threatened orally against any of the Company Entities, (b) to the Company’s Knowledge, there is no reasonable basis for any Person to bring any such Claim, and (c) there are no orders, writs, injunctions or decrees currently in force against any of the Company Entities. There is no Claim with respect to any of the Company Entities in which any current or former officer or director of the Company has been made a party or witness thereto (or is threatened to be made a party or witness thereto) nor, to the Company’s Knowledge, is any such Claim threatened nor is there any reasonable basis for any such Claim.

2.23           Transactions with Shareholders, Affiliates. Except as set forth on Schedule 2.23, there are no loans, leases or other agreements, or transactions between Seller and any of the Company Entities or any Affiliate of any of the Company Entities, except, in each case, for any contract relating to (a) normal compensation or welfare benefits provided for services as an officer, director, or employee of a Company Entity and (b) the Company’s equity securities. Except for Carol Lee, the Company employs all of the Purchase Price Beneficiaries as employees or consultants, none of which are pursuant to a written employment or consulting agreement but all of which are terminable at will.

2.24           Brokers. Except as set forth on Schedule 2.24, none of the Company Entities has liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the Transactions, and all such fees and commissions are included in the Seller’s Transaction Expense being paid pursuant to Section 1.4 of this Agreement.

2.25           Accounts Receivable. All Accounts Receivable represent amounts receivable by a Company Entity for goods or services such Company Entity actually delivered or provided, or represent services billed in advance in accordance with the terms of the customer agreements, in either case prior to Closing, not subject to counterclaim or set-off, and created in the ordinary course of such Company Entity’s business.

2.26           Inventory. Each of the Company Entities has a sufficient quantity of Inventory on hand to operate in the Ordinary Course of Business after the Closing, and all Inventory is of a quality usable and salable in the ordinary course of the business and is not physically damaged, obsolete, discontinued, or excess.

2.27           Product Quality; Warranties. The Products conform in all material respects to the written documentation and specifications therefor. Except as set forth in Schedule 2.27, in the 5-year period prior to the Signing Date, none of the Company Entities has received any warranty claims, contractual terminations, or requests for settlement or refund that have resulted in any Company Entity paying (or having agreed to pay) any amounts due to the failure of the Products to meet their specifications or to comply with applicable Law (including export control regulations). Each of the Company Entities has and follows a policy for tracking errors and defects in the Products of which it becomes aware and for responding to customer complaints. To the Knowledge of the Company, each Company Entity’s actual practices have consistently conformed in all material respects to such policy.

2.28           Sale Bonuses. Schedule 2.28 (the “Sale Bonus Schedule”) sets forth: (a) each employee of the Company Entities or other individual entitled to receive a Sale Bonus (collectively, the “Sale Bonus Recipients”), (b) the accurate amount of Sale Bonus payable to each such Sale Bonus Recipient, and (c) the aggregate amount of Sale Bonuses payable to all Sale Bonus Employees, collectively. The Sale Bonuses set forth in Schedule 2.28 (the “Scheduled Sale Bonuses”) constitute all of the Sale Bonuses payable by Seller and each Company Entity and no Sale Bonuses will remain unpaid or be payable after the payment of all of the Scheduled Sale Bonuses.

2.29           Blackstone Investment. Prior to Closing, Company made the investment reflected in the Blackstone Secured Lending Fund statement attached at Schedule 2.29 (the “Blackstone Investment”). Company intended to transfer the Blackstone Investment to Seller prior to the Closing, but it was unable to do so due to Blackstone’s administrative processes and/or applicable securities regulation lock-up periods.

2.30           Abidor Spin-Out. Prior to the Closing, DAS Medical International, S.R.L. transferred one hundred percent (100%) of its ownership interest in Abidor Inmobilaria, S.R.L. (D.R.) to Parallax Investments, LLC (the “Abidor Spin-Out”). Prior to the Abidor Spin-Out, the only asset of Abidor Inmobilaria, S.R.L. (D.R.) was the ownership of a villa in the Dominican Republic.

2.31           Full Disclosure. No representation or warranty by Company in this Agreement (including the Schedules) or in any certificate delivered by the Company pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading. To the Knowledge of the Company, there is no event or circumstance which Company has not disclosed to Buyer which could reasonably be expected to result in a Material Adverse Change to the Company.

2.32           No Other Representations and Warranties. Except for the representations and warranties expressly contained in this Article II (including the related portions of the Schedules), in any other Transaction Agreement, and in any certificate delivered by the Company pursuant to this Agreement, neither any of the Company Entities nor Seller has made nor makes (and no Representative or other Person on behalf of any of the Company Entities or Seller has made or makes) any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the future revenue, profitability, or success of any of the Company Entities or as to the accuracy or completeness of any information regarding any Company Entity furnished or made available to Buyer during their due diligence investigation or otherwise.

2.33           Limited Reliance Disclaimer. The Company acknowledges and agrees that in making its decision to enter into this Agreement and to consummate the Transactions, it has not relied on any representation or warranty of the Buyer or any of its Representatives other than those representations and warranties expressly made in Article IV of this Agreement (including the related portions of the Schedules), in any other Transaction Agreement, and in any certificate delivered by the Buyer pursuant to this Agreement (collectively, the “Express Buyer Representations”). The Company acknowledges and agrees that, except with respect to the Express Buyer Representations, neither the Buyer nor any of its Representatives shall have or be subject to any liability to any of the Company Entities, Seller, or any other Person resulting from the distribution to any of the Company Entities or Seller (or resulting from any of the Company Entity’s or Seller’s use or reliance on) any information, documents (other than the executed Transaction Agreements), or material furnished or made available to any of the Company Entities or Seller in any form (oral, written, electronic, or otherwise) in expectation of, or in connection with, the Transactions.

Article III - REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer as of the Signing Date as follows:

3.1               Due Organization; Organizational Documents. Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the state of Georgia and has full power and authority to own, lease, and operate its assets and to conduct its business as it is currently being conducted. Seller has provided to Buyer complete and accurate copies of Seller’s Organizational Documents. Seller is not in violation of any of the provisions of its Organizational Documents.

3.2               Authority; Enforceability. Seller has all requisite power and authority and has taken all corporate action required on its part to permit it to execute and deliver and to carry out the terms of this Agreement and of the other Transaction Agreements to be executed by Seller and to consummate the Transactions. This Agreement and the other Transaction Agreements to be executed by Seller have been duly and validly executed and delivered by Seller and constitute the legal, valid, and binding obligations of Seller enforceable against Seller in accordance with their respective terms, except as limited by the Enforceability Exceptions.

3.3               Non-Contravention. The execution, delivery, and performance of this Agreement and of the other Transaction Agreements to be executed by Seller do not and will not violate any applicable Law and do not and will not conflict with or result in a breach of or default or increase any obligation or liability under any contract, judgment, decree, order or ruling to which Seller is a party or by which any of its respective assets or properties is bound or affected.

3.4               Approvals, Consents and Filings. Except for approvals required under the HSR Act and applicable Competition Laws, or as set forth in Schedule 2.5, no approval, authorization, consent, order, filing, registration or notification is required to be obtained by Seller from, or made or given by Seller to, any Governmental Authority or any other Person in connection with the execution, delivery, or performance of this Agreement or any other Transaction Agreement to be executed by Seller or the consummation of the Transactions, other than such consents or approvals as have been duly obtained and are in full force and effect.

3.5               Title to Interests. Seller is the record holder and beneficial owner of all of the Interests, free and clear of any and all restrictions on transfer or Liens (other than restrictions under applicable securities laws). Seller has the sole voting power and the sole power of disposition with respect to the Interests and sole power to agree to all matters set forth in this Agreement with respect to the Interests, with no limitations, qualifications or restrictions on such rights and powers. Except for this Agreement, Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require Seller to sell, transfer, or otherwise dispose of, or create any Lien on, any of the Interests.

3.6               S Corporation Status. The Seller has been a validly electing “S corporation,” as that term is defined in §1361(a) and §1362 of the Code, for U.S. federal income tax purposes and under any applicable corresponding state Law, at all times since October 14, 2021 (the “S Election”), and the Seller will be an S corporation through the Closing Date. There are no grounds for the revocation of the S Election and the Seller has not taken any action that would cause, or would result in, the termination of the S corporation status of the Seller. On the date of the Contribution and until the date of the Check-the-Box Election, the Company was a “qualified subchapter S subsidiary” pursuant to Section 1361(b)(3) of the Code. On the effective date of the Check-the-Box Election, the Company became and will be on the Closing Date a “disregarded entity” for tax purposes. There are no grounds for the revocation of the QSub Election and the Seller has not taken any action that would cause, or would result in, the termination of the Company’s status as a qualified subchapter S subsidiary.

3.7               Brokers. Other than as set forth on Schedule 2.24, Seller has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the Transactions, and any such fees and commissions are included in Seller’s Transaction Expense being paid pursuant to Section 4 of this Agreement.

3.8               Full Disclosure. No representation or warranty by Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading. There is no event or circumstance which Seller has not disclosed to Buyer which could reasonably be expected to result in a Material Adverse Change to the Company.

3.9               No Other Representations and Warranties. Except for the representations and warranties expressly contained in this Article III (including the related portions of the Schedules), any other Transaction Agreement, and in any certificate delivered by Seller pursuant to this Agreement, neither Seller nor any Representative or other Person on behalf of Seller has made or makes any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the accuracy or completeness of any information furnished or made available to Buyer and its Representatives or as to the future revenue, profitability, or success of any of the Company Entities.

3.10           Limited Reliance Disclaimer. Seller and each of the Purchase Price Beneficiaries acknowledges and agrees that in making its decision to enter into this Agreement and to consummate the Transactions, neither Seller, any of the Purchase Price Beneficiaries, nor any of their respective Representatives has relied on any representation or warranty of Buyer or any of its Representatives other than the Express Buyer Representations. Seller and each of the Purchase Price Beneficiaries acknowledges and agrees that, except with respect to the Express Buyer Representations, neither the Buyer nor of any of its Representatives nor any other Person acting on their behalf shall have or be subject to any liability to Seller, any of the Purchase Price Beneficiaries, any of the Company Entities, or any other Person resulting from the distribution to Seller, any of the Purchase Price Beneficiaries, or any of the Company Entities of (or resulting from Seller’s, any Purchase Price Beneficiaries’, or any Company Entity’s use or reliance on) any information, documents (other than the executed Transaction Agreements), or material furnished or made available to Seller, any of the Purchase Price Beneficiaries, or any of the Company Entities in any form (oral, written, electronic, or otherwise) in expectation of, or in connection with, the Transactions.

Article IV - REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Signing Date as follows:

4.1               Due Organization. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, with all requisite power and authority to carry on its business as it is currently conducted.

4.2               Authority; Enforceability. Buyer has all requisite power and authority and has taken all corporate action required on its part to permit it to execute and deliver and to carry out the terms of this Agreement and of the other Transaction Agreements to be executed by Buyer and to consummate the Transactions. This Agreement and the other Transaction Agreements to be executed by Buyer have been duly and validly executed and delivered by Buyer and constitute the legal, valid, and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, except as limited by the Enforceability Exceptions.

4.3               Non-Contravention. The execution, delivery, and performance of this Agreement and of the other Transaction Agreements to be executed by Buyer do not and will not violate any applicable Law and do not and will not conflict with or result in a breach of or default or increase any obligation or liability under any contract, judgment, decree, order or ruling to which Buyer is a party or by which any of its respective assets or properties is bound or affected.

4.4               Approvals, Consents, and Filings. Except for approvals required under the HSR Act and applicable Competition Laws and as set forth in Schedule 4.4, no approval, authorization, consent, order, filing, registration or notification is required to be obtained by Buyer from, or made or given by Buyer to, any Governmental Authority or any other Person in connection with the execution, delivery, or performance of this Agreement or any other Transaction Agreement to be executed by Buyer or the consummation of the Transactions, other than such consents or approvals as have been duly obtained and are in full force and effect.

4.5               Brokers. Buyer does not have any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Seller could become liable or obligated.

4.6               Sufficiency of Funds. Buyer has (or will have as of Closing) sufficient cash on hand or other sources of immediately available funds to enable it to consummate the Transactions upon the terms contemplated by this Agreement, including the payment of all amounts payable hereunder.

4.7               Litigation. As of the date of this Agreement, there is no Claim pending (or, to the Knowledge of Buyer, being threatened) against Buyer that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, the Transactions.

4.8               Investment Intention. Buyer is acquiring the Interests for its own account, not as a nominee or agent, for investment purposes only and not with a view to the resale or distribution (as such term is used in Section 2(11) of the Securities Act of 1933) of any part hereof. Buyer has no present intention of selling, granting any participation in, or otherwise distributing any of the Interests. Buyer does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations in the Interests to any such person or third-party. Buyer understands that the Interests have not been registered under the Securities Act of 1933 and cannot be sold unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available.

4.9               Full Disclosure. No representation or warranty by Buyer in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

4.10           No Other Representations and Warranties. Except for the Express Buyer Representations, neither Buyer nor any other Person on behalf of Buyer has made or makes any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the accuracy or completeness of any information furnished or made available to Seller, the Purchase Price Beneficiaries, any of the Company Entities, or their respective Representatives.

4.11           Limited Reliance Disclaimer. Buyer acknowledges and agrees that in making its decision to enter into this Agreement and to consummate the Transactions, neither Buyer nor any of its Representatives has relied on any representation or warranty of any Company Entity, Seller, the Purchase Price Beneficiaries, any of their respective Representatives, or any other Person other than those representations and warranties expressly set forth in Articles II and III of this Agreement (including the related portions of the Schedules), in any other Transaction Agreement, and in any certificate delivered by the Company or Seller pursuant to this Agreement (the “Express Seller Party Representations”), nor has any Company Entity, Seller, the Purchase Price Beneficiaries, any of their respective Representatives, or any other Person made any representation or warranty to Buyer other than the Express Seller Party Representations. Buyer acknowledges and agrees that, except with respect to the Express Seller Party Representations, none of the Company Entities, Seller, the Purchase Price Beneficiaries, any of their respective Representatives, or any other Person acting on their behalf shall have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer (or resulting from Buyer’s use or reliance on) any information, documents (other than the executed Transaction Agreements), or material furnished or made available to Buyer in any form (oral, written, electronic, or otherwise) in expectation of or in connection with the Transactions.

Article V - PRE-CLOSING COVENANTS

5.1               Operation of Company’s Business. During the Interim Period:

(a)                except as expressly required by this Agreement or as required by applicable Law, or with the prior written consent of Buyer, the Company shall (and shall cause each of the other Company Entities to) to conduct its business in the Ordinary Course of Business;

(b)                except as expressly required by this Agreement, as required by applicable Law, or with the prior written consent of Buyer, the Company shall not (and shall ensure that each other Company Entity shall not), without the prior written consent of Buyer:

(i)   hire any employees, consultants, or independent contractors, except replacements in the Ordinary Course of Business, in accordance with the Company’s business plans previously disclosed to Buyer, or as otherwise set forth on Schedule 5.1(b)(i),

(ii) increase the compensation (including any wages, salaries, bonuses, or other remuneration) or other payment to any director, officer, or employee of any Company Entity, whether now or hereafter payable or granted (other than increases or variations in base compensation in the Ordinary Course of Business consistent in timing and amount with past practices), in each case except as provided on Schedule 5.1(b)(ii),

(iii)                       dispose or lapse any rights in, to, or for the use of any Intellectual Property Right of any Company Entity or otherwise in any way materially impair any Intellectual Property Right of any Company Entity,

(iv)                       acquire, sell, assign, license, or otherwise transfer out of any Company Entity or into any Company Entity any Intellectual Property Rights,

(v)                         enter into, materially amend, terminate, or breach any Material Contract (other than entering into customer and vendor contracts and purchase orders in the Ordinary Course of Business and non-renewals in the Ordinary Course of Business),

(vi)                       allow any asset of any Company Entity to become subject to any lien (other than a Permitted Lien or a lien that will be released in full as of the Closing),

(vii)                     incur any Debt (excluding any interest on existing Debt),

(viii)                   except as set forth on Schedule 5.1(b)(viii), make any individual (or series of) capital expenditure(s), capital lease(s), or capital commitment(s) in excess of $100,000,

(ix)                       pay, discharge, or satisfy any Liability (whether accrued, absolute, contingent or otherwise) in excess of $100,000 other than the payment, discharge, or satisfaction of accounts payable or accrued expenses incurred in the Ordinary Course of Business and consistent in amount and kind with past practice,

(x)                         cancel or waive any claims or rights of value, or conduct any sale, transfer, distribution, or other disposal of any assets, except for sales of non-material assets in the Ordinary Course of Business consistent in amount and kind with past practice, or dispose of any assets for any amount to Affiliates of any Company Entity or of Seller,

(xi)                       cause any damage, destruction or loss of any asset which individually or in the aggregate exceeds $25,000 and which is not otherwise fully covered by property insurance,

(xii)                     cause any event which would require in accordance with GAAP an increase in the reserve for bad debts in the aggregate in excess of $25,000,

(xiii)                   make any change in any method of accounting or of keeping books of account or in accounting practices of the Company or any other Company Entity except as required by changes in GAAP,

(xiv)                    acquire any business by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions, or enter into any contract, letter of intent, or similar arrangement (whether or not enforceable) with respect to such an acquisition,

(xv)                      prepare any Tax Returns of any Company Entity in a manner which is materially inconsistent with the past practice of the applicable Company Entity, adopt or change any material method of Tax accounting, change any annual Tax accounting period, make or change any material Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to any material Taxes or Tax Returns (other than pursuant to customary extensions of the due date for filing Tax Returns obtained in the ordinary course of business of no more than seven months), enter into any Tax indemnity, Tax allocation or Tax sharing agreement,

(xvi)                    enter into a settlement, voluntary Tax disclosure, or a closing agreement with a taxing authority with respect to any Company Entity,

(xvii)                 change, amend, or restate the organizational documents of any Company Entity except in connection with the Reorganization,

(xviii)               issue, sell, pledge, dispose, deliver, encumber, or authorize the issuance, sale, pledge, disposition, delivery, or encumbrance of, (A) any capital stock or other equity or voting interest (collectively, “Equity Interest”) in any Company Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire an Equity Interest in any Company Entity,

(xix)                    except as contemplated in Sections 5.7 and 5.8, undertake any split, combination, redemption, reclassification, purchase, or other acquisition, directly or indirectly, of any Equity Interest in any Company Entity, or any other change in the capital structure of any Company Entity,

(xx)                      except as contemplated in Section 5.9, declare, set aside, make, or pay any dividends or other distributions or payments with respect to any Equity Interest in the Company³, or

(xxi)                    take any action, or fail to take any action, that would cause any of the representations and warranties of the Company or the Seller contained herein to become untrue or inaccurate in any material respect.

(c)                To the extent permissible under the HSR Act and any other applicable Competition Law, the Company shall confer on a regular basis with one or more designated representatives of the Buyer to report material operational matters and to report the general status of ongoing operations;

 ______________________________

³ NTD: Company Entities may need to pay dividends and repatriate funds from D.R. prior to closing and may need to pay a tax distribution in December for owner’s estimated taxes if transaction has not closed.

(d)                The Company shall keep in full force and effect all insurance policies maintained with respect to the Company Entities and their assets and properties, or suitable replacements or renewals, and shall notify Buyer immediately if any such policies terminate or are not renewed; and

(e)                Nothing contained herein shall give to Buyer, directly or indirectly, rights to control or direct the operations of any Company Entity prior to the Closing Date, including, without limitation, for purposes of the HSR Act or any other applicable Competition Law. Nor is anything in this Section 5.1 intended to result in Buyer obtaining any indicia of beneficial ownership, control, or influence over the Seller, the Company, or any of the other Company Entities, or of the Seller, the Company, or any of the other Company Entities transferring or ceding beneficial ownership, control, or influence to Buyer of any of the Company Entities’ basic ordinary course of business and commercial decisions prior to the Closing Date. Prior to the Closing Date, each of the Company Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations. Notwithstanding anything to the contrary contained herein, no consent of Buyer shall be required with respect to any matter set forth in this Section 5.1 or elsewhere in the Agreement if the Company has a good faith belief that seeking such consent would violate any applicable Law.

5.2               Exclusive Dealing. During the Interim Period, (a) the Seller and the Company shall not (and shall cause each other Company Entity and its and their respective Affiliates and Representatives not to) directly or indirectly, encourage, initiate, solicit, or engage in discussions or negotiations with, or provide any information to, any person, other than the Buyer (and its Affiliates and representatives), concerning any purchase of any capital stock of any Company Entity or any merger, material asset sale, recapitalization or similar transaction involving any Company Entity. The Seller or the Company, as applicable, shall notify Buyer as soon as practicable if any person makes any proposal, offer, inquiry to, or contact with, the Seller or any Company Entity with respect to the foregoing and shall describe in reasonable detail the substance and material terms of any such contact, and the material terms of any such proposal.

5.3               Reserved.

5.4               Further Assurances.

(a)                Subject to the terms and conditions of this Agreement, Buyer and Seller will use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable Law to consummate the transactions contemplated by this Agreement.

