Sample Agreements

NECCA Seminar

November 9, 2016

1013644 -1-

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (the “Agreement”) dated

___________, 20__ (the “Effective Date”) between ______________ and _______________ (each in connection with

Confidential Information (as defined below) provided by it or on its behalf, a “Discloser” and, in connection with

Confidential Information received by it or on its behalf, a “Recipient,” and, together, the “Parties”).

WHEREAS, each Party to this Agreement may be

receiving from the other Party or its officers, agents,

employees, or consultants, including financial and legal

advisers (collectively, “representatives”) information of a

confidential and non-public nature for use by it and its

representatives in connection with a possible business

transaction (the “Transaction”); and

WHEREAS, the Parties desire to protect the

confidentiality of such information in accordance with

the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual

covenants contained in this Agreement, the Parties

hereby agree as follows:

1. Confidential Information Defined. Each Party may

receive certain non-public and confidential oral or

written information from the other Party or its

representatives, including but not limited to, trade

secrets, technical and financial information, business

plans, market projections and other confidential or

proprietary information, in each case relating to the

Transaction, that is either marked or otherwise

identified as proprietary or confidential at the time of

disclosure, or that by its nature would be understood

by a reasonable person under the circumstances to be

proprietary or confidential, whether disclosed prior

to or following the Effective Date. All such

information thus supplied by Discloser to Recipient

is hereinafter referred to as “Confidential

Information” of Discloser.

2. Nondisclosure Obligation. Recipient shall keep all

Confidential Information of Discloser received by it

confidential and shall not disclose such Confidential

Information, in whole or in part, to any person other

than its representatives. Such Confidential

Information shall be used by Recipient solely in

connection with its evaluation of the Transaction,

and shall not be used for Recipient's own benefit in

any way unrelated to the Transaction or for any other

purpose (including without limitation development

of any competitive product). For the purpose of

complying with the obligations set forth herein, each

Party shall use efforts commensurate with those it

employs for the protection of its own confidential

information, but in no case shall such efforts consist

of less than a reasonable degree of care.

3. Exceptions to Confidentiality. This Agreement

imposes no obligation upon Recipient with respect to

any Confidential Information disclosed under this

Agreement to it which: (i) was in Recipient’s

possession before receipt from Discloser or its

representatives; or (ii) is or becomes a matter of

public knowledge through no fault or violation of

any obligation or duty of Recipient to Discloser; or

(iii) received by the Recipient on a nonconfidential

basis from a source other than Discloser; or (iv) is

independently developed by Recipient without

reference to the confidential information disclosed

hereunder. Notwithstanding any other provision of

this Agreement, Recipient may disclose Confidential

Information of Discloser to the extent such

disclosure is required by law, rule, regulation or

legal process; provided however, that Recipient shall

give prompt notice of any such request for such

information to Discloser, and agrees to cooperate, to

the extent practicable, with Discloser, at Discloser’s

expense, to challenge the request or limit the scope

thereof, as Discloser may reasonably deem

appropriate.

4. No Representations or Further Obligations.

Discloser warrants that it has the right to make the

disclosures to be made by it or on its behalf under

this Agreement. All disclosures made hereunder are

at the sole discretion of Discloser. It is understood

that this Agreement does not obligate either Party to

enter into any further agreements or to proceed with

the Transaction or any other possible relationship or

other transaction. Neither of the Parties makes any

covenants, warranties or representations with respect

to the accuracy or completeness of any Confidential

Information disclosed hereunder, and neither Party

shall have any liability arising out of the use of its

Confidential Information disclosed under this

Agreement. No licenses, express or implied, are

granted by either Party with respect to its

Confidential Information.

5. Non-Solicitation. During the term of this

Agreement and for a period of one year following

the date of the termination of same, neither Party

shall directly or indirectly, induce or attempt to

induce any employee of, or consultant to, the other

party to leave the employ of the other party nor hire

any such individual.

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6. Return of Information. Upon the written request of

Discloser, Recipient shall destroy or return to

Discloser all copies of the Confidential Information

of Discloser, except that one copy may be retained in

the files of Recipient's legal counsel to be used

solely in connection with any dispute that may arise

with respect to the Confidential Information, but

shall remain subject to the terms and conditions of

this Agreement.

7. Termination. Recipient's obligations under this

Agreement shall expire on the fifth (5th) anniversary

of the date of disclosure of the Confidential

Information, except that Recipient’s obligations with

respect to trade secrets and customer data of

Discloser shall not expire.

8. Miscellaneous.

a. All additions or modifications to this Agreement

must be made in writing and must be signed by

both Parties.

b. This Agreement is made under, and shall be

construed and enforced in accordance with, the

laws of the Commonwealth of Massachusetts

(without giving effect to the conflict of laws

rules thereunder). Each Party consents to

exclusive jurisdiction and venue of courts in

Boston, Massachusetts for all disputes relating

to this Agreement.

c. The Parties acknowledge that money damages

would not be a sufficient remedy for any breach

of this Agreement, and that, accordingly, in the

event of any such breach or threatened breach,

the non-breaching Party shall be entitled to seek

equitable relief, including an injunction or

specific performance.

d. If any one or more provisions of this Agreement

are determined to be invalid, illegal or

unenforceable in any respect, the remaining

provisions of this Agreement shall remain in

effect and shall not be affected by such

invalidity, illegality or unenforceability.

e. This Agreement (a) constitutes the entire

agreement of the Parties with respect to its

subject matter and supersedes any prior

agreement or understanding with respect to the

subject matter hereof, and (b) may be executed

in counterparts.

f. This Agreement may not be assigned by either

Party without the prior written consent of the

other Party. This Agreement will be binding

upon and inure to the benefit of the Parties

hereto and their respective successors and

permitted assigns.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first above written.

[___________________] [_______________]

By: _______________________________ By: _____________________________

Name: Name:

Title: Title:

[DATE]

[ADDRESS]

Dear ______________:

We are pleased to re-confirm the interest of [BUYER] (“Buyer”) in acquiring the business of

[COMPANY] (the “Company”) and certain real property owned by [OWNER] (“Owner”) used

in the operation of the Company’s business (the “Real Property”). This letter summarizes the

principal terms and conditions upon which Buyer agrees to enter into discussions to acquire the

Company and the Real Property and certain related matters (collectively, the “Acquisition”).

In consideration of Buyer’s agreement to continue to deploy resources in an effort to bring the

proposed transaction to fruition expeditiously, we would like a commitment from the Company

and Owner to work exclusively with Buyer towards the closing (“Closing”) of the Acquisition.

Accordingly, Buyer, the Company and Owner agree as follows:

1. Preliminary Term Sheet. Attached hereto is a Preliminary Term Sheet for the proposed

Acquisition. The proposal set forth in the Preliminary Term Sheet will expire if we do not

receive your signed copy of this letter by 5:00 PM (New York Time) on __________, 20__.

Although it is the intent of the parties that discussions toward reaching a definitive agreement

proceed based upon the Preliminary Term Sheet, the terms contained in the Preliminary Term

Sheet have not been agreed to by either party, are not binding on either party and the proposal as

set forth in the Preliminary Term Sheet is subject to satisfactory completion of due diligence

review by Buyer, negotiation and execution of definitive agreements regarding the terms and

conditions of the Acquisition (the “Agreements”), approvals of the Buyer Directors and

Members and the Company’s Directors, Company shareholder approval and receipt of all

necessary regulatory consents and approvals. No past or future action, course of conduct, or

failure to act relating to the Acquisition contemplated herein, or relating to the negotiation of the

terms of the Acquisition or the Agreements, including, without limitation, efforts by any party to

complete due diligence or prepare Agreements, which will give rise to or serve as a basis for any

obligation or other liability on the part of either of us to complete the Acquisition.

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2. Definitive Agreements. Buyer plans to provide an initial draft of the Agreements within

thirty (30) days of the date of this letter. The target Closing of the Acquisition will be sixty (60)

days after the date of this letter.

3. No-Shop/Exclusivity. Between the date of this letter and the Expiration Date, as defined

below, (the “No-Shop Period”), or such earlier date as Buyer, the Company and Owner all agree

to discontinue discussions of the Acquisition, Owner will not, and the Company will not (and

will use its best efforts to ensure that its officers, directors, employees, affiliates and legal,

accounting and financial advisors or agents do not on its behalf), take any action to solicit,

initiate, seek, encourage, discuss or support any proposal or offer from, furnish any information

to, or participate in any negotiations with, any corporation, partnership, person or other entity or

group (other than negotiations with Buyer) regarding any acquisition of the Company, any

merger or consolidation with or involving the Company, any acquisition of any portion of the

stock or assets of the Company or any acquisition of the Real Property. The Company and

Owner agree that any such negotiations (other than negotiations with Buyer) in progress as of

the date of this letter will be suspended during such period. In no event will the Company or

Owner accept or enter into an agreement concerning any such third party acquisition transaction

during such period. The Company and Owner will notify Buyer immediately (not later than 24

hours) after receipt by Owner, the Company or its officers and directors or after such time as the

officers and directors become aware of such receipt by any of the Company’s shareholders,

employees, affiliates or advisors, of any unsolicited proposal for any third party acquisition

transaction or any request for nonpublic information in connection with such a proposal or for

access to the Real Property, the properties, books or records of the Company by any person or

entity that informs the Company or Owner that it is considering making, or has made, such a

proposal. Such notice to Buyer will be made in writing and will indicate in reasonable detail the

terms and conditions of such proposal (which details need not include the identity of the

offeror). This letter (except as set forth in Section 8 hereof) shall terminate and have no further

force and effect on the date that is sixty (60) days from the date hereof (the expiration of such

period being the “Expiration Date”).

4. Confidentia1. This letter, the existence or substance of any subsequent discussions

with regard hereto, and any information (in any form) which Buyer, Owner or the

Company is provided or is reviewed by either of us in the course of the negotiations

relating to the Acquisition shall be deemed “Confidential Information” and shall not be

disclosed to any third parties. Confidential Information shall only be used by the parties in

connection with an evaluation and negotiation of the Acquisition, and shall not be used for

any party’s own benefit in any way unrelated to the Acquisition or for any other purpose.

Each party shall cause its employees, agents and advisors to comply in all respects with

the provisions thereof. Any of the parties, but only after consultation with the others at

least 24 hours ahead of time, may at any time make a disclosure if it is advised by

independent legal counsel that such disclosure is required under applicable law or

regulatory authority. Confidential Information shall not include information of the other

parties that (a) was in the recipient’s possession before receipt from the discloser, (b) is or

becomes a matter of public knowledge through no fault or violation of any obligation or

duty of the recipient to the discloser, (c) is approved for release by the discloser in writing,

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or (d) is independently developed by the recipient without reference to Confidential

Information. Except as permitted by this paragraph, under no circumstances will Buyer,

Owner or the Company (or any of their respective officers, directors, employees or

affiliates) discuss or disclose the existence or terms of this letter (or that Buyer, Owner or

the Company or any of their respective officers, directors, employees or affiliates are

holding discussions) with or to any third party other than such legal, accounting and

financial advisors of Buyer, Owner or the Company who have a need to know such

information solely for purposes of assisting Buyer, Owner or the Company in regard to the

Acquisition.

5. Announcements. Except as permitted by Section 4 above, the parties, prior to the Closing

of the Acquisition, will not make any public announcement concerning this letter, their

discussions or any other memoranda, letters or agreements between the parties relating to the

Acquisition, except in a mutually agreed-upon form.

6. Governing Law. This letter and its application and interpretation will be governed

exclusively by the laws prevailing in the Commonwealth of Massachusetts without regard to its

conflict of law principles.

7. Entire Agreement. This letter sets forth the entire understanding and agreement of the

parties with respect to the subject matter hereof. This letter shall not be amended or modified

except by written instrument duly executed by each party. Any and all previous agreements and

understandings between the parties regarding the subject matter of this letter, whether written or

oral, are superseded hereby.

8. Binding Commitment. This letter is intended solely as a basis for further discussion

between us and except with respect to the provisions of Sections 3, 4, 5, 6, 7 and this

Section 8, which are intended to be binding and enforceable, is not intended to be and does

not constitute a legal or binding obligation. Any actions taken by a party in reliance on the

preliminary understandings herein shall be at that party's own risk. Except with respect to

the provisions of Sections 3, 4, 5, 6, 7 and this Section 8, the parties do not intend to be

bound until they enter into the Agreements.

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Please indicate the concurrence of the Company with this letter by executing two originals and

returning one copy to the undersigned at your earliest convenience. We look forward to the

successful completion of the discussions contemplated by this letter.

Very truly yours,

BUYER

By:____________________________

Name:

Title:

AGREED TO AND ACCEPTED:

COMPANY

By:____________________________

Name:

Title:

_______________________________

Owner

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Preliminary Term Sheet

This Preliminary Term Sheet is an expression of intent only, is meant to be used as a negotiation

aid by the parties and is not meant to be binding on the parties now or at any point in time in the

future. The parties acknowledge that they must complete negotiations on the points set forth in

this Preliminary Term Sheet as well as on points well beyond the scope of this Preliminary Term

Sheet. Accordingly, the parties do not intend to be bound until they enter into definitive

agreements regarding the subject matter of this Preliminary Term Sheet. This Preliminary Term

Sheet is being delivered along with a Letter of Intent among the parties dated __________, 20__

(the “Letter of Intent”).

A. Structure

B. Purchase Price

C. Indemnification

D. Closing

E. Miscellaneous

1013670

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”), made

this ____ day of ______________, 20__ (the “Effective Date”),

by and between ____________________, a Massachusetts

corporation with its principal place of business at

__________________, __________, Massachusetts _____,

hereinafter referred to as the “Company,” and the party executing

this Agreement as the “Contractor.” The parties hereto agree as

follows:

1. Services

Contractor shall perform the services for the Company as

described on Exhibit A (the “Services”).

2. Term and Termination

The term of this Agreement shall commence upon the date

hereof and may be terminated by the Company with or without

cause at any time upon thirty (30) days prior written or electronic

(e.g., email) notice to Contractor. Contractor may terminate this

Agreement for cause. For purposes of this Agreement, “for

cause” shall mean any material violation of this Agreement by the

Company, provided that the Company fails to cure such violation

within thirty (30) days of written notice from Contractor

specifying the nature of such violation and requiring its remedy.

3. Facilities

All facilities and equipment necessary to perform the

Services shall be provided by Contractor, except as set forth in

Exhibit A.

4. Fees

In consideration of the Services to be rendered pursuant to

this Agreement, subject to performance of the Services to the

satisfaction of the Company and compliance with the terms and

conditions of this Agreement by Contractor, Contractor shall be

entitled to fees payable as set forth in Exhibit A attached hereto.

All fees shall be due and payable upon the Company’s acceptance

of the Services. No further fees shall be due or payable under this

Agreement after its termination. Any payments due upon the

completion of milestones or deliverables shall only be due if and

when the Company accepts such milestones or deliverables in

writing as completed to its satisfaction.

5. Devotion of Time

Contractor shall devote such time to the performance of

Contractor’s duties under this Agreement as is reasonable and

necessary for the satisfactory performance of the Services.

Should the Company require additional services not included in

this Agreement, the parties shall negotiate in good faith an

amendment to this Agreement, and if such amendment is

executed, such additional services shall be considered “Services”

hereunder.

6. Exclusivity

During the term of the Agreement, Contractor agrees that

Contractor will not directly or indirectly, as owner, partner,

shareholder, employee, or independent contractor, perform

services of a similar nature to those to be performed under this

Agreement for, or become a director, employee, or officer of, or

become associated in any manner with, any person, firm,

corporation, or other organization that is engaged in the business

of providing services similar to those to be provided under this

Agreement, without the express written consent of the Company.

7. Confidentiality

During the term of this Agreement, Contractor will have access

to and become acquainted with various trade secrets, confidential

information and proprietary information that are owned by the

Company or clients or venders of the Company (“Confidential

Information”). Contractor shall not disclose or cause to be disclosed

any Confidential Information, directly or indirectly, or use it in any

way, either during the term of this Agreement or at any time

thereafter, except as required in the course of the performance of

Contractor’s obligations under this Agreement. All files, records,

documents, specifications, equipment, reports, publications,

illustrations, and similar items relating to the business of the

Company, third parties with whom the Company has relationships,

whether prepared by Contractor or otherwise coming into

Contractor’s possession during the term of this Agreement, shall

remain the exclusive property of the Company and such third party,

as applicable. For purposes of this Agreement, trade secrets shall

include but not be limited to information relating to the Company,

third parties with which the Company has relationships and

information disclosed to Contractor or known by Contractor as a

consequence of or through Contractor’s association with the

Company or subscribers of the Company, including information

conceived, originated, discovered, or developed by Contractor, not

generally known in the relevant trade or industry and encompassed

in all designs, programs, plans, proposals, marketing and sales

plans, prospective or current subscriber lists, financial information,

costs, pricing information, reports, publications, illustrations, data

and data bases, and all concepts or ideas in or reasonably related to

the business of the Company or clients of the Company or their

products, process, and services, including information relating to

research, development, inventions, manufacture, purchasing,

accounting, data base creations and processing, marketing,

merchandising, and selling, whether embodied in hard copy, in

software, or in other computer-readable form.

Upon completion of the work to be performed pursuant to this

Agreement, or any continuation hereof, or upon the termination of

this Agreement, Contractor shall return all copies and originals of

any reports, working papers, or other documents that Contractor has

prepared for the Company. Contractor shall not deliver, reproduce,

or in any way allow such documents or things to be delivered to or

used by third parties without specific direction or consent from a

duly authorized representative of the Company. During and after the

completion of this Agreement, and any continuation hereof,

Contractor shall not publish, release, or otherwise make available to

any other party any information describing or containing any

Confidential Information, report, or information of the Company, or

third parties with which the Company has relationships without

specific written authorization of the Company. Contractor shall not

make reference in writing or verbally to the fact that Contractor has

worked for the Company or use the Company’s name or logos

without specific written authorization of the Company. Contractor

shall take appropriate measures to ensure that all employees, agents,

and permitted subcontractors of Contractor comply with the

provisions of this Agreement. Such measures shall include, but

shall not be limited to, requiring all of Contractor’s employees, who

have access to any of the material referred to above, to sign an

agreement substantially similar to this Agreement.

8. Non-Solicitation

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Contractor shall not, directly or indirectly, during the term of

this Agreement or any continuation hereof, and for a period of

one (1) year thereafter, hire, retain or solicit, seek to solicit,

divert, entice away, interfere with, or contact with the reasonable

expectation of hiring, retaining, accepting, soliciting, diverting or

enticing away, any employee of the Company.

9. Ownership of Work

All work completed pursuant to this Agreement or otherwise

by Contractor for the Company shall be the sole and exclusive

property of the Company and the Company’s assigns, and

Contractor assigns all its right, title and interest therein to the

Company and shall retain no ownership, interest, or rights therein.

the Company may, at its option and at its own expense, take out a

patent or copyright on the work in the United States of America

and such other countries as it shall deem proper. Such patent or

copyright shall be in the name of the Company and the Company

shall remain the sole owner of such patent or copyright.

Contractor hereby grants to the Company the right and power to

apply in the Company’s name or otherwise for such patent,

copyright or renewal or extension thereof as the Company may

deem proper, and all right, title, and interest in any such patent,

copyright, renewal, or extension shall rest exclusively with and is

hereby granted to the Company and its successors and assigns.

10. Warranty

Contractor represents and warrants to the Company that the

work to be prepared hereunder shall be the original and

unpublished work of Contractor, will contain no defamatory or

unlawful matter and will in no way infringe upon any copyright,

patent, or trademark or violate the proprietary rights of any other

person.

11. Indemnity

Contractor agrees to indemnify and hold the Company

harmless from any suit, demand, or claim against the Company

by reason of any breach of this Agreement, and Contractor further

agrees to pay any judgment or reasonable settlement offer

resulting from any such suit, demand, or claim, and to pay any

reasonable attorney’s fees incurred by the Company in

connection with such suit, demand, or claim.

12. [Limitation of Liability - Resist including]

Except in the case of willful misconduct or gross

negligence on the part of Contractor, Contractor shall not be

liable for any indirect, incidental, special, exemplary, or

consequential damages (including loss of profits), even if it has

been advised of the possibility of such damages. Contractor will

not be liable for direct damages arising out of this Agreement or

the Services provided hereunder in excess of the total fees paid

to Contractor by the Company during the term of this

Agreement, except that there shall be no limitation on the

amount of Contractor’s liability for damages arising from

Contractor’s breach of Sections 7 or 10 above, or Contractor’s

willful misconduct or gross negligence

13. Status of Contractor

Contractor is and shall be an independent contractor and not

an employee of the Company under this Agreement. Neither

Contractor nor any employee, agent or permitted subcontractor of

Contractor shall be deemed to be an employee of the Company.

Contractor shall indemnify, save harmless, and defend the

Company from any claims arising from any acts or omissions of

Contractor or Contractor’s employees, agents or permitted

subcontractors. Contractor shall ensure that any employee of

Contractor who performs Services under this Agreement is

qualified and competent to perform such Services. Contractor shall

not utilize subcontractors in its provision of Services hereunder

without the prior written consent of the Company.

14. Entire Agreement; Survival; Terms

This Agreement supersedes any and all other agreements,

either oral or in writing, between the parties hereto with respect to

the subject matter hereof. The Exhibits to this Agreement are

incorporated herein by reference. The provisions of Sections 6

through 14, 17, 18, 19, and 21 shall survive any termination of this

Agreement. The terms “it” or “its” as applied to Contractor shall

mean the Contractor whether Contractor is an entity or an

individual. The term “including” shall mean including without

limitation.

