Exhibit 99.1

ORBITAL ENERGY GROUP, INC. ANNOUNCES ACQUISITION OF FRONT LINE POWER CONSTRUCTION LLC

Synergistic Acquisition Expected to be Immediately Accretive to Revenue and Earnings and Completes OEG’s Transformation into a Full-Service Infrastructure Service Provider

HOUSTON, (November 17, 2021) — Orbital Energy Group, Inc. (NASDAQ: OEG) (“OEG”) today announced it has acquired 100% of Front Line Power Construction LLC (“Front Line,” “FLP,” or “Company”), a Houston-based full-service electrical infrastructure service company that provides construction, maintenance, and emergency response services for customers since 2010.

The transaction will immediately add significant revenues and earnings to OEG. For the calendar year 2020, FLP’s audited results include gross revenues of approximately $58.8 million. Acquiring Front Line moves OEG into a cash flow & EBITDA positive position for 2022, with expected revenues approaching $325,000,000 and EBITDA of 10% or more.

Approximately 90% of FLP’s revenues are under multi-year master service agreements with electric utility and telecommunication customers. FLP’s excellent track record of safely executing projects for customers has resulted in a revenue compound annual growth rate (CAGR) and EBITDA growth of more than 20% over the last four years.

FLP specializes in installing and maintaining electrical distribution systems and substation infrastructure throughout Texas. The Company is led by Kurt Johnson, who has over 20 years of experience in the electric power, telecommunications, and industrial sectors. The Company serves investor owned utilities, electric cooperatives, telecommunications, and industry customers and has approximately 185 employees.

Front Line will become a wholly-owned subsidiary of OEG. The senior management team, including CEO & Founder, Kurt Johnson, will remain with the company. OEG expects no organizational changes to FLP’s successful, long-term operations.

“Front Line Power is the ideal acquisition to serve as our electric power infrastructure platform and to profitably build revenues both organically and through synergistic acquisitions going forward. Further, it enhances OEG’s transformation into a full-service energy infrastructure services platform.” Stated Jim O’Neil, OEG’s Chief Executive Officer and Vice-Chairman, “FLP’s remarkable growth is a testament to its ability to proactively provide customers with a comprehensive range of solutions in a market that has significant momentum driven by aging infrastructure, a transition to renewable generation, and in a state, Texas, that has experienced significant population growth.”

The Membership Unit Purchase Agreement calls for purchase of the outstanding membership interest in FLP for a gross purchase price of $218.4 million. The purchase is being funded by a $105.0 million 5-year Term Loan, 2-year restricted shares of OEG common stock, and an approximate $85.0 million Promissory Note held by the Sellers.

The term loan is being provided by a consortium of Irradiant Partners, Angelo Gordon, and Barings. Orbital Energy Group was advised by Piper Sandler & Co. FLP was advised and represented in this transaction by Romanchuk & Co.

“Of the many acquisitions in which I have been directly involved in this industry during my career, this transaction with Front Line Power ranks as one of the best. Kurt’s leadership style and core values, strategic mindset, and care for his employees and customers coupled with the outstanding job he has done building Front Line Power is highly valued by myself and my board of directors,” O’Neil continued. “I look forward to working with Kurt to advance OEG, through its new electric power infrastructure platform, Front Line, to expand our service offerings, geographic footprint, and customer base, and to create shareholder value for years to come.”

“Front Line has reached a level where it is important for me to partner with OEG and a proven industry leader like Jim O’Neil to provide long term opportunities for my employees as well as enable us to meet the increasing demands of our customers,” explained FLP’s Founder & CEO, Kurt Johnson. “As OEG’s electrical power platform, I look forward to teaming with Jim, who shares my values and vision, to take our company to the next level.”

About Orbital

Orbital Energy Group, Inc. (Nasdaq: OEG) is creating a diversified energy services platform through the acquisition and development of innovative companies. Orbital Energy's group of businesses includes Orbital Power Services, Orbital Solar Services, Orbital Telecom Services and Orbital Gas Systems.

Orbital Power Services provides engineering, construction, maintenance and emergency response solutions to the power, utilities, and midstream markets.

Orbital Solar Services provides engineering, procurement, and construction ("EPC") expertise in the renewable energy industry and established relationships with solar developers and panel manufacturers in the utility scale solar market.

Orbital Telecom Services, operating as Gibson Technical Services, has nationwide locations equipped to effectively support multi-vendor OEM technology environments and outside plant construction operations on an as-needed basis with specialized services in broadband, wireless, outside plant and building technologies, including healthcare. Orbital Gas Systems is a 30-year leader in innovative gas solutions, serving the energy, power and processing markets through the design, installation and commissioning of industrial gas sampling, measurement, and delivery systems.

As a publicly traded company, Orbital Energy is dedicated to maximizing shareholder value. But most important, our commitment to conduct business with a high level of integrity, respect, and philanthropic dedication allows the organization to make a difference in the lives of their customers, employees, investors, and global community.

For more information please visit: www.orbitalenergygroup.com

Forward Looking Statements

This press release contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 and Private Securities Litigation Reform Act, as amended, including those relating to the expected use of proceeds. These statements may be identified by the use of forward-looking expressions, including, but not limited to, “expect,” “anticipate,” “intend,” “plan,” “believe,” “estimate,” “potential,” “predict,” “project,” “should,” “would” and similar expressions and the negatives of those terms. These statements relate to future events and involve known and unknown risks, uncertainties and other factors which may cause actual results, performance, or achievements to be materially different from any results, performance or achievements expressed or implied by the forward-looking statements. Such factors include the risk factors set forth in the Company’s filings with the SEC, including, without limitation, its Annual Report on Form 10-K for the year ended December 31, 2020, its periodic reports on Form 10-Q, and its Current Reports on Form 8-K filed in 2020 and 2021, as well as the risks identified in the shelf registration statement and the prospectus supplement relating to the offering. Prospective investors are cautioned not to place undue reliance on such forward-looking statements, which speak only as of the date of this press release. Orbital undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.

Investor Relations:
Three Part Advisors

John Beisler or Steven Hooser

817-310-8776
investors@orbitalenergygroup.com      

Exhibit 99.2

MEMBERSHIP UNIT PURCHASE AGREEMENT

This MEMBERSHIP UNIT PURCHASE AGREEMENT (this “Agreement”), dated as of November 17, 2021, is entered into by and among Kurt A. Johnson, Jr. (the “Active Seller”) and Tidal Power Group LLC, a Texas limited liability company (the “Passive Seller” and together with the Active Seller, collectively, the “Sellers”), and Orbital Energy Group, Inc., a Colorado corporation (“Buyer”). Certain capitalized terms used herein are defined on Exhibit A hereto, which is hereby incorporated into this Agreement by reference and made a part hereof.

RECITALS

WHEREAS, Sellers, collectively, own one hundred percent (100%) of the issued and outstanding membership units (the “Units”) of Front Line Power Construction, LLC, a Texas limited liability company (“Company”); and

WHEREAS, Sellers wish to sell and assign to Buyer, and Buyer wishes to purchase and assume from Sellers, the Purchased Units (as defined herein), subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I
PURCHASE AND SALE

Section 1.01    Purchase and Sale of Purchased Units. Buyer is agreeing to buy, and Sellers are agreeing to sell the Purchased Units on a “cash free/debt free” basis. Subject to the terms and conditions set forth herein, each Seller shall (and effective upon the Closing does hereby) sell, assign, transfer, convey and deliver to Buyer, and Buyer shall (and effective upon the Closing does hereby) purchase from each such Seller, all of such Seller’s right, title and interest in the Purchased Units standing in such Seller’s name on the Closing Date, free and clear of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance (“Encumbrance”), other than any restriction imposed by or arising from (i) any federal or state securities Laws, (ii) the certificate of formation, operating agreement or other organizational documents of Company, or (iii) this Agreement.

Section 1.02    Purchase Price.

(a)    The aggregate purchase price for the Purchased Units (the “Purchase Price”) shall be the sum of (i) Two Hundred and Eighteen Million, Four Hundred Thousand and No/100 Dollars ($218,400,000.00), and (ii) the capital expenditures listed in Section 1.02(a) of the Disclosure Schedules, subject to adjustment as provided herein.

(b)    At Closing, Buyer shall deliver to the Sellers:

(i) Closing Cash: The Closing Cash, by wire transfer of immediately available funds to the accounts and in the amounts to each Seller, pro rata, in accordance with each Seller’s percentage ownership of Company, as set forth on the funds flow agreement, the final form of which is attached hereto as Exhibit H (the “Funds Flow Agreement”);

(ii) Stock Consideration: The Closing Stock Consideration to each Seller, pro rata, in accordance with a Seller’s percentage ownership of Company; and

(iii) Closing Notes: (A) an Unsecured Promissory Note to the Active Seller in the principal amount of Thirty-four Million Two Hundred Fifty-six Thousand and No/100 Dollars ($34,256,000.00), and (B) an Unsecured Promissory Note to the Passive Seller in the principal amount of Fifty-one Million Three Hundred Eighty-four Thousand and No/100 Dollars ($51,384,000.00), the final form of which is attached hereto as Exhibit I (the “Closing Notes”).

For purposes of this Section 1.02(b), the term “Closing Cash” shall mean One Hundred Million and No/100 Dollars ($100,000,000.00)), plus the amount spent on capital expenditures listed on Section 1.02(a) of the Disclosure Schedules, minus the sum of (i) Company Indebtedness and (ii) Transaction Expenses of Company. The term “Closing Stock Consideration” shall mean the number of shares of common stock of Buyer (“Buyer Common Stock”) with an aggregate value equal to Thirty-Two Million, Seven Hundred Sixty Thousand and No/100 Dollars ($32,760,000.00), based upon a per share value equal to the weighted average transaction price for Buyer Common Stock on the Principal Market for the 10 trading days immediately preceding the Closing.

Section 1.03    Purchase Price Adjustment.

(a)    Final Calculation of Closing Working Capital. Within 90 days following the Closing Date, Buyer shall cause to be prepared and delivered to Sellers a statement in the form attached as Exhibit B (the “Closing Working Capital Statement”), setting forth Buyer’s good faith calculation of the Closing Working Capital prepared in accordance with GAAP, along with copies of any working papers, trial balances and similar materials relating to the Closing Working Capital Statement prepared by or on behalf of Buyer.

(b)    Examination of Closing Working Capital Statement. Sellers shall review the Closing Working Capital Statement to confirm the accuracy of the Closing Working Capital Statement and Buyer’s calculation of the Closing Working Capital set forth therein. From and after the date of Sellers’ receipt of the Closing Working Capital Statement until the final determination of Closing Working Capital, Buyer shall provide, and shall cause Company to provide, Sellers and their respective representatives access, not unreasonably interfering with the operations of Company, during normal business hours, to the personnel, properties, books and records of Company as reasonably necessary for Sellers to substantiate Buyer’s calculation of the Closing Working Capital set forth in the Closing Working Capital Statement. If Sellers fail to give Buyer written notice of any Disputed Amounts (as defined below) within 30 days after the date that Sellers receive the Closing Working Capital Statement (the “Review Period”), then the Closing Working Capital Statement shall become binding on the parties for all purposes.

(c)    Disputes. If Sellers give Buyer written notice of any calculations set forth in the Closing Working Capital Statement that Sellers dispute in good faith on or before the expiration of the Review Period (“Disputed Amounts”), which notice shall be accompanied by a written statement of Sellers, setting forth in detail and with particularity, Sellers’ basis for the Disputed Amounts, then Buyer and Sellers shall attempt in good faith to agree on any adjustments that should be made to the Closing Working Capital Statement. If the parties reach a written agreement with respect to all of the Disputed Amounts, the Closing Working Capital Statement, as modified by such written agreement, shall become binding on the parties for all purposes. If Buyer and Sellers are unable to resolve any Disputed Amounts within 30 days following the end of the Review Period, Buyer and Sellers will engage, and submit to, an independent public accounting firm which has no prior relationship with any Seller or Buyer (the “Independent Accountant”) to resolve, exclusively, only such items giving rise to such Disputed Amounts. The Independent Accountant shall make its determination regarding any Disputed Amounts by calculating such amounts in a manner consistent with the definitions of the components of Closing Working Capital included in this Agreement. If Disputed Amounts are submitted to the Independent Accountant for resolution, Sellers and Buyer shall each furnish or cause to be furnished to the Independent Accountant such work papers and other documents and information relating to the Disputed Amounts as the Independent Accountant may reasonably request and are available to the parties or their respective agents and shall be afforded the opportunity to present to the Independent Accountant any materials relating to the Disputed Amounts and to discuss the Disputed Amounts with the Independent Accountant; provided, however, there shall be no ex parte communications (oral or written) with the Independent Accountant, and any documents or materials furnished to the Independent Accountant shall also be furnished to the other party, as the case may be. The decision of the Independent Accountant with respect to the Disputed Amounts shall be provided in writing and, if possible, be made within 30 days after the engagement of the Independent Accountant and shall be final and binding on the parties. The Closing Working Capital Statement shall be revised, if necessary, to reflect the final determination of the components thereof. The fees, costs and expenses of the Independent Accountant (i) will be borne by the Sellers in the proportion that the aggregate dollar amount of the Disputed Amounts that are unsuccessfully disputed by the Sellers (as finally determined by the Independent Accountant) bears to the aggregate dollar amount of all Disputed Amounts, and (ii) will be borne by Buyer in the proportion that the aggregate dollar amount Disputed Amounts that are successfully disputed by the Sellers (as finally determined by the Independent Accountants) bears to the aggregate dollar amount of all Disputed Amounts.

(d)    Final Adjustment. Upon final determination of the Closing Working Capital in accordance with this Section 1.03, (i) if such Closing Working Capital is more than the Target Working Capital, Buyer shall, within three business days after the date of the final determination of Closing Working Capital in accordance with this Section 1.03, pay to Sellers (in the same proportion as the Closing Cash was paid) by wire transfer an amount equal to the amount by which the Closing Working Capital exceeds the Target Working Capital, and the Purchase Price shall be increased accordingly; or (ii) if such Closing Working Capital is less than the Target Working Capital, Sellers shall, within three business days after the date of the final determination of Closing Working Capital, pay to Buyer (in the same proportion as the Closing Cash was paid) by wire transfer an amount equal to the amount by which the Target Working Capital exceeds the Closing Working Capital, and the Purchase Price shall be reduced accordingly. The parties agree that the adjustments contemplated herein are adjustments to the Purchase Price and are not subject to the limitations set forth in Section 6.05.

(e)    Any Seller may tender shares of Buyer Common Stock (with such stock valued at the same value at which it was valued pursuant to this Agreement at the time of its issuance) in satisfaction of any adjustment to the Purchase Price pursuant to this Section 1.03.

Section 1.04    Pre-Closing Distribution of Surplus Cash. On the last business day prior to the Closing, Sellers caused Company to distribute to themselves all of the Surplus Cash of Company. As used herein, the term “Surplus Cash” means the sum of all (a) cash of Company (excluding any cash that is restricted as to its use by Company and so reflected on Company’s balance sheet included in the Financial Statements, as defined herein) and (b) cash equivalents of Company, in each case determined in accordance with GAAP (as defined herein), minus (i) cash of Company required to satisfy the Target Working Capital requirements and (ii) all uncleared checks, drafts, ACH payments or other outstanding payments as of the Closing Date. The parties intend for the acquisition of Company by Buyer to be “cash free” and any necessary reconciliation of cash or cash equivalents to achieve that economic result following the Closing shall be completed in the ordinary course by the parties.

Section 1.05    Withholding Tax. Buyer will be entitled to deduct and withhold from the consideration otherwise payable to any Seller pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to Taxes, taking into account the Sellers’ Forms W-9 and similar forms delivered to Buyer; provided, however, that Buyer has notified Sellers, in writing at least five days prior to the Closing, of the amounts Buyer intends to deduct or withhold under this Section 1.05 from payments made on the Closing Date. To the extent that amounts are so withheld and paid over to the appropriate Governmental Entity, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the Seller in respect of whom such deduction and withholding was made by Buyer.

Section 1.06    Purchase Price Allocation. Within 30 days after the final determination of the Closing Working Capital in accordance with Section 1.03, Buyer shall prepare and deliver to Sellers a proposed allocation of the Purchase Price (and the amount of any liability or other items required to be treated as purchase price for U.S. federal income tax purposes) (the “Proposed Allocation”). The Proposed Allocation shall be prepared in accordance with Code Sections 755 and 1060 and Revenue Ruling 99-6, Situation 2. Buyer shall provide Seller with copies of such backup documentation and work papers supporting the Proposed Allocation as Seller may reasonably request. Within 30 days after receipt by Sellers of the Proposed Allocation, Seller shall notify Buyer in writing of any objections to the Proposed Allocation by setting forth in reasonable detail the basis for any such objection (and any alternative allocation) and including reasonable documentation supporting such objection (the “Allocation Objection Notice”); provided, however, that any Allocation Objection Notice, if any, with respect to the amounts set forth in the Proposed Allocation shall be limited solely to Class III and Class IV assets, and no other class of assets; and provided further that, assets in the Proposed Allocation shall be stated at fair market value. If Sellers either fail to provide an Allocation Objection Notice to Buyer within such 30-day period or provides Buyer written notice of Sellers’ approval of the Proposed Allocation within such 30-day period, Sellers shall be conclusively treated as having approved of the Proposed Allocation in its entirety, and the Proposed Allocation thereafter shall be final and binding on both Buyer and Sellers. In the event Sellers timely provide the Allocation Objection Notice to Buyer, Sellers and Buyer shall then use commercially reasonable efforts to resolve their disagreements and agree upon a mutually acceptable allocation. If Sellers and Buyer are unable to agree upon a mutually acceptable allocation within 20 calendar days following Buyer’s receipt of the Allocation Objection Notice, then such dispute shall be resolved in accordance with Section 1.03(c) above in the same manner as if this was a dispute concerning the Closing Working Capital Statement.

ARTICLE II
CLOSING

Section 2.01    Closing. The closing and consummation of the transactions described in this Agreement (the “Closing”) shall take place simultaneously with the execution of this Agreement on the date of this Agreement (the “Closing Date”) by electronic delivery of executed counterparts of this Agreement and each of the instruments contemplated hereby. The consummation of the transactions described in this Agreement shall be deemed to occur at 12:01 a.m. Dallas, Texas time on the Closing Date.

Section 2.02    Closing Deliverables. 

(a)    At the Closing, Sellers shall deliver to Buyer the following:

(i)    this Agreement, duly executed by each Seller;

(ii)    a membership interest assignment in the form of Exhibit C hereto and duly executed by each Seller, effecting the assignment to Buyer of the Purchased Units;

(iii)    copies of all consents, approvals, waivers, pay off letters, releases, Form UCC-3 terminations, and authorizations referred to in Section 2.02(a)(iii) of the Disclosure Schedules, each in form satisfactory to Buyer;

(iv)    a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that each Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code duly executed by such Seller;

(v)    a certificate of the Secretary or Assistant Secretary (or equivalent officer) of Company certifying as to (A) the resolutions of the board of managers and members of Company, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement, the documents to be delivered hereunder and the transactions described herein; (B) the certificate of formation and operating agreement of Company, including all amendments thereto, each as in effect as of immediately prior to the Closing; and (C) the names and signatures of officers of Company authorized to sign the documents to be delivered by Company hereunder;

(vi)    a release of each Seller in the form of Exhibit D hereto (the “Releases”);

(vii)    a copy of the employment agreements by and between Company and Kurt A. Johnson, Jr. (“Employment Agreement”), duly executed by Mr. Johnson, the final form of which is attached hereto as Exhibit E;

(viii)    a lockup agreement concerning the Buyer Common Stock, the final form of which is attached hereto as Exhibit F (the “Lockup Agreement”);

(ix)    a registration rights agreement concerning the Buyer Common Stock, the final form of which is attached hereto as Exhibit G (the “Registration Rights Agreement”);

(x)    the Funds Flow Agreement, the final form of which is attached hereto as Exhibit H;

(xi)    the Closing Notes, the final form of which is attached hereto as Exhibit I;

(xii)    such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement;

(xiii)    a copy of the governing documents of Company, the minute books of Company, and the record books and equity ledgers relating to the organization, ownership and maintenance of Company, in each case, to the extent in Company’s possession; and

(xiv)    all of the financial and accounting records, documents, files, memoranda and other material papers relating exclusively to Company (other than those records which Sellers are required to keep by Law), in each case, to the extent in Company’s possession.

(b)    At the Closing, Buyer shall deliver to Sellers the following:

(i)    This Agreement, duly executed by Buyer;

(ii)    the Closing Cash set forth in Section 1.02(b)(i)(A) by wire transfer of immediately available funds to the Seller Bank Accounts set forth on the Funds Flow Agreement;

(iii)    restricted stock certificates of Buyer evidencing the Closing Stock Consideration set forth in Section 1.02(b)(i)(B), each duly executed by the President and Secretary (or equivalent authorized officers) of Buyer;

(iv)    the Closing Notes;

(v)    a certificate of the Secretary or Assistant Secretary (or equivalent officer) of Buyer certifying as to (A) the resolutions of the board of directors of Buyer, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement, the documents to be delivered hereunder and the transactions described herein; (B) the articles of incorporation and bylaws of Buyer, including all amendments thereto, each as in effect as of immediately prior to the Closing; and (C) the names and signatures of officers of Buyer authorized to sign this Agreement and the documents to be delivered hereunder;

(vi)    a copy of the Employment Agreement, each duly executed by an authorized signatory of Company;

(vii)    A certificate of the President and Treasurer (or equivalent officer) of Buyer certifying that no material no events have occurred that would make the disclosures contained in Buyer’s SEC Documents untrue or misleading;

(viii)    such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Sellers, as may be required to give effect to this Agreement;

(ix)    the Lockup Agreements, as to each Seller, duly executed by Buyer;

(ix)         the Releases, duly executed by Buyer; and

(x)         the Registration Rights Agreement, duly executed by Buyer.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Sellers, jointly and severally, represent and warrant to Buyer that the statements in this Article III are true and correct as of the Closing Date. For purposes of this Article III, “Sellers’ knowledge,” “knowledge of Sellers” and any similar phrases shall mean the actual knowledge of any Seller.

Section 3.01    Organization and Authority of Company; Enforceability. Company is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Texas, and qualified to do business in each jurisdiction where failure to be so qualified would have a material adverse effect. Each Seller has full capacity to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions described herein. The execution, delivery and performance by Sellers of this Agreement and the documents to be delivered hereunder and the consummation of the transactions described herein have been duly authorized by all requisite corporate action on the part of Company, if any. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Sellers, and (assuming due authorization, execution and delivery by Buyer) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Sellers, enforceable against Sellers in accordance with its respective terms.

Section 3.02    No Conflicts; Consents. Except as set forth on Section 3.02 of the Disclosure Schedules, the execution, delivery and performance by Sellers of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions described herein, do not and will not: (i) violate or conflict with the certificate of formation, operating agreement or other organizational documents of Company; (ii) violate or conflict with any Law applicable to Sellers or Company in any material respect; (iii) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any Material Contract in any material respect; or (iv) result in the creation or imposition of any material Encumbrance on any asset of Company (the “Company Assets”) other than Permitted Encumbrances. No consent, approval, waiver or authorization is required to be obtained by Sellers from any Governmental Entity in connection with the execution, delivery and performance by Sellers of this Agreement, the documents to be delivered hereunder or the consummation of the transactions described herein.

Section 3.03    Capitalization; Title to Purchased Units. Section 3.03 of the Disclosure Schedules sets forth the capitalization of Company. The Units depicted on Section 3.03 of the Disclosure Schedules (the “Purchased Units”) represent all of the issued and outstanding equity interests of Company. Each Seller owns and has good title to the Purchased Units set forth across from his or its name on Section 3.03 of the Disclosure Schedules, free and clear of Encumbrances other than any restriction imposed by or arising from (i) any federal or state securities Laws, (ii) any certificate of formation, operating agreement or other organizational documents of Company or (iii) this Agreement.

Section 3.04    Condition of Assets. Except as set forth on Section 3.04 of the Disclosure Schedules, the Company Assets are in good condition and are adequate for the uses to which they are being put, in each case, ordinary wear and tear excepted, and none of such Company Assets are in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.

Section 3.05    Inventory. All inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories included in the Company Assets consist of a quality and quantity usable and salable in the ordinary course of business and are carried on Company’s book at the lower of cost or market value.

Section 3.06    Financial Statements.

(a)    Complete copies of the audited financial statements consisting of the balance sheet of Company as at December 31 in each of the calendar years 2019 and 2020 and the related statements of income for the years then ended (the “Historical Financial Statements”), and unaudited financial statements consisting of the balance sheet of Company as at June 30, 2021 and the related statements of income for the six-month period then ended (the “Interim Financial Statements” and together with the Historical Financial Statements, the “Financial Statements”) are included as Section 3.06(a) of the Disclosure Schedules.

(b)    Except as set forth on Section 3.06(b) of the Disclosure Schedules, the Financial Statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the period involved, subject to the absence of notes, and in the case of the Interim Financial Statements, to normal and recurring year-end adjustments. The Financial Statements fairly and accurately present the financial condition of Company as of the respective dates in accordance with GAAP for which they were prepared and the results of the operations of Company for the periods indicated in all material respects; provided, however, that the parties acknowledge and agree that Company will have no cash at the Closing, due to the cash sweep executed by Sellers immediately prior to the Closing as set forth in Section 1.04, subject only to an amount of cash sufficient to satisfy the Target Working Capital requirement.

(c)    Except as set forth on Section 3.06(c) of the Disclosure Schedules, there are no material liabilities of Company other than (i) those reflected on the Financial Statements, (ii) those incurred in the ordinary course of business since the date of the Interim Financial Statements, (iii) liabilities not required to be set forth on the Financial Statements prepared in accordance with GAAP, and (iv) those incurred in connection with this Agreement, the documents to be delivered hereunder or the transactions described herein. Company has paid all of its liabilities and collected its receivables in all material respects in its ordinary course since the date of the Interim Financial Statements.

Section 3.07    Material Contracts. Section 3.07 of the Disclosure Schedules includes each written or oral contract to which Company is a party that involves in excess of $250,000, in every case, other than contracts that have expired or have been terminated (each, a “Material Contract”). Each Material Contract is valid and binding on Company in accordance with its terms and is in full force and effect, assuming the due and valid execution by the counterparty. Neither Company nor, to Sellers’ knowledge, any other party thereto, is in material breach of or material default under (or is alleged to be in material breach of or material default under) or has provided or received any notice of any intention to terminate, any Material Contract. To Sellers’ knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would constitute an event of default under any Material Contract or would cause or permit the acceleration or other changes of any right or obligation or the loss of benefit thereunder. Complete and correct copies of each Material Contract have been made available to Buyer. Except as set forth on Section 3.07 of the Disclosure Schedules, there are no disputes pending or threatened under any Material Contract.

Section 3.08    Permits. Section 3.08 of the Disclosure Schedules lists all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights of Company obtained from governmental authorities that, in each case, is material to the current business of Company (the “Permits”). The Permits are valid and in full force and effect, and are the only permits material to the operation of the current business of Company. All fees and charges due and owing with respect to such Permits as of the Closing Date have been paid in full. Except as set forth in Section 3.08 of the Disclosure Schedules, no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any of the Permits that would materially affect Company. There are no notices, filings or consents required with any Governmental Entity with respect to the Permits in connection with the transactions described in this Agreement.

Section 3.09    Non-foreign Status. No Seller is a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.

Section 3.10    Compliance With Laws. Except as set forth on Section 3.10 of the Disclosure Schedules, at all times in the past three years Company has complied, and Company is now complying, with all Laws applicable to Company, in all material respects.

Section 3.11    Legal Proceedings. Except as set forth on Section 3.11 of the Disclosure Schedules, there is no, and since January 1, 2017, there has not been any uninsured claim, demand, action, suit, proceeding, audit, litigation, or investigation of any nature (whether civil, criminal, administrative, regulatory or otherwise, whether at law or in equity) (“Action”) pending or, to Sellers’ knowledge, threatened against or by Company that either (i) relates to or affects Company and involves a dispute, or is reasonably expected to result in a liability, of more than $20,000; or (ii) challenges or seeks to prevent, enjoin or otherwise delay the transactions described in this Agreement. To Sellers’ knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

Section 3.12    Brokers. Except as set forth on Section 3.12 of the Disclosure Schedules, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions described in this Agreement based upon arrangements made by or on behalf of Seller.

Section 3.13    Environmental Matters.

(a)    Except as set forth on Section 3.13(a) of the Disclosure Schedules, Company is, and has been for the past three years, in material compliance with all Environmental Law and possesses, and are in material compliance with all Environmental Permits required by Environmental Law to conduct the operations of Company as currently conducted, and during the three years prior to the Closing Date, Company has not received any written notice from any Governmental Entity alleging any noncompliance with any Environmental Law or Environmental Permits.

(b)    Section 3.13(b) of the Disclosure Schedules sets forth all environmental reports from third party advisors that are in Seller’s possession and relate to any material environmental matter.

(c)    There is no, and since January 1, 2017, there has not been any, legal proceeding pursuant to Environmental Law pending or threatened in writing against Company.

(d)    No real property utilized by Company contains any hazardous substance in, at, on, over, under, or emanating from such real property in concentrations which would violate any Environmental Law or would be reasonably likely to result in the imposition of material Environmental Liability on Company under any Environmental Law, including any Environmental Liability for the assessment, investigation, corrective action, remediation, removal, monitoring or reporting on the presence of such hazardous substances in, at, on, over, under, or emanating from such real property.

Section 3.14    Labor and Employment Matters.

(a)    Section 3.14(a) of the Disclosure Schedules lists, as of June 30, 2021, the employees of Company and their current rates of compensation and dates of hire. Except as described on Section 3.14(a) of the Disclosure Schedules, (i) there are no collective agreements or bargaining relationships or other contracts or understandings with any labor organization with respect to Company’s employees, (ii) Seller has no knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of Company, and to Sellers’ knowledge no such efforts have occurred within the past three years, (iii) there has been no worker’s compensation liability, experience or matter outside the ordinary course of business during the last three (3) years, (iv) there are no strikes, slowdowns, work stoppages, material grievances, material unfair labor practices claims or other material employee or labor disputes currently pending or threatened against or involving Company and none has occurred within the last three years, (v) in the last three years Company has not engaged in any unfair labor practices within the meaning of the National Labor Relations Act, (vi) during the three year period preceding the Closing Date, Company has not implemented any layoffs of employees that resulted in liability under the Worker Adjustment and Retraining Notification Act, 29 U.S. Stat. § 2101 et seq., (vii) to Sellers’ knowledge, there are no pending or threatened in writing complaints or charges against Company before any Governmental Entity regarding employment discrimination, safety or other employment related charges or complaints, wage and hour claims, unemployment compensation claims, worker’s compensation claims or the like involving any current or former employee of Company that would materially affect Company, (viii) Company reasonably believes that it is in compliance in all material respects with all Laws and contracts relating to labor and employment practices (including any provision relating to wages, hours of work, collective bargaining, withholdings and deductions, classification and payment of employees, independent contractors and consultants, overtime pay, occupational health and safety, worker’s compensation, labor practices, and immigration), (ix) no employee of Company is entitled to any severance pay as a result of the consummation of the transactions described in this Agreement, and (x) Company has paid all wages, salaries, bonuses, commissions, wage premiums, and other compensation that has become due and payable to each employee of Company, pursuant to applicable Law, contract, or employment policy, for services rendered through the date of this Agreement, except for wages, salaries, bonuses, commissions, wage premiums and other compensation due for the current payroll period.

(b)    All Employee Benefit Plans maintained by Company or to which Company is obligated to contribute, are listed on Section 3.14(b) of the Disclosure Schedules. Except as set forth on Section 3.14(b) of the Disclosure Schedules, with respect to the Employee Benefit Plans:

(i)    a copy of each Employee Benefit Plan of Company has been made available to Buyer;

(ii)    all such Employee Benefit Plans have been maintained, funded and administered in compliance in all material respects with all Laws, including ERISA and the Code;

(iii)    no Employee Benefit Plan is or has within the last three years been subject to the minimum funding requirements of Section 412 or 430 of the Code or Title IV of ERISA;

(iv)    Company does not have any obligation to contribute to any “multiemployer plan” within the meaning of Section 3(37) of ERISA;

(v)    each Employee Benefit Plan intended to qualify under Section 401(a) of the Code has received a favorable determination letter or is entitled to rely on an opinion letter from the Internal Revenue Service that such Employee Benefit Plan is a “qualified plan” under Section 401(a) of the Code, the related trust is exempt from Tax under Section 501(a) of the Code, and no facts or circumstances exist that would be reasonably likely to jeopardize the qualification of such Employee Benefit Plan; and

(vi)    with respect to the Employee Benefit Plans, all required contributions have been made or properly accrued on Company’s Financial Statements.

Section 3.15    Investment Representations. With respect to that portion of the Closing Stock Consideration to be received by a Seller:

(a)    Such Seller is acquiring such Closing Stock Consideration for his or its own account as principal, for investment purposes only, and not with a view to, or for, resale or distribution thereof, in whole or in part in a manner that would require registration under or violate the registration requirements of any state or federal securities Law. Such Seller has no contract, undertaking, agreement or arrangement with any Person to sell, transfer or pledge to such Person or to anyone else the Closing Stock Consideration, or any part thereof, and such Seller has no present plans to enter into any such contract, undertaking, agreement or arrangement.

(b)    Such Seller is an “accredited investor” as that term is defined under Rule 501 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”).

(c)    Such Seller has been given the opportunity to ask questions of, and receive answers from, Buyer and its officers concerning the terms and conditions of the sale of such Closing Stock Consideration and other matters pertaining to its investment. Such Seller acknowledges that such Seller has been furnished all information that such Seller has requested to the extent that such Seller considers necessary and advisable, and such information is sufficient upon which to base an investment decision.

(d)    Such Seller understands that, until the sale, transfer or assignment of the Closing Stock Consideration has been registered under the Securities Act, such Closing Stock Consideration cannot be sold, transferred or assigned except as may be otherwise permitted under the Securities Act and the rules and regulations promulgated thereunder in effect at the time of sale, transfer or assignment, and then only in compliance with all applicable state securities Laws. A legend will be placed on any certificates representing the Closing Stock Consideration to that effect (and similar restrictions will be recorded in the transfer agent’s and registrar’s records for any shares issued in book-entry form), and Buyer may prevent transfers that Buyer reasonably believes do not comply with such requirements.

(e)    Such Seller understands and is fully aware that no federal or state agency has made any finding or determination as to the fairness of an investment in, or made a recommendation or endorsement of, the Closing Stock Consideration.

Section 3.16    Taxes.

(a)    Except as set forth on Section 3.16(a) of the Disclosure Schedules, all Tax Returns required to be filed by or on behalf of Company have been duly filed on a timely basis and each such Tax Return is true and complete in all material respects; all Taxes due and payable by Company that are or have become due have been timely paid in full (except to the extent that such Taxes have been contested in good faith with appropriate proceedings and a reserve therefor has been reflected on the Financial Statements); and all Taxes that Company is obligated to deduct or withhold from amounts owing to any employee, creditor, independent contractor, shareholder, member or third party have been, in all material respects, so deducted or withheld and timely paid to the appropriate Governmental Entity.

(b)    None of the assets of Company are subject to any lien arising in connection with any failure to pay any Tax, other than lien for Taxes not yet due and owing.

(c)    Except as set forth on Section 3.16(c) of the Disclosure Schedules, Company has not received written notice of any audit or investigation by any Governmental Entity with respect to any taxable periods for which the statute of limitations has not expired; no waivers of statutes of limitation have been given or requested with respect to Company relating to the filing of any Tax Return or the collection or assessment of any Taxes; no written notice has been received by either Company or Sellers from any Governmental Entity that an audit, examination or other administrative or court proceeding involving Taxes for Company is contemplated or pending; and no claim has ever been made by a Governmental Entity in a jurisdiction where Company does not file Tax Returns that Company is or may be subject to taxation in that jurisdiction. With respect to any matters disclosed on Section 3.16(c) of the Disclosure Schedules, full and complete copies of all documents related thereto have been attached thereto and have been provided to Buyer.

(d)    For U.S. federal and applicable state income Tax purposes, at all times since its formation up to the Closing Date, Company has been taxed as a partnership as defined in Section 7701(a)(2) of the Code and has never been a publicly traded partnership as defined by Section 7704 of the Code.

Section 3.17    Assumed Work in Process Contracts.

(a)    Section 3.17(a) of the Disclosure Schedules sets forth a true and complete list of each contract pursuant to which, as of September 30, 2021, Company is providing to customers products or services related to the Business pursuant to statements of work or work orders that are still in effect and not yet substantially completed (each, a “Work in Process Contract”), together with, in each case, as of the date of the Interim Financial Statements, and as calculated in accordance with Company’s historical practices, (i) the estimated cost to be incurred by Company over the life of each Work in Process Contract (the “Estimated Cost”), which represents Sellers’ good faith estimate of the expected costs incurred, (ii) the actual amounts paid by Company in respect to each Work in Process Contract (the “Actual Cost”), (iii) the estimated revenue expected to be received by Company over the life of each Work in Process Contract (the “Total Contract Value”), which represents Sellers’ good faith estimate of the expected revenue, (iv) the actual amounts collected by Company in respect of each Work in Process Contract, (v) Company’s good faith estimate of the percentage completion of each Work in Process Contract, which is determined by the quotient of the Actual Cost of each such Work in Process Contract divided by the Estimated Cost of each such Work in Process Contract and (vi) the estimated gross profit, which represents the difference between the Total Contract Value and the Estimated Cost. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that the amounts set forth on Section 3.17(a) of the Disclosure Schedules are estimates only and the representations in this Section 3.17 will be deemed to be “inaccurate” or “breached” only if and to the extent the estimates set forth in this Section are determined to not have been made in good faith.

(b)    Except as set forth on Section 3.17(b) of the Disclosure Schedules, except as set forth in the allowance for doubtful accounts in the Financial Statements, and except to the extent paid prior to Closing, all of the accounts receivable of Company as of the date of the Interim Financial Statements (i) represent valid obligations of customers of Company arising from bona fide transactions entered into in the ordinary course of business and (ii) to Sellers’ knowledge, are collectible in accordance with the terms of such obligations.

Section 3.18    Post-Termination Benefits. Except as set forth on Section 3.18 of the Disclosure Schedules, other than as required under Section 601 et seq. of ERISA or other applicable Law, no Employee Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason, and neither Company nor any other employers that are treated, together with Company or any of its Affiliates, as a “single employer” within the meaning of Section 414 of the Code has any liability to provide post-termination or retiree welfare benefits to any individual ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree welfare benefits.

Section 3.19    Insurance. Section 3.19 of the Disclosure Schedules sets forth a true and complete list of all current policies of fire, liability, product liability, umbrella liability, real and personal property, workers’ compensation, vehicular, directors’ and officers’ liability, fiduciary liability, credit and other casualty and property insurance maintained by or on behalf of Company and its Affiliates and relating to the assets, business, operations, employees, officers and directors of Company (collectively, the “Insurance Policies”) and true and complete copies of such Insurance Policies have been made available to Buyer. Such Insurance Policies are in full force and effect as of immediately prior to the Closing. Neither Company nor any Seller have received any written notice of cancellation of, premium increase with respect to, or material alteration of coverage under, any of such Insurance Policies. All premiums due and owing on such Insurance Policies have been paid.

Section 3.20    Related Party Transactions. Except as set forth in Section 3.20 of the Disclosure Schedules, none of Company, Sellers or any of their respective Affiliates: (i) has any direct or indirect interest in, or is a director, officer or employee of, any Person that is a client, customer, supplier, lessor, lessee, debtor, creditor or competitor of Company, (ii) has any direct or indirect interest in any material property, asset or right that is owned or used by Company in the conduct of its business, or (c) is a party to any agreement or transaction regarding the provision or payment, or commitment to provide or pay, any indebtedness, commission, fee or other amount to, or purchase or obtain or otherwise contract to purchase or obtain any goods or services from Company. There is no outstanding indebtedness owed to Company by any current director, officer, employee or consultant of Company or any Seller or any of their Affiliates.

Section 3.21    No Adverse Changes. Except as set forth in Section 3.21 of the Disclosure Schedules, since the date of the Interim Financial Statements, Company has operated its business in the ordinary course (other than as relates to the sale of Company or this Agreement) and no event or circumstances exist that have caused a material adverse effect on Company’s business prior to Closing.

Section 3.22    Customers and Suppliers.

(a)    Section 3.22(a) of the Disclosure Schedules sets forth the top 10 customers of Company based on the dollar amount of revenues received by Company from such customers during each of (i) the fiscal year 2019 and (ii) the fiscal year 2020 (the “Material Customers”). Company is not involved in any claim, dispute or controversy with any Material Customer that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Company’s business.

(b)    Section 3.22(b) of the Disclosure Schedules sets forth the top 10 suppliers of Company based on the dollar amount of purchases from such suppliers during each of (i) the fiscal year 2019 and (ii) the fiscal year 2020 (the “Material Suppliers”). Except as set forth on Section 3.22(b) of the Disclosure Schedules, (A) all Material Suppliers continue to be suppliers of Company, (B) none of such Material Suppliers has required Company to materially reduce its business with such Material Supplier and, to Sellers’ knowledge, no such requirement of reduction is reasonably expected to occur, and (C) no Material Supplier has terminated its relationship with Company, nor has Company received notice that any Material Supplier intends to do so. Company is not involved in any claim, dispute or controversy with any Material Supplier that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Company’s business. Except as set forth on Section 3.22(b) of the Disclosure Schedules, no supplier to Company represents a sole source of supply for goods and services used in the conduct of Company’s business for which Company reasonably expects it would not be able to obtain a substantially similar source of such supply in the event such supplier ceased doing business with Company.

Section 3.23    Intellectual Property. Section 3.23 of the Disclosure Schedules sets forth a true and complete list of all patents and patent applications, registered and unregistered trademarks or service marks and applications to register any trademarks or service marks, and registered or unregistered copyrights and applications for registration of copyrights owned by Company that are used in the Business. No claim has been asserted or threatened that the use or exploitation by Company of any intellectual property set forth on Section 3.23 of the Disclosure Schedules infringes the intellectual property of any third party.

Section 3.24    Warranty Claims. Services rendered or performed by Company have been in material conformity with all applicable Laws, contractual commitments and all express and implied warranties. Since January 1, 2017, there has not been any individual service warranty claim by any customer of Company pursuant to a contract with Company arising from services rendered by Company that exceeded $100,000 for such claim and, to Sellers’ knowledge, no event or circumstance has occurred that would give rise to any such warranty claim against Company.

Section 3.25    No Other Representations. Each Seller has conducted, to its satisfaction, its own independent investigation of the condition, operations and business of Buyer, each based solely on the Buyer Materials (as defined herein) and, in making its determination to proceed with the transactions described in this Agreement, such Seller has relied solely upon (i) the representations and warranties in Article IV (as modified by the Disclosure Schedules) and elsewhere in the documents to be delivered in connection with this transaction, and (ii) the results of its own independent review of Buyer’s publicly filed SEC Documents (collectively, the “Buyer Materials”). Except for the representations and warranties in Article IV (as modified by the Disclosure Schedules) and the other Buyer Materials, (A) Buyer is not making, and Sellers have not and will not rely upon, and are expressly disclaiming any reliance upon, any other statements, representations or warranties whatsoever, express or implied, with respect to Buyer or its respective businesses, assets, liabilities, operations, prospects, or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of the business, the effectiveness or the success of any operations, and Buyer has not provided any other information (financial or otherwise) regarding Buyer to Sellers or their representatives or made available to Sellers or their representatives in any “data rooms”, “virtual data rooms”, management presentations or in any other form in expectation of, or in connection with Buyer or the transaction described in this Agreement, and (B) none of Buyer or Buyer’s officers, managers, agents, representatives or employees or any of their respective Affiliates has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in the Buyer Materials and subject to the limited remedies herein provided.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Sellers that the statements in this Article IV are true and correct as of the Closing Date. For purposes of this Article IV, “Buyer’s knowledge,” “knowledge of Buyer” and any similar phrases shall mean the actual knowledge of Buyer’s Management Team.

Section 4.01    Organization and Authority of Buyer; Enforceability. Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the state of Colorado, and qualified to do business in each jurisdiction where failure to so qualify would have a material adverse effect. Buyer has all requisite entity power and authority to own, lease, hold and operate the assets and properties now owned, leased, held or operated by it and to carry on its business as now conducted. Buyer has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions described herein. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder and the consummation of the transactions described herein have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Sellers) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms.

Section 4.02    No Conflicts; Consents.

(a)    The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions described herein, do not and will not: (i) violate or conflict with the certificate of incorporation, bylaws or other organizational documents of Buyer; (ii) violate or conflict with any Law applicable to Buyer (including, for the avoidance of doubt, federal and state securities Laws and regulations and the rules and regulations of the Nasdaq Stock Market or such other securities exchange or quotation system upon which the securities of Buyer may be listed or quoted (the “Principal Market”)); or (iii) violate or conflict with any permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights of Buyer. No consent, approval, waiver or authorization is required to be obtained by Buyer from any Person in connection with the execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions described herein.

(b)    Except as specifically stated in this Agreement and as required under the Securities Act or applicable state securities Laws and the rules and regulations of the Principal Market, Buyer is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or Governmental Entity or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or described herein in accordance with the terms hereof or thereof. Buyer has not received nor delivered any notices or correspondence from or to the Principal Market, other than notices with respect to listing of additional Buyer Common Stock and other routine correspondence. The Principal Market has not commenced any delisting proceedings against Buyer.

Section 4.03    Legal Proceedings. There is no Action of any nature pending or, to Buyer’s knowledge, threatened against or by Buyer that is material to Buyer or that challenges or seeks to prevent, enjoin or otherwise delay the transactions described in this Agreement. To Buyer’s knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

Section 4.04    Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions described in this Agreement based upon arrangements made by or on behalf of Buyer.

Section 4.05    Issuance of Closing Stock Consideration. The issuance of the Closing Stock Consideration has been duly authorized and, when the Closing Stock Consideration has been delivered in accordance with this Agreement on the Closing Date, the Closing Stock Consideration will have been validly issued, fully paid and non-assessable and free from all preemptive or similar rights, Taxes, Encumbrances and charges with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Buyer Common Stock. The offer and issuance by Buyer of the Closing Stock Consideration is exempt from registration under the Securities Act.

Section 4.06    SEC Documents; Financial Statements.

(a)    Since January 1, 2017, Buyer has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (all of the foregoing filed prior to the Closing Date and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).

(b)    As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Section 4.07    Listing and Maintenance Requirements.

(a)    The Buyer Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and Buyer has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Buyer Common Stock pursuant to the Exchange Act nor has Buyer received any notification that the SEC is currently contemplating terminating such registration.

(b)    Buyer has not, in the 12 months preceding the Closing Date, received any notice from any Person to the effect that Buyer is not in compliance with the listing or maintenance requirements of the Principal Market.

(c)    Buyer is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.

Section 4.08    Blue Sky. Buyer has obtained, or if required will obtain, an exemption for or registered or qualified (i) the issuance of the Closing Stock Consideration to Sellers under this Agreement and (b) any subsequent resale of all of the Closing Stock Consideration by Sellers, in each case, under securities or “Blue Sky” Laws of the states of the United States in such states as is reasonably requested by Sellers from time to time, and has provided evidence of any such action so taken to Sellers.

Section 4.09    No Other Representations. Except for the representations and warranties in Article III (as modified by the Disclosure Schedules) (A) Sellers are not making, and Buyer has not and will not rely upon, and is expressly disclaiming any reliance upon, any other statements, representations or warranties whatsoever, express or implied, with respect to the Company or its business, assets, liabilities, operations, prospects, or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of the business, the effectiveness or the success of any operations, and Sellers have not provided any other information (financial or otherwise) regarding the Company to Buyer or its representatives or made available to Buyer or its representatives in any “data rooms”, “virtual data rooms”, management presentations or in any other form in expectation of, or in connection with the Company or the transaction described in this Agreement, and (B) none of Company’s (other than Sellers) officers, managers, agents, representatives or employees or any of their respective Affiliates has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth herein.

ARTICLE V
COVENANTS

Section 5.01    Public Announcements. Unless otherwise required by Law or stock exchange requirements (which shall be subject to Section 5.05, if applicable), no party shall make any public announcements regarding this Agreement, the documents to be delivered hereunder or the transactions described herein without the prior written consent of the other parties (which consent shall not be unreasonably withheld or delayed).

Section 5.02    Transfer Taxes. Except as otherwise set forth herein, all transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees (including any penalties and interest thereon) incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Sellers when due. Sellers shall prepare, or cause to be prepared, at their own expense, any Tax Return or other document with respect to such Taxes or fees. Buyer shall cooperate with Sellers as necessary to minimize any such Taxes or fees, including timely providing certificates and statements for same and executing and filing any such Tax Returns.

Section 5.03    Further Assurances. Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions described in this Agreement and the documents to be delivered hereunder.

Section 5.04    Sellers’ Non-Competition and Non-Solicitation.

(a)    For a period of five years commencing on the day following the Closing Date (the “Restricted Period”), no Seller shall, and no Seller shall permit any of its Affiliates (including through the provision of management, advisory, or technical services or through a joint venture or partnership) to, directly or indirectly, engage in or assist others in engaging in the Business in the continental United States (the “Seller Restricted Business”). Notwithstanding anything herein to the contrary, the restrictions set forth in this Section 5.04 shall not apply to the Excluded Business.

(b)    Notwithstanding the foregoing, any Seller may own, directly or indirectly, solely as an investment, securities of any Person, whether or not traded on any national securities exchange, if such Seller owns less than 5% of, and is not a member of a group which controls, such Person and does not, directly or indirectly, own more than a minority interest of any class of securities of such Person. As used herein, the term “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person (and, for the avoidance of doubt, Company will be an Affiliate of Buyer immediately following Closing). The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

(c)    During the Restricted Period, no Seller shall, and no Seller shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of Buyer or encourage any such employee to leave such employment or hire any such employee who has left such employment within 12 months after leaving such employment, except pursuant to a general solicitation which is not directed specifically to any such employees.

(d)    During the Restricted Period, no Seller shall, and no Seller shall permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of Buyer who were engaged as clients or customers of Buyer within 12 months prior to such solicitation or enticement for purposes of diverting their business or services from Buyer to a Seller Restricted Business.

(e)    Sellers acknowledge that a breach or threatened breach of this Section 5.04 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or need to prove inadequacy of money damages). The foregoing notwithstanding, no Seller shall be responsible for any breach or threatened breach of this Section 5.04 by any other Seller.

(f)    Sellers acknowledge that the restrictions in this Section 5.04 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions described in this Agreement. In the event that any covenant in this Section 5.04 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by Law. The covenants in this Section 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Section 5.05    Filing of Current Report. Buyer agrees that it shall, within the time required under the Exchange Act, file with the SEC a report on Form 8-K relating to the transactions described in, and describing the material terms and conditions of, this Agreement and the documents to be delivered hereunder (the “Current Report”). Buyer shall permit Sellers to review and comment upon the substantially complete pre-filing draft version of the Current Report at least two days prior to its filing with the SEC, and Buyer shall incorporate any and all such comments into the Current Report that is filed with the SEC, as reasonably approved by counsel to Buyer.

Section 5.06    Tax Matters.

(a)    Filing of Tax Returns; Payment of Taxes.

(i)    Buyer and Sellers acknowledge that the purchase of the Purchased Units will be reported for Federal and applicable state income tax purposes consistent with Revenue Ruling 99-6, Situation 2.

(ii)    Sellers will, at the expense of Sellers, prepare or cause to be prepared and file or cause to be filed the final federal and state partnership Tax Return of Company for the taxable year of Company ending on or prior to the Closing Date.

(iii)    Sellers will prepare or cause to be prepared and timely execute and file or cause to be timely executed and filed all Tax Returns of Company required to be filed following the Closing Date for all Pre-Closing Tax Periods and Buyer will prepare or cause to be prepared and timely execute and file or cause to be timely executed and filed all Tax Returns of Company required to be filed following the Closing Date for all Straddle Periods. Buyer shall cause all such Tax Returns to be executed and filed on behalf of the Company.

(b)    Allocation of Straddle Period Taxes. In the case of Taxes that are payable with respect to any Straddle Period, the portion of any such Taxes that is attributable to the portion of the period ending on the Closing Date will be:

(i)    in the case of Taxes that are either (A) based upon or related to income, margin or receipts or (B) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), deemed equal to the amount that would be payable if the Tax period of Company (and each partnership in which Company is a partner) ended with (and included) the Closing Date; provided, exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) will be allocated between the period ending on and including the Closing Date and the period beginning following the Closing Date in proportion to the number of days in each period; and

(ii)    in the case of Taxes that are imposed on a periodic basis with respect to the assets or capital of Company, deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the portion of the period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire period.

(c)    Tax Treatment of Certain Items. The parties hereto agree that all Transaction Expenses and other transactional Tax deductions will be treated as properly allocable to Company in a Pre-Closing Tax Period.

(d)    Cooperation on Tax Returns and Tax Proceedings. Buyer, Sellers and Company will cooperate fully as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns and any audit, litigation or other proceeding (each a “Tax Proceeding”) with respect to Taxes imposed on or with respect to the assets, operations or activities of Company. Such cooperation will include the retention and (upon request of any other party hereto) the provision of records and information which are reasonably relevant to any such Tax Return or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any documents reasonably relevant to such Tax Proceeding; provided, however, that in no event shall Sellers have any obligation to retain records past the date on which the applicable statute of limitations for the Tax year remains open.

(e)    Amended Tax Returns. Except as may be required under Tax Law, neither Buyer nor Company shall amend or change, or cause any Person to amend or change, any Tax election or Tax Return of Company for any Pre-Closing Tax Period or any Straddle Period without the consent of Sellers if such amendment would have the effect of increasing the Taxes payable in respect of a Pre-Closing Tax Period or Straddle Period or reducing the amount of any Tax refunds to which Sellers would be otherwise be entitled.

(f)    Tax Contests. Buyer agrees to promptly provide Sellers with copies of any written notice to Company, Buyer or any of Buyer’s Affiliates (i) of Taxes relating to a Pre-Closing Tax Period or Straddle Period or (ii) which involves the assertion of any claim, or the commencement of any action, in respect of which an indemnity may be sought by Buyer pursuant to Section 6.02(d). Section 6.04(c) shall apply to the defense and resolution any such Tax claims except that Sellers shall exclusively control any disputes with respect to Pre-Closing Tax Periods.

(g)    Tax Refunds. Any refund of Taxes attributable to the Company received by Buyer or the Company (or any of their respective Affiliates), and any amounts credited against Taxes to which Buyer or the Company (or any of their respective Affiliates) become entitled, after the Closing Date shall be solely for the account of (i) Sellers to the extent constituting or arising from Pre-Closing Taxes, and (ii) solely for the account of the Company and/or other applicable taxpayers to the extent constituting or arising from Taxes other than Pre-Closing Taxes. Any such amounts for the account of Sellers shall be paid by Buyer or the Company to Sellers within 20 calendar days after the amount is received.

Section 5.07    Removal of Guarantees. Following the Closing, Buyer shall take all reasonable actions (and shall bear all costs and expenses related thereto) required to cause any guarantee set forth on Section 5.07 of the Disclosure Schedules, and any other guarantee by any Seller or other third party of any liability or obligation of Company that is not terminated in full prior to, or at, the Closing to be terminated in full as promptly as practicable, but no later than the day that is 60 days following the Closing (the “Guarantee Removals”). The parties acknowledge and agree that, for purposes of this Section 5.07, the following shall be deemed “reasonable actions”: (i) offering for Buyer or Company to replace the guarantor on any such guarantee; (ii) ending Company’s relationship with such guaranteed Person, so long as Company can replace such relationship with that of a substantially similar Person; and (iii) posting a bond or letter of credit in the amount requested by the guaranteed Person.

Section 5.08    Phase I. In the event a Phase I Environmental Site Assessment concerning all real property used in operation of the Business has not been completed by the Closing Date, within 30 days after Closing, Buyer shall, or shall cause the Company to, perform a Phase I Environmental Site Assessment concerning all real property used in operation of the Business.

Section 5.09    Resignations. Sellers shall deliver to Buyer written resignations, effective as of the Closing Date, of the officers and managers of Company (and any other position held by such Seller).

Section 5.10    First-Tier Subsidiary. Until the Closing Notes are paid in full, Buyer shall not cause the Company to enter into any transaction or series of transactions, including, without limitation, any merger, reorganization, consolidation, or sale, in which the end result is that the Company is no longer a First Tier Subsidiary of the Buyer. For purposes of this Section 5.10, a “First Tier Subsidiary” is an entity that is directly owned by the Buyer.