(b)                Seller and Buyer agree, and Seller, prior to the Closing, and Buyer, after the Closing, agree to cause the Company and any of the other Company Entities, to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or reasonably requested in order to consummate or implement expeditiously the transactions contemplated by this Agreement.

(c)                In furtherance and not in limitation of the foregoing:

(i)                 Each of Buyer and Seller and their Affiliates shall use commercially reasonable efforts to cooperate with each other in determining whether any applications, notices, registrations and requests are required or advisable to be filed with any Governmental Authority in order to consummate the transactions contemplated hereby; (A) make, or cause their appropriate Affiliates to make, (1) an appropriate filing of a notification and report form pursuant to the HSR Act with respect to the transactions contemplated hereby within ten Business Days of the date hereof (if they have not previously filed based off of the letter of intent dated August 12, 2021), and (2) any other necessary or advisable competition or foreign investment filings as promptly as practicable; (C) supply as promptly as practicable any additional information and documentary material that may be requested or advisable pursuant to the HSR Act or other applicable Law or by any Government Authority; and (D) take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable Law as soon as practicable (including by seeking early termination);

(ii)               The Seller shall not meet or engage in material conversations with any Governmental Authority or representative of such Governmental Authority in connection with obtaining any such consent, authorization, order and approval unless it obtains the Buyer’s consent.

(iii)             Notwithstanding anything in this Agreement to the contrary, it is expressly understood and agreed that Buyer shall not have any obligation to: (A) litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent; and or (B) make proposals, execute, or carry out agreements, enter into consent decrees, or submit to orders providing for (1) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Buyer or any of its Affiliates or the Company or any of its Subsidiaries or Affiliates, (2) the imposition of any limitation or regulation on the ability of Buyer or any of its Affiliates to freely conduct their business or own such assets, or (3) the holding separate of the membership or ownership interests in the Company or its Affiliates, or any limitation or regulation on the ability of Buyer or any of its Affiliates to exercise full rights of ownership of the membership or ownership interest of Company or any of its Affiliates.

(iv)              All filing fees payable in connection with all applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority with respect to the transactions contemplated hereby shall be borne by Buyer.

(v)                Notwithstanding anything to the contrary contained in this Agreement, but subject to Buyer’s obligations set forth in this Section 5.4, Buyer shall have the right, to direct all matters, strategies, communications, and timing with any Governmental Authority consistent with its obligations hereunder and Buyer shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary or advisable antitrust or competition or foreign investment merger clearances, and the Seller and Company shall use its reasonable best efforts to provide full, effective, and timely support of Buyer.

5.5               Buyer Access to Information. To the extent permissible under the HSR Act and any other applicable Competition Law, during the Interim Period and subject to the terms of the Confidentiality Agreement, the Company will reasonably cooperate with, and provide Buyer and its Representatives with, such information and material as Buyer may reasonably request; provided, however, provided, however, (i) that Buyer and its representatives shall schedule such access and visits through a designated officer of the Company, (ii) the Company will not be required to take any action to the extent such action is not permitted by Law or that would constitute a waiver of the attorney-client or other privilege and (iii) the Company need not supply Buyer or its representatives with any information which, in the reasonable judgment of the Company, is under a contractual or legal obligation not to supply, including, without limitation, the HSR Act, and other applicable Competition Law, or the provisions of any agreement to which the Company is a party. Any such investigation and examination shall be conducted upon reasonable prior notice during regular business hours and under reasonable circumstances and in a manner that does not interfere with the normal business operations of the Company Entities.

5.6               Public Announcements. During the Interim Period, neither Party shall issue any press release or otherwise make a public announcement with respect to the Transactions, unless, in either case, it receives the prior consent of the other Parties or to the extent such disclosure is required by applicable Law (including with respect to the filing of the HSR Pre-Merger Notice or with respect to seeking any other approval of a Governmental Authority required to close the Transaction), provided that the Party required to make such disclosure under applicable Law gives the other Parties reasonable prior notice of such required disclosure to the extent reasonably practicable.

5.7               Reserved.

5.8               Alexander Redemption. Prior to the Closing, One Degree Medical Holdings, LLC shall redeem the minority interest of Preston Alexander in the company, at the Company Entities’ sole cost and expense such that, on the Closing Date, One Degree Medical Holdings, LLC shall be a wholly-owned subsidiary of the Company.

5.9               Distribution of Excluded Assets to Seller. Prior to the Closing, the Company Entities shall distribute the Excluded Assets to the Seller.

5.10           Notification. From the date hereof until the Closing Date, Seller and the Company shall promptly notify the Buyer in writing if any representation or warranty of the Seller or the Company set forth in Articles II or III of this Agreement was untrue when made or of any development occurring after the date of this Agreement that could reasonably be expected to cause, constitute or result in a material breach of any of Seller’s or the Company’s representations and warranties set forth in Articles II or III if such representation or warranty had been made at the time of such development, whereupon the Purchaser shall have the right to terminate this Agreement under Section 8.1.

5.11           Contact with Customers and Suppliers. Prior to the Closing, Buyer and its representatives may contact and communicate with the customers, service providers and suppliers of the Company in connection with the Transaction after prior consultation with, and written approval of, the Company.

5.12           Continuing Nondisclosure Requirements. Buyer agrees to be bound by the Confidentiality Agreement during the Interim Period. The Confidentiality Agreement shall govern all access to documents, records and information of the Company provided to Buyer before the execution of this Agreement and during the Interim Period and shall expressly survive any termination of this Agreement, provided that, the Confidentiality Agreement shall terminate immediately upon Closing and be of no further effect after the Closing.

Article VI - CLOSING CONDITIONS

6.1               Closing. The Signing Date is effective as of 11:59 p.m. on the Signing Date. Subject to the terms and conditions of this Agreement, the closing of the Transaction and the other transactions contemplated by this Agreement (the “Closing”) will take place on December 22, 2021, or at such date as Buyer and the Company may agree (the actual date of the Closing, the “Closing Date”). The Closing shall be deemed to be effective at 12:01 a.m. Eastern Time on the Closing Date, except as may otherwise be expressly provided herein.

6.2               Buyer’s Closing Conditions. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the fulfillment prior to or at the Closing of each of the following conditions, any one or more of which may be waived by Buyer (“Buyer’s Closing Conditions”):

(a)                No Laws or Orders. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, makes illegal, or otherwise prohibits the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements.

(b)                No Proceedings. No Claim shall be pending (or, to the Knowledge of the Company, be threatened to be asserted) before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of the Transaction, (ii) cause the Transaction to be rescinded following consummation, or (iii) materially impair the right of Buyer to own the Interests or to operate the Business.

(c)                Representations and Warranties. All representations and warranties made by the Company and the Seller in Articles II and III of this Agreement (and in any certificate delivered pursuant to this Agreement) shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date, except for: (i) each such representation and warranty that is expressly made as of a date prior to the Signing Date, which shall be true and correct in all material respects as of such earlier date and (ii) each such representation and warranty that is qualified by materiality, which shall be true and correct in all respects as of the Closing Date (or such earlier date).

(d)                Pre-Closing Covenants. The Company and the Seller shall have, in all material respects, performed or complied with all of their respective obligations, agreements, conditions, and commitments required to be performed or complied with by each of them under this Agreement on or prior to the Closing Date.

(e)                Company’s Closing Deliveries. Company’s Closing Deliveries shall have been delivered to Buyer in accordance with Section 7.1.

(f)                 No Material Adverse Change. Since the Signing Date, there shall not have occurred a Material Adverse Change with respect to the Company Entities, considered as a whole.

(g)                Waiting Periods. Any and all waiting periods (and any extension thereof) under the HSR Act or any timing agreements applicable to the transactions contemplated by this Agreement and the other Transaction Agreements, and any applicable waiting or suspension periods under any applicable Law or any timing agreement shall have expired or shall have been terminated, and no reviews or investigations shall remain pending or unresolved. All other material consents of, or registrations, declarations or filings with, any Governmental Authority legally required for the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements shall have been obtained or filed.

6.3               Seller’s Closing Conditions. The obligations of Seller and Company to consummate the transactions contemplated by this Agreement are subject to the fulfillment by Buyer prior to or at the Closing of each of the following conditions, any one or more of which may be waived by Seller (“Seller’s Closing Conditions”):

(a)                No Laws or Orders. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, makes illegal or otherwise prohibits the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements.

(b)                No Proceedings. No Claim shall be pending (or, to the Knowledge of the Buyer, be threatened to be asserted) before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of the Transaction or (ii) cause the Transaction to be rescinded following consummation.

(c)                Representations and Warranties. All representations and warranties of the Buyer in Article IV of this Agreement (and in any certificate delivered pursuant to this Agreement) shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date, except for: (i) each such representation and warranty that is expressly made as of a date prior to the Signing Date, which shall be true and correct in all material respects as of such earlier date and (ii) each such representation and warranty that is qualified by materiality, which shall be true and correct in all respects as of the Closing Date (or such earlier date).

(d)                Pre-Closing Covenants. Buyer shall have, in all material respects, performed or complied with all of its respective obligations, agreements, conditions, and commitments required to be performed or complied with by it under this Agreement on or prior to the Closing Date.

(e)                Buyer’s Closing Deliveries. Buyer’s Closing Deliveries shall have been delivered to the Seller in accordance with Section 7.2.

(f)                 Waiting Periods. Any and all waiting periods (and any extension thereof) under the HSR Act or any timing agreements applicable to the transactions contemplated by this Agreement and the other Transaction Agreements, and any applicable waiting or suspension periods under any applicable Law or any timing agreement shall have expired or shall have been terminated, and no reviews or investigations shall remain pending or unresolved. All other material consents of, or registrations, declarations or filings with, any Governmental Authority legally required for the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements as set forth in Schedule 7.1(k) shall have been obtained or filed.

Article VII - CLOSING DELIVERIES

7.1               Deliveries by Seller. As a condition of Closing, Seller shall deliver to Buyer, unless waived by Buyer, the following, (“Seller’s Closing Deliveries”):

(a)                Consents of Seller. A certificate of an officer (or equivalent) of the Seller dated the Closing Date, which (i) attaches and certifies a good standing certificate for the Seller issued not more than 5 days before Closing and (ii) attaches and certifies written consents to the adoption of the resolutions of the Managers and Members of the Seller authorizing and approving the execution, delivery, and performance of this Agreement, all other Transaction Agreements, and the consummation of the Transactions, and (iii) certifies as to the incumbency of each person executing (as a corporate officer or otherwise) any document executed by the Seller and delivered to Buyer pursuant to this Agreement;

(b)                Consents of Company. A certificate of an officer (or equivalent) of the Company dated the Closing Date, which (i) attaches and certifies a good standing certificate for the Company issued not more than 5 days before Closing and (ii) attaches and certifies written consents to the adoption of the resolutions of the Managers and Members of the Company authorizing and approving the execution, delivery, and performance of this Agreement, all other Transaction Agreements, and the consummation of the Transactions, and (iii) certifies as to the incumbency of each person executing (as a corporate officer or otherwise) any document executed by the Company and delivered to Buyer pursuant to this Agreement;

(c)                Interest Transfer Power. Transfer Power with respect to all of the interests in the form attached as Exhibit D, duly executed by Seller.

(d)                Share Certificates. Originals of the Share certificates issued to Company reflecting its 100% ownership interest in DAS Medical Corporation.

(e)                Resignations. Resignations, effective as of the Closing, of all officers and directors of the Company, all of whom are listed in Schedule 7.1(d);

(f)                 Pay-Off Letter. The Pay-Off Letter, duly executed by the lender signatory thereto.

(g)                Offer Letters. The employment offer letters in the form attached hereto as Exhibit E between (i) Buyer and Daniel Lee and (ii) Buyer and Houston Lee (the “Offer Letters”), duly executed by Daniel Lee and by Houston Lee.

(h)                Non-Competition Agreements. The non-competition agreements in the form attached hereto as Exhibit F between Buyer and each of the Purchase Price Beneficiaries (the “Non-Competition Agreements”), duly executed by each of the Purchase Price Beneficiaries.

(i)                 D.R. Non-Competition Agreements. The non-competition agreements in the form attached hereto as Exhibit I between Buyer and each of the D.R. Employees (the “D.R. Non-Competition Agreements”), duly executed by each of the D.R. Employees.

(j)                 Bring-Down Certificate. Seller shall have delivered to Buyer a certificate, dated the Closing Date, executed on behalf of Seller and Company by their duly authorized representative, as to the fulfillment of the conditions set forth in Sections 6.2(c), 6.2(d), and 6.2(f) (the “Company Bring-Down Certificate”);

(k)                FIRPTA Certificate. An affidavit from Seller, meeting the requirements of Section 1445(b)(2) of the Code and the Treasury Regulations promulgated thereunder, certifying that such Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Code (the “FIRPTA Certificate”);

(l)                 Personal Goodwill Purchase Agreement. The purchase agreement substantially in the form attached as Exhibit G between Buyer and each of the Personal Goodwill Sellers regarding the purchase of the Personal Goodwill (the “Personal Goodwill Purchase Agreement”), duly executed by each of the Personal Goodwill Sellers.

(m)              Material Consents. The consents to assignment listed in Schedule 7.1(k), duly executed by Company and each consenting party thereto; and

(n)                Escrow Agreement. The Escrow Agreement, duly executed by Seller.

7.2               Deliveries by Buyer. As a condition of Closing, Buyer shall deliver to the Seller, unless waived by the Seller, the following: (“Buyer’s Closing Deliveries”):

(a)                Closing Payment. The portion of the Closing Payment due to Seller in accordance with Section 1.4 and the portions of the Closing Payment due to the other payees specified in Section 1.4 and pursuant thereto;

(b)                Consents of the Buyer. A certificate of an officer (or equivalent) of the Buyer dated the Closing Date, which (i) attaches and certifies written consents to the adoption of the resolutions of the Directors of the Buyer authorizing and approving the execution, delivery, and performance of this Agreement, all other Transaction Agreements, and the consummation of the Transactions, and (iii) certifies as to the incumbency of each person executing (as a corporate officer or otherwise) any document executed by the Buyer and delivered to Seller pursuant to this Agreement;

(c)                Offer Letters. Each of the Offer Letters, duly executed by Buyer;

(d)                Bring-Down Certificate. Buyer shall have delivered to the Seller its certificate, dated the Closing Date, executed on its behalf by its duly authorized representative, as to the fulfillment of the conditions set forth in Sections 6.3(c) and 6.3(d) (the “Buyer Bring-Down Certificate”); and

(e)                Personal Goodwill Purchase Agreement. The Personal Goodwill Purchase Agreement, duly executed by Buyer.

(f)                 Escrow Agreement. The Escrow Agreement, duly executed by Buyer and the Escrow Agent.

Article VIII – TERMINATION

8.1               Termination of Agreement. This Agreement may be terminated prior to the Closing Date by written notice from the terminating party to the other party (or by mutual written consent), effective upon the date of the terminating party’s written notice to the other party (or upon the date of such mutual consent), as follows:

(a)                Mutual Consent: by mutual written consent of Buyer and Seller;

(b)                Buyer’s Closing Conditions: by Buyer, if Buyer’s Closing Conditions have not been satisfied or waived by 5:00 p.m. Eastern Time, on the date that is ninety (90) days after the Signing Date (the “End Date”), unless (a) this Agreement has already been terminated or (b) Buyer’s breach of this Agreement has been the proximate cause of or resulted in the failure of the Transactions to be consummated on or before such date; provided, however that the End Date may be extended by mutual written agreement of the Parties;

(c)                Seller’s Closing Conditions: by Seller, if Seller’s Closing Conditions have not been satisfied or waived by the End Date, unless (a) this Agreement has already been terminated or (b) a breach of this Agreement by the Seller or the Company has been the proximate cause of or resulted in the failure of the Transactions to be consummated on or before such date; provided, however that the End Date may be extended by mutual written agreement of the Parties;

(d)                Material Adverse Change: by Buyer, if there has been a Material Adverse Change with respect to the Company;

(e)                Material Breach: by either Buyer on the one hand and the Company or Seller on the other hand, if the other Party has committed a material breach of this Agreement, and such other Party has failed to cure such breach within ten (10) Business Days after receiving written notice thereof; provided however, that the Party seeking termination is not then in material breach of this Agreement; or

(f)                 Legal Restraint: by Buyer or Seller if any Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any statute, rule, regulation, order, or other legal restraint which is in effect and which has the effect of making the Transaction illegal.

8.2               Effect of Termination: Upon valid termination of this Agreement under this Article VIII, this Agreement shall become wholly void and of no force or effect without any liability or further obligation on the part of the Seller, the Company, Buyer, or any of their respective officers, directors, or owners, except that:

(a)                Survival: Sections 5.6 and 5.12 (Continuing Nondisclosure Requirements), Article VIII, and Article XII shall survive any such termination; and

(b)                Breach Liability: nothing in this Article VIII shall relieve a Party from liability for any breach of any representation, warranty, covenant or other provision of this Agreement or Fraud by such Party that occurred prior to such termination.

Article IX - POST-CLOSING COVENANTS

9.1               Tax.

(a)                Tax Returns. Seller will prepare and file, or cause to be prepared and filed, all Tax Returns of the Company (and predecessors of the Company) for taxable periods ending on or before the Closing Date (but not, for the avoidance of doubt, any Tax Returns of the Company relating to any taxable period ending after and including the Closing Date (a “Straddle Period”)), whether filed prior to or after the Closing Date. All such Tax Returns shall be filed consistent with past practice, except as required by applicable Law or as explicitly required by this Agreement. Seller shall submit all such returns to Buyer at least thirty (30) days prior to the due date (taking into account all applicable extensions) of the applicable return for Buyer’s reasonable comment and approval (which approval shall not be unreasonably withheld, conditioned or delayed). Seller shall bear all Taxes shown as due on any such returns. Buyer or the Company shall prepare and file all Tax Returns (“Buyer Prepared Returns”) of the Company and of the other Company Entities that are not being prepared and filed by the Seller in accordance with the preceding sentence. In the case of any Buyer Prepared Tax Return that could form the basis for an indemnity claim against the Seller under this Agreement or could affect Seller’s and/or any of the Purchase Price Beneficiaries’ Tax liability (each an “Applicable Tax Return”, such Applicable Tax Returns shall be filed consistent with past practice, except as require by applicable Law or as explicitly required by this Agreement. Buyer shall provide the Seller with a copy of any such Applicable Tax Return for Seller’s review and approval at least thirty (30) calendar days prior to the due date (taking into account applicable extensions) of such Applicable Tax Return. If Seller objects to any item on any such Applicable Tax Return, Seller shall, within ten days after delivery of such Applicable Tax Return, notify Buyer in writing that it so objects, specifying with particularity any such item and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer and Seller shall negotiate in good faith and use their reasonable commercial efforts to resolve such items. If Buyer and Seller are unable to resolve any disputed items before the due date for such Applicable Tax Return (taking into account applicable extensions), the Applicable Tax Return shall be filed as prepared by the Buyer; provided that Seller and Buyer shall continue their good faith negotiations and the Applicable Tax Return so filed shall be amended (if necessary) to reflect the resolution ultimately agreed to by Seller and Buyer. Subject to Section 9.1(c), Buyer shall cause to be paid and discharged all Taxes shown due on any Buyer Prepared Returns before the same shall become delinquent and before penalties accrue thereon.

(b)                Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, recording, conveyance and other such Taxes incurred in connection with the Transactions (collectively, “Transfer Taxes”) shall be paid by Seller. Seller will file all Tax Returns and other documentation with respect to all such Taxes as required by applicable Laws. Buyer shall join in the execution of any such Tax Returns and other documentation to the extent necessary to prepare and file such Tax Returns. All Parties, upon the request of the responsible party, shall use their commercially reasonable best efforts to obtain or execute any certificates or other documentation to mitigate, reduce, or eliminate any such Taxes.

(c)                Straddle Period Taxes. For all relevant purposes under this Agreement (including Section 10.1, below), in the case of Taxes payable with respect to any Straddle Period, the portion of such Taxes that are treated as Taxes of the Company or of the other Company Entities attributable to the period prior to Closing (and, correlatively, to the portion of the period beginning after Closing) shall be determined as follows: (i) with respect to property, ad valorem Taxes, and similar Taxes, the amount treated as Taxes of the Company or of the other Company Entities attributable to the period prior to Closing shall equal the amount of such Taxes for such entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the Straddle Period; and (ii) with respect to all other Taxes, the amount treated as Taxes of the Company or of the other Company Entities attributable to the period prior to Closing shall be determined based on an actual closing of the books used to calculate such Taxes as if such tax period ended as of the close of business on the Closing Date. Seller shall remit to buyer the Straddle Period Taxes attributable to the period ending on the Closing Date within (5) days after request for the same by Buyer.