15. Assignment

Neither this Agreement nor any duties or obligations hereunder

shall be assignable by Contractor without the prior written consent

of the Company. In the event of an assignment by Contractor to

which the Company has consented, the assignee or Contractor’s

legal representative shall agree in writing with the Company to

personally assume, perform, and be bound by the covenants,

obligations, and agreements contained herein.

16. Successors and Assigns

Subject to the foregoing provision regarding assignment, this

Agreement shall be binding on the heirs, executors, administrators,

successors, and assigns of the respective parties.

17. Attorney’s Fees

If any action at law or in equity is brought to enforce or

interpret the provisions of this Agreement, the prevailing party shall

be entitled to recover its reasonable attorney’s fees and legal costs in

addition to any other relief or damages to which it may be entitled.

18. Severability

If any part of any term of this Agreement shall be held or

deemed to be invalid, inoperative or unenforceable to any extent by

a court of competent jurisdiction, such circumstance shall in no way

affect any other term or provision of this Agreement, the application

of such term or provision in any other circumstances, or the validity

or enforceability of this Agreement.

19. Governing Law

The validity of this Agreement and any of its terms or

provisions, as well as the rights and duties of the parties hereunder,

shall be governed by the laws of The Commonwealth of

Massachusetts. Contractor agrees that the federal and

Massachusetts state courts located in Suffolk County, Massachusetts

shall have exclusive jurisdiction with respect to any claim, suit or

action brought under this Agreement or relating to the Services

provided hereunder or the actions or omissions of any party hereto

and Contractor hereby consents to such jurisdiction and the venue of

such courts.

20. Amendment

This Agreement may be supplemented, amended or revised

only in a writing signed by the authorized representatives of both

parties.

21. Mediation

Except as provided herein, no civil action with respect to any

dispute, claim, or controversy arising out of or relating to this

Agreement may be commenced until the matter has been

submitted to JAMS Boston, Massachusetts, or its successor, for

mediation. Either party may commence mediation by providing to

JAMS and the other party a written request for mediation, setting

forth the subject of the dispute and the relief requested. The

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parties will cooperate with JAMS and with one another in

selecting a mediator from JAMS's panel of neutrals, and in

scheduling the mediation proceedings. The parties covenant that

they shall participate in the mediation in good faith, and that

they shall share equally in its costs. All offers, promises,

conduct, and statements, whether oral or written, made in the

course of the mediation by any of the parties, their agents,

employees, experts, and attorneys, and by the mediator and any

JAMS employees, are confidential, privileged, and inadmissible

for any purpose, including impeachment, in any litigation or

other proceeding involving the parties, provided that evidence

that is otherwise admissible or discoverable shall not be

rendered inadmissible or non-discoverable as a result of its use

in the mediation. Either party may seek equitable relief prior to

the mediation to preserve the status quo pending the completion

of that process. Except for such an action to obtain equitable

relief, neither party may commence a civil action with respect

to the matters submitted to mediation until after the completion

of the initial mediation session, or forty-five (45) days after the

date of filing the written request for mediation, whichever

occurs first. Mediation may continue after the commencement

of a civil action, if the parties so desire. The provisions of this

paragraph may be enforced by any state or federal court in

Suffolk County, Massachusetts, and the party seeking

enforcement shall be entitled to an award of all costs, fees, and

expenses, including attorneys’ fees, to be paid by the party

against whom enforcement is ordered.

Executed under seal on the day and year above written.

[______________________________________]

By:

Name:

Title:

Name of Contractor:_______________________

By:

Name:

Title:

_____________________________________

Social Security Number Or Taxpayer I.D.

1013670 4

Exhibit A (add attachments if required)

1. Services to be provided:

Services to Be Provided By Contractor:

Personnel to be provided by Contractor:

2. Fee Schedule

Fees:

Payment Terms:

F-1

EXECUTIVE EMPLOYMENT AGREEMENT

This Executive Employment Agreement (this “Agreement”) is entered into as of

_____________ ___, 2016 (the “Effective Date”) by and between [Insert Company

Name] (the “Company”), and [Insert Name of Executive] (the “Executive”).

WHEREAS, the Company desires to engage the full-time services of the

Executive; and

WHEREAS, the Executive desires to be employed by the Company.

NOW, THEREFORE, in consideration of the foregoing and of the respective

covenants and agreements set forth below, the parties hereto agree as follows:

1. Employment and Term. The Company hereby agrees to employ the

Executive, and the Executive hereby agrees to accept such employment, on the terms and

conditions set forth herein, for the period commencing on the Effective Date and

continuing until [________], 2017, or until the Executive’s employment is terminated

earlier in accordance with Section 4 hereof. The initial term of this Agreement and any

renewal term thereof are hereinafter collectively referred to as the “Term.”

2. Duties. The Executive shall, subject to the supervision of the CEO of the

Company, serve as [Executive Vice President of Sales]. In such capacity, he shall be

responsible for the [describe duties of the Executive] and shall have such other duties and

responsibilities consistent with such position and as shall be prescribed from time to time

by the CEO.

3. Compensation and Benefits.

a. Base Salary. The Company shall pay to the Executive a base

salary (“Base Salary”) at the annual rate of $[___________], less applicable taxes and

withholding deductions, payable in accordance with the Company’s payroll policies as in

effect from time to time. The Company shall review the amount of the Base Salary

annually and may in its sole discretion adjust it annually based on the Executive’s

performance and increases in the consumer price index.

b. Expenses. During the term of his employment hereunder, the

Executive shall be entitled to receive prompt reimbursement for all reasonable expenses

incurred by him (in accordance with the reasonable policies and procedures established

from time to time by the Company) in performing services hereunder, provided that the

Executive properly accounts therefor in accordance with Company policy.

c. Benefits. During the Term and subject to any contribution

generally required of executives of the Company, the Executive shall be entitled to

participate in any and all executive benefit plans from time to time in effect for senior

management executives of the Company generally, except to the extent such plans are in

a category of benefit otherwise provided to the Executive. Such participation shall be

subject to (i) the terms of the applicable plan documents, and (ii) generally applicable

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Company policies with respect to any such benefits. The Company may alter, modify, or

terminate its executive benefit plans at any time as it, in its sole discretion, determines to

be appropriate; provided, however, any such alterations, modifications, or terminations

affecting the Executive shall be generally applicable to the management of the Company.

d. Vacations. The Executive shall be entitled to paid vacation and

paid holidays in accordance with policies adopted by the Company as in effect from time

to time.

e. Proration. Any payments or benefits payable to the Executive

hereunder in respect of any calendar year during which the Executive is employed by the

Company for less than the entire year, unless otherwise provided in the applicable plan or

arrangement, shall be prorated in accordance with the number of days in such calendar

year during which he is so employed.

4. Ownership of Work. All work performed by the Executive during the

Term shall be the sole and exclusive property of the Company and all title and interest

therein shall vest in the Company and shall be deemed to be a work made for hire made

in the course of the services rendered hereunder. The Executive shall be entitled,

however, to [write books, articles; produce movies or television; generate IP unrelated to

employment] (“Work Product”) that shall not become the property of the Company, and

engage in other activities unrelated to the Executive’s work for or the business of the

Company, provided that such Work Product and activities are not in conflict with the

Executive’s obligations to the Company and are disclosed in advance to, and approved in

writing by, the CEO of the Company in consultation with the Executive Committee. All

professional income (i.e., income from professional activities whether or not related to

the Executive’s employment) due to the Executive from any third party for the

Executive’s professional activities during the Term shall inure to the benefit of, and be

paid to, the Company. The Executive agrees that at any time during or after the Term, the

Executive will fully cooperate with the Company and its attorneys or agents in the

preparation and filing of all papers and other documents as may be required to perfect the

Company’s rights in and to any of the works under this section owned by the Company,

provided that the Company will bear the expense of such proceedings.

5. Termination. The Executive’s employment hereunder may be terminated

by the Company or the Executive, as applicable, without any breach of this Agreement,

only under the following circumstances:

a. Death. The Executive’s employment hereunder shall terminate

upon his death.

b. Disability. The Executive’s employment shall terminate if, as a

result of the Executive’s incapacity due to physical or mental illness (as determined by a

qualified independent physician mutually selected by the CEO and the Executive or the

Executive’s legal representative), the Executive shall have been unable, with reasonable

accommodation, to perform the essential functions of his duties and responsibilities

hereunder on a full-time basis for either (i) 90 consecutive days, or (ii) 120 calendar days

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within any 360 consecutive days (which may occur as of the end of such 90- and 120- (as

the case may be) day periods) (“Disability”).

c. Cause. The Company may terminate the Executive’s employment

hereunder for Cause, as hereinafter defined. For purposes of this Agreement, the

Company shall have “Cause” to terminate the Executive’s employment hereunder

(subject to Section 7(d)) upon:

i. The Executive having been convicted of, or having pleaded

guilty or nolo contendere to, any felony, or any crime involving moral turpitude;

ii. The commission by the Executive of any fraud,

embezzlement, or misappropriation of funds of the Company, or any conduct that is

seriously injurious to the business or reputation of the Company as reasonably

determined by the CEO; or

iii. A material breach of any term or condition of this

Agreement by the Executive that is not cured within a period of thirty days from the date

of the occurrence of such breach.

d. Termination by the Company Without Cause. The Company may

terminate the Executive’s employment at any time without Cause effective upon at least

thirty days’ prior written notice.

e. Termination by the Executive. At his option, the Executive may

terminate his employment hereunder (1) for Good Reason, (2) without Good Reason, or

(3) if his health should become impaired to an extent that makes the continued

performance of his duties hereunder hazardous to his physical or mental health or his life.

The Executive’s termination of his employment hereunder because of the occurrence of

the following shall be deemed to have occurred for “Good Reason”: a failure by the

Company to comply with any other material term or provision hereof (including a

reduction in the Executive’s compensation payable in accordance with Section 3 hereof

other than in connection with a uniform reduction in the compensation of all senior

management of the Company) or in any other agreement between the Company and the

Executive, which failure, refusal, or breach shall have continued for a period of at least

thirty days after written notice from the Executive describing such failure, refusal, or

breach in reasonable detail; provided, however, that if such failure, refusal, or breach is

not reasonably susceptible of being remedied within such thirty-day period, the Executive

shall not be entitled to terminate this Agreement for Good Reason if the Company has

made reasonable efforts to commence such remedy and such remedy is completed no

more than ninety days after the written notice from the Executive.

6. Compensation Upon Termination. Upon any termination of this

Agreement, all payments, salary, and other benefits shall cease at the time Notice of

Termination (as defined below) is given, except as specifically provided for in this

Section 6:

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a. Death. If the Executive’s employment terminates by reason of his

death, his final salary and benefit payments will be made to his estate’s legal

representative.

b. Disability. If the Executive’s employment shall be terminated by

reason of Disability, the Executive shall continue to receive his Base Salary and benefits

until the Executive’s employment is terminated pursuant to Section 5(b) hereof and

thereafter the Executive shall receive the Executive’s Base Salary and benefits through

the Date of Termination at the rate in effect at the time Notice of Termination is given

and any disability insurance benefits the Executive is entitled to receive.

c. Cause, Voluntary Termination. If the Executive’s employment

shall be terminated either (1) by the Company for Cause under Section 5(c) or

(2) voluntarily by the Executive, other than for Good Reason, then the Company shall

pay the Executive his Base Salary and provide benefits through the Date of Termination

at the rate in effect at the time Notice of Termination is given.

d. Without Cause or for Good Reason. If (1) the Company shall

terminate the Executive’s employment without Cause, or (2) the Executive shall

terminate his employment for Good Reason, then the Company shall pay or provide to

the Executive:

i. his Base Salary through the Date of Termination at the rate

in effect at the time Notice of Termination is given;

ii. in lieu of any further salary payments to the Executive for

periods subsequent to the Date of Termination and as severance pay to the Executive, an

amount equal to his then Base Salary in effect at the time Notice of Termination is given,

payable in accordance with the Company’s payroll policies in effect from time to time,

for a period equal to the lesser of (1) the remainder of the Term and (2) one year from the

Date of Termination (the “Severance Amount”); and

iii. all fringe benefits payable under the terms of any Executive

benefit plan or other arrangement as of the Date of Termination.

e. Liquidated Damages. Any payments paid to the Executive by the

Company under this Section 5 shall be deemed liquidated damages.

7. Other Provisions Relating to Termination.

a. Notice of Termination. A termination for Cause or for Good

Reason of the Executive’s employment by the Company or by the Executive (other than

termination because of the death of the Executive) shall be communicated by written

Notice of Termination to the other party hereto. A termination due to Disability shall be

communicated by written Notice of Termination sent by the Company to the Executive.

For purposes of this Agreement, a “Notice of Termination” shall mean a notice which

shall indicate the specific termination provision in this Agreement relied upon and shall

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set forth in reasonable detail the facts and circumstances claimed to provide a basis for

termination of the Executive’s employment under the provision so indicated.

b. Date of Termination. For purposes of this Agreement, “Date of

Termination” shall mean: (1) if the Executive’s employment is terminated by his death,

the date of his death; (2) if the Executive’s employment is terminated because of a

Disability pursuant to Section 5(b), then thirty days after Notice of Termination is given

(provided that the Executive shall not have returned to the performance of his duties on a

full-time basis during such thirty-day period); (3) if the Executive’s employment is

terminated by the Company for Cause or by the Executive for Good Reason, then, subject

to Sections 7(c) and 7(d), the date specified in the Notice of Termination; and (4) if the

Executive’s employment is terminated by the Company without Cause or by the

Executive in the absence of a Good Reason, then thirty days after a Notice of

Termination is given.

c. Good Reason. Upon the occurrence of an event described in

Section 5(e)(1), the Executive may terminate his employment hereunder for Good Reason

at any time within thirty days thereafter by giving a Notice of Termination to the

Company to that effect. If the effect of the occurrence of the event described in

Section 5(e)(1) may be cured, the Company shall have the opportunity to (i) cure any

such effect for a period of thirty days following receipt of the Executive’s Notice of

Termination or (ii) in the case of an effect not reasonably susceptible of being remedied

in thirty days, to make reasonable efforts to commence a remedy for a period of thirty

days following receipt of the Executive’s Notice of Termination. If the Company fails to

cure any such effect or commence a remedy in the case of (ii) above, the termination for

Good Reason shall become effective on the date specified in the Executive’s Notice of

Termination. If the Executive does not give such Notice of Termination to the Company,

then this Agreement will remain in effect; provided, however, that the failure of the

Executive to terminate this Agreement for Good Reason shall not be deemed a waiver of

the Executive’s right to terminate his employment for Good Reason upon the occurrence

of a subsequent event described in Section 5(e)(1) in accordance with the terms of this

Agreement.

d. Cause. In the case of any termination of the Executive for Cause,

the Company will give the Executive a Notice of Termination describing in reasonable

details the facts or circumstances giving rise to the Executive’s termination (and, if

applicable, the action required to cure same).

e. Release. Any payments of benefits to be made or provided under

Section 6(d) shall be subject to the Executive executing and delivering to the Company a

general release in form and substance satisfactory to the Company of any and all claims

related to either his employment or the termination thereof by the Company.

8. Restrictions.

a. Noncompetition. The Executive shall not, during the Term,

directly or indirectly, run, operate, or control, be employed by or provide consulting

6

services to, serve as an officer, director, manager, or managing partner of, or participate

in, lend his name to, own, invest in, or be connected in any manner with the management,

ownership, operation, or control of any business, venture, or activity that engages in any

business in which the Company is engaged or has under development at any time during

the Term, except as approved by the CEO of the Company.

b. Confidentiality. The Executive shall not, directly or indirectly,

during the Term and for two years following the end of the Term or thereafter, reveal,

divulge, or make known to any person or entity, or use for the Executive’s personal

benefit or the benefit of any third party, any confidential information or trade secrets of

the Company acquired during the course of employment hereunder with regard to the

financial, business, or other affairs of the Company (including, without limitation, any list

or record of persons or entities with which the Company has any dealings), other than

(1) material already in the public domain, (2) information of a type not considered

confidential by persons engaged in the same business or a similar business to that

conducted by the Company, (3) information received from a third party not under any

obligation of confidentiality to the Company, and (4) material that the Executive is

required to disclose under any of the following circumstances: (A) reasonably necessary

or appropriate disclosure to another executive of the Company or to representatives or

agents of the Company (such as independent public accountants and legal counsel) in the

performance by the Executive of his duties and responsibilities hereunder; (B) at the

express direction of any authorized governmental entity; (C) pursuant to a subpoena or

other court process; or (D) as otherwise required by law or the rules, regulations, or

orders of any applicable regulatory body. The Executive shall, at any time reasonably

requested by the Company, promptly deliver to the Company all material memoranda,

notes, reports, lists, and other documents (and all copies thereof) relating to the business

of the Company that he may then possess or have under his control.

c. Non-Solicitation. During the Term, the Executive shall not solicit,

or attempt to solicit, any officer, director, or employee of, or consultant to, the Company

to leave his engagement with the Company.

d. Non-Disparagement. During the Term and for a period of two (2)

years thereafter, the Executive will not publicly or privately, directly or through others, in

any form of media, denigrate, sully, portray in a negative light, disparage, or otherwise

cast aspersion upon the Company, its mission, its activities, or its past or present officers,

employees, or directors, provided however, that this provision will not apply to the extent

that the Executive is making truthful statements when required by law or by order of a

court or other legal body having jurisdiction or when responding to any inquiry from any

governmental agency or regulatory or self-regulatory organization.

9. Assignment. Neither the Company nor the Executive may make any

assignment of this Agreement, or any interest in it, by operation of law or otherwise,

without the prior written consent of the other; provided, however, that the Company may

assign its rights and obligations under this Agreement without the consent of the

Executive in the event that the Company shall effect a reorganization, consolidate with,

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or merge into, any other person or transfer all or substantially all of its properties or assets

to any other person.

10. Enforcement of Covenants. The Executive acknowledges that the

Executive has carefully read and considered all the terms and conditions of this

Agreement, including the restraints imposed upon the Executive pursuant to

Sections 8(a), (b), and (c). The Executive agrees that said restraints are necessary for the

reasonable and proper protection of the Company and its affiliates and that each and

every one of the restraints is reasonable in respect to subject matter, length of time, and

geographic area. The Executive further acknowledges that, were the Executive to breach

any of the covenants contained in Sections 8(a), (b), or (c), the damage to the Company

would be irreparable. The Executive therefore agrees that the Company, in addition to

any other remedies available to it, shall be entitled to preliminary and permanent

injunctive relief against any breach or threatened breach by the Executive of any of said

covenants. The parties further agree that, in the event that any provision of Sections 8(a),

(b), or (c) shall be determined by any court of competent jurisdiction to be unenforceable

by reason of its being extended over too great a time, too large a geographic area, or too

great a range of activities, such provision shall be deemed to be modified to permit its

enforcement to the maximum extent permitted by law.

11. Conflicting Agreements. The Executive hereby represents and warrants

that the execution of this Agreement and the performance of the Executive’s obligations

hereunder will not breach or be in conflict with any other agreement to which the

Executive is a party or is bound and that the Executive is not now subject to any

covenants against competition or similar covenants that would affect the performance of

the Executive’s obligations under this Agreement. The Executive will not disclose to or

use on behalf of the Company any proprietary information of a third party without such

party’s consent.

12. Notices. All notices, requests, and demands and other communications

hereunder shall be in writing and shall be deemed to be duly given if delivered in hand sent

by facsimile transmission with confirmation of transmission, or sent via a nationally

recognized overnight courier service with confirmation of receipt requested, to the parties as

follows:

If to the Executive:

[Name of Executive]

[Address]

If to the Company:

[Name of Company]

[Address]

Attn: Chief Executive Officer

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With a copy to:

[Name of Company’s law firm]

[Address]

Attention: [Name of Attorney]

or to such other address as the intended recipient may have furnished to the other party

hereto in accordance herewith.

13. Amendment; Waiver. No provision of this Agreement may be modified,

waived, or discharged unless such waiver, modification, or discharge is agreed to in a

written instrument signed by both parties hereto. No waiver of, or compliance with, any

condition or provision of this Agreement shall be deemed a waiver of similar or

dissimilar provisions or conditions at the same or at any prior or subsequent time.

14. Validity. The invalidity or unenforceability of any provision or provisions

of this Agreement shall not affect the validity or enforceability of any other provision of

this Agreement, which shall remain in full force and effect.

15. Counterparts. This Agreement may be executed in counterparts, which

together will constitute one and the same agreement.

16. Entire Agreement. This Agreement constitutes the entire agreement

between the parties with respect to the subject matter hereof and supersedes any and all

prior agreements or arrangements between the Executive and the Company.

17. Governing law. This agreement, including the validity hereof and the

rights and obligations of the parties hereunder, shall be construed in accordance with and

governed by the laws of the Commonwealth of Massachusetts without giving effect to the

conflicts of laws provisions thereof.

18. Invalidity. If any portion of this Agreement shall be held or declared to be

void, invalid, or illegal for any reason by any court of competent jurisdiction, such

portion shall be ineffective but shall not in any way invalidate or affect any other portion

of this Agreement.

19. Costs of Enforcement. If either party successfully enforces any rights

arising out of or relating to this Agreement, the prevailing party shall be entitled to

recover reasonable attorneys’ fees and expenses and/or other costs of collection or

enforcement.