ARTICLE VI
INDEMNIFICATION

Section 6.01    Survival. All representations and warranties herein and all related rights to indemnification and reimbursement shall survive the Closing until the 18-month anniversary of the Closing Date; provided, however, that (i) each of the representations and warranties in Section 3.01, Section 3.02, Section 3.03, Section 3.12, Section 3.16, and Section 3.20 (the “Fundamental Representations”) (and all rights to indemnification and reimbursement relating thereto) shall survive until the expiration of the applicable statute of limitations, plus 60 days thereafter; (ii) each of the covenants and agreements herein (and all rights to indemnification and reimbursement relating thereto) shall survive until the expiration of the applicable term set forth in this Agreement or, if no such term is provided, the expiration of the applicable statute of limitations; and (iii) each of the representations and warranties in Article IV (and all rights to indemnification and reimbursement relating thereto) shall survive the Closing until the 18-month anniversary of the Closing Date.

Section 6.02    Indemnification By Sellers. Subject to the terms hereof, the Sellers, jointly and severally, shall defend, indemnify, and hold harmless Buyer, its Affiliates and their respective stockholders, directors, officers and employees (excluding for purposes of this use of “Affiliates” the other Seller and his Affiliates) (“Buyer Indemnitees”) from and against all Damages, directly arising from:

(a)    any inaccuracy in or breach of any of the representations or warranties of Company or such Seller in this Agreement;

(b)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Company on or before the Closing Date or such Seller pursuant to this Agreement;

(c)    any of the matters set forth on forth in Sections 3.10 and 3.11, and 3.14(b) of the Disclosure Schedules; or

(d)    Pre-Closing Taxes of Company; provided, however, that Sellers shall only indemnify Buyer Indemnitees for any Pre-Closing Taxes over and above the amount of accrued Taxes included as a Current Liability in the calculation of the Closing Working Capital;

provided, however, that notwithstanding the foregoing, each Seller shall be solely liable to indemnify the Buyer Indemnitees with respect to any breach of any representation or warranty of such Seller on behalf of itself (i.e., not on behalf of Company or on behalf of the other Seller) herein or with respect to any failure by such Seller to perform or observe any term, provision, covenant or agreement herein applicable solely to such Seller.

Section 6.03    Indemnification By Buyer. Subject to the terms hereof, Buyer shall defend, indemnify, and hold harmless Sellers and their respective Affiliates from and against all Damages directly arising from:

(a)    any inaccuracy in or breach of any of the representations or warranties of Buyer in this Agreement;

(b)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer or, following the Closing, Company pursuant to this Agreement; or

(c)    the Guarantee Removals or any breach by Buyer of the covenant set forth in Section 5.07.

Section 6.04    Indemnification Procedures.

(a)    Whenever any claim shall arise for indemnification hereunder, whether a Direct Claim or a Third-Party Claim (an “Indemnification Claim”), the party entitled to indemnification or reimbursement (the “Indemnified Party”) shall promptly provide written notice (a “Claim Notice”) of such Indemnification Claim to the other party (the “Indemnifying Party”).

(b)    Each Claim Notice shall describe the Indemnification Claim in reasonable detail, include copies of all available material written evidence thereof, and indicate the estimated amount, if reasonably practicable, of Damages that have been or may be sustained by the Indemnified Party. The Indemnified Party shall, to the extent requested, provide the Indemnifying Party with reasonable access to its and its Affiliates’ books and records during normal business hours upon reasonable advance notice for the purpose of allowing the Indemnifying Party a reasonable opportunity to verify any such claim for Damages.

(c)    In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement (a “Third-Party Claim”), the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume and control the defense of any such Action with counsel it selects in its sole discretion. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such Action, with its counsel and at its own cost and expense. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including, but not limited to, settling such Action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification or reimbursement obligations herein provided with respect to any Damages resulting therefrom, subject to the limitations set forth herein. The Indemnifying Party shall not settle any Action without the Indemnified Party’s prior written consent, unless the settlement involves only money paid by the Indemnifying Party pursuant to its indemnification obligations hereunder or otherwise, in which case no such prior consent shall be required.

(d)    In connection with any claim giving rise to indemnity hereunder other than a Third-Party Claim (a “Direct Claim”), if the Indemnifying Party does not respond within 30 days of receiving the Claim Notice, the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party under this Agreement. If the Indemnifying Party disputes its obligation to provide indemnification for such Direct Claim within such 30-day period, the Indemnifying Party and the Indemnified Party shall negotiate in good faith to resolve such dispute. If unable to reach a mutually agreeable resolution, the dispute shall be resolved in accordance with Section 7.11 hereof.

(e)    Notwithstanding the above, the determination and resolution of any Pre-Closing Taxes shall be governed by Section 5.06.

Section 6.05    Limitations.

(a)    The Buyer Indemnitees shall have no right to recover, and Sellers have no obligation to pay, any amounts pursuant to Section 6.02(a) until the total amount of all Eligible Claims which may be asserted for Damages incurred by the Buyer Indemnitees under Section 6.02(a), in the aggregate, exceeds Two Hundred Thousand Dollars ($200,000.00) (the “Deductible”), in which case the Buyer Indemnitees will be entitled to recover all Damages pursuant to Section 6.02(a) in excess of the Deductible, subject to the other limitations in this Article VI. An “Eligible Claim” is a claim pursuant to Section 6.02(a) that, when aggregated with all other contemporaneous claims arising from the same set of facts or circumstances, is in excess of $20,000. The Buyer Indemnitees shall have no right to recover any amounts pursuant to Section 6.02(a) for any claim that is not an Eligible Claim. Notwithstanding anything in this Section 6.05(a) to the contrary, the limitations in this Section 6.05(a) shall not apply to the recovery of any Damages (i) under Section 6.02(a) relating to an inaccuracy in, breach of or failure to be true of, any Fundamental Representation, or (ii) arising or resulting from fraud, willful misconduct, or willful concealment by a Seller.

(b)    Notwithstanding any other provision of this Agreement to the contrary:

(i)    the maximum aggregate indemnification liability of all Sellers pursuant to Section 6.02(a) shall be an amount equal to twenty percent (20%) of the Purchase Price (the “Cap”); provided, however, that the Cap shall not apply to the recovery of any Damages (A) under Section 6.02(a) relating to an inaccuracy in, breach of or failure to be true of, any Fundamental Representation, or (B) arising or resulting from fraud, willful misconduct, or willful concealment by a Seller;

(ii)    the maximum aggregate indemnification liability of all Sellers pursuant to (A) Section 6.02(a) relating to an inaccuracy in, breach of or failure to be true of, any Fundamental Representation and (B) Section 6.02(b) shall not exceed the portion of the Purchase Price actually received in cash or Buyer Common Stock (with such stock valued at the same value at which it was valued pursuant to this Agreement at the time of its issuance) by all Sellers; provided, however, that such maximum aggregate indemnification liability shall not apply to the recovery of any Damages arising or resulting from fraud, willful misconduct, or willful concealment by a Seller;

(iii)    in no event will any Seller be liable under this Section 6.05 or otherwise in connection with this Agreement or any document to be delivered hereunder or the transactions described herein for an aggregate amount in excess of the Purchase Price (with such stock valued at the same value at which it was valued pursuant to this Agreement at the time of its issuance);

(iv)    in no event will any one Seller be liable for Damages to the extent based upon, relating to, in connection with, or arising or resulting from (A) the breach of a representation or warranty made by another Seller; (B) the breach of a covenant committed by another Seller, or (C) fraud committed by another Seller;

(v)    Any Seller may tender shares of Buyer Common Stock (with such stock valued at the same value at which it was valued pursuant to this Agreement at the time of its issuance) in satisfaction of any indemnity obligation under this Agreement.

(c)    For purposes of this Article VI, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality or other similar qualification contained in or otherwise applicable to such representation or warranty.

Section 6.06    Calculation of Losses. In making any determination of the amount of any Indemnification Claim under this Agreement, the applicable Damages will be reduced by any insurance proceeds or any indemnity, contribution or other similar payment actually received by the Indemnified Party or its Affiliates from any source with respect thereto, net of any costs and expenses of such recovery and increase in applicable premiums related to the recovery of such proceeds. Each Indemnified Party shall take reasonable steps to receive any insurance proceeds or any indemnity, contribution or other similar payment to which it may be entitled relating to indemnifiable Damages hereunder. Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.

Section 6.07    Tax Treatment. Any payment made by any Person under this Article VI will, for Tax purposes, be treated as an adjustment to the consideration paid for the Purchased Units to the extent reasonably related to the value of the Purchased Units or Company.

Section 6.08    Setoff. In addition to all other remedies available to Buyer, if any amount is due to Buyer under the terms of Section 1.03 or if any amount is agreed to by Sellers or finally adjudicated to be payable by the Sellers to Buyer under this Article VI, Buyer or its Affiliates shall automatically set off such amount against the Closing Notes, pro rata in accordance with the applicable liability of each Seller, and so long as there are funds remaining under the Closing Notes to be set off, no transfer of funds shall be required of Sellers to satisfy its obligations hereunder.

Section 6.09    Exclusive Remedies. Except for the Independent Accountant’s review set forth in Section 1.03 and, except as set forth in Section 5.04 and Section 7.13, the Indemnified Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all Indemnification Claims (other than claims arising from fraud, criminal activity, willful misconduct, or willful concealment on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI; provided, however, nothing in this Section 6.08 shall limit an Indemnified Party’s right to seek and obtain any equitable relief to which such Indemnified Party shall be entitled or to seek any remedy on account of any party’s fraudulent, criminal or willful misconduct.

ARTICLE VII
MISCELLANEOUS

Section 7.01    Expenses. All costs and expenses incurred in connection with this Agreement, the documents to be delivered hereunder and the consummation of the transactions described herein shall be paid by the party incurring such costs and expenses.

Section 7.02    Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by e-mail of a PDF document (with confirmation of transmission and mailing of a confirmation copy by certified or registered mail) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the fifth business day following the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):

Section 7.04    Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Section 7.05    Entire Agreement.

(a)    This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the documents to be delivered hereunder, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

(b)    The disclosure schedules delivered in connection herewith (the “Disclosure Schedules”) are incorporated into this Agreement by reference and made a part hereof. Notwithstanding anything to the contrary in this Agreement or the Disclosure Schedules, any information disclosed in one Section of the Disclosure Schedules shall be deemed to be disclosed in each other Section of the Disclosure Schedules to the extent that the applicability of such information to such other Section of the Disclosure Schedules is reasonably apparent on its face. Certain information set forth in the Disclosure Schedules is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made by Sellers or Company in this Agreement or that it is material, nor shall such information be deemed to establish a standard of materiality.

Section 7.06    Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that (i) Sellers may assign their rights to receive any portion of the Purchase Price to any Person without the prior written consent of Buyer or any other party, (ii) Buyer may assign or grant a lien on its rights hereunder to any Financing Source as collateral security for any indebtedness used to fund a portion of the Purchase Price and (iii) upon the consummation of the transactions contemplated by this Agreement on the Closing Date, Buyer may assign it rights hereunder to the Company and the Company may assign or grant a lien on its rights hereunder to any Financing Source as collateral security for any indebtedness used to fund a portion of the Purchase Price. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 7.07    No Third-party Beneficiaries. Except as provided in Article VI with respect to non-party indemnitees and except with respect to the Financing Sources which shall be express third party beneficiaries of the provisions set forth in this Section 7.07 and Section 7.08, Section 7.10, Section 7.11 and Section 7.13(b), this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 7.08    Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto; provided that any amendment, modification or supplement to any of the provisions set forth in this Section 7.08 or Section 7.07, Section 7.10, Section 7.11 or Section 7.13(b) shall require the prior written consent of the Financing Sources.

Section 7.09    Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 7.10    Governing Law. Other than as set forth in Section 7.11, this Agreement shall be governed by and construed in accordance with the internal Laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).

Section 7.11    Submission to Jurisdiction. Other than as set forth in this Section 7.11 with respect to the Financing Sources, any legal suit, action or proceeding arising out of, related to or based upon this Agreement or the transactions described herein (other than final and binding determinations of the Independent Accountant as set forth in Section 1.03) or in any way connected with or related to or incidental to the dealings of the parties hereto or the Financing Sources in respect of this Agreement or any of the transactions described herein, in each case whether now existing or hereinafter arising, and whether in contract, tort, equity or otherwise (an “Action”) shall only be instituted in the United States District Court for the Northern District of Texas (Dallas Division) or the Civil District Courts of the State of Texas in Dallas County, Texas, and each party hereto irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and each party hereto and each of their respective Affiliates irrevocably and expressly agrees that it and they are subject to the jurisdiction of the United States District Court for the Northern District of Texas (Dallas Division) or the Civil District Courts of the State of Texas in Dallas County, Texas and shall not assert an objection to such exclusive jurisdiction, including any objection to personal jurisdiction. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding anything herein to the contrary, each Seller and each of the other parties hereto acknowledge and irrevocably agrees (i) that it will not bring or support, or permit any of its affiliates to bring or support, any Action, whether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Sources arising out of, related to or based upon this Agreement, the Financing or the transactions described herein or the performance of services thereunder or related thereto in any forum other than the state or federal court sitting in the Borough of Manhattan, New York, New York, and any appellate court thereof and each party hereto submits for itself and its property with respect to any such Action to the exclusive jurisdiction of such court, and (ii) that any such Action shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflicts of law rules of such State that would result in the application of the laws of any other State. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

Section 7.12    Waiver of Right to Jury. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS DESCRIBED HEREIN, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE PARTIES HERETO MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 7.13    Specific Performance; No Liability of Financing Sources.

(a)    The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity, subject to Section 7.11.

(b)    None of the Financing Sources will have any liability to the Sellers, any other party to this Agreement or any of their respective affiliates arising out of, related to or based upon this Agreement or the transactions described herein or in any way connected with or related to or incidental to the dealings of the parties hereto or the Financing Sources in respect of this Agreement or any of the transactions described herein, in each case whether now existing or hereinafter arising, and whether in contract, tort, equity or otherwise and no party to this Agreement or any of its affiliates will have any rights or claims against any of the Financing Sources hereunder or thereunder.

Section 7.14    Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Section 7.15    Representation by BoyarMiller.

(a)    The parties hereby acknowledge and agree that BoyarMiller has represented Sellers prior to the date of this Agreement, including in connection with the negotiation, documentation and consummation of this Agreement and the transactions contemplated hereby, and that Sellers (each a “Client” and collectively, the “Clients”) have a reasonable expectation that BoyarMiller will, if the Clients so wish, represent them in connection with any pending or possible or threatened claim or any other matter involving any Client, on the one hand, and any other party to this Agreement or Company (an “Other Party”) or any of their respective Affiliates (each an “Other Party Group Member” and collectively the “Other Party Group Members”), on the other hand, arising under or relating to this Agreement.

(b)    Each Other Party, on its own behalf and on behalf of the Other Party Group Members (including Company), hereby agrees to all of the matters and consents to the potential future representations described in this Section 7.15 and specifically expressly waives and agrees not to assert any conflict of interest that may arise or be deemed to arise under applicable Laws or standard of professional responsibility if BoyarMiller represents any Client in connection with any claim arising under or relating to this Agreement or the transactions contemplated hereby whether or not such matter is one in which BoyarMiller may have previously advised the Client or in respect of any other matters.

(c)    Each Other Party, on its own behalf and on behalf of the Other Party Group Members (which includes Company), hereby consents to the disclosure by BoyarMiller to the Clients or any of their respective Affiliates, directors, members, partners, officers or employees of any information learned by BoyarMiller in the course of its representation of the Client or their respective Affiliates (which includes Company), whether or not such information is subject to attorney client privilege or BoyarMiller’s duty of confidentiality.

(d)    In addition, each of the parties irrevocably acknowledges and agrees that, from and after the consummation of the transactions contemplated by this Agreement, the attorney-client privilege arising from communications prior to such consummation between any one or more of the Clients and Company (which, for the avoidance of doubt, includes for purposes hereof any representatives of the Clients and Company), on the one hand, and BoyarMiller, on the other hand, to the extent related to this Agreement or the transactions contemplated hereby, shall be excluded from the assets or any other property, rights, privileges, powers, franchises and other interests held by any Other Party Group Members (including Company), that such attorney-client privilege shall be deemed held solely by the Clients, and that no Other Party Group Member shall have any right to assert, waive or otherwise alter any such attorney-client privilege at any time after consummation of the transactions contemplated by this Agreement. All communications between the Clients or Company, on the one hand, and BoyarMiller, on the other hand, relating to the negotiation, documentation and consummation of the Agreement and the transactions contemplated by the Agreement shall be deemed to be privileged and to belong solely to the Clients and not to Other Party Group Members (including Company). The Other Party Group Members shall not have access to any such communications, files, records or other documents of BoyarMiller relating to such engagement (whether in electronic form or otherwise). The Other Parties, to the fullest extent allowed by Law, agree that (i) no waiver of any privilege or right of the Clients is intended or will be claimed by any Other Party as a result of any communications, files, records or other documents being maintained within the records or files, of any Other Party Group Member (including Company) or otherwise in its possession or control, (ii) all Other Party Group Members (including Company) shall endeavor to locate and delete or destroy all such documents and information in their possession or control and (iii) no Other Party Group Member (including Company) will review, offer into evidence or otherwise attempt to use any such communications, files, records or documents (whether or not so maintained) in any claim arising under or relating to this Agreement and the transactions contemplated hereby.

(e)    Each Other Party and its respective Affiliates (including Company after the consummation of the transactions contemplated by this Agreement) further covenant and agree that, from and after the consummation of the transactions contemplated by this Agreement, each of them shall not assert any claim against BoyarMiller in respect of legal services provided to Company, the Clients or their Affiliates by BoyarMiller in connection with this Agreement or the transactions contemplated hereby.

(f)    Each Other Party hereby agrees that it shall cause any Person that is, or after the consummation of the transactions contemplated by this Agreement becomes, an Affiliate of such Other Party to execute any document or instrument reasonably requested from time to time by any Client in order to evidence or effectuate the intentions of the parties reflected in this Section 7.15.

(g)    This Section 7.15 shall be irrevocable, and no term of this Section 7.15 may be amended, waived or modified, without the prior written consent of BoyarMiller, the Clients and their respective Affiliates affected thereby.

[Balance of Page Intentionally Blank. Signature Page Follows.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

EXHIBIT A

CERTAIN DEFINITIONS

“Business” means the engineering, construction and maintenance of electrical transmission, distribution and substation systems.

“Buyer’s Management Team” means William Clough, Daniel Ford and Jim O’Neil.

“Closing Working Capital” means (i) the Current Assets of Company, less (ii) the Current Liabilities of Company, determined as of the open of business on the Closing Date.

“Code” means the Internal Revenue Code of 1986, as amended, or any amending or superseding Tax Laws of the United States.

“Company Indebtedness” means, without duplication and with respect to Company, all (i) indebtedness for borrowed money; (ii) obligations for the deferred purchase price of property or services (other than Current Liabilities taken into account in the calculation of Closing Working Capital), (iii) long or short-term obligations evidenced by notes, bonds, debentures, or other similar instruments; (iv) obligations under any interest rate, currency swap, or other hedging agreement or arrangement; (v) capital lease obligations; (vi) reimbursement obligations under any letter of credit, banker’s acceptance, or similar credit transactions; (vii) guarantees made by Company on behalf of any third party in respect of obligations of the kind referred to in the foregoing clauses (i) through (vi); and (viii) any unpaid interest, prepayment penalties, premiums, costs, and fees that would arise or become due as a result of the prepayment of any of the obligations referred to in the foregoing clauses (i) through (vii).

“Current Assets” means cash and cash equivalents (after distributions as permitted by Section 1.04), accounts receivable, inventory and prepaid expenses, but excluding (i) the portion of any prepaid expense of which Buyer will not receive the benefit following the Closing; (ii) deferred Tax assets; and (iii) receivables from any of Company’s Affiliates, directors, employees, officers or stockholders and any of their respective Affiliates, determined in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Financial Statements for the most recent fiscal year end as if such accounts were being prepared and audited as of a fiscal year end.

“Current Liabilities” means accounts payable, accrued Taxes and accrued expenses, but excluding payables to any of Company’s Affiliates, directors, employees, officers or stockholders and any of their respective Affiliates, deferred Tax liabilities and the current portion of long term debt, determined in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Financial Statements for the most recent fiscal year end as if such accounts were being prepared and audited as of a fiscal year end.

“Damages” means, whether arising from Direct Claims or Third-Party Claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements; provided, however, that “Damages” shall not include any consequential damages, incidental damages, special damages, diminutions in value, business interruptions, lost profits, exemplary damages or punitive damages.

“Employee Benefit Plans” means each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), including each “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Company for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of Company.

“Environmental Law” means any applicable federal, state, or local laws, ordinances, regulations, judgments, and orders and the common law relating to environmental matters, including provisions pertaining to or regulating pollutants, contaminants, or toxins, air pollution, water pollution, wetlands, watercourses, wildlife, hazardous substances and human exposure thereto, or any other activities or conditions which impact or relate to the environment or nature.

“Environmental Liability” means any and all Damages alleged by any third party (including any private party or Governmental Entity), arising out of, relating to, or resulting from the presence, disposal, treatment, storage or release of hazardous substances in, on, under, or migrating from any real property utilized by Company, as well as any violation or alleged violation of any Environmental Law. This liability includes any cost of removing or disposing of any hazardous substances, any cost of enforcement, cost of investigation or remedial action, and any other cost or expense whatsoever, including reasonable attorneys’, accountants’, engineers’, and consultants’ fees and disbursements, related or relating to the presence, disposal, treatment, storage or release of hazardous substances in, on, under, or migrating from any real property utilized by Company.

“Environmental Permits” means any permit, license, consent, approval, authorization, exemption, variance, registration, filing, notification, waiver, order, authorization, grant or other form of governmental permission or notice required to be obtained from or submitted to any Governmental Entity pursuant to Environmental Law to conduct the operations of Company.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Excluded Business” means the historical and current field and office operations of Tidal Power Group LLC and its affiliates, generally including low, medium, and high voltage testing, commissioning, repair, startup and maintenance services. Field services include protective relay testing, calibration and verification, circuit breaker testing, repair and rebuild, switchgear testing, emergency response, transformer testing and repair, complete oil services, SF6 processing - including purification, protective relay upgrades, cable testing: DC, VLF and VLF tan delta, VLF partial discharge, generator testing, infrared surveys, substation testing and commissioning, equipment upgrades and retrofits, compliance testing of systems. Office services include protective relay coordination studies, arc flash studies, arc flash mitigation strategies, load flow studies, circuit breaker testing, circuit breaker retrofits and refurbishments.

“Financing” means any debt financing obtained by the Buyer or the Company in connection with this Agreement and the transactions contemplated hereby, except for any debt incurred in connection with the Closing Notes or obligations incurred under this Agreement.

“Financing Sources” means the Persons that provide or arrange or otherwise entered into agreements in connection with the Financing, and the parties to any fee reimbursement letters, term sheets, commitment letters, engagement letters, joinder agreements, indentures or credit agreements entered pursuant thereto or relating thereto, together with their respective affiliates, and their and their respective affiliates’ officers, directors, employees, agents and representatives and their respective successors and assigns.

“GAAP” means United States generally accepted accounting principles in effect from time to time.

“Governmental Entity” means any court, governmental department, commission, council, board, agency, bureau or other instrumentality of the United States of America, any foreign jurisdiction, or any foreign or domestic federal, state, provincial, county, municipality or local governmental unit thereof, including any taxing authority.

“Laws” means any applicable law, statute, rule, regulation, ordinance and other pronouncement having the effect of law of the United States of America, any foreign country or any domestic or foreign state, county, city or other political subdivision or of any Governmental Entity.

“Permitted Encumbrances” means (i) statutory Encumbrances for Taxes, assessments and other charges by Governmental Entities that are not yet due and payable; (ii) statutory Encumbrances of landlords, carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due; (iii) Encumbrances incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations; (iv) easements, rights of way, zoning, building codes, deed restrictions and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction thereover, which do not, individually or in the aggregate, materially detract from the value or impair the present and continued use, operation and maintenance of real property subject thereto; (v) a lessor’s interest in, and any Encumbrances on or affecting a lessor’s interest in, any of real property; or (vi) the Encumbrances set forth on Section 3.02 of the Disclosure Schedules.

“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust, a joint stock company, a joint venture, an unincorporated organization, any Governmental Entity, or other entity or organization.

“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date.

“Pre-Closing Taxes” means for any Pre-Closing Tax Period and for the portions of any Straddle Period ending on the Closing Date, (i) any and all Taxes of Company, or for which Company may otherwise be liable; (ii) Taxes of any member of any affiliated, combined, consolidated, unitary or similar group with respect to any Taxes of which Company (or any predecessor of the foregoing) is or was a member on or prior to the Closing Date; (iii) Taxes of any other Person for which Company is or has been liable as a transferee or successor, by contract or otherwise; and (iv) Taxes that are social security, Medicare, unemployment or other employment or withholding Taxes.

“SEC” means the United States Securities and Exchange Commission and any successor Governmental Entity having the same administrative authority.

“Seller Bank Account” means, for each Seller, the bank account identified on Funds Flow Agreement attached hereto as Exhibit H or at such other bank account specified by such Seller a notice given in accordance with Section 7.02.

“Straddle Period” means any Tax period beginning on or before and ending following the Closing Date.

“Subsidiary” means, with respect to any Person, (i) any corporation of which a majority of the total voting power of shares of stock or other equity interests entitled (without regard to the occurrence of any contingency) to vote generally in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (ii) any limited liability company, partnership, association, or other business entity, of which a majority of the partnership, membership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes of this definition, a Person or Persons will be deemed to have a majority ownership interest in a limited liability company, partnership, association, or other business entity if such Person or Persons is or will be allocated more than 50% of the limited liability company, partnership, association, or other business entity interests, gains or losses, or is or controls the managing member or general partner of such limited liability company, partnership, association, or other business entity.

“Target Working Capital” means $7,500,000.00.

“Tax” means (i) all federal state, local and foreign income, profits, gross receipts, net proceeds, alternative or add on minimum, ad valorem, value added, turnover, sales, use, property, personal property (tangible and intangible), stamp, leasing, lease, user, excise, duty, franchise, capital stock, transfer, registration, license, withholding, social security (or similar), unemployment, disability, payroll, employment, social contributions, fuel, excess profits, occupational, premium, windfall profit, severance, estimated, or other charge of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not; (ii) any liability for the payment of any amounts of the type described in clause (i) as a result of being a member of an affiliated, combined, consolidated, unitary or similar group with respect to any Taxes for any period; and (iii) any liability of for the payment of any amounts of the type described in clause (i) or (ii) as a result of the operation of law or any express or implied obligation to indemnify any other Person.

“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Transaction Expenses” means all liabilities, costs, fees and expenses incurred by or on behalf of Sellers or Company prior to and through the Closing (and not paid prior to the Closing) in connection with the negotiation, preparation, execution and delivery of this Agreement, or any other documents contemplated hereby, including all fees and expenses of professionals (including attorneys, accountants and other consultants and advisors).

EXHIBIT B

CLOSING WORKING CAPITAL STATEMENT

EXHIBIT C

MEMBERSHIP INTEREST ASSIGNMENT

EXHIBIT D

RELEASE

[Attached]

EXHIBIT E

EMPLOYMENT AGREEMENT

[See attached]

EXHIBIT F

LOCKUP AGREEMENT

[See attached]

EXHIBIT G

REGISTRATION RIGHTS AGREEMENT

[See attached]

EXHIBIT H

FUNDS FLOW AGREEMENT

[See attached]

EXHIBIT I

CLOSING NOTES

[See attached]

Exhibit 99.3

UNSECURED PROMISSORY NOTE

THIS UNSECURED PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.

ORBITAL ENERGY GROUP, INC.

UNSECURED PROMISSORY NOTE

DUE MAY 17, 2022

$34,256,000.00                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Houston, Texas

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated as of November 17, 2021

FOR VALUE RECEIVED, the undersigned, ORBITAL ENERGY GROUP, INC., a Colorado corporation (the “Borrower”), hereby promises to pay to Kurt A. Johnson, Jr. (together with any successors or assigns as holder of the Debt described herein, the “Holder”) or his permitted registered successors and assigns, the principal sum of Thirty-four Million Two Hundred Fifty-six Thousand and No/100 Dollars ($34,256,000.00) (such amount of principal and accrued interest hereunder is, collectively, the “Debt”), on May 17, 2022 (the “Maturity Date”), together with all accrued and unpaid interest thereon from time to time as provided herein.

1.    Purchase Agreement. This Unsecured Promissory Note (this “Note”) is one of two (2) unsecured promissory notes (each a “Closing Note”, and collectively, the “Closing Notes”) issued by the Borrower, on the date hereof, pursuant to the Membership Unit Purchase Agreement, dated as of November 17, 2021 (the “Purchase Agreement”), by and among the Borrower, the Holder, and Tidal Power Group LLC, a Texas limited liability company, in respect of the purchase by the Borrower of all of the equity interests of Front Line Power Construction, LLC, a Texas limited liability company (the “Company”), and is subject to the terms thereof. Capitalized terms used herein without definition are used herein with the meanings ascribed to such terms in the Purchase Agreement or, as indicated herein, in that certain Credit Agreement, including all exhibits and schedules thereto, dated as of November 17, 2021, by and among the lenders from time to time party thereto (the “Senior Creditors”), the Borrower, the Company, the Guarantors, the other Subsidiaries party thereto, and Alter Domus (US) LLC, a Delaware limited liability company, in its capacity as administrative agent and collateral agent for each of the Lenders (the “Agent”) (as amended, restated, supplemented, replaced or refinanced or otherwise modified from time to time, the “Credit Agreement”).

2.    Interest. The Borrower promises to pay simple interest (“Interest”) on the principal amount of this Note at the rate of 6% per annum, which Interest shall be due and payable at such time that the principal amount of this Note becomes due and payable on the Maturity Date. If any Holder shall receive more than its pro rata share of any payments made by the Borrower towards the Closing Notes, such Holder shall hold such amount in trust for the Holders receiving less than their respective share of such payment and will pay such amount over to such other Holders. All Interest on this Note shall (a) accrue from and including the date of issuance through and until repayment of the principal amount of this Note and payment of all Interest in full, and (b) be computed on the basis of a 365 (or 366) day year for the actual number of days elapsed.

3.    Optional Prepayment. Upon not less than five (5) days’ written notice given to the Holder, the Borrower, at its option, may prepay all or any portion of the principal amount of this Note or any accrued Interest at any time without fee, premium or penalty, by paying such amount to the Holder. All optional prepayments under this Section 3 shall be applied first to any accrued and unpaid Interest and thereafter to principal. If the Borrower elects to prepay all or any portion of one Closing Note without making an election to prepay all Closing Notes in the same pro rata amount, such election shall nevertheless be deemed to be an election to prepay all Closing Notes pro rata and any Holder that receives more than its pro rata share of any prepayments made by the Borrower towards the Closing Notes shall hold such amount in trust for the Holders receiving less than their respective pro rata share of such payment and will pay such amount over to such other Holders.

4.    Amendment. No amendment of any provision of this Note shall be effective, unless the same shall be in writing and signed by the Borrower and the Holder. Except as otherwise expressly set forth herein, any failure of the Borrower to comply with any provision hereof may only be waived in writing by the Holder, and any failure of the Holder to comply with any provision hereof may only be waived in writing by the Borrower. No such waiver shall operate as a waiver of, or estoppel with respect to, any subsequent or other failure. No failure by any party to take any action against any breach of this Note or default by any other party shall constitute a waiver of such party’s right to enforce any provision hereof or to take any such action.

5.    Defaults and Remedies.

(a)    Events of Default. An “Event of Default” shall occur if:

(i)    the Borrower shall default in the payment of the principal of or any Interest in respect of the Debt, when and as the same shall become due and payable; or

(ii)    an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of the Borrower or any of its Subsidiaries, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended (the “Bankruptcy Code”), or any other Federal or state bankruptcy, insolvency, receivership or similar law, (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries, or for a substantial part of its property or assets, or (C) the winding up or liquidation of the Borrower or any of its Subsidiaries; and such proceeding or petition shall continue undismissed for 60 days, or an order or decree approving or ordering any of the foregoing shall be entered; or

(iii)    the Borrower or any of its Subsidiaries shall (A) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (ii) of this Section 5(a), (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries, or for a substantial part of its property or assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors, (F) become unable, admit in writing its inability, or fail generally to pay its debts as they become due, or (G) take any action for the purpose of effecting any of the foregoing; or

(iv)    a default, breach or violation in the observance or performance of any covenant or agreement contained this Note or the Purchase Agreement shall have occurred and not be cured within ten (10) days after the Borrower receives written notice thereof from the Holder; or

(v)    without the prior written consent of the Holder, (A) a sale, assignment or other transfer, direct or indirect, in one or more transactions of more than 50% of the capital stock or of all or substantially all of the assets of the Borrower to any Person, (B) a merger or consolidation of the Borrower with any other entity, (C) the Borrower takes any action to liquidate, wind up its affairs or terminate its existence, or (D) the Borrower takes any action to sell or transfer more than 50% of the capital stock of the Company, sell or transfer all or substantially all of the assets of the Company, merge or consolidate the Company with or into any Person, or terminate the existence of the Company; or

(vi)    any default under the Credit Agreement or any other document related to the Obligations (as defined in the Credit Agreement) or other event pursuant to which the Senior Creditors or the Agent have the right to accelerate the Obligations (as defined in the Credit Agreement) or foreclose upon any security interest securing the Obligations (as defined in the Credit Agreement), which default is not then subject to a valid and subsisting waiver by the lenders or the Agent on behalf of the lenders under the Obligations (as defined in the Credit Agreement).

(b)    Acceleration. If an Event of Default occurs and is continuing beyond the applicable notice and cure period stated in Section 5(a) above, the Holder may declare the entire principal of and accrued and unpaid Interest on this Note to be immediately due and payable. Upon such declaration, such principal and Interest shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived. The Holder may rescind an acceleration and its consequences if all existing Events of Default have been cured or waived, except nonpayment of principal or Interest that has become due solely because of the acceleration, and if the rescission would not conflict with any judgment or decree.

6.    [Intentionally Deleted – Reserved].

7.    Suits for Enforcement.

(a)    Upon the occurrence of any one or more Events of Default, the Holder may seek to protect and enforce its rights hereunder by suit in equity, action at law or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, and may seek to enforce the payment of the Debt, or to enforce any other legal or equitable right of the Holder.

(b)    Upon the occurrence of any one or more Events of Default, the Borrower will pay to the Holder such amounts as shall be sufficient to cover the reasonable costs and expenses of the Holder due to such default, including the reasonable fees and expenses of one counsel for the Holder.

8.    Remedies Cumulative. No remedy herein conferred upon the Holder is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.

9.    Offset. The Borrower’s obligations to make any payment in respect of this Note, at any time and from time to time, are subject to set off against any payment obligations of the Holder (notwithstanding any assignment of this Note pursuant to Section 10) as set forth in Section 6.08 of the Purchase Agreement.

10.    Assignment. The term “Holder” as used herein shall also include any permitted registered assign of this Note or any portion of the Debt. Each such assignee acknowledges that this Note has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and may be assigned only pursuant to an effective registration under the Securities Act or pursuant to an applicable exemption from the registration requirements of the Securities Act. This Note and any portion of the Debt may be transferred or assigned by the Holder without the Borrower’s prior written consent; provided, however, that until all Obligations (as defined in the Credit Agreement) have been paid in full, the Borrower shall notify the Agent of any such transfer or assignment and any such assignee or transferee shall agree in writing to be bound by the terms and conditions of this Note as a condition to any such assignment or transfer. The Borrower shall maintain at one of its offices a copy of each assignment and a register (the “Register”) for the recordation of (i) the names and addresses of the Holders of this Note and the Debt, and (ii) the amount of principal, interest and other amounts due and payable or to become due and payable in respect of the Debt that are owing and that have been paid. The Borrower and the Holders may treat as the Holder the Person whose name is recorded in the Register as such.

11.    Replacement of Note. On receipt by the Borrower of an affidavit of the Holder, in form and substance reasonably satisfactory to the Borrower, stating the circumstances of the loss, theft, destruction or mutilation of this Note (and in the case of any such mutilation, on surrender and cancellation of such Note), the Borrower, at the Holder’s expense, will promptly execute and deliver, in lieu thereof, a new Note of like tenor. If required by the Borrower, the Holder must provide indemnity, sufficient in the reasonable judgment of the Borrower, to protect the Borrower from any loss which it may suffer if a lost, stolen or destroyed Note is replaced.

12.    Covenants Bind Successors and Assigns. All the covenants, stipulations, promises and agreements contained in this Note by or on behalf of the Borrower shall bind its successors and assigns, whether so expressed or not.

13.    Notices. All notices, demands and other communications provided for or permitted hereunder shall be delivered to the Borrower, the Holder and the Agent at their respective addresses or electronic mail addresses set forth on the signature pages of this Note. Each notice hereunder shall be in writing and may be personally served or sent by electronic mail or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of electronic mail (with evidence of delivery), or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided, no notice to the Agent shall be effective until received by the Agent.

14.    GOVERNING LAW. THIS NOTE AND THE DEBT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.

15.    WAIVER OF JURY TRIAL. EACH PARTY TO THIS NOTE AND EACH HOLDER (WHETHER OR NOT A PARTY) HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION BROUGHT PURSUANT TO THIS NOTE. EACH PARTY TO THIS NOTE HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

16.    SUBMISSION TO JURISDICTION. ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS ARISING OUT OF THIS NOTE SHALL BE BROUGHT IN THE TEXAS STATE COURT LOCATED IN HARRIS COUNTY, TEXAS, OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, AND EACH PARTY HERETO HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS. IN ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON ITS SIGNATURE PAGE TO THIS NOTE. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

17.    Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.

18.    Third Party Beneficiaries. There are no third-party beneficiaries of this Note, except as otherwise provided in Section 6 hereof.

19.    Headings. The headings in this Note are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

20.    Conflict. This Note is made expressly subject to the terms of the Purchase Agreement. In the event of a conflict between this Note and the Purchase Agreement, the terms of the Purchase Agreement shall govern (except with respect to Section 6 hereof, which shall govern and control with respect to the subject matter thereof notwithstanding anything to the contrary or otherwise in conflict with the terms thereof contained in the Purchase Agreement).

[Remainder of Page Is Intentionally Left Blank]

IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of the date first above written.

ORBITAL ENERGY GROUP, INC.,

a Colorado corporation

By: William Clough                                    

Name: William Clough

Title: Chief Legal Officer

Address:       Orbital Energy Group, Inc.

                  1924 Aldine Western Road
Houston, Texas 77038
Attn: William Clough         
Email: wclough@orbitalenergygroup.com

Accepted and Agreed to by the following as of the date first written above:

/s/ Kurt A. Johnson, Jr.__________________________________________

KURT A. JOHNSON, JR, in his capacity as the Holder

Exhibit 99.4

UNSECURED PROMISSORY NOTE

THIS UNSECURED PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.

ORBITAL ENERGY GROUP, INC.

UNSECURED PROMISSORY NOTE

DUE MAY 17, 2022

$51,384,000.00                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Houston, Texas

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Dated as of November 17, 2021

FOR VALUE RECEIVED, the undersigned, ORBITAL ENERGY GROUP, INC., a Colorado corporation (the “Borrower”), hereby promises to pay to Tidal Power Group LLC, a Texas limited liability company (together with any successors or assigns as holder of the Debt described herein, the “Holder”) or its permitted registered successors and assigns, the principal sum of Fifty-one Million Three Hundred Eight-four Thousand and No/100 Dollars ($51,384,000.00) (such amount of principal and accrued interest hereunder is, collectively, the “Debt”), on May 17, 2022 (the “Maturity Date”), together with all accrued and unpaid interest thereon from time to time as provided herein.

1.    Purchase Agreement. This Unsecured Promissory Note (this “Note”) is one of two (2) unsecured promissory notes (each a “Closing Note”, and collectively, the “Closing Notes”) issued by the Borrower, on the date hereof, pursuant to the Membership Unit Purchase Agreement, dated as of November 17, 2021 (the “Purchase Agreement”), by and among the Borrower, the Holder, and Kurt A. Johnson, Jr., in respect of the purchase by the Borrower of all of the equity interests of Front Line Power Construction, LLC, a Texas limited liability company (the “Company”), and is subject to the terms thereof. Capitalized terms used herein without definition are used herein with the meanings ascribed to such terms in the Purchase Agreement or, as indicated herein, in that certain Credit Agreement, including all exhibits and schedules thereto, dated as of November 17, 2021, by and among the lenders from time to time party thereto (the “Senior Creditors”), the Borrower, the Company, the Guarantors, the other Subsidiaries party thereto, and Alter Domus (US) LLC, a Delaware limited liability company, in its capacity as administrative agent and collateral agent for each of the Lenders (the “Agent”) (as amended, restated, supplemented, replaced or refinanced or otherwise modified from time to time, the “Credit Agreement”).

2.    Interest. The Borrower promises to pay simple interest (“Interest”) on the principal amount of this Note at the rate of 6% per annum, which Interest shall be due and payable at such time that the principal amount of this Note becomes due and payable on the Maturity Date. If any Holder shall receive more than its pro rata share of any payments made by the Borrower towards the Closing Notes, such Holder shall hold such amount in trust for the Holders receiving less than their respective share of such payment and will pay such amount over to such other Holders. All Interest on this Note shall (a) accrue from and including the date of issuance through and until repayment of the principal amount of this Note and payment of all Interest in full, and (b) be computed on the basis of a 365 (or 366) day year for the actual number of days elapsed.

3.    Optional Prepayment. Upon not less than five (5) days’ written notice given to the Holder, the Borrower, at its option, may prepay all or any portion of the principal amount of this Note or any accrued Interest at any time without fee, premium or penalty, by paying such amount to the Holder. All optional prepayments under this Section 3 shall be applied first to any accrued and unpaid Interest and thereafter to principal. If the Borrower elects to prepay all or any portion of one Closing Note without making an election to prepay all Closing Notes in the same pro rata amount, such election shall nevertheless be deemed to be an election to prepay all Closing Notes pro rata and any Holder that receives more than its pro rata share of any prepayments made by the Borrower towards the Closing Notes shall hold such amount in trust for the Holders receiving less than their respective pro rata share of such payment and will pay such amount over to such other Holders.

4.    Amendment. No amendment of any provision of this Note shall be effective, unless the same shall be in writing and signed by the Borrower and the Holder. Except as otherwise expressly set forth herein, any failure of the Borrower to comply with any provision hereof may only be waived in writing by the Holder, and any failure of the Holder to comply with any provision hereof may only be waived in writing by the Borrower. No such waiver shall operate as a waiver of, or estoppel with respect to, any subsequent or other failure. No failure by any party to take any action against any breach of this Note or default by any other party shall constitute a waiver of such party’s right to enforce any provision hereof or to take any such action.

5.    Defaults and Remedies.

(a)    Events of Default. An “Event of Default” shall occur if:

(i)    the Borrower shall default in the payment of the principal of or any Interest in respect of the Debt, when and as the same shall become due and payable; or

(ii)    an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of the Borrower or any of its Subsidiaries, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended (the “Bankruptcy Code”), or any other Federal or state bankruptcy, insolvency, receivership or similar law, (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries, or for a substantial part of its property or assets, or (C) the winding up or liquidation of the Borrower or any of its Subsidiaries; and such proceeding or petition shall continue undismissed for 60 days, or an order or decree approving or ordering any of the foregoing shall be entered; or

(iii)    the Borrower or any of its Subsidiaries shall (A) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (ii) of this Section 5(a), (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries, or for a substantial part of its property or assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors, (F) become unable, admit in writing its inability, or fail generally to pay its debts as they become due, or (G) take any action for the purpose of effecting any of the foregoing; or

(iv)    a default, breach or violation in the observance or performance of any covenant or agreement contained this Note or the Purchase Agreement shall have occurred and not be cured within ten (10) days after the Borrower receives written notice thereof from the Holder; or

(v)    without the prior written consent of the Holder, (A) a sale, assignment or other transfer, direct or indirect, in one or more transactions of more than 50% of the capital stock or of all or substantially all of the assets of the Borrower to any Person, (B) a merger or consolidation of the Borrower with any other entity, (C) the Borrower takes any action to liquidate, wind up its affairs or terminate its existence, or (D) the Borrower takes any action to sell or transfer more than 50% of the capital stock of the Company, sell or transfer all or substantially all of the assets of the Company, merge or consolidate the Company with or into any Person, or terminate the existence of the Company; or

(vi)    any default under the Credit Agreement or any other document related to the Obligations (as defined in the Credit Agreement) or other event pursuant to which the Senior Creditors or the Agent have the right to accelerate the Obligations (as defined in the Credit Agreement) or foreclose upon any security interest securing the Obligations (as defined in the Credit Agreement), which default is not then subject to a valid and subsisting waiver by the lenders or the Agent on behalf of the lenders under the Obligations (as defined in the Credit Agreement).

(b)    Acceleration. If an Event of Default occurs and is continuing beyond the applicable notice and cure period stated in Section 5(a) above, the Holder may declare the entire principal of and accrued and unpaid Interest on this Note to be immediately due and payable. Upon such declaration, such principal and Interest shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived. The Holder may rescind an acceleration and its consequences if all existing Events of Default have been cured or waived, except nonpayment of principal or Interest that has become due solely because of the acceleration, and if the rescission would not conflict with any judgment or decree.

6.    [Intentionally Deleted – Reserved].

7.    Suits for Enforcement.

(a)    Upon the occurrence of any one or more Events of Default, the Holder may seek to protect and enforce its rights hereunder by suit in equity, action at law or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, and may seek to enforce the payment of the Debt, or to enforce any other legal or equitable right of the Holder.

(b)    Upon the occurrence of any one or more Events of Default, the Borrower will pay to the Holder such amounts as shall be sufficient to cover the reasonable costs and expenses of the Holder due to such default, including the reasonable fees and expenses of one counsel for the Holder.

8.    Remedies Cumulative. No remedy herein conferred upon the Holder is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.

9.    Offset. The Borrower’s obligations to make any payment in respect of this Note, at any time and from time to time, are subject to set off against any payment obligations of the Holder (notwithstanding any assignment of this Note pursuant to Section 10) as set forth in Section 6.08 of the Purchase Agreement.

10.    Assignment. The term “Holder” as used herein shall also include any permitted registered assign of this Note or any portion of the Debt. Each such assignee acknowledges that this Note has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and may be assigned only pursuant to an effective registration under the Securities Act or pursuant to an applicable exemption from the registration requirements of the Securities Act. This Note and any portion of the Debt may be transferred or assigned by the Holder without the Borrower’s prior written consent; provided, however, that until all Obligations (as defined in the Credit Agreement) have been paid in full, the Borrower shall notify the Agent of any such transfer or assignment and any such assignee or transferee shall agree in writing to be bound by the terms and conditions of this Note as a condition to any such assignment or transfer. The Borrower shall maintain at one of its offices a copy of each assignment and a register (the “Register”) for the recordation of (i) the names and addresses of the Holders of this Note and the Debt, and (ii) the amount of principal, interest and other amounts due and payable or to become due and payable in respect of the Debt that are owing and that have been paid. The Borrower and the Holders may treat as the Holder the Person whose name is recorded in the Register as such.

11.    Replacement of Note. On receipt by the Borrower of an affidavit of the Holder, in form and substance reasonably satisfactory to the Borrower, stating the circumstances of the loss, theft, destruction or mutilation of this Note (and in the case of any such mutilation, on surrender and cancellation of such Note), the Borrower, at the Holder’s expense, will promptly execute and deliver, in lieu thereof, a new Note of like tenor. If required by the Borrower, the Holder must provide indemnity, sufficient in the reasonable judgment of the Borrower, to protect the Borrower from any loss which it may suffer if a lost, stolen or destroyed Note is replaced.

12.    Covenants Bind Successors and Assigns. All the covenants, stipulations, promises and agreements contained in this Note by or on behalf of the Borrower shall bind its successors and assigns, whether so expressed or not.

13.    Notices. All notices, demands and other communications provided for or permitted hereunder shall be delivered to the Borrower, the Holder and the Agent at their respective addresses or electronic mail addresses set forth on the signature pages of this Note. Each notice hereunder shall be in writing and may be personally served or sent by electronic mail or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of electronic mail (with evidence of delivery), or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided, no notice to the Agent shall be effective until received by the Agent.

14.    GOVERNING LAW. THIS NOTE AND THE DEBT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.

15.    WAIVER OF JURY TRIAL. EACH PARTY TO THIS NOTE AND EACH HOLDER (WHETHER OR NOT A PARTY) HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION BROUGHT PURSUANT TO THIS NOTE. EACH PARTY TO THIS NOTE HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

16.    SUBMISSION TO JURISDICTION. ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS ARISING OUT OF THIS NOTE SHALL BE BROUGHT IN THE TEXAS STATE COURT LOCATED IN HARRIS COUNTY, TEXAS, OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, AND EACH PARTY HERETO HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS. IN ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON ITS SIGNATURE PAGE TO THIS NOTE. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

17.    Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.

18.    Third Party Beneficiaries. There are no third-party beneficiaries of this Note, except as otherwise provided in Section 6 hereof.

19.    Headings. The headings in this Note are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

20.    Conflict. This Note is made expressly subject to the terms of the Purchase Agreement. In the event of a conflict between this Note and the Purchase Agreement, the terms of the Purchase Agreement shall govern (except with respect to Section 6 hereof, which shall govern and control with respect to the subject matter thereof notwithstanding anything to the contrary or otherwise in conflict with the terms thereof contained in the Purchase Agreement).

[Remainder of Page Is Intentionally Left Blank]

IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of the date first above written.

ORBITAL ENERGY GROUP, INC.,

a Colorado corporation

By: /s/ William Clough______________________________

Name: William Clough

Title: Chief Legal Officer

Address:       Orbital Energy Group, Inc.

                  1924 Aldine Western Road
Houston, Texas 77038
Attn: William Clough         
Email: wclough@orbitalenergygroup.com

Accepted and Agreed to by the following as of the date first written above:

TIDAL POWER GROUP LLC,

a Texas limited liability company

By: /s/ Monty Janak_________________________________

Print: Monty Janak

Title: Manager

Address: 4211 Chance Lane, Rosharon, TX 77583

Exhibit 99.5

LOCK-UP LETTER AGREEMENT

November 17, 2021

Orbital Energy Group, Inc.

1924 Aldine Western Road

Houston, Texas 77038

Reference is hereby made to that certain Membership Unit Purchase Agreement, dated even date herewith, by and among Orbital Energy Group, Inc., a Colorado corporation (the “Company”), and the other parties as signatories thereto (the “Purchase Agreement”). Defined terms not otherwise defined in this Lock-Up Letter Agreement (this “Letter Agreement”) shall have the meanings set forth in the Purchase Agreement.

Pursuant to Section 2.02 of the Purchase Agreement and in satisfaction of a condition of the Company’s obligations under the Purchase Agreement, the undersigned hereby irrevocably agrees and covenants that, from the date hereof until the second anniversary following the Closing Date for each of the Sellers (such period, as applicable to each Seller, the “Restriction Period”), the undersigned will not (i) offer, pledge, hypothecate, sell, contract to sell, grant any option or contract to purchase, or otherwise dispose of, directly or indirectly, any Buyer Common Stock or (ii) enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition of any Buyer Common Stock, or result in the change to any of the economic consequences of ownership of Buyer Common Stock, whether any such transaction described in clause (i) or (ii) above, is to be settled by delivery of Buyer Common Stock to Sellers under this Agreement or such other securities, in cash or otherwise.

Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Buyer Common Stock, provided that: (i) the Company receives a signed lock-up letter agreement (in the form of this Letter Agreement) for the balance of the applicable Restriction Period from each donee, trustee, distributee, or transferee, as the case may be, prior to such transfer, (ii) any such transfer shall not involve a disposition for value, (iii) such transfer is not required to be reported with the Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and no report of such transfer shall be made voluntarily, and (iv) neither the undersigned, nor any donee, trustee, distributee or transferee, as the case may be, otherwise voluntarily effects any public filing or report regarding such transfers, with respect to a transfer:

(a)         as a bona fide gift or gifts;

(b)         to any immediate family member or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Letter Agreement, “immediate family” shall mean a spouse or the lineal descendant of the undersigned’s parents);

(c)         to any corporation, partnership, limited liability company, or other business entity all of the equity holders of which consist of the undersigned and/or the immediate family of the undersigned;

(d)       if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (a) to another corporation, partnership, limited liability company, trust or other business entity that is an Affiliate of the undersigned or (b) in the form of a distribution to limited partners, limited liability company members or stockholders of the undersigned;

(e)         if the undersigned is a trust, to the beneficiary of such trust; or

(f)         by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned.

The undersigned acknowledges that the execution, delivery and performance of this Letter Agreement is a material inducement to the Company to complete the transactions contemplated by the Purchase Agreement and the Company shall be entitled to specific performance of the undersigned’s obligations hereunder. The undersigned hereby represents that the undersigned has the power and authority to execute, deliver and perform this Letter Agreement, that the undersigned has received adequate consideration therefor and that the undersigned will directly benefit from the closing of the transactions contemplated by the Purchase Agreement.

This Letter Agreement may not be amended or otherwise modified in any respect without the written consent of each of the Company and the undersigned. This Letter Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to the principles of conflict of laws. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Northern District of Texas (Dallas Division) or the Civil District Courts of the State of Texas in Dallas County, Texas, for the purposes of any suit, action or proceeding arising out of or relating to this Letter Agreement, and hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that (i) it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper.

The undersigned understands that the Company is relying on this Letter Agreement in proceeding toward consummation of the public offering contemplated by the Underwriting Agreement. This Letter Agreement is irrevocable and shall be binding upon the undersigned and the heirs, personal representatives, successors and assigns of the undersigned.

[Signature Page Follows]

This Letter Agreement may be executed in two or more counterparts, all of which when taken together may be considered one and the same agreement.

Orbital Energy Group, Inc.,

a Colorado corporation

By: /s/ William J. Clough                         

Name: William J. Clough

Title: Executive Chairman & CLO

Exhibit 99.6

LOCK-UP LETTER AGREEMENT

November 17, 2021

Orbital Energy Group, Inc.

1924 Aldine Western Road

Houston, Texas 77038

Reference is hereby made to that certain Membership Unit Purchase Agreement, dated even date herewith, by and among Orbital Energy Group, Inc., a Colorado corporation (the “Company”), and the other parties as signatories thereto (the “Purchase Agreement”). Defined terms not otherwise defined in this Lock-Up Letter Agreement (this “Letter Agreement”) shall have the meanings set forth in the Purchase Agreement.

Pursuant to Section 2.02 of the Purchase Agreement and in satisfaction of a condition of the Company’s obligations under the Purchase Agreement, the undersigned hereby irrevocably agrees and covenants that, from the date hereof until the second anniversary following the Closing Date for each of the Sellers (such period, as applicable to each Seller, the “Restriction Period”), the undersigned will not (i) offer, pledge, hypothecate, sell, contract to sell, grant any option or contract to purchase, or otherwise dispose of, directly or indirectly, any Buyer Common Stock or (ii) enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition of any Buyer Common Stock, or result in the change to any of the economic consequences of ownership of Buyer Common Stock, whether any such transaction described in clause (i) or (ii) above, is to be settled by delivery of Buyer Common Stock to Sellers under this Agreement or such other securities, in cash or otherwise.

Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Buyer Common Stock, provided that: (i) the Company receives a signed lock-up letter agreement (in the form of this Letter Agreement) for the balance of the applicable Restriction Period from each donee, trustee, distributee, or transferee, as the case may be, prior to such transfer, (ii) any such transfer shall not involve a disposition for value, (iii) such transfer is not required to be reported with the Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and no report of such transfer shall be made voluntarily, and (iv) neither the undersigned, nor any donee, trustee, distributee or transferee, as the case may be, otherwise voluntarily effects any public filing or report regarding such transfers, with respect to a transfer:

(a)         as a bona fide gift or gifts;

(b)         to any immediate family member or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Letter Agreement, “immediate family” shall mean a spouse or the lineal descendant of the undersigned’s parents);

(c)         to any corporation, partnership, limited liability company, or other business entity all of the equity holders of which consist of the undersigned and/or the immediate family of the undersigned;

(d)         if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (a) to another corporation, partnership, limited liability company, trust or other business entity that is an Affiliate of the undersigned or (b) in the form of a distribution to limited partners, limited liability company members or stockholders of the undersigned;

(e)         if the undersigned is a trust, to the beneficiary of such trust; or

(f)         by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned.