(d)                Cooperation on Tax Matters. The Parties shall cooperate fully, as and to the extent reasonably requested by other Parties, in connection with matters relating to Taxes of the Company or of the other Company Entities, including but not limited to (i) the preparation and filing of relevant Tax Returns and (ii) the conduct of any audit, examination, inquiry, voluntary disclosure or other administrative or judicial proceeding, contest, assessment, notice of deficiency, or other adjustment or proposed adjustment with respect to Taxes of the Company or of the other Company Entities or its operations (a “Tax Contest”). Such cooperation shall include the retention and provision of relevant records and information and access to employees on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Any Tax Contest shall be treated as a Third Party Claim for purposes of Section 10.4(b). Notwithstanding the foregoing, in the case of any Tax Contest in respect of which indemnity may be brought by Buyer under Article X (an “Applicable Tax Contest”), Buyer shall promptly give Seller written notice of the receipt of any written notice by the Company, Buyer, or any of Buyer’s Affiliates which involves the assertion of any potential Applicable Tax Contest. Seller shall have the right, at the expense of Seller, using the counsel and representatives of the Seller’s choice, to control the defense of any Applicable Tax Contest and to control the conduct and resolution of such Applicable Tax Contest. Seller shall not settle or compromise any such Applicable Tax Contest in a manner that reasonably would be expected to adversely affect Buyer or the Company in any Tax period or portion thereof beginning after the Closing Date without Buyer’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Buyer and the Company shall execute appropriate powers of attorney so as to allow the Seller to control any such Applicable Tax Contest as described above.

(e)                Reserved.

(f)                 Reserved.

(g)                Tax Treatment. The Parties agree that (i) the Reorganization shall be treated as a tax-free reorganization pursuant to Section 368(a)(i)(F) of the Code as described in Rev. Rul. 2008-18, (ii) the acquisition of the Interests shall be treated by the Seller as a sale by the Seller of the Company’s assets subject to its liabilities, and (iii) as to Buyer, the acquisition of the Interests will be treated for all relevant purposes consistent with the Intended Tax Treatment.

(h)                Purchase Price Allocation. Subject to the terms of this Section 9.1(h), Buyer and Seller shall allocate the Purchase Price, (including any Liabilities assumed for Tax purposes) among the assets deemed to be purchased as a result of Buyer’s acquisition of the Interests in a manner consistent with Section 1060 of the Code and ASC 805 Business Combinations. Buyer shall deliver a draft purchase price allocation statement to Seller not later than ninety (90) days after the Closing Date (the “Draft Purchase Price Allocation”). Seller shall have the right, for thirty (30) days after such delivery, to review and provide comment to Buyer regarding such draft. Buyer and Seller shall seek in good faith for thirty (30) days thereafter to resolve any disagreements between them with respect to the Draft Purchase Price Allocation. The Draft Purchase Price Allocation as finally agreed to by Seller and Buyer within such 30-day period is referred to herein as the “Final Purchase Price Allocation”. If there is a Final Purchase Price Allocation then Buyer and Seller shall each file all Tax Returns and report the federal, state, and local and other Tax consequences of the purchase and sale contemplated hereby (including the filing of Internal Revenue Service Form 8594) in a manner consistent with the Final Purchase Price Allocation and shall not take any inconsistent position with respect to the Final Purchase Price Allocation unless otherwise required by applicable Law. If the Buyer and Seller are unable to resolve any disagreements between them with respect to the Draft Purchase Price Allocation by the end of such thirty (30) day period and there is no Final Purchase Price Allocation, then they shall each report the applicable Tax consequences of the purchase and sale contemplated hereby in a manner consistent with Section 1060 of the Code and ASC 805 Business Combinations. If the Purchase Price is adjusted pursuant to this Agreement, the applicable Purchase Price allocation shall be adjusted consistent with this Section 9.1(h).

9.2               Seller’s Transaction Expense. Seller shall remain exclusively responsible for paying any Seller’s Transaction Expense in addition to the Unpaid Seller’s Transaction Expense paid pursuant to Section 1.4.

9.3               Public Announcements; Communications. Seller shall give notice to Buyer, and receive approval from Buyer, prior to Seller issuing any press release or otherwise making a public announcement with respect to the Transactions and prior to making any filings or applications with any third party or Governmental Authority with respect to the Transactions; provided, that (a) Seller may make any press release or public announcement or make any filing or application with a Governmental Authority which it reasonably determines is required by applicable Law, as long as it notifies Buyer prior to doing so (to the extent permitted by applicable law) with an appropriate explanation of the reasons why such action is required, and (b) nothing herein shall prohibit or restrict Buyer from engaging in communications with its stockholders, lenders, customers, and other third parties after the Closing which it determines in its reasonable judgment is reasonable and appropriate and in the best interests of the use, ownership, and operation of the Company it has acquired.

9.4               Further Assurances. Subject to the terms and conditions of this Agreement, the Parties shall execute or cause to be executed such documents and other papers and take or cause to be taken such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the Transactions.

9.5               Confidentiality. From and after the Closing, Seller and each Purchase Price Beneficiary shall hold in confidence and not disclose, publish, or make use of, without the prior written consent of Buyer, any knowledge and information of a proprietary or confidential nature with respect to the business, operations, personnel, assets, or liabilities of the Company; provided that nothing in this sentence shall limit the disclosure by Seller or any Purchase Price Beneficiary of any information (a) to the extent required by applicable Law or judicial process (provided that if permitted by applicable Law, Seller or such Purchase Price Beneficiary agrees to give Buyer prior notice of such disclosure in sufficient time to permit Buyer to obtain a protective order should it so determine), (b) in connection with any litigation to which Seller or such Purchase Price Beneficiary is a party (provided that Seller or such Purchase Price Beneficiary has taken all reasonable actions to limit the scope and degree of disclosure in any such litigation), (c) in an indemnity claim brought by a Party in pursuit of its rights or in the exercise of its remedies under this Agreement, (d) to a Governmental Authority in connection with the filing of a Tax Return or other filing or application required by applicable Law, and (e) to the extent that such documents or information can be shown to have come within the public domain through no action or omission of Seller or such Purchase Price Beneficiary.

9.6               Sale Bonus Payment and Responsibility.

(a)                Promptly after Closing, the Company shall pay the Scheduled Sale Bonuses by paying to each Sale Bonus Recipient the amount opposite his or her name on the Sale Bonus Schedule, less applicable Tax withholdings, as part of the Company’s normal payroll process.

(b)                Seller shall remain exclusively responsible for paying any Sale Bonuses in addition to the Sale Bonuses set forth on the Sale Bonus Schedule.

9.7               Seller and Purchase Price Beneficiary Releases. Effective as of the Closing, Seller and each of the Purchase Price Beneficiaries hereby releases, and forever discharges, the Releasees from any Claims and Liabilities arising under or relating to the Interests, the Company or its predecessors in interest, or any of the Company’s respective businesses or assets, including any Liability with respect to fiduciary or similar duties or arising under or pursuant to any stockholders’ agreement, employment agreement, or consulting agreement or other compensation arrangement, whether known or unknown, suspected or unsuspected, both at law and in equity, which Seller or any of the Purchase Price Beneficiaries now has or has ever had, or hereafter has against the respective Releasees as a result of any act, circumstance, occurrence, transaction, event, or omission at or prior to the Closing. Notwithstanding the foregoing, Seller and each of the Purchase Price Beneficiaries shall not release, and this Section 9.7 shall not be deemed to affect, any claim of Seller or any of the Purchase Price Beneficiaries with respect to (a) any obligation of Buyer pursuant to this Agreement (b) any right to receive salaries, wages, bonuses, employee benefits, and expenses that have accrued in respect of employment with the Company in the ordinary course of business prior to the Closing and that have not been paid (all of which amounts described in this clause (b), if unpaid, shall constitute Current Liabilities in connection with the Closing Working Capital Adjustment) or (c) any other Transaction Agreements. “Releasees” means Company, Buyer, Buyer’s Affiliates and each of their respective successors and assigns

9.8               Audited Financials. Within 65 days after the Closing Date, Seller shall deliver to Buyer audited consolidated balance sheets of the Company and Company Subsidiaries as of the close of business on December 31, 2020, and the related audited consolidated statements of income and cash flows of the Company and Company Subsidiaries for the twelve month period ended on December 31, 2020.

9.9               Blackstone Investment. Upon the expiration of any lock-up periods under applicable securities laws and subject to any other regulatory or administrative impediments to the transfer of the Blackstone Investment from Buyer to Seller, Seller will provide written notice to Buyer substantially in the form attached at Exhibit J (the “Blackstone Notice”). Promptly after Buyer’s receipt of the Blackstone Notice, Buyer will transfer the Blackstone Investment to Seller. The parties acknowledge that the Blackstone Investment was not intended to be a part of the assets that transferred under the Transaction and that Seller shall not be required to pay any consideration for the transfer as a result. If Buyer has received any dividends or other distributions from the Blackstone Investment, it will pay such dividends or other distributions to Seller as part of the transfer, net of Buyer’s related costs, including any taxes payable in connection with such dividends or other distributions.

9.10           Rectification. Prior to Closing, DAS Medical International began the process of rectifying its filed Income Tax Returns for the last three years and reflecting the correct accumulated earnings as of December 31st, 2020 (the “Rectification”). After Closing, Seller shall remain responsible for completing the Rectification, at its sole cost and expense, and shall do so within 90 days after Closing. Seller shall also be responsible within 90 days after Closing for registering the shares from the Shin redemption after the completion of the Rectification as well as the registration of the general assembly approving the financial statements in accordance with the results of this Rectification.

Article X - INDEMNIFICATION

10.1           Indemnification by Seller and Purchase Price Beneficiaries. Subject to the limitations set forth in this Article X, from and after the Closing Date, Seller and each Purchase Price Beneficiary shall, jointly and severally, indemnify, defend, and hold harmless Buyer and its Affiliates (the “Buyer Indemnified Parties”) from and against any and all Loss incurred or sustained by the Buyer Indemnified Parties arising out of or relating to (a) any breach of any representation or warranty of the Company in this Agreement or in any certificate delivered by the Company pursuant to this Agreement, (b) any breach of any representation or warranty of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement (c) the failure by Seller to perform any covenant or agreement of such Seller contained in this Agreement or in any document or certificate delivered by such Seller pursuant to this Agreement, (d) the failure by the Company to pay all unpaid Seller’s Transaction Expenses prior to or at the Closing, (e) Taxes of the Company (and any predecessor Company) and any of the other Company Entities attributable to the Pre-Closing Tax Period, Taxes of the Seller for any taxable period, and Taxes resulting from or attributable to the consummation of the Reorganization, the Abidor Spin-Out, the Shin Redemption, the Alexander Redemption, the Rectification, and the Transaction Agreements (including any Transfer Taxes), (f) any liability of the Company Entities to indemnify their respective directors and officers for pre-closing occurrences, (g) the items set forth on Schedule 10.1(g), (h) the Rectification, and (i) the ISI Rebates.

10.2           Indemnification by Buyer. Subject to the limitations set forth in this Article X , from and after the Closing Date, Buyer shall indemnify, defend, and hold harmless Seller and its Affiliates (other than the Company Entities) (collectively, the “Seller Indemnified Parties”) from and against any and all Loss incurred or sustained by the Seller Indemnified Parties arising out of or relating to (a) any breach of any representation or warranty of Buyer in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement, (b) the failure by Buyer to perform any covenant or agreement contained in this Agreement, and (c) Taxes attributable to the period after the Closing.

10.3           Indemnification Limitations and Qualification Exception.

(a)                Survival. The representations and warranties of Buyer, Seller, and the Company set forth in this Agreement shall survive the Closing hereunder and remain in full force and effect until the date that is 24 months after the Closing Date, except that the representations and warranties contained in Sections 2.1 (Organization), 2.3 (Due Authorization; Binding Obligation), 2.6 (Capitalization; Debt; Subsidiaries), 2.11 (Tangible Personal Property) (second sentence only), 2.15 (Employee Benefits), 2.18 (Environmental Matters; Health and Safety), 2.20 (Taxes), 2.24 (Brokers), 2.28 (Sale Bonuses), and 2.29 (Blackstone Investment), Article III, and Article IV (all such excepted representations and warranties, the “Fundamental Representations”) shall remain in full force and effect for a period of six (6) years after the Closing Date. No indemnification under this Article V for any breach of a representation or warranty shall be payable unless a claim therefor is made within the applicable survival period specified in this Section 10.3(a). The covenants, agreements, and other provisions contained in this Agreement shall survive for a period of six (6) years after the Closing Date, except with respect to the Non-Competition Agreements, which shall survive pursuant to their express terms.

(b)                Materiality. For purposes of this Article X, when determining whether a representation or warranty is inaccurate or has been breached and the amount of Loss related thereto, any materiality qualifier contained in such representation or warranty will be disregarded.

(c)                Threshold. Except with respect to claims based on breaches of the Fundamental Representations, no Party shall be entitled to indemnification pursuant to Section 10.1(a) or 10.2(a), respectively, until the aggregate Loss under such Section exceeds $50,000 (the “Threshold”), provided that once the Threshold has been met, a Party shall be entitled to indemnification for all Loss under such Section including the first dollar taken into account for purposes of meeting the Threshold.

(d)                Cap. Except with respect to the Fundamental Representations or as set forth in Section 10.3(e) below, (i) the maximum aggregate indemnification liability of Seller and the Purchase Price Beneficiaries to the Buyer Indemnified Parties pursuant to Section 10.1(a), and (ii) the maximum aggregate indemnification liability of Buyer to the Seller Indemnified Parties pursuant to Section 10.2(a), in each case, shall be limited to $10,000,000 (the “Cap”).

(e)                Aggregate Limit. Except with respect to claims based on Fraud, the maximum aggregate indemnification liability of Seller and the Purchase Price Beneficiaries, on the one hand, and of Buyer, on the other hand, under this Agreement shall not exceed the Purchase Price, provided, however, that the maximum indemnification liability of each Purchase Price Beneficiary shall not exceed such Purchase Price Beneficiary’s Pro Rata Indemnity Share of the Indemnifiable Loss.

(f)                 Certain Sources of Remedies.

(i)                 Escrow. The initial source of recovery and recourse for any claims that the Buyer Indemnified Parties may have against Seller or the Purchase Price Beneficiaries under this Article X shall be against the Escrow. For the avoidance of doubt, the Escrow shall not constitute the sole source of recovery under this Agreement, and if the Escrow Amount is insufficient to cover the indemnifiable Loss, the Seller and each of the Purchase Price Beneficiaries shall be jointly and severally liable on the terms and subject to the limitations set forth in this Agreement.

(ii)               Set-Off.

(A)              Right and Procedure. Upon notice to Seller or the applicable Purchase Price Beneficiaries, as applicable, specifying in reasonable detail the basis therefor, Buyer may, at its election which shall be exercised in good faith, set off any amount to which it may be entitled under this Agreement or any other Transaction Agreement against amounts otherwise payable by it, if any, pursuant to this Agreement or any other Transaction Agreement (up to an amount equal to each Purchase Price Beneficiary’s Pro Rata Indemnity Share of the applicable Indemnifiable Loss), and, if Buyer makes such election, the amount due to Seller or the applicable Purchase Price Beneficiary, as applicable, pursuant to such Transaction Agreement, if any, shall be reduced on a dollar for dollar basis, subject to the limitations set forth in this Article X (including Section 10.3(f)(ii)(B) and subject to the right of Seller or the applicable Purchase Price Beneficiary to dispute the validity of such set-off.

(B)              Independent Breach by a Purchase Price Beneficiary. Notwithstanding anything to the contrary in this Agreement, with respect to any set-off under Section 10.3(f)(ii)(A) arising from a breach by a particular Purchase Price Beneficiary of any covenant under this Agreement or of any obligation under another Transaction Agreement, (i) Buyer shall only be entitled to apply set-off against the particular Purchase Price Beneficiary that breached such covenant or the obligation under such other Transaction Agreement, and (ii) no other Purchase Price Beneficiary Seller shall be subject to set-off by Buyer for either such breach.

(C)       Remedy Not Exclusive; Unlawful Set-Off. Neither the exercise of, nor the failure to exercise, such right of setoff (nor the giving of above-mentioned notice) under this Agreement will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it in accordance with this Agreement. If a court of competent jurisdiction finally determines that Buyer unlawfully setoff all or any portion of such amount (such amount, the “Unlawful Set Off Amount”), then, Buyer shall pay interest on such Unlawful Set Off Amount at the rate of 8 percent per annum from the date that such set off occurred plus reasonable attorneys’ fees and costs incurred by Seller or the applicable Purchase Price Beneficiary in connection with challenging such set off by Buyer.

(g)                No Double Recovery. No Buyer Indemnified Party and no Seller Indemnified Party shall be entitled to be compensated more than once for the same Loss, and any excess recovery by a Buyer Indemnified Party or a Seller Indemnified Party with respect to any such Loss shall be paid over to Seller or to Buyer, as applicable. For the avoidance of doubt, the amount of any Loss indemnifiable under this Article X (“Indemnifiable Loss”) shall be determined net of any amounts actually recovered by the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, under insurance policies, indemnities, or other reimbursement arrangements (net of all costs and expenses associated with the recovery thereof, including any increase in insurance premiums) with respect to such Indemnifiable Loss.

(h)                Mitigation. To the extent required by applicable Law, each indemnified party hereunder shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Indemnifiable Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent reasonably necessary to remedy the breach that gives rise to such Indemnifiable Loss.

(i)                 Waiver of Certain Damages. No Indemnified Party shall be entitled to recover any special, punitive, exemplary, incidental or indirect damages for lost value, loss of business or lost profits, costs or expenses, charges or claims (“Special Damages”), except to the extent (1) arising out of a breach of Section 9.5 (Confidentiality) or (2) that losses resulting from a Third Party Claim include Special Damages of the third party, and then, in each of cases (1) and (2), only to the extent of such losses, subject however, to all other limitations set forth herein.

(j)                 Exclusive Remedy. The indemnity provided under this Article X shall be the sole and exclusive remedy of the Parties for any Loss arising under this Agreement or relating to the transactions contemplated hereby, except (a) with respect to the Shortfall Amount or the Excess Amount, which are governed by and determined in accordance with Section 1.5, (b) in the case of Fraud by a Party based on the representations and warranties expressly made by such Party, as applicable, in Article II, Article III, or Article IV or in any certificate delivered by such Party pursuant to this Agreement, or (c) in the event of failure of any Party to fulfill any covenant or other performance obligation provided in this Agreement, in which event the Party entitled to the benefit of such covenant or other performance obligation shall, at its sole option, be entitled to enforce specific performance of such covenant or other performance obligation. Notwithstanding the foregoing, this Section 10.3(k) does not limit the remedies available under other written agreements entered into in connection with the transactions contemplated by this Agreement, except to the extent such agreements specifically provide that the indemnifications provisions of this Agreement are the exclusive remedy.

10.4           Indemnification Notice and Procedure.

(a)                Direct Claims - Notice of Loss; Dispute. If an Indemnified Party incurs any Loss for which indemnification may be sought under this Article V against an Indemnifying Party, then the Indemnified Party shall assert a claim for indemnification by promptly providing to the Indemnifying Party a written notice stating, in reasonable detail, the nature and amount of the Loss and the basis for indemnification under this Article V (the “Notice of Loss”), provided, however, that (subject to Section 10.3(a) (Survival)) any delay by Indemnified Party in so notifying the Indemnifying Party shall only relieve the Indemnifying Party of its obligations hereunder to the extent the Indemnifying Party is prejudiced by such delay. If the Indemnifying Party disputes the Indemnified Party’s entitlement to indemnification under the Notice of Loss and such dispute is not resolved within thirty (30) days after Indemnifying Party’s receipt of the Notice of Loss, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of this Agreement.

(b)                Third Party Claims.

(i)                 Notice. An Indemnified Party shall give prompt written notice to the Indemnifying Party (“Notice of Claim”) of the assertion of any claim or the commencement of any action, suit or proceeding by a third-party (a “Third Party Claim”) for which indemnification may be sought, provided, however, that (subject to Section 10.3(a)) delay so to notify the Indemnifying Party shall only relieve the Indemnifying Party of its obligations to the extent that the Indemnifying Party is prejudiced by reason of such delay.

(ii)               Defense of Claim. If the Indemnifying Party does not intend to assume the defense of the Third Party Claim, then it shall give written notice to the Indemnified Party within 15 days of its receipt of the Notice of Claim (or such shorter period as is reasonably required in the circumstances) specifying its reasons for rejecting the request for indemnity and defense, together with supporting detail (the “Rejection Notice”). Otherwise, the Indemnifying Party shall assume the defense of the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party by giving written notice thereof to the Indemnified Party within thirty (30) days after the Indemnifying Party’s receipt of the Notice of Claim (or such shorter period as is reasonably required in the circumstances), subject to the Indemnifying Party’s right to send a Rejection Notice at a later point and to withdraw from the defense and contest the indemnity obligation based on subsequently available information. If the Indemnifying Party does not assume the defense of the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party by giving such Rejection Notice to the Indemnified Party within the require period, then the Indemnified Party may assume such defense. If the Indemnified Party so assumes the defense, then the reasonable fees and expenses of the Indemnified Party in connection therewith shall be considered “Loss” for purposes of this Agreement unless it is determined by a court of applicable jurisdiction that the Indemnifying Party was not required to indemnify the Indemnified Party for such claim under this Agreement. Notwithstanding anything to the contrary in this Agreement, Buyer shall be entitled to assume the defense of any Third Party Claim relating to Intellectual Property Rights and the reasonable fees and expenses of Buyer in connection therewith shall be considered “Loss” for purposes of this Agreement unless it is determined by a court of applicable jurisdiction that the Indemnifying Party was not required to indemnify the Indemnified Party for such claim under this Agreement.