20. Dispute Resolution. Except as provided herein, no administrative or court

action with respect to any dispute, claim or controversy arising out of or relating to this

Agreement may be commenced until the matter has been submitted to the Boston office

of JAMS, or its successor, for non-binding mediation. Either party may commence

mediation by providing to the other party a written request for mediation, setting forth the

subject of the dispute and the relief requested. The parties will cooperate with JAMS and

with one another in selecting a mediator from the JAMS Boston panel of neutrals, and in

9

scheduling the mediation proceedings. Neither party may commence an administrative or

court action with respect to the matters submitted to mediation until after the completion

of the mediation.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties have executed, or have caused their duly

authorized representatives to execute, this Agreement as of the date first set forth above.

THE COMPANY: [INSERT NAME OF THE COMPANY] By: Name: Title: Chief Executive Officer

EXECUTIVE: [Insert Executive Full Name]

912396v6

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (the “Agreement”) is entered into as of __________,

2016 by and between [Insert Seller Name], an [Insert State and Entity Form] with a mailing

address at [Insert Address] (the “Seller”), and [Insert Buyer Name], a [Insert State and Entity

Form] with a principal place of business at [Insert Address] (the “Purchaser”).

WHEREAS, the Seller is in the business of [Insert Business Description] (the

“Business”); and

WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to

purchase from the Seller, substantially all of the assets of the Seller used in or relating to the

Business and to assume certain specified liabilities upon the terms and conditions set forth

herein.

NOW, THEREFORE, in consideration of the premises and the mutual covenants,

representations and warranties herein contained, and for other good and valuable consideration,

the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto hereby

agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

1.1 Definitions. In addition to terms defined elsewhere in this Agreement, the

following terms when used in this Agreement shall have the respective meanings set forth below:

“Affiliate” means, with respect to a specified person or entity, any other person or

entity which, directly or indirectly, controls, is controlled by or is under common control

with such person or entity, and any director or officer or any person or entity serving in a

similar capacity with respect to such person or entity or of which the person or entity is a

director, officer, manager or general partner in or trustee of or with respect to which the

specified person or entity serves in a similar capacity.

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

“Contract” means any contract, plan, undertaking, understanding, agreement,

license, lease, note, mortgage or other binding commitment, whether written or oral.

“Environmental Law” means any and all Laws, Orders and Permits relating to the

protection of health, safety or the environment, worker health and safety, and/or

governing the handling, use, generation, treatment, storage, transportation, disposal,

manufacture, distribution, formulation, packaging, labeling, or release of Hazardous

Substances, whether now existing or subsequently amended or enacted, including, but not

limited to: the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Comprehensive

Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et

2

seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Hazardous

Material Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Insecticide, Fungicide

and Rodenticide Act, 7 U.S.C. § 136 et seq.; the Resource Conservation and Recovery

Act of 1976 (“RCRA”), 42 U.S.C. § 6901 et seq.; the Toxic Substances Control Act, 15

U.S.C. § 2601 et seq.; the Occupational Safety & Health Act of 1970, 29 U.S.C. § 651

et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; and the Safe Drinking

Water Act of 1974, 42 U.S.C. § 300(f) et seq.; and the state analogies thereto, and the

regulations promulgated thereunder, all as amended or superseded from time to time; and

any common law doctrine, including but not limited to, negligence, nuisance, trespass,

personal injury, or property damage related to or arising out of the presence, Release, or

exposure to a Hazardous Substance.

“Hazardous Substances” means petroleum, petroleum hydrocarbons or petroleum

products, petroleum by-products, radioactive materials, asbestos or asbestos-containing

materials, gasoline, diesel fuel, pesticides, radon, urea formaldehyde, lead or lead-

containing materials, polychlorinated biphenyls; and any other chemicals, materials,

substances or wastes in any amount or concentration which are now or hereafter become

defined as or included in the definition of “hazardous substances,” “hazardous materials,”

“hazardous wastes,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic

substances,” “toxic pollutants,” “pollutants,” “regulated substances,” “solid wastes,” or

“contaminants” or words of similar import, under any Environmental Law.

“Intellectual Property” means (a) trademarks, (b) copyrights, (c) all trademark

applications, rights to register trademarks and copyrights, (i) all rights under any license

agreements and any licenses.

“Inventories” means all of the materials, supplies and equipment of the Seller sold

or used in the Business.

“IRS” shall mean the United States Internal Revenue Service.

“Law” means all laws, statutes, ordinances and regulations of any governmental

authority including all decisions of courts having the effect of law in each such

jurisdiction.

“Leases” means all equipment and real property leases and subleases and any and

all ancillary documents pertaining thereto (including but not limited to, all amendments,

consents for alterations and evidence of commencement dates and expiration dates).

“Liabilities” means any and all debts, liabilities and obligations, whether accrued

or fixed, absolute or contingent, matured or unmatured or determined or determinable,

including, without limitation, those arising under any Law (including, without limitation,

any Environmental Law), liabilities for taxes, those liabilities arising under any Contract

and liabilities arising out of or relating to products.

“Liens” means any mortgage, pledge, security interest, attachment, encumbrance,

lien (statutory or otherwise), option, conditional sale agreement, right of first refusal, first

3

offer, termination, participation or purchase, or charge of any kind (including any

agreement to give any of the foregoing).

“Litigation” means any suit, action, arbitration, cause of action, claim, complaint,

criminal prosecution, investigation, inquiry, demand letter, governmental or other

administrative proceeding, whether at law or at equity, before or by any court,

governmental authority, arbitrator or other tribunal.

“Material Adverse Effect” means any circumstance, change in, or effect on, the

Business or the Seller that, individually or in the aggregate with any other circumstances,

changes in, or effects on, the Seller or the Business is, or is more than likely to become,

materially adverse to the business, operations, assets or liabilities, prospects, results of

operations or the condition (financial or otherwise) of the Business.

“Order” shall mean any judgment, order, writ, injunction, ruling, stipulation,

determination, award or decree of or by, or any settlement under the jurisdiction of, any

court or governmental authority.

“Permits” means any licenses, permits, pending applications, consents,

certificates, registrations, approvals and authorizations.

“Tax” or “Taxes” means any and all federal, state, local, or foreign taxes, fees,

levies, duties, tariffs, imposts, and other charges of any kind (together with any and all

interest, penalties, additions to tax and additional amounts imposed with respect thereto)

imposed by any governmental authority or other taxing authority, including, without

limitation: taxes or other charges on or with respect to income, franchises, windfall or

other profits, gross receipts, property, sales, use, capital stock, payroll, employment,

disability, social security, workers’ compensation, unemployment compensation, or net

worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp,

transfer, value added, or gains taxes; license, registration and documentation fees; and

customs’ duties, tariffs, and similar charges, whether computed on a separate or

consolidated, unitary or combined basis or in any other manner, whether disputed or not

and including any obligation to indemnify or otherwise assume or succeed to the Tax

liability of any other Person.

“Tax Returns” means returns, reports and information statements, including any

schedule or attachment thereto, with respect to Taxes required to be filed with the IRS or

any other governmental authority or other taxing authority or agency, domestic or

foreign, including consolidated, combined and unitary tax returns.

ARTICLE II

PURCHASE AND SALE

2.1 Purchased Assets. Upon the terms and subject to the conditions set forth in this

Agreement, at the Closing, the Seller agrees to sell, assign, transfer, convey and deliver to the

Purchaser free and clear of all Liens, and the Purchaser agrees to purchase from the Seller, free

and clear of all Liens, all of the Seller’s rights, title and interest in and to all of the assets and

4

property of the Seller used in connection with the operation of the Business (other than the

Excluded Assets) (collectively, the “Purchased Assets”), with the intention that the Business

shall be transferred to the Purchaser as a going concern. The Purchased Assets shall include

without limitation the following:

(a) Inventories. All Inventories, including but not limited to those listed on

Schedule 2.1(a);

(b) Open Customer Orders. All open customer orders as of the Closing Date

and all cash deposits made by customers in connection with such open customer orders;

(c) Books and Records. Copies of all material books and records including,

without limitation, customer lists, sales records, price lists, purchase invoices, sales invoices,

sales literature, advertising material, supply records, inventory records and correspondence files

(together with, in the case of any such information which is stored electronically, the media on

which the same is stored); provided that at the Closing the Seller shall deliver to Purchaser such

books and records for the twelve-month period ending on the Closing Date and shall provide the

Purchaser with books and records relating to any other prior periods, to the extent reasonably

available to the Seller, in a timely manner after receipt of written request from the Purchaser

identifying the specific books and records and the dates the item or items requested;

(d) Goodwill, Intellectual Property. The goodwill of the Seller relating to the

Business together with the exclusive right for the Purchaser to represent itself as carrying on the

Business and the exclusive right, to the extent Seller had such right, to use any words indicating

that the Business is so carried on, including all of the Seller’s rights to use the names “[Insert

Names Associated with the Seller’s Business],” or any variation or portion thereof, as part of the

name or style under which the Business is carried on by the Purchaser and all the Seller’s rights,

title and interest to the Seller’s Intellectual Property, telephone number(s), e-mail addresses

pertaining to the wholesale business, domain addresses and website including without limitation

the Intellectual Property set forth on Schedule 2.1(d);

(e) Permits. To the extent transferable, all Permits held or used by the Seller

in connection with the Business and all pending applications therefor or renewals thereof.

2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1, the Seller shall

retain and the Purchaser shall not purchase (a) Seller’s bank accounts and, any cash on hand or in

the Seller’s bank accounts as of the Closing Date, except for cash deposits made by customers on

open customer orders; (b) any tax or insurance refunds for periods ending prior to the Closing

Date; (c) judgments for collection against Seller’s former customers arising out of activities of

the Seller prior to the Closing Date, and (d) Seller’s accounts receivable (collectively, the

“Excluded Assets”).

2.3 Assumed Liabilities. The Purchaser is not assuming any Liabilities, except for

those set forth on Schedule 2.3. All Liabilities, including without limitation, the Liabilities

incurred or arising out of the conduct of the Business prior to the Closing Date, shall remain the

sole responsibility of and shall be retained, paid, performed and discharged solely by the Seller.

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ARTICLE III

PURCHASE PRICE

3.1 Purchase Price. As consideration for the purchase of the Purchased Assets, upon

the terms and subject to the conditions set forth in this Agreement, the Purchaser will pay to the

Seller an aggregate purchase price (the “Purchase Price”) of $[Insert Purchase Price], which

Purchase Price shall be due and payable in accordance with Section 3.2 below.

3.2 Payment of Purchase Price.

(a) Prior to the date hereof, the Purchaser has delivered the amount of $[Insert

Deposit Amount] to the Seller as a deposit to be offset against the Purchase Price.

(b) Concurrently with the execution of this Agreement, the Purchaser shall

deliver to the Seller, by wire transfer of immediately available cash funds, an amount equal to

$[Insert Closing Payment Amount], (the “Closing Payment”).

(c) On or prior to [Insert Date], the Purchaser shall deliver to the Seller, by

wire transfer of immediately available cash funds, an amount equal to $[Insert Additional

Payment] (the “Additional Payment”).

(d) The Purchaser shall deliver to the Seller, by wire transfer of immediately

available cash funds, an amount equal to $[Insert Subsequent Payment Amount] on the last day

of each fiscal quarter beginning on [Insert Subsequent Payment Commencement Date] and

concluding on [Insert Subsequent Payment Termination Date], or until the balance of the

Purchase Price has been paid (together with the Additional Payment, the “Subsequent

Payments”).

(e) The Additional Payment and Subsequent Payments shall be evidenced by

a Secured Promissory Note in substantially the same form as the one attached as Exhibit A.

3.3 Closing. Subject to the terms and conditions of this Agreement, the closing of the

transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of the

Purchaser at 11:59 A.M. (Eastern Standard Time) on [Insert Closing Date], or at such other place

or time or on such other date as the Seller and the Purchaser may mutually agree upon in writing

(the day on which the Closing takes place being the “Closing Date”).

3.4 Allocation. The Purchase Price shall be allocated to the Purchased Assets in

accordance with Schedule 3.4, subject to the adjustments, if any, set forth in this Agreement.

Any adjustment to the Purchase Price pursuant to this Agreement will be applied to increase or

reduce, as applicable, the allocations set forth in Schedule 3.4 proportionately. After the

Closing, the parties shall make consistent use of the allocation specified on Schedule 3.4 for all

Tax purposes and in all filings, declarations and reports with IRS in respect thereof.

3.5 Transfer Taxes. The Purchaser and the Seller shall divide equally all federal and

state sales Taxes (including any retail sales Taxes), if any, and all other Taxes, duties, fees or

other like charges of any jurisdiction properly payable in connection with the transfer of the

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Purchased Assets by the Seller to the Purchaser, if any. Notwithstanding the foregoing, the Seller

shall be responsible for all other Taxes related to the sale, including without limitation, Taxes on

the gains from the sale of the Purchased Assets, unless the taxing authority specifically allocates

responsibility for payment of those taxes to the Purchaser; in which case the Purchaser shall be

liable for payment of those taxes.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE SELLER

As an inducement to the Purchaser to enter into this Agreement and to consummate the

transactions contemplated hereby, the Seller represents and warrants to the Purchaser as follows:

4.1 Authorization; Enforceability. The Seller has the requisite power and authority to

own, hold, lease and operate their properties and assets and to carry on the Business as currently

conducted. This Agreement has been duly executed and delivered by, and constitutes the legal,

valid and binding obligation of, the Seller, enforceable against the Seller, in accordance with its

terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws

affecting the enforcement of creditors' rights generally and except that the availability of equitable

remedies is subject to the discretion of the court before which any proceeding therefor may be

brought.

4.2 No Violation or Conflict. None of (a) the execution and delivery by the Seller of

this Agreement, (b) the consummation by the Seller of the transactions contemplated by this

Agreement, or (c) the performance of this Agreement will (i) conflict with or violate any Law,

Order or Permit applicable to the Seller or by which the Seller’s properties are bound or affected,

or (ii) result in any breach or violation of or constitute a default (or an event that with notice or

lapse of time or both would become a default) under, or impair the Seller’s rights or alter the

rights or obligations of any third party under, or give to others any rights of termination,

amendment, acceleration or cancellation of, or result in the creation of any Lien on any of the

properties or assets of the Seller pursuant to any Contract or other instrument or obligation to

which the Seller is a party or by which the Seller or its properties are bound or affected.

4.3 Litigation. Except as set forth on Schedule 4.3, there is no action, suit, claim,

proceeding or investigation pending or, to the knowledge of the Seller, threatened against or

affecting the Seller, at law or in equity, or before any federal, state, municipal or other

governmental instrumentality, or any arbitration proceeding relating to the Seller, and, to the

knowledge of the Seller, there is no basis for any of the foregoing.

4.4 Compliance with Law. The Seller is and has conducted the Business in

compliance with, and is not in default or violation of, all Laws, Orders and other requirements

applicable to it or by which any of its assets or properties are bound or affected. The Seller is not

subject to any Order that materially and adversely affects, individually or in the aggregate, the

Business, or its operations, properties, assets or condition (financial or otherwise).

4.5 Employment Matters. Schedule 4.5 contains a complete and correct list of all

employees of, independent contractors and consultants retained by the Seller in connection with

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the Business, showing for each employee, independent contractor and consultant the current job

title or description, current salary or wage level or payment arrangement, accrued vacation and

any bonus, commission or other remuneration paid during the two years prior to the Closing.

Except as set forth in Schedule 4.5:

(a) the Seller has no knowledge that any employee has any plan to terminate

his or her employment with the Business;

(b) the Business is not and has not been a party to any collective bargaining

agreement covering any employee, and no union or association of employees has been certified

or recognized as the collective bargaining representative of any employees or has attempted to

engage in negotiations regarding terms and conditions of employment;

(c) no unfair labor practice charge, work stoppage, picketing or other such

activity relating to labor matters of the Business are pending or, to the knowledge of the Seller,

has been threatened;

(d) there are no current or threatened attempts to organize or establish any

labor union or employee association to represent any employees of the Business;

(e) the Business does not have any workers’ compensation Liabilities that are

not covered by insurance;

(f) there is not in existence any contract of employment with any employee of

the Business that cannot be terminated at will by the Seller without creating any Liability for the

Business (except Liabilities of the Business with respect to wages or other compensation for

services rendered before such termination);

(g) no employee of the Business is currently on short-term or long-term

disability;

(h) the Business is not delinquent in payments to any of the Business’s

employees, consultants or independent contractors for any wages, salaries, commissions, bonuses

or other direct compensation for any service performed for the Business prior to the Closing Date

or amounts required to be reimbursed to such employees, consultants or independent contractors;

(i) the Business has complied in all material respects with all applicable state

and federal equal employment opportunity Laws and with other Laws related to employment,

including those related to wages, hours, worker classification, collective bargaining and the

payment and withholding of Taxes and other sums as required by Law;

(j) the Business is not liable for any arrears of wages, Taxes, penalties or

other sums for failure to comply with any of the foregoing or any withholding or collection in

connection with any amount paid or owing to any employee, consultant or independent

contractor;

(k) the Business is in compliance in all material respects with all applicable

Law, including Section 274A(b) of the Immigration and Nationality Act, regarding the

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employment verification process for its employees, the Business maintains a timely and properly

completed Form I-9 for each current employee and for any former employee for which retention

of Form I-9 is required, and the Business does not knowingly or intentionally employ any person

ineligible to work in the United States under applicable Law;

(l) the Business has never been the subject of (i) any immigration

investigation, enforcement action or legal proceeding involving the federal government, (ii) any

requests by U.S. Immigration Customs Enforcement to inspect the Business’s Forms I-9 or other

immigration records, or (iii) any state or local immigration enforcement investigation or legal

proceeding; and

(m) the Business has never received notification from the Social Security

Administration, IRS or any other Governmental Authority that information provided by the

Business regarding an employee failed to match any such Governmental Authority’s records.

4.6 Governmental Consents and Approvals. The execution, delivery and performance

of this Agreement by the Seller does not and will not require any consent, approval,

authorization, Order, Permit or other order of, action by, filing with or notification to, any

governmental authority.

4.7 Personal and Real Property.

(a) Schedule 4.7 sets forth a list of all Liens and Leases on or related to the

Purchased Assets.

(b) To the knowledge of the Seller, all Inventories and other property that is

material to the operation of the Business is adequate and usable for the use and purposes for

which it is currently used, is in good operating condition, and has been routinely maintained and

repaired in accordance with good business practice.

4.8 Purchased Assets. Except as set forth in Schedule 4.8, the Seller has good and

marketable title to, or, in the case of leased or subleased Purchased Assets, valid and subsisting

leasehold interests in, all the Purchased Assets, free and clear of all Liens. Except as set forth in

Schedule 4.8, the Seller has the complete and unrestricted power and unqualified right to sell,

assign, transfer, convey and deliver the Purchased Assets to the Purchaser without penalty or

other adverse consequences.

4.9 Taxes.

(a) Except as set forth on Schedule 4.9, all returns and reports in respect of

Taxes required to be filed with respect to the Seller or the Business have been timely filed; (b) all

Taxes required to be shown on such returns and reports or otherwise due have been timely paid;

(c) all such returns and reports are true, correct and complete in all material respects; (d) there

are no pending or, to the knowledge of the Seller, threatened actions or proceedings for the

assessment or collection of Taxes against the Seller (insofar as either relates to the activities or

income of the Seller or the Business or could result in Liability of the Seller on the basis of joint

and/or several liability) that was includible in the filing of a return with the Seller on a

consolidated or combined basis; (e) there are no Tax Liens on any assets of the Seller or of the

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Business; and (f) Seller has withheld and paid all Taxes required to have been withheld and paid

in connection with any amounts paid or owing to any employee, independent contractor, creditor,

stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have

been properly completed and timely filed.

4.10 Customers.

(a) Schedule 4.10 attached hereto sets forth the name of each present

customer of the Seller (“Present Customers”) and the amount of revenues received by the Seller

from the account of such customer during the period from [Insert desired time frame – range is

usually 12-24 months].

(b) As of the date hereof there are no existing claims by, or disputes with, any

Present Customer and, to the knowledge of the Seller, there are no claims threatened by any

Present Customer against Seller, and no event has occurred or circumstances exist that is

reasonably likely to give rise to or serve as a basis for any such claims.

4.11 Inventories. All items included in the Inventories consist of a quality and quantity

useable and, with respect to finished goods, saleable in the ordinary course of the Business. The

Seller is not in possession of any inventory not owned by the Seller, including goods already

sold.

4.12 Contracts. The Seller is not a party to any material Contract in connection with

the Business, except for the Contracts listed on Schedule 4.12. Other than the Contracts listed on

Schedule 4.12, no material Contracts are required for the operation of the Business as currently

operated.

4.13 Intellectual Property. The Intellectual Property set forth on Schedule 4.13 are all

those necessary for the operation of the Business. The Seller is the owner of all right, title and

interest in and to the Websites (as defined in the next section), free and clear of all Liens. To the

best of Seller’s knowledge without investigation, Seller is the owner or licensee of all right, title

and interest in and to such Intellectual Property, free and clear of all Liens. To the Seller’s

knowledge without investigation (a) there is no interfering trademark or trademark application of

any other person or entity and (b) no trademark of Seller has been infringed, challenged or

threatened in any way or infringes or is alleged to infringe on any trade name, other person or

entity.