The undersigned acknowledges that the execution, delivery and performance of this Letter Agreement is a material inducement to the Company to complete the transactions contemplated by the Purchase Agreement and the Company shall be entitled to specific performance of the undersigned’s obligations hereunder. The undersigned hereby represents that the undersigned has the power and authority to execute, deliver and perform this Letter Agreement, that the undersigned has received adequate consideration therefor and that the undersigned will directly benefit from the closing of the transactions contemplated by the Purchase Agreement.

This Letter Agreement may not be amended or otherwise modified in any respect without the written consent of each of the Company and the undersigned. This Letter Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to the principles of conflict of laws. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Northern District of Texas (Dallas Division) or the Civil District Courts of the State of Texas in Dallas County, Texas, for the purposes of any suit, action or proceeding arising out of or relating to this Letter Agreement, and hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that (i) it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper.

The undersigned understands that the Company is relying on this Letter Agreement in proceeding toward consummation of the public offering contemplated by the Underwriting Agreement. This Letter Agreement is irrevocable and shall be binding upon the undersigned and the heirs, personal representatives, successors and assigns of the undersigned.

[Signature Page Follows]

This Letter Agreement may be executed in two or more counterparts, all of which when taken together may be considered one and the same agreement.

Address: 4211 Chance Lane, Rosharon, TX 77583

Orbital Energy Group, Inc.,

a Colorado corporation

By: /s/ William J. Clough                        

Name: William J. Clough

Title: Executive Chairman & CLO

Exhibit 99.7

REGISTRATION RIGHTS AGREEMENT

REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 17, 2021, by and among Orbital Energy Group, Inc., a Colorado corporation (the “Company”), Kurt A. Johnson, Jr., a resident of Danbury, Texas (“Johnson”), and Tidal Power Group LLC, a Texas limited liability company (“Tidal” and, together with Johnson, collectively, “Sellers”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in that certain Membership Unit Purchase Agreement, dated even date herewith, by and among the Company, Johnson, and Tidal (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”).

WHEREAS:

The Company has agreed, upon the terms and subject to the conditions of the Purchase Agreement, to issue the Closing Stock Consideration to Sellers, and to induce Sellers to enter into the Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable state securities laws.

NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, Johnson, and Tidal hereby agree as follows:

1.         DEFINITIONS.

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

a.         “Equity Securities” means, as applicable, (i) any capital stock or other share capital, (ii) any securities directly or indirectly convertible into or exchangeable for any capital stock or other share capital or containing any profit participation features, (iii) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, other share capital or securities containing any profit participation features or to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, other share capital or securities containing any profit participation features, or (iv) any securities issued or issuable with respect to the securities referred to in clauses (i) through (iii) above in connection with a combination of shares, exchange, recapitalization, merger, consolidation or other reorganization.

b.         “Investor” means each of Johnson and Tidal, and “Investors” means Johnson and Tidal collectively, and in each case also includes any transferee or assignee thereof to whom Johnson or Tidal assigns his or its, respectively, rights under this Agreement in accordance with Section 9, and any transferee or assignee thereof to whom a transferee or assignee assigns its rights under this Agreement in accordance with Section 9.

c.         “Person” means any individual or entity including but not limited to any corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental agency.

d.         “register,” “registered,” and “registration” refer to a registration effected by preparing and filing one or more registration statements of the Company in compliance with the Securities Act and pursuant to Rule 415 under the Securities Act or any successor rule providing for offering securities on a continuous basis (“Rule 415”), and the declaration or ordering of effectiveness of such registration statement(s) by the United States Securities and Exchange Commission (the “SEC”).

e.         “Registrable Securities” means all of the Closing Stock Consideration that may, from time to time, be issued or become issuable to the Investors under the Purchase Agreement (without regard to any limitation or restriction on purchases), and any and all shares of capital stock issued or issuable with respect to the Closing Stock Consideration or the Purchase Agreement as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitation on purchases under the Purchase Agreement.

f.         “Registration Statement” means one or more registration statements of the Company covering the sale of the Registrable Securities.

2.         REGISTRATION.

a.         Mandatory Registration. Unless all of the Registerable Securities have been registered on a Registration Statement filed pursuant to Section 2(b), the Company shall, within two (2) years after the date hereof, file with the SEC an initial Registration Statement on Form S-1, or shorter form registration statement which the Company is then eligible to use, covering the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investors under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices), as mutually determined by both the Company and the Investors in consultation with their respective legal counsel, subject to the aggregate number of authorized shares of Buyer Common Stock then available for issuance in its articles of incorporation. The initial Registration Statement shall register only the Registrable Securities. The Investors and their counsel shall have a reasonable opportunity to review and comment upon such Registration Statement and any amendment or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall give due consideration to all such comments. Each Investor shall furnish all information reasonably requested by the Company for inclusion therein. The Company shall use its reasonable best efforts to have the Registration Statement and any amendment declared effective by the SEC at the earliest possible date after the filing thereof. The Company shall use reasonable best efforts to keep the Registration Statement effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investors of all of the Registrable Securities covered thereby at all times until the date on which each Investor shall have resold all the Registrable Securities covered thereby (the “Registration Period”). A Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.

b.          Piggyback Registration.

(i)         If at any time prior to a Registration Statement being filed pursuant to Section 2(a) the Company proposes to file a registration statement (other than a Registration Statement contemplated by Section 2(a)) (an “Offering”) on its own behalf relating to the sale of Equity Securities or on behalf of any other person (other than a registration relating solely to the sale of securities to participants in an employee benefit plan, a transaction to which Rule 145 promulgated under the Securities Act or any other similar rule or regulation of the SEC is applicable or any other form or type of registration in which Registrable Securities cannot be included pursuant to SEC rule or practice), then the Company shall give not less than twenty (20) business days’ notice (the “Piggyback Notice”) of such proposed Offering to the Investors. The Piggyback Notice shall offer such Investors the opportunity to include in such Offering such number of Registerable Securities (the “Included Common Shares”) as each Investor may request in writing (a “Piggyback Registration”). The Company shall use reasonable efforts to increase the length of the Piggyback Notice to provide more time for the Investors to make an election to participate. An Investor will have ten (10) business days, or such longer period as may be specified by the Company in the Piggyback Notice, after such Piggyback Notice has been delivered to request in writing the inclusion of Included Common Shares in the Offering. If no request for inclusion from an Investor is received within the specified time, such Investor shall have no further right to participate in such Offering; provided, however, that such Investor shall continue to have the right to participate in any future Offerings.

(ii)         Notwithstanding the foregoing, (A) if such Piggyback Registration involves an underwritten public offering, the Investors must agree to sell their Registrable Securities to, if applicable, the underwriter(s) at the same price and subject to the same underwriting discounts and commissions that apply to the other securities sold in such Offering (it being acknowledged that the Company shall be responsible for other expenses as set forth in Section 5) and must enter into customary underwriting documentation for selling stockholders in an underwritten public offering, and (B) if, at any time after giving written notice of its intention to register any Registrable Securities pursuant to Section 2(b)(i) and prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall determine for any reason not to cause such Registration Statement to become effective under the Securities Act, the Company shall deliver written notice to the Investors and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration; provided, however, that nothing contained in this Section 2(b)(ii) shall limit the Company’s liabilities and/or obligations under this Agreement. If the managing underwriter(s) for the Piggyback Registration advise the Company that the number of shares proposed to be included in the Offering exceeds the number that can reasonably be sold in the Offering, then the shares to be included in such Offering shall be allocated, first, to the account of the Company, in the event that the public offering relates to a primary offering by or on behalf of the Company, or, if the Offering is being made pursuant to a demand registration rights granted to one or more holders of Buyer Common Stock, such holders; second, to the Investors, on a pro rata basis based on the number of Registrable Securities the Investors sought to include in such Offering; and third, to any other holder of Buyer Common Stock having the right to include its shares in such Offering. The Company shall have the right to select the managing underwriters for any such underwritten Piggyback Registration.

c.         Rule 424 Prospectus. The Company shall, as required by applicable securities regulations, from time to time, file with the SEC, pursuant to Rule 424 promulgated under the Securities Act, the prospectus and prospectus supplements, if any, to be used in connection with sales of the Registrable Securities under any Registration Statement during the Registration Period. Each Investor and its counsel shall have a reasonable opportunity to review and comment upon such prospectus prior to its filing with the SEC, and the Company shall give due consideration to all such comments. The Investors shall use reasonable best efforts to comment upon such prospectus within two (2) business days from the date the Investor receives the final pre-filing version of such prospectus.

d.         Sufficient Number of Shares Registered. In the event the number of shares available under a Registration Statement is insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement or file a new Registration Statement (a “New Registration Statement”), so as to cover all of such Registrable Securities (subject to the limitations set forth in Section 2(a)) as soon as practicable, but in any event not later than ten (10) business days after the necessity therefor arises, subject to any limits that may be imposed by the SEC pursuant to Rule 415 under the Securities Act. The Company shall use its reasonable best efforts to cause such amendment and/or New Registration Statement to become effective as soon as practicable following the filing thereof.

e.         Offering. If the staff of the SEC (the “Staff”) or the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Investors under Rule 415 at then-prevailing market prices (and not fixed prices), or if after the filing of the initial Registration Statement with the SEC pursuant to Section 2(a) or Section 2(b), the Company is otherwise required by the Staff or the SEC to reduce the number of Registrable Securities included in such initial Registration Statement, then the Company shall reduce the number of Registrable Securities to be included in such initial Registration Statement (with the prior consent, which shall not be unreasonably withheld, of the Investors as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the SEC shall so permit such Registration Statement to become effective and be used as aforesaid. In the event of any reduction in Registrable Securities pursuant to this paragraph, the Company shall file one or more New Registration Statements in accordance with Section 2(d) until such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the prospectus contained therein is available for use by the Investors. Notwithstanding any provision herein or in the Purchase Agreement to the contrary, the Company’s obligations to register Registrable Securities (and any related conditions to an Investor’s obligations) shall be qualified as necessary to comport with any requirement of the SEC or the Staff as addressed in this Section 2(e).

3.         RELATED OBLIGATIONS.

With respect to any Registration Statement and whenever any Registrable Securities are to be registered pursuant to Section 2 including on any New Registration Statement, the Company shall use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:

a.         The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to any Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration Statement or any New Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement or any New Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investors as set forth in such Registration Statement.

b.         The Company shall permit each Investor to review and comment upon the Registration Statement or any New Registration Statement and all amendments and supplements thereto at least two (2) business days prior to their filing with the SEC, and not file any document in a form to which Investor reasonably objects. Each Investor shall use his reasonable best efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) business days from the date the Investor receives the final version thereof and the Company shall give due consideration to all such comments. The Company shall furnish to each Investor, without charge any correspondence from the SEC or the Staff to the Company or its representatives relating to the Registration Statement or any New Registration Statement.

c.         Upon request of the Investor, the Company shall furnish to each Investor, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, (ii) upon the effectiveness of any Registration Statement, a copy of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as an Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by an Investor. For the avoidance of doubt, any filing available to an Investor via the SEC’s EDGAR system shall be deemed “furnished to the Investor” hereunder.

d.         The Company shall use reasonable best efforts to (i) register and qualify the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as an Investor reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify an Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.

e.         As promptly as practicable after becoming aware of such event or facts, the Company shall notify the Investors in writing of the happening of any event or existence of such facts as a result of which the prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver a copy of such supplement or amendment to the Investors (or such other number of copies as the Investors may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to an Investor by email or facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.

f.         The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement, or the suspension of the qualification of any Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investors of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.

g.         The Company shall (i) cause all the Registrable Securities to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(g).

h.         The Company shall cooperate with the Investors to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to any Registration Statement and enable such certificates to be in such denominations or amounts as the Investors may reasonably request and registered in such names as an Investor may request.

i.         The Company shall at all times provide a transfer agent and registrar with respect to the Buyer Common Stock.

j.         If reasonably requested by an Investor, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as such Investor believes should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as practicable upon notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement.

k.         The Company shall use its reasonable best efforts to cause the Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.

l.         Within one (1) business day after any Registration Statement which includes the Registrable Securities is ordered effective by the SEC, the Company shall cause its legal counsel to deliver to the transfer agent for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by the SEC in substantially the form attached hereto as Exhibit A. Thereafter, if requested by an Investor at any time, the Company shall cause its legal counsel to deliver to such Investor a written confirmation whether or not the effectiveness of such Registration Statement has lapsed at any time for any reason (including, without limitation, the issuance of a stop order) and whether or not the Registration Statement is current and available to such Investor for sale of all of the Registrable Securities.

m.         The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to any Registration Statement.

4.         OBLIGATIONS OF THE INVESTOR.

a.         The Company shall notify each Investor in writing of the information the Company reasonably requires from such Investor in connection with any Registration Statement hereunder. Each Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request.

b.         Each Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder.

c.         Each Investor agrees that, upon receipt of any notice from the Company of the happening of any event or existence of facts of the kind described in Section 3(f) or the first sentence of Section 3(e), an Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(f) or the first sentence of Section 3(e). Notwithstanding anything to the contrary, the Company shall cause its transfer agent to promptly deliver shares of Buyer Common Stock without any restrictive legend in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale prior to an Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not yet settled.

d.         Failure by one Investor to comply with its obligations hereunder shall not diminish or impair the rights of the other Investors who do comply.

5.         EXPENSES OF REGISTRATION.

All reasonable expenses, other than sales or brokerage commissions and the fees and expenses of counsel and other advisors to an Investor, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, and fees and disbursements of counsel for the Company, shall be paid by the Company.

6.         INDEMNIFICATION.

a.         To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor, the members, the directors, officers, partners, employees, agents, representatives of each Investor and each Person, if any, who controls the Investor within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, attorneys’ fees, amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing, defending or settling any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement, any New Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or any New Registration Statement (the matters in the foregoing clauses (i) through (iii) being, collectively, “Violations”). The Company shall reimburse each Indemnified Person promptly as such expenses are incurred and are due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information about the Investor furnished in writing to the Company by such Indemnified Person expressly for use in connection with the preparation of a Registration Statement, any New Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(c) or Section 3(e); (ii) with respect to any superseded prospectus, if the untrue statement or omission of material fact contained in the superseded prospectus was corrected in the revised prospectus, as then amended or supplemented, if such revised prospectus was timely made available by the Company pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to a violation and such Indemnified Person, notwithstanding such advice, used it; (iii) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant to Section 3(c) or Section 3(e); and (iv) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by an Investor pursuant to Section 9.

b.         In connection with any Registration Statement or any New Registration Statement, each Investor agrees to indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers who signs the Registration Statement or any New Registration Statement, each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (collectively and together with an Indemnified Person, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information about that Investor furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and, subject to Section 6(d), each Investor will reimburse any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Investor, which consent shall not be unreasonably withheld; provided, further, however, that the Investor shall be liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to the Investor as a result of the sale of Registrable Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable Securities by the Investor pursuant to Section 9.

c.         Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be; provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of the Indemnified Person or Indemnified Party, as the case may be, the representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding. The Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person which relates to such action or claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the consent of the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the indemnifying party is prejudiced in its ability to defend such action.

d.         The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred; provided that (i) the Investor shall promptly reimburse the Company for all such payments if and to the extent it is ultimately determined, by a final and non-appealable order of a court of competent jurisdiction, that the Indemnified Person is not entitled to be indemnified by the Company for any such Indemnified Damages pursuant to this Section 6, and (ii) the Company shall promptly reimburse an Investor for all such payments if and to the extent it is ultimately determined, by a final and non-appealable order of a court of competent jurisdiction, that the Indemnified Party is not entitled to be indemnified by the Investor for any such Indemnified Damages pursuant to this Section 6.

e.         The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.

f.         No Investor shall be responsible for the indemnity obligations of another Investor.

7.         CONTRIBUTION.

To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that: (i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities.

8.         REPORTS AND DISCLOSURE UNDER THE SECURITIES ACT AND EXCHANGE ACT.

With a view to making available to each Investor the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the public without registration (“Rule 144”), the Company agrees, at the Company’s sole expense, to use reasonable best efforts to:

a.         make and keep public information available, as those terms are understood and defined in Rule 144;

b.         file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144;

c.         furnish to each Investor so long as that Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company that it has complied with the reporting and or disclosure provisions of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit such Investor to sell such securities pursuant to Rule 144 without registration; and

d.         take such additional action as is requested by each Investor to enable the Investor to sell the Registrable Securities pursuant to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to the Company’s transfer agent as may be requested from time to time by the Investor and otherwise fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.

The Company agrees that damages may be an inadequate remedy for any breach of the terms and provisions of this Section 8 and that each Investor shall, whether or not it is pursuing any remedies at law, be entitled to seek equitable relief in the form of a preliminary or permanent injunctions, without having to post any bond or other security, upon any breach or threatened breach of any such terms or provisions.

The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Investor. The Investor may assign its rights under this Agreement without the written consent of the Company.

10.         AMENDMENT OF REGISTRATION RIGHTS.

No provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) business day immediately preceding the initial filing of a Registration Statement with the SEC. Subject to the immediately preceding sentence, no provision of this Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.

11.         MISCELLANEOUS.

a.         A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of such Registrable Securities.

b.         Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses for such communications shall be:

If to the Company:

Orbital Energy Group, Inc.
1924 Aldine Western Road
Houston, TX 77038
E-mail:         wclough@orbitalenergygroup.com         
Attention: William Clough

With a copy to (which shall not constitute notice or service of process):

Johnson, Pope, Bokor, Ruppel & Burns, LLP
911 Chestnut Street
Clearwater, Florida 33756
E-mail:         MikeC@jpfirm.com
Attention: Michael T. Cronin

If to the Investors:

Kurt A. Johnson, Jr.
15502 Bayou Oaks Drive
Danbury, Texas 77534
E-mail: [+]

Tidal Power Group, LLC
271 County Road 532D
Hallettsville, Texas 77964
E-mail: [+]
Attention: Dennis Janak

With a copy to (which shall not constitute notice or service of process):

BoyarMiller
2925 Richmond Ave., 14^th Floor
Houston, Texas 77098
E-Mail: lwilson@boyarmiller.com
Attention: Lawrence E. Wilson

or at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) business days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or email account containing the time, date, recipient facsimile number or email address, as applicable, or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or email, or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

c.         The corporate laws of the State of Colorado shall govern all issues concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of Texas, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Texas or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Texas. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Northern District of Texas (Dallas Division) or the Civil District Courts of the State of Texas in Dallas County, Texas, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

d.         This Agreement, the Purchase Agreement, and the documents to be delivered under the Purchase Agreement constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the Purchase Agreement, and such documents supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.

e.         Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto.

f.         The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

g.         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 agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission or e-mail in “.pdf”, “tiff”, “jpeg” or other electronic format data file of a copy of this Agreement bearing the signature of the party so delivering this Agreement.

h.         Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

i.         The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against any party.

j.         This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person. Each Investor’s rights, obligations and responsibilities shall be solely those of such Investor. No Investor shall have any obligation with respect to any default or failure to perform this Agreement by any other Investor and no default, failure to perform or waiver of any rights under this Agreement by any Investor shall have any effect on the rights of any other Investor under this Agreement.

* * * * * *

IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as of the day and year first above written.

THE COMPANY:

ORBITAL ENERGY GROUP, INC.,
a Colorado corporation

By:  /s/ William J. Clough                                   
Name: William J. Clough
Title: Executive Chairman and CLO

INVESTORS:

KURT A. JOHNSON, JR.

TIDAL POWER GROUP LLC,
a Texas limited liability company

By:  /s/ Monty Janak                                        
Name: Monty Janak
Title: Manager

EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT

FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT

[Date]

[TRANSFER AGENT]
___________________
___________________

Re: [__________]

Ladies and Gentlemen:

Reference is made to that certain Membership Unit Purchase Agreement, dated as of [+], 2021 (the “Purchase Agreement”), entered into by and among Orbital Energy Group, Inc., a Colorado corporation (the “Company”), Kurt A. Johnson, Jr., a resident of Danbury, Texas (“Johnson”), and Tidal Power Group LLC, a Texas limited liability company (“Tidal”), pursuant to which the Company issued to Johnson [___] shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”) and Tidal [____] shares of Common Stock (collectively, the “Purchase Shares”), in accordance with the terms of the Purchase Agreement.

Pursuant to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, dated as of [+], 2021, with Johnson and Tidal (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the Purchase Shares under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the Company’s obligations under the Purchase Agreement and the Registration Rights Agreement, on [_____________], 202[__], the Company filed a Registration Statement (File No. 333-[_________]) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) relating to the resale of the Purchase Shares.

In connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the Securities Act at [_____] [A.M./P.M.] on [__________], 202[__] and we have no knowledge, after reviewing the list of stop orders on the SEC’s website, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Purchase Shares are available for resale under the Securities Act pursuant to the Registration Statement and may be issued without any restrictive legend.

Very truly yours,
         Orbital Energy Group, Inc.

By:                                                                 
William J. Clough

cc:         Kurt A. Johnson, Jr.
         Tidal Power Group LLC

Exhibit 99.8

INDUSTRIAL TRIPLE NET LEASE

THIS INDUSTRIAL TRIPLE NET LEASE (this "Lease") is made and entered into by and between the Landlord named in the Basic Lease Terms, below, and the Tenant named in the Basic Lease Terms, below, to be effective as of November 17, 2021 (the “Effective Date”), as defined in the Basic Lease Terms.

W I T N E S S E T H:

The parties hereto hereby agree to the following stated “Basic Lease Terms” (herein so called), which are made part of this Lease for all purposes:

A.         “Landlord”:                   Danbury Property Company LLC

Address for Notice:       271 CR 532D

                            Hallettsville, Texas 77964                  

B.         “Tenant”:                          Front Line Power Construction, LLC

Address for Notice:         4202 Chance Lane

                              Rosharon, TX 77583

C.         “Premises”: That tract of land located in Brazoria County, Texas, commonly known as 4202 Chance Lane, Rosharon, TX 77583 being more particularly described on Exhibit A attached hereto and incorporated herein by reference, together with all improvements and fixtures (now or hereafter constructed) owned by Landlord from time to time thereon.

D.         “Term”: Thirty-six (36) months from the Commencement Date, plus the partial month, if any, during which the Commencement Date occurs if the Commencement Date occurs other than on the first day of a calendar month (“Initial Term”).

E.         “Commencement Date”: The Effective Date.

F.         “Base Rental”: means $10,500.00 per month.

   G.         “Security Deposit”: $0.00 subject to the terms of Paragraph 2B.

H.         “Permitted Use”: means the operation of Tenant’s electrical construction business and activities ancillary thereto, and for such other lawful purposes as may reasonably be deemed incidental to the aforesaid primary use, subject to the restrictions elsewhere herein.

The parties further hereby agree to each and all of the following terms of lease:

1.         PREMISES AND TERM. In consideration of the mutual obligations of Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from Landlord, the Premises as described above, to have and to hold, subject to the terms, covenants and conditions in this Lease. The Term of this Lease shall commence on the Commencement Date hereinafter set forth and shall end at the expiration of Term. The square foot area of the Premises is not guaranteed or warranted by Landlord.

A.         General Conditions. Landlord and Tenant agree that Tenant's obligations, privileges, covenants and agreements contained in this Lease shall be operative and effective regardless of whether the Premises are ever occupied by Tenant and whether or not this Lease is fully exhibited. If Tenant fails to occupy the Premises for any reason, Tenant shall nonetheless remain obligated hereunder.

B.         Renewal Term. Tenant shall have the option to renew this Lease (“Renewal Option”), for an additional period and upon such terms and conditions to be negotiated between the parties (“Renewal Lease Term”); provided, that, Tenant provide Landlord with written notice at least ninety (90) days prior to the expiration of the Initial Term of its desire to extend the Lease. If Lessee and Lessor are not able to reach a mutually agreed upon length of the Renewal Lease Term and rent structure for the Renewal Lease Term, then this Renewal Option shall automatically terminate and the Lease shall expire on the last day of the Initial Term.

2.         BASE RENTAL; SECURITY DEPOSIT.

A.         Base Rental. Tenant agrees to pay to Landlord Base Rental as specified in the Basic Lease Terms, during the Term hereof, except that the first month's Base Rental shall be prorated based on the amount of Base Rental specified for the first actual rent-paying month of the Term (i.e., excluding any period of free or reduced monthly Base Rental, if any). The first installment for the first month's Base Rental (that is not provided as free rent or a reduced rate) shall be due and payable on the Effective Date hereof. Full monthly Base Rental installments in the amount set forth above shall be due and payable, without demand, deduction or set-off, on or before the first day of each calendar month succeeding the Commencement Date during the Term hereof. In addition to Base Rental due hereunder, all sums of money and all payments due Landlord hereunder shall be deemed to be additional “rental” owed by Tenant to Landlord for all purposes of this Lease.

B.         Security Deposit. In addition, upon written request by Landlord at any time during the Term of the Lease, Tenant agrees to deposit with Landlord the sum of the Security Deposit stated in the Basic Lease Terms, which shall be held by Landlord, without obligation for interest, as security for the performance of Tenant's obligations under this Lease, it being expressly understood and agreed that this deposit is not an advance rental deposit or a measure of Landlord's damages in case of Tenant's default. Upon each occurrence of an Event of Default, Landlord may use all or part of the deposit to pay past due rent or other payments due Landlord under this Lease, and the cost of any other damage, injury, expense or liability caused by such Event of Default without prejudice to any other remedy provided herein or provided by law. On demand, Tenant shall pay Landlord the amount that will restore the security deposit to its original amount. The security deposit shall be deemed the property of Landlord, but any remaining balance of such deposit shall be returned by Landlord to Tenant when Tenant's obligations under this Lease have been fulfilled.

3.         ADDITIONAL RENT: TAXES AND INSURANCE PAYMENTS BY TENANT.

A.         Definition of Taxes. For purposes hereof, "Taxes" shall mean and include all taxes, general and special assessments, sewer rents or charges due or levied by any governmental authority of any kind and nature that accrue against the Premises. If at any time during the Term of this Lease, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly on the rents received therefrom and/or a franchise tax, assessment, levy or charge measured by or based, in whole or in part, upon such rents from the Premises, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to be included within the term "Taxes" for the purposes hereof.

B.         Taxes on the Premises. Tenant shall pay all Taxes made against the Premises during the Term, whether payable in full upon assessment or payable in installments. Tenant shall pay in full any Taxes levied during the Term, even if the assessing authority allows payment of the Tax in installments that would extend beyond the expiration of the Term of this Lease. In the case of the calendar years during which the Term commences and during which the Term expires, all Taxes affecting the Premises shall be prorated so that Tenant shall be liable for such portion thereof as accrue during such calendar year when this Lease is in effect and Landlord shall be liable for such portion thereof as accrue during the portion of the calendar year when this Lease is not in effect. Tenant shall have the right before or after delinquency occurs of contesting, objecting to, or opposing the legality or validity of any Taxes affecting the Premises, provided that prompt notice of the contest, objection, or opposition shall be given to Landlord by Tenant at least twenty (20) days before any delinquency and provided, further, that the contest, objection, or opposition shall not be carried on or maintained after the time limit for the payment by Tenant of the obliga‐tions unless Tenant shall have duly paid the amount involved under protest or shall have procured and maintained a stay of all proceedings to enforce any collection thereof and shall also have provided for payment thereof, together with all penalties, interest, costs, and expenses, by a deposit of a sufficient sum of money with the taxing authority, a court of competent jurisdic‐tion, or such other place, if any, as shall be prescribed by applicable law or by a good and suf‐ficient undertaking as may be required or permitted by law to accomplish a stay. In the event of any such contest, objection, or opposition, Tenant agrees to pay and discharge any unpaid amounts finally determined to be due within such time period as may be required by law to avoid delinquency.

C.         Taxes on Tenant's Property. During the Term hereof, Tenant shall pay prior to delinquency all Taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property of Tenant contained in the leased Premises, and when possible, Tenant shall cause said fix‐tures, furnishings, equipment and other personal property to be assessed and billed separately from the real property of Landlord. In the event any or all of the Tenant's fixtures, furnish‐ings, equipment and other personal property shall be assessed or taxed with the Landlord's real property, then Tenant shall pay to Landlord Tenant's share of such taxes within twenty (20) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property.

D.         Insurance Premiums. Tenant shall pay all insurance premiums for the insurance policies and coverages required pursuant to Paragraph 9 hereof. If Tenant should fail to obtain or maintain such coverages at any time during the Term, Landlord may, but shall not be obligated to, obtain such insurance policies and coverages at Tenant’s expense, but providing coverage for Landlord only, and charge the cost thereof to Tenant as additional rental under this Lease, due from Tenant to Landlord on demand.

E.         Net Lease; Utilities Paid By Tenant. Tenant shall pay all costs and charges for operation of the Premises, including, but not limited to, all utility services to the Premises, and shall arrange for all utility connections in its own name and the making of any required utility deposits. It is the intention of the parties that this Lease is an “absolute net” lease to the Landlord, such that the monthly Base Rental of Landlord is received free of any costs associated with the Premises other than (i) Landlord’s mortgage indebtedness, if any, and (ii) Landlord’s limited repair obligations hereunder, and that all other costs and expenses whatsoever relating to the ownership, operation, maintenance, insuring, licensing, or use of the Premises shall be borne by Tenant. All obligations and responsibilities of Tenant under the terms of this Lease shall be carried out by Tenant at its sole cost and expense.

F.         Survival. The provisions of this Paragraph 3 shall survive the expiration of the Term of this Lease, until taxes for the final year are adjusted between the parties.

4.         LANDLORD'S REPAIRS.

A.         Roof, Foundation and Exterior Walls. Landlord, at its own cost and expense, shall maintain only the roof, foundation and the structural soundness of the exterior walls of the building comprising a part of the Premises, in a reasonable state of repair, at least equivalent to that existing on the Effective Date hereof, reasonable wear and tear and damage by the fault of Tenant or its employees, agents, representatives, customers, suppliers, contractors or invitees excluded. The term "exterior walls" as used herein shall not include, without expanding its meaning and without limitation as to items not included in such term, the following: windows, glass or plate glass; doors (including, without limitation, rollup doors); mechanical, electrical, plumbing, crane or other systems or equipment (whether or not located in or attached to exterior walls); exterior signs; and special store fronts or office entries. Tenant shall immediately give Landlord written notice of any required repairs to structural elements that Landlord is required to repair, after which Landlord shall have reasonable opportunity to repair the same. Landlord's obligation to maintain the specified structural items shall be limited solely to the cost of such repairs or maintenance, Tenant hereby expressly waiving and releasing any and all other claims relating thereto.

B.         Landlord's Option to Perform Other Repairs. Landlord reserves the right to perform the repair obligations that are otherwise Tenant's responsibility under Paragraph 5A, in which event, Tenant shall be liable for the cost and expense incurred by Landlord in connection therewith, and such sums shall be payable by Tenant to Landlord as additional rent hereunder upon demand.

5.         TENANT'S REPAIRS.

A.         Tenant's Repairs. Tenant, at its own cost and expense, shall, except for those structural items specifically required to be maintained by Landlord under Paragraph 4A hereof (subject to the requirements therein for Tenant to repair the same if the damage is caused by Tenant’s fault) (i) maintain and repair all parts of the Premises and keep them in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (ii) promptly make all necessary repairs and replacements to the Premises and the systems serving the Premises, including, but not limited to, windows, glass and plate glass doors, any special office entry, interior walls and finish work, doors and floor covering, downspouts, gutters, heating and air conditioning systems, mechanical systems, electrical systems, crane systems, rail spurs, dock boards, truck doors, dock bumpers, paving, plumbing work and fixtures, sewer lines, as necessary to keep the Premises and facilities in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (iii) provide termite and pest extermination as needed to keep the Premises free from insect and/or rodent infestations, (iv) provide for regular removal of Tenant's trash and debris, and proper disposal thereof in a licensed waste facility, and other cleaning and upkeep so as to keep the Premises in a neat and reasonably clean and sanitary condition, (v) keep the parking areas, driveways and alleys surrounding or adjacent to the Premises in a clean, safe and sanitary condition free of all refuse, debris, equipment and other materials of Tenant, its employees, agents, contractors, invitees and licensees, and (vi) if Tenant desires railroad spur track service and the same is available at the Premises, pay the entirety of the cost of the obtaining and maintenance of any spur track servicing the Premises (provided, however, that no rail spur service will be connected to the Premises except with Landlord’s prior written approval, which shall not be unreasonably withheld, subject to such terms, conditions and requirements as Landlord may specify).

B.         Maintenance Contracts. At Tenant’s expense, Tenant shall enter into a maintenance agreement for the HVAC systems serving the Premises, with a licensed HVAC service company approved by Landlord, for the complete Term of this Lease, and if the Premises is served by overhead crane(s), private utility systems, private drainage or storm water control systems, and/or fire alarm or fire control or protection systems, whether installed by Landlord or Tenant, also a maintenance agreement with a service contractor acceptable to Landlord for the standard manufacturer suggested maintenance and repair of such systems during the entire Term of this Lease. Tenant will obtain and promptly provide to Landlord copies of the above-referenced maintenance contracts and an annual certificate of inspection with respect to any fire alarm or fire control/suppression system installed in or upon the Premises. Within five (5) business days after Landlord’s request, Tenant will provide evidence of the actual occurrence of maintenance of such systems by such contractors, in terms of certificates from the vendor showing dates of visits, services performed and work deferred or pending.

6.    ALTERATIONS. Tenant shall not make any alterations, additions, or improvements to the Premises without the prior written consent of Landlord. Tenant, at its own cost and expense, may erect such shelves, bins, machinery and trade fixtures as it desires provided that (a) such items do not overload or damage the same; (b) such items may be removed without injury to the Premises; and (c) the construction, erection or installation thereof complies with all applicable governmental laws, ordinances, regulations and with Landlord's specifications and requirements. All alterations, additions, improvements and partitions erected by Tenant shall be and remain the property of Tenant during the Term of this Lease. All shelves, bins, machinery and trade fixtures installed by Tenant shall be removed on or before the earlier to occur of the date of termination of this Lease or vacating the Premises, at which time Tenant shall restore the Premises to their original condition. Unless otherwise agreed in advance, any Tenant improvements to the Premises will become part of the Premises upon installation and will remain in place at the expiration of the Term upon receipt of verification of good and workmanlike completion of all such work in compliance with Landlord’s approvals and all applicable legal requirements, receipt of final lien waivers and bills paid affidavits from all contractors, and expiration of all applicable lien periods without the filing of any claim for mechanic’s or materialman’s lien. All improvements shall have the prior written approval of Landlord, and shall be performed by a reputable construction company approved in writing by Landlord, and who shall carry such insurance and meet such other requirements as Landlord shall specify. All invoices for improvements shall be available for inspection by Landlord. If any improvement work by Tenant (or its contractors) is work that will be covered up by the finish work involved in the particular project (i.e., electrical wiring or plumbing to be covered by finished walls, etc.), that will not be readily subject to inspection upon completion of the finish work, then before the finish work is added Tenant must (i) have all inspections required by the City, County or other agency with jurisdiction performed without violation noted, (ii) obtain inspection of such to-be-covered work by an independent third-party architect who shall document such inspection, and (iii) before performing the finish work that will cover such other work, notify Landlord in writing at least three (3) business days before commencement of the finish work to allow Landlord, if it so desires for its own protection, to inspect such to-be-covered work. All alterations, installations, removals and restoration shall be performed in a good and workmanlike manner so as not to damage or alter the primary structure or structural qualities of the building comprising a part of the Premises and other improvements situated on the Premises. No alterations contemplated by Tenant to the building comprising a part of the Premises or Premises will in any way be a condition to the occurrence of the Commencement Date or commencement of Tenant’s rental payment obligations hereunder.

7.         SIGNS. Any signage Tenant desires for the Premises shall be subject to Landlord's prior written approval. Tenant shall repair, paint, and/or replace the building fascia surface to which its signs are attached upon vacation of the Premises, or the removal or alteration of its signage. Tenant shall not (i) make any changes to the exterior of the Premises, (ii) install any exterior lights, decorations, balloons, flags, pennants, banners or painting, or (iii) erect or install any signs, windows or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Premises, without Landlord's prior written consent.

8.         UTILITIES. Landlord agrees to provide normal water, electricity, and telephone service connections (but not telephone systems or equipment, which Tenant shall provide at its own sole cost) to the Premises as they currently exist, which shall hereafter be maintained by Tenant. Tenant shall connect in its own name and pay for all water, gas, heat, light, power, telephone, sewer, sprinkler charges and other utilities and services used on or at the Premises, and shall furnish all electric light bulbs, ballasts, and tubes. All telephone service for Tenant shall be connected at Tenant's cost and in a manner such that Tenant shall be separately and directly billed therefor. Landlord shall not be liable for any interruption or failure of any such utility service on or serving the Premises.

9.         INSURANCE.

A.         Tenant’s Insurance. Throughout the Term of this Lease, Tenant will secure and maintain, at Tenant's expense:

(i)         Property. Causes of loss – special form (formerly “all risk”) property insurance (including extra expense insurance) on all of Tenant's fixtures and personal property in the Premises, and on all alterations, additions and improvements, all for the full replacement cost thereof. Tenant will use the proceeds from such insurance for the replacement of fixtures and personal property and for the restoration of any such alterations, additions or improvements as set forth in Paragraph 10. Landlord will be named as loss payee as respects its interest in any such alterations, additions, or other improvements.

(ii)         Workers’ Compensation; Employers Liability. Workers compensation and employers liability insurance. Workers compensation insurance in statutory limits will be provided for all employees. The employers liability insurance will afford limits not less than $500,000.00 per accident, $500,000.00 per employee for bodily injury by disease, and $500,000.00 policy limit for bodily injury by disease.

(iii)         Liability. Commercial general liability insurance which insures against claims for bodily injury, personal injury, advertising injury, and property damage based upon, involving, or arising out of the use, occupancy, or maintenance of the Premises. Such insurance will afford, at a minimum, the following limits:

Each Occurrence         $1,000,000.00

General Aggregate         2,000,000.00

Products/Completed Operations Aggregate         2,000,000.00

Personal and Advertising Injury Liability         1,000,000.00

Medical Payments         5,000.00

Any general aggregate limit will apply on a per-location basis.

Such insurance will name Landlord, its trustees and beneficiaries, Landlord's mortgagees, Landlord's managing agent, Landlord's advisor, and their respective officers, directors, agents and employees, as additional insureds (the "Required Additional Insureds").

This coverage must include blanket contractual liability, broad form property damage liability, and must contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance must be written on an occurrence basis and contain a standard separation of insureds provision.

(iv)         Auto. Business auto liability which insures against bodily injury and property damage claims arising out of the ownership, maintenance, or use of "any auto." A minimum of a $1,000,000.00 combined single limit per accident will apply. The provisions of this Paragraph 9.A(v) will apply only to automobiles owned by or leased to Tenant, and will not apply to automobiles owned by or leased to officers or employees of Tenant.

(v)         Umbrella. Umbrella excess liability insurance, on an occurrence basis, that applies excess of required commercial general liability, business auto liability, and employers liability policies, which insures against bodily injury, property damage, personal injury and advertising injury claims with the following minimum limits:

Each Occurrence         $1,000,000.00

Annual Aggregate         1,000,000.00

These limits must be in addition to and not including those stated for underlying commercial general liability, business auto liability, and employers liability insurance. Such policy must name the Required Additional Insureds as additional insureds.

(vi)         Alterations; Moving. Tenant will provide to Landlord endorsements of paid-up commercial general liability insurance in the amount of not less than $1,000,000.00 and otherwise reasonably satisfactory to Landlord from (i) Tenant's contractors before performing any initial leasehold improvements pursuant to any work letter attached to this Lease, and as provided in Paragraph 6 before performing any Tenant-made alterations; and (ii) Tenant's mover respecting moving into and moving out of the Premises, before Tenant moves into or out of the Premises. All insurance coverage to be provided by Tenant's contractors or movers must comply with the general insurance requirements set forth below. All such insurance must (1) include the Required Additional Insureds as additional insureds; and (2) be considered primary insurance.

(vii)         General insurance requirements. All policies required to be carried by Tenant and Tenant’s contractors and movers hereunder must be issued by and binding upon an insurance company licensed to do business in the state in which the property is located with a rating of at least "A-" "VIII" or better as set forth in the most current issue of Best's Key Rating Guide, unless otherwise approved by Landlord. Tenant will not do or permit anything to be done that would invalidate the insurance policies required. The insurance that Tenant is required to carry under this Paragraph 9.A may be held under a blanket policy.

Liability insurance maintained by Tenant and Tenant’s contractors and movers will be primary coverage without right of contribution by any similar insurance that may be maintained by Landlord. Tenant’s liability insurance deductibles may not exceed $0.00, and Tenant’s property insurance deductibles may not exceed $5,000.00.

Endorsements, acceptable to Landlord, evidencing the existence and amount of each liability insurance policy required hereunder and Evidence of Property Insurance Form, Acord 27, evidencing property insurance as required will be delivered to Landlord prior to delivery or possession of the Premises and ten days prior to each renewal date. Endorsements for each policy shall show that the Required Additional Insureds are included as additional insureds on liability policies (except employer's liability). The Evidence of Property Insurance Form will name Landlord as loss payee for property insurance as respects Landlord's interest in improvements and betterments. Further, the endorsements must include that for each policy whereby the insurer agrees not to cancel or non-renew the policy, or reduce the coverage below the limits required in this Lease, without at least thirty (30) days' prior notice to Landlord and Landlord's managing agent.

If Tenant fails to provide evidence of insurance required to be provided by Tenant hereunder, prior to commencement of the Term and thereafter during the Term, within ten (10) days following Landlord's request thereof, and ten (10) days prior to the expiration date of any such coverage, Landlord will be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant, plus an eighteen percent (18%) service charge, and payable upon written invoice thereof.

The limits of insurance required by this Lease, or as carried by Tenant, will not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent provided for under Paragraph 9.C below (Waiver of Claims; Waiver of Subrogation). Any deductibles selected by Tenant will be the sole responsibility of Tenant.

Landlord may, at its sole discretion, change the insurance policy limits and forms which are required to be provided by Tenant; such changes will be made to conform to common insurance requirements for similar properties in similar geographic locations. Landlord will not change required insurance limits or forms more often than once per calendar year.

B.         Landlord's Insurance. Landlord agrees to maintain during the Term "all-risk" insurance on the Premises at replacement cost, excluding foundations and excluding the items which Tenant is required to insure under Paragraph 9A(i).

C.         Waiver of Claims; Waiver of Subrogation. To the extent permitted by law, Tenant waives all claims it may have against Landlord, its managing agents or employees for damage to property sustained by Tenant or any occupant or other person resulting from the Premises any part of said Premises becoming out of repair or resulting from any accident within or adjacent to the Premises or resulting directly or indirectly from any act or omission of Landlord or any occupant of the Premises or any other person while on the Premises to the extent such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry, regardless of cause or origin. The waiver in this grammatical paragraph will also apply as to the amount of any deductible under Tenant's insurance. Particularly, but not in limitation of the foregoing sentence, all property belonging to Tenant or any occupant of the Premises that is in the Premises will be there at the risk of Tenant or other person only, and Landlord or its agents or employees will not be liable for damage to or theft of or misappropriation of such property, nor for any damage to property resulting from fire, explosion, flooding of basements or other subsurface areas, falling plaster, steam, gas, electricity, snow, water or rain which may leak from any part of the Premises or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place or resulting from dampness or any other cause whatsoever, nor for any latent defect in the Premises, to the extent that such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry. Tenant will give prompt notice to Landlord in accordance with Paragraph 10 in case of fire or accidents in the Premises or of defects therein or in the fixtures or equipment.

Tenant agrees to include in the insurance policies which Tenant is required by this Lease to carry in accordance with Paragraphs 9A(i) and 9A(ii), to the fullest extent permitted by law, a waiver of subrogation against Landlord and Landlord's managing agent.

Landlord will not be required to maintain insurance against thefts within the Premises or any complex within which the Premises is located.

10.         FIRE AND CASUALTY DAMAGE.

A.         Major Casualty. If the building on the Premises should be damaged or destroyed by fire or other peril, Tenant shall immediately give written notice thereof to Landlord. If the building on the Premises is totally or substantially destroyed by any peril covered by the insurance to be provided by Landlord under Paragraph 9A, above, or if it should be so damaged thereby that, in Landlord's estimation, rebuilding or repairs cannot be completed within two hundred seventy (270) days after the date of such damage, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease, effective upon the date of the occurrence of such damage. Notwithstanding such termination, Tenant shall remain liable to pay Landlord all rent and other sums accrued under this Lease prior to such termination plus prorata rent for any partial occupancy between the date of the casualty and the date of the termination notice or Tenant's vacating of the Premises, whichever is later.

B.         Lesser Casualty. If the building on the Premises is damaged by any peril covered by the insurance to be provided by Landlord under Paragraph 9A above, and in Landlord's estimation, rebuilding or repairs can be substantially completed with the available insurance proceeds within two hundred seventy (270) days after the date of such damage, Landlord may elect to terminate this Lease without further liability by giving written notice thereof to Tenant within sixty (60) days after the occurrence of such casualty. If Landlord fails to give such notice, this Lease shall not terminate, and Landlord shall restore the Premises to substantially its previous condition, except that Landlord shall not be required to rebuild, repair or replace any part of the partitions, fixtures, additions and other improvements that may have been constructed, erected or installed in, or about the Premises by or for the benefit of Tenant. If such repairs and rebuilding have not been substantially completed within two hundred and seventy (270) days after the date of such damage, Tenant, as Tenant's sole and exclusive remedy, may terminate this Lease by delivering written notice of termination to Landlord in which event the future accruing rights and obligations of the parties hereunder shall cease and terminate.

C.         Insufficient Insurance Proceeds. Notwithstanding anything herein to the contrary, in the event the holder of any indebtedness secured by a mortgage or deed of trust covering the Premises requires that the insurance proceeds be applied to such indebtedness, or the insurance proceeds for any reason are insufficient to rebuild, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within sixty (60) days after the event of the casualty (or within fifteen 15 days after such mortgagee makes requirement known to Landlord), whereupon all future accruing rights and obligations of the parties hereunder shall cease and terminate.

11.    LIABILITY AND INDEMNIFICATION. Tenant hereby agrees to indemnify, defend and hold harmless Landlord, its agents, employees, officers, directors, shareholders, beneficiaries, representatives, Mortgagees, affiliates and related parties, from and against any and all losses, damages, judgments, liabilities, penalties, fines, debts, actions, suits, proceedings, causes of action, costs, fees and expenses, including, without limitation, costs of court, defense costs and reasonable attorneys' fees (“Claims or Losses”) suffered or incurred by Landlord or any such indemnified party, or asserted or claimed against Landlord or any such indemnified party arising out of or in connection with the use, occupancy, operation or improvement of the Premises, from whatever source or for whatever reason, including claims of personal injury, bodily injury (including death) and property damage. THE FOREGOING INDEMNITY SHALL APPLY WHETHER OR NOT SUCH CLAIM OR LOSS IS BASED OR ALLEGED TO BE BASED ON A NEGLIGENT ACT OR OMISSION (INCLUDING, WITHOUT LIMITATION, FAILURE OR REFUSAL TO ENFORCE OR MONITOR TENANT’S COMPLIANCE WITH ANY TERM OF THIS LEASE) BY LANDLORD OR ANY OF THE PARTIES INDEMNIFIED HEREUNDER. Notwithstanding the foregoing, however, it is agreed that (A) as to Landlord, this indemnity shall not apply to Claims or Losses arising solely from (i) the active negligence (as opposed to alleged negligence by omission or inaction) of any agent, employee or representative of Landlord while physically on the Premises acting in the course and scope of his or her agency or employment, or (ii) Landlord’s gross negligent failure to make repairs that are Landlord’s responsibility pursuant to Paragraph 4 hereof, following receipt of notice from Tenant identifying such repairs, and (B) as to any other indemnified party, Tenant’s indemnity of that party shall not apply to that party's own affirmative acts of negligence or intentional misconduct while such party is physically on the Premises. Notwithstanding anything to the contrary or apparent contrary elsewhere herein, Tenant's indemnity in this Paragraph shall, as to events or occurrences prior to the later of termination of this Lease or Tenant's vacating of the Premises, survive expiration or termination of this Lease for any reason.

12.         USE. The Premises shall be used only for the Permitted Use as defined in the Basic Lease Terms. Tenant shall, at its own cost and expense, obtain any and all licenses and permits necessary for such use. Tenant shall comply with all governmental orders and directives for the correction, prevention and abatement of nuisances in or upon, or connected with, the Premises, all at Tenant's sole expense. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take any other action that would constitute a nuisance or would disturb, unreasonably interfere with, or endanger Landlord, or any owners or occupants of adjacent or nearby property, or the contents of the Premises. Tenant shall further be responsible and liable for the safe and proper operation of any and all equipment within the Premises, and shall be responsible for any training necessary for said safe and proper operation of such equipment. Any liabilities resulting from the unsafe operation of said equipment shall be the sole responsibility of Tenant. Tenant shall indemnify, hold harmless and defend Landlord in any and all claims resulting from the use of this or any other type of equipment on the Premises, without limitation of any other indemnity contained in this Lease.

13.         INSPECTION. Landlord and Landlord's agents and representatives shall have the right for its own protection, but not the obligation, to enter the Premises at any reasonable time during business hours, to inspect the Premises and to make such repairs as may be required or permitted pursuant to this Lease. During the period that is six (6) months prior to the end of the Term hereof and at any time Tenant is in default, Landlord and Landlord's representatives may enter the Premises during business hours for the purpose of showing the Premises, and shall have the right to erect a suitable sign on the Premises stating the Premises are available for lease. Landlord may erect a sign at any time offering the Premises for sale (provided that any sale is subject to the remaining Term of this Lease and any purchase option or right of refusal, if any, contained in this Lease). Tenant shall notify Landlord in writing at least thirty (30) days prior to vacating the Premises and shall arrange to meet with Landlord for a joint inspection of the Premises prior to vacating. If Tenant fails to give such notice or to arrange for such inspection, then Landlord's inspection of the Premises shall be deemed correct for the purpose of determining Tenant's responsibility for repairs and restoration of the Premises.

14.         ASSIGNMENT AND SUBLETTING.

A.         No Assignment or Subletting. Tenant shall not have the right to assign, sublet, transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublessee and transferees being hereinafter referred to as "Transferees"), by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to persons other than Landlord by such Transferees in contravention of this Paragraph. Any excess consideration of any kind paid to Tenant (or any Tenant-related party) by any sublessee or assignee approved by Landlord hereunder, in excess of the rents (month by month in the case of a sublet or in a lump sum in case of an assignment) provided for herein, shall constitute additional rent due by Tenant to Landlord contemporaneously with receipt thereof by Tenant (or its related party). No assignment, subletting or other transfer, whether consented to by Landlord or not or permitted hereunder, shall ever relieve Tenant of its liability, which it agrees with be joint and several with the liability of any assignee and primary and continuing in the event of any sublease, for all obligations of "Tenant" hereunder. If an Event of Default occurs while the Premises or any part thereof are assigned or sublet, then Landlord, in addition to any other remedies herein provided, or provided by law, may collect directly from such Transferee all rents payable to Tenant and apply such rent against any sums due Landlord hereunder. No such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder. For the avoidance of doubt, any change of control of the ownership or voting control of Tenant or Tenant’s ultimate parent shall be deemed to be a transfer of this Lease requiring the prior written consent of Landlord.

B.         Assignment in Bankruptcy. If this Lease is assigned to any person or entity pursuant to the provision of the Bankruptcy Code, 11 U.S.C. §101 et seq. (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord.

C.         Deemed Assumption by Transferee in Bankruptcy; Assurance of Future Performance. Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument confirming such assumption, and shall provide Landlord with adequate assurance of such assignee's future performance in such form (including full cash-collateralization) as Landlord may specify.

15.         CONDEMNATION. If there shall be taken by exercise of the power of eminent domain during the Term of this Lease any part of the Premises, then Landlord may elect either to terminate this Lease and all future obligations of the parties hereunder, or to continue this Lease in effect. If Landlord elects to continue the Lease, the rental shall be reduced in pro‐portion to the area of the Premises so taken and Landlord shall repair any damage to the Premises or the building resulting from such tak‐ing. All sums awarded or agreed upon between Landlord and the condemning authority for the taking of the interest of Landlord or Tenant in the Premises, whether as damages or as compensation, shall be the property of Landlord, and Tenant hereby assigns to Landlord any right of Tenant therein or claim of Tenant thereto. If Landlord elects to terminate this Lease, rental shall be payable up to the date that possession is taken by the condemning authority, and Landlord will refund to Tenant any prepaid unaccrued rent less any sum then owing by Tenant to Landlord.

16.         HOLDOVER. If Tenant should remain in possession of the Premises after the expiration or termination of this Lease, without the execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to be occupy‐ing the Premises as a tenant‑at‑sufferance subject to all the cove‐nants and obligations of this Lease, and shall pay daily Base Rental equal to 150% of the amount of the sum of the daily Base Rental most recently in effect, for the entire holdover period (and shall continue to pay all other payments required hereunder in addition to such Base Rental). No holding over by Tenant after the Term of this Lease without the written consent of Landlord shall operate to extend the Lease for a longer period than one (1) month, and any holding over with the consent of Landlord in writing (unless a different term is specified therein) shall thereafter consti‐tute this Lease a lease from month to month.

17.         EXCLUSIVE COVENANT OF QUIET ENJOYMENT. Upon payment by Tenant of the rents provided for in this Lease, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall, subject to the terms and provisions of this Lease, peaceably and quietly hold and enjoy the Premises for the Term here‐by demised, against any and all interference therewith (i) by the affirmative acts of Landlord, its employees or agents, and (ii) against any person who may claim superior title to the Premises by, through or under Landlord, but not otherwise. Landlord shall under no circumstances be held responsible for restriction or disruption of access to the Premises or any part thereof from public streets caused by con‐struction work or other actions taken by or on behalf of governmental authorities, or for actions taken by other tenants (their employees, agents, visitors, contractors or invitees), or any other cause not entirely within Landlord's direct control, and same shall not constitute a constructive eviction of Tenant or give rise to any right or remedy of Tenant against Landlord of any nature or kind. This covenant of quiet enjoyment is in lieu of any covenant of quiet enjoyment provided or implied by law, and Tenant expressly waives any such other covenant of quiet enjoyment to the extent broader than the covenant contained in this Paragraph.

18.         EVENTS OF DEFAULT. The following events (herein individually referred to as an "Event of Default") each shall be deemed to be events of nonperformance by Tenant under this Lease:

A.         Payment Default. Tenant shall fail to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to Landlord required herein when due, and such failure shall continue for a period of five (5) days from the date such payment was due.

B.          Insolvency; Voluntary Proceedings; Etc. Tenant shall (i) become insolvent; (ii) admit in writing its inability to pay its debts; (iii) make a general assignment for the benefit of creditors; (iv) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property; or (v) take any action to authorize or in contemplation of any of the actions set forth above in this Paragraph.

C.         Involuntary Proceedings. Any case, proceeding or other action against Tenant shall be commenced seeking (i) to have an order for relief entered against it as a debtor or to adjudicate it as bankrupt or insolvent; (ii) reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii) appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (a) results in the entry of an order for relief against it which it is not fully stayed within seven (7) business days after the entry thereof, or (b) shall remain undismissed for a period of forty-five (45) days.

D.         Vacating of Premises or Removal of Property. Tenant shall (i) vacate all or a substantial portion of the Premises or (ii) fail to continuously operate its business at the Premises for the permitted use set forth herein, whether or not Tenant is in default of the rental payments due under this Lease, or remove or attempt to remove all or any material part of its equipment or machinery from the Premises prior to the last thirty (30) days of the Term hereof.

E.         Violation of Use Restrictions. Tenant shall violate any of the use restrictions herein.

F.         Hazardous Materials. Either (a) Tenant allows Hazardous Materials on the Premises that are not released into or on the Premises, but which are not allowed by the terms of this Lease, and such materials either (i) are not removed from the Premises and disposed of off-site in a lawful manner within ten (10) days after written notice or demand by Landlord on Tenant, or (ii) are allowed on the Premises after repeated previous occasions (three or more previous occasions) on which Landlord gave Tenant written notice to remove the same (whether or not they were removed on the prior occasions), or (b) any release of Hazardous Material in or upon the Premises or adjacent or nearby property is caused or allowed by Tenant and such contamination cannot be or is not cleaned up to the satisfaction of governmental authorities with jurisdiction and Landlord within fifteen (15) days after written notice from Landlord to Tenant.

G.         Legal Violations. Tenant violates any applicable legal requirement that is its responsibility to comply with herein to the extent that, as a result thereof, Landlord or its property management agent (if any) can be held liable for any fine, penalty, assessment, or enforcement action interfering with the operation of the Premises or Landlord’s other properties by or of any governmental authority or agency, or to the extent that any mortgage lienholder is entitled to accelerate the indebtedness secured by the Premises, and such violation is not fully remedied and cured by Tenant within ten (10) days after written notice thereof is given to Tenant by Landlord (if such consequences exist and notice is given by Landlord to Tenant under this paragraph G., rather than paragraph I. below, Landlord will specify in its notice to Tenant that notice is being given under this clause and shall specify the reason that the default by Tenant is of a nature covered by this paragraph).