(iii)             Participation in Defense. The Party not controlling the defense of a Third Party Claim may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice of counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Claim, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered “Loss” for purposes of this Agreement unless it is determined by a court of applicable jurisdiction that the Indemnifying Party was not required to indemnify the Indemnified Party for such claim under this Agreement.

(iv)              Settlement. The Party controlling the defense of the Third Party Claim shall keep the other Party advised of the status of such defense and shall consider in good faith recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of a Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement of a Third Party Claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party or is reasonably likely to be harmful to the reputation of the Indemnified Party, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned, or delayed, provided that, the Indemnifying Party shall be required to obtain the Indemnified Party’s written consent prior to settlement of the Ecolab Litigation, such consent not to be unreasonably withheld, conditioned, or delayed.

10.5           Tax Treatment of Indemnity Payments. Seller and Buyer agree to treat any indemnity payment made pursuant to this Article X as an adjustment to the Purchase Price for all applicable Tax purposes.

10.6           Reserved.

10.7           Escrow.

(a)                First Escrow Period. If there have been no claims for payment of a Shortfall Amount under Section 1.5(c) and no claims for indemnification made by a Buyer Indemnified Party during the first 9 months after the Closing Date (the “First Escrow Period”), then, within 5 Business Days after the expiration of the First Escrow Period, Buyer and Seller shall execute and deliver Joint Written Instructions to the Escrow Agent to pay to Seller an aggregate amount of $5,000,000 (which equates to 50% of the Escrow Amount), by wire transfer of immediately available funds in accordance with Seller’s wire transfer instructions. If there have been such claims during the First Escrow Period, then Buyer and Seller shall execute and deliver Joint Written Instructions to the Escrow Agent to pay to Seller, by wire transfer of immediately available funds in accordance with Seller’s wire transfer instructions, an amount equal to:

(b)                $5,000,000,

(c)                less the sum of (A) all claims for indemnification made by a Buyer Indemnified Party that have been finally determined as a Liability of Seller in accordance with this Article X as of such date, (B) all claims for payment of a Shortfall Amount under Section 1.5(c), as of such date, and (C) Buyer’s good faith estimate of the aggregate amount of all unresolved claims for indemnification asserted under this Article X by a Buyer Indemnified Party (the “Unresolved Claims”) as of such date.

(d)                Second Escrow Period. On the date that is 18 months after the Closing Date (the “Release Date”), Buyer and Seller shall execute and deliver Joint Written Instructions to the Escrow Agent to pay to Seller, by wire transfer of immediately available funds in accordance with Seller’s wire transfer instructions, an amount equal to:

(i)                 the Escrow Amount,

(ii)               less the amount, if any, paid to Seller under Section 10.7(a),

(iii)             less the sum of (A) all claims for indemnification made by a Buyer Indemnified Party that have been finally determined as a Liability of Seller in accordance with this Article X as of such date, (B) all claims for payment of a Shortfall Amount under Section 1.5(c) and (C) Buyer’s good faith estimate of the aggregate amount of all Unresolved Claims.

(e)                To the extent any portion of the Escrow Amount is not paid to Seller as a result of Unresolved Claims existing on the Release Date and all such Unresolved Claims are later resolved, then Buyer and Seller shall, not later than 5 Business Days after the final resolution of all Unresolved Claims, execute and deliver Joint Written Instructions to the Escrow Agent to pay to Seller, by wire transfer of immediately available funds and in accordance with Seller’s wire transfer instructions, an aggregate amount equal to the portion of such Unresolved Claims finally determined not to be a Liability of Seller under this Article X, but solely to the extent funds are then remaining in the Escrow.

Article XI - MISCELLANEOUS

11.1           [Reserved.]

11.2           Notices. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and shall have been duly given (a) on the date delivered, if personally delivered, (b) on the seventh (7th) Business Day after being sent by certified or registered mail, postage prepaid, return receipt requested, (c) on the next Business Day after being sent by reputable overnight courier (delivery prepaid), or (d) upon transmission, if sent by electronic mail transmission, to the Parties at the following addresses:

If to the Company (prior to the Closing), to:

DAS Medical Holdings, LLC

Ten River Court

Cartersville, Georgia 30120

Attention: Daniel Lee

Email: daniel@das-medical.com

with a copy (which shall not constitute notice) to:

Gregory, Doyle, Calhoun & Rogers, LLC

49 Atlanta St.

Marietta, Georgia 30060

Attention: C. George Kleeman, IV, Esq.

Email: gkleeman@gdcrlaw.com

If to Seller:

Parallax Investments, LLC

Ten River Court

Cartersville, Georgia 30120

Attention: Daniel Lee

Email: daniel@das-medical.com

with a copy (which shall not constitute notice) to:

Gregory, Doyle, Calhoun & Rogers, LLC

49 Atlanta St.

Marietta, Georgia 30060

Attention: C. George Kleeman, IV, Esq.

Email: gkleeman@gdcrlaw.com

If to Buyer, to:

UFP Technologies, Inc.

100 Hale Street

Newburyport, MA 01950

Attn: Christopher P. Litterio, General Counsel

Email: clitterio@ufpt.com

with a copy (which shall not constitute notice) to:

TCF Law Group, PLLC

21 Pleasant St., Suite 237

Newburyport, MA 01950

Attention: Thomas Farrell, Esq.

Email: tfarrell@tcflaw.com

or such other Person or address as the addressee may have specified in a notice duly given to the sender as provided herein.

11.3           Integration. This Agreement (including the schedules and exhibits attached hereto) constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether oral or written, relating to the subject matter hereof, including the letter of intent dated August 12, 2021, as the same may have been amended from time to time prior to the date hereof.

11.4           Waiver. No delay or failure on the part of any Party in exercising any rights hereunder, and no partial or single exercise thereof, will constitute a waiver of such rights or of any other rights hereunder.

11.5           No Third-Party Beneficiaries. Except as expressly provided in Section 9.6 and Article X, nothing in this Agreement will be construed as giving any Person, other than the Parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.

11.6           GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, EXCLUDING PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

11.7           Table of Contents; Headings. The table of contents and the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

11.8           Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. This Agreement may be executed electronically and delivered by transfer of an originally signed document by e-mail or other electronic means, any of which will be as fully binding as an original document.

11.9           Amendment; Waiver; Requirement of Writing. The terms of this Agreement can only be changed, modified, released or discharged pursuant to a written agreement executed by all of the Parties. The performance of any term or condition of this Agreement cannot be waived in whole or in part except by a writing signed by the Party against whom enforcement of the change or waiver is sought. Any term or condition of this Agreement may be waived at any time by the Party entitled to the benefit thereof and any such term or condition may be modified at any time by an agreement in writing executed by each of the Parties hereto.

11.10        Assignment. This Agreement and the rights and obligations of each Party hereunder shall be binding upon, and inure to the benefit of, the Parties and their respective successors, heirs and permitted assigns, but may not be assigned by Seller without the prior written consent of Buyer, or by Buyer without the prior written consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed, except that Buyer may (a) assign any or all of its rights and interests hereunder to one or more of its Affiliates and designate one or more of its Affiliates to perform its obligations hereunder, (b) assign its rights under this Agreement for collateral security purposes to any lenders providing financing to Buyer or any of its respective subsidiaries or Affiliates, or (c) assign its rights and obligations under this Agreement to any Person that acquires Buyer or the Company or substantially all of their respective assets (whether by merger, sale of equity, sale of all or substantially all assets, consolidation, recapitalization, or other business combination); provided, however, that any assignment pursuant to clauses (a), or (c) above that occurs prior to the end of the payment period for Earnout Payments shall not relieve Buyer of its obligations hereunder to the extent such assignee does not fulfill Buyer’s obligations under this Agreement.

11.11        Severability; Enforcement. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable Law in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality, or unenforceability in such jurisdiction, without invalidating the remainder of this Agreement in such jurisdiction or any provision hereof in any other jurisdiction.

11.12        Jurisdiction. Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery, and in the absence of jurisdiction by such court, to the exclusive jurisdiction of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the Transactions (and each of the Parties agrees not to commence any action, suit or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth above shall be effective service of process of any action, suit or proceeding brought against it in any such court. Each of the Parties hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit, or proceeding arising out of this Agreement or the Transactions in such courts as aforesaid and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

11.13        Jury Trial Waiver. EACH OF THE PARTIES WAIVES ANY RIGHTS IT MAY HAVE TO A JURY TRIAL.

11.14        Mutual Drafting. The Parties are sophisticated and have been represented by attorneys throughout the Transaction who have carefully negotiated the provisions hereof. As a consequence, the Parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement, the Schedules, or any agreement or instrument executed in connection herewith, and therefore waive their effects.

11.15        Specific Performance. Notwithstanding anything to the contrary contained in this Agreement, upon failure of any Party to fulfill any covenant or other performance obligation provided for herein, any Party entitled to the benefit of such covenant or other performance obligation shall, at its sole option, be entitled to enforce specific performance of such covenant.

11.16        Transaction Expenses. Each Party shall be solely responsible for and shall bear all of its own costs and expenses incident to its obligations under and in respect of this Agreement and the Transactions, provided further that Seller shall be responsible for the Seller’s Transaction Expense.

11.17       Representation of the Company and Company Entities. Buyer, on its own behalf and on behalf of all of its Affiliates, agrees that, following the Closing, Gregory, Doyle, Calhoun & Rogers, LLC (“Gregory Doyle”) may serve as counsel to Seller, the Purchase Price Beneficiaries and their respective Affiliates, in connection with any and all matters whether or not related to this Agreement and the consummation of the transactions contemplated hereby, including any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated hereby, notwithstanding any representation by Gregory Doyle of the Company and/or Company Entities prior to the Closing Date. Buyer, on its own behalf and on behalf of all its current and future Affiliates (including, without limitation, the Company and the Company Entities), hereby (a) waive any claim that have or may have that Gregory Doyle has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agree that, in the event a dispute arises after the Closing between Buyer, the Company, the Company Entities, Sellers or the Purchase Price Beneficiaries or any Affiliates of any of them, Gregory Doyle may represent Seller, the Purchase Price Beneficiaries or any of their Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to Buyer, the Company, the Company Entities or any of their Affiliates, and even though Gregory Doyle may have represented the Company or the Company Entities in a matter substantially relating to such dispute. Buyer, on its own behalf and on behalf of all of its current and future Affiliates (including, without limitation, the Company and the Company Entities) also further agree that, as to all communications among Gregory Doyle and the Company, the Company Entities, Seller and/or the Purchase Price Beneficiaries, or any Affiliates of any of them, that relate in any way to this Agreement, the transactions contemplated hereby, or any litigation or disputes among the Parties to this Agreement arising from events or circumstances prior to the Closing Date, the attorney-client privilege and expectation of client confidence belongs to Seller and the Purchase Price Beneficiaries and may be controlled by Seller and the Purchase Price Beneficiaries, and shall not pass to or be claimed by Buyer or its Affiliates (including, without limitation, the Company or the Company Entities). Notwithstanding anything in this Section 11.17 to the contrary, in the event that a dispute arises between Buyer or any of its Affiliates (including, without limitation, the Company and the Company Entities) and a third-party other than Seller or the Purchase Price Beneficiaries or their Affiliates after the Closing, the Company may assert the attorney-client privilege to prevent the disclosure of confidential communications between Gregory Doyle and the Company and/or the Company Entities to such third-party; provided, however, that the Company may not waive such privilege without the prior written consent of Seller.

Article XII - DEFINITIONS AND TERMS

12.1           Definitions. The following terms, as used herein, shall have the meanings referenced below:

“409A” is defined in Section 2.15(d).

“2020 Financial Statements” is defined in Section 2.7.

“Accounting Firm” is defined in Section 1.5(b)(i).

“Accounts Receivable” means all of the accounts receivable and notes receivable of the Company Entities determined on a consolidated basis in accordance with GAAP.

“Affiliate” means (a) with respect to an individual, any member of such Person’s family (including any child, step child, Buyer, step Buyer, spouse, sibling, mother in law, father in law, son in law, daughter in law, brother in law or sister in law) and (b) with respect to any Person, any Person which directly or indirectly controls, is controlled by, or is under common control with such Person.

“Anti-Bribery Laws” is defined in Section 2.19(b).

“Applicable Tax Contest” is defined in Section 9.1(d).

“Applicable Tax Return” is defined in Section 9.1(a).

“A/R Adjustment” is defined in Section 1.8.

“A/R Adjustment Statement” is defined in Section 1.8.

“Base Amount” is defined in Section 1.2(a).

“Benefit Plans” is defined in Section 2.15(a).

“Business” means the business of the Company Entities as conducted as of immediately prior to the Closing, including the design, development and manufacture of single-use surgical equipment covers, robotic draping systems and fluid control pouches.

“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York, New York are authorized or required by law to close.

“Business Employees” is defined in Section 2.16.

“Buyer Bring-Down Certificate” is defined in Section 7.2(d).

“Buyer Prepared Returns” is defined in Section 9.1(a).

“Buyer Indemnified Parties” is defined in Section 10.1.

“Buyer’s Closing Conditions” is defined in Section 6.2.

“Buyer’s Closing Deliveries” is defined in Section 7.2.

“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act (Public Law 116-136), signed into law on March 27, 2020.

“Cap” is defined in Section 10.3(d).

“Cash” means cash and cash equivalents, marketable securities, and deposits of the Company Entities determined on a consolidated basis in accordance with GAAP.

“Claim” is defined in Section 2.22.

“Closing” is defined in Section 6.1.

“Closing A/R” means the aggregate Accounts Receivable of all Company Entities as of the Closing Date

“Closing Cash” means the aggregate Cash of all Company Entities as of the Closing Date.

“Closing Debt” means the aggregate Debt of all Company Entities as of the Closing Date.

“Closing Date” is defined in Section 6.1.

“Closing Payment” is defined in Section 1.4.

“Closing Price” is defined in Section 1.3.

“Closing Statement” is defined in Section 1.5(a).

“Closing Working Capital” means Working Capital as of the Closing; provided that the time for determining any Tax items included in Closing Working Capital shall be the end of the day on the Closing Date.

“Closing Working Capital Adjustment” means the difference between Closing Working Capital and Target Working Capital, increasing the Purchase Price (on a dollar for dollar basis) if such difference is a positive number and decreasing the Purchase Price (on a dollar for dollar basis) if such difference is a negative number.

“COBRA” is defined in Section 2.15(c).

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Bring-Down Certificate” is defined in Section 7.1(h).

“Company Entities” means the Company and the Company Subsidiaries.

“Company Indemnitors” is defined in Section 10.1.

“Company Intellectual Property” means all (a) Company Owned Intellectual Property and (b) all Intellectual Property Rights licensed by any of the Company Entities from another Person.

“Company Owned Intellectual Property” means all Intellectual Property Rights owned by any of the Company Entities.

“Company Registrations” is defined in Section 2.13(a).

“Company Source Code” means the source code for any Software included in the Products or in Company Owned Intellectual Property or in other confidential information constituting, embodied in or pertaining to the Products.

“Company Subsidiaries” means the DAS Medical Corporation, a Delaware corporation, Sterimed, LLC, a Georgia limited liability company, One Degree Medical Holdings, LLC, a Georgia limited liability company, and DAS Medical International, S.R.L., a Dominican Republic corporation.

“Competition Law” means any applicable supranational, national, federal, state, county, local or foreign antitrust, competition or trade regulation Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, including the HSR Act, the Sherman Act, the Clayton Act and the Federal Trade Commission Act, in each case, as amended, and other similar antitrust, competition, or trade regulation laws of any jurisdiction other than the United States.

“Confidentiality Agreement” means the confidentiality agreement between Buyer and the Company dated as of January 13, 2020.

“Contagion Event” means the outbreak and ongoing effects of any contagious disease, epidemic or pandemic (including the novel coronavirus which causes COVID-19).

“Contracts” means any legally binding contract, agreement, commitment, plan, undertaking, lease, indenture, deed of trust, mortgage, license, or other agreement or commitment of any kind, whether written or oral.

“Contribution” is defined in Section B of the Background Section.

“Covered Persons” is defined in Section 9.6.

“COVID-19” means the novel coronavirus disease 2019, known as COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.

“D.R. Employees” means Israel Portes Mercedes and Albertor Antonio Pimental Valera.

“Debt” means, as to any Person, all obligations for payment of principal, interest, penalties and collection costs thereof, with respect to money borrowed, incurred or assumed (including guarantees, letters of credit to the extent drawn or promissory notes), other similar obligations in the nature of a borrowing by which such Person will be obligated to pay, and Deferred Payroll Taxes, but excluding, for the avoidance of doubt, items included in the calculation of the Working Capital Adjustment, or Seller Transaction Expense.

“Deferred Payroll Taxes” means the employer portion of any payroll Taxes for a Pre-Closing Tax Period in respect of which the Company has deferred the payment thereof until after the Closing Date pursuant to Section 2302 of the CARES Act.

“Disputed Items” is defined in Section 1.5(b)(i).

“Draft Purchase Price Allocation” is defined in Section 9.1(h).

“Earnout Payment Schedule” is defined in Section 1.6.

“Earnout Payments” is defined in Section 1.6.

“Ecolab Litigation” means the Ecolab, Inc., v. One Degree Medical, LLC, et al litigation disclosed in Schedule 2.22.

“End Date” is defined in Section 8.1(b).

“Enforceability Exceptions” is defined in Section 2.3.

“Environmental, Health, and Safety Requirements” means all applicable Laws concerning public health and safety, worker and occupational health and safety, natural resources and pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any Hazardous Substances, materials, or wastes, chemical substances, or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, fuel oil products and byproducts, mold, asbestos, polychlorinated biphenyls, noise, or radiation.

“Equity Interest” is defined in Section 4.1(b)(xviii).

“ERISA” is defined in Section 2.15(a).

“ERISA Affiliate” means any organization together with the Company which is a member of a controlled group of organizations within the meaning of Sections 414 of the Code, or any organization that would be considered one employer with the Company under Section 414 of the Code or Section 4001 of ERISA.

“Escrow” is defined in Section 1.4(d).

“Escrow Agent” means Bank of America, N.A.

“Escrow Agreement” means the escrow agreement in substantially the form attached hereto as Exhibit H by and among Escrow Agent, Buyer and Seller, with such changes as required to reflect the terms and conditions of this Agreement.

“Escrow Amount” is defined in Section 1.4(d).

“Estimated Closing Balance Sheet” is defined in Section 1.3.

“Estimated Closing Price” is defined in Section 1.3.

“Estimated Closing Statement” is defined in Section 1.3.

“Excess Amount” is defined in Section 1.5(c).

“Excluded Assets” means the equity interests in Abidor Inmobilaria, S.R.L. (D.R.) .

“Express Buyer Representations” is defined in Section 2.30.

“Express Seller Party Representations” is defined in Section 4.10.

“Final Purchase Price Allocation” is defined in Section 9.1(h).

“Financial Statements” is defined in Section 2.7.

“FIRPTA Certificate” is defined in Section 7.1(i).

“First Escrow Period” is defined in Section 10.6(a).

“Flow of Funds Memorandum” means that memorandum, prepared in accordance with Section 1.4 and duly executed by Seller, identifying the payees of the Estimated Closing Price and authorizing Buyer to pay the payees in such amounts and to such accounts as specified therein.

“Fraud” means, with respect to a party, its actual and intentional fraud with respect to the making of any of the representations and warranties made in Article II, Article III and Article IV (as applicable); provided, however, that such actual and intentional fraud shall only be deemed to have been committed by a Party if: any of the persons included in the definition of the Company’s Knowledge (in the case of the Seller) or corporate officers (in the case of Buyer) had actual knowledge (as opposed to imputed or constructive knowledge, which shall not be considered) that the subject representation or warranty (as qualified by the Schedules hereto) was false when made.  The Parties expressly agree that “Fraud” does not include or apply to (a) negligent representations or warranties or (b) any representation or warranty other than the representations and warranties expressly set forth in this Agreement.

“Fundamental Representations” is defined in Section 10.3(a).

“GAAP” means United States generally accepted accounting principles.

“Government Approvals” means any consents, notices, or approvals required by a Governmental Authority prior to closing the Transactions.

“Governmental Authority” any domestic, foreign, federal, state, provincial or local governmental, regulatory, administrative or self-regulatory authority, agency, bureau, board, commission, court, judicial or arbitral body (public or private), department, political subdivision, tribunal or other instrumentality thereof, including, without limitation, any State’s Attorney General or Supervisory Authority, the Committee for Foreign Investment in the United States, and any body with authority over merger reviews or approvals under the antitrust Law or foreign investment Law of any jurisdiction.