4.14 Websites, Etc. Other than [Insert Website or Websites of the Business] (the

“Websites”), the Seller does not own any website domain names or URLs in connection with the

Business and no other website domain names or URLs are required to operate the Business as

currently operated.

4.15 Environmental Condition.

(a) Except as described in Schedule 4.15, there has not been any Environmental

Condition (i) at any premises at which the Business has been conducted by the Seller, or (ii) at

any property at which Hazardous Substances have been deposited or disposed by or at the behest

or direction of the Seller, nor has the Seller received notice of any such Environmental

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Condition. “Environmental Condition” means any condition or circumstance, including a release

or the presence of Hazardous Substances, whether created by the Seller or any third party, at or

relating to any such property or premises specified in any of clauses (i) or (ii) of this Section that

(A) has required or could reasonably be expected to require abatement or correction under an

Environmental Law, (B) has given or could reasonably be expected to give rise to any civil or

criminal liability on the part of the Seller or the Business under an Environmental Law, or (C)

has created or could reasonably be expected to create a public or private nuisance to a reasonable

person.

(b) The Company has delivered to Buyer complete copies of any written reports,

studies or assessments in the possession or control of the Seller, any agents thereof that relate to

any Environmental Condition.

4.16 Required Consents. Schedule 4.16 sets forth each action, consent, approval,

notification, waiver, authorization, order or filing (each, a “Required Consent” and collectively,

the “Required Consents”) under any Law, Contract or Permit that is necessary with respect to the

execution, delivery and performance by the Seller of this Agreement or any other document

related hereto to avoid a breach or violation of, or giving rise to any right of termination,

cancellation or acceleration of any right or obligation or to a loss of any benefit under any such

Law, Contract or Permit. Other than as set forth on Schedule 4.16, no consent, approval, order or

authorization of, or registration, declaration or filing with, any governmental or other authority or

party is required to be obtained by the Seller in connection with the execution, delivery or

performance of this Agreement or any other document related hereto or the consummation of the

transactions contemplated hereby.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

In order to induce the Seller to enter into this Agreement and to consummate the

transactions contemplated hereby, the Purchaser represents and warrants to the Seller as follows:

5.1 Organization and Qualification. The Purchaser is a corporation duly organized

and validly existing and in good standing under the laws of the [State of Organization] and is

qualified to do business in any jurisdiction where it is required to be so qualified, including the

[State of Qualification].

5.2 Authorization; Enforceability. The Purchaser has the power and authority to

execute, deliver and perform this Agreement. The execution, delivery and performance of this

Agreement and the consummation of the transactions contemplated herein and therein has been duly

authorized and approved by the Purchaser, and no other action on the part of the Purchaser is

necessary in order to give effect thereto. This Agreement has been duly executed and delivered by,

and constitutes the legal, valid and binding obligations of, the Purchaser, enforceable against the

Purchaser, in accordance with its terms.

5.3 No Violation or Conflict. None of (a) the execution and delivery by the Purchaser

of this Agreement, (b) consummation by the Purchaser of the transactions contemplated by this

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Agreement, or (c) the performance of this Agreement will (i) conflict with or violate the

certificate of organization or bylaws of the Purchaser, or (ii) conflict with or violate any Law,

Order or Permit applicable to the Purchaser.

ARTICLE VI

COVENANTS

6.1 Performance. Subject to the terms and conditions provided in this Agreement,

each of the parties to this Agreement shall use its respective reasonable best efforts in good faith

to take or cause to be taken as promptly as practicable all reasonable actions that are within its

power to cause to be performed and fulfilled those of the conditions precedent to its obligations

to consummate the transactions contemplated by this Agreement that are dependent upon its

actions, including obtaining all necessary approvals, to the end that the transactions contemplated

hereby will be fully and timely consummated.

6.2 Regulatory and Other Authorizations; Notices and Consents.

(a) The Seller will use commercially reasonable efforts to obtain all

authorizations, consents, orders and approvals of all governmental authorities and officials that

may be or become necessary for its execution and delivery of, and the performance of its

obligations pursuant to, this Agreement and will cooperate fully with the Purchaser in promptly

seeking to obtain all such authorizations, consents, orders and approvals.

(b) The Seller shall give promptly such notices to third parties and use

commercially reasonable efforts to obtain such third party consents as necessary or desirable in

connection with the consummation of the transactions contemplated by this Agreement and to

transfer to the Purchaser good, clean marketable title of the Purchased Assets, free and clear of all

claims, pledges, encumbrances, liens and restrictions.

6.3 Conduct of the Business.

(a) On or before the Closing Date, the Seller shall pay and satisfy in full all of

its obligations and liabilities relating to the Business, of any nature whatsoever, which relate to

the Business or the Purchased Assets prior to the Closing Date, whether or not such obligations

are due and payable as of or before the Closing Date, except for accrued taxes.

(b) The Seller shall cause to be prepared and timely filed when due, at its

expense, all of its required Tax Returns for all periods up to and including the Closing Date. The

Seller shall be responsible for the payment of all Taxes due or assessed which related to the

operations of the Business for all periods up to and including the Closing Date.

ARTICLE VII

CONDITIONS PRECEDENT TO CLOSING AND DELIVERIES AT CLOSING

7.1 Conditions Precedent to the Obligations of Purchaser. The obligation of the

Purchaser to consummate the transactions described in this Agreement and any and all liability

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of the Purchaser to the Seller shall be subject to the fulfillment at or before the Closing of the

following conditions precedent, each of which may be waived by the Purchaser in its sole

discretion:

(a) Representations, Warranties and Covenants. The representations and

warranties of the Seller contained in this Agreement shall have been true and correct when made

and shall be true and correct in all material respects as of the Closing (other than such

representations and warranties that are qualified by materiality, which shall be true and correct as

of the Closing), with the same force and effect as if made as of the Closing Date, other than such

representations and warranties that are expressly made as of another date, and the covenants and

agreements contained in this Agreement to be complied with by the Seller on or before the

Closing shall have been complied with, and the Purchaser shall have received a certificate from

the Seller to such effect.

(b) No Material Adverse Change. No events or conditions shall have

occurred which individually or in the aggregate, have had, or may reasonably be anticipated by

the Purchaser, in its sole discretion, to give rise to any Material Adverse Effect.

(c) Governmental Approvals. The Purchaser shall have received evidence, in

each instance in form and substance reasonably satisfactory to it, that any and all approvals from

governmental authorities required for the lawful consummation of the transactions contemplated

by this Agreement shall have been obtained, if any.

(d) Consents. The Purchaser shall have received evidence, each in form and

substance satisfactory to it in its sole discretion, that the Required Consents have been obtained.

(e) No Actions, Suits or Proceedings. No order of any court or governmental

authority shall have been issued restraining, prohibiting, restricting or delaying, the

consummation of the transactions contemplated by this Agreement or any other documents related

thereto. No Litigation shall be pending or, to the knowledge of the parties to this Agreement,

threatened, before any court or governmental authority (i) to restrain, prohibit, restrict or delay,

or to obtain damages or a discovery order in respect of this Agreement or the consummation of

the transactions contemplated hereby, or (ii) which has had or may have a Material Adverse

Effect on the Seller or the Business. No insolvency proceeding of any character including

without limitation, bankruptcy, receivership, reorganization, dissolution or arrangement with

creditors, voluntary or involuntary, affecting the Seller shall be pending, and the Seller shall not

have taken any action in contemplation of, or which would constitute the basis for, the institution

of any such proceedings.

(f) Delivery of Purchased Assets. The Seller shall deliver possession of and

title to the Purchased Assets to the Purchaser at the Closing.

(g) Closing Documents. The Seller shall deliver to the Purchaser the

certificates, documents and instruments set forth below at the Closing:

(i) all of the books and records described in Section 2.1(c);

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(ii) such other documents and instruments as the Purchaser or its

counsel may reasonably request.

(h) Transition of Payment Systems. The Seller shall transition to the

Purchaser all financial systems and accounts which receive payments from Seller’s customers in

a manner satisfactory to the Purchaser at the Closing.

(i) Permits; Governmental Authorization. The Seller shall have obtained all

Permits necessary to run the business and such Permits shall be transferred to the Purchaser from

the Seller at the Closing. Seller shall have received all necessary and proper authorizations,

consents and approvals of governments and governmental agencies, if any, and provide

reasonable evidence of their receipt to the Purchaser at the Closing.

(j) Employees. The Seller shall terminate the employment of all employees

of the Business concurrent with the Closing. It being the intent of the Purchaser to offer

employment to all employees of the Business following the Closing.

(k) Bill of Sale and Assignment. The Seller shall deliver to the Purchaser a

Bill of Sale and Assignment in form and substance satisfactory to the Purchaser at the Closing.

7.2 Conditions Precedent to the Obligations of the Seller. The obligation of the Seller

to consummate the transactions described in this Agreement and any and all liability of the Seller

to the Purchaser shall be subject to the fulfillment at or before the Closing Date of the following

conditions precedent, each of which may be waived by the Seller in its sole discretion:

(a) Representations, Warranties and Covenants. The representations and

warranties of the Purchaser contained in this Agreement shall have been true and correct when

made and shall be true and correct in all material respects as of the Closing (other than such

representations and warranties that are qualified by materiality, which shall be true and correct as

of the Closing), with the same force and effect as if made as of the Closing Date, other than such

representations and warranties that are expressly made as of another date, and the covenants and

agreements contained in this Agreement to be complied with by the Purchaser on or before the

Closing shall have been complied with, and the Seller shall have received a certificate from the

Purchaser to such effect signed by a duly authorized officer thereof.

(b) Employment Agreement. The Purchaser shall enter into an employment

agreement with [Seller CEO] n a form reasonably acceptable to the Purchaser and the Seller at

the Closing.

(c) Purchase Price. The Purchaser shall deliver the Closing Payment to the

Seller pursuant to Section 3.2(b) at the Closing.

(d) Secured Promissory Note. The Purchaser shall deliver to Seller the

Promissory Note required pursuant to Section 3.2(e) herein.

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ARTICLE VIII

POST CLOSING COVENANTS

8.1 Non-Disparagement. For five (5) years following the Closing Date, neither the

Seller nor its Affiliates will disparage the Purchaser or any of the Purchaser’s members,

managers, directors, officers, employees or agents.

8.2 Non-Competition. For a period of five (5) years after the Closing Date, the Seller

shall not, directly or indirectly invest in, own, manage, operate, finance, control, advise, render

services to or guarantee the obligations of any individual, partnership, corporation, business trust,

limited liability company, limited liability partnership, joint stock company, trust, unincorporated

association, joint venture or other entity (other than the Purchaser) engaged in or planning to

become engaged in a business that is reasonably similar to or competes with the Business.

8.3 Modification of Covenant. If a final judgment of a court or tribunal of

competent jurisdiction determines that any term or provision contained in Sections 8.1 or 8.2 is

invalid or unenforceable, then the parties agree that the court or tribunal will have the power to

reduce the scope of the term or provision, to delete specific words or phrases or to replace any

invalid or unenforceable term or provision with a term or provision that is valid and enforceable

and that comes closest to expressing the intention of the invalid or unenforceable term or

provision. Sections 8.1 or 8.2 will be enforceable as so modified after the expiration of the time

within which the judgment may be appealed. Sections 8.1 and 8.2 are reasonable and necessary

to protect and preserve the Purchaser’s legitimate business interests and the value of the

Purchased Assets and to prevent any unfair advantage conferred on the Seller.

8.4 Customers and Other Business Relationships. For three (3) years after the

Closing, the Seller and its Affiliates will as reasonably requested by the Purchaser cooperate with

the Purchaser in its efforts to continue and maintain for the benefit of the Purchaser those

business relationships of the Seller existing prior to the Closing and relating to the business to be

operated by the Purchaser after the Closing, including relationships with lessors, regulatory

authorities, licensors, customers, suppliers and others. The Seller and its Affiliates will refer to

the Purchaser all inquiries relating to such business. Neither the Seller nor any of its Affiliates

shall take any action that would materially diminish the value of the Purchased Assets after the

Closing or that would interfere with the business of the Purchaser to be engaged in after the

Closing, including disparaging the name or business of the Purchaser.

8.5 Reconciliation. Seller and Purchaser agree to cooperate in good faith with one

another post closing to reconcile payments made by (i) Seller on Purchaser’s behalf prior to or

after Closing, and (ii) Purchaser on Seller’s behalf prior to or after Closing. For example,

Purchaser shall pay to the Seller any amounts received by Purchaser related to Excluded Assets

and Seller shall be responsible for all payables related thereto, and Seller shall pay to Purchaser

amounts received by Seller related to any of the Purchased Assets, and Purchaser shall be

responsible for all payables related thereto.

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ARTICLE IX

INDEMNIFICATION

9.1 Survival of Representations, Warranties and Covenants. The representations and

warranties contained in this Agreement and the other documents related hereto, shall survive the

Closing for a period of [eighteen (18)] months, provided that the representations and warranties

set forth in Sections 4.1, 4.2, 4.4, 4.5, 4.8, 4.9 and 4.15 shall survive the Closing for periods

equal in duration to the applicable statutes of limitations.

9.2 Indemnity of the Purchaser.

(a) The Seller shall indemnify the Purchaser, its officers, directors,

employees, managers, members, agents and assigns (each, a “Purchaser Indemnified Person”) for

any and all Losses (as hereinafter defined) incurred by such Purchaser Indemnified Person (i) as

a result of any breach by the Seller of any representation, warranty, covenant condition or

agreement set forth in this Agreement, (ii) Liabilities of, or claims against, the Purchaser relating

to, or arising out of, the operation of the Business prior to the Closing Date or facts and

circumstances existing at or prior to the Closing Date, whether or not such Liabilities were

known on such date, and any other Liabilities of the Seller or relating to the Business, (iii) as a

result of Seller’s failure to pay any Taxes when due related to the Business, (iv) as a result of

claims by employees related to periods of employment by Seller prior to the Closing and unpaid,

including accrued vacation, workman’s compensation, or as a result of any investigation or

finding of any government agency relating to violations of employment laws including without

limitation, wage and hour laws and (v) as a result of misclassification of any employees of the

Seller as independent contractors. Except as set forth in clause (b) below, the maximum

aggregate liability of the Seller hereunder shall be $[Insert Cap Amount] plus reasonable

accountants and attorneys fees costs and expenses (the “Liability Cap”). However, if the amount

owed Purchaser by Seller pursuant to this Section exceeds the amount Purchaser has paid Seller

pursuant to Section to 3.2, the balance due shall be setoff against the next payment due Seller

pursuant to Section 3.2 and 9.4. “Losses” shall mean any and all losses, claims, shortages,

damages, liabilities, expenses (including reasonable attorneys’ and accountants’ fees),

assessments, Taxes (including interest or penalties thereon) sustained, suffered or incurred by

any Person arising from or in connection with any such matter that is the subject of

indemnification under this Article.

(b) Notwithstanding the foregoing, the Liability Cap shall not apply to

indemnification claims by the Seller as a result of (a) breaches of the representations and

warranties contained in Sections 4.1, 4.2, 4.4, 4.5, 4.8, 4.9 and 4.15, or made with the intent to

mislead, (b) claims under Section 9.2(a)(ii), (iii), (iv) or (v), or (c) any fraud committed by the

Seller.

9.3 Indemnity of the Seller. The Purchaser shall indemnify the Seller and its

managers, members, trustees, beneficiaries, agents and assigns (each, a “Seller Indemnified

Person”) for any and all Losses incurred by such Seller Indemnified Person (i) for any breach by

the Purchaser of any representation, warranty, covenant condition or agreement set forth in this

Agreement, and (ii) liabilities of, or claims against, the Seller relating to, or arising out of, the

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operation of the Business from and after the Closing Date. Purchaser’s aggregate liability under

this Section shall be the Liability Cap provided that such Liability Cap shall not apply to any

fraud committed by Purchaser or Purchaser’s obligation to pay the Purchase Price, including the

Assumed Liabilities. Purchaser shall not bear any liability for claims brought under subsection

(i) if the Seller has not commenced an action or otherwise notified the Buyer of such Losses on

or before the date that is eighteen (18) months after the Closing Date.

9.4 Right of Setoff. Upon notice to Seller specifying in reasonable detail the basis

therefor, the Purchaser may set off any amount to which it may be entitled under Section 9.2

against the Subsequent Payments due to the Seller under Sections 3.2(c) and (d) above. Neither

the exercise of nor the failure to exercise such right of setoff will constitute an election of

remedies or limit the Purchaser in any manner in the enforcement of any other remedies that may

be available to it.

9.5 Certain Limitations. The Indemnification provided in Section 9.2 and Section 9.3

shall be subject to the following limitations:

(a) Seller shall not be liable to Buyer for indemnification under Section 9.2

until the aggregate amount of all Losses in respect of indemnification under Section 9.2 exceeds

$[Insert Basket Amount], in which event Seller shall be liable for all such Losses from the first

dollar; except with respect to a claim for indemnification based upon, arising out, with respect to

or by reason of any (i) fraud, (ii) breach of any representation or warranty in Sections 4.1, 4.2,

4.4, 4.5, 4.8, 4.9 and 4.15, or (iii) claims under Section 9.2(a), (iii), (iv) or (v), for which there

shall be no minimum before Seller owes Purchaser the first dollar pursuant to Section 9.2.

(b) Buyer shall not be liable to Seller for indemnification under Section 9.3

until the aggregate amount of all Losses in respect of indemnification under Section 9.3 exceeds

$[Insert Basket Amount], in which event Buyer shall be liable for all such Losses from the first

dollar; except with respect to a claim for indemnification based upon, arising out, with respect to

or by reason of any (i) fraud or (ii) breach of any representation or warranty in Section 5.2 for

which there shall be no minimum before Seller owes Purchaser the first dollar pursuant to

Section 9.3.

(c) Any claim made pursuant to Section 9 shall be made no later than:

(i) The first anniversary date of the Closing; or

(ii) The date on which the applicable statute of limitations expires plus

sixty days; whichever is later.

(iii) There shall be no limitation on the time period for making a claim

against Seller for a breach of a representation or warranty made with an intent to defraud

Purchaser.

17

ARTICLE X

MISCELLANEOUS

10.1 Notices. All notices, requests, consents and other communications hereunder

shall be in writing, shall be addressed to the receiving party’s address set forth below or to such

other address as a party may designate by notice hereunder, and shall be either (i) delivered by

hand, (ii) made by confirmed facsimile transmission, or (iii) sent by recognized overnight

courier, by certified mail, return receipt requested, postage prepaid:

If to Seller: [Seller Name]

[Seller Address]

Facsimile: [Seller Fax Number]

Attention: Chief Executive Officer

With a copy to: [Seller Law Firm Name]

[Seller Law Firm Address]

Telephone: [Seller Law Firm Phone Number]

Facsimile: [Seller Law Firm Fax Number]

Attention: [Attorney Name]

If to Purchaser: [Purchaser Name]

[Purchaser Address]

Facsimile: [Purchaser Fax Number]

Attention: Chief Executive Officer

with a copy to: [Purchaser Law Firm Name]

[Purchaser Law Firm Address]

Telephone: [Purchaser Law Firm Phone Number]

Facsimile: [Purchaser Law Firm Fax Number]

Attention: [Attorney Name]

All notices, requests, consents and other communications hereunder shall be deemed to

have been (a) if by hand, at the time of the delivery thereof to the receiving party at the address

of such party set forth above, (b) if sent by facsimile transmission, at the time receipt has been

acknowledged by electronic confirmation or otherwise, (c) if sent by overnight courier, on the

next business day following the day such notice is delivered to the courier service, or (d) if sent

by certified mail, on the 5th business day following the day such mailing is made.

10.2 Entire Agreement. This Agreement embodies the entire agreement and

understanding between the parties hereto with respect to the subject matter hereof and supersedes

all prior oral or written agreements and understandings relating to the subject matter hereof.

10.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of

the parties hereto and their respective successors, heirs, personal representatives, legal

representatives, and permitted assigns.

18

10.4 Modifications and Amendments. The terms and provisions of this Agreement

may be modified or amended only by written agreement executed by all parties hereto.

10.5 Waivers and Consents. The terms and provisions of this Agreement may be

waived, or consent for the departure therefrom granted, only by written document executed by

the party entitled to the benefits of such terms or provisions.

10.6 No Third Party Beneficiary. Nothing expressed or implied in this Agreement is

intended, or shall be construed, to confer upon or give any person or entity other than the parties

hereto and their respective heirs, personal representatives, legal representatives, successors and

permitted assigns, any rights or remedies under or by reason of this Agreement.

10.7 Severability. If any term or other provision of this Agreement is invalid, illegal or

incapable of being enforced by any rule of law, or public policy, all other conditions and

provisions of this Agreement shall nevertheless remain in full force and effect so long as the

economic or legal substance of the transactions contemplated hereby are not affected in any

manner adverse to any party.

10.8 Governing Law. This Agreement and the rights and obligations of the parties

hereunder shall be construed in accordance with and governed by the law of [Insert State]

without giving effect to the conflict of law principles thereof.

10.9 Jurisdiction. Any legal action or proceeding with respect to this Agreement shall

be brought in the courts of [Insert State]. By execution and delivery of this Agreement, each of

the parties hereto accepts for itself and in respect of its property, generally and unconditionally,

the jurisdiction of the aforesaid courts.