H.         Failure to Obtain Lien Release. Tenant shall fail to discharge any lien placed upon the Premises the removal of which is Tenant’s responsibility under Paragraph 21 hereof within ten (10) days after any such lien or encumbrance is filed against the Premises.

I.         Failure to Comply With Other Covenants. Tenant shall fail to comply with any term, provision or covenant of this Lease (other than those listed above in this Paragraph 18), and shall not cure such failure within twenty (20) days after written notice thereof given by Landlord to Tenant.

19.         REMEDIES.

A.         Termination, Repossession, Discontinuance of Services. Upon each occurrence of an Event of Default, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand:

(1)         Terminate this Lease and hold Tenant liable for anticipatory breach damages and all past-due amounts called for hereunder; and/or

(2)         Enter upon and take possession of the Premises with or without terminating this Lease, and with or without judicial process; and/or

(3)         Discontinue supplying any one or more utility services to Tenant; and/or

(4)         Alter all locks and other security devices at the Premises with or without terminating this Lease, and pursue, at Landlord's option, one or more remedies pursuant to this Lease, Tenant hereby specifically waiving any state or federal law to the contrary.

In any such event, Tenant immediately shall deliver up the Premises to Landlord, and if Tenant fails so to do, Landlord, without waiving any other remedy it may have, may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying such Premises or any part thereof, without being liable for prosecution or any claim of damages therefor.

B.         Certain Damages Upon Termination. If Landlord terminates this Lease, at Landlord's option, Tenant shall be liable for and shall pay to Landlord, the sum of all rental and other payments owed to Landlord hereunder accrued to the date of such termination, plus any holdover rent due, plus, as damages, an amount equal to (1) the present value of the total rental and other payments owed hereunder for the remaining portion of the Term, calculated as if such Term expired on the date set forth in Paragraph 1, less (2) the then present actual net fair market rental value of the Premises for such period, taking into account costs of reletting, periods of vacancy prior to reletting, periods of vacancy for preparation of the Premises for occupancy by a new tenant, increases in base year expenses of Landlord, and other relevant market factors. Landlord may, at its option, elect to liquidate damages for lost rent as a result of such breach at sixty percent (60%) of the rent for the remainder of the stated Term.

C.         Right to Collect Deficiency if Lease Not Terminated. If Landlord repossesses the Premises without terminating the Lease, Tenant, at Landlord's option, shall be liable for and shall pay Landlord on demand all rental and other payments owed to Landlord hereunder, accrued to the date of such repossession, plus in a lump sum of accelerated rents all amounts required to be paid by Tenant to Landlord until the date of expiration of the Term as stated in Paragraph 1, diminished by all amounts actually received by Landlord through re-letting of the Premises during such remaining Term (but only to the extent of the rent herein reserved) or, to the extent such case goes to trial before the end of the Term, then the net fair market rental value of the Premises (as defined above) for the remainder of the stated Term for which no replacement lease has been executed. At Landlord's option, Landlord may collect the rental deficiencies periodically as they accrue, in lieu of accelerating rents. Actions to collect amounts due by Tenant to Landlord under this subparagraph may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of the Term.

D.         Other Damages. Upon an Event of Default, in addition to any sum provided to be paid herein, Tenant also shall be liable for and shall pay to Landlord (i) brokers' fees incurred by Landlord in connection with re-letting the whole or any part of the Premises; (ii) the costs of removing and storing Tenant's or other occupant's property; (iii) the costs of repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new lessee or lessees; and (iv) all costs and expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies. If either party hereto institutes any action or proceeding to enforce any provision hereof by reason of any alleged breach of any provision of this Lease, the prevailing party shall be entitled to receive from the losing party all reasonable attorney's fees and all court costs incurred in connection with such proceeding.

E.         Right to Change Locks. In the event that Landlord is entitled to change the locks at the Premises pursuant to any of the foregoing provisions, Tenant agrees that entry may be gained for that purpose through use of a duplicate or master key or any other peaceable means, that same may be conducted out of the presence of Tenant if Landlord so elects, that no notice shall be required to be posted by Landlord on any door to the Premises (or elsewhere) disclosing the reason for such action or any other information, and that Landlord shall not be obligated to provide a key to the changed lock to Tenant unless Tenant shall have first:

(1)         brought current all payments due to Landlord under this Lease; provided, however, that if Landlord has theretofore formally and perma‐nently repossessed the Premises by notice pursuant to the terms of this Lease, or has terminated this Lease by notice pursuant to the terms hereof, then Landlord shall be under no obligation to provide a key to the new lock(s) to Tenant regardless of Tenant's payment of past‑due rent or other past‑due amounts, damages, or any other payments or amounts of any nature or kind whatsoever;

(2)         fully cured and remedied to Tenant's satisfaction all other defaults of Tenant under this Lease (but if such defaults are not sub‐ject to cure, such as early abandonment or vacating of the Premises, then Landlord shall not be obligated to provide the new key to Tenant under any circumstances); and

(3)         given Landlord security and assur‐ance reasonably satisfactory to Landlord that Tenant intends to and is able to meet and comply with its future obligations under this Lease, both monetary and non‑monetary.

Landlord will, upon written request by Tenant, at Landlord's convenience and upon Tenant's execution and delivery of such waivers and indemnifications as Landlord may require, at Landlord's option either (i) escort Tenant or its specifically authorized employees or agents to the Premises to retrieve personal belongings and effects of Tenant's employees (as opposed to property which is an asset of Tenant), and property of Tenant that is not subject to the landlord's liens and security interests described in Paragraph 25, below, or (ii) obtain from Tenant a list of such property described in (i), above, and arrange for such items to be removed from the Premises and made available to Tenant at such place and at such time in or about the Premises or such other location as Landlord may designate; provided, however, that if Landlord elects option (ii), then Tenant shall be required to deliver to Landlord such waivers and indemnifications as Landlord may require in connection therewith, and pay in cash in advance to Landlord (A) the estimated costs that Landlord will incur in removing such property from the Premises and making same available to Tenant at the stip‐ulated location, and (B) all moving and/or storage charges theretofore incurred by Landlord with respect to such property.

F.         Late Charge. In the event Tenant fails to make any payment due hereunder when payment is due, to help defray the additional cost to Landlord for processing such late payments, Tenant shall pay to Landlord on demand a late charge in an amount equal to five percent (5%) of such installment; and the failure to pay such amount within ten (10) days after demand therefor shall be an additional Event of Default hereunder. The provision for such late charge shall be in addition to all of Landlord's other rights and remedies hereunder or at law and shall not be construed as liquidated damages or as limiting Landlord's remedies in any manner.

G.         Cumulative Remedies; No Implied Waiver. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Landlord, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Tenant and Landlord further agree that forbearance by Landlord to enforce its rights pursuant to the Lease at law or in equity, shall not be a waiver of Landlord's right to enforce one or more of its rights in connection with any subsequent default.

H.         Use or Disposition of Tenant's Property. If Landlord repossesses the Premises pursuant to the authority herein granted, then Landlord shall have the right to (i) keep in place and use, or (ii) remove and store, all of the furniture, fixtures and equipment at the Premises, including that which is owned by or leased to Tenant at all times prior to any foreclosure thereon by Landlord or repossession thereof by any other lessor thereof or third party having a lien thereon. Landlord also shall have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment and other property to any person ("Claimant") who presents to Landlord a copy of any instrument represented by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment or other property, without the necessity on the part of Landlord to inquire into the authenticity or legality of said instrument. The rights of Landlord herein stated shall be in addition to any and all other rights that Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable.

I.         All Sums Constitute Rent. Notwithstanding anything in this Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not expressly denominated as rent, shall constitute rent.

J.         Landlord Not Obligated to Other Parties. This is a contract under which applicable law excuses Landlord from accepting performance from (or rendering performance to) any person or entity other than Tenant.

K.         Landlord Default. If Landlord fails to perform any of its obligations hereunder within thirty (30) days after written notice from Tenant specifying such failure, Tenant's exclusive remedy shall be an action for damages. Unless and until Landlord fails to so cure any default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its possession of the Premises and not thereafter. The term "Landlord" shall mean only the owner, for the time being of the Premises, and in the event of the transfer by such owner of its interest in the Premises, such owner shall thereupon be released and discharged from all covenants and obligations of Landlord thereafter accruing, but such covenants and obligations shall be binding during the Term upon each new owner for the duration of such owner's ownership. Notwithstanding any other provision hereof, Landlord shall not have any personal liability hereunder.

20.         MORTGAGES. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or any ground lease, and all renewals, increases and rearrangements thereof, whether or not a novation of the secured debt may occur in connection therewith (herein, a “Mortgage”); provided, however, that if the holder of any Mortgage (a “Mortgagee”) elects to have Tenant's interest in this Lease superior to any such Mortgage, then by written notice to Tenant from the Mortgagee, this Lease shall be deemed superior to the lien created by that Mortgage. In the event of any foreclosure of any such lien or mortgage, Tenant agrees to attorn to the Mortgagee or other purchaser at foreclosure, upon demand. Notwithstanding anything to the contrary contained herein, Tenant agrees that this Lease shall be subordinate to any future Mortgage placed against the Premises, and that it will attorn to the future Mortgagee, only if the Mortgagee agrees with Tenant in a subordination, non-disturbance and attornment agreement (an “SNDA Agreement”), in the Mortgagee’s then standard form, that Tenant’s right to use and occupy the Premises under the terms of this Lease will not be deprived as a result of a termination or foreclosure of such Mortgage so long as Tenant is not then in default under this Lease; provided, however, that Tenant acknowledges and agrees that such SNDA Agreement may contain, among other terms and conditions required for obtaining such Mortgage (i) any provision (or the substantial equivalent thereof) contained in any previous SNDA Agreement executed by Tenant (or any predecessor Tenant hereunder), (ii) a provision requiring that notices of Landlord default be given to the Mortgagee and the Mortgagee allowed a reasonable time in addition to Landlord’s cure period hereunder to cure such default before Tenant shall be entitled to take its remedies hereunder or by law, (iii) a provision stating that the terms of the Mortgage govern over any conflicting provision of this Lease pertaining to the Mortgagee’s obligation to make insurance or condemnation proceeds available for reconstruction of any part of the Premises, (iv) provisions by which such Mortgagee or successor-in-interest upon foreclosure is agreed not to be bound by (a) any payment of rent or additional rent for more than one (1) month in advance, including prepayment in the nature of security for the performance by Tenant of its obligations under this Lease (unless actually received by such successor in interest), (b) any obligations of Landlord to construct improvements, (c) any amendment or modification of this Lease (or implied waiver of Tenant’s obligations) made without the written consent of such trustee or such beneficiary or such successor in interest, (d) any representations or defaults by any prior Landlord, and (e) any other matters that such Mortgagee is not directly responsible for causing, as such Mortgagee may specify, and/or (v) such other provisions and protections as such Mortgagee may request that are reasonably customary in the commercial mortgage lending community at the time. Tenant, at any time hereafter on demand by Landlord, shall promptly execute and deliver to Landlord, in any event within ten (10) days of such demand, an SNDA Agreement meeting the above criteria or in any other commercially reasonable form.

21.         MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind the interest of Landlord or Tenant in the Premises or to charge the rentals payable hereunder for any claim in favor of any person dealing with Tenant, including those who may furnish materials or perform labor for any construction or repairs. Tenant covenants and agrees that it will pay or cause to be paid all sums legally due and payable by it on account of any labor performed or materials furnished in connection with any work performed on the Premises and that it will save and hold Landlord harmless from any and all loss, cost or expense based on or arising out of asserted claims or liens against the leasehold estate or against the right, title and interest of Landlord in the Premises or under the terms of this Lease. Tenant agrees to give Landlord immediate written notice of the placing of any lien or encumbrance against the Premises, and to cause the release of such lien claim or filing claiming with respect to work done by, through or under Tenant or any occupant of the Premises immediately upon Landlord’s demand or prior to institution of any suit to foreclose such lien, whichever is sooner.

22.         COMPLIANCE WITH LAWS AND RESTRICTIONS. Tenant shall comply throughout the Term with all orders, ordinances, regulations and laws of the municipal corporation and other governmental authorities that are applicable to the Premises and/or Tenant's use of the Premises, whether requiring alterations or improvements of a capital nature or otherwise, and with all applicable deed and other restrictions; provided, however, that if a Uniform Mandatory Change (as hereinbelow defined) shall occur during the Term of this Lease, then (i) Tenant shall give Landlord prompt written notice of such Uniform Mandatory Change, (ii) Landlord will proceed with reasonable diligence after receipt of such notice to design, finance (at Landlord’s option), permit and construct or install the capital improvement required by the Uniform Mandatory Change, and (iii) from and after the date of Landlord’s substantial completion of the capital improvement work required by the Uniform Mandatory Change, the monthly Base Rental hereunder shall be automatically increased by an amount equal to the total cost of such capital improvement work incurred by Landlord divided by the number of months in the useful life of such improvement as reasonably determined by Landlord, but in any event not longer than the remaining useful life of the building for purposes of GAAP, or the actual practical remaining useful life if shorter. Landlord shall not be liable or responsible in any manner for reasonably necessary disruption to Tenant’s business operations at the Premises on account of the performance of the Uniform Mandatory Change, and under no circumstance shall any work by Landlord or its contractor(s) on any Uniform Mandatory Change ever give rise to an abatement of rent or a right on the part of Tenant to terminate this Lease. At Landlord’s option, Landlord may require that Tenant (after Landlord’s reasonable approval of plans therefor) make the alteration or improvement required by the Uniform Mandatory Change and reimburse Tenant for such work upon Tenant’s completion thereof in a good and workmanlike manner, in compliance with all laws, and lien free for the required mechanic’s or materialmen’s lien claim or filing period (but subject to the increase in Base Rental the same as provided above for the situation in which Landlord makes such alteration or improvement by its own contractors). For purposes hereof, a “Uniform Mandatory Change” means (A) a capital improvement that is required to be made to the Premises to comply with new legal requirement as to which compliance of the Premises is mandatory, if (B) the new legal requirement is of uniform applicability to all similar buildings in the same jurisdiction, and not a requirement that is peculiar to Tenant’s particular use, industry, products or operations. Notwithstanding the foregoing, however, upon receipt of a notice from Tenant that a Uniform Mandatory Change is required to the Premises, Landlord may contest the applicability of such law to the Premises by whatever means Landlord determines to be appropriate, and to whatever level of appeal, and only comply therewith upon final judgment adverse to Landlord’s position, so long as Tenant’s use and occupancy of the Premises for its operations consistent with the permitted use herein are not materially disrupted or interfered with during the pendancy of such protest or contest of such law by Landlord. Tenant shall further comply with any licensing or permitted requirements applicable to the operation of its specific business (“Business Licenses”), the cost and availability of which and requirements for which are not warranted or represented by Landlord in any respect. Tenant is responsible for having verified that the regulations and restrictions affecting the Premises permit its use and any other desired Permitted Use by Tenant. The Permitted Use shall be subject to any and all other specific restrictions on use stated elsewhere in this Lease, and all risk of obtaining Business Licenses and compliance with regulations and restrictions are Tenant’s sole risk.

23.         MISCELLANEOUS.

A.         Construction; Headings. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. The captions inserted in this Lease are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Lease, or any provision hereof, or in any way affect the interpretation of this Lease.

B.         Successors and Assigns. The terms, provisions and covenants and conditions contained in this Lease shall apply to, inure to the benefit of, and be binding upon, the parties hereto and upon their respective heirs, executors, personal representatives, legal representatives, successors and assigns, except as otherwise herein expressly provided. Landlord shall have the right to transfer and assign, in whole or in part, its rights and obligations in the building and property that are the subject of this Lease. Tenant agrees to furnish to Landlord, promptly upon demand, a corporate resolution, proof of due authorization by partners, or other appropriate documentation evidencing the due authorization of Tenant to enter into this Lease.

C.         Force Majeure. Landlord shall not be held responsible for delays in the performance of its obligations hereunder when caused by material shortages, acts of God, labor disputes or other events of force majeure.

D.         Tenant Estoppels. Upon request therefor, Tenant agrees to execute and deliver to Landlord, or any party designated by Landlord, within ten (10) business days, an Estoppel Certificate in the form attached hereto at Exhibit B. Exceptions to Landlord performance must be detailed in writing and attached to and made a part of the requested Estoppel Certificate within the same 10 business-day time period.

E.         Merger; Amendment. This Lease constitutes the entire understanding and agreement of Landlord and Tenant with respect to the subject matter of this Lease, and contains all of the covenants and agreements of Landlord and Tenant with respect thereto. Landlord and Tenant each acknowledge that no representations, inducements, promises or agreements, oral or written, have been made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not contained herein, and any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease are of no force or effect. This Lease may not be altered, changed or amended except by an instrument in writing signed by both parties hereto.

F.         Survival; Delivery Up of Possession at End of Term. All obligations of Tenant hereunder not fully performed as of the expiration or earlier termination of the Term of this Lease shall survive the expiration or earlier termination of the Term hereof, including, without limitation, all payment obligations with respect to taxes and insurance and all obligations concerning the condition and repair of the Premises. Upon the expiration or earlier termination of the Term hereof, and prior to Tenant vacating the Premises, Tenant shall pay to Landlord any amount reasonably estimated by Landlord as necessary to put the Premises, including, without limitation, all heating and air conditioning systems and equipment therein, in good condition and repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's obligation hereunder for real estate taxes and insurance premiums for the year in which the Lease expires or terminates. All such amounts shall be used and held by Landlord for payment of such obligations of Tenant hereunder, with Tenant being liable for any additional costs therefor upon demand by Landlord, or with any excess to be returned to Tenant after all such obligations have been determined and satisfied as the case may be. In the year that this Lease terminates, Landlord, in lieu of waiting until the close of the calendar year, in order to determine any excess additional rentals as set forth in Paragraph 2, has the option to charge Tenant for Tenant's proportionate share of the additional rentals set forth in Paragraph 2 based upon the previous year's expenses therefor plus ten percent (10%). Any Security Deposit held by Landlord shall be credited against the amount payable by Tenant under this Paragraph 23F if not otherwise utilized by Landlord to pay repair or other liabilities of Tenant.

G.         Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.

H.         Brokers. Tenant represents and warrants that it has dealt with no broker, agent or other person in connection with this transaction other than Landlord's Broker specified in the Basic Lease Terms, if any, and Tenant's Broker specified in the Basic Lease Terms, if any (collectively, the "Brokers"), and Tenant agrees to indemnify and hold harmless Landlord from and against any claims by any broker, agent or other person (other than Brokers) claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction.

I.         Identity of Parties' Representatives. If and when included within the term "Landlord," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. If and when included within the term "Tenant," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address within the continental United States for the receipt of notices and payments to Tenant. All parties included within the terms "Landlord" and "Tenant," respectively shall be bound by notices given in accordance with the provisions of Paragraph 24 hereof to the same effect as if each had received such notice.

J.         Governing Law. This Lease shall be enforced, construed and interpreted under the laws of the State of Texas.

K.         Time of Essence. Time is of the essence in all matters of performance by each of the parties hereto; and all due dates, time schedules, and conditions precedent to exercising a right shall be strictly adhered to without delay except where otherwise expressly provided.

L.         Financial Information. Tenant shall at any time and from time to time during the Term of the Lease, within fifteen (15) days of written request by Landlord, deliver to Landlord such financial information concerning Tenant and Tenant’s business operations as may be reasonably requested by Landlord; provided, however, that Tenant shall have no obligation to provide any such information as to Tenant, as applicable, so long as (i) the Tenant is a company whose shares are traded on the NYSE, AMEX or NASDAQ stock exchange, and (ii) current financial statements of Tenant (consolidated only with the relevant financial information of its controlled subsidiaries as required by GAAP), audited and certified by an independent certified public accounting firm, are posted on “EDGAR,” the “Home Page” of such Tenant, or other electronic resource that is available, without charge, to the general public (but if such posting is other than on EDGAR, Tenant shall promptly, within the above 15-day period, respond to Landlord’s request hereunder for financial information by providing written notice to Landlord of the Home Page or public website for Tenant on which such information exists and from which it may be retrieved without charge). The relief of Tenant from the obligation to provide information pursuant to the foregoing are intended to and shall apply independently to Tenant, such that Tenant’s obligations to deliver such information continues as to Tenant only if one of them, but not both, qualifies for the foregoing exemption. Each party who is either primarily, jointly and severally, or even secondarily liable on this Lease, for example, prior party’s who signed or assumed this Lease as “Tenant” who may no longer occupy the Premises, are obligated with regard to provision of this information the same as “Tenant” for purposes hereof, but are entitled to the same exemption for public companies as provided above. If Tenant is required to but still fails to provide such information when required, then, without limiting any other remedy that Landlord may have for such failure, Landlord may thereupon declare an Event of Default by reason thereof. For purposes hereof, “EDGAR” means the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system, and any successor system that is available to the public without charge, and “Home Page” means the internet website home page of Tenant and any successor equivalent electronic site available to the public without charge.

24.         NOTICES. Any notice, communication, request, reply, or advice (hereinafter severally and collectively called "notice") provided for or permitted to be given, made, or accepted by either party to the other pursuant to this Lease must be in writing, and must, unless otherwise in this Lease expressly provided, be given or be served either (i) by depositing the same in the United States mail, postage prepaid, addressed to the party to be notified, by certified mail with return receipt requested, (ii) by delivering the same by hand delivery or private courier service to the notice address of such party, addressed to the party to be notified, or (iii) transmitted by facsimile (telecopy) transmission at the then-effective notice telecopy number for the party if a copy of such notice is sent by U.S. First-Class mail to the party, postage prepaid and properly addressed, no later than the next postal business day after the telecopy notice is sent. Notice deposited in the mail in the manner hereinabove described shall be deemed given and received for all purposes hereof, unless otherwise stated in this Lease, on the third (3^rd) postal business day after it is deposited in the care or custody of the United States Postal Service, or upon actual receipt at the addressee’s effective notice address, whichever is earlier (actual receipt being deemed the date of first attempted delivery if the first attempted delivery is not successful). Notice given by telecopy is deemed given and received only if followed by mail notice as described above, and only upon electronic confirmation by the sender’s telecopy equipment that the notice was successfully transmitted; provided, however, that notice given by telecopy after 6:00 p.m. on a business day, or on a non-business day (Saturday, Sunday or holiday) is not deemed given until the next following business day. Notice given in any other manner shall be effective only if and when delivered at the designated notice address of the party to be notified (if not left with a receptionist at such address, then left in a secure location reasonably thought to be a place where after-hours deliveries will be found upon opening for business at such address the next following business day – but not left in a building lobby of a multi-tenant building in which the address of the recipient is a particular suite), addressed to the appropriate person as herein specified. The initial notice addresses of the parties for purposes of this Lease are as set forth in the Basic Lease Terms. The parties hereto and their respective heirs, successors, legal representatives, and assigns, shall have the right from time to time and at any time to change their respective notice addresses for purposes hereof to any address within the continental United States, by giving at least fifteen (15) days’ prior written notice to the other party delivered in compliance with this Paragraph. Notwithstanding the foregoing, all rent and other payments required to be made by Tenant to Landlord hereunder shall be payable to Landlord at the address for Landlord set forth herein or at such other address as Landlord may specify from time to time by written notice delivered in accordance herewith. Tenant's obligation to pay rent and any other amounts to Landlord under the terms of this Lease shall not be deemed satisfied until such rent and other amounts have been actually received by Landlord.

25.         LANDLORD’S LIEN. In consideration of the mutual benefits arising under this Lease, Tenant herein grants to Landlord a lien and security interest on Tenant's furniture, equipment, machinery and furnishings now or hereafter placed in or upon the Premises and such property shall be and remain subject to such lien and security interest of Landlord for payment of all rental and other sums agreed to be paid by Tenant herein. The provisions of this paragraph relating to such lien and security interest shall constitute a security agreement under the Texas Uniform Commercial Code so that Landlord shall have and may enforce a security interest on such property of Tenant. Tenant, as debtor, agree to execute such financing statement or statements as Landlord may now or hereafter reasonably request in order that such security interest or interests may be perfected pursuant to the Uniform Commercial Code, or Landlord may make such filing without Tenant’s signature if Tenant’s signature is not required by the law of the jurisdiction applicable to the filing. Landlord, as secured party, shall be entitled to all of the rights and remedies afforded a secured party under the Texas Uniform Commercial Code in addition to and cumulative of the landlord's liens and rights provided by applicable laws or by the other terms and provisions of this Lease. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord (or Landlord may file without Tenant’s signature if allowed in the applicable jurisdiction) a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provision of the Uniform Commercial Code (or corresponding state statute or statutes) in force in the state in which the Premises is located, as well as any other state the laws of which Landlord may at any time consider to be applicable.

26.         HAZARDOUS MATERIALS.

A.         Hazardous Materials Use Restricted; Permitted Materials. Tenant shall not use the Premises for the generation, storage (above or below ground) or disposal of any Hazardous Material (as hereinbelow defined), except for storage of Permitted Materials (as hereinbelow defined), and shall remain in compliance with all requirements of Environmental Law (as defined herein), including, without limitation, requirements, orders and regulations of the Texas Commission on Environmental Quality and the Environmental Protection Agency. “Hazardous Materials” mean all substances regulated by any Environmental Law, and shall include, but is not limited to (i) asbestos, (ii) petroleum, (iii) any explosive, toxic and radioactive materials, wastes or substances, or (iv) any substances defined as “hazardous substances” or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42. U.S.C. §9601, et seq., the Hazardous Materials Transportation Act (49 U.S.C. §1802), as amended, the Resource Conservation and Recovery Act (42 U.S.C. §6901), as amended, or any other Environmental Law. “Environmental Laws” means the foregoing named statutes and every other federal, state or local law regulating the generation, disposal or release into the environment of materials or substances deemed hazardous to human health, wildlife and/or the environment. For purposes hereof, the term “Permitted Materials” means the following Hazardous Materials:

(1)         the following items used on the Premises to the extent the same are used as an incidental part of the primary business of Tenant conducted on the Premises: (i) cleaners and cleaning supplies of a household nature; and (ii) office supplies (such as, but not limited to, toner cartridges, white-out and similar items); and

(2)         Hazardous Materials kept and used on the Premises as reasonably necessary and convenient for the conduct of the Permitted Use.

B.         Use of Permitted Materials. All such Permitted Materials shall be used and stored on the Premises only in compliance with all applicable laws and regulations pertaining thereto (including Environmental Laws), and in the manner recommended by the product manufacturers or industry experts to reasonably minimize the possibility of release (“Recommended Practices”), and shall be disposed of only off the Premises (in compliance with all applicable laws and regulations applicable thereto). If Landlord believes Tenant to be in violation of Recommended Practices in connection with its handling or use of Permitted Materials based on review by and written recommendations of a third-party consultant engaged by Landlord, but has no reason to believe Tenant is in violation of Environmental Laws in regard to such handling or use thereof, Landlord shall (if it desires to press the issue) give Tenant written notice thereof and a copy of such third-party consultant’s recommendation, and Tenant shall, within ten (10) days thereafter if it desires to contest such finding, dispute such finding by submitting to Landlord a written response from a third party consultant retained by Tenant indicating how and why it disputes the findings of Landlord’s consultant regarding Recommended Practices. If Tenant does not timely so contest such finding by Landlord, then Tenant will comply with and conform to (as a minimum) the Recommended Practices as indicated by Landlord’s consultant. If Tenant timely so contests Landlord’s notice and finding, then a third consultant (who has not done business with Landlord and its affiliates within the past 180 days) shall be selected by Landlord and upon rendering of a decision by such third consultant, that decision shall be binding in terms of the Recommended Practices at issue and Tenant will promptly comply therewith after receipt of such third consultant’s written report. Tenant shall not be in violation of this Lease simply by reason of an allegation of violation of Recommended Practices unless and until a finding binding on Tenant is rendered pursuant to the above process (including Tenant’s deemed waiver of findings of Landlord’s consultant) and Tenant fails to promptly comply with such binding finding, but nothing in Tenant’s compliance with Recommended Practices shall ever excuse any actual violation by Tenant of Environmental Laws. Nothing herein shall impede Landlord’s right to immediately proceed with injunctive action to prevent an imminent threat of contamination of the Premises with Hazardous Materials without Landlord being obligated to await any determination of Recommended Practices.

C.         Limitations on Certain Specific Operations. Notwithstanding the foregoing or any other provision of this Lease, however (i) under no circumstances shall Tenant ever install underground storage tanks on, in, upon or within any part of the Premises, and (ii) in connection with any assignment or subletting by Tenant that requires Landlord’s consent under this Lease (any assignment or subletting not requiring such consent shall be on the condition that such assignee or sublessee comply with this provision as written), Tenant must deliver to Landlord, with its request for Landlord approval of such subletting or assignment transaction, the types and maximum quantities of Hazardous Materials that such Tenant will desire to be allowed to have on the Premises (except those of the types specified in clauses (i) and (iii) of paragraph A.(1), above, and Landlord may withhold its approval of such assignment or subletting transaction in its absolute discretion if the types or quantities of Hazardous Materials involved in the business of the proposed sublessee or assignee pose, in Landlord’s good faith judgment, a materially greater exposure to environmental risk than the activities that previously were (or continue to be) conducted by Tenant (or its Permitted Transferees) at the Premises.

D.         Tenant Use of Other Hazardous Materials. In addition, Landlord and Tenant agree that Hazardous Materials other than the Permitted Materials may be kept and used (but not disposed of, released or leaked) upon the Premises only if such additional Hazardous Materials are given the written approval of Landlord, which approval shall be deemed to be provided if Landlord does not object in writing within ten (10) business days of Tenant’s written request for approval accompanied by any applicable material safety data sheets regarding said Hazardous Material as well as a written description of the maximum amount of such substance to be brought upon or into the Premises and the common and recognized chemical name of such Hazardous Material and the reason for Tenant needing to store such Hazardous Materials that are not Permitted Materials (but Landlord’s approval shall only extend to the maximum anticipated quantity referenced in Tenant’s request for approval). Landlord’s approval of use or storage by Tenant of additional Hazardous Materials will not be unreasonably withheld if, in Landlord’s good faith judgment, the nature or quantity of new Hazardous Materials proposed to be brought, stored or used on the Premises do not materially change the environmental risks and exposures of Landlord or the Premises from that contemplated by the types and quantities of Hazardous Materials identified as Permitted Materials herein. If the nature and extent of environmental exposure is materially different, then, among Landlord’s other conditions or qualifications to approval and right to deny approval, Landlord may impose a requirement for pollution liability insurance coverages in form acceptable to Landlord in its sole and exclusive judgment.

E.         Tenant Breaches; Indemnity. If Tenant breaches the obligations set forth in this Paragraph 26, or if the presence of Hazardous Material in the Premises occurs by reason of Tenant’s use or any act or omission of Tenant, its employees, agents, contractors, invitees, sublessees (as permitted herein) or affiliates, or if contamination of the Premises by Hazardous Material otherwise occurs from any source or for any reason other than (i) contamination of the Premises existing prior to the Commencement Date hereof not caused by Tenant, (ii) contamination of the Premises by Hazardous Material brought onto the Premises by Landlord (or its employees, agents, contractors or affiliates) after the date hereof, or (iii) contamination of the Premises by actions of a third party for whom Tenant is not otherwise responsible under this sentence and Tenant took all reasonable precautions and gave Landlord prompt notice of any threat of contamination from a third party that comes to its attention during the Term hereof, then Tenant shall be strictly liable to Landlord for any contamination or legal violation arising therefrom, and shall indemnify, defend and hold harmless Landlord, its partners, and its and their respective agents, employees, shareholders, directors, officers and affiliates, from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including, without limitation, diminution in value of the Premises, attorney’s fees and costs of suit or defense of claims, consultant fees and expert fees, which arise during or after the Term of this Lease as a result of such Hazardous Material being present upon, released upon or within or released from the Premises from such sources and causes for which Tenant is liable hereunder, REGARDLESS OF WHETHER THE CAUSE OF SUCH RELEASE IS, IN WHOLE OR IN PART, THE NEGLIGENCE OF LANDLORD, ITS AGENTS, EMPLOYEES, SERVANTS OR OTHERS FOR WHOSE ACTS IT MIGHT OTHERWISE LEGALLY BE LIABLE. This indemnification of Landlord by Tenant shall survive expiration or termination of this Lease and includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in, on or under the Premises. Without limiting the foregoing, if the presence of any Hazardous Material caused or permitted by Tenant results in any contamination of the Premises, Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the introduction of any such Hazardous Material; provided that Landlord's approval of such actions shall first be obtained.

27.         NO LANDLORD OBLIGATION TO PROVIDE SECURITY.

A.         Release and Indemnity. Neither Landlord nor its property management agent shall have any liability to Tenant or any third party whomsoever, including, without limitation, Tenant's employees, offi‐cers, agents, representatives, contractors, customers, invitees or licensees, for damage, injury or loss to persons or prop‐erty resulting from criminal activ‐ity occurring upon the Premises, or ad‐jacent thereto, whether such crimi‐nal activity is by other tenants, their em‐ployees, agents, officers, representa‐tives, customers, invitees, licensees, con‐tractors or others, or is by any third parties whomsoever. Tenant shall fully insure itself, as it may deem appropri‐ate, to protect itself from claims for any such possible injury, loss or damage to persons or property resulting from crim‐inal activity, including claims as‐serted by its employees, agents, officers, representatives, customers, invitees, licensees and contractors. Tenant shall indemnify, defend and hold harmless Landlord and its property management agent from and against any claims for damage, loss or injury to persons or property as‐serted by Tenant's employees, agents, officers, representatives, customers, in‐vitees, licensees or contractors resulting from any such criminal activity, WHETHER BASED ON ALLEGED NEGLIGENCE OF LANDLORD OR OTHERWISE.

B.         Tenant's Rights to Provide Security. Subject to Landlord's prior written approval, which shall not be unreasonably withheld, Tenant may at its cost take whatever precautions may be necessary in, about and around the Premises to protect its employees, officers, agents, representatives, customers, visitors, contractors, suppliers, invitees and licensees from criminal activity when on the Premises, or in the vicinity thereof, but nothing herein shall be deemed or construed as an undertaking or obligation enforceable against Tenant by any such third party. Tenant shall be responsible for informing itself as to the risk of crime from time to time on and in the vicinity of the Premises and Tenant shall not rely on Landlord to obtain, monitor or disseminate such crime information. Any dissemination of crime information by Landlord or its management agent shall be without obligation or liability on the part of Landlord or its management agent to do so in the future, and neither Landlord nor its management agent shall have liability or responsibility for the accuracy or completeness of any such information as the parties understand and acknowledge that such information shall be from sources the reliability of which Landlord does not undertake to verify or investigate. Tenant is in an equal position to Landlord in terms of its ability to investigate or obtain further verification of the facts surrounding any particular crime reported by Landlord or otherwise coming to the attention of Tenant.

28.         INDEPENDENT OBLIGATIONS; WAIVER. TENANT HEREBY AGREES, AS A MATERIAL PART OF THE CONSIDERATION FOR LANDLORD'S ENTERING INTO THIS LEASE, THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT (OR ANY OF TENANT'S EMPLOYEES OR AGENTS) REGARDING THE CONDITION OF THE PREMISES OR ANY PART THEREOF, EITHER EXPRESS OR IMPLIED, AND LANDLORD HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY (INCLUDING ANY IMPLIED WARRANTY) THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED USE THEREOF. TENANT AGREES THAT TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, BUT THAT TENANT WILL CONTINUE TO PAY RENT WHEN DUE HEREUNDER, WITHOUT ABATEMENT, SET‑OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH OR ALLEGED BREACH BY LANDLORD OF ANY OF ITS EXPRESS OBLIGATIONS UNDER‐TAKEN IN THIS LEASE.

29.         NO MEMORANDUM OF LEASE UNLESS REQUIRED BY LANDLORD. Tenant agrees, if so requested by Landlord, at any time to execute a Memorandum of Lease in recordable form setting forth the names of the parties, the Term of the Lease (stating declaration of commencement of the Term), and the description of the Premises, which Landlord may record in order to give record notice to third parties of this Lease. Except at Landlord's request pursuant hereto, Tenant shall never file in the Real Property Records or other public records of the county in which the Premises are located any memorandum, affidavit, notation or evidence of this Lease, and violation of this covenant by Tenant shall be an Event of Default which is not subject to any requirement of notice from Landlord or opportunity of Tenant to cure the same before Landlord pursues its remedies.

30.         ABSOLUTE LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything to the contrary or apparent contrary in this Lease, Tenant specifically agrees to look solely to Landlord's interest in the Premises for the recovery of any judgment from Landlord, it being agreed that Landlord shall never be personally liable for any such judgment. Tenant hereby expressly waives any right to recover for any claims against Landlord to the extent not recoverable from Landlord's interest in the Premises, WHETHER BASED ON LANDLORD'S ALLEGED NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE. The foregoing is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain in‐junctive relief against Landlord or Landlord's successors in interest, or any other action not involving the personal liability of Landlord to respond in monetary damages from assets other than Landlord's interest in the Premises or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.

[END OF PAGE, SIGNATURES COMMENCE ON FOLLOWING PAGE]

NOTICE: NO PERSON OTHER THAN THE INDIVIDUAL SIGNING BELOW AS THE AUTHORIZED REPRESENTATIVE OF LANDLORD MAY BIND LANDLORD TO ANY AGREEMENT WHATSOEVER, AND ANY ORAL OR VERBAL REPRESENTATIONS, STATEMENTS, PROMISES OR AGREE‐MENTS OF ANY OTHER PERSON (REGARDLESS OF WHETHER PURPORTING TO REPRESENT OR APPARENTLY REPRESENTING LANDLORD) SHALL NOT BE BINDING ON LANDLORD UNLESS EXPRESSLY CONTAINED IN THIS LEASE.

IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS LEASE ON THE DATES SET FORTH BELOW, TO BE EFFECTIVE AS OF THE EFFECTIVE DATE OF THIS LEASE.

EXECUTED BY LANDLORD, as of the Effective Date.

DANBURY PROPERTY COMPANY LLC                                    

By:  /s/ Marty Alan Janak                                                                                          

Marty Alan Janak, its President

EXECUTED BY TENANT, as of the Effective Date.

FRONT LINE POWER CONSTRUCTION, LLC

By: /s/ William J. Clough                                                                                              

Print: William J. Clough

Title: Executive Chairman & CLO

EXHIBIT A

Description of Premises

Dalton Investments Industrial Complex on 288 (A0560) Blk 1 Lots 1, 2, 5 & 6. Brazoria County, Texas, Tax Geographic ID: 3105‐0001‐001,3105‐0001‐002. 3105‐0001‐005 & 3105‐0001‐006.

EXHIBIT B

Form of Estoppel Certificate

Date: ___________________

Landlord: _____________________________

Tenant: _______________________________

Premises:         As stated in Industrial Triple Net Lease dated ___________________ between Landlord and Tenant

Addressee: ___________________________________

Tenant hereby certifies to Addressee as follows:

1.         Tenant understands and expects that Addressee is relying on the representations in this certificate.

2.         Tenant has accepted and is in possession of the Premises.

3.         All required improvements have been completed to the satisfaction of Tenant.

4.         The Lease term began on ___________________, and the termination date of the present term of the Lease, excluding unexercised renewal terms, is ___________________. Tenant has not sublet all or any portion of the Premises to any sublessee and has not assigned, transferred or encumbered any of its rights or interests under the Lease.

5.         Tenant has paid a security deposit in the amount of $_____________ to Landlord.

6.         The current monthly base rent is $_____________. Rent is currently paid through ___________________, and the next payment is due on ___________________. No rent has been paid more than thirty days in advance of its due date under the Lease.

7.         Tenant, as of this date, has no claim of offset against the rent.

8.         The Lease is valid, enforceable, and unmodified. The Lease represents the entire agreement between Landlord and Tenant with respect to the Premises and the land on which the Premises are situated.

9.         Except as provided by the Lease, Tenant has no outstanding options or rights to renew or extend the term of the Lease. Except as provided by the Lease, Tenant has no outstanding expansion options, other options, rights of first refusal or rights of first offer to lease or purchase with respect to all or any part of the Premises.

10.         To the best of Tenant’s knowledge, neither Landlord nor Tenant is in default in the performance of the Lease.

TENANT:

By:_________________________________

Its: _________________________________

Exhibit 99.9

INDUSTRIAL TRIPLE NET LEASE

THIS INDUSTRIAL TRIPLE NET LEASE (this "Lease") is made and entered into by and between the Landlord named in the Basic Lease Terms, below, and the Tenant named in the Basic Lease Terms, below, to be effective as of November 17, 2021 (the “Effective Date”), as defined in the Basic Lease Terms.

W I T N E S S E T H:

The parties hereto hereby agree to the following stated “Basic Lease Terms” (herein so called), which are made part of this Lease for all purposes:

A.         “Landlord”:                   Manvel Property Management

Address for Notice:       271 CR 532D

                            Hallettsville, Texas 77964                           

B.         “Tenant”:                         Front Line Power Construction, LLC

Address for Notice:        4202 Chance Lane

Rosharon, TX 77583

C.         “Premises”: That tract of land located in Brazoria County, Texas, commonly known as 4202 Chance Lane, Rosharon, TX 77583 being more particularly described on Exhibit A attached hereto and incorporated herein by reference, together with all improvements and fixtures (now or hereafter constructed) owned by Landlord from time to time thereon.

D.         “Term”: Thirty-six (36) months from the Commencement Date, plus the partial month, if any, during which the Commencement Date occurs if the Commencement Date occurs other than on the first day of a calendar month (“Initial Term”).

E.         “Commencement Date”: The Effective Date.

F.         “Base Rental”: means $4,000.00 per month.

G.         “Security Deposit”: $0.00, subject to the terms of Paragraph 2B.

H.         “Permitted Use”: means the operation of Tenant’s electrical construction business and activities ancillary thereto, and for such other lawful purposes as may reasonably be deemed incidental to the aforesaid primary use, subject to the restrictions elsewhere herein.

The parties further hereby agree to each and all of the following terms of lease:

1.         PREMISES AND TERM. In consideration of the mutual obligations of Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from Landlord, the Premises as described above, to have and to hold, subject to the terms, covenants and conditions in this Lease. The Term of this Lease shall commence on the Commencement Date hereinafter set forth and shall end at the expiration of Term. The square foot area of the Premises is not guaranteed or warranted by Landlord.

A.         General Conditions. Landlord and Tenant agree that Tenant's obligations, privileges, covenants and agreements contained in this Lease shall be operative and effective regardless of whether the Premises are ever occupied by Tenant and whether or not this Lease is fully exhibited. If Tenant fails to occupy the Premises for any reason, Tenant shall nonetheless remain obligated hereunder.

B.         Renewal Term. Tenant shall have the option to renew this Lease (“Renewal Option”), for an additional period and upon such terms and conditions to be negotiated between the parties (“Renewal Lease Term”); provided, that, Tenant provide Landlord with written notice at least ninety (90) days prior to the expiration of the Initial Term of its desire to extend the Lease. If Lessee and Lessor are not able to reach a mutually agreed upon length of the Renewal Lease Term and rent structure for the Renewal Lease Term, then this Renewal Option shall automatically terminate and the Lease shall expire on the last day of the Initial Term.

2.         BASE RENTAL; SECURITY DEPOSIT.

A.         Base Rental. Tenant agrees to pay to Landlord Base Rental as specified in the Basic Lease Terms, during the Term hereof, except that the first month's Base Rental shall be prorated based on the amount of Base Rental specified for the first actual rent-paying month of the Term (i.e., excluding any period of free or reduced monthly Base Rental, if any). The first installment for the first month's Base Rental (that is not provided as free rent or a reduced rate) shall be due and payable on the Effective Date hereof. Full monthly Base Rental installments in the amount set forth above shall be due and payable, without demand, deduction or set-off, on or before the first day of each calendar month succeeding the Commencement Date during the Term hereof. In addition to Base Rental due hereunder, all sums of money and all payments due Landlord hereunder shall be deemed to be additional “rental” owed by Tenant to Landlord for all purposes of this Lease.

B.         Security Deposit. In addition, upon written request by Landlord at any time during the Term of the Lease, Tenant agrees to deposit with Landlord the sum of the Security Deposit stated in the Basic Lease Terms, which shall be held by Landlord, without obligation for interest, as security for the performance of Tenant's obligations under this Lease, it being expressly understood and agreed that this deposit is not an advance rental deposit or a measure of Landlord's damages in case of Tenant's default. Upon each occurrence of an Event of Default, Landlord may use all or part of the deposit to pay past due rent or other payments due Landlord under this Lease, and the cost of any other damage, injury, expense or liability caused by such Event of Default without prejudice to any other remedy provided herein or provided by law. On demand, Tenant shall pay Landlord the amount that will restore the security deposit to its original amount. The security deposit shall be deemed the property of Landlord, but any remaining balance of such deposit shall be returned by Landlord to Tenant when Tenant's obligations under this Lease have been fulfilled.

3.         ADDITIONAL RENT: TAXES AND INSURANCE PAYMENTS BY TENANT.

A.         Definition of Taxes. For purposes hereof, "Taxes" shall mean and include all taxes, general and special assessments, sewer rents or charges due or levied by any governmental authority of any kind and nature that accrue against the Premises. If at any time during the Term of this Lease, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly on the rents received therefrom and/or a franchise tax, assessment, levy or charge measured by or based, in whole or in part, upon such rents from the Premises, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to be included within the term "Taxes" for the purposes hereof.

B.         Taxes on the Premises. Tenant shall pay all Taxes made against the Premises during the Term, whether payable in full upon assessment or payable in installments. Tenant shall pay in full any Taxes levied during the Term, even if the assessing authority allows payment of the Tax in installments that would extend beyond the expiration of the Term of this Lease. In the case of the calendar years during which the Term commences and during which the Term expires, all Taxes affecting the Premises shall be prorated so that Tenant shall be liable for such portion thereof as accrue during such calendar year when this Lease is in effect and Landlord shall be liable for such portion thereof as accrue during the portion of the calendar year when this Lease is not in effect. Tenant shall have the right before or after delinquency occurs of contesting, objecting to, or opposing the legality or validity of any Taxes affecting the Premises, provided that prompt notice of the contest, objection, or opposition shall be given to Landlord by Tenant at least twenty (20) days before any delinquency and provided, further, that the contest, objection, or opposition shall not be carried on or maintained after the time limit for the payment by Tenant of the obliga‐tions unless Tenant shall have duly paid the amount involved under protest or shall have procured and maintained a stay of all proceedings to enforce any collection thereof and shall also have provided for payment thereof, together with all penalties, interest, costs, and expenses, by a deposit of a sufficient sum of money with the taxing authority, a court of competent jurisdic‐tion, or such other place, if any, as shall be prescribed by applicable law or by a good and suf‐ficient undertaking as may be required or permitted by law to accomplish a stay. In the event of any such contest, objection, or opposition, Tenant agrees to pay and discharge any unpaid amounts finally determined to be due within such time period as may be required by law to avoid delinquency.

C.         Taxes on Tenant's Property. During the Term hereof, Tenant shall pay prior to delinquency all Taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property of Tenant contained in the leased Premises, and when possible, Tenant shall cause said fix‐tures, furnishings, equipment and other personal property to be assessed and billed separately from the real property of Landlord. In the event any or all of the Tenant's fixtures, furnish‐ings, equipment and other personal property shall be assessed or taxed with the Landlord's real property, then Tenant shall pay to Landlord Tenant's share of such taxes within twenty (20) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property.

D.         Insurance Premiums. Tenant shall pay all insurance premiums for the insurance policies and coverages required pursuant to Paragraph 9 hereof. If Tenant should fail to obtain or maintain such coverages at any time during the Term, Landlord may, but shall not be obligated to, obtain such insurance policies and coverages at Tenant’s expense, but providing coverage for Landlord only, and charge the cost thereof to Tenant as additional rental under this Lease, due from Tenant to Landlord on demand.

E.         Net Lease; Utilities Paid By Tenant. Tenant shall pay all costs and charges for operation of the Premises, including, but not limited to, all utility services to the Premises, and shall arrange for all utility connections in its own name and the making of any required utility deposits. It is the intention of the parties that this Lease is an “absolute net” lease to the Landlord, such that the monthly Base Rental of Landlord is received free of any costs associated with the Premises other than (i) Landlord’s mortgage indebtedness, if any, and (ii) Landlord’s limited repair obligations hereunder, and that all other costs and expenses whatsoever relating to the ownership, operation, maintenance, insuring, licensing, or use of the Premises shall be borne by Tenant. All obligations and responsibilities of Tenant under the terms of this Lease shall be carried out by Tenant at its sole cost and expense.

F.         Survival. The provisions of this Paragraph 3 shall survive the expiration of the Term of this Lease, until taxes for the final year are adjusted between the parties.

4.         LANDLORD'S REPAIRS.

A.         Roof, Foundation and Exterior Walls. Landlord, at its own cost and expense, shall maintain only the roof, foundation and the structural soundness of the exterior walls of the building comprising a part of the Premises, in a reasonable state of repair, at least equivalent to that existing on the Effective Date hereof, reasonable wear and tear and damage by the fault of Tenant or its employees, agents, representatives, customers, suppliers, contractors or invitees excluded. The term "exterior walls" as used herein shall not include, without expanding its meaning and without limitation as to items not included in such term, the following: windows, glass or plate glass; doors (including, without limitation, rollup doors); mechanical, electrical, plumbing, crane or other systems or equipment (whether or not located in or attached to exterior walls); exterior signs; and special store fronts or office entries. Tenant shall immediately give Landlord written notice of any required repairs to structural elements that Landlord is required to repair, after which Landlord shall have reasonable opportunity to repair the same. Landlord's obligation to maintain the specified structural items shall be limited solely to the cost of such repairs or maintenance, Tenant hereby expressly waiving and releasing any and all other claims relating thereto.

B.         Landlord's Option to Perform Other Repairs. Landlord reserves the right to perform the repair obligations that are otherwise Tenant's responsibility under Paragraph 5A, in which event, Tenant shall be liable for the cost and expense incurred by Landlord in connection therewith, and such sums shall be payable by Tenant to Landlord as additional rent hereunder upon demand.

5.         TENANT'S REPAIRS.

A.         Tenant's Repairs. Tenant, at its own cost and expense, shall, except for those structural items specifically required to be maintained by Landlord under Paragraph 4A hereof (subject to the requirements therein for Tenant to repair the same if the damage is caused by Tenant’s fault) (i) maintain and repair all parts of the Premises and keep them in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (ii) promptly make all necessary repairs and replacements to the Premises and the systems serving the Premises, including, but not limited to, windows, glass and plate glass doors, any special office entry, interior walls and finish work, doors and floor covering, downspouts, gutters, heating and air conditioning systems, mechanical systems, electrical systems, crane systems, rail spurs, dock boards, truck doors, dock bumpers, paving, plumbing work and fixtures, sewer lines, as necessary to keep the Premises and facilities in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (iii) provide termite and pest extermination as needed to keep the Premises free from insect and/or rodent infestations, (iv) provide for regular removal of Tenant's trash and debris, and proper disposal thereof in a licensed waste facility, and other cleaning and upkeep so as to keep the Premises in a neat and reasonably clean and sanitary condition, (v) keep the parking areas, driveways and alleys surrounding or adjacent to the Premises in a clean, safe and sanitary condition free of all refuse, debris, equipment and other materials of Tenant, its employees, agents, contractors, invitees and licensees, and (vi) if Tenant desires railroad spur track service and the same is available at the Premises, pay the entirety of the cost of the obtaining and maintenance of any spur track servicing the Premises (provided, however, that no rail spur service will be connected to the Premises except with Landlord’s prior written approval, which shall not be unreasonably withheld, subject to such terms, conditions and requirements as Landlord may specify).

B.         Maintenance Contracts. At Tenant’s expense, Tenant shall enter into a maintenance agreement for the HVAC systems serving the Premises, with a licensed HVAC service company approved by Landlord, for the complete Term of this Lease, and if the Premises is served by overhead crane(s), private utility systems, private drainage or storm water control systems, and/or fire alarm or fire control or protection systems, whether installed by Landlord or Tenant, also a maintenance agreement with a service contractor acceptable to Landlord for the standard manufacturer suggested maintenance and repair of such systems during the entire Term of this Lease. Tenant will obtain and promptly provide to Landlord copies of the above-referenced maintenance contracts and an annual certificate of inspection with respect to any fire alarm or fire control/suppression system installed in or upon the Premises. Within five (5) business days after Landlord’s request, Tenant will provide evidence of the actual occurrence of maintenance of such systems by such contractors, in terms of certificates from the vendor showing dates of visits, services performed and work deferred or pending.

6.    ALTERATIONS. Tenant shall not make any alterations, additions, or improvements to the Premises without the prior written consent of Landlord. Tenant, at its own cost and expense, may erect such shelves, bins, machinery and trade fixtures as it desires provided that (a) such items do not overload or damage the same; (b) such items may be removed without injury to the Premises; and (c) the construction, erection or installation thereof complies with all applicable governmental laws, ordinances, regulations and with Landlord's specifications and requirements. All alterations, additions, improvements and partitions erected by Tenant shall be and remain the property of Tenant during the Term of this Lease. All shelves, bins, machinery and trade fixtures installed by Tenant shall be removed on or before the earlier to occur of the date of termination of this Lease or vacating the Premises, at which time Tenant shall restore the Premises to their original condition. Unless otherwise agreed in advance, any Tenant improvements to the Premises will become part of the Premises upon installation and will remain in place at the expiration of the Term upon receipt of verification of good and workmanlike completion of all such work in compliance with Landlord’s approvals and all applicable legal requirements, receipt of final lien waivers and bills paid affidavits from all contractors, and expiration of all applicable lien periods without the filing of any claim for mechanic’s or materialman’s lien. All improvements shall have the prior written approval of Landlord, and shall be performed by a reputable construction company approved in writing by Landlord, and who shall carry such insurance and meet such other requirements as Landlord shall specify. All invoices for improvements shall be available for inspection by Landlord. If any improvement work by Tenant (or its contractors) is work that will be covered up by the finish work involved in the particular project (i.e., electrical wiring or plumbing to be covered by finished walls, etc.), that will not be readily subject to inspection upon completion of the finish work, then before the finish work is added Tenant must (i) have all inspections required by the City, County or other agency with jurisdiction performed without violation noted, (ii) obtain inspection of such to-be-covered work by an independent third-party architect who shall document such inspection, and (iii) before performing the finish work that will cover such other work, notify Landlord in writing at least three (3) business days before commencement of the finish work to allow Landlord, if it so desires for its own protection, to inspect such to-be-covered work. All alterations, installations, removals and restoration shall be performed in a good and workmanlike manner so as not to damage or alter the primary structure or structural qualities of the building comprising a part of the Premises and other improvements situated on the Premises. No alterations contemplated by Tenant to the building comprising a part of the Premises or Premises will in any way be a condition to the occurrence of the Commencement Date or commencement of Tenant’s rental payment obligations hereunder.

7.         SIGNS. Any signage Tenant desires for the Premises shall be subject to Landlord's prior written approval. Tenant shall repair, paint, and/or replace the building fascia surface to which its signs are attached upon vacation of the Premises, or the removal or alteration of its signage. Tenant shall not (i) make any changes to the exterior of the Premises, (ii) install any exterior lights, decorations, balloons, flags, pennants, banners or painting, or (iii) erect or install any signs, windows or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Premises, without Landlord's prior written consent.

8.         UTILITIES. Landlord agrees to provide normal water, electricity, and telephone service connections (but not telephone systems or equipment, which Tenant shall provide at its own sole cost) to the Premises as they currently exist, which shall hereafter be maintained by Tenant. Tenant shall connect in its own name and pay for all water, gas, heat, light, power, telephone, sewer, sprinkler charges and other utilities and services used on or at the Premises, and shall furnish all electric light bulbs, ballasts, and tubes. All telephone service for Tenant shall be connected at Tenant's cost and in a manner such that Tenant shall be separately and directly billed therefor. Landlord shall not be liable for any interruption or failure of any such utility service on or serving the Premises.

9.         INSURANCE.

A.         Tenant’s Insurance. Throughout the Term of this Lease, Tenant will secure and maintain, at Tenant's expense:

(i)         Property. Causes of loss – special form (formerly “all risk”) property insurance (including extra expense insurance) on all of Tenant's fixtures and personal property in the Premises, and on all alterations, additions and improvements, all for the full replacement cost thereof. Tenant will use the proceeds from such insurance for the replacement of fixtures and personal property and for the restoration of any such alterations, additions or improvements as set forth in Paragraph 10. Landlord will be named as loss payee as respects its interest in any such alterations, additions, or other improvements.