“Government Contract” means any contract (whether prime contract, subcontract, grant, subaward, or other similar arrangement) between any of the Company Entities, on the one hand, and (a) a Governmental Authority, (b) a prime contractor or prime grant recipient of a Governmental Authority in its capacity as a prime contractor or prime grant recipient, or (c) a subcontractor with respect to any contract of a type described in clauses (a) or (b) above, and (d) any subcontractor with respect to any contract of a type described in clause (c) above, on the other hand.

“Hazardous Substance” means (a) petroleum or petroleum products, flammable materials, explosives, radioactive materials, radon gas, lead-based paint, asbestos in any form, urea formaldehyde foam insulation, polychlorinated biphenyls (PCBs), transformers or other equipment that contain dielectric fluid containing PCBs and toxic mold or fungus of any kind or species, (b) any chemicals or other materials or substances which are defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic substances,” “toxic pollutants,” “contaminants,” “pollutants,” or words of similar import under any applicable Environmental, Health, and Safety Requirements, and (c) any other chemical, material or substance exposure to which is prohibited, limited or regulated under any applicable Environmental, Health, and Safety Requirements.

“HSR Act” means Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules, regulations, and informal interpretations issued thereunder, and any successor to such statute, rules, or regulations.

“HSR Pre-Merger Notice” means the Notification and Report Form for Certain Mergers and Acquisitions required by the HSR Act.

“In-Licenses” is defined in Section 2.13(c).

“Indemnifiable Loss” is defined in Section 10.3(h).

“Indemnified Party” means a Person entitled to indemnification under Article X.

“Indemnifying Party” means a Person required to provide indemnification under Article X.

“Information Privacy and Security Laws” means applicable Laws concerning the use, ownership, maintenance, storage, collection, privacy and/or security of Protected Information.

“Insurance Policies” is defined in Section 2.21.

“Intellectual Property Registrations” means Patents, Marks (other than unregistered trademarks, service marks and trade dress), registered copyrights and designs, mask work registrations and applications for each of the foregoing.

“Intellectual Property Rights” means all of the following: (a) all trademarks, service marks, trade names, Internet domain names, trade dress, and the goodwill associated therewith, and all registrations or applications for registration thereof (collectively, the “Marks”); (b) all patents, patent applications and continuations (collectively, the “Patents”); (c) all copyrights, database rights and moral rights in both published works and unpublished works, whether registered or unregistered, and all registrations or applications for registration thereof; and (d) trade secret and confidential information, including such rights in inventions (whether patentable or un-patentable and whether or not reduced to practice), know how, customer lists, technical information, proprietary information, technologies, processes and formulae, and data, whether tangible or intangible, and whether stored, compiled, or memorialized physically, electronically, photographically, or otherwise.

“Intended Tax Treatment” is defined in Section I of the Background Section.

“Interests” is defined in Section G of the Background Section.

“Interim Balance Sheet” is defined in Section 2.7.

“Interim Balance Sheet Date” is defined in Section 2.7.

“Interim Financial Statements” is defined in Section 2.7.

“Interim Income Statements” is defined in Section 2.7.

“Interim Period” means the period (a) from the Signing Date to the Closing Date or (b) in the case of early termination under Article VIII, from the Signing Date to the effective date of such termination.

“Internal Systems” means the Software, equipment, materials and test, calibration and measurement apparatus used by the Company Entities in their business or operations or to develop, manufacture, fabricate, assemble, provide, distribute, support, maintain or test the Products, whether located on the premises of a Company Entity or a third party site.

“Inventory” means all inventory of the Company Entities, determined in accordance with GAAP and whether or not reflected in the Interim Balance Sheet.

“Inventory Adjustment” is defined in Section 1.9.

“Inventory Adjustment Statement” is defined in Section 1.9.

“IRS” means the Internal Revenue Service.

“ISI Rebates” means the total amount of rebates that the Company Entities, collectively, owe to Intuitive Surgical S.A.R.L. (ISI) for the pre-Closing period, but net of any rebate amounts included in the calculation of the Closing Working Capital Adjustment.

“IT Assets” is defined in Section 2.14(d).

“Key Owner Non-Competition Agreements” means the Non-Competition Agreements between (a) Buyer and Daniel E. Lee and (b) Buyer and Houston Lee.

“Knowledge of the Company” or “Company’s Knowledge” means the actual knowledge of any of Daniel E. Lee and Houston Lee, after reasonable inquiry with respect to the applicable representation and warranty.

“Knowledge of the Buyer” means the actual knowledge of any of Jeffrey Bailly, Ronald Lataille and Mitchell Rock, after reasonable inquiry with respect to the applicable representation and warranty.

“Law” means with respect to any Person, any domestic, federal, state, provincial, municipal, local, national, supranational, or foreign statute or law (whether statutory, common law, or otherwise), constitution, code, convention, ordinance, rule, regulation, order, writ, judgment, decree, ruling, binding directive or guidance of any Governmental Authority (including those of any applicable self-regulatory organization), arbitration award, agency requirement, or any other enforceable requirement of any Governmental Authority that is binding upon or applicable to such Person.

“Leased Personal Property” is defined in Section 2.11.

“Leased Real Properties” is defined in Section 2.12(b).

“Liability” means any liability or obligation, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due, regardless of when asserted.

“Lien” means any lien, mortgage, pledge, title defect, easement, right-of-way, option, charge, security interest, third-party claim, or any other restriction or encumbrance.

“Loss” means any and all losses, costs, expenses, assessments, judgments, Liabilities, or other damages of any nature whatsoever, including interest, penalties and reasonable attorneys’ fees and disbursements; provided, that “Losses” shall not include any exemplary or punitive damages (except to the extent paid or payable by an Indemnified Party to a third party in connection with a Third Party Claim).

“Marks” is defined within the definition of Intellectual Property Rights.

“Material Adverse Change” means, with respect to any Person, any change, event, condition, effect, or circumstance that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the financial condition, business, or operations of such Person and its Subsidiaries, taken as a whole; provided that none of the following (to the extent resulting or arising from the following) shall be taken into account in determining whether there has been, is, or would reasonably be expected to be a Material Adverse Change: (a) changes in general economic conditions or financial markets, (b) changes generally affecting the industry in which such Person operates, (c) any acts of terrorism, military action, or war, the occurrence, continuation or worsening of any Contagion Event, or any man-made or natural disaster or other acts of God, (d) changes in applicable Law or U.S. GAAP generally affecting the industry in which the Company operates, or (e) any change, event, condition, effect, or circumstance that results from the taking of any action or inaction pursuant to explicit requirements set forth in this Agreement or approved or requested in writing by the Buyer, except that this exception (e) is not intended to relieve Seller or any of the Purchase Price Beneficiaries from any Liability resulting from its or his breach of this Agreement; provided that with respect to the exceptions set forth in clauses (a), (b), (c), (d) and (e) in the event that such change, event, condition, effect, or circumstance has had a disproportionate effect on such Person relative to other companies operating in the industry or industries in which such Person operates, then the incremental effect of such any change, event, condition, effect, or circumstance as compared to its effect on such other companies shall be taken into account for the purpose of determining whether a Material Adverse Change exists or would reasonably be expected to occur.

“Material Contract” is defined in Section 2.10(b).

“Material Non-Registered Intellectual Property” means Company Intellectual Property that (1) is not registered Company Intellectual Property and (2) is material to the business or operations of any of the Company Entities.

“NDQC Plans” is defined in Section 2.15(d).

“Non-Competition Agreements” is defined in Section 7.1(g).

“Notice of Claim” is defined in Section 10.4(b)(i).

“Notice of Loss” is defined in Section 10.4(a).

“Objection Notice” is defined in Section 1.5(a).

“Offer Letters” is defined in Section 7.1(f).

“Ordinary Course of Business” means the ordinary and usual course of day-to-day operations of the business of each Company Entity through the date hereof consistent with past practice.

“Open Source Code” means free and open source Software and includes those components of Software which qualify as public domain Software or are licensed as Shareable Freeware or Open Source Software. “Shareable Freeware” is copyrighted computer Software which is made available to the general public for use free of charge, for an unlimited time, without restrictions on field of use or redistribution. “Open Source Software” includes Software licensed or distributed under a license that, as a condition of use, modification or distribution of the Software: (a) requires that such Software or other Software distributed with or combined with the Software be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributable at no charge, or (b) otherwise imposes a limitation, restriction, or condition on the right of any Company Entity to use, modify, or distribute all or part of a proprietary Product or to enforce an Intellectual Property right of any Company Entity. Open Source Code includes Software code that is licensed under any license that conforms to the Open Software Initiative definition of open source Software in effect as of the Signing Date, including without limitation any versions of the GNU General Public License, GNU Lesser General Public License, Mozilla License, Common Public License, Apache License, BSD License, Artistic License, or Sun Community Source License.

“Organizational Documents” means, with respect to any Person, such Person’s charter, by-laws, certificate of incorporation or formation, limited liability company agreement, partnership agreement, or other similar organizational document(s).

“Out-Licenses” is defined in Section 2.13(c).

“Owned Personal Property” is defined in Section 2.11.

“Patents” is defined within the definition of Intellectual Property Rights.

“Pay-Off Letter” is defined in Section 2.6(d).

“Permits” is defined in Section 2.19(a).

“Permitted Liens” means (a) Liens for current taxes, assessments, or governmental charges not yet due and delinquent, (b) mechanic’s liens, contractor liens, and similar liens which arise by operation of law and for amounts which are not yet delinquent, (c) statutory liens to secure obligations to landlords, lessors, or renters under leases or rental agreements (including arising under equipment leases with third parties); (d) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, or similar programs mandated by applicable Law, and (e) zoning, building code, entitlement, or other governmentally established restrictions or encumbrances which are not violated by the current use or occupancy of such property.

“Person” means an individual, a corporation, a partnership, limited liability company, an association, a trust or other entity or organization or Governmental Authority, including a governmental or political subdivision or an agency or instrumentality thereof.

“Personal Goodwill” means close personal and ongoing business relationships, trade secrets and knowledge in connection with the medical device and supply industry and the Company and Company Entities’ business, developed through the personal ability, personality, reputation, skill and integrity of each of the Personal Goodwill Sellers, and other information relating thereto.

“Personal Goodwill Purchase Agreement” is defined in Section 7.2(j).

“Personal Goodwill Sellers” means Armond Groves, Thomas Bonner, Bruce Grady, Danny R. Lee, Daniel E. Lee and Houston Lee.

“Personal Property” is defined in Section 2.11.

“Post-Closing Tax Period” means any taxable period beginning after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date.

“Pre-Closing Tax Period” means collectively, all taxable periods ending on or prior to the Closing Date and the portion through the end of the Closing Date for all Straddle Periods.

“Pro Rata Indemnity Share” means, with respect to each Purchase Price Beneficiary, as follows:

Armond Groves 34.40% of the Purchase Price

Danny R. Lee 17.20% of the Purchase Price

Carol Lee 17.20% of the Purchase Price

Daniel E. Lee 12.20% of the Purchase Price

Bruce Grady 10.0% of the Purchase Price

Thomas Bonner 5.0% of the Purchase Price

Houston Lee 4.0% of the Purchase Price

“Products” means products and services of the Company Entities, both current and historical.

“Protected Information” means any information that alone or in combination with other information held by any Company Entity (i) can be used to specifically identify a natural person, (ii) constitutes personal information or health or financial information about an identifiable natural person, or (iii) is governed, regulated, or protected by one or more Information Privacy and Security Laws.

“Purchase Price Beneficiaries” means Danny R. Lee, Carol Lee, Daniel E. Lee, Houston Lee, Armond Groves, Thomas Bonner, and Bruce Grady.

“QSub Election” is defined in Section D of the Background Section.

“Real Property Lease” is defined in Section 2.12(b).

“Rejection Notice” is defined in Section 10.4(b)(ii).

“Resolved Items” is defined in Section 1.5(b)(i).

“Releasees” is defined in Section 9.7.

“Reorganization” is defined in Section D of the Background Section.

“Representative” means, with respect to any Person, any director, officer, partner, member, stockholder, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants and financial advisors, provided, however, that none of Buyer, the Company Entities, or Seller constitutes a Representative.

“S Election” is defined in Section 2.20(m).

“Sale Bonuses” means all severance payments, change of control payments, stay bonuses, retention bonuses, transaction completion bonuses and other sale bonuses payable to certain members and/or employees of the Company in connection with the Closing of the Transactions, together with the employer portion of any employment Taxes payable in respect of the foregoing.

“SEC” means the U.S. Securities and Exchange Commission.

“Select Equipment” means the equipment for Line 3 (column drape), Line 5 (the ISA production line) and Line 7 (instrument arm drape) for which Seller has executed purchase orders in the approximate amount of $760,000.

“Select Equipment Expense” means the expense for purchase of the Select Equipment, but not to exceed the amount of $500,000.

“Seller’s Closing Conditions” is defined in Section 6.3.

“Seller’s Closing Deliveries” is defined in Section 7.1.

“Seller’s Transaction Expense” means all fees and expenses of attorneys, accountants, investment bankers and other advisors incurred by any Company Entity prior to the Closing relating to this Agreement and the Transactions, including Seller’s share of the costs of the Escrow Agent, but excluding any Sale Bonuses.

“Shortfall Amount” is defined in Section 1.5(c).

“Signing Date” is defined in the Preamble.

“Software” means (i) computer programs, including any and all software implementations of algorithms, models and methodologies, including firmware and other software embedded in hardware devices, in each case whether in source code or object code, including any library, component or module of any of the foregoing, including, in the case of source code, any related multimedia files, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools including software development kits (SDKs) or other development or compilation tools, and any application programming interfaces (APIs), templates, menus, buttons and icons, and (iv) documentation, including programmer notes, specifications, user manuals, and other training documentation, related to any of the foregoing.

“Straddle Period” is defined in Section 9.1(a).

“Submission” is defined in Section 1.5(b)(i).

“Subsidiary” when used with respect to any party, means any corporation, limited liability company, partnership, association, trust or other entity the accounts of which would be consolidated with those of such party in such party’s consolidated financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such party or one or more Subsidiaries of such party or by such party and one or more Subsidiaries of such party. For the avoidance of doubt, each of the Company Subsidiaries constitutes a Subsidiary.

“Target Working Capital” means $10,100,000.00.

“Tax” means: (a) any federal, state, county, local or foreign taxes, including ad valorem, alternative or add-on minimum, capital securities, communications, customs duty, disability, employment, escheat or unclaimed property, estimated, excise, franchise, gross income, gross receipts, license, net income, occupation, payroll, premium, profits, property, registration, sales, severance, social security, stamp, transfer, unemployment, use, utility, value-added, wage, windfall profits, withholding, and other taxes of any kind whatsoever (including government fees or assessments in the nature of a tax); and (b) any interest, penalties, additions to tax, or additional amount imposed by any Taxing Authority with respect thereto, whether disputed or not.

“Taxing Authority” means any Governmental Authority responsible for the administration or imposition of any Tax.

“Tax Return” means any return, statement, estimate, report, form, or filing with respect to Taxes, including any schedules attached thereto and any amendment thereof, filed or required to be filed with a Taxing Authority.

“Third Party Claim” is defined in Section 10.4(b)(i).

“Third Party Software” means Software developed by any third Person and licensed to any Company Entity as part of the Company Intellectual Property.

“Threshold” is defined in Section 10.3(c).

“Transaction Agreements” means this Agreement, the Interest Transfer Power, the Escrow Agreement, the Non-Competition Agreements, the D.R. Non-Competition Agreements, the Offer Letters, and the Personal Goodwill Purchase Agreement.

“Transaction Compensation” means Sale Bonuses, option exercises, payments to holders of Company Options or other compensatory payments that are incurred or otherwise become payable in connection with the Transactions.

“Transaction Payroll Taxes” means the employer portion of any payroll or employment Taxes incurred or accrued with respect to any Transaction Compensation.

“Transactions” means the transactions contemplated by this Agreement.

“Transfer Taxes” is defined in Section 9.1(b).

“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

“Unpaid Seller’s Transaction Expense” is defined in Section 1.4(b).

“Unresolved Claims” is defined in Section 10.6(a).

“Wire Instructions” is defined in Section 1.4(a).

“Working Capital” means as of a certain time the amount equal to (a) all current assets of all Company Entities (except for Cash) minus (b) all current liabilities of all Company Entities (including current and long-term deferred revenue, ISI rebate liability, and Sale Bonuses, but excluding Seller’s Transaction Expense, Debt, and Select Equipment Expense), in each case determined from the books of account of the Company Entities in accordance with GAAP applied consistently with the Company Entities’ past practices to the extent such practices are compliant with GAAP. For greater clarity, Seller will accrue $1,000,000 in the Estimated Closing Working Capital calculation for ISI rebate liability.

12.2           Other Definitional Provisions.

(a)                The words “herein”, “hereof”, “hereto” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(b)                The terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa.

(c)                Whenever the words “include”, “including” or “includes” appear in this Agreement, they shall be read to be followed by the words “without limitation” or words having similar import.

(d)                Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meanings throughout this Agreement.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the undersigned have executed this Securities Purchase Agreement as of the day and year first above written.

UFP TECHNOLOGIES, INC.

By: /s/ R. Jeffrey Bailly

Name: R. Jeffrey Bailly

Title: President, CEO

DAS MEDICAL HOLDINGS. LLC

By: /s/ Danny R. Lee

Name: Danny R. Lee

Title: General Manager

PARALLAX INVESTMENTS, LLC

By: /s/ Danny R. Lee

Name: Danny R. Lee

Title: Manager

[**SIGNATURES CONTINUE ON NEXT PAGE**]

IN WITNESS WHEREOF, the undersigned have executed this Securities Purchase Agreement as of the day and year first above written.

PURCHASE PRICE BENEFICIARIES

Solely with respect to Section 3.10 (Limited Reliance Disclaimer) Section 9.5 (Confidentiality), Article V (Indemnification) and Section 11.17 (Representation of the Company and Company Entities)

/s/ Armond Groves

Name: Armond Groves

Address: 9012 Fairview Church Road

Seneca, South Carolina 29672

/s/ Danny R. Lee

Name: Danny R. Lee

Address: 1328 Miracle Strip Parkway

Fort Walton Beach, Florida 32548

/s/ Daniel E. Lee

Name: Daniel E. Lee

Address: 2406 Glenwood Drive, N.E.

Atlanta, Georgia 30305

/s/ Thomas Bonner

Name: Thomas Bonner

Address: 14365 North Slope Street

Centerville, Virginia 20120

/s/ Bruce Grady

Name: Bruce Grady

Address: 42 Lakeside Trail

Cartersville, Georgia 30120

/s/ Carol Lee

Name: Carol Lee

Address: 1328 Miracle Strip Parkway

Fort Walton Beach, Florida 32548

/s/ Houston Lee

Name: Houston Lee

Address: 134 Lilyfield Lane

Acworth, Georgia 30101

EXHIBIT LIST

EXHIBIT A – Estimated Closing Statement

EXHIBIT A-1 – Estimated Closing Balance Sheet

EXHIBIT B – Flow of Funds Memo

EXHIBIT C – Closing Statement

EXHIBIT C-1 – Closing Balance Sheet

EXHIBIT D – Interest Transfer Power

EXHIBIT E – Offer Letters

EXHIBIT F – Non-Competition Agreements

EXHIBIT G – Personal Goodwill Purchase Agreement

EXHIBIT H – Escrow Agreement

EXHIBIT I – D.R. Non-Competition Agreements

EXHIBIT J – Blackstone Notice

EXHIBIT 10.2

PERSONAL GOODWILL PURCHASE AND SALE AGREEMENT

This Personal Goodwill Purchase and Sale Agreement (this "Agreement") is made as of December 22, 2021 (the “Closing Date”) by and among UFP Technologies, Inc., a Delaware corporation having an office in Massachusetts at 100 Hale Street, Newburyport, Massachusetts 01950 ("Buyer"), Danny R. Lee, a resident of Florida (“Danny”), Daniel Lee, a resident of Georgia (“Daniel”), Armond Groves, a resident of South Carolina (“Armond”), Thomas Bonner, a resident of Virginia (“Thomas”), Bruce Grady, a resident of Georgia (“Bruce”), and Houston Lee, a resident of Georgia (“Houston” and, together with Danny, Daniel, Armond, Thomas, and Bruce, “Sellers”), and Carol Lee, a resident of Florida (“Carol”), solely with respect to Sections 7 and 8, and such provisions of Section 9 as may apply to her.

BACKGROUND

A.       Until October 14, 2021, Sellers owned all of the issued and outstanding equity of DAS Medical Holdings, LLC, a Georgia limited liability company (the “Company”).

B. On October 14, Sellers undertook a reorganization of the Company pursuant to which Sellers contributed all of the equity interests in the Company (but retained all of their Personal Goodwill (defined below) relating to the Company) to Parallax Investments, LLC, a Georgia limited liability company (“Parallax”) in exchange for all of the equity interests in Parallax (the “Reorganization”).