10.10 Counterparts. This Agreement may be executed in any number of counterparts,

each of which shall be deemed an original but all of which together shall constitute one and the

same agreement. A signed copy of this Agreement delivered by facsimile, email 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

10.11 Headings. The descriptive headings contained in this Agreement are for

convenience of reference only and shall not affect in any way the meaning or interpretation of

this Agreement.

10.12 Expenses. Except as otherwise specified in this Agreement, all costs and

expenses, including, without limitation, fees and disbursements of counsel, financial advisors

and accountants, incurred in connection with this Agreement and the transactions contemplated

hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing

shall have occurred.

10.13 Further Assurances. At any time and from time to time after the Closing Date, at

the request of the Purchaser and without further consideration, the Seller shall execute and

deliver such other instruments of sale, transfer, conveyance, assignment and confirmation as may

be reasonably requested in order to more effectively transfer, convey and assign to the Purchaser,

and to confirm the Purchaser’s title to, the Purchased Assets.

19

10.14 Assignment. The Purchaser may assign its rights and obligations under this

Agreement with the consent of the Seller, which shall not be unreasonably withheld. Purchaser

acknowledges that it shall be reasonable for Seller to require financials of the assignee and that

any assignee must be financially sound and in a financial position as strong or stronger that that

of Purchaser, as reasonably determined by Seller.

10.15 Broker. Each party to this Agreement represents and warrants to each other party

to this Agreement that it has not dealt with any broker or finder to whom a fee or commission

would be due upon the closing of the transactions contemplated by this Agreement, other than

Seller’s agreement with [Insert Broker Name]. Seller will pay [Insert Broker Name] pursuant to

their separate agreement outside of this transaction and Seller will be liable for any and all fees

due [Insert Broker Name].

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties hereto have each executed and delivered this

Agreement as of the day and year first above written.

PURCHASER:

[INSERT PURCHASER NAME]

By:

Name:

Title:

SELLER:

[INSERT SELLER NAME]

By:

Name:

Title:

[Signature Page to Asset Purchase Agreement]

1013894

CREDIT AGREEMENT

among

BANK

and

BORROWER

_______________, 20__

1013894

-1-

CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this “Agreement”) is dated as of ______________,

20__, and is entered into by and among BANK (the “Bank”) and BORROWER (the

“Borrower”).

The parties hereto agree as follows:

SECTION 1: DEFINITIONS

1.1. Defined Terms. As used herein the following terms have the meanings

specified below:

1.1.1 “Accounts” means all of the Borrower’s accounts, accounts

receivable, rental and lease payments receivable, contract rights, notes, bills,

drafts, acceptances, instruments, documents, chattel paper and all other debts,

obligations and liabilities in whatever form owing to the Borrower from any

Person for goods sold by it or for services rendered by it, or however otherwise

established or created, all guaranties and security therefor, all right, title and

interest of the Borrower in the goods or services which gave rise thereto,

including rights to reclamation and stoppage in transit and all rights of an unpaid

seller of goods or services, whether any of the foregoing be now existing or

hereafter arising, now or hereafter received by or owing or belonging to the

Borrower.

1.1.2 “Affiliate” means, as applied to any Person, a spouse or relative of

such Person, any partner, member, director or officer of such Person, any

partnership, corporation, association, firm or other entity of which such Person is

a partner, member, director or officer, any other Person directly or indirectly

controlling, controlled by or under direct or indirect common control with such

Person, and any Person owning or controlling ten percent (10%) or more of the

outstanding voting securities of such other Person.

1.1.3 “Affiliated Company” has the meaning specified in subsection

3.16.

1.1.4 “Applicable Margin” means an amount equal to two percent

(2.00%) per annum; provided that “Applicable Margin” shall mean one percent

(1.00%) at any time or times when the Borrower has achieved a Debt Service

Coverage Ratio as defined in Section 7.2 of at least 1.4 for the previous four (4)

successive calendar quarters.

1.1.5 “Base Rate” means the variable per annum rate of interest so

designated from time to time by the Bank as its Base Rate. The Base Rate is a

reference rate only and does not necessarily represent the lowest or best rate being

charged to any customer.

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1.1.6 “Borrowing” means Loans made, converted or continued on the

same date.

1.1.7 “Borrowing Base” means an amount equal to the sum of eighty

percent (80%) of the face amount of Eligible Accounts of the Borrower plus the

lesser of (i) fifty percent (50%) of the value of Eligible Inventory of the Borrower

and (ii) __________________ Dollars ($____________).

1.1.8 “Business Day” means any day that is not a Saturday, Sunday or

other day on which commercial banks in Massachusetts are authorized or required

by law to remain closed.

1.1.9 “Capital Expenditure” means any payment made directly or

indirectly for the purpose of acquiring or constructing fixed assets, real property

or equipment which in accordance with GAAP would be added as a debit to the

fixed asset account of the Person making such expenditures, including, without

limitation, amounts paid or payable under any conditional sale or other title

retention agreement or under any lease or other periodic payment arrangement

which is of such a nature that payment obligations of the lessee or obligor

thereunder would be required by GAAP to be capitalized and shown as liabilities

on the balance sheet of such lessee or obligor.

1.1.10 “Capital Lease” means any lease of property (real, personal or

mixed) which, in accordance with GAAP, should be capitalized on the lessee’s

balance sheet or for which the amount of the asset and liability thereunder as if so

capitalized should be disclosed in a note to such balance sheet.

1.1.11 “Capital Lease Obligations” of any Person means the obligations

of such Person to pay rent or other amounts under any Capital Lease, and the

amount of such obligations shall be the capitalized amount thereof determined in

accordance with GAAP.

1.1.12 “Casualty Event” means, with respect to any property of any

Person, any loss of or damage to, or any condemnation or other taking of, such

property for which such Person or any of its Subsidiaries receives insurance

proceeds, or proceeds of a condemnation award or other compensation.

1.1.13 “Code” has the meaning specified in subsection 3.16.

1.1.14 “Default” means any event or condition which with the passage of

time, the giving of notice or both would become an Event of Default.

1.1.15 “Disposition” means any sale, assignment, transfer or other

disposition of any property (whether now owned or hereafter acquired) by the

Borrower to any Person other than the Borrower excluding (a) the granting of

Liens permitted by this Agreement and (b) any sale, assignment, transfer or other

disposition of (i) any property sold or disposed of in the ordinary course of

business and on ordinary business terms, (ii) any property no longer used or

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-3-

useful in the business of the Borrower and (iii) any collateral pursuant to an

exercise of remedies by the holder of a Lien permitted hereby.

1.1.16 “Effective Date” means the date hereof.

1.1.17 “Eligible Accounts” means those Accounts owing to the Borrower

which met the following specifications at the time they came into existence and

continue to meet the same until they are collected in full:

(a) The Account is not more than ninety (90) days from the date of the

invoice thereof.

(b) The Account arose from the outright sale of goods by the Borrower,

such goods have been shipped to the account debtor, and the Borrower has

possession of, or has delivered to the Bank, shipping and delivery receipts

evidencing such shipment.

(c) The Account is not subject to any prior assignment, claim, lien, or

security interest, and the Borrower will not make any further assignment thereof

or create any further security interest therein, nor permit the Borrower’s rights

therein to be reached by attachment, levy, garnishment or other judicial process.

(d) The Account is not subject to set-off, credit, allowance or adjustment

by the account debtor, except discount allowed for prompt payment and the

account debtor has not disputed his liability thereon and has not returned any of

the goods from the sale of which the Account arose.

(e) The Account arose in the ordinary course of the Borrower’s business

and did not arise from the performance of services or a sale of goods to a supplier

or employee of the Borrower.

(f) No notice of bankruptcy or insolvency of the account debtor has been

received by or is known to the Borrower.

(g) The Account is not owed by an account debtor whose principal place

of business is outside the United States of America.

(h) The Account is not owed by an entity which is an Affiliate of the

Borrower.

(i) The account debtor is not located in the State of New Jersey or in the

State of Minnesota (or any other state that requires an entity to file a business

activity report or similar document in order to bring suit or otherwise enforce its

remedies against an account debtor in the courts or through any judicial process of

such state), unless (i) the Borrower has filed and shall file all legally required

Notice of Business Activities Reports with the New Jersey Division of Taxation

1013894

-4-

or the Minnesota Department of Revenue, as the case may be, or (ii) the Borrower

is exempt from such filing requirement.

(j) The Account when aggregated with all of the Accounts of that account

debtor does not exceed twenty-five percent (25.0%) of all Accounts.

(k) The Account is not evidenced by a promissory note.

(l) The Account did not arise out of any sale made on a bill and hold,

dating or delayed shipment basis.

(m) The Account does not arise out of a progress billing in excess of

$75,000 in the aggregate prior to completion of the order therefor.

(n) The Bank, in accordance with its customary business practices, has

not, for any reason, deemed the Account or the account debtor to be unacceptable.

PROVIDED THAT if at any time fifty percent (50.0%) or more of the aggregate

amount of the Accounts due from any account debtor are unpaid in whole or in

part more than ninety (90) days from the respective dates of invoice, from and

after such time none of the Accounts (then existing or hereafter arising) due from

such account debtor shall be deemed to be Eligible Accounts until such time as

less than fifty percent (50.0%) of the Accounts due from such account debtor are

(as a result of actual payments received thereon) no more than ninety (90) days

from the date of invoice; Accounts payable by the Borrower to an account debtor

shall be netted against Accounts due from such account debtor and the difference

(if positive) shall constitute Eligible Accounts from such account debtor for

purposes of determining the Borrowing Base (notwithstanding paragraph (d)

above); characterization of any Account due from an account debtor as an

Eligible Account shall not be deemed a determination by the Bank as to its actual

value nor in any way obligate the Bank to accept any Account subsequently

arising from such account debtor to be, or to continue to deem such Account to

be, an Eligible Account; it is the Borrower’s responsibility to determine the

creditworthiness of account debtors and all risks concerning the same and

collection of Accounts are with the Borrower; and all Accounts whether or not

Eligible Accounts constitute Collateral under the Security Agreements.

1.1.18 “Eligible Inventory” means either finished goods (but only to the

extent supported by specific, written customer purchase orders provided by the

Borrower to the Bank) or raw materials Inventory of the Borrower, valued at the

lower of market value or the Borrower’s cost on a first-in, first-out basis (net of

reserves), which are initially and at all times until sold, new and unused, in first-

class condition, merchantable and saleable through normal trade channels; at a

location in the United States as disclosed to the Bank; covered by insurance

naming the Bank as loss payee/payable in accordance with the Security

Agreements; subject to a perfected first-priority security interest in favor of the

1013894

-5-

Bank; owned by the Borrower free and clear of any Lien except in favor of the

Bank or as permitted under this Agreement and have not been designated by the

Bank in its sole discretion as unacceptable for any reason by notice to the

Borrower.

1.1.19 “Equipment Term Loan” has the meaning specified in Section

2.2.

1.1.20 “Equipment Term Note” has the meaning specified in Section

2.2.

1.1.21 “Equity Rights” means, with respect to any Person, any

subscriptions, options, warrants commitments, preemptive rights or agreements of

any kind (including any stockholders or voting trust agreements) for the issuance

or sale of, or securities convertible into, any additional shares of capital stock of

any class, or partnership or other ownership interests of any type in, such Person.

1.1.22 “ERISA” has the meaning specified in subsection 3.16.

1.1.23 “Event of Default” has the meaning specified in Section 8.

1.1.24 “Existing Indebtedness” means Indebtedness of the Borrower

existing on the date hereof and referred to on Schedule 3.8 hereto.

1.1.25 “Flood Hazard Property” means a property located in an area

designated by the Federal Emergency Management Agency as having special

flood or mud slide hazards.

1.1.26 “GAAP” means generally accepted accounting principles in the

United States of America, consistently applied.

1.1.27 “Governmental Authority” means the government of the United

States of America, any other nation or any political subdivision thereof, whether

state or local, and any agency, authority, instrumentality, regulatory body, court,

central bank or other entity exercising executive, legislative, judicial, taxing,

regulatory or administrative powers or functions of or pertaining to government.

1.1.28 “Guarantors” means ___________________________.

1.1.29 “Guaranties” means the Guaranties of even date herewith, made

by each of the Guarantors in favor of the Bank pursuant to which the Guarantors

guaranty to the Bank, among other things, the payment and performance of

certain obligations, together with any amendments, modifications, substitutions or

replacements thereof.

1.1.30 “Hazardous Material” means (a) any asbestos or insulation or

other material composed of or containing asbestos and (b) any petroleum product

and any hazardous, toxic or dangerous waste, substance or material defined as

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-6-

such in (or for purposes of) the Comprehensive Environmental Response,

Compensation and Liability Act, any so-called “Superfund” or “Superlien” law,

or any other applicable federal, state, local or other statute, law, ordinance, code,

rule, regulation, order or decree regulating, relating to, or imposing liability or

standards of conduct concerning, any hazardous, toxic or dangerous waste,

substance or material, as now or at any time hereafter in effect.

1.1.31 “Indebtedness” means as applied to any Person, without

duplication, (i) all items (except items of capital or surplus or of retained

earnings) which in accordance with GAAP would be included in determining total

liabilities as shown on the liability side of the balance sheet of such Person as of

the date on which Indebtedness is to be determined, including any Capital Lease

Obligations, (ii) all indebtedness secured by any mortgage, pledge, lien or

conditional sale or other title retention agreement to which any property or asset

owned or held by such Person is subject, whether or not the indebtedness secured

thereby shall have been assumed, (iii) all indebtedness of others which such

Person has directly or indirectly guaranteed, endorsed (otherwise than for

collection or deposit in the ordinary course of business), discounted or sold with

recourse or agreed (contingently or otherwise) to purchase or repurchase or

otherwise acquire, or in respect of which such Person has agreed to supply or

advance funds (whether by way of loan, stock purchase, capital contributions or

otherwise) or otherwise to become directly or indirectly liable, and (iv) letter of

credit reimbursement obligations (contingent or actual).

1.1.32 “Inventory” means all goods now owned or hereafter acquired by

a Person and intended for sale, including raw materials, work-in-process and

finished goods, which would, in accordance with GAAP, be classified as

inventory of a Person conducting a business the same as or similar to that of such

Person.

1.1.33 “Investment” means, for any Person: (a) the acquisition (whether

for cash, property, services or securities or otherwise) of capital stock, bonds,

notes, debentures, partnership or other ownership interests or other securities of

any other Person or any agreement to make any such acquisition (including,

without limitation, any “short sale’ or any sale of any securities at a time when

such securities are not owned by the Person entering into such short sale); (b) the

making of any deposit with, or advance, loan or other extension of credit to, any

other Person (including the purchase of property from another Person subject to

an understanding or agreement, contingent or otherwise, to resell such property to

such Person, but excluding any such advance, loan or extension of credit having a

term not exceeding one hundred eighty (180) days representing the purchase price

of inventory or supplies sold by such Person in the ordinary course of business);

or (c) the entering into of any guarantee of, or other contingent obligation with

respect to, Indebtedness or other liability of any other Person and (without

duplication) any amount committed to be advanced, lent or extended to such

Person. Notwithstanding the foregoing, a Capital Expenditure shall not be deemed

an Investment for purposes hereof.

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1.1.34 “Lease” means any lease or other periodic payment arrangement

in respect of property (real, personal or mixed).

1.1.35 “Leased Properties” has the meaning specified in subsection

3.10.

1.1.36 “Legal Requirement” means any requirement imposed upon the

Bank by any law of any Government Authority or by any regulation, order,

interpretation, ruling or official directive (whether or not having the force of law)

of the Board of Governors of the Federal Reserve System, or any other board,

central bank or governmental or administrative agency, institution or authority of

any Governmental Authority.

1.1.37 “Lien” means, with respect to any asset, (a) any mortgage, deed of

trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on

or of such asset, (b) the interest of a vendor or a lessor under any conditional sale

agreement, capital lease or title retention agreement (other than an operating

lease) (or any financing lease having substantially the same economic effect as

any of the foregoing) relating to such asset, and (c) in the case of securities, any

purchase option, call or similar right of a third party with respect to such

securities.

1.1.38 “Loan Documents” means this Agreement, the Notes, the

Security Agreements, the Guaranties and all other documents or agreements

delivered to the Bank in connection with any of the foregoing or the Loans, each

as amended from time to time.

1.1.39 “Loans” means the Revolving Credit Loans and the Equipment

Term Loan, and each is referred to as a “Loan”.

1.1.40 “Loan Request” has the meaning specified in subsection 2.1B(a).

1.1.41 “Net Income” means the net income (or loss), excluding

extraordinary items, of the Borrower for the period in question, determined in

accordance with GAAP on a combined basis.

1.1.42 “Notes” means the Revolving Credit Note and the Equipment

Term Note, as each may be amended, supplemented and restated from time to

time, and each is referred to as a “Note”.

1.1.43 “Obligations” means all indebtedness, liabilities, obligations and

undertakings of each Borrower to the Bank, of every kind and description, direct

or indirect, matured or unmatured, absolute or contingent, liquidated or

unliquidated, sole, joint or several, secured or unsecured, now or hereafter owing

or incurred, regardless of how they arise or by what agreement or instrument they

may be evidenced, and whether or not evidenced by any agreement or instrument,

including, without limitation, all liabilities and obligations under this Agreement,

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-8-

the other Loan Documents, and all liabilities and obligations of the Borrower

assigned or transferred to the Bank.

1.1.44 “Owned Properties” has the meaning specified in subsection

3.10.

1.1.45 “PBGC” has the meaning specified in subsection 3.16.

1.1.46 “Person” means a corporation, a limited liability company, an

association, a partnership, a joint venture, an organization, a business, an

individual, a government or political subdivision thereof or a governmental

agency.

1.1.47 “Real Estate” has the meaning specified in subsection 3.10.

1.1.48 “Restricted Payment” means (a) any dividend, coupon payment

or other distribution, direct or indirect, on or on account of any shares of any class

of stock of the Borrower now or hereafter outstanding, and (b) any redemption,

purchase or other acquisition, direct or indirect, of any shares of any class of stock

now or hereafter outstanding of with respect to, the Borrower (including without

limitation the repurchase of any such stock or any refund of the purchase price

thereof in connection with the exercise by the holder thereof of any right of

rescission or similar remedies with respect thereto).

1.1.49 “Revolving Credit Commitment” means the agreement of the

Bank to make Revolving Credit Loans in an aggregate amount not to exceed

_________________________ Dollars ($___________).

1.1.50 “Revolving Credit Expiration Date” means the first anniversary

of the date of this Agreement.

1.1.51 “Revolving Credit Exposure” means at any time the outstanding

principal amount of Revolving Credit Loans.

1.1.52 “Revolving Credit Loan or Loans” have the meanings specified

in subsection 2.1A.

1.1.53 “Revolving Credit Note” has the meaning specified in subsection

2.1.C.

1.1.54 “Security Agreement” means the Security Agreement of even

date herewith entered into by the Borrower and the Bank, as the same may be

amended, supplemented and restated from time to time.

1.1.55 “Subchapter S Distributions” means distributions made by the

Borrower to its shareholders, calculated at a rate equal to the highest tax rates

payable by any of the Borrower’s shareholders, in order to provide reasonably

sufficient amounts to permit such shareholders to pay federal or state income

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taxes accruing with respect to the Borrower’s Net Income on account of the

Borrower’s status as an S corporation for federal income tax purposes.

1.1.56 “Subsidiary” means any corporation, limited liability company,

partnership, association or other entity of which more than 50% of the outstanding

voting stock or more than 50% of the outstanding beneficial interests, as the case

may be, are at the time owned by any or all of the Borrower, or by one, or more

Subsidiaries of the Borrower, or by any or all of the Borrower and one or more

Subsidiaries of the Borrower.

1.2 Terms Generally. The definitions of terms herein shall apply equally to

the singular and plural forms of the terms defined. Whenever the context may require, any

pronoun shall include the corresponding masculine, feminine and neuter forms. The words

“‘include”, “includes” and “including” shall be deemed to be followed by the phrase “without

limitation”. The word “will” shall be construed to have the same meaning and effect as the word

“shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement,

instrument or other document herein shall be construed as referring to such agreement,

instrument or other document as from time to time amended, supplemented or otherwise

modified (subject to any restrictions on such amendments, supplements or modifications set forth

herein), (b) any reference herein to any Person shall be construed to include such Person’s

successors and assigns, (c) the words “herein”, “hereof’ and “hereunder”, and words of similar

import, shall be construed to refer to this Agreement in its entirety and not to any particular

provision hereof, (d) all references herein to Sections, subsections, Exhibits and Schedules shall

be construed to refer to Sections and subsections of, and Exhibits and Schedules to, this

Agreement and (e) the words “asset” and “property” shall be construed to have the same

meaning and effect and to refer to any and all tangible and intangible assets and properties,

including cash, securities, accounts and contract rights.

1.3 Accounting Terms; GAAP. Except as otherwise expressly provided

herein, all terms of an accounting or financial nature shall be construed in accordance with

GAAP, as in effect from time to time; provided that, if the Borrower notifies the Bank that the

Borrower requests an amendment to any provision hereof to eliminate the effect of any change

occurring after the date hereof in GAAP or in the application thereof on the operation of such

provision (or if the Bank notifies the Borrower that the Bank requests an amendment to any

provision hereof for such purpose), regardless of whether any such notice is given before or after

such change in GAAP or in the application thereof, then such provision shall be interpreted on

the basis of GAAP as in effect and applied immediately before such change shall have become

effective until such notice shall have been withdrawn or such provision amended in accordance

herewith.