(ii)         Workers’ Compensation; Employers Liability. Workers compensation and employers liability insurance. Workers compensation insurance in statutory limits will be provided for all employees. The employers liability insurance will afford limits not less than $500,000.00 per accident, $500,000.00 per employee for bodily injury by disease, and $500,000.00 policy limit for bodily injury by disease.

(iii)         Liability. Commercial general liability insurance which insures against claims for bodily injury, personal injury, advertising injury, and property damage based upon, involving, or arising out of the use, occupancy, or maintenance of the Premises. Such insurance will afford, at a minimum, the following limits:

Any general aggregate limit will apply on a per-location basis.

Such insurance will name Landlord, its trustees and beneficiaries, Landlord's mortgagees, Landlord's managing agent, Landlord's advisor, and their respective officers, directors, agents and employees, as additional insureds (the "Required Additional Insureds").

This coverage must include blanket contractual liability, broad form property damage liability, and must contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance must be written on an occurrence basis and contain a standard separation of insureds provision.

(iv)         Auto. Business auto liability which insures against bodily injury and property damage claims arising out of the ownership, maintenance, or use of "any auto." A minimum of a $1,000,000.00 combined single limit per accident will apply. The provisions of this Paragraph 9.A(v) will apply only to automobiles owned by or leased to Tenant, and will not apply to automobiles owned by or leased to officers or employees of Tenant.

(v)         Umbrella. Umbrella excess liability insurance, on an occurrence basis, that applies excess of required commercial general liability, business auto liability, and employers liability policies, which insures against bodily injury, property damage, personal injury and advertising injury claims with the following minimum limits:

Each Occurrence         $1,000,000.00

Annual Aggregate         1,000,000.00

These limits must be in addition to and not including those stated for underlying commercial general liability, business auto liability, and employers liability insurance. Such policy must name the Required Additional Insureds as additional insureds.

(vi)         Alterations; Moving. Tenant will provide to Landlord endorsements of paid-up commercial general liability insurance in the amount of not less than $1,000,000.00 and otherwise reasonably satisfactory to Landlord from (i) Tenant's contractors before performing any initial leasehold improvements pursuant to any work letter attached to this Lease, and as provided in Paragraph 6 before performing any Tenant-made alterations; and (ii) Tenant's mover respecting moving into and moving out of the Premises, before Tenant moves into or out of the Premises. All insurance coverage to be provided by Tenant's contractors or movers must comply with the general insurance requirements set forth below. All such insurance must (1) include the Required Additional Insureds as additional insureds; and (2) be considered primary insurance.

(vii)         General insurance requirements. All policies required to be carried by Tenant and Tenant’s contractors and movers hereunder must be issued by and binding upon an insurance company licensed to do business in the state in which the property is located with a rating of at least "A-" "VIII" or better as set forth in the most current issue of Best's Key Rating Guide, unless otherwise approved by Landlord. Tenant will not do or permit anything to be done that would invalidate the insurance policies required. The insurance that Tenant is required to carry under this Paragraph 9.A may be held under a blanket policy.

Liability insurance maintained by Tenant and Tenant’s contractors and movers will be primary coverage without right of contribution by any similar insurance that may be maintained by Landlord. Tenant’s liability insurance deductibles may not exceed $0.00, and Tenant’s property insurance deductibles may not exceed $5,000.00.

Endorsements, acceptable to Landlord, evidencing the existence and amount of each liability insurance policy required hereunder and Evidence of Property Insurance Form, Acord 27, evidencing property insurance as required will be delivered to Landlord prior to delivery or possession of the Premises and ten days prior to each renewal date. Endorsements for each policy shall show that the Required Additional Insureds are included as additional insureds on liability policies (except employer's liability). The Evidence of Property Insurance Form will name Landlord as loss payee for property insurance as respects Landlord's interest in improvements and betterments. Further, the endorsements must include that for each policy whereby the insurer agrees not to cancel or non-renew the policy, or reduce the coverage below the limits required in this Lease, without at least thirty (30) days' prior notice to Landlord and Landlord's managing agent.

If Tenant fails to provide evidence of insurance required to be provided by Tenant hereunder, prior to commencement of the Term and thereafter during the Term, within ten (10) days following Landlord's request thereof, and ten (10) days prior to the expiration date of any such coverage, Landlord will be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant, plus an eighteen percent (18%) service charge, and payable upon written invoice thereof.

The limits of insurance required by this Lease, or as carried by Tenant, will not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent provided for under Paragraph 9.C below (Waiver of Claims; Waiver of Subrogation). Any deductibles selected by Tenant will be the sole responsibility of Tenant.

Landlord may, at its sole discretion, change the insurance policy limits and forms which are required to be provided by Tenant; such changes will be made to conform to common insurance requirements for similar properties in similar geographic locations. Landlord will not change required insurance limits or forms more often than once per calendar year.

B.         Landlord's Insurance. Landlord agrees to maintain during the Term "all-risk" insurance on the Premises at replacement cost, excluding foundations and excluding the items which Tenant is required to insure under Paragraph 9A(i).

C.         Waiver of Claims; Waiver of Subrogation. To the extent permitted by law, Tenant waives all claims it may have against Landlord, its managing agents or employees for damage to property sustained by Tenant or any occupant or other person resulting from the Premises any part of said Premises becoming out of repair or resulting from any accident within or adjacent to the Premises or resulting directly or indirectly from any act or omission of Landlord or any occupant of the Premises or any other person while on the Premises to the extent such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry, regardless of cause or origin. The waiver in this grammatical paragraph will also apply as to the amount of any deductible under Tenant's insurance. Particularly, but not in limitation of the foregoing sentence, all property belonging to Tenant or any occupant of the Premises that is in the Premises will be there at the risk of Tenant or other person only, and Landlord or its agents or employees will not be liable for damage to or theft of or misappropriation of such property, nor for any damage to property resulting from fire, explosion, flooding of basements or other subsurface areas, falling plaster, steam, gas, electricity, snow, water or rain which may leak from any part of the Premises or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place or resulting from dampness or any other cause whatsoever, nor for any latent defect in the Premises, to the extent that such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry. Tenant will give prompt notice to Landlord in accordance with Paragraph 10 in case of fire or accidents in the Premises or of defects therein or in the fixtures or equipment.

Tenant agrees to include in the insurance policies which Tenant is required by this Lease to carry in accordance with Paragraphs 9A(i) and 9A(ii), to the fullest extent permitted by law, a waiver of subrogation against Landlord and Landlord's managing agent.

Landlord will not be required to maintain insurance against thefts within the Premises or any complex within which the Premises is located.

10.         FIRE AND CASUALTY DAMAGE.

A.         Major Casualty. If the building on the Premises should be damaged or destroyed by fire or other peril, Tenant shall immediately give written notice thereof to Landlord. If the building on the Premises is totally or substantially destroyed by any peril covered by the insurance to be provided by Landlord under Paragraph 9A, above, or if it should be so damaged thereby that, in Landlord's estimation, rebuilding or repairs cannot be completed within two hundred seventy (270) days after the date of such damage, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease, effective upon the date of the occurrence of such damage. Notwithstanding such termination, Tenant shall remain liable to pay Landlord all rent and other sums accrued under this Lease prior to such termination plus prorata rent for any partial occupancy between the date of the casualty and the date of the termination notice or Tenant's vacating of the Premises, whichever is later.

B.         Lesser Casualty. If the building on the Premises is damaged by any peril covered by the insurance to be provided by Landlord under Paragraph 9A above, and in Landlord's estimation, rebuilding or repairs can be substantially completed with the available insurance proceeds within two hundred seventy (270) days after the date of such damage, Landlord may elect to terminate this Lease without further liability by giving written notice thereof to Tenant within sixty (60) days after the occurrence of such casualty. If Landlord fails to give such notice, this Lease shall not terminate, and Landlord shall restore the Premises to substantially its previous condition, except that Landlord shall not be required to rebuild, repair or replace any part of the partitions, fixtures, additions and other improvements that may have been constructed, erected or installed in, or about the Premises by or for the benefit of Tenant. If such repairs and rebuilding have not been substantially completed within two hundred and seventy (270) days after the date of such damage, Tenant, as Tenant's sole and exclusive remedy, may terminate this Lease by delivering written notice of termination to Landlord in which event the future accruing rights and obligations of the parties hereunder shall cease and terminate.

C.         Insufficient Insurance Proceeds. Notwithstanding anything herein to the contrary, in the event the holder of any indebtedness secured by a mortgage or deed of trust covering the Premises requires that the insurance proceeds be applied to such indebtedness, or the insurance proceeds for any reason are insufficient to rebuild, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within sixty (60) days after the event of the casualty (or within fifteen 15 days after such mortgagee makes requirement known to Landlord), whereupon all future accruing rights and obligations of the parties hereunder shall cease and terminate.

11.    LIABILITY AND INDEMNIFICATION. Tenant hereby agrees to indemnify, defend and hold harmless Landlord, its agents, employees, officers, directors, shareholders, beneficiaries, representatives, Mortgagees, affiliates and related parties, from and against any and all losses, damages, judgments, liabilities, penalties, fines, debts, actions, suits, proceedings, causes of action, costs, fees and expenses, including, without limitation, costs of court, defense costs and reasonable attorneys' fees (“Claims or Losses”) suffered or incurred by Landlord or any such indemnified party, or asserted or claimed against Landlord or any such indemnified party arising out of or in connection with the use, occupancy, operation or improvement of the Premises, from whatever source or for whatever reason, including claims of personal injury, bodily injury (including death) and property damage. THE FOREGOING INDEMNITY SHALL APPLY WHETHER OR NOT SUCH CLAIM OR LOSS IS BASED OR ALLEGED TO BE BASED ON A NEGLIGENT ACT OR OMISSION (INCLUDING, WITHOUT LIMITATION, FAILURE OR REFUSAL TO ENFORCE OR MONITOR TENANT’S COMPLIANCE WITH ANY TERM OF THIS LEASE) BY LANDLORD OR ANY OF THE PARTIES INDEMNIFIED HEREUNDER. Notwithstanding the foregoing, however, it is agreed that (A) as to Landlord, this indemnity shall not apply to Claims or Losses arising solely from (i) the active negligence (as opposed to alleged negligence by omission or inaction) of any agent, employee or representative of Landlord while physically on the Premises acting in the course and scope of his or her agency or employment, or (ii) Landlord’s gross negligent failure to make repairs that are Landlord’s responsibility pursuant to Paragraph 4 hereof, following receipt of notice from Tenant identifying such repairs, and (B) as to any other indemnified party, Tenant’s indemnity of that party shall not apply to that party's own affirmative acts of negligence or intentional misconduct while such party is physically on the Premises. Notwithstanding anything to the contrary or apparent contrary elsewhere herein, Tenant's indemnity in this Paragraph shall, as to events or occurrences prior to the later of termination of this Lease or Tenant's vacating of the Premises, survive expiration or termination of this Lease for any reason.

12.         USE. The Premises shall be used only for the Permitted Use as defined in the Basic Lease Terms. Tenant shall, at its own cost and expense, obtain any and all licenses and permits necessary for such use. Tenant shall comply with all governmental orders and directives for the correction, prevention and abatement of nuisances in or upon, or connected with, the Premises, all at Tenant's sole expense. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take any other action that would constitute a nuisance or would disturb, unreasonably interfere with, or endanger Landlord, or any owners or occupants of adjacent or nearby property, or the contents of the Premises. Tenant shall further be responsible and liable for the safe and proper operation of any and all equipment within the Premises, and shall be responsible for any training necessary for said safe and proper operation of such equipment. Any liabilities resulting from the unsafe operation of said equipment shall be the sole responsibility of Tenant. Tenant shall indemnify, hold harmless and defend Landlord in any and all claims resulting from the use of this or any other type of equipment on the Premises, without limitation of any other indemnity contained in this Lease.

13.         INSPECTION. Landlord and Landlord's agents and representatives shall have the right for its own protection, but not the obligation, to enter the Premises at any reasonable time during business hours, to inspect the Premises and to make such repairs as may be required or permitted pursuant to this Lease. During the period that is six (6) months prior to the end of the Term hereof and at any time Tenant is in default, Landlord and Landlord's representatives may enter the Premises during business hours for the purpose of showing the Premises, and shall have the right to erect a suitable sign on the Premises stating the Premises are available for lease. Landlord may erect a sign at any time offering the Premises for sale (provided that any sale is subject to the remaining Term of this Lease and any purchase option or right of refusal, if any, contained in this Lease). Tenant shall notify Landlord in writing at least thirty (30) days prior to vacating the Premises and shall arrange to meet with Landlord for a joint inspection of the Premises prior to vacating. If Tenant fails to give such notice or to arrange for such inspection, then Landlord's inspection of the Premises shall be deemed correct for the purpose of determining Tenant's responsibility for repairs and restoration of the Premises.

14.         ASSIGNMENT AND SUBLETTING.

A.         No Assignment or Subletting. Tenant shall not have the right to assign, sublet, transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublessee and transferees being hereinafter referred to as "Transferees"), by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to persons other than Landlord by such Transferees in contravention of this Paragraph. Any excess consideration of any kind paid to Tenant (or any Tenant-related party) by any sublessee or assignee approved by Landlord hereunder, in excess of the rents (month by month in the case of a sublet or in a lump sum in case of an assignment) provided for herein, shall constitute additional rent due by Tenant to Landlord contemporaneously with receipt thereof by Tenant (or its related party). No assignment, subletting or other transfer, whether consented to by Landlord or not or permitted hereunder, shall ever relieve Tenant of its liability, which it agrees with be joint and several with the liability of any assignee and primary and continuing in the event of any sublease, for all obligations of "Tenant" hereunder. If an Event of Default occurs while the Premises or any part thereof are assigned or sublet, then Landlord, in addition to any other remedies herein provided, or provided by law, may collect directly from such Transferee all rents payable to Tenant and apply such rent against any sums due Landlord hereunder. No such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder. For the avoidance of doubt, any change of control of the ownership or voting control of Tenant or Tenant’s ultimate parent shall be deemed to be a transfer of this Lease requiring the prior written consent of Landlord.

B.         Assignment in Bankruptcy. If this Lease is assigned to any person or entity pursuant to the provision of the Bankruptcy Code, 11 U.S.C. §101 et seq. (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord.

C.         Deemed Assumption by Transferee in Bankruptcy; Assurance of Future Performance. Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument confirming such assumption, and shall provide Landlord with adequate assurance of such assignee's future performance in such form (including full cash-collateralization) as Landlord may specify.

15.         CONDEMNATION. If there shall be taken by exercise of the power of eminent domain during the Term of this Lease any part of the Premises, then Landlord may elect either to terminate this Lease and all future obligations of the parties hereunder, or to continue this Lease in effect. If Landlord elects to continue the Lease, the rental shall be reduced in pro‐portion to the area of the Premises so taken and Landlord shall repair any damage to the Premises or the building resulting from such tak‐ing. All sums awarded or agreed upon between Landlord and the condemning authority for the taking of the interest of Landlord or Tenant in the Premises, whether as damages or as compensation, shall be the property of Landlord, and Tenant hereby assigns to Landlord any right of Tenant therein or claim of Tenant thereto. If Landlord elects to terminate this Lease, rental shall be payable up to the date that possession is taken by the condemning authority, and Landlord will refund to Tenant any prepaid unaccrued rent less any sum then owing by Tenant to Landlord.

16.         HOLDOVER. If Tenant should remain in possession of the Premises after the expiration or termination of this Lease, without the execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to be occupy‐ing the Premises as a tenant‑at‑sufferance subject to all the cove‐nants and obligations of this Lease, and shall pay daily Base Rental equal to 150% of the amount of the sum of the daily Base Rental most recently in effect, for the entire holdover period (and shall continue to pay all other payments required hereunder in addition to such Base Rental). No holding over by Tenant after the Term of this Lease without the written consent of Landlord shall operate to extend the Lease for a longer period than one (1) month, and any holding over with the consent of Landlord in writing (unless a different term is specified therein) shall thereafter consti‐tute this Lease a lease from month to month.

17.         EXCLUSIVE COVENANT OF QUIET ENJOYMENT. Upon payment by Tenant of the rents provided for in this Lease, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall, subject to the terms and provisions of this Lease, peaceably and quietly hold and enjoy the Premises for the Term here‐by demised, against any and all interference therewith (i) by the affirmative acts of Landlord, its employees or agents, and (ii) against any person who may claim superior title to the Premises by, through or under Landlord, but not otherwise. Landlord shall under no circumstances be held responsible for restriction or disruption of access to the Premises or any part thereof from public streets caused by con‐struction work or other actions taken by or on behalf of governmental authorities, or for actions taken by other tenants (their employees, agents, visitors, contractors or invitees), or any other cause not entirely within Landlord's direct control, and same shall not constitute a constructive eviction of Tenant or give rise to any right or remedy of Tenant against Landlord of any nature or kind. This covenant of quiet enjoyment is in lieu of any covenant of quiet enjoyment provided or implied by law, and Tenant expressly waives any such other covenant of quiet enjoyment to the extent broader than the covenant contained in this Paragraph.

18.         EVENTS OF DEFAULT. The following events (herein individually referred to as an "Event of Default") each shall be deemed to be events of nonperformance by Tenant under this Lease:

A.         Payment Default. Tenant shall fail to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to Landlord required herein when due, and such failure shall continue for a period of five (5) days from the date such payment was due.

B.          Insolvency; Voluntary Proceedings; Etc. Tenant shall (i) become insolvent; (ii) admit in writing its inability to pay its debts; (iii) make a general assignment for the benefit of creditors; (iv) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property; or (v) take any action to authorize or in contemplation of any of the actions set forth above in this Paragraph.

C.         Involuntary Proceedings. Any case, proceeding or other action against Tenant shall be commenced seeking (i) to have an order for relief entered against it as a debtor or to adjudicate it as bankrupt or insolvent; (ii) reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii) appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (a) results in the entry of an order for relief against it which it is not fully stayed within seven (7) business days after the entry thereof, or (b) shall remain undismissed for a period of forty-five (45) days.

D.         Vacating of Premises or Removal of Property. Tenant shall (i) vacate all or a substantial portion of the Premises or (ii) fail to continuously operate its business at the Premises for the permitted use set forth herein, whether or not Tenant is in default of the rental payments due under this Lease, or remove or attempt to remove all or any material part of its equipment or machinery from the Premises prior to the last thirty (30) days of the Term hereof.

E.         Violation of Use Restrictions. Tenant shall violate any of the use restrictions herein.

F.         Hazardous Materials. Either (a) Tenant allows Hazardous Materials on the Premises that are not released into or on the Premises, but which are not allowed by the terms of this Lease, and such materials either (i) are not removed from the Premises and disposed of off-site in a lawful manner within ten (10) days after written notice or demand by Landlord on Tenant, or (ii) are allowed on the Premises after repeated previous occasions (three or more previous occasions) on which Landlord gave Tenant written notice to remove the same (whether or not they were removed on the prior occasions), or (b) any release of Hazardous Material in or upon the Premises or adjacent or nearby property is caused or allowed by Tenant and such contamination cannot be or is not cleaned up to the satisfaction of governmental authorities with jurisdiction and Landlord within fifteen (15) days after written notice from Landlord to Tenant.

G.         Legal Violations. Tenant violates any applicable legal requirement that is its responsibility to comply with herein to the extent that, as a result thereof, Landlord or its property management agent (if any) can be held liable for any fine, penalty, assessment, or enforcement action interfering with the operation of the Premises or Landlord’s other properties by or of any governmental authority or agency, or to the extent that any mortgage lienholder is entitled to accelerate the indebtedness secured by the Premises, and such violation is not fully remedied and cured by Tenant within ten (10) days after written notice thereof is given to Tenant by Landlord (if such consequences exist and notice is given by Landlord to Tenant under this paragraph G., rather than paragraph I. below, Landlord will specify in its notice to Tenant that notice is being given under this clause and shall specify the reason that the default by Tenant is of a nature covered by this paragraph).

H.         Failure to Obtain Lien Release. Tenant shall fail to discharge any lien placed upon the Premises the removal of which is Tenant’s responsibility under Paragraph 21 hereof within ten (10) days after any such lien or encumbrance is filed against the Premises.

I.         Failure to Comply With Other Covenants. Tenant shall fail to comply with any term, provision or covenant of this Lease (other than those listed above in this Paragraph 18), and shall not cure such failure within twenty (20) days after written notice thereof given by Landlord to Tenant.

19.         REMEDIES.

A.         Termination, Repossession, Discontinuance of Services. Upon each occurrence of an Event of Default, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand:

(1)         Terminate this Lease and hold Tenant liable for anticipatory breach damages and all past-due amounts called for hereunder; and/or

(2)         Enter upon and take possession of the Premises with or without terminating this Lease, and with or without judicial process; and/or

(3)         Discontinue supplying any one or more utility services to Tenant; and/or

(4)         Alter all locks and other security devices at the Premises with or without terminating this Lease, and pursue, at Landlord's option, one or more remedies pursuant to this Lease, Tenant hereby specifically waiving any state or federal law to the contrary.

In any such event, Tenant immediately shall deliver up the Premises to Landlord, and if Tenant fails so to do, Landlord, without waiving any other remedy it may have, may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying such Premises or any part thereof, without being liable for prosecution or any claim of damages therefor.

B.         Certain Damages Upon Termination. If Landlord terminates this Lease, at Landlord's option, Tenant shall be liable for and shall pay to Landlord, the sum of all rental and other payments owed to Landlord hereunder accrued to the date of such termination, plus any holdover rent due, plus, as damages, an amount equal to (1) the present value of the total rental and other payments owed hereunder for the remaining portion of the Term, calculated as if such Term expired on the date set forth in Paragraph 1, less (2) the then present actual net fair market rental value of the Premises for such period, taking into account costs of reletting, periods of vacancy prior to reletting, periods of vacancy for preparation of the Premises for occupancy by a new tenant, increases in base year expenses of Landlord, and other relevant market factors. Landlord may, at its option, elect to liquidate damages for lost rent as a result of such breach at sixty percent (60%) of the rent for the remainder of the stated Term.

C.         Right to Collect Deficiency if Lease Not Terminated. If Landlord repossesses the Premises without terminating the Lease, Tenant, at Landlord's option, shall be liable for and shall pay Landlord on demand all rental and other payments owed to Landlord hereunder, accrued to the date of such repossession, plus in a lump sum of accelerated rents all amounts required to be paid by Tenant to Landlord until the date of expiration of the Term as stated in Paragraph 1, diminished by all amounts actually received by Landlord through re-letting of the Premises during such remaining Term (but only to the extent of the rent herein reserved) or, to the extent such case goes to trial before the end of the Term, then the net fair market rental value of the Premises (as defined above) for the remainder of the stated Term for which no replacement lease has been executed. At Landlord's option, Landlord may collect the rental deficiencies periodically as they accrue, in lieu of accelerating rents. Actions to collect amounts due by Tenant to Landlord under this subparagraph may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of the Term.

D.         Other Damages. Upon an Event of Default, in addition to any sum provided to be paid herein, Tenant also shall be liable for and shall pay to Landlord (i) brokers' fees incurred by Landlord in connection with re-letting the whole or any part of the Premises; (ii) the costs of removing and storing Tenant's or other occupant's property; (iii) the costs of repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new lessee or lessees; and (iv) all costs and expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies. If either party hereto institutes any action or proceeding to enforce any provision hereof by reason of any alleged breach of any provision of this Lease, the prevailing party shall be entitled to receive from the losing party all reasonable attorney's fees and all court costs incurred in connection with such proceeding.

E.         Right to Change Locks. In the event that Landlord is entitled to change the locks at the Premises pursuant to any of the foregoing provisions, Tenant agrees that entry may be gained for that purpose through use of a duplicate or master key or any other peaceable means, that same may be conducted out of the presence of Tenant if Landlord so elects, that no notice shall be required to be posted by Landlord on any door to the Premises (or elsewhere) disclosing the reason for such action or any other information, and that Landlord shall not be obligated to provide a key to the changed lock to Tenant unless Tenant shall have first:

(1)         brought current all payments due to Landlord under this Lease; provided, however, that if Landlord has theretofore formally and perma‐nently repossessed the Premises by notice pursuant to the terms of this Lease, or has terminated this Lease by notice pursuant to the terms hereof, then Landlord shall be under no obligation to provide a key to the new lock(s) to Tenant regardless of Tenant's payment of past‑due rent or other past‑due amounts, damages, or any other payments or amounts of any nature or kind whatsoever;

(2)         fully cured and remedied to Tenant's satisfaction all other defaults of Tenant under this Lease (but if such defaults are not sub‐ject to cure, such as early abandonment or vacating of the Premises, then Landlord shall not be obligated to provide the new key to Tenant under any circumstances); and

(3)         given Landlord security and assur‐ance reasonably satisfactory to Landlord that Tenant intends to and is able to meet and comply with its future obligations under this Lease, both monetary and non‑monetary.

Landlord will, upon written request by Tenant, at Landlord's convenience and upon Tenant's execution and delivery of such waivers and indemnifications as Landlord may require, at Landlord's option either (i) escort Tenant or its specifically authorized employees or agents to the Premises to retrieve personal belongings and effects of Tenant's employees (as opposed to property which is an asset of Tenant), and property of Tenant that is not subject to the landlord's liens and security interests described in Paragraph 25, below, or (ii) obtain from Tenant a list of such property described in (i), above, and arrange for such items to be removed from the Premises and made available to Tenant at such place and at such time in or about the Premises or such other location as Landlord may designate; provided, however, that if Landlord elects option (ii), then Tenant shall be required to deliver to Landlord such waivers and indemnifications as Landlord may require in connection therewith, and pay in cash in advance to Landlord (A) the estimated costs that Landlord will incur in removing such property from the Premises and making same available to Tenant at the stip‐ulated location, and (B) all moving and/or storage charges theretofore incurred by Landlord with respect to such property.

F.         Late Charge. In the event Tenant fails to make any payment due hereunder when payment is due, to help defray the additional cost to Landlord for processing such late payments, Tenant shall pay to Landlord on demand a late charge in an amount equal to five percent (5%) of such installment; and the failure to pay such amount within ten (10) days after demand therefor shall be an additional Event of Default hereunder. The provision for such late charge shall be in addition to all of Landlord's other rights and remedies hereunder or at law and shall not be construed as liquidated damages or as limiting Landlord's remedies in any manner.

G.         Cumulative Remedies; No Implied Waiver. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Landlord, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Tenant and Landlord further agree that forbearance by Landlord to enforce its rights pursuant to the Lease at law or in equity, shall not be a waiver of Landlord's right to enforce one or more of its rights in connection with any subsequent default.

H.         Use or Disposition of Tenant's Property. If Landlord repossesses the Premises pursuant to the authority herein granted, then Landlord shall have the right to (i) keep in place and use, or (ii) remove and store, all of the furniture, fixtures and equipment at the Premises, including that which is owned by or leased to Tenant at all times prior to any foreclosure thereon by Landlord or repossession thereof by any other lessor thereof or third party having a lien thereon. Landlord also shall have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment and other property to any person ("Claimant") who presents to Landlord a copy of any instrument represented by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment or other property, without the necessity on the part of Landlord to inquire into the authenticity or legality of said instrument. The rights of Landlord herein stated shall be in addition to any and all other rights that Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable.

I.         All Sums Constitute Rent. Notwithstanding anything in this Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not expressly denominated as rent, shall constitute rent.

J.         Landlord Not Obligated to Other Parties. This is a contract under which applicable law excuses Landlord from accepting performance from (or rendering performance to) any person or entity other than Tenant.

K.         Landlord Default. If Landlord fails to perform any of its obligations hereunder within thirty (30) days after written notice from Tenant specifying such failure, Tenant's exclusive remedy shall be an action for damages. Unless and until Landlord fails to so cure any default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its possession of the Premises and not thereafter. The term "Landlord" shall mean only the owner, for the time being of the Premises, and in the event of the transfer by such owner of its interest in the Premises, such owner shall thereupon be released and discharged from all covenants and obligations of Landlord thereafter accruing, but such covenants and obligations shall be binding during the Term upon each new owner for the duration of such owner's ownership. Notwithstanding any other provision hereof, Landlord shall not have any personal liability hereunder.

20.         MORTGAGES. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or any ground lease, and all renewals, increases and rearrangements thereof, whether or not a novation of the secured debt may occur in connection therewith (herein, a “Mortgage”); provided, however, that if the holder of any Mortgage (a “Mortgagee”) elects to have Tenant's interest in this Lease superior to any such Mortgage, then by written notice to Tenant from the Mortgagee, this Lease shall be deemed superior to the lien created by that Mortgage. In the event of any foreclosure of any such lien or mortgage, Tenant agrees to attorn to the Mortgagee or other purchaser at foreclosure, upon demand. Notwithstanding anything to the contrary contained herein, Tenant agrees that this Lease shall be subordinate to any future Mortgage placed against the Premises, and that it will attorn to the future Mortgagee, only if the Mortgagee agrees with Tenant in a subordination, non-disturbance and attornment agreement (an “SNDA Agreement”), in the Mortgagee’s then standard form, that Tenant’s right to use and occupy the Premises under the terms of this Lease will not be deprived as a result of a termination or foreclosure of such Mortgage so long as Tenant is not then in default under this Lease; provided, however, that Tenant acknowledges and agrees that such SNDA Agreement may contain, among other terms and conditions required for obtaining such Mortgage (i) any provision (or the substantial equivalent thereof) contained in any previous SNDA Agreement executed by Tenant (or any predecessor Tenant hereunder), (ii) a provision requiring that notices of Landlord default be given to the Mortgagee and the Mortgagee allowed a reasonable time in addition to Landlord’s cure period hereunder to cure such default before Tenant shall be entitled to take its remedies hereunder or by law, (iii) a provision stating that the terms of the Mortgage govern over any conflicting provision of this Lease pertaining to the Mortgagee’s obligation to make insurance or condemnation proceeds available for reconstruction of any part of the Premises, (iv) provisions by which such Mortgagee or successor-in-interest upon foreclosure is agreed not to be bound by (a) any payment of rent or additional rent for more than one (1) month in advance, including prepayment in the nature of security for the performance by Tenant of its obligations under this Lease (unless actually received by such successor in interest), (b) any obligations of Landlord to construct improvements, (c) any amendment or modification of this Lease (or implied waiver of Tenant’s obligations) made without the written consent of such trustee or such beneficiary or such successor in interest, (d) any representations or defaults by any prior Landlord, and (e) any other matters that such Mortgagee is not directly responsible for causing, as such Mortgagee may specify, and/or (v) such other provisions and protections as such Mortgagee may request that are reasonably customary in the commercial mortgage lending community at the time. Tenant, at any time hereafter on demand by Landlord, shall promptly execute and deliver to Landlord, in any event within ten (10) days of such demand, an SNDA Agreement meeting the above criteria or in any other commercially reasonable form.

21.         MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind the interest of Landlord or Tenant in the Premises or to charge the rentals payable hereunder for any claim in favor of any person dealing with Tenant, including those who may furnish materials or perform labor for any construction or repairs. Tenant covenants and agrees that it will pay or cause to be paid all sums legally due and payable by it on account of any labor performed or materials furnished in connection with any work performed on the Premises and that it will save and hold Landlord harmless from any and all loss, cost or expense based on or arising out of asserted claims or liens against the leasehold estate or against the right, title and interest of Landlord in the Premises or under the terms of this Lease. Tenant agrees to give Landlord immediate written notice of the placing of any lien or encumbrance against the Premises, and to cause the release of such lien claim or filing claiming with respect to work done by, through or under Tenant or any occupant of the Premises immediately upon Landlord’s demand or prior to institution of any suit to foreclose such lien, whichever is sooner.

22.         COMPLIANCE WITH LAWS AND RESTRICTIONS. Tenant shall comply throughout the Term with all orders, ordinances, regulations and laws of the municipal corporation and other governmental authorities that are applicable to the Premises and/or Tenant's use of the Premises, whether requiring alterations or improvements of a capital nature or otherwise, and with all applicable deed and other restrictions; provided, however, that if a Uniform Mandatory Change (as hereinbelow defined) shall occur during the Term of this Lease, then (i) Tenant shall give Landlord prompt written notice of such Uniform Mandatory Change, (ii) Landlord will proceed with reasonable diligence after receipt of such notice to design, finance (at Landlord’s option), permit and construct or install the capital improvement required by the Uniform Mandatory Change, and (iii) from and after the date of Landlord’s substantial completion of the capital improvement work required by the Uniform Mandatory Change, the monthly Base Rental hereunder shall be automatically increased by an amount equal to the total cost of such capital improvement work incurred by Landlord divided by the number of months in the useful life of such improvement as reasonably determined by Landlord, but in any event not longer than the remaining useful life of the building for purposes of GAAP, or the actual practical remaining useful life if shorter. Landlord shall not be liable or responsible in any manner for reasonably necessary disruption to Tenant’s business operations at the Premises on account of the performance of the Uniform Mandatory Change, and under no circumstance shall any work by Landlord or its contractor(s) on any Uniform Mandatory Change ever give rise to an abatement of rent or a right on the part of Tenant to terminate this Lease. At Landlord’s option, Landlord may require that Tenant (after Landlord’s reasonable approval of plans therefor) make the alteration or improvement required by the Uniform Mandatory Change and reimburse Tenant for such work upon Tenant’s completion thereof in a good and workmanlike manner, in compliance with all laws, and lien free for the required mechanic’s or materialmen’s lien claim or filing period (but subject to the increase in Base Rental the same as provided above for the situation in which Landlord makes such alteration or improvement by its own contractors). For purposes hereof, a “Uniform Mandatory Change” means (A) a capital improvement that is required to be made to the Premises to comply with new legal requirement as to which compliance of the Premises is mandatory, if (B) the new legal requirement is of uniform applicability to all similar buildings in the same jurisdiction, and not a requirement that is peculiar to Tenant’s particular use, industry, products or operations. Notwithstanding the foregoing, however, upon receipt of a notice from Tenant that a Uniform Mandatory Change is required to the Premises, Landlord may contest the applicability of such law to the Premises by whatever means Landlord determines to be appropriate, and to whatever level of appeal, and only comply therewith upon final judgment adverse to Landlord’s position, so long as Tenant’s use and occupancy of the Premises for its operations consistent with the permitted use herein are not materially disrupted or interfered with during the pendancy of such protest or contest of such law by Landlord. Tenant shall further comply with any licensing or permitted requirements applicable to the operation of its specific business (“Business Licenses”), the cost and availability of which and requirements for which are not warranted or represented by Landlord in any respect. Tenant is responsible for having verified that the regulations and restrictions affecting the Premises permit its use and any other desired Permitted Use by Tenant. The Permitted Use shall be subject to any and all other specific restrictions on use stated elsewhere in this Lease, and all risk of obtaining Business Licenses and compliance with regulations and restrictions are Tenant’s sole risk.

23.         MISCELLANEOUS.

A.         Construction; Headings. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. The captions inserted in this Lease are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Lease, or any provision hereof, or in any way affect the interpretation of this Lease.

B.         Successors and Assigns. The terms, provisions and covenants and conditions contained in this Lease shall apply to, inure to the benefit of, and be binding upon, the parties hereto and upon their respective heirs, executors, personal representatives, legal representatives, successors and assigns, except as otherwise herein expressly provided. Landlord shall have the right to transfer and assign, in whole or in part, its rights and obligations in the building and property that are the subject of this Lease. Tenant agrees to furnish to Landlord, promptly upon demand, a corporate resolution, proof of due authorization by partners, or other appropriate documentation evidencing the due authorization of Tenant to enter into this Lease.

C.         Force Majeure. Landlord shall not be held responsible for delays in the performance of its obligations hereunder when caused by material shortages, acts of God, labor disputes or other events of force majeure.

D.         Tenant Estoppels. Upon request therefor, Tenant agrees to execute and deliver to Landlord, or any party designated by Landlord, within ten (10) business days, an Estoppel Certificate in the form attached hereto at Exhibit B. Exceptions to Landlord performance must be detailed in writing and attached to and made a part of the requested Estoppel Certificate within the same 10 business-day time period.

E.         Merger; Amendment. This Lease constitutes the entire understanding and agreement of Landlord and Tenant with respect to the subject matter of this Lease, and contains all of the covenants and agreements of Landlord and Tenant with respect thereto. Landlord and Tenant each acknowledge that no representations, inducements, promises or agreements, oral or written, have been made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not contained herein, and any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease are of no force or effect. This Lease may not be altered, changed or amended except by an instrument in writing signed by both parties hereto.

F.         Survival; Delivery Up of Possession at End of Term. All obligations of Tenant hereunder not fully performed as of the expiration or earlier termination of the Term of this Lease shall survive the expiration or earlier termination of the Term hereof, including, without limitation, all payment obligations with respect to taxes and insurance and all obligations concerning the condition and repair of the Premises. Upon the expiration or earlier termination of the Term hereof, and prior to Tenant vacating the Premises, Tenant shall pay to Landlord any amount reasonably estimated by Landlord as necessary to put the Premises, including, without limitation, all heating and air conditioning systems and equipment therein, in good condition and repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's obligation hereunder for real estate taxes and insurance premiums for the year in which the Lease expires or terminates. All such amounts shall be used and held by Landlord for payment of such obligations of Tenant hereunder, with Tenant being liable for any additional costs therefor upon demand by Landlord, or with any excess to be returned to Tenant after all such obligations have been determined and satisfied as the case may be. In the year that this Lease terminates, Landlord, in lieu of waiting until the close of the calendar year, in order to determine any excess additional rentals as set forth in Paragraph 2, has the option to charge Tenant for Tenant's proportionate share of the additional rentals set forth in Paragraph 2 based upon the previous year's expenses therefor plus ten percent (10%). Any Security Deposit held by Landlord shall be credited against the amount payable by Tenant under this Paragraph 23F if not otherwise utilized by Landlord to pay repair or other liabilities of Tenant.

G.         Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.

H.         Brokers. Tenant represents and warrants that it has dealt with no broker, agent or other person in connection with this transaction other than Landlord's Broker specified in the Basic Lease Terms, if any, and Tenant's Broker specified in the Basic Lease Terms, if any (collectively, the "Brokers"), and Tenant agrees to indemnify and hold harmless Landlord from and against any claims by any broker, agent or other person (other than Brokers) claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction.

I.         Identity of Parties' Representatives. If and when included within the term "Landlord," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. If and when included within the term "Tenant," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address within the continental United States for the receipt of notices and payments to Tenant. All parties included within the terms "Landlord" and "Tenant," respectively shall be bound by notices given in accordance with the provisions of Paragraph 24 hereof to the same effect as if each had received such notice.

J.         Governing Law. This Lease shall be enforced, construed and interpreted under the laws of the State of Texas.

K.         Time of Essence. Time is of the essence in all matters of performance by each of the parties hereto; and all due dates, time schedules, and conditions precedent to exercising a right shall be strictly adhered to without delay except where otherwise expressly provided.

L.         Financial Information. Tenant shall at any time and from time to time during the Term of the Lease, within fifteen (15) days of written request by Landlord, deliver to Landlord such financial information concerning Tenant and Tenant’s business operations as may be reasonably requested by Landlord; provided, however, that Tenant shall have no obligation to provide any such information as to Tenant, as applicable, so long as (i) the Tenant is a company whose shares are traded on the NYSE, AMEX or NASDAQ stock exchange, and (ii) current financial statements of Tenant (consolidated only with the relevant financial information of its controlled subsidiaries as required by GAAP), audited and certified by an independent certified public accounting firm, are posted on “EDGAR,” the “Home Page” of such Tenant, or other electronic resource that is available, without charge, to the general public (but if such posting is other than on EDGAR, Tenant shall promptly, within the above 15-day period, respond to Landlord’s request hereunder for financial information by providing written notice to Landlord of the Home Page or public website for Tenant on which such information exists and from which it may be retrieved without charge). The relief of Tenant from the obligation to provide information pursuant to the foregoing are intended to and shall apply independently to Tenant, such that Tenant’s obligations to deliver such information continues as to Tenant only if one of them, but not both, qualifies for the foregoing exemption. Each party who is either primarily, jointly and severally, or even secondarily liable on this Lease, for example, prior party’s who signed or assumed this Lease as “Tenant” who may no longer occupy the Premises, are obligated with regard to provision of this information the same as “Tenant” for purposes hereof, but are entitled to the same exemption for public companies as provided above. If Tenant is required to but still fails to provide such information when required, then, without limiting any other remedy that Landlord may have for such failure, Landlord may thereupon declare an Event of Default by reason thereof. For purposes hereof, “EDGAR” means the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system, and any successor system that is available to the public without charge, and “Home Page” means the internet website home page of Tenant and any successor equivalent electronic site available to the public without charge.

24.         NOTICES. Any notice, communication, request, reply, or advice (hereinafter severally and collectively called "notice") provided for or permitted to be given, made, or accepted by either party to the other pursuant to this Lease must be in writing, and must, unless otherwise in this Lease expressly provided, be given or be served either (i) by depositing the same in the United States mail, postage prepaid, addressed to the party to be notified, by certified mail with return receipt requested, (ii) by delivering the same by hand delivery or private courier service to the notice address of such party, addressed to the party to be notified, or (iii) transmitted by facsimile (telecopy) transmission at the then-effective notice telecopy number for the party if a copy of such notice is sent by U.S. First-Class mail to the party, postage prepaid and properly addressed, no later than the next postal business day after the telecopy notice is sent. Notice deposited in the mail in the manner hereinabove described shall be deemed given and received for all purposes hereof, unless otherwise stated in this Lease, on the third (3^rd) postal business day after it is deposited in the care or custody of the United States Postal Service, or upon actual receipt at the addressee’s effective notice address, whichever is earlier (actual receipt being deemed the date of first attempted delivery if the first attempted delivery is not successful). Notice given by telecopy is deemed given and received only if followed by mail notice as described above, and only upon electronic confirmation by the sender’s telecopy equipment that the notice was successfully transmitted; provided, however, that notice given by telecopy after 6:00 p.m. on a business day, or on a non-business day (Saturday, Sunday or holiday) is not deemed given until the next following business day. Notice given in any other manner shall be effective only if and when delivered at the designated notice address of the party to be notified (if not left with a receptionist at such address, then left in a secure location reasonably thought to be a place where after-hours deliveries will be found upon opening for business at such address the next following business day – but not left in a building lobby of a multi-tenant building in which the address of the recipient is a particular suite), addressed to the appropriate person as herein specified. The initial notice addresses of the parties for purposes of this Lease are as set forth in the Basic Lease Terms. The parties hereto and their respective heirs, successors, legal representatives, and assigns, shall have the right from time to time and at any time to change their respective notice addresses for purposes hereof to any address within the continental United States, by giving at least fifteen (15) days’ prior written notice to the other party delivered in compliance with this Paragraph. Notwithstanding the foregoing, all rent and other payments required to be made by Tenant to Landlord hereunder shall be payable to Landlord at the address for Landlord set forth herein or at such other address as Landlord may specify from time to time by written notice delivered in accordance herewith. Tenant's obligation to pay rent and any other amounts to Landlord under the terms of this Lease shall not be deemed satisfied until such rent and other amounts have been actually received by Landlord.

25.         LANDLORD’S LIEN. In consideration of the mutual benefits arising under this Lease, Tenant herein grants to Landlord a lien and security interest on Tenant's furniture, equipment, machinery and furnishings now or hereafter placed in or upon the Premises and such property shall be and remain subject to such lien and security interest of Landlord for payment of all rental and other sums agreed to be paid by Tenant herein. The provisions of this paragraph relating to such lien and security interest shall constitute a security agreement under the Texas Uniform Commercial Code so that Landlord shall have and may enforce a security interest on such property of Tenant. Tenant, as debtor, agree to execute such financing statement or statements as Landlord may now or hereafter reasonably request in order that such security interest or interests may be perfected pursuant to the Uniform Commercial Code, or Landlord may make such filing without Tenant’s signature if Tenant’s signature is not required by the law of the jurisdiction applicable to the filing. Landlord, as secured party, shall be entitled to all of the rights and remedies afforded a secured party under the Texas Uniform Commercial Code in addition to and cumulative of the landlord's liens and rights provided by applicable laws or by the other terms and provisions of this Lease. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord (or Landlord may file without Tenant’s signature if allowed in the applicable jurisdiction) a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provision of the Uniform Commercial Code (or corresponding state statute or statutes) in force in the state in which the Premises is located, as well as any other state the laws of which Landlord may at any time consider to be applicable.

26.         HAZARDOUS MATERIALS.

A.         Hazardous Materials Use Restricted; Permitted Materials. Tenant shall not use the Premises for the generation, storage (above or below ground) or disposal of any Hazardous Material (as hereinbelow defined), except for storage of Permitted Materials (as hereinbelow defined), and shall remain in compliance with all requirements of Environmental Law (as defined herein), including, without limitation, requirements, orders and regulations of the Texas Commission on Environmental Quality and the Environmental Protection Agency. “Hazardous Materials” mean all substances regulated by any Environmental Law, and shall include, but is not limited to (i) asbestos, (ii) petroleum, (iii) any explosive, toxic and radioactive materials, wastes or substances, or (iv) any substances defined as “hazardous substances” or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42. U.S.C. §9601, et seq., the Hazardous Materials Transportation Act (49 U.S.C. §1802), as amended, the Resource Conservation and Recovery Act (42 U.S.C. §6901), as amended, or any other Environmental Law. “Environmental Laws” means the foregoing named statutes and every other federal, state or local law regulating the generation, disposal or release into the environment of materials or substances deemed hazardous to human health, wildlife and/or the environment. For purposes hereof, the term “Permitted Materials” means the following Hazardous Materials:

(1)         the following items used on the Premises to the extent the same are used as an incidental part of the primary business of Tenant conducted on the Premises: (i) cleaners and cleaning supplies of a household nature; and (ii) office supplies (such as, but not limited to, toner cartridges, white-out and similar items); and

(2)         Hazardous Materials kept and used on the Premises as reasonably necessary and convenient for the conduct of the Permitted Use.

B.         Use of Permitted Materials. All such Permitted Materials shall be used and stored on the Premises only in compliance with all applicable laws and regulations pertaining thereto (including Environmental Laws), and in the manner recommended by the product manufacturers or industry experts to reasonably minimize the possibility of release (“Recommended Practices”), and shall be disposed of only off the Premises (in compliance with all applicable laws and regulations applicable thereto). If Landlord believes Tenant to be in violation of Recommended Practices in connection with its handling or use of Permitted Materials based on review by and written recommendations of a third-party consultant engaged by Landlord, but has no reason to believe Tenant is in violation of Environmental Laws in regard to such handling or use thereof, Landlord shall (if it desires to press the issue) give Tenant written notice thereof and a copy of such third-party consultant’s recommendation, and Tenant shall, within ten (10) days thereafter if it desires to contest such finding, dispute such finding by submitting to Landlord a written response from a third party consultant retained by Tenant indicating how and why it disputes the findings of Landlord’s consultant regarding Recommended Practices. If Tenant does not timely so contest such finding by Landlord, then Tenant will comply with and conform to (as a minimum) the Recommended Practices as indicated by Landlord’s consultant. If Tenant timely so contests Landlord’s notice and finding, then a third consultant (who has not done business with Landlord and its affiliates within the past 180 days) shall be selected by Landlord and upon rendering of a decision by such third consultant, that decision shall be binding in terms of the Recommended Practices at issue and Tenant will promptly comply therewith after receipt of such third consultant’s written report. Tenant shall not be in violation of this Lease simply by reason of an allegation of violation of Recommended Practices unless and until a finding binding on Tenant is rendered pursuant to the above process (including Tenant’s deemed waiver of findings of Landlord’s consultant) and Tenant fails to promptly comply with such binding finding, but nothing in Tenant’s compliance with Recommended Practices shall ever excuse any actual violation by Tenant of Environmental Laws. Nothing herein shall impede Landlord’s right to immediately proceed with injunctive action to prevent an imminent threat of contamination of the Premises with Hazardous Materials without Landlord being obligated to await any determination of Recommended Practices.

C.         Limitations on Certain Specific Operations. Notwithstanding the foregoing or any other provision of this Lease, however (i) under no circumstances shall Tenant ever install underground storage tanks on, in, upon or within any part of the Premises, and (ii) in connection with any assignment or subletting by Tenant that requires Landlord’s consent under this Lease (any assignment or subletting not requiring such consent shall be on the condition that such assignee or sublessee comply with this provision as written), Tenant must deliver to Landlord, with its request for Landlord approval of such subletting or assignment transaction, the types and maximum quantities of Hazardous Materials that such Tenant will desire to be allowed to have on the Premises (except those of the types specified in clauses (i) and (iii) of paragraph A.(1), above, and Landlord may withhold its approval of such assignment or subletting transaction in its absolute discretion if the types or quantities of Hazardous Materials involved in the business of the proposed sublessee or assignee pose, in Landlord’s good faith judgment, a materially greater exposure to environmental risk than the activities that previously were (or continue to be) conducted by Tenant (or its Permitted Transferees) at the Premises.

D.         Tenant Use of Other Hazardous Materials. In addition, Landlord and Tenant agree that Hazardous Materials other than the Permitted Materials may be kept and used (but not disposed of, released or leaked) upon the Premises only if such additional Hazardous Materials are given the written approval of Landlord, which approval shall be deemed to be provided if Landlord does not object in writing within ten (10) business days of Tenant’s written request for approval accompanied by any applicable material safety data sheets regarding said Hazardous Material as well as a written description of the maximum amount of such substance to be brought upon or into the Premises and the common and recognized chemical name of such Hazardous Material and the reason for Tenant needing to store such Hazardous Materials that are not Permitted Materials (but Landlord’s approval shall only extend to the maximum anticipated quantity referenced in Tenant’s request for approval). Landlord’s approval of use or storage by Tenant of additional Hazardous Materials will not be unreasonably withheld if, in Landlord’s good faith judgment, the nature or quantity of new Hazardous Materials proposed to be brought, stored or used on the Premises do not materially change the environmental risks and exposures of Landlord or the Premises from that contemplated by the types and quantities of Hazardous Materials identified as Permitted Materials herein. If the nature and extent of environmental exposure is materially different, then, among Landlord’s other conditions or qualifications to approval and right to deny approval, Landlord may impose a requirement for pollution liability insurance coverages in form acceptable to Landlord in its sole and exclusive judgment.

E.         Tenant Breaches; Indemnity. If Tenant breaches the obligations set forth in this Paragraph 26, or if the presence of Hazardous Material in the Premises occurs by reason of Tenant’s use or any act or omission of Tenant, its employees, agents, contractors, invitees, sublessees (as permitted herein) or affiliates, or if contamination of the Premises by Hazardous Material otherwise occurs from any source or for any reason other than (i) contamination of the Premises existing prior to the Commencement Date hereof not caused by Tenant, (ii) contamination of the Premises by Hazardous Material brought onto the Premises by Landlord (or its employees, agents, contractors or affiliates) after the date hereof, or (iii) contamination of the Premises by actions of a third party for whom Tenant is not otherwise responsible under this sentence and Tenant took all reasonable precautions and gave Landlord prompt notice of any threat of contamination from a third party that comes to its attention during the Term hereof, then Tenant shall be strictly liable to Landlord for any contamination or legal violation arising therefrom, and shall indemnify, defend and hold harmless Landlord, its partners, and its and their respective agents, employees, shareholders, directors, officers and affiliates, from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including, without limitation, diminution in value of the Premises, attorney’s fees and costs of suit or defense of claims, consultant fees and expert fees, which arise during or after the Term of this Lease as a result of such Hazardous Material being present upon, released upon or within or released from the Premises from such sources and causes for which Tenant is liable hereunder, REGARDLESS OF WHETHER THE CAUSE OF SUCH RELEASE IS, IN WHOLE OR IN PART, THE NEGLIGENCE OF LANDLORD, ITS AGENTS, EMPLOYEES, SERVANTS OR OTHERS FOR WHOSE ACTS IT MIGHT OTHERWISE LEGALLY BE LIABLE. This indemnification of Landlord by Tenant shall survive expiration or termination of this Lease and includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in, on or under the Premises. Without limiting the foregoing, if the presence of any Hazardous Material caused or permitted by Tenant results in any contamination of the Premises, Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the introduction of any such Hazardous Material; provided that Landlord's approval of such actions shall first be obtained.

27.         NO LANDLORD OBLIGATION TO PROVIDE SECURITY.

A.         Release and Indemnity. Neither Landlord nor its property management agent shall have any liability to Tenant or any third party whomsoever, including, without limitation, Tenant's employees, offi‐cers, agents, representatives, contractors, customers, invitees or licensees, for damage, injury or loss to persons or prop‐erty resulting from criminal activ‐ity occurring upon the Premises, or ad‐jacent thereto, whether such crimi‐nal activity is by other tenants, their em‐ployees, agents, officers, representa‐tives, customers, invitees, licensees, con‐tractors or others, or is by any third parties whomsoever. Tenant shall fully insure itself, as it may deem appropri‐ate, to protect itself from claims for any such possible injury, loss or damage to persons or property resulting from crim‐inal activity, including claims as‐serted by its employees, agents, officers, representatives, customers, invitees, licensees and contractors. Tenant shall indemnify, defend and hold harmless Landlord and its property management agent from and against any claims for damage, loss or injury to persons or property as‐serted by Tenant's employees, agents, officers, representatives, customers, in‐vitees, licensees or contractors resulting from any such criminal activity, WHETHER BASED ON ALLEGED NEGLIGENCE OF LANDLORD OR OTHERWISE.

B.         Tenant's Rights to Provide Security. Subject to Landlord's prior written approval, which shall not be unreasonably withheld, Tenant may at its cost take whatever precautions may be necessary in, about and around the Premises to protect its employees, officers, agents, representatives, customers, visitors, contractors, suppliers, invitees and licensees from criminal activity when on the Premises, or in the vicinity thereof, but nothing herein shall be deemed or construed as an undertaking or obligation enforceable against Tenant by any such third party. Tenant shall be responsible for informing itself as to the risk of crime from time to time on and in the vicinity of the Premises and Tenant shall not rely on Landlord to obtain, monitor or disseminate such crime information. Any dissemination of crime information by Landlord or its management agent shall be without obligation or liability on the part of Landlord or its management agent to do so in the future, and neither Landlord nor its management agent shall have liability or responsibility for the accuracy or completeness of any such information as the parties understand and acknowledge that such information shall be from sources the reliability of which Landlord does not undertake to verify or investigate. Tenant is in an equal position to Landlord in terms of its ability to investigate or obtain further verification of the facts surrounding any particular crime reported by Landlord or otherwise coming to the attention of Tenant.

28.         INDEPENDENT OBLIGATIONS; WAIVER. TENANT HEREBY AGREES, AS A MATERIAL PART OF THE CONSIDERATION FOR LANDLORD'S ENTERING INTO THIS LEASE, THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT (OR ANY OF TENANT'S EMPLOYEES OR AGENTS) REGARDING THE CONDITION OF THE PREMISES OR ANY PART THEREOF, EITHER EXPRESS OR IMPLIED, AND LANDLORD HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY (INCLUDING ANY IMPLIED WARRANTY) THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED USE THEREOF. TENANT AGREES THAT TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, BUT THAT TENANT WILL CONTINUE TO PAY RENT WHEN DUE HEREUNDER, WITHOUT ABATEMENT, SET‑OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH OR ALLEGED BREACH BY LANDLORD OF ANY OF ITS EXPRESS OBLIGATIONS UNDER‐TAKEN IN THIS LEASE.

29.         NO MEMORANDUM OF LEASE UNLESS REQUIRED BY LANDLORD. Tenant agrees, if so requested by Landlord, at any time to execute a Memorandum of Lease in recordable form setting forth the names of the parties, the Term of the Lease (stating declaration of commencement of the Term), and the description of the Premises, which Landlord may record in order to give record notice to third parties of this Lease. Except at Landlord's request pursuant hereto, Tenant shall never file in the Real Property Records or other public records of the county in which the Premises are located any memorandum, affidavit, notation or evidence of this Lease, and violation of this covenant by Tenant shall be an Event of Default which is not subject to any requirement of notice from Landlord or opportunity of Tenant to cure the same before Landlord pursues its remedies.

30.         ABSOLUTE LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything to the contrary or apparent contrary in this Lease, Tenant specifically agrees to look solely to Landlord's interest in the Premises for the recovery of any judgment from Landlord, it being agreed that Landlord shall never be personally liable for any such judgment. Tenant hereby expressly waives any right to recover for any claims against Landlord to the extent not recoverable from Landlord's interest in the Premises, WHETHER BASED ON LANDLORD'S ALLEGED NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE. The foregoing is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain in‐junctive relief against Landlord or Landlord's successors in interest, or any other action not involving the personal liability of Landlord to respond in monetary damages from assets other than Landlord's interest in the Premises or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.