C.       As a result of the Reorganization, (i) Parallax owns all of the issued and outstanding equity interests in the Company and (ii) Sellers own all of the issued and outstanding equity interests in Parallax and continue to own their Personal Goodwill relating to the Company.

D.       The Company has the following subsidiaries: DAS Medical Corporation, a Delaware corporation, Sterimed, LLC, a Georgia limited liability company, One Degree Medical Holdings, LLC, a Georgia limited liability company, and DAS Medical International, S.R.L., a Dominican Republic corporation (collectively, the “Subsidiaries” and, together with the Company, the “Company Entities”).

E.       The Company Entities are in the business of designing, developing, and manufacturing products in the medical device and supply industry, including, without limitation, single-use surgical equipment covers, robotic draping systems, and fluid control pouches.

F.       Each Seller has independently developed, owned, and will continue to own on the Closing Date close personal and ongoing business relationships, trade secrets and knowledge in connection with the Business, through the personal ability, personality, reputation, skill and integrity of such Seller, and other information relating thereto (collectively, the "Personal Goodwill").

G.       None of the Sellers is subject to an employment agreement, noncompetition agreement, or similar restrictive covenant agreement relating to the Personal Goodwill prior to Closing.

H.       Sellers desire to sell, and Buyer desires to purchase, the Personal Goodwill on the terms and conditions set forth herein.

I.       Capitalized terms that are not defined in this Agreement shall have the meanings given to such terms in the Securities Purchase Agreement, dated as of the same date hereof, by and among Buyer, Company, Parallax Investments and the other parties thereto (the “SPA”).

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:

1.       Purchase Price and Exchange of Consideration. On the Closing Date, the Sellers shall sell, assign, transfer, convey, and deliver to the Buyer, free from all liabilities and encumbrances, the Personal Goodwill including, without limitation, all of each Seller's respective rights and benefits related to the Personal Goodwill. In exchange for the Personal Goodwill, and subject to the terms and conditions of this Agreement, the Buyer shall pay to the Sellers on the Closing Date the total sum of TWENTY MILLION and 00/100 DOLLARS ($20,000,000.00) for all of the Personal Goodwill (the "Purchase Price"). Buyer shall pay the Purchase Price by wire transfer of immediately available funds to the account designated by Sellers in the wire transfer instructions set forth in Exhibit A and Sellers shall be solely responsible for allocating and distributing the Purchase Price among the Sellers as they may agree. The payment required by this Section 1 shall not be affected by the death or disability of Sellers.

2.       Closing and Transfer. The purchase, sale and assignment of the Personal Goodwill (the "Closing") shall occur on the Closing Date conditioned upon the sale of 100% of the equity interests of the Company to the Buyer on the same date. Each Seller acknowledges and agrees that his obligation to transfer the Personal Goodwill survives the Closing. Each Seller shall execute all documents necessary for Closing.

3.       Sellers’ Representations and Warranties. Each Seller represents and warrants to Buyer as follows:

3.1       Personal Goodwill. All of the Personal Goodwill is owned, and immediately prior to the Closing will be owned, collectively by the Sellers, free and clear of all liens, encumbrances, claims, options, security interests, calls, and commitments of any kind. Each Seller has full legal right, power, and authority to enter into this Agreement and to sell, assign, and transfer his or her portion of the Personal Goodwill to the Buyer and, on the Closing Date, the sale and assignment of the Personal Goodwill to the Buyer hereunder will transfer to the Buyer valid title thereto, free and clear of all liens, encumbrances, claims, options, security interests, and commitments of any kind. The Personal Goodwill is all of the personal goodwill relating to the Business.

3.2       No Restrictions. As of the Closing, such Seller is not a party to any contract, employment agreement, noncompetition agreement, or any other contract or agreement, or subject to any restriction or condition contained in any permit, license, judgment, order, writ, injunction, decree or award which, singly or in the aggregate, materially and adversely affects or restricts, or is likely to materially and adversely affect or restrict the portion of the Personal Goodwill owned by such Seller or the Buyer's acquisition, use, or enjoyment of the Personal Goodwill as a whole.

3.3       Approval and Authorization. The execution and delivery of this Agreement by such Seller and the performance of the transactions contemplated herein have been duly and validly authorized by such Seller, and this Agreement is a legal, valid, and binding obligation of such Seller, enforceable against such Seller in accordance with its respective terms subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general application relating to or affecting creditors’ rights and general equity principles (the “Enforceability Exceptions”).

3.4       Economic Benefits. To the best of such Seller's knowledge, such Seller is not aware of any present facts or any pending events, which would prevent the Buyer from realizing the economic benefits associated with the Personal Goodwill in the same manner as presently enjoyed by the Sellers, collectively.

3.5       No Conflicts. The execution and delivery of this Agreement by such Seller does not, and the consummation by such Seller of the transactions contemplated hereby does not and will not, violate or conflict with, or result (with the giving of notice or the lapse of time or both) in the violation of, or constitute a default under any provision of, or result in the acceleration or termination of, or entitle any party to accelerate or terminate (whether after giving of notice or lapse of time or both), any obligation or benefit under, or result in the creation or imposition of any lien, pledge, security interest or other encumbrance upon the Personal Goodwill pursuant to any material contract, law, ordinance, regulation, order, arbitration award, judgment, or decree to which such Seller is a party, or by which such Seller or his assets (including the Personal Goodwill) are bound and to such Seller's knowledge, does not and will not violate or conflict with any other material restriction of any kind or character to which such Seller is subject or by which any of such Seller's assets (including the Personal Goodwill) may be bound.

3.6       No Broker. Sellers do not have any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated.

3.7       Personal Goodwill. The value of the Personal Goodwill is equal to the Purchase Price.

4.       Buyer’s Representations and Warranties. Buyer represents and warrants to each Seller as follows:

4.1      Existence and Good Standing. Buyer has been duly organized and validly exists in good standing as a corporation under the laws of the State of Delaware.

4.2      No Default. The execution of this Agreement by Buyer and the performance of its obligations hereunder will not violate or result in a breach of, or constitute a default, under Buyer’s certificate of incorporation or by-laws, or any material agreement to which Buyer is a party or by which it or its assets are bound.

4.3      Approval and Authorization. The execution and delivery of this Agreement and the performance of the transactions contemplated herein have been duly and validly authorized by all necessary action on the part of Buyer and are legal, valid, and binding obligations of the Buyer, enforceable against the Buyer in accordance with the terms hereof subject to the Enforceability Exceptions.

4.4       No Broker. Buyer does not have any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Sellers could become liable or obligated.

5.       Preservation and Maintenance of Personal Goodwill. Each Seller shall cooperate with Buyer after the Closing Date in connection with all reasonable actions deemed necessary by Buyer to transition the economic value of the Personal Goodwill to Buyer.

6.       Integral Agreements. As a condition of Closing, Sellers shall deliver to Buyer the Offer Letters and the accompanying post-closing employment related Non-Compete/Confidential Information Agreement (collectively, the “Seller Offer Letters”) and the additional Transaction-related Non-Competition Agreements between Sellers and Buyer, in each case as applicable to and duly executed by each such Seller. Each Seller acknowledges and agrees that his entry into the Offer Letters and the Non-Competition Agreements are essential conditions to Buyer’s entry into this Agreement and that Buyer would not enter into this Agreement and would not purchase the Personal Goodwill without receipt of such executed documents.

7.       Survival. The representations and warranties of the parties contained in this Agreement shall survive the Closing Date for 3 years and the covenants of the parties shall survive the Closing Date for six (6) years.

8.       Indemnification. Each Seller and Carol shall jointly and severally, indemnify, defend, and hold harmless Buyer and its Affiliates (the “Buyer Indemnified Parties”) from and against any and all Loss incurred or sustained by the Buyer Indemnified Parties arising out of or relating to (a) any breach of any representation or warranty of Sellers in this Agreement or in any document delivered by Sellers pursuant to this Agreement, (b) the failure by a Seller to perform any covenant or agreement of such Seller contained in this Agreement or in any document or certificate delivered by such Seller pursuant to this Agreement, (c) the loss of the Company’s or Parallax’s S-corporation status, (d) Sellers’ allocation and distribution of the Purchase Price payment, including any disproportionate allocation and distribution or tax recharacterization of the Purchase Price, and/or (e) any audit or investigation or rejection by a taxing authority of the Personal Goodwill tax treatment hereunder.

9.       General Provisions.

9.1       Further Assurances. Each Seller will cooperate with Buyer on and after the Closing Date in furnishing information and other assistance in connection with any actions, proceedings, arrangements, or disputes of any nature with respect to matters pertaining to all periods prior to the Closing Date and will take, or cause to be taken such further action, and will execute, deliver, and file such further documents and instruments as Buyer reasonably requests in order to effectuate fully the purposes, terms, and conditions of this Agreement.

9.2       Assignment: Binding Effect. This Agreement, and the rights of the Buyer hereunder, may be assigned by the Buyer. This Agreement, and the rights of each Seller hereunder, may not be assigned by the Seller. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, the successors and assigns of the Buyer, and the heirs, beneficiaries, and legal representatives of each Seller.

9.3       Counterparts; Execution and Delivery. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. This Agreement may be executed electronically and delivered by transfer of an originally signed document by e-mail or other electronic means, any of which will be as fully binding as an original document.

9.4       Notices. Any notice or communication required or permitted hereunder shall be sufficiently given if sent by facsimile, or first class mail, postage prepaid to:

UFP Technologies, Inc.

100 Hale Street

Newburyport, MA 01950

Attn: Christopher P. Litterio, General Counsel

Email: clitterio@ufpt.com

with a copy (which shall not constitute notice) to:

TCF Law Group, PLLC

21 Pleasant St., Suite 237

Newburyport, MA 01950

Attention: Thomas Farrell, Esq.

Email: tfarrell@tcflaw.com

(b) Sellers:

Daniel Lee

2406 Glenwood Dr., NE

Atlanta, GA 30305

Houston Lee

134 Lilyfield Lane

Acworth, GA 30101

Danny Lee

1328 Miracle Strip Pkwy

Ft. Walton Beach, FL 32548

Thomas Bonner

14365 North Slope St

Centreville, VA 20120

Armond Groves

9012 Fairview Church Road

Seneca, SC 29672

Bruce Grady

42 Lakeside Trail SE

Cartersville, GA 30120

Carol Lee

1328 Miracle Strip Pkwy

Ft. Walton Beach, FL 32548

with a copy (which shall not constitute notice) to:

Gregory, Doyle, Calhoun & Rogers, LLC

49 Atlanta St.

Marietta, Georgia 30060

Attention: C. George Kleeman, IV, Esq.

Email: gkleeman@gdcrlaw.com

9.5       Governing Law. This Agreement will be governed by the laws of the State of Delaware, excluding principles of conflicts of laws that would result in the application of the laws of another jurisdiction.

9.6       Jurisdiction. Each of the parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery, and in the absence of jurisdiction by such court, to the exclusive jurisdiction of the United States District Court for the District of Delaware for any actions, suits, or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and each of the parties agrees not to commence any action, suit, or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth above shall be effective service of process of any action, suit, or proceeding brought against him or it in any such court. Each of the parties hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit, or proceeding arising out of this Agreement or the transactions contemplated hereby in such courts as aforesaid and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

9.7       Captions. The captions in this Agreement are for convenience only and shall not be considered a part hereof or affect the construction or interpretation of any provision of this Agreement.

9.8        Jury Trial Waiver. EACH OF THE PARTIES WAIVES ANY RIGHTS IT MAY HAVE TO A JURY TRIAL.

9.9       Entire Agreement. This Agreement, the SPA, the Seller Offer Letters, and the Non-Competition Agreements constitute the entire agreement and understanding between Sellers and Buyer and supersede any prior agreement and understanding, written or oral, relating to the subject matter of this Agreement. This Agreement, the SPA, the Seller Offer Letters, and the Non-Competition Agreements shall be governed by the law referenced in the governing law provision of each separate document.

9.10       Opportunity to Consult Counsel. Each Seller acknowledges that he has (a) had the opportunity to seek the advice of independent counsel, including independent tax counsel, regarding the consequences of this Agreement; and (b) received no representations from the Buyer or its counsel regarding the tax consequences of this Agreement.

9.11       Amendment; Waiver; Requirement of Writing. The terms of this Agreement can only be changed, modified, released, or discharged pursuant to a written agreement executed by all of the parties. The performance of any term or condition of this Agreement cannot be waived in whole or in part except by a writing signed by the party against whom enforcement of the change or waiver is sought.

[**SIGNATURE PAGE FOLLOWS**]

IN WITNESS WHEREOF, the parties have entered into this Personal Goodwill Purchase and Sale Agreement as of the day and year first above written.

SELLERS

/s/ Daniel E. Lee

Daniel Lee, individually

/s/ Houston Lee

Houston Lee, individually

/s/ Danny Lee

Danny Lee, individually

/s/ Thomas Bonner

Thomas Bonner, individually

/s/ Armond Groves

Armond Groves, individually

/s/ Bruce Grady

Bruce Grady, individually

CAROL

/s/ Carol Lee

Carol Lee, individually

BUYER

UFP Technologies, Inc.

By: /s/ R. Jeffrey Bailly

Name: R. Jeffrey Bailly

Title: President, CEO

EXHIBIT 10.3

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of December 22, 2021

among

UFP TECHNOLOGIES, INC.,

as Borrower,

CERTAIN SUBSIDIARIES OF UFP TECHNOLOGIES, INC. PARTY HERETO,

as Guarantors,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swingline Lender and

L/C Issuer,

and

THE LENDERS PARTY HERETO

BANK OF AMERICA, N.A.,

as Sole Lead Arranger and Sole Bookrunner

TABLE OF CONTENTS

Page

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 22, 2021, among UFP TECHNOLOGIES, INC., a Delaware corporation (the “Company”), as borrower, the Guarantors (defined herein), the Lenders (defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer.

PRELIMINARY STATEMENTS:

WHEREAS, reference is made to that certain Amended and Restated Credit Agreement dated as of February 1, 2018 (as amended prior to the date hereof, the “Existing Credit Agreement”), among the Company, certain of the Guarantors, Bank of America, N.A., as the sole lender thereunder (the “Existing Lender”), Bank of America, N.A., as the administrative agent thereunder (the “Existing Administrative Agent”), Bank of America, N.A., as the swingline lender thereunder (the “Existing Swingline Lender”) and Bank of America, N.A., as the L/C issuer thereunder (the “Existing L/C Issuer”), pursuant to which the Existing Lender, Existing Swingline Lender and Existing L/C Issuer agreed to make certain loans and provide certain accommodations to the Company from time to time;

WHEREAS, pursuant to the DAS Medical Acquisition Agreement (as defined below), the Company is acquiring all of the outstanding Equity Interests (as defined below) of DAS Medical on the Restatement Date (as defined below); and

WHEREAS, the Company and DAS Medical have requested that the Existing Lender, Existing Administrative Agent, Existing Swingline Lender and Existing L/C Issuer amend and restate the Existing Credit Agreement in its entirety to, among other things, (i) increase the maximum aggregate amount of the credit facilities to up to $130,000,000, (ii) extend the maturity date of the credit facilities and (iii) join DAS Medical as a guarantor.

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Article I

DEFINITIONS AND ACCOUNTING TERMS

1.01           Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below:

“Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person.

“Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may from time to time notify the Company and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

“Advant Medical Acquisition” means the Acquisition by the Company of all outstanding Equity Interests of the Advant Medical Entities pursuant to the Advant Medical Acquisition Agreement.

“Advant Medical Acquisition Agreement” means the Stock Purchase Agreement to be entered into by the Company, as “Buyer”, the Advant Medical Entities, Robert A. DePetrillo and the DiPetrillo Family 2018 Irrevocable Trust u/t/d 9/21/2018, as “Sellers”, and Robert A. DePetrillo, as the “Sellers’ Representative”.

“Advant Medical Entities” means Advant Medical Ltd. (Ireland Reg: 207297), an Irish company, Advant Medical Costa Rica, Limitada (Costa Rican identification number: 3-102-657982), a Costa Rican entity, and Advant Medical Inc., a Delaware corporation, collectively.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Aggregate Commitments” means the Commitments of all the Lenders.

“Agreement” means this Credit Agreement, including all schedules, exhibits and annexes hereto.

“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.

“Applicable Percentage” means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by (i) on or prior to the Restatement Date, such Term Lender’s Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Consolidated Leverage Ratio), it being understood that the Applicable Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column “Base Rate Revolving Loans”, (b) Revolving Loans that are BSBY Daily Floating Rate Loans or BSBY Rate Loans shall be the percentage set forth under the column “BSBY Daily Floating Rate, BSBY Rate & Letter of Credit Fee Revolving Loans”, (c) that portion of the Term Loan comprised of Base Rate Loans shall be the percentage set forth under the column “Base Rate Term Loan”, (d) that portion of the Term Loan comprised of BSBY Daily Floating Rate Loans or BSBY Rate Loans shall be the percentage set forth under the column “BSBY Daily Floating Rate, BSBY Rate & Letter of Credit Fee Term Loan”, (e) the Letter of Credit Fee shall be the percentage set forth under the column “ “BSBY Daily Floating Rate, BSBY Rate & Letter of Credit Fee Revolving Loans”, and (f) the Commitment Facility Fee shall be the percentage set forth under the column “Commitment Fee”:

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section 6.02(a), then, upon the request of the Required Lenders, Pricing Level 4 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. In addition, at all times while the Default Rate is in effect, the highest rate set forth in each column of the Applicable Rate shall apply.

Notwithstanding anything to the contrary contained in this definition, (i) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (ii) the initial Applicable Rate shall be set at Pricing Level 3 until the first Business Day immediately following the date a Compliance Certificate is delivered by the Company to the Administrative Agent pursuant to Section 6.02(a) for the first full fiscal quarter to occur following the Restatement Date. Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently made or issued.

The Applicable Rate set forth above shall be increased as, and to the extent, required by Section 2.16.

“Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.

“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Arranger” means Bank of America, N.A., an affiliate of BofA Securities, Inc., in its capacity as sole lead arranger and sole bookrunner.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent.

“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease, (c) all Synthetic Debt of such Person, (d) in respect of any Securitization Transaction, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment and (e) in respect of any Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.

“Audited Financial Statements” means the audited Consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2020, and the related Consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.

“Authorization to Share Insurance Information” means the authorization substantially in the form of Exhibit Q (or such other form as required by each of the Loan Party’s insurance companies).

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).

“Auto-Reinstatement Letter of Credit” has the meaning specified in Section 2.03(b).

“Availability Period” means in respect of the Revolving Facility, the period from and including the Restatement Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bank of America” means Bank of America, N.A. and its successors.

“Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the BSBY Rate plus 1.00%, subject to the interest rate floors set forth therein; provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest, then the Base Rate shall be the greatest of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

“Base Rate Loan” means a Revolving Loan or a Term Loan that bears interest based on the Base Rate.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Bloomberg” means Bloomberg Index Services Limited.

“Company” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02(p).

“Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the context may require.

“BSBY” means the Bloomberg Short-Term Bank Yield Index rate.

“BSBY Daily Floating Rate” means a fluctuating rate of interest per annum equal to the BSBY Screen Rate, or a comparable or successor rate which rate is approved by the Administrative Agent, at or about 11:00 a.m., New York City time, two (2) Business Days prior to the date in question, for a term equivalent to a one (1) month term beginning on that date; provided that: (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner reasonably determined by the Administrative Agent and (y) if the BSBY Daily Floating Rate determined in accordance with the foregoing provisions of this definition would otherwise be less than zero, the BSBY Daily Floating Rate shall be deemed zero for purposes of this Agreement.

“BSBY Daily Floating Rate Loan” means a Revolving Loan or a Term Loan that bears interest at a rate based on the BSBY Daily Floating Rate.

“BSBY Rate” means:

(a)       for any Interest Rate with respect to a BSBY Rate Loan, the rate per annum equal to the BSBY Screen Rate two Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published on such determination date then the BSBY Rate shall mean the BSBY Screen Rate on the first Business Day immediately prior thereto; and

(b)       for any interest calculation with respect to a Base Rate Loan on any day, the rate per annum equal to the BSBY Screen Rate with a term of one month commencing that day;

provided that if the BSBY Rate determined in accordance with the foregoing provisions of this definition would otherwise be less than zero, the BSBY Rate shall be deemed zero for purposes of this Agreement.

“BSBY Rate Loan” means a Revolving Loan or a Term Loan that bears interest at a rate based on the BSBY Rate.

“BSBY Screen Rate” means the Bloomberg Short-Term Bank Yield Index rate administered by Bloomberg and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any BSBY Rate Loan, in New York City.

“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations). For purposes of this definition, the purchase price of equipment that is acquired to replace or repair property affected by a casualty event shall not be included in Capital Expenditures.

“Capitalized Lease” means any lease that has been or is required to be, in accordance with GAAP, recorded, classified and accounted for as a capitalized lease or financing lease.