SECTION 2. AMOUNT AND TERMS OF THE CREDIT

2.1 Revolving Credit Loans.

A. Making of the Loans.

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(a) Subject to the terms and conditions hereof, and in reliance upon the

representations and warranties contained herein, the Bank hereby agrees to make

revolving credit loans (each such borrowing being herein called a “Revolving Credit

Loan”, and collectively the “Revolving Credit Loans”) to the Borrower from time to

time, prior to the Revolving Credit Expiration Date, in an aggregate principal amount that

will not result in the Revolving Credit Exposure exceeding the lesser of (i) the Revolving

Credit Commitment, and (ii) the Borrowing Base. Within the foregoing limits and

subject to the terms and conditions set forth herein, the Borrower may borrow, prepay

and reborrow Revolving Credit Loans. The Revolving Credit Commitment in favor of

the Borrower shall expire on the Revolving Credit Expiration Date.

(b) Revolving Credit Loans shall be effected at the principal office of

the Bank, and shall be made at such times before the Revolving Credit Expiration Date as

the Borrower may request by providing prior notice to the Bank. Such notice shall be in

writing, or by telephone communication confirmed by email, telephonic facsimile or

other facsimile transmission on the same day as the telephone request, and shall specify

the proposed date and the amount of the Revolving Credit Loan.

(c) At the time each Revolving Credit Loan is made, such Loan shall

be in an aggregate amount at least equal to $50,000 and any multiple of $10,000;

provided that a Revolving Credit Loan may be in an aggregate amount that is equal to the

entire unused balance of the total Revolving Credit Commitment.

B. Requests for Revolving Credit Loans.

(a) To request a Revolving Credit Loan, the Borrower shall

notify the Bank of such request by telephone not later than 11:00 a.m., eastern standard

time, one (1) Business Day before the date of the proposed Loan. Each such telephonic

loan request shall be irrevocable and shall be confirmed promptly by email, hand delivery

or telephonic facsimile to the Bank of a written loan request (“Loan Request”)

substantially in the form of Exhibit C attached hereto or otherwise in a form approved by

the Bank and executed by the Borrower.

(b) Each such telephonic and written Loan Request shall

specify the following information in compliance with this subsection 2.1B;

(i) the aggregate amount of such Loan;

(ii) the date of such Loan, which shall be a Business Day; and

(iii) the location and number of the Borrower’s account to which

funds are to be disbursed.

C. Revolving Credit Note. The Revolving Credit Loans made by the Bank

pursuant to this Agreement shall be evidenced by a promissory note of the Borrower in a

maximum principal amount equal to the Revolving Credit Commitment (the “Revolving

Credit Note”). The Revolving Credit Note shall bear interest at the rate or rates, and

shall be payable on the dates, specified in subsection 2.1D. The Borrower unconditionally

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promises to pay to the Bank the then unpaid principal amount of the Revolving Credit

Loans on the earlier of the Revolving Credit Expiration Date and the Bank’s demand for

payment following an Event of Default. In addition, if following any reduction in the

Revolving Credit Commitment, the aggregate principal amount of the Revolving Credit

Exposure shall exceed the lesser of (i) the Revolving Credit Commitment and (ii) the

Borrowing Base, then the Borrower shall repay the Revolving Credit Loans in an

aggregate amount equal to such excess.

D. Interest.

(a) Each Revolving Credit Loan shall bear interest on the unpaid

principal amount thereof until paid in full at the rate or rates per annum determined (on the basis

of the actual number of days elapsed over a 360-day year) as follows:

(i) The interest rate for each Revolving Credit Loan shall be a

floating rate equal to the greater of (1) the Base Rate plus the Applicable Margin and (2)

five percent (5%) per annum.

(ii) Interest on the portion of the outstanding principal amount

of each Loan shall be payable monthly in arrears on the first day of each month

commencing on the first day of the month following the date hereof, and at maturity

(whether by acceleration or otherwise).

(iii) Changes in the interest rate on the portion of the outstanding

principal amount of any Revolving Credit Loan shall take effect simultaneously with any

change in the Base Rate.

(b) Notwithstanding anything to the contrary set forth in this

Agreement, if a court of competent jurisdiction determines in a final order that the rate of interest

payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum

Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of

interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that

if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful

Rate, the Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until

such time as the total interest received by the Bank is equal to the total interest which would have

been received had the interest rate payable hereunder been (but for the operation of this

paragraph) the interest rate payable since the Effective Date as otherwise provided in this

Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the

manner provided in this Agreement, unless and until the rate of interest again exceeds the

Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the

total interest received by the Bank pursuant to the terms hereof exceed the amount which the

Bank could lawfully have received had the interest due hereunder been calculated for the full

term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to

this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful

Rate divided by the number of days in the year in which such calculation is made. If,

notwithstanding the provisions of this subsection, a court of competent jurisdiction shall finally

determine that the Bank has received interest hereunder in excess of the Maximum Lawful Rate,

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the Bank shall, to the extent permitted by applicable law, promptly apply such excess to the

Revolving Credit Loans in the order specified in subsection 2.1F(c) and thereafter shall refund

any excess to Borrower or as a court of competent jurisdiction may otherwise order.

E. Funding of Loans. The Bank shall make each Revolving Credit Loan to

be made by it hereunder available to the Borrower by promptly crediting the amount of such

Loan to an account of the Borrower maintained with the Bank designated by the Borrower in the

applicable Borrowing Request.

F. Prepayment.

(a) The Borrower may, at its option, prepay any Revolving Credit

Loan in whole at any time or in part from time to time without penalty or premium.

(b) If at any time the aggregate Revolving Credit Exposure exceeds the

lesser of (i) the Revolving Credit Commitment, and (ii) the Borrowing Base, the Borrower shall

immediately prepay the Revolving Credit Note, in an amount necessary to cause the aggregate

Revolving Credit Exposure not to exceed the lesser of (i) the Revolving Credit Commitment and

(ii) the Borrowing Base.

(c) Each prepayment shall be applied to installments of principal

payable thereon in the inverse order of maturity. Any prepayment in full shall be made together

with accrued interest on the amount prepaid to the date of such prepayment.

G. Overdue Payments. The Borrower shall pay to the Bank a late charge

equal to five percent (5%) of any amount of principal and/or interest on any Revolving Credit

Loan which is not paid within ten (10) days of the date when due. Upon any Event of Default or

after maturity or after judgment has been rendered on the Revolving Credit Note, or upon an

Event of Default hereunder, the unpaid principal of all Revolving Credit Loans shall at the option

of the Bank, bear interest at a rate equal to the Base Rate plus four percent (4%).

H. Capital Adequacy. If after the date of this Agreement, the Bank shall

have determined that the adoption or implementation of any applicable law, rule or regulation

regarding capital requirements for banks or bank holding companies, or any change therein

(including, without limitation, any change according to a prescribed schedule of increasing

requirements, whether or not known on the date of this Agreement), or any change in the

interpretation or administration thereof by any governmental authority, central bank or

comparable agency charged with the interpretation or administration thereof, or compliance by

the Bank with any request or directive of such entity regarding capital adequacy (whether or not

having the force of law) has the effect of reducing the return on the Bank’s capital to a level

below that which such could have achieved (taking into consideration such Bank’s policies with

respect to capital adequacy immediately before such adoption, implementation, change or

compliance and assuming that the Bank’s capital was fully utilized prior to such adoption,

implementation, change or compliance) but for such adoption, implementation, change or

compliance as a consequence of its commitment to make the Revolving Credit Loans hereunder

by any amount deemed by the Bank to be material, the Borrower shall pay to the Bank as an

additional fee from time to time on demand such amount as the Bank shall have determined to be

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necessary to compensate it for such reduction. The determination by the Bank of such amount, if

done on the basis of any reasonable averaging and attribution methods, shall in the absence of

manifest error be conclusive, and at the Borrower’s request, the Bank shall demonstrate the basis

of such determination with a reasonably detailed written explanation.

I. Notations. Upon payment in full of the principal of and interest on any

Note, such Note shall be canceled and returned to the Borrower, provided that the Revolving

Credit Note shall not be canceled or returned so long as the Bank shall be obligated to make

Revolving Credit Loans hereunder.

J. Use of Proceeds. The Borrower will use the proceeds of the Revolving

Credit Loans for working capital purposes. The Borrower will not, and will not permit any

Subsidiary to, directly or indirectly, use any part of such proceeds (i) for the purpose of making

any Restricted Payment which is prohibited by this Agreement, (ii) for the purpose of purchasing

or carrying any margin stock within the meaning of Regulation U (12 CFR Part 22 1) of the

Board of Governors of the Federal Reserve System, or (iii) for any other purpose which would

violate any provision of any other applicable statute, regulation, order or restriction.

2.2 Equipment Term Loan.

A. Loan; Equipment Term Note. Subject to the terms and conditions of

this Agreement, and in reliance on the representations and warranties contained herein, on the

date hereof the Bank has made a term loan to the Borrower in the amount of $__________ (the

“Equipment Term Loan”). The Equipment Term Loan is evidenced by a term promissory note

in the original principal amount of $___________ made payable by the Borrower to the order of

the Bank (the “Equipment Term Note”).

B. Use of Proceeds. The Borrower will use the proceeds of the Equipment

Term Loan to purchase certain equipment to be used in the operation of the Borrower’s business.

The Borrower will not, and will not permit any Subsidiary to, directly or indirectly, use any part

of such proceeds (i) for the purpose of making any Restricted Payment which is prohibited by

this Agreement, (ii) for the purpose of purchasing or carrying any margin stock within the

meaning of Regulation U (12 CFR Part 22 1) of the Board of Governors of the Federal Reserve

System, or (iii) for any other purpose which would violate any provision of any other applicable

statute, regulation, order or restriction.

2.3 Form and Terms of Payment. All payments by the Borrower of principal

of or interest on the Notes and of any fee due hereunder shall be made at the address of the Bank

set forth in subsection 9.5 (or at such other address as the Bank shall have furnished to the

Borrower in writing) and shall be made in lawful money of the United States in immediately

available funds. The Borrower hereby authorizes the Bank to charge the Borrower’s deposit

accounts for the purpose of effecting such payments and for any other fees and charges due and

payable hereunder. If any payment of principal or interest on either of the Notes shall become

due on a day which is not a Business Day, such payment may be made on the next succeeding

Business Day and such extension shall be included in computing interest in connection with such

payment.

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2.4 Intentionally omitted.

2.5 Taxes.

(a) Any and all payments by or on account of any obligation of the

Borrower hereunder shall be made free and clear of and without deduction for any taxes, other

than income, net worth or franchise taxes imposed on (or measured by) the Bank’s net income or

net worth by the United States of America, or any other jurisdiction unless the Bank is subject to

such taxes solely due to its making of the Loans to the Borrower hereunder (“Excluded Taxes”);

provided that if the Borrower shall be required to deduct any taxes (other than Excluded Taxes)

from any such payments, then (i) the sum payable shall be increased as necessary so that after

making all required deductions (including deductions applicable to additional sums payable

under this subsection 2.5) the Bank receives an amount equal to the sum it would have received

had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the

Borrower shall pay the full amount deducted to the relevant Governmental Authority in

accordance with applicable law.

(b) In addition, the Borrower shall pay any and all present or future

stamp or documentary taxes or any other excise or property taxes, charges or similar levies

arising from any payment made hereunder or from the execution, delivery or enforcement of, or

otherwise with respect to, this Agreement, the Notes and any other documents or agreements

executed in connection with any of them, to the relevant Governmental Authority in accordance

with applicable law.

(c) The Borrower shall indemnify the Bank within ten (10) days after

written demand therefor, for the full amount of any and all taxes (other than Excluded Taxes)

imposed or asserted on or attributable to amounts payable under this subsection 2.5) paid by the

Bank (and any penalties, interest and reasonable expenses arising therefrom or with respect

thereto during the period prior to the Borrower making the payment demanded under this

paragraph (c)), whether or not such taxes were correctly or legally imposed or asserted by the

relevant Governmental Authority; provided, however, that if any such taxes are incorrectly or

illegally imposed or asserted, as reasonably determined by the Bank, then the Bank shall use its

reasonable efforts to contest such taxes, and the Borrower shall promptly reimburse the Bank for

all expenses incurred by the Bank in so doing. A certificate as to the amount of such payment or

liability delivered to the Borrower by the Bank shall be conclusive absent manifest error.

(d) As soon as practicable after any payment of taxes by the Borrower

to a Governmental Authority in accordance with this subsection 2.5, the Borrower shall deliver

to the Bank upon the request of the Bank 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 Bank.

2.6 Payments Generally.

(a) The Borrower shall make each payment required to be made by it

hereunder (whether of principal, interest, fees, or under subsections 2.1H, 2.3 or 2.5, or

otherwise) prior to 12:00 noon, eastern standard time, on the date when due, in immediately

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available funds, without set-off or counterclaim. Any amounts received after such time on any

date may, in the discretion of the Bank, be deemed to have been received on the next succeeding

Business Day for purposes of calculating interest thereon. All such payments shall be made to

the Bank at such of its offices as shall be notified to the relevant parties from time to time and

except that payments pursuant to subsections 9.2 and 9.3 shall be made directly to the Persons

entitled thereto. The Bank shall distribute any such payments received by it for the account of

any other Person to the appropriate recipient promptly following receipt thereof, and the

Borrower shall have no liability in the event timely or correct distribution of such payments is

not so made. If any payment hereunder shall be due on a day that is not a Business Day, the date

for payment shall be extended to the next succeeding Business Day, and, in the case of any

payment accruing interest, interest thereon shall be payable for the period of such extension. All

payments hereunder shall be made in U.S. dollars.

(b) If at any time insufficient funds are received by and available to the

Bank to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall

be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled

thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)

second, to pay principal then due hereunder.

SECTION 3. REPRESENTATIONS AND WARRANTIES

In order to induce the Bank to enter into this Agreement and to make the Loans provided

for hereunder, each Borrower hereby makes the following representations and warranties, which

shall survive the execution and delivery hereof and of the Notes:

3.1 Organization, Standing, etc. of the Borrower. The Borrower is a

corporation duly organized, validly existing and in good standing under the laws of the

Commonwealth of Massachusetts. The Borrower has all requisite corporate power and authority

to own and operate its properties, to carry on its business as now conducted and proposed to be

conducted, to enter into this Agreement and all other documents to be executed by them in

connection with the transactions contemplated hereby, to issue the Notes and to carry out the

terms hereof and thereof.

3.2 Subsidiaries. The Borrower has no Subsidiaries.

3.3 Qualification. The Borrower is duly qualified or licensed and in good

standing as a foreign corporation duly authorized to do business in each jurisdiction in which the

character of its properties or the nature of its business makes such qualification or licensing

necessary, except where the failure to be so qualified or licensed would not have a material

adverse effect on the Borrower, taken as a whole.

3.4 Financial Information; Disclosure, etc. The Borrower has furnished the

Bank with the financial statements, financial projections and other reports listed in Schedule 3.4

attached hereto. All such financial statements listed have been prepared in accordance with

GAAP (except that any financial statements which are unaudited may not contain all of the

required footnotes and are subject to normal year-end adjustments), fairly present in all material

respects the combined financial position and results of operations of the Persons to which they

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purport to relate as of the dates and for the periods indicated, and have been reviewed by

independent certified public accountants reasonably satisfactory to the Bank. All financial

projections listed on Schedule 3.4 were prepared in good faith and based on assumptions which

were reasonable when made. Since the end of the most recent fiscal period with respect to which

financial statements have been furnished to the Bank, there has not been any material adverse

change in the business, operations, properties or financial position of the Borrower. Neither this

Agreement nor any financial statements, reports or other documents or certificates furnished to

the Bank by the Borrower in connection with the transactions contemplated hereby contain any

untrue statement of a material fact or omit to state any material fact necessary to make the

statements herein or therein contained not misleading. None of the Loans will render the

Borrower unable to pay its debts as they become due; neither the Borrower nor the Guarantor is

contemplating either the filing of a petition by any of them under any state or federal bankruptcy

or insolvency laws or the liquidation of all or a major portion of its property; and the Borrower

has no knowledge of any Person contemplating the filing of any such petition against any of

them.

3.5 Licenses; Franchises, etc. All authorizations, licenses, permits and

franchises of any public or governmental regulatory body granted or assigned to the Borrower

reasonably necessary for the conduct of the business of the Borrower as now conducted and

currently proposed to be conducted are validly issued and in full force and effect and the

Borrower has fulfilled and performed all of its obligations with respect thereto and has full

power and authority to operate thereunder.

3.6 Material Agreements. The Borrower is not in material default under any

lease, supply, distribution, management, stockholder, stock redemption or retirement,

employment (including severance), non-competition or other agreement which is presently in

effect and is necessary or desirable for the conduct of the businesses of the Borrower. Except as

may be disclosed on Schedule 3.6 or Schedule 3.8 hereto, the Borrower is not a party to, and

neither the Borrower nor any of the property and assets of the Borrower is bound or affected by,

any indenture, agreement, lease or instrument, or any restriction in the incorporation papers or

bylaws of the Borrower or any securities issued by it, or any law, rule, regulation, order,

judgment or decree, which would have a material adverse effect on the business, property, assets

or condition, financial or otherwise, of the Borrower, or on the ability of the Borrower to perform

its Obligations under this Agreement and the other Loan Documents to which the Borrower is a

party.

3.7 Tax Returns and Payments. The Borrower has filed all tax returns

required by law to be filed and have paid all taxes, assessments and other governmental charges

levied upon any of its properties, assets, income or franchises, other than those not yet delinquent

and those, not substantial in aggregate amount, being or about to be contested as provided in

subsection 5.5. The charges, accruals and reserves on the books of the Borrower in respect of its

taxes are adequate in the reasonable opinion of the Borrower, and the Borrower knows of no

unpaid assessment for additional taxes or of any basis therefor.

3.8 Indebtedness, Liens and Investments, etc. Schedule 3.8 attached hereto

correctly describes, as of the date or dates indicated therein, (a) all material outstanding

Indebtedness of the Borrower in respect of borrowed money, Capital Leases and the deferred

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purchase price of property owed to any Person other than the Bank; (b) all existing mortgages,

liens and security interests in respect of any property or assets of the Borrower in favor of any

Person other than the Bank; (c) all material outstanding investments, loans and advances of the

Borrower; and (d) all existing guarantees by the Borrower to any Person other than the Bank.

3.9 Title to Properties; Liens. The Borrower has good and marketable title to

all of its properties and assets, and none of such properties or assets is subject to any mortgage,

pledge, lien, security interest, charge or encumbrance except mortgages and security interests in

favor of the Bank or referred to in Schedule 3.8 attached hereto, and except minor liens and

encumbrances which in the aggregate are not substantial in amount, do not in any case materially

detract from the value of the property subject thereto or materially impair the operations of the

Borrower and have not arisen otherwise than in the ordinary course of business. The Borrower

enjoys quiet possession under all leases to which it is a party as lessee, and all of such leases are

valid, subsisting and in full force and effect. None of such leases contains any provision

restricting the incurrence of indebtedness by the lessee or any unusual or burdensome provision

materially adversely affecting the current and proposed operations of the Borrower.

3.10 Principal Executive Office; Other Locations. The Borrower’s principal

executive offices, principal places of business and the locations where the Borrower maintains

and will maintain all of its business records, including, without limitation, records relating to the

Loans is located at the addresses designated as such principal executive offices on Schedule 3.10

hereto. All other offices and/or locations in which the Borrower conducts any business are listed

in Schedule 3.10 hereto. The locations designated on such Schedule 3.10 as “owned properties”

(the “Owned Properties”) are owned by the Borrower indicated thereon and the locations

designated as “leased properties” (the “Leased Properties”; the Leased Properties and the

Owned Properties being hereinafter referred to collectively as the “Real Estate”) are leased by

the Borrower indicated thereon. The Real Estate constitutes the only real property necessary in

connection with the conduct by the Borrower of its business as presently conducted.

3.11 Real Estate. The Real Estate and the operation of the Borrower’s business

at or on the Real Estate do not violate any applicable zoning or use statutes, ordinance, building

code, rule, regulation, covenant, easement or agreement in any manner which, individually or in

the aggregate, would have a material adverse effect on the business of the Borrower, and all

taxes affecting the Owned Properties and all taxes required to be paid by the Borrower with

respect to the Leased Properties have been paid when due.

3.12 Litigation, etc. Except as set forth in Schedule 3.12 attached hereto, there

is no action, proceeding or investigation pending or threatened (or any basis therefor known to

the Borrower) that questions the validity of this Agreement, the Notes or the other documents

executed in connection herewith, or any action taken or to be taken pursuant hereto, or which

might result, either in any case or in the aggregate, in any material adverse change in the

business operations, affairs or condition of the Borrower or any of its properties or in which

damages are claimed in an amount of Fifty Thousand Dollars ($50,000) or more.

3.13 Authorization; Compliance with Other Instruments. The execution,

delivery and performance of this Agreement and the other Loan Documents have been duly

authorized by all necessary corporate action on the part of the Borrower, and this Agreement,

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each other Loan Document and each other document executed in connection with the

transactions contemplated by this Agreement constitute legal, valid and binding obligations of

the Borrower enforceable against the Borrower in accordance with their terms, except as such

enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization,

moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b)

general principles of equity (regardless of whether such enforceability is considered in a

proceeding in equity or at law) or public policy, will not result in any violation of or be in

conflict with or constitute a default under any term of the charter or by-laws of the Borrower, or

of any material agreement, or any instrument, judgment, decree, order, statute, rule or

governmental regulation applicable to the Borrower, or result in the creation of any mortgage,

lien, charge or encumbrance upon any of the properties or assets of the Borrower pursuant to any

such term. The Borrower is not in violation of any term of its charter or by-laws, or of any

material term of any agreement or instrument to which it is a party, or, to the best of the

Borrower’s knowledge, of any judgment, decree, order, statute, rule or governmental regulation

applicable to it.