[END OF PAGE, SIGNATURES COMMENCE ON FOLLOWING PAGE]

NOTICE: NO PERSON OTHER THAN THE INDIVIDUAL SIGNING BELOW AS THE AUTHORIZED REPRESENTATIVE OF LANDLORD MAY BIND LANDLORD TO ANY AGREEMENT WHATSOEVER, AND ANY ORAL OR VERBAL REPRESENTATIONS, STATEMENTS, PROMISES OR AGREE‐MENTS OF ANY OTHER PERSON (REGARDLESS OF WHETHER PURPORTING TO REPRESENT OR APPARENTLY REPRESENTING LANDLORD) SHALL NOT BE BINDING ON LANDLORD UNLESS EXPRESSLY CONTAINED IN THIS LEASE.

IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS LEASE ON THE DATES SET FORTH BELOW, TO BE EFFECTIVE AS OF THE EFFECTIVE DATE OF THIS LEASE.

EXECUTED BY LANDLORD, as of the Effective Date.

MANVEL PROPERTY MANAGEMENT                                    

By: Tidal Power Group, LLC, its Manager

By: /s/ Monty Charles Janak                                                                              

Monty Charles Janak, Manager

By: /s/ Marty Alan Janak                                                                                    

Marty Alan Janak, Manager

By: /s/ Amy Marie Janak Pugh                                                                             

Amy Marie Janak Pugh, Manager

                     EXECUTED BY TENANT, as of the Effective Date.

FRONT LINE POWER CONSTRUCTION, LLC

By: /s/ William J. Clough                                                                                            

Print: William J. Clough

Title: Executive Chairman & CLO

EXHIBIT A

Description of Premises

DALTON INVESTMENTS INDUSTRIAL COMPLEX ON 288 (A0560) BLK 1 LOT 4, Brazoria County, Texas, Tax Geographic ID: 3105-0001-004

EXHIBIT B

Form of Estoppel Certificate

Date: ___________________

Landlord: _____________________________

Tenant: _______________________________

Premises:         As stated in Industrial Triple Net Lease dated ___________________ between Landlord and Tenant

Addressee: ___________________________________

Tenant hereby certifies to Addressee as follows:

1.         Tenant understands and expects that Addressee is relying on the representations in this certificate.

2.         Tenant has accepted and is in possession of the Premises.

3.         All required improvements have been completed to the satisfaction of Tenant.

4.         The Lease term began on ___________________, and the termination date of the present term of the Lease, excluding unexercised renewal terms, is ___________________. Tenant has not sublet all or any portion of the Premises to any sublessee and has not assigned, transferred or encumbered any of its rights or interests under the Lease.

5.         Tenant has paid a security deposit in the amount of $_____________ to Landlord.

6.         The current monthly base rent is $_____________. Rent is currently paid through ___________________, and the next payment is due on ___________________. No rent has been paid more than thirty days in advance of its due date under the Lease.

7.         Tenant, as of this date, has no claim of offset against the rent.

8.         The Lease is valid, enforceable, and unmodified. The Lease represents the entire agreement between Landlord and Tenant with respect to the Premises and the land on which the Premises are situated.

9.         Except as provided by the Lease, Tenant has no outstanding options or rights to renew or extend the term of the Lease. Except as provided by the Lease, Tenant has no outstanding expansion options, other options, rights of first refusal or rights of first offer to lease or purchase with respect to all or any part of the Premises.

10.         To the best of Tenant’s knowledge, neither Landlord nor Tenant is in default in the performance of the Lease.

TENANT:

By:_________________________________

Its: _________________________________

Exhibit 99.10

INDUSTRIAL TRIPLE NET LEASE

THIS INDUSTRIAL TRIPLE NET LEASE (this "Lease") is made and entered into by and between the Landlord named in the Basic Lease Terms, below, and the Tenant named in the Basic Lease Terms, below, to be effective as of November 17, 2021 (the “Effective Date”), as defined in the Basic Lease Terms.

W I T N E S S E T H:

The parties hereto hereby agree to the following stated “Basic Lease Terms” (herein so called), which are made part of this Lease for all purposes:

A.         “Landlord”:                   Oak Property Group

Address for Notice:       271 CR 532D

                            Hallettsville, Texas 77964                           

B.         “Tenant”:                         Front Line Power Construction, LLC

Address for Notice:        4202 Chance Lane

Rosharon, TX 77583

C.         “Premises”: That tract of land located in Brazoria County, Texas, commonly known as 4302 Chance Lane, Rosharon, TX 77583 being more particularly described on Exhibit A attached hereto and incorporated herein by reference, together with all improvements and fixtures (now or hereafter constructed) owned by Landlord from time to time thereon.

D.         “Term”: Thirty-six (36) months from the Commencement Date, plus the partial month, if any, during which the Commencement Date occurs if the Commencement Date occurs other than on the first day of a calendar month (“Initial Term”).

E.         “Commencement Date”: The Effective Date.

F.         “Base Rental”: means $2,000.00 per month.

G.         “Security Deposit”: $0.00, subject to the terms of Paragraph 2B.

H.         “Permitted Use”: means the operation of Tenant’s electrical construction business and activities ancillary thereto, and for such other lawful purposes as may reasonably be deemed incidental to the aforesaid primary use, subject to the restrictions elsewhere herein.

The parties further hereby agree to each and all of the following terms of lease:

1.         PREMISES AND TERM. In consideration of the mutual obligations of Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from Landlord, the Premises as described above, to have and to hold, subject to the terms, covenants and conditions in this Lease. The Term of this Lease shall commence on the Commencement Date hereinafter set forth and shall end at the expiration of Term. The square foot area of the Premises is not guaranteed or warranted by Landlord.

A.         General Conditions. Landlord and Tenant agree that Tenant's obligations, privileges, covenants and agreements contained in this Lease shall be operative and effective regardless of whether the Premises are ever occupied by Tenant and whether or not this Lease is fully exhibited. If Tenant fails to occupy the Premises for any reason, Tenant shall nonetheless remain obligated hereunder.

B.         Renewal Term. Tenant shall have the option to renew this Lease (“Renewal Option”), for an additional period and upon such terms and conditions to be negotiated between the parties (“Renewal Lease Term”); provided, that, Tenant provide Landlord with written notice at least ninety (90) days prior to the expiration of the Initial Term of its desire to extend the Lease. If Lessee and Lessor are not able to reach a mutually agreed upon length of the Renewal Lease Term and rent structure for the Renewal Lease Term, then this Renewal Option shall automatically terminate and the Lease shall expire on the last day of the Initial Term.

2.         BASE RENTAL; SECURITY DEPOSIT.

A.         Base Rental. Tenant agrees to pay to Landlord Base Rental as specified in the Basic Lease Terms, during the Term hereof, except that the first month's Base Rental shall be prorated based on the amount of Base Rental specified for the first actual rent-paying month of the Term (i.e., excluding any period of free or reduced monthly Base Rental, if any). The first installment for the first month's Base Rental (that is not provided as free rent or a reduced rate) shall be due and payable on the Effective Date hereof. Full monthly Base Rental installments in the amount set forth above shall be due and payable, without demand, deduction or set-off, on or before the first day of each calendar month succeeding the Commencement Date during the Term hereof. In addition to Base Rental due hereunder, all sums of money and all payments due Landlord hereunder shall be deemed to be additional “rental” owed by Tenant to Landlord for all purposes of this Lease.

B.         Security Deposit. In addition, upon written request by Landlord at any time during the Term of the Lease, Tenant agrees to deposit with Landlord the sum of the Security Deposit stated in the Basic Lease Terms, which shall be held by Landlord, without obligation for interest, as security for the performance of Tenant's obligations under this Lease, it being expressly understood and agreed that this deposit is not an advance rental deposit or a measure of Landlord's damages in case of Tenant's default. Upon each occurrence of an Event of Default, Landlord may use all or part of the deposit to pay past due rent or other payments due Landlord under this Lease, and the cost of any other damage, injury, expense or liability caused by such Event of Default without prejudice to any other remedy provided herein or provided by law. On demand, Tenant shall pay Landlord the amount that will restore the security deposit to its original amount. The security deposit shall be deemed the property of Landlord, but any remaining balance of such deposit shall be returned by Landlord to Tenant when Tenant's obligations under this Lease have been fulfilled.

3.         ADDITIONAL RENT: TAXES AND INSURANCE PAYMENTS BY TENANT.

A.         Definition of Taxes. For purposes hereof, "Taxes" shall mean and include all taxes, general and special assessments, sewer rents or charges due or levied by any governmental authority of any kind and nature that accrue against the Premises. If at any time during the Term of this Lease, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly on the rents received therefrom and/or a franchise tax, assessment, levy or charge measured by or based, in whole or in part, upon such rents from the Premises, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to be included within the term "Taxes" for the purposes hereof.

B.         Taxes on the Premises. Tenant shall pay all Taxes made against the Premises during the Term, whether payable in full upon assessment or payable in installments. Tenant shall pay in full any Taxes levied during the Term, even if the assessing authority allows payment of the Tax in installments that would extend beyond the expiration of the Term of this Lease. In the case of the calendar years during which the Term commences and during which the Term expires, all Taxes affecting the Premises shall be prorated so that Tenant shall be liable for such portion thereof as accrue during such calendar year when this Lease is in effect and Landlord shall be liable for such portion thereof as accrue during the portion of the calendar year when this Lease is not in effect. Tenant shall have the right before or after delinquency occurs of contesting, objecting to, or opposing the legality or validity of any Taxes affecting the Premises, provided that prompt notice of the contest, objection, or opposition shall be given to Landlord by Tenant at least twenty (20) days before any delinquency and provided, further, that the contest, objection, or opposition shall not be carried on or maintained after the time limit for the payment by Tenant of the obliga‐tions unless Tenant shall have duly paid the amount involved under protest or shall have procured and maintained a stay of all proceedings to enforce any collection thereof and shall also have provided for payment thereof, together with all penalties, interest, costs, and expenses, by a deposit of a sufficient sum of money with the taxing authority, a court of competent jurisdic‐tion, or such other place, if any, as shall be prescribed by applicable law or by a good and suf‐ficient undertaking as may be required or permitted by law to accomplish a stay. In the event of any such contest, objection, or opposition, Tenant agrees to pay and discharge any unpaid amounts finally determined to be due within such time period as may be required by law to avoid delinquency.

C.         Taxes on Tenant's Property. During the Term hereof, Tenant shall pay prior to delinquency all Taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property of Tenant contained in the leased Premises, and when possible, Tenant shall cause said fix‐tures, furnishings, equipment and other personal property to be assessed and billed separately from the real property of Landlord. In the event any or all of the Tenant's fixtures, furnish‐ings, equipment and other personal property shall be assessed or taxed with the Landlord's real property, then Tenant shall pay to Landlord Tenant's share of such taxes within twenty (20) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property.

D.         Insurance Premiums. Tenant shall pay all insurance premiums for the insurance policies and coverages required pursuant to Paragraph 9 hereof. If Tenant should fail to obtain or maintain such coverages at any time during the Term, Landlord may, but shall not be obligated to, obtain such insurance policies and coverages at Tenant’s expense, but providing coverage for Landlord only, and charge the cost thereof to Tenant as additional rental under this Lease, due from Tenant to Landlord on demand.

E.         Net Lease; Utilities Paid By Tenant. Tenant shall pay all costs and charges for operation of the Premises, including, but not limited to, all utility services to the Premises, and shall arrange for all utility connections in its own name and the making of any required utility deposits. It is the intention of the parties that this Lease is an “absolute net” lease to the Landlord, such that the monthly Base Rental of Landlord is received free of any costs associated with the Premises other than (i) Landlord’s mortgage indebtedness, if any, and (ii) Landlord’s limited repair obligations hereunder, and that all other costs and expenses whatsoever relating to the ownership, operation, maintenance, insuring, licensing, or use of the Premises shall be borne by Tenant. All obligations and responsibilities of Tenant under the terms of this Lease shall be carried out by Tenant at its sole cost and expense.

F.         Survival. The provisions of this Paragraph 3 shall survive the expiration of the Term of this Lease, until taxes for the final year are adjusted between the parties.

4.         LANDLORD'S REPAIRS.

A.         Roof, Foundation and Exterior Walls. Landlord, at its own cost and expense, shall maintain only the roof, foundation and the structural soundness of the exterior walls of the building comprising a part of the Premises, in a reasonable state of repair, at least equivalent to that existing on the Effective Date hereof, reasonable wear and tear and damage by the fault of Tenant or its employees, agents, representatives, customers, suppliers, contractors or invitees excluded. The term "exterior walls" as used herein shall not include, without expanding its meaning and without limitation as to items not included in such term, the following: windows, glass or plate glass; doors (including, without limitation, rollup doors); mechanical, electrical, plumbing, crane or other systems or equipment (whether or not located in or attached to exterior walls); exterior signs; and special store fronts or office entries. Tenant shall immediately give Landlord written notice of any required repairs to structural elements that Landlord is required to repair, after which Landlord shall have reasonable opportunity to repair the same. Landlord's obligation to maintain the specified structural items shall be limited solely to the cost of such repairs or maintenance, Tenant hereby expressly waiving and releasing any and all other claims relating thereto.

B.         Landlord's Option to Perform Other Repairs. Landlord reserves the right to perform the repair obligations that are otherwise Tenant's responsibility under Paragraph 5A, in which event, Tenant shall be liable for the cost and expense incurred by Landlord in connection therewith, and such sums shall be payable by Tenant to Landlord as additional rent hereunder upon demand.

5.         TENANT'S REPAIRS.

A.         Tenant's Repairs. Tenant, at its own cost and expense, shall, except for those structural items specifically required to be maintained by Landlord under Paragraph 4A hereof (subject to the requirements therein for Tenant to repair the same if the damage is caused by Tenant’s fault) (i) maintain and repair all parts of the Premises and keep them in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (ii) promptly make all necessary repairs and replacements to the Premises and the systems serving the Premises, including, but not limited to, windows, glass and plate glass doors, any special office entry, interior walls and finish work, doors and floor covering, downspouts, gutters, heating and air conditioning systems, mechanical systems, electrical systems, crane systems, rail spurs, dock boards, truck doors, dock bumpers, paving, plumbing work and fixtures, sewer lines, as necessary to keep the Premises and facilities in good, safe, operating condition or, if better, the condition that exists on the Effective Date hereof, (iii) provide termite and pest extermination as needed to keep the Premises free from insect and/or rodent infestations, (iv) provide for regular removal of Tenant's trash and debris, and proper disposal thereof in a licensed waste facility, and other cleaning and upkeep so as to keep the Premises in a neat and reasonably clean and sanitary condition, (v) keep the parking areas, driveways and alleys surrounding or adjacent to the Premises in a clean, safe and sanitary condition free of all refuse, debris, equipment and other materials of Tenant, its employees, agents, contractors, invitees and licensees, and (vi) if Tenant desires railroad spur track service and the same is available at the Premises, pay the entirety of the cost of the obtaining and maintenance of any spur track servicing the Premises (provided, however, that no rail spur service will be connected to the Premises except with Landlord’s prior written approval, which shall not be unreasonably withheld, subject to such terms, conditions and requirements as Landlord may specify).

B.         Maintenance Contracts. At Tenant’s expense, Tenant shall enter into a maintenance agreement for the HVAC systems serving the Premises, with a licensed HVAC service company approved by Landlord, for the complete Term of this Lease, and if the Premises is served by overhead crane(s), private utility systems, private drainage or storm water control systems, and/or fire alarm or fire control or protection systems, whether installed by Landlord or Tenant, also a maintenance agreement with a service contractor acceptable to Landlord for the standard manufacturer suggested maintenance and repair of such systems during the entire Term of this Lease. Tenant will obtain and promptly provide to Landlord copies of the above-referenced maintenance contracts and an annual certificate of inspection with respect to any fire alarm or fire control/suppression system installed in or upon the Premises. Within five (5) business days after Landlord’s request, Tenant will provide evidence of the actual occurrence of maintenance of such systems by such contractors, in terms of certificates from the vendor showing dates of visits, services performed and work deferred or pending.

6.    ALTERATIONS. Tenant shall not make any alterations, additions, or improvements to the Premises without the prior written consent of Landlord. Tenant, at its own cost and expense, may erect such shelves, bins, machinery and trade fixtures as it desires provided that (a) such items do not overload or damage the same; (b) such items may be removed without injury to the Premises; and (c) the construction, erection or installation thereof complies with all applicable governmental laws, ordinances, regulations and with Landlord's specifications and requirements. All alterations, additions, improvements and partitions erected by Tenant shall be and remain the property of Tenant during the Term of this Lease. All shelves, bins, machinery and trade fixtures installed by Tenant shall be removed on or before the earlier to occur of the date of termination of this Lease or vacating the Premises, at which time Tenant shall restore the Premises to their original condition. Unless otherwise agreed in advance, any Tenant improvements to the Premises will become part of the Premises upon installation and will remain in place at the expiration of the Term upon receipt of verification of good and workmanlike completion of all such work in compliance with Landlord’s approvals and all applicable legal requirements, receipt of final lien waivers and bills paid affidavits from all contractors, and expiration of all applicable lien periods without the filing of any claim for mechanic’s or materialman’s lien. All improvements shall have the prior written approval of Landlord, and shall be performed by a reputable construction company approved in writing by Landlord, and who shall carry such insurance and meet such other requirements as Landlord shall specify. All invoices for improvements shall be available for inspection by Landlord. If any improvement work by Tenant (or its contractors) is work that will be covered up by the finish work involved in the particular project (i.e., electrical wiring or plumbing to be covered by finished walls, etc.), that will not be readily subject to inspection upon completion of the finish work, then before the finish work is added Tenant must (i) have all inspections required by the City, County or other agency with jurisdiction performed without violation noted, (ii) obtain inspection of such to-be-covered work by an independent third-party architect who shall document such inspection, and (iii) before performing the finish work that will cover such other work, notify Landlord in writing at least three (3) business days before commencement of the finish work to allow Landlord, if it so desires for its own protection, to inspect such to-be-covered work. All alterations, installations, removals and restoration shall be performed in a good and workmanlike manner so as not to damage or alter the primary structure or structural qualities of the building comprising a part of the Premises and other improvements situated on the Premises. No alterations contemplated by Tenant to the building comprising a part of the Premises or Premises will in any way be a condition to the occurrence of the Commencement Date or commencement of Tenant’s rental payment obligations hereunder.

7.         SIGNS. Any signage Tenant desires for the Premises shall be subject to Landlord's prior written approval. Tenant shall repair, paint, and/or replace the building fascia surface to which its signs are attached upon vacation of the Premises, or the removal or alteration of its signage. Tenant shall not (i) make any changes to the exterior of the Premises, (ii) install any exterior lights, decorations, balloons, flags, pennants, banners or painting, or (iii) erect or install any signs, windows or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Premises, without Landlord's prior written consent.

8.         UTILITIES. Landlord agrees to provide normal water, electricity, and telephone service connections (but not telephone systems or equipment, which Tenant shall provide at its own sole cost) to the Premises as they currently exist, which shall hereafter be maintained by Tenant. Tenant shall connect in its own name and pay for all water, gas, heat, light, power, telephone, sewer, sprinkler charges and other utilities and services used on or at the Premises, and shall furnish all electric light bulbs, ballasts, and tubes. All telephone service for Tenant shall be connected at Tenant's cost and in a manner such that Tenant shall be separately and directly billed therefor. Landlord shall not be liable for any interruption or failure of any such utility service on or serving the Premises.

9.         INSURANCE.

A.         Tenant’s Insurance. Throughout the Term of this Lease, Tenant will secure and maintain, at Tenant's expense:

(i)         Property. Causes of loss – special form (formerly “all risk”) property insurance (including extra expense insurance) on all of Tenant's fixtures and personal property in the Premises, and on all alterations, additions and improvements, all for the full replacement cost thereof. Tenant will use the proceeds from such insurance for the replacement of fixtures and personal property and for the restoration of any such alterations, additions or improvements as set forth in Paragraph 10. Landlord will be named as loss payee as respects its interest in any such alterations, additions, or other improvements.

(ii)         Workers’ Compensation; Employers Liability. Workers compensation and employers liability insurance. Workers compensation insurance in statutory limits will be provided for all employees. The employers liability insurance will afford limits not less than $500,000.00 per accident, $500,000.00 per employee for bodily injury by disease, and $500,000.00 policy limit for bodily injury by disease.

(iii)         Liability. Commercial general liability insurance which insures against claims for bodily injury, personal injury, advertising injury, and property damage based upon, involving, or arising out of the use, occupancy, or maintenance of the Premises. Such insurance will afford, at a minimum, the following limits:

Personal and Advertising Injury Liability              1,000,000.00

Medical Payments                                                         5,000.00

Any general aggregate limit will apply on a per-location basis.

Such insurance will name Landlord, its trustees and beneficiaries, Landlord's mortgagees, Landlord's managing agent, Landlord's advisor, and their respective officers, directors, agents and employees, as additional insureds (the "Required Additional Insureds").

This coverage must include blanket contractual liability, broad form property damage liability, and must contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance must be written on an occurrence basis and contain a standard separation of insureds provision.

(iv)         Auto. Business auto liability which insures against bodily injury and property damage claims arising out of the ownership, maintenance, or use of "any auto." A minimum of a $1,000,000.00 combined single limit per accident will apply. The provisions of this Paragraph 9.A(v) will apply only to automobiles owned by or leased to Tenant, and will not apply to automobiles owned by or leased to officers or employees of Tenant.

(v)         Umbrella. Umbrella excess liability insurance, on an occurrence basis, that applies excess of required commercial general liability, business auto liability, and employers liability policies, which insures against bodily injury, property damage, personal injury and advertising injury claims with the following minimum limits:

Each Occurrence         $1,000,000.00

Annual Aggregate         1,000,000.00

These limits must be in addition to and not including those stated for underlying commercial general liability, business auto liability, and employers liability insurance. Such policy must name the Required Additional Insureds as additional insureds.

(vi)         Alterations; Moving. Tenant will provide to Landlord endorsements of paid-up commercial general liability insurance in the amount of not less than $1,000,000.00 and otherwise reasonably satisfactory to Landlord from (i) Tenant's contractors before performing any initial leasehold improvements pursuant to any work letter attached to this Lease, and as provided in Paragraph 6 before performing any Tenant-made alterations; and (ii) Tenant's mover respecting moving into and moving out of the Premises, before Tenant moves into or out of the Premises. All insurance coverage to be provided by Tenant's contractors or movers must comply with the general insurance requirements set forth below. All such insurance must (1) include the Required Additional Insureds as additional insureds; and (2) be considered primary insurance.

(vii)         General insurance requirements. All policies required to be carried by Tenant and Tenant’s contractors and movers hereunder must be issued by and binding upon an insurance company licensed to do business in the state in which the property is located with a rating of at least "A-" "VIII" or better as set forth in the most current issue of Best's Key Rating Guide, unless otherwise approved by Landlord. Tenant will not do or permit anything to be done that would invalidate the insurance policies required. The insurance that Tenant is required to carry under this Paragraph 9.A may be held under a blanket policy.

Liability insurance maintained by Tenant and Tenant’s contractors and movers will be primary coverage without right of contribution by any similar insurance that may be maintained by Landlord. Tenant’s liability insurance deductibles may not exceed $0.00, and Tenant’s property insurance deductibles may not exceed $5,000.00.

Endorsements, acceptable to Landlord, evidencing the existence and amount of each liability insurance policy required hereunder and Evidence of Property Insurance Form, Acord 27, evidencing property insurance as required will be delivered to Landlord prior to delivery or possession of the Premises and ten days prior to each renewal date. Endorsements for each policy shall show that the Required Additional Insureds are included as additional insureds on liability policies (except employer's liability). The Evidence of Property Insurance Form will name Landlord as loss payee for property insurance as respects Landlord's interest in improvements and betterments. Further, the endorsements must include that for each policy whereby the insurer agrees not to cancel or non-renew the policy, or reduce the coverage below the limits required in this Lease, without at least thirty (30) days' prior notice to Landlord and Landlord's managing agent.

If Tenant fails to provide evidence of insurance required to be provided by Tenant hereunder, prior to commencement of the Term and thereafter during the Term, within ten (10) days following Landlord's request thereof, and ten (10) days prior to the expiration date of any such coverage, Landlord will be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant, plus an eighteen percent (18%) service charge, and payable upon written invoice thereof.

The limits of insurance required by this Lease, or as carried by Tenant, will not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent provided for under Paragraph 9.C below (Waiver of Claims; Waiver of Subrogation). Any deductibles selected by Tenant will be the sole responsibility of Tenant.

Landlord may, at its sole discretion, change the insurance policy limits and forms which are required to be provided by Tenant; such changes will be made to conform to common insurance requirements for similar properties in similar geographic locations. Landlord will not change required insurance limits or forms more often than once per calendar year.

B.         Landlord's Insurance. Landlord agrees to maintain during the Term "all-risk" insurance on the Premises at replacement cost, excluding foundations and excluding the items which Tenant is required to insure under Paragraph 9A(i).

C.         Waiver of Claims; Waiver of Subrogation. To the extent permitted by law, Tenant waives all claims it may have against Landlord, its managing agents or employees for damage to property sustained by Tenant or any occupant or other person resulting from the Premises any part of said Premises becoming out of repair or resulting from any accident within or adjacent to the Premises or resulting directly or indirectly from any act or omission of Landlord or any occupant of the Premises or any other person while on the Premises to the extent such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry, regardless of cause or origin. The waiver in this grammatical paragraph will also apply as to the amount of any deductible under Tenant's insurance. Particularly, but not in limitation of the foregoing sentence, all property belonging to Tenant or any occupant of the Premises that is in the Premises will be there at the risk of Tenant or other person only, and Landlord or its agents or employees will not be liable for damage to or theft of or misappropriation of such property, nor for any damage to property resulting from fire, explosion, flooding of basements or other subsurface areas, falling plaster, steam, gas, electricity, snow, water or rain which may leak from any part of the Premises or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place or resulting from dampness or any other cause whatsoever, nor for any latent defect in the Premises, to the extent that such claim is or would be covered by any insurance that Tenant is required under Paragraph 9A(i) to carry. Tenant will give prompt notice to Landlord in accordance with Paragraph 10 in case of fire or accidents in the Premises or of defects therein or in the fixtures or equipment.

Tenant agrees to include in the insurance policies which Tenant is required by this Lease to carry in accordance with Paragraphs 9A(i) and 9A(ii), to the fullest extent permitted by law, a waiver of subrogation against Landlord and Landlord's managing agent.

Landlord will not be required to maintain insurance against thefts within the Premises or any complex within which the Premises is located.

10.         FIRE AND CASUALTY DAMAGE.

A.         Major Casualty. If the building on the Premises should be damaged or destroyed by fire or other peril, Tenant shall immediately give written notice thereof to Landlord. If the building on the Premises is totally or substantially destroyed by any peril covered by the insurance to be provided by Landlord under Paragraph 9A, above, or if it should be so damaged thereby that, in Landlord's estimation, rebuilding or repairs cannot be completed within two hundred seventy (270) days after the date of such damage, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease, effective upon the date of the occurrence of such damage. Notwithstanding such termination, Tenant shall remain liable to pay Landlord all rent and other sums accrued under this Lease prior to such termination plus prorata rent for any partial occupancy between the date of the casualty and the date of the termination notice or Tenant's vacating of the Premises, whichever is later.

B.         Lesser Casualty. If the building on the Premises is damaged by any peril covered by the insurance to be provided by Landlord under Paragraph 9A above, and in Landlord's estimation, rebuilding or repairs can be substantially completed with the available insurance proceeds within two hundred seventy (270) days after the date of such damage, Landlord may elect to terminate this Lease without further liability by giving written notice thereof to Tenant within sixty (60) days after the occurrence of such casualty. If Landlord fails to give such notice, this Lease shall not terminate, and Landlord shall restore the Premises to substantially its previous condition, except that Landlord shall not be required to rebuild, repair or replace any part of the partitions, fixtures, additions and other improvements that may have been constructed, erected or installed in, or about the Premises by or for the benefit of Tenant. If such repairs and rebuilding have not been substantially completed within two hundred and seventy (270) days after the date of such damage, Tenant, as Tenant's sole and exclusive remedy, may terminate this Lease by delivering written notice of termination to Landlord in which event the future accruing rights and obligations of the parties hereunder shall cease and terminate.

C.         Insufficient Insurance Proceeds. Notwithstanding anything herein to the contrary, in the event the holder of any indebtedness secured by a mortgage or deed of trust covering the Premises requires that the insurance proceeds be applied to such indebtedness, or the insurance proceeds for any reason are insufficient to rebuild, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within sixty (60) days after the event of the casualty (or within fifteen 15 days after such mortgagee makes requirement known to Landlord), whereupon all future accruing rights and obligations of the parties hereunder shall cease and terminate.

11.    LIABILITY AND INDEMNIFICATION. Tenant hereby agrees to indemnify, defend and hold harmless Landlord, its agents, employees, officers, directors, shareholders, beneficiaries, representatives, Mortgagees, affiliates and related parties, from and against any and all losses, damages, judgments, liabilities, penalties, fines, debts, actions, suits, proceedings, causes of action, costs, fees and expenses, including, without limitation, costs of court, defense costs and reasonable attorneys' fees (“Claims or Losses”) suffered or incurred by Landlord or any such indemnified party, or asserted or claimed against Landlord or any such indemnified party arising out of or in connection with the use, occupancy, operation or improvement of the Premises, from whatever source or for whatever reason, including claims of personal injury, bodily injury (including death) and property damage. THE FOREGOING INDEMNITY SHALL APPLY WHETHER OR NOT SUCH CLAIM OR LOSS IS BASED OR ALLEGED TO BE BASED ON A NEGLIGENT ACT OR OMISSION (INCLUDING, WITHOUT LIMITATION, FAILURE OR REFUSAL TO ENFORCE OR MONITOR TENANT’S COMPLIANCE WITH ANY TERM OF THIS LEASE) BY LANDLORD OR ANY OF THE PARTIES INDEMNIFIED HEREUNDER. Notwithstanding the foregoing, however, it is agreed that (A) as to Landlord, this indemnity shall not apply to Claims or Losses arising solely from (i) the active negligence (as opposed to alleged negligence by omission or inaction) of any agent, employee or representative of Landlord while physically on the Premises acting in the course and scope of his or her agency or employment, or (ii) Landlord’s gross negligent failure to make repairs that are Landlord’s responsibility pursuant to Paragraph 4 hereof, following receipt of notice from Tenant identifying such repairs, and (B) as to any other indemnified party, Tenant’s indemnity of that party shall not apply to that party's own affirmative acts of negligence or intentional misconduct while such party is physically on the Premises. Notwithstanding anything to the contrary or apparent contrary elsewhere herein, Tenant's indemnity in this Paragraph shall, as to events or occurrences prior to the later of termination of this Lease or Tenant's vacating of the Premises, survive expiration or termination of this Lease for any reason.

12.         USE. The Premises shall be used only for the Permitted Use as defined in the Basic Lease Terms. Tenant shall, at its own cost and expense, obtain any and all licenses and permits necessary for such use. Tenant shall comply with all governmental orders and directives for the correction, prevention and abatement of nuisances in or upon, or connected with, the Premises, all at Tenant's sole expense. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take any other action that would constitute a nuisance or would disturb, unreasonably interfere with, or endanger Landlord, or any owners or occupants of adjacent or nearby property, or the contents of the Premises. Tenant shall further be responsible and liable for the safe and proper operation of any and all equipment within the Premises, and shall be responsible for any training necessary for said safe and proper operation of such equipment. Any liabilities resulting from the unsafe operation of said equipment shall be the sole responsibility of Tenant. Tenant shall indemnify, hold harmless and defend Landlord in any and all claims resulting from the use of this or any other type of equipment on the Premises, without limitation of any other indemnity contained in this Lease.

13.         INSPECTION. Landlord and Landlord's agents and representatives shall have the right for its own protection, but not the obligation, to enter the Premises at any reasonable time during business hours, to inspect the Premises and to make such repairs as may be required or permitted pursuant to this Lease. During the period that is six (6) months prior to the end of the Term hereof and at any time Tenant is in default, Landlord and Landlord's representatives may enter the Premises during business hours for the purpose of showing the Premises, and shall have the right to erect a suitable sign on the Premises stating the Premises are available for lease. Landlord may erect a sign at any time offering the Premises for sale (provided that any sale is subject to the remaining Term of this Lease and any purchase option or right of refusal, if any, contained in this Lease). Tenant shall notify Landlord in writing at least thirty (30) days prior to vacating the Premises and shall arrange to meet with Landlord for a joint inspection of the Premises prior to vacating. If Tenant fails to give such notice or to arrange for such inspection, then Landlord's inspection of the Premises shall be deemed correct for the purpose of determining Tenant's responsibility for repairs and restoration of the Premises.

14.         ASSIGNMENT AND SUBLETTING.

A.         No Assignment or Subletting. Tenant shall not have the right to assign, sublet, transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublessee and transferees being hereinafter referred to as "Transferees"), by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to persons other than Landlord by such Transferees in contravention of this Paragraph. Any excess consideration of any kind paid to Tenant (or any Tenant-related party) by any sublessee or assignee approved by Landlord hereunder, in excess of the rents (month by month in the case of a sublet or in a lump sum in case of an assignment) provided for herein, shall constitute additional rent due by Tenant to Landlord contemporaneously with receipt thereof by Tenant (or its related party). No assignment, subletting or other transfer, whether consented to by Landlord or not or permitted hereunder, shall ever relieve Tenant of its liability, which it agrees with be joint and several with the liability of any assignee and primary and continuing in the event of any sublease, for all obligations of "Tenant" hereunder. If an Event of Default occurs while the Premises or any part thereof are assigned or sublet, then Landlord, in addition to any other remedies herein provided, or provided by law, may collect directly from such Transferee all rents payable to Tenant and apply such rent against any sums due Landlord hereunder. No such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder. For the avoidance of doubt, any change of control of the ownership or voting control of Tenant or Tenant’s ultimate parent shall be deemed to be a transfer of this Lease requiring the prior written consent of Landlord.

B.         Assignment in Bankruptcy. If this Lease is assigned to any person or entity pursuant to the provision of the Bankruptcy Code, 11 U.S.C. §101 et seq. (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord.

C.         Deemed Assumption by Transferee in Bankruptcy; Assurance of Future Performance. Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument confirming such assumption, and shall provide Landlord with adequate assurance of such assignee's future performance in such form (including full cash-collateralization) as Landlord may specify.

15.         CONDEMNATION. If there shall be taken by exercise of the power of eminent domain during the Term of this Lease any part of the Premises, then Landlord may elect either to terminate this Lease and all future obligations of the parties hereunder, or to continue this Lease in effect. If Landlord elects to continue the Lease, the rental shall be reduced in pro‐portion to the area of the Premises so taken and Landlord shall repair any damage to the Premises or the building resulting from such tak‐ing. All sums awarded or agreed upon between Landlord and the condemning authority for the taking of the interest of Landlord or Tenant in the Premises, whether as damages or as compensation, shall be the property of Landlord, and Tenant hereby assigns to Landlord any right of Tenant therein or claim of Tenant thereto. If Landlord elects to terminate this Lease, rental shall be payable up to the date that possession is taken by the condemning authority, and Landlord will refund to Tenant any prepaid unaccrued rent less any sum then owing by Tenant to Landlord.

16.         HOLDOVER. If Tenant should remain in possession of the Premises after the expiration or termination of this Lease, without the execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to be occupy‐ing the Premises as a tenant‑at‑sufferance subject to all the cove‐nants and obligations of this Lease, and shall pay daily Base Rental equal to 150% of the amount of the sum of the daily Base Rental most recently in effect, for the entire holdover period (and shall continue to pay all other payments required hereunder in addition to such Base Rental). No holding over by Tenant after the Term of this Lease without the written consent of Landlord shall operate to extend the Lease for a longer period than one (1) month, and any holding over with the consent of Landlord in writing (unless a different term is specified therein) shall thereafter consti‐tute this Lease a lease from month to month.

17.         EXCLUSIVE COVENANT OF QUIET ENJOYMENT. Upon payment by Tenant of the rents provided for in this Lease, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall, subject to the terms and provisions of this Lease, peaceably and quietly hold and enjoy the Premises for the Term here‐by demised, against any and all interference therewith (i) by the affirmative acts of Landlord, its employees or agents, and (ii) against any person who may claim superior title to the Premises by, through or under Landlord, but not otherwise. Landlord shall under no circumstances be held responsible for restriction or disruption of access to the Premises or any part thereof from public streets caused by con‐struction work or other actions taken by or on behalf of governmental authorities, or for actions taken by other tenants (their employees, agents, visitors, contractors or invitees), or any other cause not entirely within Landlord's direct control, and same shall not constitute a constructive eviction of Tenant or give rise to any right or remedy of Tenant against Landlord of any nature or kind. This covenant of quiet enjoyment is in lieu of any covenant of quiet enjoyment provided or implied by law, and Tenant expressly waives any such other covenant of quiet enjoyment to the extent broader than the covenant contained in this Paragraph.

18.         EVENTS OF DEFAULT. The following events (herein individually referred to as an "Event of Default") each shall be deemed to be events of nonperformance by Tenant under this Lease:

A.         Payment Default. Tenant shall fail to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to Landlord required herein when due, and such failure shall continue for a period of five (5) days from the date such payment was due.

B.          Insolvency; Voluntary Proceedings; Etc. Tenant shall (i) become insolvent; (ii) admit in writing its inability to pay its debts; (iii) make a general assignment for the benefit of creditors; (iv) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property; or (v) take any action to authorize or in contemplation of any of the actions set forth above in this Paragraph.

C.         Involuntary Proceedings. Any case, proceeding or other action against Tenant shall be commenced seeking (i) to have an order for relief entered against it as a debtor or to adjudicate it as bankrupt or insolvent; (ii) reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii) appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (a) results in the entry of an order for relief against it which it is not fully stayed within seven (7) business days after the entry thereof, or (b) shall remain undismissed for a period of forty-five (45) days.

D.         Vacating of Premises or Removal of Property. Tenant shall (i) vacate all or a substantial portion of the Premises or (ii) fail to continuously operate its business at the Premises for the permitted use set forth herein, whether or not Tenant is in default of the rental payments due under this Lease, or remove or attempt to remove all or any material part of its equipment or machinery from the Premises prior to the last thirty (30) days of the Term hereof.

E.         Violation of Use Restrictions. Tenant shall violate any of the use restrictions herein.

F.         Hazardous Materials. Either (a) Tenant allows Hazardous Materials on the Premises that are not released into or on the Premises, but which are not allowed by the terms of this Lease, and such materials either (i) are not removed from the Premises and disposed of off-site in a lawful manner within ten (10) days after written notice or demand by Landlord on Tenant, or (ii) are allowed on the Premises after repeated previous occasions (three or more previous occasions) on which Landlord gave Tenant written notice to remove the same (whether or not they were removed on the prior occasions), or (b) any release of Hazardous Material in or upon the Premises or adjacent or nearby property is caused or allowed by Tenant and such contamination cannot be or is not cleaned up to the satisfaction of governmental authorities with jurisdiction and Landlord within fifteen (15) days after written notice from Landlord to Tenant.

G.         Legal Violations. Tenant violates any applicable legal requirement that is its responsibility to comply with herein to the extent that, as a result thereof, Landlord or its property management agent (if any) can be held liable for any fine, penalty, assessment, or enforcement action interfering with the operation of the Premises or Landlord’s other properties by or of any governmental authority or agency, or to the extent that any mortgage lienholder is entitled to accelerate the indebtedness secured by the Premises, and such violation is not fully remedied and cured by Tenant within ten (10) days after written notice thereof is given to Tenant by Landlord (if such consequences exist and notice is given by Landlord to Tenant under this paragraph G., rather than paragraph I. below, Landlord will specify in its notice to Tenant that notice is being given under this clause and shall specify the reason that the default by Tenant is of a nature covered by this paragraph).

H.         Failure to Obtain Lien Release. Tenant shall fail to discharge any lien placed upon the Premises the removal of which is Tenant’s responsibility under Paragraph 21 hereof within ten (10) days after any such lien or encumbrance is filed against the Premises.

I.         Failure to Comply With Other Covenants. Tenant shall fail to comply with any term, provision or covenant of this Lease (other than those listed above in this Paragraph 18), and shall not cure such failure within twenty (20) days after written notice thereof given by Landlord to Tenant.

19.         REMEDIES.

A.         Termination, Repossession, Discontinuance of Services. Upon each occurrence of an Event of Default, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand:

(1)         Terminate this Lease and hold Tenant liable for anticipatory breach damages and all past-due amounts called for hereunder; and/or

(2)         Enter upon and take possession of the Premises with or without terminating this Lease, and with or without judicial process; and/or

(3)         Discontinue supplying any one or more utility services to Tenant; and/or

(4)         Alter all locks and other security devices at the Premises with or without terminating this Lease, and pursue, at Landlord's option, one or more remedies pursuant to this Lease, Tenant hereby specifically waiving any state or federal law to the contrary.

In any such event, Tenant immediately shall deliver up the Premises to Landlord, and if Tenant fails so to do, Landlord, without waiving any other remedy it may have, may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying such Premises or any part thereof, without being liable for prosecution or any claim of damages therefor.

B.         Certain Damages Upon Termination. If Landlord terminates this Lease, at Landlord's option, Tenant shall be liable for and shall pay to Landlord, the sum of all rental and other payments owed to Landlord hereunder accrued to the date of such termination, plus any holdover rent due, plus, as damages, an amount equal to (1) the present value of the total rental and other payments owed hereunder for the remaining portion of the Term, calculated as if such Term expired on the date set forth in Paragraph 1, less (2) the then present actual net fair market rental value of the Premises for such period, taking into account costs of reletting, periods of vacancy prior to reletting, periods of vacancy for preparation of the Premises for occupancy by a new tenant, increases in base year expenses of Landlord, and other relevant market factors. Landlord may, at its option, elect to liquidate damages for lost rent as a result of such breach at sixty percent (60%) of the rent for the remainder of the stated Term.

C.         Right to Collect Deficiency if Lease Not Terminated. If Landlord repossesses the Premises without terminating the Lease, Tenant, at Landlord's option, shall be liable for and shall pay Landlord on demand all rental and other payments owed to Landlord hereunder, accrued to the date of such repossession, plus in a lump sum of accelerated rents all amounts required to be paid by Tenant to Landlord until the date of expiration of the Term as stated in Paragraph 1, diminished by all amounts actually received by Landlord through re-letting of the Premises during such remaining Term (but only to the extent of the rent herein reserved) or, to the extent such case goes to trial before the end of the Term, then the net fair market rental value of the Premises (as defined above) for the remainder of the stated Term for which no replacement lease has been executed. At Landlord's option, Landlord may collect the rental deficiencies periodically as they accrue, in lieu of accelerating rents. Actions to collect amounts due by Tenant to Landlord under this subparagraph may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of the Term.

D.         Other Damages. Upon an Event of Default, in addition to any sum provided to be paid herein, Tenant also shall be liable for and shall pay to Landlord (i) brokers' fees incurred by Landlord in connection with re-letting the whole or any part of the Premises; (ii) the costs of removing and storing Tenant's or other occupant's property; (iii) the costs of repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new lessee or lessees; and (iv) all costs and expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies. If either party hereto institutes any action or proceeding to enforce any provision hereof by reason of any alleged breach of any provision of this Lease, the prevailing party shall be entitled to receive from the losing party all reasonable attorney's fees and all court costs incurred in connection with such proceeding.

E.         Right to Change Locks. In the event that Landlord is entitled to change the locks at the Premises pursuant to any of the foregoing provisions, Tenant agrees that entry may be gained for that purpose through use of a duplicate or master key or any other peaceable means, that same may be conducted out of the presence of Tenant if Landlord so elects, that no notice shall be required to be posted by Landlord on any door to the Premises (or elsewhere) disclosing the reason for such action or any other information, and that Landlord shall not be obligated to provide a key to the changed lock to Tenant unless Tenant shall have first:

(1)         brought current all payments due to Landlord under this Lease; provided, however, that if Landlord has theretofore formally and perma‐nently repossessed the Premises by notice pursuant to the terms of this Lease, or has terminated this Lease by notice pursuant to the terms hereof, then Landlord shall be under no obligation to provide a key to the new lock(s) to Tenant regardless of Tenant's payment of past‑due rent or other past‑due amounts, damages, or any other payments or amounts of any nature or kind whatsoever;

(2)         fully cured and remedied to Tenant's satisfaction all other defaults of Tenant under this Lease (but if such defaults are not sub‐ject to cure, such as early abandonment or vacating of the Premises, then Landlord shall not be obligated to provide the new key to Tenant under any circumstances); and

(3)         given Landlord security and assur‐ance reasonably satisfactory to Landlord that Tenant intends to and is able to meet and comply with its future obligations under this Lease, both monetary and non‑monetary.

Landlord will, upon written request by Tenant, at Landlord's convenience and upon Tenant's execution and delivery of such waivers and indemnifications as Landlord may require, at Landlord's option either (i) escort Tenant or its specifically authorized employees or agents to the Premises to retrieve personal belongings and effects of Tenant's employees (as opposed to property which is an asset of Tenant), and property of Tenant that is not subject to the landlord's liens and security interests described in Paragraph 25, below, or (ii) obtain from Tenant a list of such property described in (i), above, and arrange for such items to be removed from the Premises and made available to Tenant at such place and at such time in or about the Premises or such other location as Landlord may designate; provided, however, that if Landlord elects option (ii), then Tenant shall be required to deliver to Landlord such waivers and indemnifications as Landlord may require in connection therewith, and pay in cash in advance to Landlord (A) the estimated costs that Landlord will incur in removing such property from the Premises and making same available to Tenant at the stip‐ulated location, and (B) all moving and/or storage charges theretofore incurred by Landlord with respect to such property.

F.         Late Charge. In the event Tenant fails to make any payment due hereunder when payment is due, to help defray the additional cost to Landlord for processing such late payments, Tenant shall pay to Landlord on demand a late charge in an amount equal to five percent (5%) of such installment; and the failure to pay such amount within ten (10) days after demand therefor shall be an additional Event of Default hereunder. The provision for such late charge shall be in addition to all of Landlord's other rights and remedies hereunder or at law and shall not be construed as liquidated damages or as limiting Landlord's remedies in any manner.

G.         Cumulative Remedies; No Implied Waiver. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Landlord, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Tenant and Landlord further agree that forbearance by Landlord to enforce its rights pursuant to the Lease at law or in equity, shall not be a waiver of Landlord's right to enforce one or more of its rights in connection with any subsequent default.

H.         Use or Disposition of Tenant's Property. If Landlord repossesses the Premises pursuant to the authority herein granted, then Landlord shall have the right to (i) keep in place and use, or (ii) remove and store, all of the furniture, fixtures and equipment at the Premises, including that which is owned by or leased to Tenant at all times prior to any foreclosure thereon by Landlord or repossession thereof by any other lessor thereof or third party having a lien thereon. Landlord also shall have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment and other property to any person ("Claimant") who presents to Landlord a copy of any instrument represented by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment or other property, without the necessity on the part of Landlord to inquire into the authenticity or legality of said instrument. The rights of Landlord herein stated shall be in addition to any and all other rights that Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable.

I.         All Sums Constitute Rent. Notwithstanding anything in this Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not expressly denominated as rent, shall constitute rent.

J.         Landlord Not Obligated to Other Parties. This is a contract under which applicable law excuses Landlord from accepting performance from (or rendering performance to) any person or entity other than Tenant.

K.       Landlord Default. If Landlord fails to perform any of its obligations hereunder within thirty (30) days after written notice from Tenant specifying such failure, Tenant's exclusive remedy shall be an action for damages. Unless and until Landlord fails to so cure any default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its possession of the Premises and not thereafter. The term "Landlord" shall mean only the owner, for the time being of the Premises, and in the event of the transfer by such owner of its interest in the Premises, such owner shall thereupon be released and discharged from all covenants and obligations of Landlord thereafter accruing, but such covenants and obligations shall be binding during the Term upon each new owner for the duration of such owner's ownership. Notwithstanding any other provision hereof, Landlord shall not have any personal liability hereunder.

20.         MORTGAGES. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or any ground lease, and all renewals, increases and rearrangements thereof, whether or not a novation of the secured debt may occur in connection therewith (herein, a “Mortgage”); provided, however, that if the holder of any Mortgage (a “Mortgagee”) elects to have Tenant's interest in this Lease superior to any such Mortgage, then by written notice to Tenant from the Mortgagee, this Lease shall be deemed superior to the lien created by that Mortgage. In the event of any foreclosure of any such lien or mortgage, Tenant agrees to attorn to the Mortgagee or other purchaser at foreclosure, upon demand. Notwithstanding anything to the contrary contained herein, Tenant agrees that this Lease shall be subordinate to any future Mortgage placed against the Premises, and that it will attorn to the future Mortgagee, only if the Mortgagee agrees with Tenant in a subordination, non-disturbance and attornment agreement (an “SNDA Agreement”), in the Mortgagee’s then standard form, that Tenant’s right to use and occupy the Premises under the terms of this Lease will not be deprived as a result of a termination or foreclosure of such Mortgage so long as Tenant is not then in default under this Lease; provided, however, that Tenant acknowledges and agrees that such SNDA Agreement may contain, among other terms and conditions required for obtaining such Mortgage (i) any provision (or the substantial equivalent thereof) contained in any previous SNDA Agreement executed by Tenant (or any predecessor Tenant hereunder), (ii) a provision requiring that notices of Landlord default be given to the Mortgagee and the Mortgagee allowed a reasonable time in addition to Landlord’s cure period hereunder to cure such default before Tenant shall be entitled to take its remedies hereunder or by law, (iii) a provision stating that the terms of the Mortgage govern over any conflicting provision of this Lease pertaining to the Mortgagee’s obligation to make insurance or condemnation proceeds available for reconstruction of any part of the Premises, (iv) provisions by which such Mortgagee or successor-in-interest upon foreclosure is agreed not to be bound by (a) any payment of rent or additional rent for more than one (1) month in advance, including prepayment in the nature of security for the performance by Tenant of its obligations under this Lease (unless actually received by such successor in interest), (b) any obligations of Landlord to construct improvements, (c) any amendment or modification of this Lease (or implied waiver of Tenant’s obligations) made without the written consent of such trustee or such beneficiary or such successor in interest, (d) any representations or defaults by any prior Landlord, and (e) any other matters that such Mortgagee is not directly responsible for causing, as such Mortgagee may specify, and/or (v) such other provisions and protections as such Mortgagee may request that are reasonably customary in the commercial mortgage lending community at the time. Tenant, at any time hereafter on demand by Landlord, shall promptly execute and deliver to Landlord, in any event within ten (10) days of such demand, an SNDA Agreement meeting the above criteria or in any other commercially reasonable form.

21.         MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind the interest of Landlord or Tenant in the Premises or to charge the rentals payable hereunder for any claim in favor of any person dealing with Tenant, including those who may furnish materials or perform labor for any construction or repairs. Tenant covenants and agrees that it will pay or cause to be paid all sums legally due and payable by it on account of any labor performed or materials furnished in connection with any work performed on the Premises and that it will save and hold Landlord harmless from any and all loss, cost or expense based on or arising out of asserted claims or liens against the leasehold estate or against the right, title and interest of Landlord in the Premises or under the terms of this Lease. Tenant agrees to give Landlord immediate written notice of the placing of any lien or encumbrance against the Premises, and to cause the release of such lien claim or filing claiming with respect to work done by, through or under Tenant or any occupant of the Premises immediately upon Landlord’s demand or prior to institution of any suit to foreclose such lien, whichever is sooner.

22.         COMPLIANCE WITH LAWS AND RESTRICTIONS. Tenant shall comply throughout the Term with all orders, ordinances, regulations and laws of the municipal corporation and other governmental authorities that are applicable to the Premises and/or Tenant's use of the Premises, whether requiring alterations or improvements of a capital nature or otherwise, and with all applicable deed and other restrictions; provided, however, that if a Uniform Mandatory Change (as hereinbelow defined) shall occur during the Term of this Lease, then (i) Tenant shall give Landlord prompt written notice of such Uniform Mandatory Change, (ii) Landlord will proceed with reasonable diligence after receipt of such notice to design, finance (at Landlord’s option), permit and construct or install the capital improvement required by the Uniform Mandatory Change, and (iii) from and after the date of Landlord’s substantial completion of the capital improvement work required by the Uniform Mandatory Change, the monthly Base Rental hereunder shall be automatically increased by an amount equal to the total cost of such capital improvement work incurred by Landlord divided by the number of months in the useful life of such improvement as reasonably determined by Landlord, but in any event not longer than the remaining useful life of the building for purposes of GAAP, or the actual practical remaining useful life if shorter. Landlord shall not be liable or responsible in any manner for reasonably necessary disruption to Tenant’s business operations at the Premises on account of the performance of the Uniform Mandatory Change, and under no circumstance shall any work by Landlord or its contractor(s) on any Uniform Mandatory Change ever give rise to an abatement of rent or a right on the part of Tenant to terminate this Lease. At Landlord’s option, Landlord may require that Tenant (after Landlord’s reasonable approval of plans therefor) make the alteration or improvement required by the Uniform Mandatory Change and reimburse Tenant for such work upon Tenant’s completion thereof in a good and workmanlike manner, in compliance with all laws, and lien free for the required mechanic’s or materialmen’s lien claim or filing period (but subject to the increase in Base Rental the same as provided above for the situation in which Landlord makes such alteration or improvement by its own contractors). For purposes hereof, a “Uniform Mandatory Change” means (A) a capital improvement that is required to be made to the Premises to comply with new legal requirement as to which compliance of the Premises is mandatory, if (B) the new legal requirement is of uniform applicability to all similar buildings in the same jurisdiction, and not a requirement that is peculiar to Tenant’s particular use, industry, products or operations. Notwithstanding the foregoing, however, upon receipt of a notice from Tenant that a Uniform Mandatory Change is required to the Premises, Landlord may contest the applicability of such law to the Premises by whatever means Landlord determines to be appropriate, and to whatever level of appeal, and only comply therewith upon final judgment adverse to Landlord’s position, so long as Tenant’s use and occupancy of the Premises for its operations consistent with the permitted use herein are not materially disrupted or interfered with during the pendancy of such protest or contest of such law by Landlord. Tenant shall further comply with any licensing or permitted requirements applicable to the operation of its specific business (“Business Licenses”), the cost and availability of which and requirements for which are not warranted or represented by Landlord in any respect. Tenant is responsible for having verified that the regulations and restrictions affecting the Premises permit its use and any other desired Permitted Use by Tenant. The Permitted Use shall be subject to any and all other specific restrictions on use stated elsewhere in this Lease, and all risk of obtaining Business Licenses and compliance with regulations and restrictions are Tenant’s sole risk.

23.         MISCELLANEOUS.

A.         Construction; Headings. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. The captions inserted in this Lease are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Lease, or any provision hereof, or in any way affect the interpretation of this Lease.

B.         Successors and Assigns. The terms, provisions and covenants and conditions contained in this Lease shall apply to, inure to the benefit of, and be binding upon, the parties hereto and upon their respective heirs, executors, personal representatives, legal representatives, successors and assigns, except as otherwise herein expressly provided. Landlord shall have the right to transfer and assign, in whole or in part, its rights and obligations in the building and property that are the subject of this Lease. Tenant agrees to furnish to Landlord, promptly upon demand, a corporate resolution, proof of due authorization by partners, or other appropriate documentation evidencing the due authorization of Tenant to enter into this Lease.

C.         Force Majeure. Landlord shall not be held responsible for delays in the performance of its obligations hereunder when caused by material shortages, acts of God, labor disputes or other events of force majeure.

D.         Tenant Estoppels. Upon request therefor, Tenant agrees to execute and deliver to Landlord, or any party designated by Landlord, within ten (10) business days, an Estoppel Certificate in the form attached hereto at Exhibit B. Exceptions to Landlord performance must be detailed in writing and attached to and made a part of the requested Estoppel Certificate within the same 10 business-day time period.

E.         Merger; Amendment. This Lease constitutes the entire understanding and agreement of Landlord and Tenant with respect to the subject matter of this Lease, and contains all of the covenants and agreements of Landlord and Tenant with respect thereto. Landlord and Tenant each acknowledge that no representations, inducements, promises or agreements, oral or written, have been made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not contained herein, and any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease are of no force or effect. This Lease may not be altered, changed or amended except by an instrument in writing signed by both parties hereto.