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swingline Lender (as applicable) or the Lenders, as Collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the L/C Issuer, and/or (c) if the Administrative Agent and the L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or the Swingline Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.

“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Company or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens):

(a)                readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than three hundred sixty days (360) days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;

(b)                time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof;

(c)                commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof; and

(d)                Investments, classified in accordance with GAAP as current assets of the Company or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.

“Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code in which the Company or any Loan Party is a United States shareholder within the meaning of Section 951(b) of the Code.

“Change in Law” means the occurrence, after the Restatement Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

“Change of Control” means an event or series of events by which:

(a)                any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than thirty-five percent (35%) of the Equity Interests of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or

(b)                during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Term Commitment.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.

“Collateral Documents” means, collectively, the Security Agreement, the Qualifying Control Agreements, each Joinder Agreement, each of the collateral assignments, security agreements, pledge agreements, account control agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.14, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

“Commitment” means a Term Commitment, a Revolving Commitment or an Incremental Commitment, as the context may require.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.

“Compliance Certificate” means a certificate substantially in the form of Exhibit C.

“Conforming Changes” means, with respect to the use, administration of or any conventions associated with BSBY or any proposed Successor Rate, as applicable, any conforming changes to the definition of Base Rate, BSBY, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate, and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated” means, when used with reference to financial statements or financial statement items of the Company and its Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.

“Consolidated EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Company and its Subsidiaries in accordance with GAAP, (a) Consolidated Net Income for the most recently completed Measurement Period plus (b) the following to the extent deducted in calculating such Consolidated Net Income (without duplication): (i) Consolidated Interest Charges, (ii) the provision for federal, state, local and foreign income taxes payable, (iii) depreciation and amortization expense and (iv) non-cash charges and losses (excluding any such non-cash charges or losses to the extent (A) there were cash charges with respect to such charges and losses in past accounting periods or (B) there is a reasonable expectation that there will be cash charges with respect to such charges and losses in future accounting periods less (c) without duplication and to the extent reflected as a gain or otherwise included in the calculation of Consolidated Net Income for such period (i) non-cash gains (excluding any such non-cash gains to the extent (A) there were cash gains with respect to such gains in past accounting periods or (B) there is a reasonable expectation that there will be cash gains with respect to such gains in future accounting periods); provided that solely for the purposes of determining compliance with the Consolidated Leverage Ratio pursuant to Section 7.11(a), the Company shall be permitted to add back to Consolidated EBITDA the following amounts for the following periods: (i) for the period of four fiscal quarters ending December 31, 2021, $12,848,000; (ii) for the period of four fiscal quarters ending March 31, 2022, $10,740,000; for the period of four fiscal quarters ending June 30, 2022, $7,642,000; and for the period of four fiscal quarters ending September 30, 2022, $3,661,000.

“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated EBITDA, less (ii) Capital Expenditures up to an aggregate amount of $5,000,000, less (iii) the aggregate amount of all Restricted Payments, less (iv) the aggregate amount of federal, state, local and foreign income taxes paid in cash, to (b) the sum of (i) Consolidated Interest Charges to the extent paid in cash, plus (ii) the aggregate principal amount of all redemptions or similar acquisitions for value of outstanding debt for borrowed money or regularly scheduled principal payments, but excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.02, in each case, of or by the Company and its Subsidiaries for the most recently completed Measurement Period.

“Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Subsidiaries on a Consolidated basis, the sum of: (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all purchase money Indebtedness; (c) the maximum amount available to be drawn under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business); (e) all Attributable Indebtedness; (f) all obligations to purchase, redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Company or any Subsidiary; and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Subsidiary.

“Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations and (c) the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the Company and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period.

“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the most recently completed Measurement Period.

“Consolidated Net Income” means, at any date of determination, the net income (or loss) of the Company and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary gains and extraordinary losses for such Measurement Period, (b) the net income of any Subsidiary during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such Measurement Period, except that the Company’s equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, and (c) any income (or loss) for such Measurement Period of any Person if such Person is not a Subsidiary, except that the Company’s equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Measurement Period to the Company or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Company as described in clause (b) of this proviso).

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote five percent (5%) or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

“Controlled Account” means each deposit account and securities account that is subject to a Qualifying Control Agreement.

“Cost of Acquisition” means, with respect to any Acquisition, as at the date of entering into any agreement therefor, the sum of the following (without duplication): (a) the value of the Equity Interests of the Company or any Subsidiary to be transferred in connection with such Acquisition, (b) the amount of any cash and fair market value of other property (excluding property described in clause (a) and the unpaid principal amount of any debt instrument) given as consideration in connection with such Acquisition, (c) the amount (determined by using the face amount or the amount payable at maturity, whichever is greater) of any Indebtedness incurred, assumed or acquired by the Company or any Subsidiary in connection with such Acquisition, (d) all additional purchase price amounts in the form of earnouts and other contingent obligations that should be recorded on the financial statements of the Company and its Subsidiaries in accordance with GAAP in connection with such Acquisition, (e) all amounts paid in respect of covenants not to compete and consulting agreements that should be recorded on the financial statements of the Company and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with such Acquisition, and (f) the aggregate fair market value of all other consideration given by the Company or any Subsidiary in connection with such Acquisition. For purposes of determining the Cost of Acquisition for any transaction, the Equity Interests of the Company shall be valued in accordance with GAAP.

“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

“DAS Medical” means DAS Medical Holdings, LLC, a Georgia limited liability company.

“DAS Medical Acquisition” means the Acquisition by the Company on the Restatement Date of all outstanding Equity Interests of DAS Medical pursuant to the DAS Medical Acquisition Agreement.

“DAS Medical Acquisition Agreement” means the Securities Purchase Agreement dated as of the Restatement Date by and among the Company, as “Buyer”, DAS Medical, Parallax Investments, LLC, as “Seller”, and the “Purchase Price Beneficiaries” (as defined therein).

“Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.02.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by Applicable Law.

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.

“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or Subsidiary (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” mean lawful money of the United States.

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna.

“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws (including common law), regulations, standards, ordinances, rules, judgments, interpretations, orders, decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to exposure to hazardous materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, certification, registration, approval, identification number, license or other authorization required under any Environmental Law.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“Equity Issuance” means any issuance by any Loan Party or any Subsidiary to any Person of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the conversion of any debt securities to equity or the conversion of any class of equity securities to any other class of equity securities, (c) any issuance of options or warrants relating to its Equity Interests, and (d) any issuance by the Company of its Equity Interests as consideration for a Permitted Acquisition. The term “Equity Issuance” shall not be deemed to include any Disposition.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate or (i) a failure by the Company or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Company or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Default” has the meaning specified in Section 8.01.

“Excluded Property” means, with respect to any Loan Party, (a) unless requested by the Administrative Agent, any owned real property, (b) unless requested by the Administrative Agent, any personal property or leased real property, in each case, which is located outside of the United States, (c) unless requested by the Administrative Agent, any Intellectual Property for which a perfected Lien thereon is not effected either by filing of a UCC financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (d) unless requested by the Administrative Agent, any personal property (other than personal property described in clause (b) above) for which the attachment or perfection of a Lien thereon is not governed by the UCC, (e) the Equity Interests of any Foreign Subsidiary of any Loan Party to the extent not required to be pledged to secure the Secured Obligations pursuant to the Collateral Documents, (f) any property which, subject to the terms of Section 7.02(c), is subject to a Lien of the type described in Section 7.01(h) pursuant to documents that prohibit such Loan Party from granting any other Liens in such property, (g) motor vehicles and other assets subject to certificates of title, letter of credit rights (except to the extent constituting supporting obligations for the Collateral) and commercial tort claims valued at less than $100,000 (in each case, other than to the extent such rights can be perfected by filing a UCC-1 financing statement), (h) any fixtures affixed to any real property to the extent (A) such real property does not constitute Collateral and (B) a security interest in such fixtures may not be perfected by a UCC-1 financing statement, in the jurisdiction of organization of the applicable Loan Party, or (i) executive liability (including directors and officers), employee liability and business interruption insurance and proceeds thereof.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Guarantor failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other “keepwell”, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Existing Credit Agreement” has the meaning specified in the recitals hereto.

“Existing Letter of Credit” means that certain letter of credit No. 68130577 issued by Bank of America for the account of the Company and for the benefit of The Travelers Indemnity Company in the amount of $705,000.00 with an expiration date of January 1, 2022.

“Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings and proceeds of Involuntary Dispositions), indemnity payments and any purchase price adjustments; provided, however, that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance or indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.

“Facility” means the Term Facility or the Revolving Facility, as the context may require.

“Facility Termination Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall have been made).

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or successor version described above) and any intergovernmental agreement (and related fiscal or regulatory legislation, or related official rules or practices) implementing the foregoing.

“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

“Fee Letter” means the letter agreement, dated as of the Restatement Date, between the Company and the Administrative Agent.

“Foreign Lender” means (a) if the Company is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Company is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Company is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.

“FSHCO” means any Subsidiary substantially all of the assets of which constitute the Equity Interests of CFCs.

“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“Funding Indemnity Letter” means a funding indemnity letter, substantially in the form of Exhibit N.

“GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranteed Obligations” has the meaning set forth in Section 10.01.

“Guarantors” means, collectively, (a) the Subsidiaries of the Company as are or may from time to time become parties to this Agreement pursuant to Section 6.13, and (b) with respect to Additional Secured Obligations owing by any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Company.

“Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with each other guaranty delivered pursuant to Section 6.13.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

“Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Articles VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“Increase Effective Date” has the meaning assigned to such term in Section 2.16.

“Increase Joinder” has the meaning assigned to such term in Section 2.16(b).

“Incremental Commitments” means Incremental Revolving Commitments and/or the Incremental Term Commitments.

“Incremental Revolving Commitment” has the meaning assigned to such term in Section 2.16.

“Incremental Term Commitment” has the meaning assigned to such term in Section 2.16.

“Incremental Term Loan Maturity Date” has the meaning assigned to such term in Section 2.16(b).

“Incremental Term Loans” means any loans made pursuant to any Incremental Term Commitments.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)                all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)                all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c)                net obligations of such Person under any Swap Contract;

(d)                all obligations (including, without limitation, earnout obligations) of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more than sixty (60) days after the date on which such trade account was created or incentive, non-compete, consulting, deferred compensation or other similar arrangements);

(e)                indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)                 all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;

(g)                all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h)                all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

“Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitee” has the meaning specified in Section 11.04(b).

“Information” has the meaning specified in Section 11.07(a).

“Intellectual Property” has the meaning set forth in the Security Agreement.

“Intercompany Debt” has the meaning specified in Section 7.02(d).

“Interest Payment Date” means, (a) as to any BSBY Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a BSBY Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, BSBY Floating Rate Loan, or Swingline Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).

“Interest Period” means, as to each BSBY Rate Loan, the period commencing on the date such BSBY Rate Loan is disbursed or converted to or continued as a BSBY Rate Loan and ending on the date one (1), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the Company in its Loan Notice; provided that:

(a)                any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a BSBY Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b)                any Interest Period pertaining to a BSBY Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c)                no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person (including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness of such other Person), or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any Subsidiary.

“IRS” means the United States Internal Revenue Service.

“ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions of Section 6.13.

“Landlord Waiver” means a landlord or warehouse waiver substantially in the form of Exhibit O.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.

“L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder. The initial amount of the L/C Issuer’s Letter of Credit Commitment is set forth on Schedule 2.03. The Letter of Credit Commitment of the L/C Issuer may be modified from time to time by agreement between the L/C Issuer and the Company, and notified to the Administrative Agent.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swingline Lender.

“Lender Party” and “Lender Recipient Party” means collectively, the Lenders, the Swing Line Lender and the L/C Issuer.

“Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Company and the Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.

“Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letter of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

“Letter of Credit Fee” has the meaning specified in Section 2.03(m).

“Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $10,000,000 and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property and any financing lease having substantially the same economic effect as any of the foregoing).

“Loan” means an extension of credit by a Lender to the Company under Article II in the form of a Term Loan, a Revolving Loan or a Swingline Loan.

“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each Joinder Agreement, (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 and (i) all other certificates, agreements, documents and instruments executed and delivered, in each case, by or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement) and any amendments, modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other Loan Document; provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this Agreement, the Guaranty and the Collateral Documents.

“Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of BSBY Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.

“Loan Parties” means, collectively, the Company and each Guarantor.

“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or financial condition of the Company and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“Material Contract” means, with respect to any Person, each contract or agreement (a) to which such Person is a party involving aggregate consideration payable to or by such Person of $1,000,000 or more in any year or (b) otherwise material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person or (c) any other contract, agreement, permit or license, written or oral, of the Company and its Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew by any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

“Maturity Date” means (a) with respect to the Revolving Facility, December 22, 2026, (b) with respect to the Term Facility, December 22, 2026 and (c) with respect to any Incremental Term Loans, the Incremental Term Loan Maturity Date; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

“Measurement Period” means, at any date of determination, the most recently completed four (4) fiscal quarters of the Company.

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Moulded Fibre Disposition” has the meaning specified in Section 7.04(d).

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Company or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Company or any Subsidiary in respect of any Disposition, Equity Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any Disposition or any Involuntary Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Company or any Subsidiary in any Disposition, Equity Issuance or Involuntary Disposition.

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Extension Notice Date” has the meaning specified in Section 2.03(b).

“Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b).

“Note” means a Term Note or a Revolving Note, as the context may require.

“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit R or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.

“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Officer’s Certificate” means a certificate substantially the form of Exhibit L or any other form approved by the Administrative Agent.

“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

“Outstanding Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.

“Participant” has the meaning specified in Section 11.06(d).

“Participant Register” has the meaning specified in Section 11.06(d).

“Patriot Act” has the meaning specified in Section 11.19.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company and any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate has any liability and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Permitted Acquisition” means an Acquisition by a Loan Party (the Person or division, line of business or other business unit of the Person to be acquired in such Acquisition shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Company and its Subsidiaries pursuant to the terms of this Agreement, in each case so long as:

(a)                no Default shall then exist or would exist after giving effect thereto;

(b)                the Loan Parties shall demonstrate to the reasonable satisfaction of the Administrative Agent that, after giving effect to the Acquisition on a Pro Forma Basis, the Loan Parties are in Pro Forma Compliance;

(c)                the Administrative Agent, on behalf of the Secured Parties, shall have received (or shall receive in connection with the closing of such Acquisition) a first priority perfected security interest in all property (including, without limitation, Equity Interests, but excluding Excluded Property) acquired with respect to the Target in accordance with the terms of Section 6.14 and the Target, if a Person, shall have executed a Joinder Agreement in accordance with the terms of Section 6.13;

(d)                the Administrative Agent and the Lenders shall have received (i) not less than five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the consummation of any Permitted Acquisition, a Permitted Acquisition Certificate, executed by a Responsible Officer of the Company certifying that such Permitted Acquisition complies with the requirements of this Agreement; and (ii) not more than ten (10) days after the consummation of any such Acquisition (or such later date as may be agreed by the Administrative Agent) (A) a description of the material terms of such Acquisition, (B) audited financial statements (or, if unavailable, management-prepared financial statements) of the Target for its two most recent fiscal years and for any fiscal quarters ended within the fiscal year to date, and (C) Consolidated projected income statements of the Company and its Subsidiaries (giving effect to such Acquisition);

(e)                the Target shall have earnings before interest, taxes, depreciation and amortization for the four (4) fiscal quarter period prior to the acquisition date in an amount greater than $1.00;

(f)                 such Acquisition shall not be a “hostile” Acquisition and shall have been approved by the board of directors (or equivalent) and/or shareholders (or equivalent) of the applicable Loan Party and the Target;

(g)                after giving effect to such Acquisition and any Borrowings made in connection therewith, the aggregate principal amount of Revolving Loans available to be borrowed under Section 2.01(b) hereof shall be at least $20,000,000; and

(h)                the Cost of Acquisition paid by the Loan Parties and their Subsidiaries (i) in connection with any single Acquisition shall not exceed $20,000,000 and (ii) for all Acquisitions made during the term of this Agreement shall not exceed $60,000,000; provided, further, that any earnouts or similar deferred or contingent obligations of any Loan Party in connection with such Acquisition shall be subordinated to the Obligations in a manner and to the extent reasonably satisfactory to the Administrative Agent.

“Permitted Acquisition Certificate” means a certificate substantially the form of Exhibit F or any other form approved by the Administrative Agent.

“Permitted Liens” has the meaning set forth in Section 7.01.

“Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to the Company or any Subsidiary; provided, that if the transferor of such property is a Loan Party, then the transferee thereof must be a Loan Party; (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Company and its Subsidiaries; (e) the sale or disposition of Cash Equivalents for fair market value; and (f) the Moulded Fibre Disposition.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or any ERISA Affiliate or any such Plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Platform” has the meaning specified in Section 6.02(p).

“Pledged Equity” has the meaning specified in the Security Agreement.

“Pro Forma Basis” and “Pro Forma Effect” means, for any Disposition of all or substantially all of a division or a line of business or for any Acquisition, whether actual or proposed, for purposes of determining compliance with the financial covenants set forth in Section 7.11, each such transaction or proposed transaction shall be deemed to have occurred on and as of the first day of the relevant Measurement Period, and the following pro forma adjustments shall be made:

(a)                in the case of an actual or proposed Disposition, all income statement items (whether positive or negative) attributable to the line of business or the Person subject to such Disposition shall be excluded from the results of the Company and its Subsidiaries for such Measurement Period;

(b)                in the case of an actual or proposed Acquisition, income statement items (whether positive or negative) attributable to the property, line of business or the Person subject to such Acquisition shall be included in the results of the Company and its Subsidiaries for such Measurement Period;

(c)                interest accrued during the relevant Measurement Period on, and the principal of, any Indebtedness repaid or to be repaid or refinanced in such transaction shall be excluded from the results of the Company and its Subsidiaries for such Measurement Period; and

(d)                any Indebtedness actually or proposed to be incurred or assumed in such transaction shall be deemed to have been incurred as of the first day of the applicable Measurement Period, and interest thereon shall be deemed to have accrued from such day on such Indebtedness at the applicable rates provided therefor (and in the case of interest that does or would accrue at a formula or floating rate, at the rate in effect at the time of determination) and shall be included in the results of the Company and its Subsidiaries for such Measurement Period.

“Pro Forma Compliance” means, with respect to any transaction, that such transaction does not cause, create or result in a Default after giving Pro Forma Effect, based upon the results of operations for the most recently completed Measurement Period to (a) such transaction and (b) all other transactions which are contemplated or required to be given Pro Forma Effect hereunder that have occurred on or after the first day of the relevant Measurement Period.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Public Lender” has the meaning specified in Section 6.02(p).

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

“QFC Credit Support” has the meaning specified in Section 11.21.

“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Qualifying Control Agreement” means an agreement, among a Loan Party, a depository institution or securities intermediary and the Administrative Agent, which agreement is in form and substance acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described therein.

“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“Reduction Amount” has the meaning set forth in Section 2.05(b)(viii).

“Register” has the meaning specified in Section 11.06(c).

“Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.

“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve Systems or the Federal Reserve Bank of New York, or any successor thereto.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.

“Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments, Lenders having Total Credit Exposures with respect to such Class representing at least 66-2/3% of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.

“Required Lenders” means, at any time, at least two (2) Lenders having Total Credit Exposures representing at least 66-2/3% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination; provided further that, this definition is subject to Section 3.03.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Rescindable Amount” has the meaning as defined in Section 2.12(b)(ii).

“Resignation Effective Date” has the meaning set forth in Section 9.06(a).

“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(b), the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.

“Restatement Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of the Company or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the Company or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, and (d) any payment with respect to any earnout obligation.

“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of BSBY Rate Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).

“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Company pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving Commitment of all of the Revolving Lenders on the Restatement Date shall be $90,000,000.

“Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

“Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.

“Revolving Loan” has the meaning specified in Section 2.01(b).

“Revolving Note” means a promissory note made by the Company in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit G.

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.

“Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Loan Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Secured Cash Management Agreement” means any Cash Management Agreement between the any Loan Party and any Cash Management Bank.

“Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract required by or not prohibited under Article VI or VII between any Loan Party and any Hedge Bank.

“Secured Obligations” means all Obligations and all Additional Secured Obligations.

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.

“Securities Act” means the Securities Act of 1933, including all amendments thereto and regulations promulgated thereunder.

“Security Agreement” means the security and pledge agreement, dated as of the Restatement Date, executed in favor of the Administrative Agent by each of the Loan Parties.

“Securitization Transaction” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.

“SOFR Adjustment” with respect to Daily Simple SOFR means 0.26161% (26.161 basis points); and with respect to Term SOFR means 0.11448% (11.448 basis points) for an interest period of one-month’s duration, 0.26161% (26.161 basis points) for an interest period of three-months’ duration, 0.42826% (42.826 basis points) for an interest period of six-months’ duration, and 0.71513% (71.513 basis points) for an interest period of twelve–months’ duration.

“Solvency Certificate” means a solvency certificate substantially in the form of Exhibit I.

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Loan Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a direct or indirect Subsidiary or Subsidiaries of the Company.