3.14 Governmental Consent. Neither the Borrower nor any shareholder of the

Borrower is required to obtain any order, consent, approval or authorization of, or required to

make any declaration or filing with, any governmental authority in connection with the execution

and delivery of this Agreement and the issuance and delivery of the Notes pursuant hereto.

3.15 Regulation U, etc. The Borrower does not own or have any present

intention of acquiring any “margin stock” within the meaning of Regulation U (12 CFR Part

221) of the Board of Governors of the Federal Reserve System (herein called “margin stock”).

None of the proceeds of the Loans will be used, directly or indirectly, by the Borrower for the

purpose of purchasing or carrying, or for the purpose of reducing or retiring any indebtedness

that was originally incurred to purchase or carry, any margin stock or for any other purpose that

might constitute the transactions contemplated hereby a “purpose credit” within the meaning of

said Regulation U, or cause this Agreement to violate Regulation U, Regulation T, Regulation X,

or any other regulation of the Board of Governors of the Federal Reserve System or the

Securities Exchange Act of 1934. If requested by the Bank, the Borrower will promptly furnish

the Bank with a statement in conformity with the requirements of Federal Reserve Form U- I

referred to in said Regulation U.

3.16 Employee Retirement Income Security Act of 1974. The terms used in

this subsection 3.16 and in subsection 5.7 of this Agreement shall have the meanings assigned

thereto in the applicable provisions of the Employee Retirement Income Security Act of 1974, as

amended (“ERISA”), and the Internal Revenue Code of 1986, as amended (the “Code”), and

the term “Affiliated Company” shall mean the Borrower and all corporations, partnerships,

trades or businesses (whether or not incorporated) which constitute a controlled group of

corporations with the Borrower, an affiliated service group or other affiliated group, within the

meaning of Section 414(b), Section 414(c), Section 414(m) or Section 414(o), respectively, of

the Code or Section 4001 of ERISA. Each employee benefit plan sponsored by an Affiliated

Company and, to the best of the Borrower’s knowledge, each multiemployer plan to which any

Affiliated Company makes contributions, is in material compliance with applicable provisions of

ERISA and the Code. No Affiliated Company has incurred any material liability to the Pension

Benefit Guaranty Corporation (“PBGC”) or any employee benefit plan on account of any failure

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to meet the contribution requirements of any such plan, minimum funding requirements or

prohibited transactions under ERISA or the Code, termination of a single employer plan, partial

or complete withdrawal from a multiemployer plan, or the insolvency, reorganization or

termination of any multiemployer plan, and no event has occurred or conditions exist which

present a material risk that any Affiliated Company will incur any material liability on account of

any of the foregoing circumstances. The consummation of the transactions contemplated by this

Agreement will not result in any prohibited transaction under ERISA or the Code for which an

exemption is not available.

3.17 Ownership of Borrower. Schedule 3.17 attached hereto correctly sets

forth as of the Effective Date the number of shares of the Borrower’s capital stock of each class

authorized and the number thereof outstanding, the name of each shareholder of the Borrower

and the number of shares of each class of such capital stock owned by such shareholders. All of

said outstanding shares are validly issued, fully paid and nonassessable and are owned by such

shareholders as specified in such Schedule, free of any assignment, pledge, lien, security interest,

charge, option or other encumbrance except as set forth in such Schedule (other than security

interests in favor of the Bank). Except as otherwise set forth in Schedule 3.17, the Borrower is

not obligated as of the Effective Date in any manner to issue any additional shares of its capital

stock and there are no outstanding Equity Rights with respect to the Borrower.

3.18 Environmental Matters. Except as set forth in Schedule 3.18 attached

hereto, neither the Borrower nor, to the Borrower’s knowledge (after due inquiry), any other

Person has ever caused or permitted any Hazardous Material to be disposed of on or under any

real property owned, leased or operated by the Borrower or in which the Borrower has ever held,

directly or indirectly, any legal or beneficial interest or estate, and except as set forth in

Schedule 3.18, no such real property has ever been used (either by the Borrower or, to the

Borrower’s knowledge, by any other Person as (i) a disposal site or permanent storage site for

any Hazardous Material or (ii) a temporary storage site for any Hazardous Material unless such

storage was in compliance with applicable laws and regulations and such Hazardous Material

was used by the Borrower in the ordinary course of its business. To the knowledge of the

Borrower, the Borrower has been issued and is in compliance with all material permits,

certificates, licenses, approvals and other authorizations relating to environmental matters and

necessary or desirable for its businesses, and have filed all notifications and reports relating to

chemical substances, air emissions, underground storage tanks, effluent discharges and

Hazardous Material waste storage, treatment and disposal required in connection with the

operation of its businesses, the failure to have or comply with which would, individually or in the

aggregate, have a material adverse effect on the Borrower. Except as set forth in Schedule 3.18,

to the knowledge of the Borrower, all Hazardous Materials used or generated by the Borrower or

any business merged into or otherwise acquired by the Borrower have been generated,

accumulated, stored, transported, treated, recycled and disposed of in material compliance with

all applicable laws and regulations, the violation of which has any reasonable likelihood of

having a material adverse effect on the Borrower. Except as set forth in Schedule 3.18, to the

knowledge of the Borrower, the Borrower has no liabilities with respect to Hazardous Materials,

and to the knowledge of the Borrower. (after due inquiry), no facts or circumstances exist which

could give rise to liabilities with respect to Hazardous Materials, which could have any

reasonable likelihood of having a material adverse effect on the Borrower.

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3.19 Patent, Trademarks and Other Intellectual Property. The Borrower is

engaged in the business of _________________. The Borrower either owns free and clear of all

liens, security interests, claims and encumbrances other than in favor of Bank, or has a valid

license to use, all patents, trademarks, copyrights and other intellectual property necessary for the

conduct of its business as presently conducted and as currently contemplated to be conducted and

no claim of infringement has been brought against the Borrower with respect thereto.

3.20 Labor Matters. Except as set forth in Schedule 3.20 hereto, the Borrower

is not a party to any collective bargaining or similar agreement, and to the best of the Borrower’s

knowledge after due inquiry the Borrower has complied in all material respects with all

applicable state and federal laws respecting employment and employment practices, terms and

conditions of employment, wages and hours and other laws relating to employment of employees

of the Borrower, and there are no arrearages in the payment of wages, withholding or social

security taxes, unemployment, insurance premiums or other similar obligations of the Borrower.

3.21 Status under Certain Statutes. The Borrower is not subject to regulation

under the Investment Company Act of 1940, as amended.

3.22 Information. Neither this Agreement nor any of the other Loan

Documents to which the Borrower is a party, nor any certificate, exhibit, report or other

document furnished by or on behalf of the Borrower to the Bank, in connection with or pursuant

to this Agreement or the transactions contemplated hereby, contains any untrue statement of a

material fact or fails to state a material fact necessary to make the statements contained herein

and therein not misleading. Except as set forth on Schedule 3.22, no circumstance exists (other

than general economic conditions) which does or might materially affect adversely the business,

property, assets or condition, financial or otherwise, of the Borrower, or its ability to perform its

obligations hereunder and under the other Loan Documents.

SECTION 4. CONDITIONS OF LENDING

The obligations of the Bank to make the Loans hereunder are subject to the following

conditions:

4.1 Documents. As of the Effective Date, the Bank shall have received from

the Borrower the following in form and substance satisfactory to the Bank:

(a) the original executed Notes as provided in Section 2;

(b) an original executed Security Agreement, granting to the Bank a

security interest in all assets of the Borrower, subject to no other Lien except for liens permitted

by Section 6.2(a);

(c) an original, executed Guaranty from each of the Guarantors;

(d) financing statements and evidence of their filing in appropriate

offices to perfect the security interests granted by the Borrower;

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(e) with respect to the Leased Properties, a copy of the lease between

the Borrower and the landlord;

(f) a certificate of the clerk of the Borrower, as to the Borrower’s

articles of organization, by-laws, corporate action and incumbency and signatures of officers;

(g) evidence of insurance satisfying the requirements of subsection 5.4;

(h) a certificate, dated as of such date, signed by a principal officer of

the Borrower, certifying that the conditions specified in subsection 4.3 have been fulfilled,

including a compliance certificate in the form of Exhibit A attached hereto;

(i) the favorable opinion or opinions of counsel for the Borrower,

dated as of such date and in form and substance reasonably satisfactory to the Bank and its

counsel;

(j) with respect to the Revolving Credit Loans, a written Loan Request

duly executed by the Chief Financial Officer or Chief Executive Officer of the Borrower, in the

form of Exhibit C attached hereto, accompanied by a Borrowing Base Certificate in the form of

Exhibit B attached hereto; and

(k) all other information and documents which the Bank or its counsel

may reasonably have requested in connection with the transactions contemplated by this

Agreement, such information and documents where appropriate to be certified by the proper

officers of the Borrower or governmental authorities.

4.2 Other Conditions of Lending. On the Effective Date, the Borrower shall

have paid all pre-closing fees of the Bank for which the Borrower is obligated hereunder.

4.3 No Default; Representations and Warranties; etc. On the date of each

Loan: (a) the representations and warranties of the Borrower contained in Section 3 of this

Agreement shall be true in all material respects on and as of such dates as if they had been made

on such dates (except to the extent that such representations and warranties expressly relate to an

earlier date or are affected by the consummation of transactions permitted under this

Agreement); (b) the Borrower shall be in compliance with all of the terms and provisions set

forth herein on its part to be observed or performed on or prior to such dates; (c) after giving

effect to the Loans to be made on such dates, no Default or Event of Default, shall have occurred

and be continuing; (d) since the date of the most recent reviewed financial statements of the

Borrower delivered on or prior to the date of this Agreement, there shall have been no material

adverse change in the aggregate of the assets or liabilities or in the financial or other condition of

the Borrower and its Subsidiaries, taken as a whole; and (e) there shall have been no change in

any law or any regulation thereunder or any interpretation thereof which, in the reasonable

opinion of the Bank, would make it illegal for the Bank to make the Loan. Each request for a

Loan hereunder shall constitute a representation and warranty by the Borrower to the Bank that

all of the conditions specified in clauses (a) through (d) of this subsection 4.3 have been satisfied

in all material respects as of the date of each such Loan, and the Bank shall have received a

certificate of a duly authorized officer of each Borrower that the conditions precedent set forth in

subsections (a) through (d) of this subsection 4.3 have been satisfied and such other approvals,

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opinions or documents as the Bank may reasonably request with respect to such conditions

precedent.

SECTION 5. AFFIRMATIVE COVENANTS

So long as any of the Loans shall remain available to the Borrower, and until the principal

of and interest on the Notes and all fees due hereunder shall have been paid in full, the Borrower

agrees that:

5.1 Financial Statements, Notices, etc. The Borrower will furnish or cause to

be furnished to the Bank:

(a) as soon as available, and in any event within one hundred twenty

(120) days after the end of each calendar year, balance sheets as of the end of such year, statements

of income and retained earnings and cash flows for the Borrower for such year, on a consolidated

basis, all in reasonable detail, all prepared in accordance with GAAP, reviewed by independent

certified public accountants reasonably satisfactory to the Bank;

(b) as soon as available, and in any event within fifteen (15) days after

the close of each calendar month, with respect to the Borrower, management-prepared balance

sheets as of the end of such month, statements of income and retained earnings and cash flows and

accounts receivable aging for such month, on a consolidated basis, all in reasonable detail, all

prepared in accordance with GAAP consistently applied (subject to year-end adjustments and the

addition of footnotes) and certified by an appropriate officer of each company;

(c) together with the financial statements delivered pursuant to

subparagraph (a) and subparagraph (b) above, a Compliance Certificate substantially in the form

of Exhibit A signed by the Chief Financial Officer or Chief Executive Officer of the Borrower

setting forth the calculations used in determining the Borrower’s compliance with the covenants

set forth in Section 7 as of the date of such certificate, and describing any Default or Event of

Default which is then on such date, specifying the nature and period of existence thereof and the

action which the Borrower has taken or proposes to take with respect thereto;

(d) drafts of the financial statements referred to in subparagraph (a) as

such draft financial statements become available;

(e) within ten (10) days after the filing thereof, a copy of each federal

income tax return for the Borrower and the Guarantor;

(f) within fifteen (15) days after the end of each month, a Borrowing

Base Certificate in the form of Exhibit B attached hereto, together with an accounts receivable

aging report, an accounts payable aging report, and an inventory report, each in a form

satisfactory to the Bank;

(g) within one hundred twenty (120) days after the end of each

calendar year, personal financial statements of the Guarantor for such year, in a form satisfactory

to the Bank;

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(h) as promptly as they are rendered, copies of all management letters

to the Borrower from independent public accountants of the Borrower;

(i) promptly after the Borrower has knowledge thereof, notice of:

(1) any Default or Event of Default which is then continuing,

together with a certificate of the president, a vice president, the treasurer or an assistant

treasurer of the Borrower, specifying the details thereof and the action which the

Borrower has taken or proposes to take with respect thereto;

(2) any action, suit, investigation or proceeding pending or

threatened by any Person against or affecting the Borrower or any of its property or

assets, by or before any court or other tribunal, any arbitrator or any governmental

authority or agency in which injunctive relief is sought with respect to any material

aspect of the business of the Borrower or damages are claimed in an amount of Fifty

Thousand Dollars ($50,000) or more, which, if determined adversely to the Borrower,

might have a material adverse effect on its business, property, assets or condition,

financial or otherwise, or on its ability to perform its obligations under this Agreement or

any other Loan Documents to which the Borrower is a party;

(3) any termination or potential termination of the registration

or use of any patent, copyright, trademark, service mark, mask work, consent, license,

franchise, privilege, permit, lease or other right which is necessary for the conduct of the

business or the ownership of the property and assets of the Borrower;

(4) any material loss, damage or destruction to or of any of the

property or assets of the Borrower having a market value of more than Fifty Thousand

Dollars ($50,000), regardless of whether the same is covered by insurance;

(5) any material controversy with any group of employees of

the Borrower or with any labor organization; and

(6) any other development which might materially affect

adversely the business, property, assets or condition, financial or otherwise, of the

Borrower; and

(j) with reasonable promptness, such other information regarding the

business, affairs and condition of the Borrower and the Guarantor as the Bank may from time to

time reasonably request.

5.2 Maintain Existence, Good Standing, Properties. The Borrower shall:

(a) maintain its corporate existence and good standing under the law of

the jurisdiction of its incorporation, and qualify and remain qualified to do business and in good

standing as a foreign corporation in each other jurisdiction in which such qualification may be

necessary, from time to time, in view of the character of the business or the ownership of the

property and assets of the Borrower;

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(b) enforce and maintain in good standing all patents, copyrights,

trademarks, service marks, mask works and similar property and all consents, licenses,

franchises, privileges, permits and other rights as are necessary for the conduct of the business

and the ownership of the property and assets of the Borrower;

(c) comply with the provisions of its incorporation papers and by-laws

and any securities issued by it, and all laws, rules, regulations, orders judgment and decrees, and

all licenses, permits, indentures, agreements, leases and instruments, to which the Borrower is a

party or by which it or any of its property or assets may be bound or affected the failure to

comply with which would have a material adverse effect on the Borrower;

(d) maintain all property, which is necessary to the proper conduct of

the business of the Borrower, in good working order and condition, and make all necessary

repairs thereto and replacements thereof; and

(e) continue to be engaged principally in its business described in

subsection 3.19.

5.3 Inspection and Examination of Books and Records. The Borrower shall

keep proper books of record and account in which full, true and correct entries are made of all

dealings and transactions in relation to its businesses and activities, in accordance with GAAP,

and maintain adequate reserves (to the extent such reserves are required by GAAP) for all taxes

and all depreciation, depletion, obsolescence and amortization of property and other

contingencies. The Borrower will permit the Bank, by or through officers, agents, accountants,

auditors, attorneys and other representatives of the Bank, at all reasonable times (which, so long

as no Event of Default has occurred, shall be on five (5) days prior telephonic notice and during

normal business hours) and as often as the Bank may reasonably request to inspect and examine

the property of the Borrower wherever located, to make copies of, and extracts from, the books,

records, electronically stored data, papers and files of every kind of the Borrower, whether in the

possession of the Borrower or any other Person, and to discuss the financial and other affairs of

the Borrower with any of its officers or directors and any accountants or auditors hired by it

(“Field Examination”). The Borrower shall reimburse the Bank for the costs of each Field

Examination, provided that (a) the Borrower shall not be required to reimburse the Bank for

salaries of Bank employees and shall only be required to pay the reasonable costs of independent

accountants or auditors hired by the Bank, and (b) so long as there exists no Default or Event of

Default, the Borrower shall not be required to reimburse the Bank for the costs of more than one

(1) Field Examination per calendar year. Absent a Default or Event of Default, the Bank

anticipates that Field Examinations shall be conducted not more frequently than annually.

5.4 Insurance. The Borrower will maintain or cause to be maintained on all

insurable properties now or hereafter owned by the Borrower insurance against loss or damage

by fire or other casualty under the broad form of coverage with appropriate agreed amount

endorsement in such amounts as is customary with respect to like properties of companies

conducting similar businesses, and will maintain or cause to be maintained product liability,

public liability and worker’s compensation insurance insuring the Borrower and any of its

Subsidiaries to the extent customary with respect to companies conducting similar businesses

and, upon request, will furnish to the Bank satisfactory evidence of the same. Upon the request

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of the Bank, the Borrower shall cause the Bank to be named as an “additional insured” and “loss

payee” under each such insurance policy.

5.5 Payment of Taxes. The Borrower will pay and discharge promptly as they

become due and payable all taxes, assessments and other governmental charges or levies

imposed upon their income or upon any of its properties or assets, or upon any part thereof, as

well as all lawful claims of any kind (including claims for labor, materials and supplies) which, if

unpaid, might by law become a lien or a charge upon its property; provided that the Borrower

shall not be required to pay any such tax, assessment, charge, levy or claim if the amount,

applicability or validity thereof shall currently be contested in good faith by appropriate

proceedings promptly initiated and diligently conducted and if such Borrower or such

Subsidiary, as the case may be, shall have set aside on its books such reserves, if any, with

respect thereto as are required by GAAP and deemed appropriate by the Borrower and its

independent public accountants.

5.6 Payment of Other Indebtedness, etc. Except as to matters being

contested in good faith and by appropriate proceedings and adequate reserves have been

established therefor, and the Borrower will pay promptly when due, or in conformance with

customary trade terms, all other Indebtedness and obligations incident to the conduct of its

business.

5.7 Compliance with ERISA. The Borrower will make, and will cause all

Affiliated Companies to make, all payments or contributions to employee benefit plans required

under the terms thereof and in accordance with applicable minimum funding requirements of

ERISA and the Code and applicable collective bargaining agreements. The Borrower will cause

all employee benefit plans sponsored by any Affiliated Company to be maintained in material

compliance with ERISA and the Code. The Borrower will not engage, and will not permit or

suffer any Affiliated Company or any Person entitled to indemnification or reimbursement from

the Borrower or any Affiliated Company to engage, in any prohibited transaction for which an

exemption is not available. No Affiliated Company will terminate, or permit the PBGC to

terminate, any employee benefit plan or withdraw from any multiemployer plan, in any manner

which could result in material liability of any Affiliated Company.

5.8 Bank Accounts. The Borrower will maintain its principal depository and

operating accounts with the Bank and shall maintain in such accounts sufficient funds to make

all principal and interest payments as and when due on the Notes. The Bank may, at its election,

debit from such account on a monthly basis the amounts necessary to make the scheduled

payments of principal, if any, and interest on the Notes then due and at any other time with

respect to fees, charges and other expenses due hereunder.

5.9 Assignment of Contracts. The Borrower will, upon request of the Bank,

specifically assign to the Bank all federal government contracts and will cooperate with the Bank

in giving notice of such assignment pursuant to the federal Assignment of Claims Act. The

Borrower will cooperate with the Bank in providing such further information with respect to

contracts with any state, other unit of local government or agency as the Bank may require and

will provide such instruments of further assurance with respect to such contracts as the Bank

may require.

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5.10 Further Assurances. From time to time hereafter, the Borrower will

execute and deliver, or will cause to be executed and delivered, such additional instruments,

certificates or documents, and will take all such actions, as the Bank may reasonably request, for

the purposes of implementing or effectuating the provisions of this Agreement, the Notes or the

other Loan Documents, or of more fully protecting or renewing the Bank’s rights hereunder and

thereunder. Upon the exercise by the Bank of any power, right, privilege or remedy pursuant to

this Agreement, the Notes or any other Loan Documents which requires any consent, approval,

registration, qualification or authorization of any governmental authority or instrumentality, the

Borrower will execute and deliver, or will cause the execution and delivery of, all applications,

certifications, instruments and other documents and papers that the Bank may be required to

obtain for such governmental consent, approval, registration, qualification or authorization.