F.         Survival; Delivery Up of Possession at End of Term. All obligations of Tenant hereunder not fully performed as of the expiration or earlier termination of the Term of this Lease shall survive the expiration or earlier termination of the Term hereof, including, without limitation, all payment obligations with respect to taxes and insurance and all obligations concerning the condition and repair of the Premises. Upon the expiration or earlier termination of the Term hereof, and prior to Tenant vacating the Premises, Tenant shall pay to Landlord any amount reasonably estimated by Landlord as necessary to put the Premises, including, without limitation, all heating and air conditioning systems and equipment therein, in good condition and repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's obligation hereunder for real estate taxes and insurance premiums for the year in which the Lease expires or terminates. All such amounts shall be used and held by Landlord for payment of such obligations of Tenant hereunder, with Tenant being liable for any additional costs therefor upon demand by Landlord, or with any excess to be returned to Tenant after all such obligations have been determined and satisfied as the case may be. In the year that this Lease terminates, Landlord, in lieu of waiting until the close of the calendar year, in order to determine any excess additional rentals as set forth in Paragraph 2, has the option to charge Tenant for Tenant's proportionate share of the additional rentals set forth in Paragraph 2 based upon the previous year's expenses therefor plus ten percent (10%). Any Security Deposit held by Landlord shall be credited against the amount payable by Tenant under this Paragraph 23F if not otherwise utilized by Landlord to pay repair or other liabilities of Tenant.

G.         Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.

H.         Brokers. Tenant represents and warrants that it has dealt with no broker, agent or other person in connection with this transaction other than Landlord's Broker specified in the Basic Lease Terms, if any, and Tenant's Broker specified in the Basic Lease Terms, if any (collectively, the "Brokers"), and Tenant agrees to indemnify and hold harmless Landlord from and against any claims by any broker, agent or other person (other than Brokers) claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction.

I.         Identity of Parties' Representatives. If and when included within the term "Landlord," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. If and when included within the term "Tenant," as used in this instrument, there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of a notice specifying some individual at some specific address within the continental United States for the receipt of notices and payments to Tenant. All parties included within the terms "Landlord" and "Tenant," respectively shall be bound by notices given in accordance with the provisions of Paragraph 24 hereof to the same effect as if each had received such notice.

J.         Governing Law. This Lease shall be enforced, construed and interpreted under the laws of the State of Texas.

K.         Time of Essence. Time is of the essence in all matters of performance by each of the parties hereto; and all due dates, time schedules, and conditions precedent to exercising a right shall be strictly adhered to without delay except where otherwise expressly provided.

L.         Financial Information. Tenant shall at any time and from time to time during the Term of the Lease, within fifteen (15) days of written request by Landlord, deliver to Landlord such financial information concerning Tenant and Tenant’s business operations as may be reasonably requested by Landlord; provided, however, that Tenant shall have no obligation to provide any such information as to Tenant, as applicable, so long as (i) the Tenant is a company whose shares are traded on the NYSE, AMEX or NASDAQ stock exchange, and (ii) current financial statements of Tenant (consolidated only with the relevant financial information of its controlled subsidiaries as required by GAAP), audited and certified by an independent certified public accounting firm, are posted on “EDGAR,” the “Home Page” of such Tenant, or other electronic resource that is available, without charge, to the general public (but if such posting is other than on EDGAR, Tenant shall promptly, within the above 15-day period, respond to Landlord’s request hereunder for financial information by providing written notice to Landlord of the Home Page or public website for Tenant on which such information exists and from which it may be retrieved without charge). The relief of Tenant from the obligation to provide information pursuant to the foregoing are intended to and shall apply independently to Tenant, such that Tenant’s obligations to deliver such information continues as to Tenant only if one of them, but not both, qualifies for the foregoing exemption. Each party who is either primarily, jointly and severally, or even secondarily liable on this Lease, for example, prior party’s who signed or assumed this Lease as “Tenant” who may no longer occupy the Premises, are obligated with regard to provision of this information the same as “Tenant” for purposes hereof, but are entitled to the same exemption for public companies as provided above. If Tenant is required to but still fails to provide such information when required, then, without limiting any other remedy that Landlord may have for such failure, Landlord may thereupon declare an Event of Default by reason thereof. For purposes hereof, “EDGAR” means the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system, and any successor system that is available to the public without charge, and “Home Page” means the internet website home page of Tenant and any successor equivalent electronic site available to the public without charge.

24.         NOTICES. Any notice, communication, request, reply, or advice (hereinafter severally and collectively called "notice") provided for or permitted to be given, made, or accepted by either party to the other pursuant to this Lease must be in writing, and must, unless otherwise in this Lease expressly provided, be given or be served either (i) by depositing the same in the United States mail, postage prepaid, addressed to the party to be notified, by certified mail with return receipt requested, (ii) by delivering the same by hand delivery or private courier service to the notice address of such party, addressed to the party to be notified, or (iii) transmitted by facsimile (telecopy) transmission at the then-effective notice telecopy number for the party if a copy of such notice is sent by U.S. First-Class mail to the party, postage prepaid and properly addressed, no later than the next postal business day after the telecopy notice is sent. Notice deposited in the mail in the manner hereinabove described shall be deemed given and received for all purposes hereof, unless otherwise stated in this Lease, on the third (3^rd) postal business day after it is deposited in the care or custody of the United States Postal Service, or upon actual receipt at the addressee’s effective notice address, whichever is earlier (actual receipt being deemed the date of first attempted delivery if the first attempted delivery is not successful). Notice given by telecopy is deemed given and received only if followed by mail notice as described above, and only upon electronic confirmation by the sender’s telecopy equipment that the notice was successfully transmitted; provided, however, that notice given by telecopy after 6:00 p.m. on a business day, or on a non-business day (Saturday, Sunday or holiday) is not deemed given until the next following business day. Notice given in any other manner shall be effective only if and when delivered at the designated notice address of the party to be notified (if not left with a receptionist at such address, then left in a secure location reasonably thought to be a place where after-hours deliveries will be found upon opening for business at such address the next following business day – but not left in a building lobby of a multi-tenant building in which the address of the recipient is a particular suite), addressed to the appropriate person as herein specified. The initial notice addresses of the parties for purposes of this Lease are as set forth in the Basic Lease Terms. The parties hereto and their respective heirs, successors, legal representatives, and assigns, shall have the right from time to time and at any time to change their respective notice addresses for purposes hereof to any address within the continental United States, by giving at least fifteen (15) days’ prior written notice to the other party delivered in compliance with this Paragraph. Notwithstanding the foregoing, all rent and other payments required to be made by Tenant to Landlord hereunder shall be payable to Landlord at the address for Landlord set forth herein or at such other address as Landlord may specify from time to time by written notice delivered in accordance herewith. Tenant's obligation to pay rent and any other amounts to Landlord under the terms of this Lease shall not be deemed satisfied until such rent and other amounts have been actually received by Landlord.

25.         LANDLORD’S LIEN. In consideration of the mutual benefits arising under this Lease, Tenant herein grants to Landlord a lien and security interest on Tenant's furniture, equipment, machinery and furnishings now or hereafter placed in or upon the Premises and such property shall be and remain subject to such lien and security interest of Landlord for payment of all rental and other sums agreed to be paid by Tenant herein. The provisions of this paragraph relating to such lien and security interest shall constitute a security agreement under the Texas Uniform Commercial Code so that Landlord shall have and may enforce a security interest on such property of Tenant. Tenant, as debtor, agree to execute such financing statement or statements as Landlord may now or hereafter reasonably request in order that such security interest or interests may be perfected pursuant to the Uniform Commercial Code, or Landlord may make such filing without Tenant’s signature if Tenant’s signature is not required by the law of the jurisdiction applicable to the filing. Landlord, as secured party, shall be entitled to all of the rights and remedies afforded a secured party under the Texas Uniform Commercial Code in addition to and cumulative of the landlord's liens and rights provided by applicable laws or by the other terms and provisions of this Lease. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord (or Landlord may file without Tenant’s signature if allowed in the applicable jurisdiction) a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provision of the Uniform Commercial Code (or corresponding state statute or statutes) in force in the state in which the Premises is located, as well as any other state the laws of which Landlord may at any time consider to be applicable.

26.         HAZARDOUS MATERIALS.

A.         Hazardous Materials Use Restricted; Permitted Materials. Tenant shall not use the Premises for the generation, storage (above or below ground) or disposal of any Hazardous Material (as hereinbelow defined), except for storage of Permitted Materials (as hereinbelow defined), and shall remain in compliance with all requirements of Environmental Law (as defined herein), including, without limitation, requirements, orders and regulations of the Texas Commission on Environmental Quality and the Environmental Protection Agency. “Hazardous Materials” mean all substances regulated by any Environmental Law, and shall include, but is not limited to (i) asbestos, (ii) petroleum, (iii) any explosive, toxic and radioactive materials, wastes or substances, or (iv) any substances defined as “hazardous substances” or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42. U.S.C. §9601, et seq., the Hazardous Materials Transportation Act (49 U.S.C. §1802), as amended, the Resource Conservation and Recovery Act (42 U.S.C. §6901), as amended, or any other Environmental Law. “Environmental Laws” means the foregoing named statutes and every other federal, state or local law regulating the generation, disposal or release into the environment of materials or substances deemed hazardous to human health, wildlife and/or the environment. For purposes hereof, the term “Permitted Materials” means the following Hazardous Materials:

(1)         the following items used on the Premises to the extent the same are used as an incidental part of the primary business of Tenant conducted on the Premises: (i) cleaners and cleaning supplies of a household nature; and (ii) office supplies (such as, but not limited to, toner cartridges, white-out and similar items); and

(2)         Hazardous Materials kept and used on the Premises as reasonably necessary and convenient for the conduct of the Permitted Use.

B.         Use of Permitted Materials. All such Permitted Materials shall be used and stored on the Premises only in compliance with all applicable laws and regulations pertaining thereto (including Environmental Laws), and in the manner recommended by the product manufacturers or industry experts to reasonably minimize the possibility of release (“Recommended Practices”), and shall be disposed of only off the Premises (in compliance with all applicable laws and regulations applicable thereto). If Landlord believes Tenant to be in violation of Recommended Practices in connection with its handling or use of Permitted Materials based on review by and written recommendations of a third-party consultant engaged by Landlord, but has no reason to believe Tenant is in violation of Environmental Laws in regard to such handling or use thereof, Landlord shall (if it desires to press the issue) give Tenant written notice thereof and a copy of such third-party consultant’s recommendation, and Tenant shall, within ten (10) days thereafter if it desires to contest such finding, dispute such finding by submitting to Landlord a written response from a third party consultant retained by Tenant indicating how and why it disputes the findings of Landlord’s consultant regarding Recommended Practices. If Tenant does not timely so contest such finding by Landlord, then Tenant will comply with and conform to (as a minimum) the Recommended Practices as indicated by Landlord’s consultant. If Tenant timely so contests Landlord’s notice and finding, then a third consultant (who has not done business with Landlord and its affiliates within the past 180 days) shall be selected by Landlord and upon rendering of a decision by such third consultant, that decision shall be binding in terms of the Recommended Practices at issue and Tenant will promptly comply therewith after receipt of such third consultant’s written report. Tenant shall not be in violation of this Lease simply by reason of an allegation of violation of Recommended Practices unless and until a finding binding on Tenant is rendered pursuant to the above process (including Tenant’s deemed waiver of findings of Landlord’s consultant) and Tenant fails to promptly comply with such binding finding, but nothing in Tenant’s compliance with Recommended Practices shall ever excuse any actual violation by Tenant of Environmental Laws. Nothing herein shall impede Landlord’s right to immediately proceed with injunctive action to prevent an imminent threat of contamination of the Premises with Hazardous Materials without Landlord being obligated to await any determination of Recommended Practices.

C.         Limitations on Certain Specific Operations. Notwithstanding the foregoing or any other provision of this Lease, however (i) under no circumstances shall Tenant ever install underground storage tanks on, in, upon or within any part of the Premises, and (ii) in connection with any assignment or subletting by Tenant that requires Landlord’s consent under this Lease (any assignment or subletting not requiring such consent shall be on the condition that such assignee or sublessee comply with this provision as written), Tenant must deliver to Landlord, with its request for Landlord approval of such subletting or assignment transaction, the types and maximum quantities of Hazardous Materials that such Tenant will desire to be allowed to have on the Premises (except those of the types specified in clauses (i) and (iii) of paragraph A.(1), above, and Landlord may withhold its approval of such assignment or subletting transaction in its absolute discretion if the types or quantities of Hazardous Materials involved in the business of the proposed sublessee or assignee pose, in Landlord’s good faith judgment, a materially greater exposure to environmental risk than the activities that previously were (or continue to be) conducted by Tenant (or its Permitted Transferees) at the Premises.

D.         Tenant Use of Other Hazardous Materials. In addition, Landlord and Tenant agree that Hazardous Materials other than the Permitted Materials may be kept and used (but not disposed of, released or leaked) upon the Premises only if such additional Hazardous Materials are given the written approval of Landlord, which approval shall be deemed to be provided if Landlord does not object in writing within ten (10) business days of Tenant’s written request for approval accompanied by any applicable material safety data sheets regarding said Hazardous Material as well as a written description of the maximum amount of such substance to be brought upon or into the Premises and the common and recognized chemical name of such Hazardous Material and the reason for Tenant needing to store such Hazardous Materials that are not Permitted Materials (but Landlord’s approval shall only extend to the maximum anticipated quantity referenced in Tenant’s request for approval). Landlord’s approval of use or storage by Tenant of additional Hazardous Materials will not be unreasonably withheld if, in Landlord’s good faith judgment, the nature or quantity of new Hazardous Materials proposed to be brought, stored or used on the Premises do not materially change the environmental risks and exposures of Landlord or the Premises from that contemplated by the types and quantities of Hazardous Materials identified as Permitted Materials herein. If the nature and extent of environmental exposure is materially different, then, among Landlord’s other conditions or qualifications to approval and right to deny approval, Landlord may impose a requirement for pollution liability insurance coverages in form acceptable to Landlord in its sole and exclusive judgment.

E.         Tenant Breaches; Indemnity. If Tenant breaches the obligations set forth in this Paragraph 26, or if the presence of Hazardous Material in the Premises occurs by reason of Tenant’s use or any act or omission of Tenant, its employees, agents, contractors, invitees, sublessees (as permitted herein) or affiliates, or if contamination of the Premises by Hazardous Material otherwise occurs from any source or for any reason other than (i) contamination of the Premises existing prior to the Commencement Date hereof not caused by Tenant, (ii) contamination of the Premises by Hazardous Material brought onto the Premises by Landlord (or its employees, agents, contractors or affiliates) after the date hereof, or (iii) contamination of the Premises by actions of a third party for whom Tenant is not otherwise responsible under this sentence and Tenant took all reasonable precautions and gave Landlord prompt notice of any threat of contamination from a third party that comes to its attention during the Term hereof, then Tenant shall be strictly liable to Landlord for any contamination or legal violation arising therefrom, and shall indemnify, defend and hold harmless Landlord, its partners, and its and their respective agents, employees, shareholders, directors, officers and affiliates, from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including, without limitation, diminution in value of the Premises, attorney’s fees and costs of suit or defense of claims, consultant fees and expert fees, which arise during or after the Term of this Lease as a result of such Hazardous Material being present upon, released upon or within or released from the Premises from such sources and causes for which Tenant is liable hereunder, REGARDLESS OF WHETHER THE CAUSE OF SUCH RELEASE IS, IN WHOLE OR IN PART, THE NEGLIGENCE OF LANDLORD, ITS AGENTS, EMPLOYEES, SERVANTS OR OTHERS FOR WHOSE ACTS IT MIGHT OTHERWISE LEGALLY BE LIABLE. This indemnification of Landlord by Tenant shall survive expiration or termination of this Lease and includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in, on or under the Premises. Without limiting the foregoing, if the presence of any Hazardous Material caused or permitted by Tenant results in any contamination of the Premises, Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the introduction of any such Hazardous Material; provided that Landlord's approval of such actions shall first be obtained.

27.         NO LANDLORD OBLIGATION TO PROVIDE SECURITY.

A.         Release and Indemnity. Neither Landlord nor its property management agent shall have any liability to Tenant or any third party whomsoever, including, without limitation, Tenant's employees, offi‐cers, agents, representatives, contractors, customers, invitees or licensees, for damage, injury or loss to persons or prop‐erty resulting from criminal activ‐ity occurring upon the Premises, or ad‐jacent thereto, whether such crimi‐nal activity is by other tenants, their em‐ployees, agents, officers, representa‐tives, customers, invitees, licensees, con‐tractors or others, or is by any third parties whomsoever. Tenant shall fully insure itself, as it may deem appropri‐ate, to protect itself from claims for any such possible injury, loss or damage to persons or property resulting from crim‐inal activity, including claims as‐serted by its employees, agents, officers, representatives, customers, invitees, licensees and contractors. Tenant shall indemnify, defend and hold harmless Landlord and its property management agent from and against any claims for damage, loss or injury to persons or property as‐serted by Tenant's employees, agents, officers, representatives, customers, in‐vitees, licensees or contractors resulting from any such criminal activity, WHETHER BASED ON ALLEGED NEGLIGENCE OF LANDLORD OR OTHERWISE.

B.         Tenant's Rights to Provide Security. Subject to Landlord's prior written approval, which shall not be unreasonably withheld, Tenant may at its cost take whatever precautions may be necessary in, about and around the Premises to protect its employees, officers, agents, representatives, customers, visitors, contractors, suppliers, invitees and licensees from criminal activity when on the Premises, or in the vicinity thereof, but nothing herein shall be deemed or construed as an undertaking or obligation enforceable against Tenant by any such third party. Tenant shall be responsible for informing itself as to the risk of crime from time to time on and in the vicinity of the Premises and Tenant shall not rely on Landlord to obtain, monitor or disseminate such crime information. Any dissemination of crime information by Landlord or its management agent shall be without obligation or liability on the part of Landlord or its management agent to do so in the future, and neither Landlord nor its management agent shall have liability or responsibility for the accuracy or completeness of any such information as the parties understand and acknowledge that such information shall be from sources the reliability of which Landlord does not undertake to verify or investigate. Tenant is in an equal position to Landlord in terms of its ability to investigate or obtain further verification of the facts surrounding any particular crime reported by Landlord or otherwise coming to the attention of Tenant.

28.         INDEPENDENT OBLIGATIONS; WAIVER. TENANT HEREBY AGREES, AS A MATERIAL PART OF THE CONSIDERATION FOR LANDLORD'S ENTERING INTO THIS LEASE, THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT (OR ANY OF TENANT'S EMPLOYEES OR AGENTS) REGARDING THE CONDITION OF THE PREMISES OR ANY PART THEREOF, EITHER EXPRESS OR IMPLIED, AND LANDLORD HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY (INCLUDING ANY IMPLIED WARRANTY) THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED USE THEREOF. TENANT AGREES THAT TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, BUT THAT TENANT WILL CONTINUE TO PAY RENT WHEN DUE HEREUNDER, WITHOUT ABATEMENT, SET‑OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH OR ALLEGED BREACH BY LANDLORD OF ANY OF ITS EXPRESS OBLIGATIONS UNDER‐TAKEN IN THIS LEASE.

29.         NO MEMORANDUM OF LEASE UNLESS REQUIRED BY LANDLORD. Tenant agrees, if so requested by Landlord, at any time to execute a Memorandum of Lease in recordable form setting forth the names of the parties, the Term of the Lease (stating declaration of commencement of the Term), and the description of the Premises, which Landlord may record in order to give record notice to third parties of this Lease. Except at Landlord's request pursuant hereto, Tenant shall never file in the Real Property Records or other public records of the county in which the Premises are located any memorandum, affidavit, notation or evidence of this Lease, and violation of this covenant by Tenant shall be an Event of Default which is not subject to any requirement of notice from Landlord or opportunity of Tenant to cure the same before Landlord pursues its remedies.

30.         ABSOLUTE LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything to the contrary or apparent contrary in this Lease, Tenant specifically agrees to look solely to Landlord's interest in the Premises for the recovery of any judgment from Landlord, it being agreed that Landlord shall never be personally liable for any such judgment. Tenant hereby expressly waives any right to recover for any claims against Landlord to the extent not recoverable from Landlord's interest in the Premises, WHETHER BASED ON LANDLORD'S ALLEGED NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE. The foregoing is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain in‐junctive relief against Landlord or Landlord's successors in interest, or any other action not involving the personal liability of Landlord to respond in monetary damages from assets other than Landlord's interest in the Premises or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.

[END OF PAGE, SIGNATURES COMMENCE ON FOLLOWING PAGE]

NOTICE: NO PERSON OTHER THAN THE INDIVIDUAL SIGNING BELOW AS THE AUTHORIZED REPRESENTATIVE OF LANDLORD MAY BIND LANDLORD TO ANY AGREEMENT WHATSOEVER, AND ANY ORAL OR VERBAL REPRESENTATIONS, STATEMENTS, PROMISES OR AGREE‐MENTS OF ANY OTHER PERSON (REGARDLESS OF WHETHER PURPORTING TO REPRESENT OR APPARENTLY REPRESENTING LANDLORD) SHALL NOT BE BINDING ON LANDLORD UNLESS EXPRESSLY CONTAINED IN THIS LEASE.

IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS LEASE ON THE DATES SET FORTH BELOW, TO BE EFFECTIVE AS OF THE EFFECTIVE DATE OF THIS LEASE.

EXECUTED BY LANDLORD, as of the Effective Date.

OAK PROPERTY GROUP                                    

By: Tidal Power Group, LLC, its Manager

By: /s/ Monty Charles Janak                                                                           

Monty Charles Janak, Manager

By: /s/ Marty Alan Janak                                                                                  

Marty Alan Janak, Manager

By: /s/ Amy Marie Janak Pugh                                                                          

Amy Marie Janak Pugh, Manager

EXECUTED BY TENANT, as of the Effective Date.

FRONT LINE POWER CONSTRUCTION, LLC

By: / s/ William J. Clough                                                                                          

Print: William J. Clough

Title: Executive Chairman & CLO

EXHIBIT A

Description of Premises

DALTON INVESTMENTS INDUSTRIAL COMPLEX ON 288 (A0560) BLK 1 LOT 3, Brazoria County, Texas, Tax Geographic ID: 3105-0001-003

EXHIBIT B

Form of Estoppel Certificate

Date: ___________________

Landlord: _____________________________

Tenant: _______________________________

Premises:         As stated in Industrial Triple Net Lease dated ___________________ between Landlord and Tenant

Addressee: ___________________________________

Tenant hereby certifies to Addressee as follows:

1.         Tenant understands and expects that Addressee is relying on the representations in this certificate.

2.         Tenant has accepted and is in possession of the Premises.

3.         All required improvements have been completed to the satisfaction of Tenant.

4.         The Lease term began on ___________________, and the termination date of the present term of the Lease, excluding unexercised renewal terms, is ___________________. Tenant has not sublet all or any portion of the Premises to any sublessee and has not assigned, transferred or encumbered any of its rights or interests under the Lease.

5.         Tenant has paid a security deposit in the amount of $_____________ to Landlord.

6.         The current monthly base rent is $_____________. Rent is currently paid through ___________________, and the next payment is due on ___________________. No rent has been paid more than thirty days in advance of its due date under the Lease.

7.         Tenant, as of this date, has no claim of offset against the rent.

8.         The Lease is valid, enforceable, and unmodified. The Lease represents the entire agreement between Landlord and Tenant with respect to the Premises and the land on which the Premises are situated.

9.         Except as provided by the Lease, Tenant has no outstanding options or rights to renew or extend the term of the Lease. Except as provided by the Lease, Tenant has no outstanding expansion options, other options, rights of first refusal or rights of first offer to lease or purchase with respect to all or any part of the Premises.

10.         To the best of Tenant’s knowledge, neither Landlord nor Tenant is in default in the performance of the Lease.

TENANT:

By:_________________________________

Its: _________________________________

Exhibit 99.11

CREDIT AGREEMENT

dated as of November 17, 2021

by and among

ORBITAL ENERGY GROUP, INC.

as Parent,

FRONT LINE POWER CONSTRUCTION, LLC and

as Borrower,

the other entities party hereto as Guarantors,

THE VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO,

and

ALTER DOMUS (US) LLC,
as Administrative Agent and Collateral Agent

ARTICLE I DEFINITIONS AND INTERPRETATION         1

Section 1.01         Definitions         1

Section 1.02         Accounting and Other Terms         36

Section 1.03         Construction         36

Section 1.04         Time References         37

ARTICLE II LOANS         38

Section 2.01         Term Loans         38

Section 2.02         [Reserved]         39

Section 2.03         [Reserved         39

Section 2.04         Pro Rata Shares; Availability of Funds         39

Section 2.05         Use of Proceeds         39

Section 2.06         Evidence of Debt; Register; Lenders’ Books and Records; Notes         40

Section 2.07         Interest         40

Section 2.08         Conversion/Continuation         42

Section 2.09         Default Interest         42

Section 2.10         Fees         43

Section 2.11         Repayments of Loans and Commitment Reductions         43

Section 2.12         Voluntary Prepayments; Call Protection         43

Section 2.13         Mandatory Prepayments         45

Section 2.14         Application of Prepayments/Reductions         47

Section 2.15         General Provisions Regarding Payments         48

Section 2.16         Ratable Sharing         50

Section 2.17         Making or Maintaining LIBOR Rate Loans         50

Section 2.18         Increased Costs         52

Section 2.19         Taxes; Withholding, etc.         53

Section 2.20         Obligation to Mitigate         56

Section 2.21         [Reserved]         57

Section 2.22         Removal or Replacement of a Lender         57

Section 2.23         Alternate Rate of Interest         58

ARTICLE III CONDITIONS PRECEDENT         62

Section 3.01         Closing Date         62

ARTICLE IV REPRESENTATIONS AND WARRANTIES         65

Section 4.01         Organization; Requisite Power and Authority; Qualification         65

Section 4.02         Capital Stock and Ownership         66

Section 4.03         Due Authorization         66

Section 4.04         No Conflict         66

Section 4.05         Governmental Consents         66

Section 4.06         Binding Obligation         67

Section 4.07         Historical Financial Statements         67

Section 4.08         Projections         67

Section 4.09         No Material Adverse Effect         67

Section 4.10         Adverse Proceedings, etc.         68

Section 4.11         Payment of Taxes         68

Section 4.12         Properties         68

Section 4.13         Environmental Matters         69

Section 4.14         No Defaults         69

Section 4.15         Material Contracts         69

Section 4.16         Governmental Regulation         69

Section 4.17         Margin Stock         70

Section 4.18         Employee Matters         70

Section 4.19         Employee Benefit Plans         70

Section 4.20         Certain Fees         71

Section 4.21         Solvency         71

Section 4.22         Closing Date Acquisition Agreement         71

Section 4.23         Compliance with Statutes, etc         72

Section 4.24         Intellectual Property         72

Section 4.25         Inventory and Equipment         72

Section 4.26         Customers and Suppliers         72

Section 4.27         Insurance         72

Section 4.28         [Reserved]         73

Section 4.29         Permits, etc.         73

Section 4.30         Bank Accounts and Securities Accounts         73

Section 4.31         Security Interests         73

Section 4.32         PATRIOT ACT         73

Section 4.33         OFAC/Sanctions         74

Section 4.34         Disclosure         74

Section 4.35         Indebtedness         74

Section 4.36         Use of Proceeds         74

ARTICLE V AFFIRMATIVE COVENANTS         75

Section 5.01         Financial Statements and Other Reports         75

Section 5.02         Existence         79

Section 5.03         Payment of Taxes and Claims         79

Section 5.04         Maintenance of Properties         80

Section 5.05         Insurance         80

Section 5.06         Inspections         81

Section 5.07         Lenders Meetings and Conference Calls         81

Section 5.08         Compliance with Laws         82

Section 5.09         Environmental         83

Section 5.10         Subsidiaries         83

Section 5.11         Additional Material Real Estate Assets         84

Section 5.12         Location of Inventory and Equipment         84

Section 5.13         Further Assurances         84

Section 5.14         Miscellaneous Business Covenants         85

Section 5.15         Debt Financings of Parent         85

Section 5.16         Post-Closing Matters         86

Section 5.17         Use of Proceeds         86

Section 5.18         Material Contracts         86

ARTICLE VI NEGATIVE COVENANTS         86

Section 6.01         Indebtedness         86

Section 6.02         Liens         86

Section 6.03         Equitable Lien         86

Section 6.04         No Further Negative Pledges         87

Section 6.05         Restricted Junior Payments         87

Section 6.06         Restrictions on Subsidiary Distributions         87

Section 6.07         Investments         88

Section 6.08         Financial Covenants         88

Section 6.09         Fundamental Changes; Disposition of Assets; Acquisitions         89

Section 6.10         Disposal of Subsidiary Interests         91

Section 6.11         Sales and Lease Backs         91

Section 6.12         Transactions with Affiliates         91

Section 6.13         Conduct of Business         92

Section 6.14         [Reserved]         92

Section 6.15         Changes to Certain Agreements and Organizational Documents         92

Section 6.16         Accounting Methods         92

Section 6.17         Deposit Accounts and Securities Accounts         92

Section 6.18         Prepayments of Certain Indebtedness         93

Section 6.19         Issuance of Capital Stock         93

Section 6.20         Anti-Terrorism Laws         93

ARTICLE VII GUARANTY         93

Section 7.01         Guaranty of the Obligations         93

Section 7.02         Contribution by Guarantors         93

Section 7.03         Payment by Guarantors         94

Section 7.04         Liability of Guarantors Absolute         94

Section 7.05         Waivers by Guarantors         96

Section 7.06         Guarantors’ Rights of Subrogation, Contribution, etc         97

Section 7.07         Subordination of Other Obligations         97

Section 7.08         Continuing Guaranty         98

Section 7.09         Authority of Guarantors or Borrower         98

Section 7.10         Financial Condition of Borrower         98

Section 7.11         Bankruptcy, etc         98

Section 7.12         Discharge of Guaranty Upon Sale of Guarantor         99

ARTICLE VIII EVENTS OF DEFAULT         99

Section 8.01         Events of Default         99

Section 8.02         Curative Equity         102

ARTICLE IX ADMINISTRATIVE AGENT         104

Section 9.01         Appointment of Agents         104

Section 9.02         Powers and Duties         104

Section 9.03         General Immunity         105

Section 9.04         Agents Entitled to Act as Lender         106

Section 9.05         Lenders’ Representations, Warranties and Acknowledgment         106

Section 9.06         Right to Indemnity         106

Section 9.07         Successor Administrative Agent         107

Section 9.08         Collateral Documents and Guaranty         109

Section 9.09         Agency for Perfection         110

Section 9.10         Erroneous Payment         110

Section 9.11         Reports and Other Information; Confidentiality; Disclaimers         112

ARTICLE X MISCELLANEOUS         113

Section 10.01         Notices         113

Section 10.02         Expenses         114

Section 10.03         Indemnity         115

Section 10.04         Setoff         116

Section 10.05         Amendments and Waivers         116

Section 10.06         Successors and Assigns; Participations         118

Section 10.07         Independence of Covenants         122

Section 10.08         Survival of Representations, Warranties, and Agreements         122

CREDIT AGREEMENT

This CREDIT AGREEMENT, dated as of November 17, 2021, by and among the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender,” as that term is hereinafter further defined), Alter Domus (US) LLC, a Delaware limited liability company (“Alter Domus”), as administrative agent for each of the Lenders (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”), Alter Domus, as collateral agent for each of the Lenders (in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”), Orbital Energy Group, Inc., a Colorado corporation (“Parent”), as Guarantor, Front Line Power Construction, LLC, a Texas limited liability company (“Borrower”), and certain subsidiaries of Parent and Borrower as Guarantors.

W I T N E S S E T H:

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in ‎Section 1.01 hereof;

WHEREAS, Lenders have agreed to extend a certain facility to Borrower in an aggregate principal amount not exceeding $105,000,000, consisting entirely of term loans, the proceeds of which will be used as described in ‎Section 2.05;

WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on all of its assets, including a pledge of all of the Capital Stock of each of its Subsidiaries;

WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and, with respect to Guarantors who are Front Line Loan Parties, to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on all of their respective assets, including a pledge of all of the Capital Stock of each of their respective Subsidiaries;

WHEREAS, Parent has agreed to provide a First Priority pledge of the Capital Stock of Borrower to secure the Obligations; and

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

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01    Definitions . As used in this Agreement, the following terms shall have the following definitions:

“Accounts” means all “accounts” (as defined in the UCC) of the Front Line Loan Parties (or, if referring to another Person, of such Person), including, without limitation, accounts, accounts receivable, monies due or to become due, and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing.

“Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement, or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or any successor thereto or any agency with similar functions).

“Adjusted LIBOR Rate” means for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Rate Loan, the greater of (a) the rate per annum obtained by dividing (and rounding upward to the next whole multiple of 1/100 of 1%) (i) (A) the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate appearing on Bloomberg L.P.’s service for ICE LIBO USD (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date or (B) in the event the rate referenced in the preceding clause (A) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays ICE LIBO USD (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (A) one, minus (B) the Applicable Reserve Requirement, and (b) 1.00% per annum.

“Administrative Agent” has the meaning specified in the preamble hereto.

“Administrative Agent Fee Letter” means the letter agreement, dated as of the Closing Date, by and between Borrower and Administrative Agent.

“Administrative Agent’s Account” means an account at a bank designated by Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to Administrative Agent under this Agreement and the other Loan Documents.

“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial, or otherwise), governmental investigation, or arbitration (whether or not purportedly on behalf of Parent or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Actions) or other regulatory body or any mediator or arbitrator, whether pending or, to the knowledge of Parent or any of its Subsidiaries, threatened in writing against or affecting Parent or any of its Subsidiaries or any property of Parent or any of its Subsidiaries.

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

“Affected Lender” has the meaning specified in Section 2.17(b).

“Affected Loans” has the meaning specified in Section 2.17(b).

“Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of Capital Stock, by contract, or otherwise; provided, that for purposes of ‎Section 6.12 of this Agreement: (a) any Person which owns directly or indirectly 10% or more of the Capital Stock having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person. Notwithstanding anything herein to the contrary, in no event shall Administrative Agent or any Lender be considered an “Affiliate” of any Loan Party.

“Agent” means each of Administrative Agent and Collateral Agent.

“Aggregate Amounts Due” has the meaning specified in ‎Section 2.16.

“Aggregate Payments” has the meaning specified in ‎Section 7.02.

“Agreement” means this Credit Agreement and any annexes, exhibits, and schedules attached hereto as it may be amended, supplemented, or otherwise modified from time to time.

“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the per annum rate publicly quoted from time to time by The Wall Street Journal as the “Prime Rate” in the United States (or, if The Wall Street Journal ceases quoting a prime rate of the type described, either (i) the per annum rate quoted as the base rate on such corporate loans in a different national publication as reasonably selected by Administrative Agent or (ii) the highest per annum rate of interest published by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected Interest Rates” as the bank prime loan rate or its equivalent), (b) the Federal Funds Effective Rate (but not less than zero) in effect on such day, plus 1/2 of 1.00%, (c) the Adjusted LIBOR Rate (taking into account the 1.00% floor therein) for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day), plus 1.00%, and (d) 2.00%. Any change in the Alternate Base Rate due to a change in such Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOR Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOR Rate, as the case may be.

“Anti-corruption Laws” means the FCPA, and all other applicable laws concerning or relating to bribery, money laundering or corruption.

“Applicable ECF Percentage” means, for any fiscal year of Borrower, 50%.

“Applicable Margin” means, (a) with respect to Term Loans that are LIBOR Rate Loans, 12.50% , and (b) with respect to Term Loans that are Base Rate Loans, 11.50%

“Applicable Prepayment Premium” has the meaning specified in ‎Section 2.12(b).

“Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency, or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined or (b) any category of extensions of credit or other assets which include LIBOR Rate Loans. A LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions, or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBOR Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

“Application Event” means the (a) occurrence of an Event of Default and (b) the election by Administrative Agent or the Required Lenders during the continuance of such Event of Default to require that payments and proceeds of Collateral be applied pursuant to ‎Section 2.15(f).

“Asset Sale” means a sale, lease, or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license, or other disposition to (other than to a Front Line Loan Party), or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of any Front Line Loan Party’s businesses, assets, or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any Front Line Loan Party. For purposes of clarification, “Asset Sale” shall include (a) the sale or other disposition for value of any contracts, (b) any sale of merchant accounts (or any rights thereto, including, without limitation, any rights to any residual payment stream with respect thereto) by any Front Line Loan Party or (c) any transaction effected pursuant to a Division.

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.

“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, chief legal officer, secretary, president, or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.

“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).

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Alternate Base Rate.

“Beneficiary” means each Agent and each Lender.

“Board” means (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

“Board Observer” has the meaning specified in Section 5.07(c).

“Borrower” has the meaning specified in the preamble hereto.

“Business Day” means (a) any day excluding Saturday, Sunday, and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in the State of New York are authorized or required by law or other governmental action to close and (b) with respect to all notices, determinations, fundings, and payments in connection with the Adjusted LIBOR Rate or any LIBOR Rate Loans, the term “Business Day” shall mean any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person (a) as lessee that, in conformity with GAAP as in effect on the date hereof, is or should be accounted for as a capital lease on the balance sheet of that Person or (b) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

“Capital Stock” means any and all shares, interests, participations, or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights, or options to purchase, or other arrangements or rights to acquire any of the foregoing.

“Cash” means money, currency, or a credit balance in any demand or Deposit Account.

“Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States, the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date, (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s, (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000, and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.

“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other customary cash management arrangements.

“Casualty Event” means any involuntary loss of title, any involuntary loss of, damage to, or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of any Front Line Loan Party. “Casualty Event” shall include, but not be limited to, any taking of all or any part of any real estate of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any requirement of law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.

“Certificate Regarding Non-Bank Status” means a certificate substantially in the form of Exhibit E.

“Change of Control” means that:

(a)    any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of Capital Stock of Parent (or other securities convertible into such Capital Stock) representing 35% or more of the combined voting power of all Capital Stock of Parent entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Parent,

(b)    the occurrence of a change in the composition of the Board of Parent such that a majority of the members of such Board are not Continuing Directors, or

(c)    Parent fails to own and control, directly or indirectly, 100% of the Capital Stock of Borrower,

(d)    the occurrence of a Change of Management.

“Change of Management” means that Kurt Johnson direct or indirect management responsibilities of Borrower are materially diminished from those held by him on the Closing Date, in each case, other than as a result of (a) death or (b) physical or mental incapacity.

“Closing Date” means the date on which the initial Term Loans are made.

“Closing Date Acquisition” means the acquisition of 100% of the issued and outstanding membership units of the Borrower by Parent on the Closing Date pursuant to the terms of the Closing Date Acquisition Agreement.

“Closing Date Acquisition Agreement” means that certain Membership Unit Purchase Agreement, dated as of November 16, 2021, by and among Kurt A. Johnson and Tidal Power Group LLC, a Texas limited liability company, as sellers, and Parent, as buyer, as such agreement is in effect on the Closing Date without giving effect to any waivers, amendments, supplements or other modifications thereto, except for any waivers, amendments, supplements or other modifications that are acceptable to the Required Lenders, acting in their sole discretion.

“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit F-1.

“Collateral” means, collectively, all of the real, personal, and mixed property (including Capital Stock) and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person pursuant to the Collateral Documents as security for the Obligations.

“Collateral Access Agreement” means a collateral access agreement in form and substance reasonably satisfactory to the Required Lenders.

“Collateral Agent” has the meaning specified in the preamble hereto.

“Collateral Documents” means the Security Agreement, the Pledge Agreement, the Mortgages, if any, the Collateral Access Agreements, if any, any Control Agreement, and all other instruments, documents, and agreements delivered by any Front Line Loan Party or Parent pursuant to this Agreement or any of the other Loan Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal, or mixed property of that Front Line Loan Party or Parent as security for the Obligations, in each case, as such Collateral Documents may be amended or otherwise modified from time to time.

“Commitment” means any Term Loan Commitment.

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

“Consolidated Amortization Expense” means, for any period, the amortization expense of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Borrower and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment or which should otherwise be capitalized” or similar items reflected in the consolidated statement of cash flows of Borrower and its Subsidiaries.

“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense of Borrower and its Subsidiaries for such period based upon GAAP, excluding any paid-in-kind interest, and amortization of deferred financing costs.

“Consolidated Current Assets” means, as at any date of determination, the total assets of Borrower and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.

“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Borrower and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt.

“Consolidated Depreciation Expense” means, for any period, the depreciation expense of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated EBITDA” means, for any period, Consolidated Net Income of Borrower and its Subsidiaries for such period, adjusted by (a) adding thereto, in each case only to the extent deducted in determining such Consolidated Net Income and without duplication:

(i)    Consolidated Interest Expense,

(ii)    Consolidated Amortization Expense,

(iii)    Consolidated Depreciation Expense,

(iv)    Consolidated Tax Expense,

(v)     (A) the aggregate amount of all other non‑cash charges, non‑cash write-downs, non‑cash expenses, non‑cash losses, or non‑cash items (including, without limitation, purchase accounting adjustments under ASC 805 or similar acquisition accounting under GAAP or similar provisions under GAAP) reducing Consolidated Net Income (including any non-cash expense relating to the vesting of warrants), (B) net non‑cash exchange, non‑cash translation, or non‑cash performance losses relating to foreign currency transactions and currency fluctuations, and (C) cash charges resulting from the application of ASC 805,

(vi)    charges, losses, expenses, and payments that are covered by indemnification, reimbursement, guaranty, or purchase price adjustment provisions in favor of Borrower or any of its Subsidiaries in any agreement entered into by Borrower or any of its Subsidiaries to the extent such expenses and payments have actually been reimbursed pursuant to the applicable indemnity, guaranty, or acquisition agreement in such period,

(vii)    any non-cash extraordinary expenses, losses, or charges incurred,

(viii)    the unamortized fees, costs, and expenses paid in cash in connection with the repayment of Indebtedness to persons that are not Affiliates of Borrower or any of its Subsidiaries,

(ix)    letter of credit fees,

(x)    in an amount not to exceed $1,600,000 in the aggregate for all periods, the amount of any bonuses paid and/or accrued to employees of Borrower or its Subsidiaries as incentive awards in connection with the Transactions, and

(xi)    any net loss included in Consolidated Net Income attributable to non-controlling interests in any non-Wholly Owned Subsidiary;

and (b) subtracting therefrom, in each case only to the extent (and in the same proportion) added in determining such Consolidated Net Income and, without duplication, the aggregate amount of (i) all non‑cash items increasing Consolidated Net Income for such period (other than the accrual of revenue or recording of receivables in the ordinary course of business), (ii) any extraordinary gains increasing Consolidated Net Income for such period, (iii) the amount of any minority interest net income attributable to non-controlling interests in any non-Wholly Owned Subsidiary, and (iv) the amount of any tax credits realized during such period.

Notwithstanding anything to the contrary, it is agreed, that for the purpose of calculating the Leverage Ratio for any period that includes the fiscal quarters ended on December 31, 2020, March 31, 2021, June 30, 2021, or September 30, 2021, Consolidated EBITDA shall be deemed to be $3,344,742, $4,692,491, $4,917,766, or $6,952,254, respectively, in each case, as adjusted on a pro forma basis. For the purposes of calculating Consolidated EBITDA for any period, if at any time during such period (and after the Closing Date), Borrower or any of its Subsidiaries shall have consummated (a) an acquisition permitted hereunder or (b) a material disposition permitted hereunder (including the termination or discontinuance of activities constituting the disposed of business) of business entities, properties, or assets, in each case, constituting one or more divisions or lines of business of any business entity, (i) Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if any such acquisition or disposition occurred on the first day of such period. For the avoidance of doubt, Consolidated EBITDA shall not be calculated on a cash basis.

“Consolidated Excess Cash Flow” means, for any fiscal year, Consolidated EBITDA of Borrower and its Subsidiaries for such fiscal year,

minus, without duplication:

(a)    Consolidated Cash Interest Expense and other payments of Indebtedness (including, without limitation, related fees and expenses, to the extent paid in cash and to the extent such payments are permitted hereunder, but excluding any required cash payments with respect to the Loans under this Agreement of Borrower and its Subsidiaries, in each case, to the extent made from Internally Generated Cash); provided, that, in each case, payments of revolving Indebtedness shall not be deducted from Consolidated Excess Cash Flow pursuant to this clause (a) unless accompanied by a permanent reduction in the relevant commitment,

(b)    Consolidated Capital Expenditures made from Internally Generated Cash that are paid in cash (excluding Consolidated Capital Expenditures made in such fiscal year that were included in the calculation of Consolidated Excess Cash Flow in a prior fiscal year and net of any (i) Net Proceeds from Asset Sales to the extent reinvested in accordance with Section 2.13(a), (ii) Net Proceeds to the extent reinvested in accordance with Section 2.13(b), and (iii) any proceeds of related financings with respect to such expenditures),

(c)    the aggregate amount of Consolidated Tax Expense (including, but without duplication, any direct or indirect distributions for the payment of such Consolidated Tax Expense) paid or payable with respect to such fiscal year and, if payable, for which reserves have been established to the extent required under GAAP,

(d)    the absolute value of, if negative, (i) the amount of Net Working Capital at the end of the prior fiscal year (or the beginning of the fiscal year in the case of the first fiscal year) minus (ii) the amount of Net Working Capital at the end of such fiscal year,

(e)    the aggregate amount of cash items added back to Consolidated EBITDA in the calculation of Consolidated EBITDA for such period to the extent paid with Internally Generated Cash by Borrower and its Subsidiaries during such period,

(f)    to the extent added to determine Consolidated EBITDA pursuant to clause (vii) of the definition of Consolidated EBITDA, such amounts with respect to which no cash payment to Borrower or any of its Subsidiaries was received during such fiscal year; provided, that any such cash payment subsequently received shall be included in the calculation of Consolidated Excess Cash Flow for the subsequent period when received;

provided, that any amount deducted pursuant to any of the foregoing clauses that will be paid after the close of such fiscal year shall not be deducted again in a subsequent fiscal year;

plus, without duplication:

(i)    if positive, (A) the amount of Net Working Capital at the end of the prior fiscal year (or the beginning of the fiscal year in the case of the first fiscal year) minus (B) the amount of Net Working Capital at the end of such fiscal year,

(ii)    cash items of income during such fiscal year not included in calculating Consolidated EBITDA, including, without limitation, proceeds from Asset Sales to the extent not reinvested in accordance with ‎Section 2.13(a),

(iii)    the aggregate amount of non-cash items deducted from Consolidated EBITDA in the calculation of Consolidated EBITDA for such period, and

(iv)    any cash payment that was actually received by Borrower or any Subsidiary of Borrower during such fiscal year with respect to which a deduction was taken pursuant to clause (f) above during the previous fiscal year.

“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for Borrower and its Subsidiaries on a consolidated basis equal to (a) Consolidated Cash Interest Expense, plus (b) scheduled payments of principal on Consolidated Total Debt, plus (c) Consolidated Capital Expenditures

“Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Consolidated Total Debt, including all commissions, discounts, and other fees and charges owed with respect to letters of credit, but excluding, however, any amounts referred to in ‎Section 2.10 payable on or before the Closing Date.

“Consolidated Liquidity” means, for any period, an amount determined for Borrower and its Subsidiaries on a consolidated basis equal to the sum of Qualified Cash of Borrower and its Subsidiaries.

“Consolidated Net Income” means, for any period, (a) the net income (or loss) of Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (b) the sum of (i) the income (or loss) of any Person (other than a Subsidiary of Borrower) in which any other Person (other than Borrower or any of its Subsidiaries) has a joint interest, plus (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower or any of its Subsidiaries or that Person’s assets are acquired by Borrower or any of its Subsidiaries, plus (iii) the income of any Subsidiary of Borrower to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Subsidiary, plus (iv) any gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, plus (v) (to the extent not included in clauses (b)(i) through (iv) above) any net extraordinary gains or net extraordinary losses.

“Consolidated Tax Expense” means, for any period, the tax expense (including federal, state, local, foreign, franchise, excise, and foreign withholding taxes) of Borrower and its Subsidiaries, including any penalties and interest relating to any tax examinations for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP, less the aggregate amount of Qualified Cash.

“Continuing Director” means (a) any member of the Board of Parent who was a director (or comparable manager) of Parent on the Closing Date and (b) any individual who becomes a member of the Board of Parent after the Closing Date if such individual was approved, appointed, or nominated for election to the Board by a majority of the Continuing Directors.

“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement, or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“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 ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to the Required Lenders, executed and delivered by the Borrower or one of its Subsidiaries, Collateral Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).

“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.

“Credit Extension” means the making of a Loan.

“Curative Equity” means an equity investment (other than in respect of Disqualified Capital Stock) made by Parent to Borrower from proceeds received by Parent from the issuance of Capital Stock of Parent (other than in respect of Disqualified Capital Stock) in immediately available funds and which is designated as “Curative Equity” by Borrower under ‎Section 8.02 of this Agreement at the time it is contributed.

“Debt Financing” has the meaning specified in Section 5.15.

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

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Default Rate” means any interest payable pursuant to ‎Section 2.09.

“Deposit Account” means a demand, time, savings, passbook, or like account with a bank, savings and loan association, credit union, or like organization, other than an account evidenced by a negotiable certificate of deposit.

“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is one year after the Maturity Date. Any Capital Stock in any Person that is issued to any director, officer, or other employee shall not constitute a Disqualified Capital Stock solely because it may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.

“Dividing Person” has the meaning assigned to it in the definition of “Division.”

“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.  A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.

“Dollars” and the sign “$” mean the lawful money of the United States of America.

“ECF Payment Amount” has the meaning specified in ‎Section 2.13(e).

“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.

“Eligible Assignee” means (a) any Lender, any Affiliate of any Lender, and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (b) any commercial bank, insurance company, investment or mutual fund, or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one of its businesses, and (c) any other Person (other than a natural Person) approved by Administrative Agent (such approval not to be unreasonably withheld or delayed); provided, that neither Parent, Borrower, nor any Affiliate of Parent or Borrower, shall, in any event, be an Eligible Assignee.

“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained, or contributed to, or required to be contributed, by Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates.

“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of Borrower, any Subsidiary of Borrower, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by Borrower, any Subsidiary of Borrower, or any of their predecessors in interest.

“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree, or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to protection of the environment, protection of employee health (from exposure to Hazardous Materials), or Hazardous Materials, in each case as amended from time to time.

“Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.

“Equipment” has the meaning ascribed to such term in the Security Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

“ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member, (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member, and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above, or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of Parent or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Parent or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Parent or such Subsidiary and with respect to liabilities arising after such period for which Parent or such Subsidiary could be liable under the Internal Revenue Code or ERISA.

“ERISA Event” means: (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty day notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code), the failure to make by its due date a required installment under Section 412(m) of the Internal Revenue Code with respect to any Pension Plan, or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Parent, any of its Subsidiaries, or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates of notice from any Multiemployer Plan (1) imposing withdrawal liability, (2) that such Multiemployer Plan is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, (3) that such Multiemployer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or (4) that such Multiemployer Plan intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which could give rise to the imposition on Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates of fines, penalties, taxes, or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i), or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (j) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code, (k) the imposition of a Lien pursuant to Sections 401(a)(29). 412(n), or 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan, (l) the existence with respect to any funded Employee Benefit Plan sponsored by a Parent, any of its Subsidiaries, or any of their respective ERISA Affiliates of a non-exempt “Prohibited Transaction” (within the meaning of Section 406 of ERISA or Section 4975(c) of the Code), (m) the filing, pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Pension Plan, (n) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA).

“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” means each of the conditions or events set forth in ‎Section 8.01.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Excluded Accounts” means Deposit Accounts, Securities Accounts and Commodity Accounts (1) specially and exclusively used for payroll, payroll taxes, accrued and unpaid employee compensation payments and other employee wage and benefit payments to or for any Grantor’s employees and (including salaries, wages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), (2) that are zero balance accounts or other accounts that automatically sweep balances on a daily basis to the primary operating accounts of Borrower (including, for the avoidance of doubt, local operating accounts of individual retail locations that automatically sweep balances on a daily basis to the primary operating account of Borrower), (3) that individually or together with any other Deposit Account, Securities Account or Commodity Account (as applicable), has an average daily balance for any fiscal month of not more than $500,000 in the aggregate for all such Deposit Accounts, Securities Accounts or Commodity Accounts (as applicable) (determined by taking the sum of the average daily balances for any fiscal month in each such account) and (4) consisting solely of Cash or Cash Equivalents securing Permitted Indebtedness (other than the Obligations) subject to Permitted Liens.

“Existing Indebtedness” means the Indebtedness specified on Schedule 2.02(a)(iii) of the Disclosure Schedules to the Closing Date Purchase Agreement.

“Extraordinary Receipts” means any cash received by Borrower or any of its Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in ‎Section 2.13(a) or ‎(b) hereof), including, without limitation, (a) foreign, United States, state, or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements, or other consideration of any kind in connection with any cause of action, (d) condemnation awards (and payments in lieu thereof), (e) indemnity payments, and (f) any purchase price adjustment received in connection with any purchase agreement, excluding for the avoidance of doubt proceeds from (i) the issuance of Capital Stock of Borrower and (ii) the issuance of Indebtedness (it being understood and agreed that the issuance of Indebtedness not permitted to be incurred pursuant to Section 6.01 shall remain subject to Section 2.13(d)).

“Fair Share” has the meaning specified in ‎Section 7.02.

“Fair Share Contribution Amount” has the meaning specified in ‎Section 7.02.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, in effect 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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, or if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it; provided, that if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day. If the Federal Funds Rate cannot be determined in accordance with the foregoing sentence, then the Administrative Agent may in its reasonable discretion select an alternate method for determining the Federal Funds Rate.

“Fee Letters” means, collectively, (i) the Administrative Agent Fee Letter, and (ii) any other letter agreements by and between Borrower and any Agent or Lender providing for the payment of fees, premiums and/or expenses. Each such letter agreement is referred to herein as a “Fee Letter”.

“Financial Covenant” means each of those financial covenants set forth in ‎Section 6.08.

“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief legal officer, chief financial officer, chief executive officer or other officer with similar responsibilities of Borrower that such financial statements fairly present, in all material respects, the financial condition of Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.

“Financial Plan” has the meaning specified in ‎Section 5.01(i).

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of each calendar year (or such other date as may be permitted by Section 6.16).

“Fixed Charge Coverage Ratio” means the ratio as of the last day of (a) the first full Fiscal Quarter ending after the Closing Date of (i) Consolidated EBITDA for such Fiscal Quarter, to (ii) Consolidated Fixed Charges for such Fiscal Quarter, (b) the second full Fiscal Quarter ending after the Closing Date of (i) Consolidated EBITDA for the two‑Fiscal Quarter period ending on such date, to (ii) Consolidated Fixed Charges for such two‑Fiscal Quarter period, (c) the third full Fiscal Quarter period ending after the Closing Date of (i)  Consolidated EBITDA for the three‑Fiscal Quarter period ending on such date, to (ii) Consolidated Fixed Charges for such three‑Fiscal Quarter period, and (d) any other Fiscal Quarter of (i) Consolidated EBITDA for the four‑Fiscal Quarter period then ending, to (ii) Consolidated Fixed Charges for such four‑Fiscal Quarter period.

“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Flow of Funds Agreement” means that certain Flow of Funds Agreement, dated as of the Closing Date, duly executed by Borrower and any other parties thereto, in form and substance reasonably satisfactory to the Required Lenders, in connection with the disbursement of Loan proceeds in accordance with ‎Section 2.05.

“Front Line Loan Party” means, at any time, Borrower or Subsidiary of Borrower that is a Guarantor and Grantor at such time.

“Funding Notice” means a notice substantially in the form of Exhibit A-1.

“GAAP” means, subject to the limitations on the application thereof set forth in ‎Section 1.02, United States generally accepted accounting principles in effect as of the date of determination thereof.

“Governmental Authority” means any federal, state, municipal, national, or other government, governmental department, commission, board, bureau, court, agency, or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order, or consent decree of or from any Governmental Authority.

“Grantor” has the meaning specified in the Security Agreement.

“Guaranteed Obligations” has the meaning specified in ‎Section 7.01.

“Guarantor” means (a) Parent, (b) Borrower (other than with respect to its own Obligations), (c) each Subsidiary of Parent, (d) each Subsidiary of Borrower, and (e) each other Person which, in each case, has provided a Guaranty for the Obligations.

“Guarantor Subsidiary” means each Guarantor other than Borrower and Parent.

“Guaranty” means (a) the guaranty of each Guarantor set forth in Article VII and (b) each other guaranty, in form and substance satisfactory to the Required Lenders, made by any other Guarantor for the benefit of the Secured Parties guaranteeing all or part of the Obligations.