“Successor Rate” has the meaning specified in Section 3.03(b).

“Supported QFC” has the meaning specified in Section 11.21.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.

“Swingline Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule 2.01 hereof or (b) if such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after the Restatement Date, the amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section 11.06(c).

“Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.

“Swingline Loan” has the meaning specified in Section 2.04(a).

“Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit J or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.

“Swingline Sublimit” means an amount equal to the lesser of (a) the Revolving Facility and (b)(i) $0, during such times when Bank of America is the sole Lender, or (ii) $5,000,000, during such times when there are two or more Lenders. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.

“Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds but are not otherwise included in the definition of “Indebtedness” or as a liability on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Target” has the meaning set forth in the definition of “Permitted Acquisition.”

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of BSBY Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).

“Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the Company pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Term Commitment of all of the Term Lenders on the Restatement Date shall be $40,000,000.

“Term Facility” means, at any time, (a) on or prior to the Restatement Date, the aggregate amount of the Term Commitments at such time and (b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.

“Term Lender” means (a) at any time on or prior to the Restatement Date, any Lender that has a Term Commitment at such time and (b) at any time after the Restatement Date, any Lender that holds Term Loans at such time.

“Term Loan” means an advance made by any Term Lender under the Term Facility.

“Term Note” means a promissory note made by the Company in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit K.

“Term SOFR” means, for the applicable corresponding Interest Period of BSBY (or if any Interest Period does not correspond to an interest period applicable to SOFR, the closest corresponding interest period of SOFR, and if such interest period of SOFR corresponds equally to two Interest Periods of BSBY, the corresponding interest period of the shorter duration shall be applied) the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Threshold Amount” means $2,000,000.

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and Outstanding Amount of all Term Loans of such Lender at such time.

“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations.

“Type” means, with respect to a Loan, its character as a Base Rate Loan, a BSBY Daily Floating Rate Loan or a BSBY Rate Loan.

“UCC” means the Uniform Commercial Code as in effect in the Commonwealth of Massachusetts; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the Commonwealth of Massachusetts, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time).

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“United States” and “U.S.” mean the United States of America.

“Unreimbursed Amount” has the meaning specified in Section 2.03(f).

“U.S. Loan Party” means any Loan Party that is organized under the laws of the United States, any state thereof or the District of Columbia.

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regimes” has the meaning specified in Section 11.21.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).

“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of such contingency.

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

1.02           Other Interpretive Provisions.

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)                The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b)                In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c)                Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(d)                Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

1.03           Accounting Terms.

(a)                Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest  comprising a portion of fixed rent payable under any operating lease, in each case to the extent that such liability, asset, amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC Topic 825 “Financial Instruments” (or any other financial accounting standard having a similar result or effect) to value any Indebtedness of the Company or any Subsidiary at “fair value”, as defined therein. For purposes of determining the amount of any outstanding Indebtedness, no effect shall be given to any election by the Company to measure an item of Indebtedness using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as FASB 159) or any similar accounting standard).

(b)                Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c)                Pro Forma Treatment. Each Disposition of all or substantially all of a line of business, and each Acquisition, by the Company and its Subsidiaries that is consummated during any Measurement Period shall, for purposes of determining compliance with the financial covenants set forth in Section 7.11 and for purposes of determining the Applicable Rate, be given Pro Forma Effect as of the first day of such Measurement Period.

1.04           Rounding.

Any financial ratios required to be maintained by the Company and its Subsidiaries pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05           Times of Day.

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

1.06           Letter of Credit Amounts.

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.07           Interest Rates.

The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definitions of “BSBY Daily Floating Rate” of “BSBY Rate” or with respect to any rate (including, for the avoidance of doubt, the selection  of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) or the effect of any of the foregoing, or of any Conforming Changes.

1.08           UCC Terms.

Terms defined in the UCC in effect on the Restatement Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.

Article II

COMMITMENTS AND CREDIT EXTENSIONS

2.01           Loans.

(a)                Term Borrowing. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan to the Company, in Dollars, on the Restatement Date in an amount not to exceed such Term Lender’s Applicable Percentage of the Term Facility. The Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of the Term Facility. Term Borrowings repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans, BSBY Daily Floating Rate Loans or BSBY Rate Loans, as further provided herein; provided, however, any Term Borrowing made on the Restatement Date or any of the three (3) Business Days following the Restatement Date shall be made as a Base Rate Loan unless the Company delivers a Funding Indemnity Letter not less than two (2) Business Days prior to the date of such Term Borrowing.

(b)                Revolving Borrowings. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Company, in Dollars, from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the Revolving Facility and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment. Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Company may borrow Revolving Loans, prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Loans may be Base Rate Loans, BSBY Daily Floating Rate Loans or BSBY Rate Loans, as further provided herein; provided, however, any Revolving Borrowings made on the Restatement Date or any of the three (3) Business Days following the Restatement Date shall be made as Base Rate Loans unless the Company delivers a Funding Indemnity Letter not less than two (2) Business Days prior to the date of such Revolving Borrowing.

2.02           Borrowings, Conversions and Continuations of Loans.

(a)                Notice of Borrowing. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of BSBY Rate Loans shall be made upon the Company’s irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or (ii) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (A) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of BSBY Rate Loans or of any conversion of BSBY Rate Loans to Base Rate Loans, and (B) on the requested date of any Borrowing of Base Rate Loans or BSBY Daily Floating Rate Loans; provided, however, that if the Company wishes to request BSBY Rate Loans having an Interest Period other than one (1), three (3) or six (6) months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m. three (3) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Company (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of BSBY Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, in connection with any conversion or continuation of a Term Loan, if less, the entire principal thereof then outstanding). Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans or BSBY Daily Floating Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation of a Term Loan, if less, the entire principal thereof then outstanding). Each Loan Notice and each telephonic notice shall specify (I) the applicable Facility and whether the Company is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Loans, as the case may be, under such Facility, (II) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (III) the principal amount of Loans to be borrowed, converted or continued, (IV) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (V) if applicable, the duration of the Interest Period with respect thereto. If the Company fails to specify a Type of Loan in a Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable BSBY Rate Loans. If the Company requests a Borrowing of, conversion to, or continuation of BSBY Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a BSBY Rate Loan.

(b)                Advances. Following receipt of a Loan Notice for a Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Company, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Company in like funds as received by the Administrative Agent either by (i) crediting the account of the Company on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Company; provided, however, that if, on the date a Loan Notice with respect to a Revolving Borrowing is given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Company as provided above.

(c)                BSBY Rate Loans. Except as otherwise provided herein, a BSBY Rate Loan may be continued or converted only on the last day of an Interest Period for such BSBY Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as BSBY Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the outstanding BSBY Rate Loans be converted immediately to Base Rate Loans.

(d)                Interest Rates. Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Company and the Lenders in the absence of manifest error.

(e)                Interest Periods. After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than three (3) Interest Periods in effect in respect of the Term Facility. After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than three (3) Interest Periods in effect in respect of the Revolving Facility.

(f)                 Cashless Settlement Mechanism. Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Company, the Administrative Agent and such Lender.

(g)                Conforming Changes. With respect to BSBY, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.

2.03           Letters of Credit.

(a)                The Letter of Credit Commitment. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01, the Company may request that the L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03, issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars for its own account or the account of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving Commitments.

(b)                Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.

(i)                 To request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the Company shall deliver (or transmit by electronic communication, if arrangements for doing so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (d) of this Section 2.03), the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter of Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested by the L/C Issuer, the Company also shall submit a letter of credit application and reimbursement agreement on the L/C Issuer’s standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application and reimbursement agreement or other agreement submitted by the Company to, or entered into by the Company with, the L/C Issuer relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(ii)               If the Company so requests in any applicable Letter of Credit Application (or the amendment of an outstanding Letter of Credit), the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit shall permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon by the Company and the L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiration date not later than the date permitted pursuant to Section 2.03(d); provided, that the L/C Issuer shall not (A) permit any such extension if (1) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its extended form under the terms hereof (except that the expiration date may be extended to a date that is no more than one (1) year from the then-current expiration date) or (2) it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent that the Required Class Lenders have elected not to permit such extension or (B) be obligated to permit such extension if it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the Company that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

(iii)             If the Company so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Class Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing L/C Issuer not to permit such reinstatement.

(c)                Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (w) the aggregate amount of the outstanding Letters of Credit issued by the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not exceed the L/C Sublimit, (y) the Revolving Exposure of any Lender shall not exceed its Revolving Commitment and (z) the total Revolving Exposure shall not exceed the total Revolving Commitments.

(i)                 The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

(A)              any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Date and which the L/C Issuer in good faith deems material to it;

(B)              the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;

(C)              except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;

(D)              any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or

(E)               the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

(ii)               The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

(d)                Expiration Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (i) the date twelve (12) months after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by amendment, twelve (12) months after the then-current expiration date of such Letter of Credit) and (ii) the date that is five (5) Business Days prior to the Maturity Date.

(e)                Participations.

(i)                 By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof), and without any further action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from the L/C Issuer, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this clause (e) in respect of Letters of Credit is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments.

(ii)               In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, unconditionally and irrevocably agrees to pay to the Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage of each L/C Disbursement made by the L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent to the Revolving Lenders pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by the Company or at any time after any reimbursement payment is required to be refunded to the Company for any reason, including after the Maturity Date. Such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.03), and the Administrative Agent shall promptly pay to the L/C Issuer the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Company pursuant to Section 2.03(f), the Administrative Agent shall distribute such payment to the L/C Issuer or, to the extent that the Revolving Lenders have made payments pursuant to this clause (e) to reimburse the L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any payment made by a Lender pursuant to this clause (e) to reimburse the L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse such L/C Disbursement.

(iii)             Each Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Lender’s Commitment is amended pursuant to the operation of Section 2.16, as a result of an assignment in accordance with Section 11.06 or otherwise pursuant to this Agreement.

(iv)              If any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e)(vi) shall be conclusive absent manifest error.

(f)                 Reimbursement. If the L/C Issuer shall make any L/C Disbursement in respect of a Letter of Credit, the Company shall reimburse the L/C Issuer in respect of such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 12:00 noon on (i) the Business Day that the Company receives notice of such L/C Disbursement, if such notice is received prior to 10:00 a.m. or (ii) the Business Day immediately following the day that the Company receives such notice, if such notice is not received prior to such time, provided that, if such L/C Disbursement is greater than or equal to $500,000, the Company may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.02 or Section 2.04 that such payment be financed with a Borrowing of a Base Rate Loan, BSBY Daily Floating Rate Loan or Swingline Loan in an equivalent amount and, to the extent so financed, the Company’s obligation to make such payment shall be discharged and replaced by the resulting Borrowing of a Base Rate Loan, BSBY Floating Rate Loan or Swingline Loan. If the Company fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable L/C Disbursement, the payment then due from the Company in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable Percentage thereof. Promptly upon receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the Unreimbursed Amount pursuant to Section 2.03(e)(ii), subject to the amount of the unutilized portion of the aggregate Revolving Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(g)                Obligations Absolute. The Company’s obligation to reimburse L/C Disbursements as provided in clause (f) of this Section 2.03 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:

(i)                 any lack of validity or enforceability of this Agreement, any other Loan Document or any Letter of Credit, or any term or provision herein or therein;

(ii)               the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii)             any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement in such draft or other document being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv)              waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Company or any waiver by the L/C Issuer which does not in fact materially prejudice the Company;

(v)                honor of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft;

(vi)              any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

(vii)            payment by the L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(viii)          any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder.

(h)                Examination. The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Company’s instructions or other irregularity, the Company will immediately notify the L/C Issuer. The Company shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

(i)                 Liability. None of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any consequence arising from causes beyond the control of the L/C Issuer; provided that the foregoing shall not be construed to excuse the L/C Issuer from liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Company to the extent permitted by Applicable Law) suffered by the Company that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination, and that:

(i)                 The L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified true copy marked as such or waive a requirement for its presentation;

(ii)               The L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to any non-documentary condition in such Letter of Credit;

(iii)             The L/C Issuer shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit; and

(iv)              this sentence shall establish the standard of care to be exercised by the L/C Issuer when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by Applicable Law, any standard of care inconsistent with the foregoing).

Without limiting the foregoing, none of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of (A) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (B) the L/C Issuer declining to take-up documents and make payment, (C) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor, (D) following the Company’s waiver of discrepancies with respect to such documents or request for honor of such documents or (E) the L/C Issuer retaining proceeds of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party claim notified to the L/C Issuer.

(j)                 Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Company when a Letter of Credit is issued by it (including any such agreement applicable to the Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Company for, and the L/C Issuer’s rights and remedies against the Company shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(k)                Benefits. The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer.

(l)                 Letter of Credit Fees. The Company shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage (i) a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) payable on the first Business Day following the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit and (ii) accrued through and including the last day of each calendar quarter in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Class Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

(m)              Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Company shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each Letter of Credit, at a rate separately agreed upon between the Company and the L/C Issuer, computed on the amount available to be drawn under such Letter of Credit, and payable as separately agreed upon between the Company and the L/C Issuer, and (ii) with respect to any amendment of a Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Company and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment or as otherwise separately agreed upon between the Company and the L/C Issuer. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Company shall pay directly to the L/C Issuer for its own account, in Dollars the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(n)                Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the time allowed by Applicable Laws or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and the Company in writing of such demand for payment if the L/C Issuer has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Company of its obligation to reimburse the L/C Issuer and the Lenders with respect to any such L/C Disbursement.

(o)                Interim Interest. If the L/C Issuer for any standby Letter of Credit shall make any L/C Disbursement, then, unless the Company shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Company reimburses such L/C Disbursement, at the rate per annum then applicable to Base Rate Loans; provided that if the Company fails to reimburse such L/C Disbursement when due pursuant to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest accrued pursuant to this clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the date of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer shall be for account of such Lender to the extent of such payment.

(p)                Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by written agreement between the Company, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of the L/C Issuer. At the time any such replacement shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.03(m). From and after the effective date of any such replacement, (i) the successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor or any previous L/C Issuer, or such successor and all previous L/C Issuers, as the context shall require. After the replacement of the L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

(q)                Cash Collateralization.

(i)                 If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Required Class Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with L/C Obligations representing at least 66-2/3% of the total L/C Obligations) demanding the deposit of Cash Collateral pursuant to this clause (q), the Company shall immediately deposit into an account established and maintained on the books and records of the Administrative Agent (the “Collateral Account”) an amount in cash equal to 105% of the total L/C Obligations as of such date plus any accrued and unpaid interest thereon, provided that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Company described in clause (f) of Section 8.01. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Company under this Agreement. In addition, and without limiting the foregoing or clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after the expiration date specified in said clause (d), the Company shall immediately deposit into the Collateral Account an amount in cash equal to 105% of such L/C Obligations as of such date plus any accrued and unpaid interest thereon.

(ii)               The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Company’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be applied by the Administrative Agent to reimburse the L/C Issuer for L/C Disbursements for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the L/C Obligations at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy other obligations of the Company under this Agreement. If the Company is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three (3) Business Days after all Events of Default have been cured or waived.

(r)                 Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Company shall be obligated to reimburse, indemnify and compensate the L/C Issuer hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issued solely for the account of the Company. The Company irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such Subsidiaries.

(s)                 Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(t)                 Existing Letter of Credit. On the Restatement Date, (i) the Existing Letter of Credit shall automatically and without further action by the parties thereto be deemed continued as a Letter of Credit under this Agreement pursuant to this Section 2.03 and subject to the provisions hereof as if each such Existing Letter of Credit had been issued on the Restatement Date, and (ii) all liabilities of the Company and the other Loan Parties with respect to such Existing Letter of Credit shall constitute Obligations hereunder.

2.04           Swingline Loans.

(a)                The Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion make loans to the Company (each such loan, a “Swingline Loan”). Each such Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Company, in Dollars, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed the Revolving Facility at such time, and (B) the Revolving Exposure of any Revolving Lender at such time shall not exceed such Lender’s Revolving Commitment, (ii) the Company shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the Applicable Rate. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.

(b)                Borrowing Procedures. Each Swingline Borrowing shall be made upon the Company’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by: (ii) telephone or (iii) a Swingline Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Swingline Lender and the Administrative Agent of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (A) the amount to be borrowed, which shall be a minimum of $500,000, and (B) the requested date of the Borrowing (which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing (1) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (2) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender may make the amount of its Swingline Loan available to the Company.

(c)                Refinancing of Swingline Loans.

(i)                 The Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Revolving Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Company with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.

(ii)               Notwithstanding anything to the contrary in the foregoing, if for any reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii)             If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be conclusive absent manifest error.

(iv)              Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swingline Loans, together with interest as provided herein.

(d)                Repayment of Participations.

(i)                 At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Swingline Lender.

(ii)               If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e)                Interest for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Company for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.

(f)                 Payments Directly to Swingline Lender. The Company shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.

2.05           Prepayments.

(a)                Optional.

(i)                 The Company may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Term Loans and Revolving Loans in whole or in part without premium or penalty subject to Section 3.05; provided that, unless otherwise agreed by the Administrative Agent, (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of BSBY Rate Loans and (2) on the date of prepayment of Base Rate Loans or BSBY Daily Floating Rate Loans; (B) any prepayment of BSBY Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans or BSBY Daily Floating Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if BSBY Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a BSBY Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the principal repayment installments thereof in inverse order of maturity. Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.

(ii)               The Company may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that, unless otherwise agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess hereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(b)                Mandatory.

(i)                 Dispositions and Involuntary Dispositions. The Company shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds received by the Company or any Subsidiary from all Dispositions (other than Permitted Transfers) and Involuntary Dispositions within ten (10) days of the date of such Disposition or Involuntary Disposition; provided, however, that so long as no Event of Default shall have occurred and be continuing, such Net Cash Proceeds shall not be required to be so applied (A) until the aggregate amount of the Net Cash Proceeds derived from any such Disposition or Involuntary Disposition in any fiscal year of the Company is equal to or greater than $5,000,000, or (B) at the election of the Company (as notified by the Company to the Administrative Agent on or prior to the date of such Disposition or Involuntary Disposition) to the extent such Loan Party or such Subsidiary reinvests substantially all or any portion of such Net Cash Proceeds in the purchase of like assets or repair, upgrade or replacement of the disposed of assets within two hundred seventy (270) days after the receipt of such Net Cash Proceeds; provided that, if such Net Cash Proceeds shall not have been so reinvested in the prescribed time, such Net Cash Proceeds shall be promptly applied to prepay the Loans and/or Cash Collateralize the L/C Obligations, except to the extent payment is excepted pursuant to subsection (A) above.

(ii)               Debt Issuance. Immediately upon the receipt by the Company or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Company shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.

(iii)             Extraordinary Receipts. Immediately upon receipt by the Company or any Subsidiary of any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii), (iii) or (iv) of this Section 2.05(b), the Company shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate principal amount equal to 50% of all Net Cash Proceeds received therefrom.

(iv)              Application of Payments. Each prepayment of Loans pursuant to the foregoing provisions of clauses (i) through (iii) of this Section 2.05(b) shall be applied, first, to the repayment of principal installments of the Term Loan in inverse order of maturity, but specifically excluding the final principal installment on the Maturity Date and, second, to the Revolving Facility in the manner set forth in clause (vi) of this Section 2.05(b). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.

(v)                Revolving Outstandings. If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Company shall immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such time.

(vi)              Application of Other Payments. Except as otherwise provided in Section 2.15, prepayments of the Revolving Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clauses (i), (ii) or (iii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swingline Loans and Revolving Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, Cash Collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Company for use in the ordinary course of its business, and the Revolving Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Company or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.

Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans, second to BSBY Daily Floating Rate Loans and third to BSBY Rate Loans in inverse order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.

2.06           Termination or Reduction of Commitments.

(a)                Optional. The Company may, upon notice to the Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Company shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, (C) the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Letter of Credit Sublimit, or (D) the Revolving Facility if, after giving effect thereto, the aggregate Revolving Commitments would be less than $50,000,000 so long as any portion of the Term Loan is outstanding.

(b)                Mandatory.

(i)                 The aggregate Term Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing.

(ii)               If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.

(c)                Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving Commitment under this Section 2.06. Upon any reduction of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving Percentage of such Reduction Amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination.

2.07           Repayment of Loans.

(a)                Term Loans. The Company shall repay to the Term Lenders the aggregate principal amount of all Term Loans outstanding in equal quarterly installments of $1,000,000 (the amounts of which installments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) on the last day of March, June, September and December of each year, commencing March 31, 2022, unless accelerated sooner pursuant to Section 8.02; provided, however, that (i) the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date for the Term Facility and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date, (ii) if any principal repayment installment to be made by the Company (other than principal repayment installments on BSBY Rate Loans) shall come due on a day other than a Business Day, such principal repayment installment shall be due on the next succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be and (iii) if any principal repayment installment to be made by the Company on a BSBY Rate Loan shall come due on a day other than a Business Day, such principal repayment installment shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such principal repayment installment into another calendar month, in which event such principal repayment installment shall be due on the immediately preceding Business Day.