“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity,” (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

“Historical Financial Statements” means as of the Closing Date, (a) the audited financial statements of Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2020, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity, and cash flows for such Fiscal Year, (b) for the interim period from December 31, 2020 to the Closing Date, internally prepared, unaudited financial statements of Borrower and its Subsidiaries consisting of a balance sheet and the related consolidated statements of income, stockholders’ equity, and cash flows for each quarterly period completed prior to forty-five (45) days before the Closing Date and for each monthly period completed prior to thirty (30) days prior to the Closing Date, in the case of clauses (a) and (b), certified by the chief legal officer, chief financial officer or other officer of Borrower, as applicable, that they fairly present, in all material respects, the financial condition of Borrower and its Subsidiaries, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments, and (c) a quality of earnings report prepared by Somerset CPAs and Advisors, in form and substance satisfactory to the Required Lenders.

“Increased Cost Lender” has the meaning specified in ‎Section 2.22.

“Indebtedness” means, as applied to any Person, without duplication, (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) all obligations of such Person evidenced by notes, bonds, or similar instruments or upon which interest payments are customarily paid and all obligations in respect of notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price of property or services, including any deferred payment obligations in connection with an acquisition to the extent such deferred payment obligations are fixed and non-contingent (excluding any such obligations incurred under ERISA and excluding trade payables incurred in the ordinary course of business and repayable in accordance with customary trade terms), (e) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (f) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of that Person, (g) the face amount of any letter of credit or letter of guaranty issued, bankers’ acceptances facilities, surety bonds, and similar credit transactions issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings, (h) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse, or sale with recourse by such Person of the obligation of another, (i) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof, (j) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (i) to purchase, repurchase, or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions, or otherwise) or (ii) to maintain the solvency or any balance sheet item, level of income, or financial condition of another if, in the case of any agreement described under subclauses (i) or (ii) of this clause (j), the primary purpose or intent thereof is as described in clause (i) above, and (k) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venturer, unless such Indebtedness is expressly non-recourse to such Person.

“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties and claims (including Environmental Liabilities), and reasonable and documented out-of-pocket costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation, or other response action necessary to remove, remediate, clean up, or abate any Hazardous Materials), expenses, and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and reasonable and documented out-of-pocket disbursements of counsel for Indemnitees in connection with any investigative, administrative, or judicial proceeding commenced or threatened in writing by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any reasonable and documented fees or expenses incurred by Indemnitees in enforcing this indemnity (limited, in the case of legal expenses, to the reasonable and documented fees and reasonable and documented out-of-pocket disbursements of (i) one primary counsel to all Indemnitee Agent Parties, taken as a whole, and (ii) one primary counsel (to be retained by the Required Lenders) to all Indemnitee Lender Parties, taken as a whole, and, if reasonably necessary, one local counsel in any relevant jurisdiction (which may include a single firm of counsel acting in multiple jurisdictions) and, in the case of an actual or perceived conflict of interest where any Indemnitee affected by such conflict informs Borrower of such conflict, in each case, of a single additional firm of counsel in each relevant jurisdiction for all similarly situated affected Indemnitees)), whether direct, indirect, or consequential and whether based on any federal, state, or foreign laws, statutes, rules, or regulations (including securities and commercial laws, statutes, rules, or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)), (b) the statements contained in any commitment letter delivered by any Lender to Borrower with respect to the transactions contemplated by this Agreement, or (c) any Environmental Liabilities or any Hazardous Materials relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Parent or any of its Subsidiaries.

“Indemnified Taxes” has the meaning specified in ‎Section 2.19(a).

“Indemnitee” has the meaning specified in ‎Section 10.03.

“Indemnitee Agent Party” has the meaning specified in ‎Section 9.06.

“Indemnitee Lender Party” has the meaning specified in Section 10.03.

“Information Materials” has the meaning specified in Section 5.01(r).

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

“Installment” has the meaning specified in ‎Section 2.11.

“Installment Date” has the meaning specified in ‎Section 2.11.

“Intellectual Property” has the meaning ascribed to such term in the Security Agreement.

“Intercompany Subordination Agreement” means that certain Intercompany Subordination Agreement, dated as of the Closing Date, made by the Front Line Loan Parties in favor of Collateral Agent, for the benefit of the Secured Parties, in form and substance satisfactory to the Required Lenders.

“Internally Generated Cash” shall mean any Cash or Cash Equivalents of Borrower or any of its Subsidiaries that is not generated from an Asset Sale, a Casualty Event, an incurrence of Indebtedness, an issuance of Capital Stock or a capital contribution.

“Interest Payment Date” means with respect to (a) any Base Rate Loan, (i) the first Business Day of each fiscal quarter, commencing on the first such date to occur after the Closing Date, and (ii) the final maturity date of such Loan, and (b) any LIBOR Rate Loan, (i) the last day of each Interest Period applicable to such Loan and (ii) if earlier, three months after the commencement of such Interest Period.

“Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one, two, three, or six months, as selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (a) initially, commencing on the Closing Date or Conversion/Continuation Date thereof, as the case may be and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, that (i) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day, (ii) any Interest Period 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, subject to clause (b)(iii) of this definition, end on the last Business Day of a calendar month, and (iii) no Interest Period with respect to any portion of any Term Loans shall extend beyond the Maturity Date.

“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Inventory” has the meaning ascribed to such term in the Security Agreement.

“Investment” means (a) any direct or indirect purchase or other acquisition by Borrower or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities or all or substantially all of the assets of any other Person (or of any division or business line of such other Person), (b) any direct or indirect redemption, retirement, purchase, or other acquisition for value by Borrower or any Subsidiary of Borrower from any Person, of any Capital Stock of such Person, (c) any direct or indirect loan, advance, or capital contributions by Borrower or any of its Subsidiaries to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business, and (d) any direct or indirect Guaranty of any obligations of any other Person. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write ups, write downs, or write offs with respect to such Investment.

“Joinder” means a Joinder substantially in the form of Annex 1 to the Security Agreement delivered pursuant to ‎Section 5.10.

“Joint Venture” means a joint venture, partnership, or other similar arrangement, whether in corporate, partnership, or other legal form; provided, that in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.

“Lender” means (i) each lender listed on the signature pages hereto as a Lender, and (ii) any other Person that becomes a party hereto pursuant to an Assignment Agreement other than any Person that ceases to be a party hereto pursuant to any Assignment Agreement.

“Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter or other date of determination of (a) Consolidated Total Debt as of such day, to (b) Consolidated EBITDA for the four‑Fiscal Quarter period ending on such date (or if such date of determination is not the last day of a Fiscal Quarter, for the four-Fiscal Quarter period ending as of the most recently concluded Fiscal Quarter).

“LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Lien” means (a) any lien, mortgage, pledge, assignment, hypothecation, deed of trust, security interest, charge, or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust, or other preferential arrangement having the practical effect of any of the foregoing, and (b) in the case of Securities, any purchase option, call, or similar right of a third party with respect to such Securities.

“Loan” means a Term Loan.

“Loan Document” means any of this Agreement, the Notes, if any, the Collateral Documents, the Fee Letters, the Subscription Agreements, the Flow of Funds Agreement, any Guaranty, the Intercompany Subordination Agreement, and all other documents, instruments, or agreements executed and delivered by a Loan Party for the benefit of Administrative Agent or any Lender in connection herewith.

“Loan Party” means Borrower or any Guarantor.

“Make-Whole Premium” means with respect to a prepayment or repayment of the Loans in any principal amount on any date on or prior to the date that is 30 months after the Closing Date, the excess of (a) (i) the sum of such principal amount prepaid on such date plus 5.00% times such principal amount, plus (ii) the present value on such date of all required and unpaid interest payments that would be due on such principal amount through the date that is 30 months after the Closing Date accruing at a rate equal to the Adjusted LIBOR Rate for an Interest Period of three months in effect on the third Business Day prior to such prepayment or repayment plus the Applicable Margin for LIBOR Rate Loans in effect as of such date of prepayment or repayment computed using a discount rate equal to the Treasury Rate as of such date plus 50 basis points, over (b) such principal amount.

“Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

“Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (a) the business operations, properties, assets, condition (financial or otherwise) or liabilities of Borrower and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to fully and timely perform its obligations under any Loan Document to which it is a party, (c) the legality, validity, binding effect, or enforceability against a Loan Party of a Loan Document to which it is a party.

“Material Contract” means (a) any contract to which any Front Line Loan Party is a party (other than the Loan Documents) for which breach, non-performance, cancellation, or failure to renew could reasonably be expected to have a Material Adverse Effect, and (b) any other material contract or arrangement listed on Schedule 4.15.

“Material Intellectual Property” means all Intellectual Property (a) with a material value to the business engaged in by Borrower or any of its Subsidiaries, or (b) that generates material revenue for Borrower or any of Subsidiary thereof (but not to include any “intent-to-use” trademark applications until such time that a statement of use has been accepted for filing).

“Material Real Estate Asset” means any fee owned Real Estate Asset having a fair market value in excess of $500,000 as of the date of the acquisition thereof.

“Maturity Date” means the earlier of (a) November 21, 2026 and (b) the date that the Term Loan shall become due and payable in full hereunder, whether by acceleration or otherwise.

“Moody’s” means Moody’s Investor Services, Inc.

“Mortgage” means a mortgage, deed of trust, or other deed to secure debt, in form and substance reasonably satisfactory to the Required Lenders, made by a Loan Party in favor of Collateral Agent, for the benefit of the Secured Parties, granting a Lien on any Real Property securing the Obligations and delivered to Collateral Agent.

“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

“Narrative Report” means, with respect to the financial statements for which such narrative report is required, (a) a narrative report describing the operations of Borrower and its Subsidiaries in the form prepared for presentation to senior management thereof, and (b) a financial report package including management’s discussion and analysis of the financial condition and results of operations, in each case, for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.

“Net Proceeds” means (a) with respect to any Asset Sale, an amount equal to: (i) Cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (A) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (B) payment of the outstanding principal amount of, premium or penalty and interest on, any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, and (C) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided, that upon release of any such reserve, the amount released shall be considered Net Proceeds, and (b) with respect to any insurance, condemnation, taking, or other casualty proceeds, an amount equal to: (i) any Cash payments or proceeds received by Borrower or any of its Subsidiaries (A) under any casualty, business interruption, or “key man” insurance policies in respect of any covered loss thereunder or (B) as a result of the condemnation or taking of any assets of Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation, or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (A) any actual and reasonable costs incurred by Borrower or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Borrower or such Subsidiary in respect thereof, and (B) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (b)(i)(B) of this definition to the extent paid or payable to non-Affiliates, including income taxes payable as a result of any gain recognized in connection therewith (including, without limitation, Permitted Tax Payments).

“Net Working Capital” means, at any time, Consolidated Current Assets at such time minus Consolidated Current Liabilities at such time.

“Non-Consenting Lender” shall have the meaning assigned to such term in ‎Section 2.22).

“Non-US Lender” has the meaning specified in ‎Section 2.19(d)(i).

“Note” means a promissory note, substantially in the form of Exhibit H attached hereto, evidencing the Term Loan.

“Notice” means a Funding Notice or a Conversion/Continuation Notice.

“Obligations” means all loans (including the Term Loans), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), the Applicable Prepayment Premium, liabilities obligations (including indemnification obligations), fees (including the fees provided for in each Fee Letter), expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents, and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents, by law, or otherwise in connection therewith. Without limiting the generality of the foregoing, the Obligations of Borrower under the Loan Documents include the obligation to pay (a) the principal of the Term Loans, (b) interest accrued on the Term Loans, (c) expenses, (d) the Applicable Prepayment Premium and other fees payable under this Agreement or any of the other Loan Documents, and (e) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.

“OFAC Sanctions Programs” means (a) the Requirements of Law and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224, and (b) the list of Specially Designated Nationals and Blocked Persons administered by OFAC, in each case, as renewed, extended, amended, or replaced.

“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its articles of organization or certificate of formation, as amended, and its operating agreement or limited liability company agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“Other Connection Taxes” has the meaning specified in ‎Section 2.19(a).

“Other Taxes” has the meaning specified in ‎Section 2.19(b).

“Parent” has the meaning specified in the preamble hereto.

“Participant Register” has the meaning specified in ‎Section 10.06(h)(ii).

“PATRIOT Act” has the meaning specified in ‎Section 4.32.

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“Perfection Certificate” means a certificate in form reasonably satisfactory to the Required Lenders that provides information with respect to the assets of Parent and each Front Line Loan Party.

“Permitted Indebtedness” means:

(a)    the Obligations,

(b)    Indebtedness of any Front Line Loan Party to any other Front Line Loan Party; provided, that (i) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, and (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Subordination Agreement,

(c)    Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification or from guaranties or letters of credit, surety bonds, or performance bonds securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with permitted dispositions of any business or assets of Borrower or any of its Subsidiaries,

(d)    Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal, or similar obligations incurred in the ordinary course of business and Indebtedness constituting guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees, and licensees of Borrower and its Subsidiaries,

(e)    Indebtedness in respect of netting services, overdraft protections, and otherwise in connection with deposit accounts,

(f)    Indebtedness described in Schedule 6.1, but not any extensions, renewals, or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to Lenders than the Indebtedness being refinanced or extended (except that the interest rate on such Indebtedness shall be at the then prevailing market rate), and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, that such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed, or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended, or refinanced, or (C) be incurred, created, or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom,

(g)    Permitted Purchase Money Indebtedness,

(h)    Indebtedness owing to insurance carriers and incurred to finance insurance premiums of Borrower or any of its Subsidiaries in the ordinary course of business,

(i)    guarantees by Borrower and each other Front Line Loan Party of any indebtedness or other obligations of any Front Line Loan Party permitted to be incurred hereunder, and

(j)    other Indebtedness in an aggregate principal amount not exceeding $2,500,000 at any time outstanding.

“Permitted Investments” means:

(a)    Investments in Cash and Cash Equivalents,

(b)    equity Investments owned as of the Closing Date in any Subsidiary and described on Schedule 6.7 and Investments made after the Closing Date in any wholly owned Front Line Loan Party,

(c)    Investments (i) in any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors, and (ii) deposits, prepayments, and other credits to suppliers made in the ordinary course of business consistent with the past practices of Borrower and its Subsidiaries,

(d)    to the extent constituting an Investment, Permitted Indebtedness,

(e)    to the extent constituting an Investment, Consolidated Capital Expenditures,

(f)    to the extent constituting an Investment, the Closing Date Acquisition,

(g)    Investments described in Schedule 6.7, and

(h)    other Investments not otherwise described above in an aggregate amount not to exceed at any time $1,000,000.

“Permitted Liens” means:

(a)    Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Loan Document,

(b)    Liens for Taxes if obligations with respect to such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and reserves required by GAAP have been made, so long as the aggregate amount of such Taxes does not exceed $100,000,

(c)    statutory Liens of landlords, banks (and rights of set off), carriers, warehousemen, mechanics, repairmen, workmen, and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred in the ordinary course of business for amounts not yet overdue,

(d)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance, and other types of social security, or to secure appeal bonds or the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds, and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale, or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof,

(e)    easements, rights of way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of Borrower or any of its Subsidiaries,

(f)    any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder,

(g)    Liens solely on any cash earnest money deposits made by Borrower or any of its Subsidiaries in connection with any letter of intent or any Investment permitted hereunder,

(h)    purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business,

(i)    Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods,

(j)    any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property,

(k)    non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by Borrower or any of its Subsidiaries in the ordinary course of business and consistent with past practice and not interfering in any respect with the ordinary conduct of the business of Borrower or such Subsidiary,

(l)    Liens in favor of banking or other financial institutions arising as a matter of law or relating exclusively to Cash Management Services,

(m)    Liens described in Schedule 6.2,

(n)    Liens securing Permitted Purchase Money Indebtedness; provided, that any such Lien shall encumber only the asset subject to such Capital Lease or the asset acquired with the proceeds of such Indebtedness, and

(o)    other Liens securing obligations in an aggregate principal amount not exceeding $2,500,000 at any time outstanding.

“Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capital Leases and purchase money Indebtedness), incurred after the Closing Date and at the time of, or within 20 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of $2,000,000.

“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, or other organizations, whether or not legal entities, and Governmental Authorities.

“Phase I Report” means, with respect to any Real Property, a report that (a) conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527, (b) was conducted no more than six months prior to the date such report is required to be delivered hereunder, by one or more environmental consulting firms reasonably satisfactory to the Required Lenders, (c) includes an assessment of asbestos containing materials at such Real Property, and (d) is accompanied by an estimate of the reasonable worst case cost of investigating and remediating any Hazardous Materials Activity identified in the Phase I Report as giving rise to an actual or potential material violation of any Environmental Law or as presenting a material risk of giving rise to a material Environmental Action.

“PIK Amount” means, as of any date of determination, the amount of interest accrued with respect to the Obligations that has been paid-in-kind by being added to the aggregate principal amount of the Loans in accordance with ‎Section 2.07(e).

“Platform” has the meaning specified in Section 5.01(r).

“Pledge Agreement” means the Pledge Agreement executed by Grantors in favor of Collateral Agent, for the benefit of the Secured Parties, substantially in the form of Exhibit G-1, as it may be amended, supplemented, or otherwise modified from time to time

“Projections” has the meaning specified in ‎Section 4.08.

“Pro Rata Share” means (a) with respect to all payments, computations, and other matters relating to the Term Loan of any Lender, the percentage obtained by dividing (i) the Term Loan Exposure of that Lender, by (ii) the aggregate Term Loan Exposure of all Lenders, and (b) for all other purposes with respect to each Lender, the percentage obtained by dividing (i) an amount equal to the sum of the Term Loan Exposure of that Lender, by (ii) an amount equal to the sum of the aggregate Term Loan Exposure of all Lenders.

“Qualified Capital Stock” means and refers to any Capital Stock issued by Parent or by Borrower to Parent (and not by any other Subsidiaries of Parent or any Subsidiaries of Borrower) that is not Disqualified Capital Stock.

“Qualified Cash” means, as of any date of determination, the amount of unrestricted Cash and Cash Equivalents of the Front Line Loan Parties that is in Deposit Accounts or in Securities Accounts, or any combination thereof, which such Deposit Account or Securities Account is subject to a Control Agreement (subject to the timing requirements set forth in Section 5.16) and is maintained by a branch office of the bank or securities intermediary located within the United States.

“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold, or otherwise) then owned by any Front Line Loan Party in any real property.

“Real Property” means any real property (including all buildings, fixtures, or other improvements located thereon) now, hereafter, or heretofore owned or leased by Parent or any of its Subsidiaries or any of their respective predecessors or Affiliates.

“Register” has the meaning specified in ‎Section 2.06(b).

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Reinvestment Amounts” has the meaning specified in ‎Section 2.13(a).

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.

“Replacement Lender” has the meaning specified in ‎Section 2.22.

“Required Lenders” means, as of any date of determination, Lenders whose Pro Rata Shares aggregate to at least 50.1%, which 50.1% must include at least two Lenders that are not under common management or affiliated with each other.

“Required Prepayment Date” has the meaning specified in ‎Section 2.14(b).

“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Restricted Junior Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Borrower or any Subsidiary of Borrower 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 of any class of Capital Stock of Borrower 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 Capital Stock of Borrower or any of its Subsidiaries now or hereafter outstanding, (d) management or similar fees (and related expenses) payable to Parent or any of its Affiliates or any other Affiliates of any Loan Party, and (e) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in substance or legal defeasance), sinking fund, or similar payment with respect to, any subordinated Indebtedness, in each case, whether such dividend, distribution or other payment is made in cash or other assets.

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

“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.

“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, or (d) a Person resident in or determined to be resident in a country, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.

“Sanctioned Person” means, at any time, (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC or any other Sanctions-related list maintained by any relevant Sanctions authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized, or resident in a country that is a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.

“Sanctions” means individually and collectively, respectively, any and all economic, trade, financial, or other sanctions laws, regulations, or embargoes imposed, administered, or enforced from time to time by: (a) the United States of America, including, without limitation, those administered by OFAC or the U.S. Department of State, (b) the United Nations Security Council, or (c) any other governmental authority in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or doing business.

“Secured Parties” means the Agents and Lenders.

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated, or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares, or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase, or acquire, any of the foregoing.

“Securities Account” means a securities account (as defined in the UCC).

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Agreement” means the Security Agreement executed by Grantors in favor of Collateral Agent, for the benefit of the Secured Parties, substantially in the form of Exhibit G-2, as it may be amended, supplemented, or otherwise modified from time to time.

“Seller Note” means, collectively, (i) the $34,256,000.00 Unsecured Promissory Note Due 2022 issued by Parent to Kurt A. Johnson on the Closing Date and (ii) the $51,384,000.00 Unsecured Promissory Note Due 2022 issued by Parent to Tidal Power Group LLC on the Closing Date.

“Specified Contribution Agreement” means the agreement by and among Parent, Borrower and the other parties thereto, dated as of the Closing Date, pursuant to which all rights, remedies and claims of Parent against Seller and any other person pursuant to or in connection with the Closing Date Acquisition Agreement and all assets, rights and properties comprising the Eclipse business are contributed to the Borrower on the Closing Date.

“Solvent” means, with respect to any Loan Party, that as of the date of determination, both (a)(i) the sum of such Loan Party’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Loan Party’s present assets, (ii) such Loan Party’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the Projections or with respect to any transaction contemplated or undertaken after the Closing Date, and (iii) such Loan Party has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (b) such Loan Party is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“Subject Transaction” has the meaning specified in ‎Section 6.08(d).

“Subscription Agreements” means the subscription agreements by and among Parent, Borrower and each Lender providing for the issuance of Capital Stock of Parent on the Closing Date to the Lenders and/or their applicable Affiliates.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture, or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees, or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction, or withholding imposed, levied, collected, withheld, or assessed by any Governmental Authority and all interest, penalties and additions to tax with respect thereto.

“Term Loan” means a Term Loan made by a Lender to Borrower pursuant to ‎Section 2.01(a).

“Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Term Loan, and “Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Term Loan Commitment is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Term Loan Commitments as of the Closing Date is $105,000,000.

“Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Term Loan of such Lender; provided, that at any time prior to the making of the Term Loan, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Loan Commitment.

“Terminated Lender” has the meaning specified in ‎Section 2.22.

“Trade Announcements” has the meaning specified in ‎Section 10.17.

“Transactions” means the transactions contemplated by the Transaction Documents and the Loan Documents, including without limitation, (i) the consummation of the Closing Date Acquisition, (ii) the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Collateral Documents and the initial borrowing of the Term Loan on the Closing Date, (iii) the consummation of the transactions contemplated by the Specified Contribution Agreement, and (iv) the payment of Transaction Costs.

“Transaction Costs” means the fees, costs, and expenses payable by Borrower or any of its Subsidiaries in connection with the Transaction.

“Transaction Documents” means, collectively, the Closing Date Acquisition Agreement, the Specified Contribution Agreement, the Seller Note, and each of the documents described in Section 2.02(a)(ii), (vi), (vii), (viii), (ix) and (x) of the Closing Date Purchase Agreement.

“Treasury Rate” means, as of the applicable date of repayment or prepayment of the Loans, the yield to maturity as of such date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two (2) Business Days prior to such repayment or prepayment date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to the date that is 30 months after the Closing Date; provided, however, that if the period from such date to the date that is 30 months after the Closing Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Treasury Rate will be determined by the Administrative Agent and any such determination shall be conclusive absent manifest error.

“Type of Loan” means a Base Rate Loan or a LIBOR Rate Loan.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

“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.

“Waivable Mandatory Prepayment” has the meaning specified in ‎Section 2.14(b).

“Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) is at the time owned by such person and/or one or more Wholly Owned Subsidiaries of such person, and (b) any partnership, association, joint venture, limited liability company, or other entity in which such person and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity interest at such time.

“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.

Section 1.02    Accounting and Other Terms .

(a)    All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided, that if Borrower notifies Administrative Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if Administrative Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Administrative Agent and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of Lenders and Borrower after such Accounting Change conform as nearly as possible to their respective positions immediately before such Accounting Change took effect and, until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term “financial statements” shall include the notes and schedules thereto. Whenever the term “Borrower” is used in respect of a financial covenant or a related definition, it shall be understood to mean Borrower and its Subsidiaries on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards Board’s Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof.

(b)    Any terms used in this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC as in effect from time to time in the State of New York unless otherwise defined herein; provided, that to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern.

(c)    All terms used in this Agreement which are defined in Article 8 or Article 9 of the UCC as in effect from time to time in the State of New York and which are not otherwise defined herein shall have the same meanings herein as set forth therein; provided, that terms used herein which are defined in the UCC as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Required Lenders may otherwise determine.

Section 1.03    Construction . Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). 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. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations or Guaranteed Obligations shall mean (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, together with the payment of the Applicable Prepayment Premium, (ii) all costs, expenses, or indemnities payable pursuant to ‎Section 10.02 or ‎10.03 of this Agreement that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid, (b) the receipt by Collateral Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to an Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agents reasonably determine is appropriate to secure such contingent Obligations, (c) the payment or repayment in full in immediately available funds of all other outstanding Obligations, and (d) the termination of all of the Commitments of Lenders. Notwithstanding anything in the Agreement to the contrary, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (z) all requests, rules, guidelines, or directives concerning capital adequacy 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 shall, in each case, be deemed to be enacted, adopted, issued, phased in, or effective after the date of this Agreement regardless of the date enacted, adopted, issued, phased in, or effective. 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, consolidation, 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).

Section 1.04    Time References . Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” each means “to and including;” provided, that with respect to computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day.

ARTICLE II

    LOANS

Section 2.01    Term Loans .

(a)    Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make, on the Closing Date, a Term Loan to Borrower in an amount equal to such Lender’s Term Loan Commitment.

Borrower may only request one borrowing under the Term Loan Commitment which shall be on the Closing Date. Any amount borrowed under this ‎Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed. Subject to ‎Section 2.11 and ‎Section 2.12, all amounts owed hereunder with respect to the Term Loan shall be paid in full no later than the Maturity Date. Each Lender’s Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date.

(b)    Borrowing Mechanics for Term Loans.

(i)    Borrower shall deliver to Administrative Agent a fully executed Funding Notice, which shall note the date of the requested borrowing, the amount of the requested borrowing, whether such borrowing shall be Base Rate Loans or LIBOR Loans (and if LIBOR Loans, the Interest Period applicable to such Loans), and Borrower’s wiring instructions, no later than 2:00 p.m. (New York time) three (3) Business Days prior to the Closing Date or such later date as Administrative Agent may agree. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing. Administrative Agent and Lenders (A) may act without liability upon the basis of written, facsimile, or telephonic notice believed by Administrative Agent in good faith to be from Borrower (or from any Authorized Officer thereof designated in writing purportedly from Borrower to Administrative Agent), (B) shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Term Loan on behalf of Borrower until Administrative Agent receives written notice to the contrary, and (C) shall have no duty to verify the authenticity of the signature appearing on any written Funding Notice.

(ii)    Each Lender shall make its Term Loan available to Administrative Agent not later than noon (New York time) on the Closing Date, by wire transfer of same day funds in Dollars, to the Administrative Agent’s Account as identified in the Flow of Funds Agreement. Upon satisfaction or waiver of the conditions precedent specified herein and upon receipt of all requested funds, Administrative Agent shall make the proceeds of the Term Loans available to Borrower by the close of business on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited (A) in the case of Loans made on the Closing Date, in accordance with the provisions of the Flow of Funds Agreement or (B) after the Closing Date, to the account of Borrower as set forth in a Funding Notice or to such other account as may be designated in writing to Administrative Agent by Borrower.

Section 2.02    [Reserved] .

Section 2.03    [Reserved] .

Section 2.04    Pro Rata Shares; Availability of Funds .

(a)    Pro Rata Shares. All Loans shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder, nor shall any Term Loan Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder.

(b)    Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the Closing Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on the Closing Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on the Closing Date, and Administrative Agent may, with the consent of the Required Lenders, but shall not be obligated to, make available to Borrower a corresponding amount on the Closing Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Alternate Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrower, and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in this ‎Section 2.04(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.

Section 2.05    Use of Proceeds . The proceeds of the Term Loans made on the Closing Date shall be applied by Borrower (i) to consummate the Transactions (including, without limitation, to pay the Transaction Costs), and (ii) to repay the Existing Indebtedness. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or could reasonably be expected to cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U, or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.

Section 2.06    Evidence of Debt; Register; Lenders’ Books and Records; Notes ’.

(a)    [Reserved.]

(b)    Register. Administrative Agent shall, as a non-fiduciary agent for the Borrower, maintain at one of its offices in the United States a register for the recordation of the names and addresses of Lenders and the principal amount of the Loans (and stated interest therein) of each Lender from time to time (the “Register”). The Register shall be available for inspection by Borrower at any reasonable time and from time to time upon reasonable prior written notice. Administrative Agent shall record in the Register the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided, that failure to make any such recordation, or any error in such recordation, shall not affect Borrower’s Obligations in respect of any Loan. Borrower hereby designates the entity serving as Administrative Agent to serve as Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this ‎Section 2.06, and Borrower hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Administrative Agent and its officers, directors, employees, agents, and affiliates shall constitute “Indemnitee Agent Parties”.

(c)    Notes. If so requested by any Lender by written notice to Borrower at least two (2) Business Days prior to the Closing Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to ‎Section 10.06) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes.

Section 2.07    Interest .

(a)    Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount (inclusive of the PIK Amount) thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:

(i)    if a Base Rate Loan, at the Alternate Base Rate plus the Applicable Margin.

(ii)    if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable Margin.

(b)    The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBOR Rate Loan, shall be selected by Borrower and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a LIBOR Rate Loan with the same Interest Period.

(c)    In connection with LIBOR Rate Loans there shall be no more than five Interest Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan or a LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a LIBOR Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Borrower fails to specify an Interest Period for any LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable after 11:00 a.m. (London, England time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive, and binding upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof to Borrower and each Lender.

(d)    Interest payable pursuant to ‎Section 2.07(a) shall be computed on the basis of a 360-day year and actual days elapsed, other than for Base Rate Loans which shall be calculated on the basis of a 365-day or 366-day year, as applicable, and actual days elapsed. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided, that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.

(e)    Except as otherwise set forth herein, interest on each Loan shall be payable in cash and in arrears on and to (i) each Interest Payment Date applicable to that Loan, (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid, and (iii) upon acceleration of the Loans and at maturity, including final maturity. Notwithstanding any of the foregoing to the contrary, the Borrower may, by giving written notice to the Administrative Agent no later than six (6) Business Days prior to the beginning of any Interest Period, (A) elect to pay a portion of any interest on the Term Loan of up to 2.50% per annum in-kind in arrears on and to each Interest Payment Date by adding such portion to the outstanding principal amount of the Term Loans on such Interest Payment Date (which amount shall be paid in cash upon any repayment or prepayment of such Term Loan, whether voluntary or involuntary, to the extent accrued but unpaid on the amount being prepaid), and (B) the remaining portion of the interest on the Term Loan shall be payable in cash in arrears in accordance with ‎Section 2.07(a); provided, however, that all uncapitalized interest shall be due and payable in cash on any prepayment date that is not an Interest Payment Date. On the Maturity Date, any outstanding PIK Amount shall be due and payable without notice or demand. For the avoidance of doubt, it is hereby acknowledged and agreed that, except to the extent expressly provided to the contrary herein, any reference to the principal balance of the Term Loan or the Obligations shall be deemed to include the PIK Amount with respect thereto, and any PIK Amounts shall bear interest and otherwise be treated as outstanding principal for all purposes.

(f)    At any time that an Event of Default has occurred and is continuing, at the written election of Administrative Agent (at the direction of the Required Lenders), Borrower no longer shall have the option to request that any portion of the Term Loan bear interest at a rate based upon the Adjusted LIBOR Rate.

Section 2.08    Conversion/Continuation .

(a)    Subject to ‎Section 2.17 and ‎Section 2.23 and so long as no Default or Event of Default shall have occurred and then be continuing, Borrower shall have the option:

(i)    to convert at any time all or any part of any Term Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, that a LIBOR Rate Loan may only be converted on the expiration of the Interest Period applicable to such LIBOR Rate Loan unless Borrower shall pay all amounts due under ‎Section 2.17 in connection with any such conversion, or

(ii)    upon the expiration of any Interest Period applicable to any LIBOR Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount as a LIBOR Rate Loan.

(b)    Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than noon (New York time) at least two (2) Business Days in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three (3) Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in accordance therewith.

Section 2.09    Default Interest . Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, that in the case of LIBOR Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective, such LIBOR Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this ‎Section 2.09 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Agent or any Lender.

Section 2.10    Fees . Without duplication of any other fees set forth in this ‎Section 2.10, Borrower agrees to pay to Administrative Agent for its benefit or the benefit of the Lenders, as applicable, all fees payable by it in each Fee Letter in the amounts and at the times specified therein.

Section 2.11    Repayments of Loans and Commitment Reductions . The principal amounts of the Term Loans shall be repaid in consecutive quarterly installments (each, an “Installment”) in equal quarterly installments on the first Business Day of each Fiscal Quarter (each, an “Installment Date”), each in an amount equal to $262,500, commencing on June 30, 2022, with any outstanding principal amounts due and payable on the earlier of (a) the Maturity Date and (b) the date on which the Term Loans otherwise become due and payable pursuant to the terms of this Agreement. Notwithstanding the foregoing, (a) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loan in accordance with Section 2.14, and (b) the Term Loan, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date.

Section 2.12    Voluntary Prepayments; Call Protection .

(a)    Voluntary Prepayments.

(i)    Any time and from time to time:

(A)    with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (or such lesser amount outstanding), and

(B)    with respect to LIBOR Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part (together with any amounts due pursuant to ‎Section 2.17(a)) in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (or such lesser amount outstanding).

(ii)    All such prepayments shall be made:

(A)    upon not less than one Business Day’s prior written notice in the case of Base Rate Loans, and

(B)    upon not less than three (3) Business Days’ prior written notice in the case of LIBOR Rate Loans,

in each case given to Administrative Agent by 10:00 a.m. (New York time) on the date required (and Administrative Agent will promptly notify each Lender of its Pro Rata Share of such voluntary prepayment). Upon the giving of any such notice, unless such notice is expressly conditioned on the occurrence of another transaction, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in Section 2.14(a).

(b)    Call Protection.

(i)    If all or any part of the principal balance of any Loan is paid or required to be paid on or prior to the fifth anniversary of the Closing Date for any reason (including, but not limited to, whether voluntary (including, without limitation, any prepayment pursuant to Section 2.12(a)) or mandatory, and whether before or after acceleration of the Obligations or the commencement of any Insolvency Proceeding, but in any event (A) including any such prepayment or required prepayment in connection with (I) a Change of Control, (II) an acceleration of the Obligations as a result of the occurrence of an Event of Default, (III) foreclosure and sale of, or collection of, the Collateral, (IV) sale of the Collateral in any Insolvency Proceeding, (V) the restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, or (VI) the termination of this Agreement for any reason, and (B) excluding any prepayment that is required to be made pursuant to the provisions of ‎Section 2.11 hereof, any mandatory prepayments made pursuant to any of Sections ‎2.13(a) (other than Asset Sales constituting a sale of all or substantially all of the assets of the Front Line Loan Parties or their business lines), ‎(b),‎(e), ‎(f) or ‎(g)), Borrower shall pay to Administrative Agent, for the benefit of all Lenders entitled to a portion of such prepayment a premium as liquidated damages and compensation for the costs of being prepared to make funds available hereunder with respect to the Loans (the “Applicable Prepayment Premium”) equal to (1) the Make-Whole Premium on the principal amount of the Term Loans so prepaid or required to be repaid, with respect to prepayments made or required to be made on or after the Closing Date and on or prior to the date that is 30 months after the Closing Date and (2) the amount of such prepayment or required prepayment multiplied by (x) five percent (5.00%), with respect to prepayments made or required to be made after the date that is 30 months after the Closing Date and on or prior to the third anniversary of the Closing Date, (y) three percent (3.00%), with respect to prepayments made after the third anniversary of the Closing Date and on or prior to the fourth anniversary of the Closing Date, (z) one percent (1.00%), with respect to prepayments made after the fourth anniversary of the Closing Date but on or prior to the fifth anniversary of the Closing Date and (y) zero percent (0.00%) thereafter. Notwithstanding anything to the contrary contained in this Agreement, to the extent that any Non-Consenting Lender is replaced pursuant to Section 2.22 due to such Lender’s failure to approve a consent, waiver, or amendment extending the termination date of any of such Lender’s Loans or the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any of such Lender’s Loans, such Non-Consenting Lender, as the case maybe, shall be entitled to receive a premium in connection with such replacement or prepayment in the amount that would have been payable in respect of the Term Loans of such Non-Consenting Lender, as applicable, under this clause (b)(i) had such Term Loans been the subject of a voluntary prepayment at such time.

(ii)    Without limiting the generality of the foregoing, it is understood and agreed that if the Obligations are accelerated for any reason, including because of default, the commencement of any Insolvency Proceeding or other proceeding pursuant to any applicable debtor relief laws, sale, disposition, or encumbrance (including that by operation of law or otherwise), the Applicable Prepayment Premium, determined as of the date of acceleration, will also be due and payable as though said Obligations were voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. The Applicable Prepayment Premium payable in accordance with the immediately preceding sentence shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination, and Borrower agrees that it is reasonable under the circumstances. The Applicable Prepayment Premium shall also be payable in the event the Obligations (and/or this Agreement or the Notes evidencing the Obligations) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means. BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Borrower expressly agrees that: (A) the Applicable Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Applicable Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and Borrower giving specific consideration in this transaction for such agreement to pay the Applicable Prepayment Premium, and (D) Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Borrower expressly acknowledges that its agreement to pay the Applicable Prepayment Premium as herein described is a material inducement to the Lenders to provide the Commitments and make the Loans.

Section 2.13    Mandatory Prepayments .

(a)    Asset Sales. No later than the fifth Business Day following the date of receipt by any Front Line Loan Party or any of its Subsidiaries of any Net Proceeds from Asset Sales consummated pursuant to ‎Section 6.09(e), Borrower shall prepay the Loans as set forth in ‎Section 2.14(a) in an aggregate amount equal to such Net Proceeds; provided, that so long as (i) no Default or Event of Default shall have occurred and be continuing as of the date of such Asset Sale, (ii) Borrower has delivered Collateral Agent prior written notice of Borrower’s intention to apply such monies (the “Reinvestment Amounts”) to the costs of replacement of the properties or assets that are the subject of such sale or disposition reinvested within six months (or within nine months following receipt thereof if a contractual commitment to reinvest is entered into within nine months following receipt thereof), following the date of such Asset Sale, (iii) the monies are held in a Deposit Account in which Collateral Agent has a perfected first-priority security interest, and (iv) Borrower or its Subsidiaries, as applicable, complete such replacement within 180 days after the initial receipt of such monies, Borrower and its Subsidiaries shall have the option to apply such monies, in an aggregate amount not to exceed $100,000 in any Fiscal Year, to the costs of replacement of the assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Administrative Agent and applied in accordance with ‎Section 2.14(a). Nothing contained in this ‎Section 2.13(a) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with ‎Section 6.09. Notwithstanding anything to the contrary herein, any issuance by Borrower of its Capital Stock resulting in a Change of Control shall constitute an Asset Sale subject to this Section 2.13‎(a) (without giving effect to the reinvestment right described herein), and Borrower shall prepay the Loans as set forth in ‎Section 2.14(a) in an amount equal to the aggregate Net Proceeds received by Borrower (or any Subsidiary thereof) in connection with any and all issuances of the Capital Stock of Borrower since the Closing Date.

(b)    Insurance/Condemnation Proceeds. No later than the fifth Business Day following the date of receipt by Borrower or any of its Subsidiaries, or Collateral Agent as loss payee, of any Net Proceeds from insurance or any condemnation, taking, or other casualty, Borrower shall prepay the Loans in an aggregate amount equal to such Net Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, (ii) Borrower has delivered Collateral Agent prior written notice of Borrower’s intention to apply the Reinvestment Amounts to the costs of replacement of the properties or assets that are the subject of such condemnation, taking, or other casualty within six months (or within nine months following receipt thereof if a contractual commitment to reinvest is entered into within nine months following receipt thereof) following the date of the receipt of such Net Proceeds, (iii) the monies are held in a Deposit Account in which Collateral Agent has a perfected first-priority security interest, and (iv) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Borrower and its Subsidiaries shall have the option to apply such monies, in an aggregate amount not to exceed $350,000 in any Fiscal Year, to the costs of replacement of the assets that are the subject of such condemnation, taking, or other casualty unless and to the extent that such applicable period shall have expired without such replacement being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Administrative Agent and applied in accordance with ‎Section 2.14(a).

(c)    [Reserved].

(d)    Issuance of Debt. On the date of receipt by Borrower or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to ‎Section 6.01), Borrower shall prepay the Loans as set forth in ‎Section 2.14(a) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.

(e)    Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year ending December 31, 2022), Borrower shall, no later than 90 days after the end of such Fiscal Year, prepay the Loans as set forth in ‎Section 2.14(a) in an aggregate amount equal to the Applicable ECF Percentage of such Consolidated Excess Cash Flow (the “ECF Payment Amount”); provided that, the aggregate amount of any voluntary prepayment made pursuant to ‎Section 2.12 during any Fiscal Year shall reduce the ECF Payment Amount due pursuant to this Section 2.13‎(e) for such Fiscal Year on a dollar-for-dollar basis.

(f)    [Reserved].

(g)    Extraordinary Receipts. On the date of receipt by Borrower or any of its Subsidiaries of any Extraordinary Receipts in excess of $100,000 in the aggregate in any Fiscal Year, Borrower shall prepay Loans as set forth in ‎Section 2.14(a) in the amount of such Extraordinary Receipts or proceeds, as applicable.

(h)    Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to Sections ‎2.13(a) through Section 2.13‎(g), Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow and compensation owing to Lenders under ‎Section 2.12(b). In the event that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.

Section 2.14    Application of Prepayments/Reductions .

(a)    Application of Prepayments of Term Loans to Installments. (i) Any prepayment of any Term Loan pursuant to ‎Section 2.12 shall be applied to reduce the then remaining Installments of the Term Loans due under Section 2.11 in such order as directed by Borrower (and absent such direction in relation to the payments required under Section 2.11, in direct order of maturity thereof), and (ii) any mandatory prepayment of any Loan pursuant to ‎Section 2.13 shall be applied to reduce the then remaining Installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof, in each case, until paid in full. For the avoidance of doubt, as between the Lenders, such payments shall be applied as set forth in Section 2.15(c).

(b)    Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, in the event Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans, not later than 12:00 p.m. (noon) (New York time) three (3) Business Days prior to the date (the “Required Prepayment Date”) on which Borrower is required to make such Waivable Mandatory Prepayment, Borrower shall notify Administrative Agent in writing of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to Borrower and Administrative Agent of its election to do so, or if it elects not to do so and other Lenders elect to exercise such option, if it elects to receive its pro rata share of the portion of such Waivable Mandatory Prepayment that such other Lenders have elected to refuse, in each case no later than 3:00 p.m. (New York time) the first Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Borrower and Administrative Agent of its election to exercise such option no later than 3:00 p.m. (New York time) the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option to refuse such Waivable Mandatory Prepayment and not to exercise the option to receive its pro rata share of the portion of such Waivable Mandatory Prepayment that other Lenders have elected to refuse, if any). On the Required Prepayment Date, Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option to refuse such Waivable Mandatory Prepayment, to prepay the Term Loans of such Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Term Loan in accordance with ‎Section 2.14(a)), (ii) to the extent of any excess, ratably to Lenders that have elected to receive the portion of such Waivable Mandatory Prepayment that such other Lenders have elected to refuse, until paid in full (which prepayment shall be applied to the scheduled Installments of principal of the Term Loan in accordance with ‎Section 2.14(a)), and (iii) to the extent of any excess, to Borrower.

(c)    At any time an Application Event has occurred and is continuing, all payments shall be applied pursuant to ‎Section 2.15(f). Nothing contained herein shall modify the provisions of ‎Section 2.12(b) or ‎Section 2.15(b) regarding the requirement that all prepayments be accompanied by accrued interest and fees on the principal amount being prepaid to the date of such prepayment and the Applicable Prepayment Premium, or any requirement otherwise contained herein to pay all other amounts as the same become due and payable.

Section 2.15    General Provisions Regarding Payments .

(a)    All payments by Borrower of principal, interest, fees, and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff, or counterclaim, free of any restriction or condition, and delivered to Administrative Agent, for the account of Lenders, not later than noon (New York time) to Administrative Agent’s Account; funds received by Administrative Agent after that time on such due date may, at Administrative Agent’s sole discretion, be deemed to have been paid by Borrower on the next Business Day.

(b)    All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, the Applicable Prepayment Premium, and all other amounts payable with respect to the principal amount being repaid or prepaid.

(c)    Administrative Agent shall promptly transfer to each Lender via wire transfer to such account as such Lender has indicated in its administrative questionnaire, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent.

(d)    Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(e)    Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.

(f)    Administrative Agent may deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to noon (New York time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds and (ii) the applicable next Business Day. Administrative Agent shall give prompt notice to Borrower and each applicable Lender if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of ‎Section 8.01(a). Interest shall continue to accrue on any principal as to which a non‑conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Rate determined pursuant to ‎Section 2.09 from the date such amount was due and payable until the date such amount is paid in full.

(g)    At any time an Application Event has occurred and is continuing, or the maturity of the Obligations shall have been accelerated pursuant to ‎Section 8.01, all payments or proceeds received by any Agent hereunder or under any Collateral Document in respect of any of the Obligations, including, but not limited, to all proceeds received by any Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part as follows:

(i)    first, ratably to pay the Obligations in respect of any fees (other than the Applicable Prepayment Premium), expense reimbursements, indemnities, and other amounts then due and payable to the Agents in their capacity as such until paid in full,

(ii)    second, ratably to pay the Obligations in respect of the Applicable Prepayment Premium then due and payable to Lenders until paid in full, and

(iii)    third, to the ratable payment of all other Obligations then due and payable until paid in full.

(h)    For purposes of ‎Section 2.15(g) “paid in full” means payment in cash of all Obligations according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including any interest that accrues after the commencement of an Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, in each case regardless of whether the same would be or is allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding.

(i)    In the event of a direct conflict between the priority provisions of ‎Section 2.15(g) and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of ‎Section 2.15(g) shall control and govern.

Section 2.16    Ratable Sharing . Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action, or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees, and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off, or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.

Section 2.17    Making or Maintaining LIBOR Rate Loans .

(a)    Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the basis provided for in the definition of Adjusted LIBOR Rate, Administrative Agent shall on such date give notice to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.

(b)    Illegality or Impracticability of LIBOR Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrower and Administrative Agent) that the making, maintaining, or continuation of its LIBOR Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline, or order (or would conflict with any such treaty, governmental rule, regulation, guideline, or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender,” and it shall on that day give notice (by facsimile or in writing (which may be by email)) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter, (A) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (B) to the extent such determination by the Affected Lender relates to a LIBOR Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (C) the Affected Lender’s obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (D) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.17(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in accordance with the terms hereof.

(c)    Compensation for Breakage or Non-Commencement of Interest Periods. Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses, and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense, or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any LIBOR Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any LIBOR Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice, (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans occurs on any day other than the last day of an Interest Period applicable to that Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise), or (iii) if any prepayment of any of its LIBOR Rate Loans is not made on any date specified in a notice of prepayment given by Borrower.

(d)    Booking of LIBOR Rate Loans. Any Lender may make, carry, or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e)    Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to a Lender under this ‎Section 2.17 and under ‎Section 2.18 shall be made as though such Lender had actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (a)(i) of the definition of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, that each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit, and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this ‎Section 2.17 and under ‎Section 2.18.

Section 2.18    Increased Costs .

(a)    Compensation For Increased Costs and Taxes. Subject to the provisions of ‎Section 2.19 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty, or governmental rule, regulation, or order, or any change therein or in the interpretation, administration, or application thereof (including the introduction of any new law, treaty, or governmental rule, regulation, or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request, or directive issued or made after the date hereof by any central bank or other governmental or quasi-Governmental Authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than Indemnified Tax, Other Tax or any Excluded Tax) with respect to this Agreement or any of the other Loan Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amounts payable hereunder, (ii) imposes, modifies, or holds applicable any reserve (including any marginal, emergency, supplemental, special, or other reserve), special deposit, compulsory loan, FDIC insurance, or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to LIBOR Rate Loans that are reflected in the definition of Adjusted LIBOR Rate), or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making, or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender shall determine in its reasonable discretion) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this ‎Section 2.18(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.

Section 2.19    Taxes; Withholding, etc. 

(a)    Withholding of Taxes. All sums payable by any Loan Party hereunder and under the other Loan Documents shall (except to the extent required by applicable law) be paid free and clear of, and without any deduction or withholding on account of, any Tax, other than (i) Taxes imposed on or measured by the recipient’s net income (however denominated), franchise Taxes, and branch profits Taxes, imposed on the recipient, in each case, (A) as a result of such recipient being organized under the laws of, having its principal office in, or, in the case of any Lender, its applicable lending office is located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (B) as the result of any 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, or engaged in any other transaction pursuant to, or enforced any, Loan Document) (Taxes described in this clause (i)(B), “Other Connection Taxes”), (ii) in the case of a Lender, United States federal income withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (x) such Lender becomes a party hereto or acquires an interest in the Loan (other than pursuant to an assignment request by a Loan Party under Section 2.22), or (y) such Lender changes its lending office, except that this clause (ii) shall not apply to the extent that, pursuant to this ‎Section 2.19, 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, (iii) Taxes attributable to such recipient’s failure to comply with ‎Section 2.19(d), and (iv) Taxes imposed under FATCA (all such excluded Taxes, collectively or individually, “Excluded Taxes” and all such non-excluded Taxes, collectively or individually, “Indemnified Taxes”). If any Loan Party or any other Person is required by applicable law to make any deduction or withholding on account of any Indemnified Tax or Other Tax from any sum paid or payable by any Loan Party to any Agent or any Lender under any of the Loan Documents: (1) Borrower shall notify Administrative Agent of any such requirement as soon as reasonably practicable after Borrower becomes aware of it, (2) Borrower shall timely pay any such Tax, (3) the sum payable by such Loan Party shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding, or payment, such Agent or such Lender, as the case may be, receives on the due date an amount equal to what it would have received had no such deduction, withholding, or payment been required or made, and (4) within thirty days after paying any sum from which it is required by law to make any deduction or withholding, Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by the applicable Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(b)    Other Taxes. The Loan Parties shall pay to the relevant Governmental Authorities any present or future stamp or documentary, intangible, recording, filing or similar Taxes that arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other 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 2.22) (“Other Taxes”). Within thirty days after paying any such Other Taxes, each Loan Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(c)    Tax Indemnification. The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent and Lender harmless from and against all Indemnified Taxes and (without duplication) Other Taxes (including, without limitation, Indemnified Taxes and Other Taxes imposed on any amounts payable under this ‎Section 2.19) paid by such Person, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted by the relevant Governmental Authority. Such indemnification shall be paid within ten (10) days from the date on which any Agent or Lender makes written demand therefor specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes.

(d)    Evidence of Exemption From or Reduction of U.S. Withholding Tax.

(i)    Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to a Loan Party and the Administrative Agent, at the time or times reasonably requested by a Loan Party or the Administrative Agent, such properly completed and executed documentation reasonably requested by a Loan Party or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by a Loan Party or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by a Loan Party or the Administrative Agent as will enable a Loan Party or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (ii), (iv) and (v) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)    Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent (for itself and transmission to Borrower upon Borrower’s written request), on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent (in its reasonable exercise of its discretion) or upon the reasonable request of a Loan Party, (i) two original copies of Internal Revenue Service Form W-8IMY (with appropriate attachments), W‑8BEN or W-8BEN-E, or W-8ECI (or any successor forms), as applicable, properly completed and duly executed by such Lender to establish that such Lender is not subject to, or is subject to a reduced rate of, deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees, or other amounts payable under any of the Loan Documents, and (ii) if such Lender is claiming exemption from United States federal income tax under Section 871(h) or 881(c) of the Internal Revenue Code, a Certificate Regarding Non-Bank Status, properly completed and duly executed by such Lender. Each Lender required to deliver any forms or certificates with respect to United States federal income tax withholding matters pursuant to this ‎Section 2.19(d) hereby agrees, from time to time after the initial delivery by such Lender of such forms or certificates, whenever a lapse in time or change in circumstances renders such forms or certificates obsolete or inaccurate in any material respect, that such Lender shall deliver to Administrative Agent (for itself and transmission to Borrower) two new original copies of Internal Revenue Service Form W-8IMY (with appropriate attachments thereto), W-8BEN or W-8BEN-E, or W-8ECI, as applicable, and, if applicable, a Certificate Regarding Non-Bank Status (or any successor forms), as the case may be, properly completed and duly executed by such Lender, or promptly notify Administrative Agent and Borrower of its inability to deliver any such forms or certificates. Notwithstanding the above, a Non-US Lender shall not be required to deliver any form pursuant to this ‎Section 2.19(d)(i) that such Non-US Lender is not legally able to deliver.

(iii)    Any Non-US Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Non-US Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of a Loan Party or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit a Loan Party or the Administrative Agent to determine the withholding or deduction required to be made.

(iv)    If a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by a Loan Party or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by a Loan Party or Administrative Agent as may be necessary for the Loan Party and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this ‎Section 2.19(d)(iii), FATCA shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding the above, a Lender shall not be required to deliver any form or other form of documentation pursuant to this ‎Section 2.19(d)(iii) that such Non-US Lender is not legally able to deliver.

(v)    Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes shall deliver to Administrative Agent (for itself and transmission to Borrower), on or prior to the Closing Date (in the case of each such Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent (in its reasonable exercise of its discretion) or upon the reasonable request of a Loan Party, two original copies of Internal Revenue Service Form W-9 (or any successor forms) properly completed and duly executed by such Lender to establish that such Lender is not subject to United States backup withholding taxes with respect to any payments to such Lender of principal, interest, fees, or other amounts payable under any of the Loan Documents.

(e)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.19 (including by the payment of additional amounts pursuant to this Section 2.19), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.19 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(f)    Survival. Each party’s obligations under this ‎Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(g)    For purposes of this Section 2.19, “applicable law” shall include FATCA.

Section 2.20    Obligation to Mitigate . Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under ‎Section 2.17, ‎2.18, or ‎2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund, or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender or (b)  take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would be required to be paid to such Lender pursuant to ‎Section 2.17, ‎2.18, or ‎2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, funding, or maintaining of such Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Loans or the interests of such Lender; provided, that such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 unless Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.

Section 2.21    [Reserved] .

Section 2.22    Removal or Replacement of a Lender . Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under ‎Section 2.18, ‎2.19, or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Borrower’s request for such withdrawal, (b) [reserved], or (c) in connection with any proposed amendment, modification, termination, waiver, or consent with respect to any of the provisions hereof as contemplated by ‎Section 10.05(b), the consent of Administrative Agent and Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased Cost Lender or Non-Consenting Lender (the “Terminated Lender”), Administrative Agent may (which, in the case of an Increased Cost Lender, only after receiving written request from Borrower to remove such Increased Cost Lender), by giving written notice to Borrower and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of ‎Section 10.06, and Terminated Lender shall pay any fees payable thereunder in connection with such assignment; provided, that (A) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (1) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, together with, in the case of a Non-Consenting Lender, the Applicable Prepayment Premium with respect thereto (as if such Loans had been prepaid to such Non-Consenting Lender pursuant to Section 2.12 hereof) and (2) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to ‎Section 2.10, (B) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to ‎Section 2.18 or ‎2.19, and (C) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, that any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.

Section 2.23    Alternate Rate of Interest  . Notwithstanding anything to the contrary herein or in any other Loan Document:

(a)    Replacing USD LIBOR. On March 5, 2021 the Financial Conduct Authority (the “FCA”), the regulatory supervisor of USD LIBOR’s administrator (the “IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12- month USD LIBOR tenor settings. On the earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

(b)    Replacing Future Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York time) on the fifth (5^th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During the period referenced in the foregoing sentence, the component of the Alternate Base Rate based upon the Benchmark will not be used in any determination of Alternate Base Rate.

(c)    Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(d)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this ‎Section 2.23, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this ‎Section 2.23.

(e)    Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or USD LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

(f)    Definitions.

Capitalized terms used in this Section 2.23 shall have the meanings as set forth below:

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

“Benchmark” means, initially, USD LIBOR as determined in accordance with clause (a) of the definition of “Adjusted LIBOR”; provided that if a replacement of the Benchmark has occurred pursuant to this ‎Section 2.23, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” means, for any Available Tenor:

(a)    For purposes of clause (a) of this ‎Section 2.23, the first alternative set forth below that can be determined by the Administrative Agent:

(i)    the sum of: (A) Term SOFR and (B) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or

(ii)    the sum of: (A) Daily Simple SOFR and (B) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of USD LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a) of this ‎Section 2.23; and

(b)    For purposes of clause (b) of this ‎Section 2.23, the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

provided that, if the Benchmark Replacement as determined pursuant to foregoing clauses (a) or (b) would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Adjusted LIBOR Rate,” the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Transition Event” means, with respect to any then-current Benchmark other than USD LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.