SECTION 6. NEGATIVE COVENANTS

So long as any of the Loans shall remain available to the Borrower, and until the

principal of and interest on the Notes and all fees due hereunder shall have been paid in full, each

Borrower agrees that:

6.1 Indebtedness. The Borrower will not create, incur, assume or become or

remain liable in respect of any Indebtedness, except:

(a) Indebtedness to the Bank hereunder or otherwise arising;

(b) current liabilities of the Borrower (other than for borrowed money)

incurred in the ordinary course of business and in accordance with customary trade practices

(unless otherwise approved by the Bank or being contested in good faith and by appropriate

proceedings);

(c) Existing Indebtedness of the Borrower identified on Schedule 3.8

attached hereto in principal amounts not in excess of the principal amounts thereof specified in

Schedule 3.8 or as otherwise permitted by the proviso to subsection 6.3(a);

(d) Indebtedness secured as permitted by, and subject to the provisos

set forth in, subparagraph (c) of subsection 6.2;

(e) Indebtedness in respect of guaranties to the extent permitted under

subsection 6.3; and

(f) Capital Leases not in excess of $3,000 per month in the aggregate.

6.2 Mortgages, Liens, etc. The Borrower will not, directly or indirectly,

create, incur, assume or suffer to exist, any mortgage, lien, charge or encumbrance on, or

security interest in, or pledge of, or conditional sale or other title retention agreement with

respect to, any property or asset now owned or hereafter acquired by the Borrower, except:

(a) any lien in favor of the Bank securing Indebtedness to the Bank

incurred pursuant to this Agreement;

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(b) the existing mortgages and security interests referred to in Schedule

3.8 attached hereto, or any renewal, extension or refunding of any such mortgage or security

interest in an amount not exceeding the amount thereof remaining unpaid immediately prior to

such renewal, extension or refunding;

(c) purchase money mortgages, liens and other security interests,

including Capital Leases, created in respect of property acquired by the Borrower after the date

hereof or existing in respect of property so acquired at the time of acquisition thereof, provided

that each such lien shall at all times be confined solely to the item or items of property so

acquired and do not secure Indebtedness exceeding the fair value of the property at the time of

acquisition thereof, and further provided that the payment and amount of the Indebtedness

secured by all such security interests and Capital Leases does not exceed $150,000 at any given

time; and

(d) Liens for taxes, assessments or governmental charges not yet

delinquent or being contested in good faith as provided in subsection 5.5 and so long as

enforcement of any Lien therefor is effectively stayed; liens in connection with worker’s

compensation, unemployment insurance or other social security obligations; liens securing the

performance of bids, tenders, contracts, surety and appeal bonds; liens to secure progress or

partial payments and other liens of like nature, in each case, arising in the ordinary course of

business; mechanics’, worker’s, materialmen’s, warehouseman’s or other like liens arising in the

ordinary course of business in respect of obligations which are not yet due or which are being

contested in good faith; and other liens or encumbrances incidental to the conduct of the business

of the Borrower or to the ownership of its properties or assets, which were not incurred in

connection with the borrowing of money or the obtaining of credit and which do not materially

detract from the value of the properties or assets of the Borrower or materially affect the use

thereof in the operation of its business.

6.3 Loans, Guarantees and Investments. The Borrower will not make or

permit to remain outstanding any loan or advance to, or guaranty or indorse (except as a result of

indorsing negotiable instruments for deposit or collection in the ordinary course of business) or

otherwise assume or remain liable with respect to any obligation of, or make or own any

investment in, or acquire (except in the ordinary course of business) the properties or assets of,

any Person, except:

(a) extensions of credit by the Borrower in the ordinary course of

business in accordance with customary trade practices;

(b) the presently outstanding investments, loans and advances, if any,

and the presently existing guarantees, if any, referred to in Schedule 3.8 attached hereto, which

are not being paid with the proceeds of the Loans;

(c) marketable direct obligations of the United States of America or

any department or agency thereof maturing not more than one (1) year from the date of issuance

thereof; and

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(d) certificates of deposit, repurchase agreements, money market

deposits or other similar types of investments maturing not more than one (1) year from the date

of acquisition thereof and evidencing direct obligations of the Bank or any other bank within the

United States of America, in the case of such other bank, having capital surplus and undivided

profits in excess of $100,000,000.

6.4 Restricted Payments. Notwithstanding anything in this Agreement to the

contrary, the Borrower shall not directly or indirectly declare, order, pay or make any Restricted

Payment or set aside any sum of property therefor other than dividends and distributions made

for the purpose of reimbursing shareholders for taxes paid by such shareholders resulting from

the status of such parties as shareholders of the Borrower.

6.5 Mergers, Consolidations, Acquisitions, etc. The Borrower will not enter

into any merger or consolidation with or to otherwise acquire all or substantially all of the assets

of, or any substantial division or segment of, any corporation, partnership, trust or other business,

without the prior written consent of the Bank.

6.6 Subsidiaries. The Borrower shall not create or acquire any subsidiaries.

6.7 Sale of Assets. The Borrower will not sell, lease or otherwise dispose of

any of its properties or assets without the prior written consent of the Bank, except that no such

consent shall be required for the sale or lease of inventory or obsolete or worn out property sold

or leased in the ordinary course of the Borrower’s businesses. The Borrower will not enter into

any arrangement, directly or indirectly, whereby the Borrower shall sell or transfer any property

owned by it in order then or thereafter to lease such property or lease other property which the

Borrower intends to use for the same purpose as the property being sold or transferred. The

proceeds from the sale or disposition of any asset by the Borrower (if such proceeds are equal to

or greater than $5,000), other than the sale of inventory or obsolete or worn out property in the

ordinary course of the Borrower’s business, shall be applied to either the replacement of the asset

sold, or disposed of, or, if no replacement is purchased of equal or higher value, upon the Bank’s

request, to the prepayment of the Loans.

6.8 No Negative Pledges. The Borrower shall not enter into any agreement

(other than this Agreement or any other agreement with the Bank) prohibiting the creation or

assumption of any Lien upon the Borrower’s property or assets, whether now owned or hereafter

acquired, except with respect to property that is the subject of Capital Leases or purchase money

security interests permitted under subsection 6.2(c) of this Agreement.

6.9 Transactions with Affiliates. Except as set forth in Schedule 6.9, the

Borrower will not directly or indirectly, enter into any lease or other transaction with any

shareholder or with any Affiliate of the Borrower or such shareholder, on terms that are less

favorable to the Borrower than those which might be obtained at the time from Persons who are

not such a shareholder or Affiliate.

6.10 Environmental Liabilities. The Borrower will not violate any

requirement of law, rule or regulation regarding Hazardous Materials; and, without limiting the

foregoing, the Borrower will not and will not permit any other Person to, dispose of any

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Hazardous Material into or onto, or (except in accordance with applicable law) from, any real

property owned, leased or operated by the Borrower or in which the Borrower holds, directly or

indirectly, any legal or beneficial interest or estate, nor allow any lien imposed pursuant to any

law, regulation or order relating to Hazardous Materials or the disposal thereof to be imposed or

to remain on such real property, except for liens being contested in good faith by appropriate

proceedings and for which adequate reserves have been established and are being maintained on

the books of the Borrower.

6.11 Fiscal Year. The Borrower shall not change its fiscal year without at least

thirty (30) days prior written notice to the Bank.

SECTION 7. FEES; FINANCIAL COVENANTS

7.1 Fees.

(a) In consideration for establishing the Revolving Credit

Commitment, the Borrower agrees to pay to the Bank an origination fee of

____________________________ ($__________);

(b) In consideration for the availability of capital under the Revolving

Credit Commitment, the Borrower agrees to pay a commitment fee to the Bank equal to one-half

of one percent (0.50%) per annum on the weighted average of the unused portion of the

Revolving Credit Commitment during each calendar quarter (the “Commitment Fee”). The

Commitment Fee shall be payable quarterly in arrears.

7.2 Debt Service Coverage. So long as any of the Loans shall remain

available to the Borrower, and until the principal of and interest on the Notes and all fees due

hereunder shall have been paid in full, the Borrower agrees that the Borrower shall maintain a

minimum Debt Service Coverage Ratio of 1.25:1.00, to be tested quarterly as of the last day of

each calendar quarter, for the prior twelve (12) month period while any Loan is outstanding

(each a “Debt Service Testing Date”). For the purposes of this Section 7.2, the term “Debt

Service Coverage Ratio” shall mean the ratio of (i) Net Operating Income (as hereinafter

defined) to (ii) Debt Service (as hereinafter defined). For purposes of this Section 7.2, Net

Operating Income shall mean with respect to the coverage period ending on a Debt Service

Testing Date (each a “Debt Service Coverage Period”), aggregate Net Income, plus interest and

depreciation expense, minus distributions (in excess of salaries) made by the Borrower to its

shareholders. For the purposes of this Section 7.2, the term “Debt Service” shall mean the

scheduled debt service under the Notes, plus the scheduled payments of principal and interest on

all other debts of the Borrower during the Debt Service Coverage Period.

SECTION 8. DEFAULTS; REMEDIES

8.1 Events of Default; Acceleration. If any of the following events (each an

“Event of Default”) shall occur:

(a) the Borrower shall fail to pay any principal, interest, premium or any

other sums required under either of the Notes within ten (10) days after the due date thereof; or

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(b) the Borrower shall fail to pay any other sums to be paid by the Borrower

to the Bank under this Agreement or any other Loan Document within five (5) days after written

notice thereof; or

(c) any breach by the Borrower of, or failure by the Borrower to observe,

any of the non-monetary covenants, terms and conditions contained in this Agreement (other

than those contained in Subsections 5.2(a), 5.2(e), 5.8, 6.4, 6.5, 6.6, 6.10 or Section 7 hereof) or

in any other Loan Document to which the Borrower is a party, or in any certificate or side letter

executed and delivered in connection with the Loan Documents, and such breach or failure

continues for thirty (30) days after written notice thereof by the Bank to the Borrower, or if such

breach or failure cannot through the exercise of reasonable diligence be cured within said 30-day

period, such additional period of time as may reasonably be required to cure such matter, not to

exceed one hundred eighty (180) days, provided that the Borrower shall commence to cure such

breach or failure (i) within thirty (30) days, or (ii) if there is an emergency situation in which

there is a danger to persons or property, as promptly as possible after the Borrower’s receipt of

the Bank’s notice of the default, and shall thereafter diligently attempt to prosecute such cure to

completion; or

(d) the Borrower shall fail to duly observe or perform any term, covenant,

condition or agreement contained in Subsections 5.2(a), 5.2(e), 5.8, 6.4, 6.5, 6.6, 6.10 or Section

7; or

(e) the Borrower shall default in the performance of or compliance with any

term contained in any other written agreement with the Bank, and such default shall continue for

more than the period of grace, if any, specified therein and shall not have been waived pursuant

thereto; or

(f) any Guarantor denies that such Guarantor has any liability or obligations

under such Guarantor’s Guaranty, or shall notify the Bank of such Guarantor’s intention to

attempt to cancel or terminate such Guaranty, or shall fail to observe or comply with any term,

covenant, condition and agreement under such Guaranty beyond the expiration of any applicable

notice or cure period; or

(g) any material representation or warranty made or deemed to be made by

or on behalf of the Borrower or the Guarantor in this Agreement or in any of the other Loan

Documents, or in any report, certificate, financial statement, document or other instrument

delivered pursuant to or in connection with this Agreement, or any of the other Loan Documents,

shall prove to have been false or incorrect in any material respect upon the date when made or

deemed to be made or repeated; or

(h) any dissolution, termination, partial or complete liquidation, merger or

consolidation of the Borrower, or any sale, transfer or other disposition of all or substantially all

of the assets of the Borrower, other than as permitted under the terms of this Agreement; or

(i) any suit or proceeding shall be filed against the Borrower or the

Guarantor which, if adversely determined, would have a materially adverse affect on the ability

of the Borrower or the Guarantor to perform each and every one of their respective obligations

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under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within

thirty (30) days after notice thereof from the Bank to the Borrower; or

(j) the Borrower or the Guarantor shall file a voluntary petition in

bankruptcy under Chapter 11 of the United States Bankruptcy Code, or an order for relief shall

be issued against the Borrower or the Guarantor in any involuntary petition in bankruptcy under

Chapter 11 of the United States Bankruptcy Code (and, if issued against the Borrower or the

Guarantor, shall not be dismissed within ninety (90) days), or the Borrower or the Guarantor

shall file any petition or answer seeking or acquiescing in any reorganization, arrangement,

composition, readjustment, liquidation, dissolution or similar relief for itself under any present or

future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief of

debtors, or the Borrower or the Guarantor shall seek or consent to or acquiesce in the

appointment of any custodian, trustee, receiver, conservator or liquidator of the Borrower or the

Guarantor respectively, or of all or any substantial part of its respective property, or the

Borrower or the Guarantor shall make an assignment for the benefit of creditors, or the Borrower

or the Guarantor shall give notice to any governmental authority or body of insolvency or

pending insolvency or suspension of operation; or

(k) a court of competent jurisdiction shall enter any order, judgment or

decree approving a petition filed against the Borrower or the Guarantor seeking any

reorganization, arrangement, composition, readjustment, liquidation or similar relief under any

present or future federal, state or other law or regulation relating to bankruptcy, insolvency or

other relief for debtors, or appointing any custodian, trustee, receiver, conservator or liquidator

of all or any substantial part of its property; or

(l) any uninsured final judgment in excess of $100,000.00 shall be rendered

against the Borrower or the Guarantor and shall remain in force, undischarged, unsatisfied and

unstayed, for more than thirty (30) days, whether or not consecutive unless the Borrower posts a

bond for any such amount in excess of $100,000.00; or

(m) any of the Loan Documents shall be cancelled, terminated, revoked or

rescinded otherwise than in accordance with the terms thereof or with the express prior approval

of the Bank, or any action at law, suit in equity or other legal proceeding to cancel, revoke or

rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or the

Guarantor or any of their respective members, partners or beneficiaries, or any court or any other

governmental or regulatory authority or agency of competent jurisdiction shall make a

determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more

of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;

or

(n) the death or mental incapacity of the Guarantor, such condition of mental

incapacity as determined by a physician licensed in the Commonwealth of Massachusetts; or

(o) the Borrower or the Guarantor shall be indicted for a federal or state

crime, a punishment for which could include the forfeiture of any of its assets.

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then, and in any such event, and at any time thereafter, (A) if any Event of Default described in

clauses (j) or (k) above shall then be continuing, the principal of and accrued interest in respect

of the Loans shall automatically be declared to be forthwith due and payable, whereupon the

principal of and accrued interest in respect of the Loans shall become forthwith due and payable

without presentment, demand, protest or other notice of any kind, all of which are hereby

expressly waived by the Borrower, and all commitments to make Loans hereunder shall be

automatically terminated, whereupon said commitment of the Bank hereunder shall forthwith

terminate without any other notice of any kind or (B) if any other Event of Default shall then be

continuing, the Bank may (1) declare the principal of and accrued interest in respect of the Loans

to be forthwith due and payable, whereupon the principal of and accrued interest in respect of the

Loans shall become forthwith due and payable without presentment, demand, protest or other

notice of any kind, all of which are hereby expressly waived by the Borrower, and/or (2)

terminate any commitment to make any or all of the Loans hereunder, whereupon said

commitment of the Bank hereunder shall forthwith terminate without any other notice of any

kind.

8.2 Remedies on Default, etc. In case any one or more Events of Default

shall occur and be continuing, the Bank may exercise all its rights under the Security Agreements

and may proceed to protect and enforce the Bank’s rights by an action at law, suit in equity or

other appropriate proceeding, whether for the specific performance of any agreement contained

herein, or in any Loan Document, or for an injunction against a violation of any of the terms

hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law. In

case of a default in the payment of any principal of or interest on any Note, or in the payment of

any fee due hereunder, the Borrower will pay to the Bank such further amount as shall be

sufficient to cover the reasonable cost and expense of collection, including, without limitation,

reasonable attorneys’ fees, expenses and disbursements. No course of dealing and no delay on

the part of the Bank in exercising any right shall operate as a waiver thereof or otherwise

prejudice the Bank’s rights. No right conferred hereby or by any Loan Document upon the Bank

shall be exclusive of any other right referred to herein or therein or now or hereafter available at

law, in equity, by statute or otherwise.

SECTION 9. MISCELLANEOUS

The Borrower hereby agrees that:

9.1 Bank’s Right of Setoff. If any Event of Default occurs and is continuing,

any and all deposits or other sums credited by or due from the Bank to the Borrower or any

Subsidiary (other than with respect to any payroll account designated as such), and any and all

instruments, securities or other property of the Borrower in the actual or constructive possession

or control of the Bank at any time or from time to time, to the fullest extent permitted by then

applicable law may be offset and applied toward the payment of any Obligations from the

Borrower to the Bank hereunder, whether or not such Obligations, or any part thereof shall then

be due. The Borrower hereby grants to the Bank a lien and security interest and right of setoff as

security for all liabilities and Obligations to the Bank whether now existing or hereafter arising,

upon and against all deposits, credits, collateral and property now or hereafter in the possession,

custody, safekeeping or control of the Bank or in transit to it. At any time following the

occurrence and during the continuance of an Event of Default, without demand or notice the

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Bank may set off the same or any part thereof and apply the same to any liability or Obligation

of the Borrower even though unmatured and regardless of the adequacy of any other collateral

security or means of obtaining payment of the Indebtedness of the Borrower to the Bank. The

rights and remedies of the Bank hereunder are in addition to any rights of setoff, banker’s lien,

counterclaim or similar rights which the Bank may have. Nothing contained herein shall be

deemed to affect the authorization set forth in Section 2.3 hereof. ANY AND ALL RIGHTS TO

REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO

ANY OTHER COLLATERAL WHICH SECURES THE LOANS PRIOR TO EXERCISING

ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER

PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY VOLUNTARILY AND

IRREVOCABLY WAIVED.

9.2 Expenses. The Borrower shall pay to the Bank, on demand:

(a) all reasonable out of pocket costs and expenses paid or incurred by

the Bank, in connection with the preparation, administration and interpretation of this Agreement

and the other Loan Documents, and any amendment hereof or thereof, including, without

limitation, the fees and disbursements of counsel for the Bank;

(b) all other reasonable out of pocket costs and expenses, including,

without limitation on the foregoing, reasonable attorneys’ fees and legal expenses, paid or

incurred by the Bank in connection with the enforcement or satisfaction of any Obligation of the

Borrower, whether arising under this Agreement, any of the other Loan Documents or otherwise

or with any claim, proceeding or dispute in any way related to the transactions contemplated

hereby or thereby, whether or not, in any instance, litigation is commenced, unless such costs

and expenses are paid or incurred solely by reason of the gross negligence or willful misconduct

of the Bank; and

(c) all taxes (including any interest and penalties with respect thereto,

but excluding any taxes on or measured solely by the net income of the Bank), payable on, or

with respect to the transactions contemplated by this Agreement or the other Loan Documents.

9.3 Indemnification. The Borrower shall indemnify the Bank and its

directors, partners, officers and employees and each other Person, if any, who controls the Bank,

or any of them, and will hold the Bank and such other Persons harmless from and against any

and all claims, damages, losses, liabilities, judgments and expenses (including without limitation

all reasonable fees and expenses of counsel and all expenses of litigation or preparation therefor)

which the Bank or such other Persons may incur or which may be asserted against the Bank or

such other Persons in connection with or arising out of any investigation, litigation or proceeding

involving the Borrower or any shareholder or any Affiliate of the Borrower or any such

shareholder (including compliance with or contesting of any subpoenas or other process issued

against the Bank, or any director, officer or employee of the Bank, or any Person, if any, who

controls the Bank or any of them in any proceeding involving the Borrower or any shareholder or

any Affiliate of the Borrower or any such shareholder), whether or not the Bank is party thereto,

other than claims, damages, losses, liabilities or judgments with respect to any matter as to which

the Bank or such other Person seeking indemnity shall have been adjudicated not to have acted in

good faith or which arise from the Bank’s gross negligence or willful misconduct. Promptly

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upon receipt by any indemnified party hereunder of notice of the commencement of any action,

such indemnified party shall, if a claim in respect thereof is to be made against the Borrower

hereunder, notify the Borrower in writing of the commencement thereof.

9.4 Waivers. The Bank’s failure to insist upon the strict performance of any

term, condition or other provision of this Agreement, or the Notes or to exercise any right or

remedy hereunder or thereunder shall not constitute a waiver by the Bank of any such term,

condition or other provision or Default or Event of Default in connection therewith; and any

waiver of any such term, condition or other provision or of any such Default or Event of Default

shall not affect or alter this Agreement or the Notes, and each and every term, condition and

other provision of this Agreement and the Notes shall, in such event, continue in full force and

effect and shall be operative with respect to any other then existing or subsequent Default or

Event of Default in connection therewith.

9.5 Notices, etc. Each notice, demand, election or request provided for or

permitted to be given pursuant to this Agreement (hereinafter in this Section 9.5 referred to as

“Notice”) must be in writing and shall be deemed to have been properly given or served by

personal delivery or by sending same by overnight courier or by depositing same in the United

States Mail, postpaid and registered or certified, return receipt requested, and addressed as

follows:

(a) If to the Bank:

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

(b) If to the Borrower:

with a copy to:

Each Notice shall be effective upon being personally delivered or upon being sent by overnight

courier or upon being deposited in the United States Mail as aforesaid. The time period in which

a response to such Notice must be given or any action taken with respect thereto (if any),

however, shall commence to run from the date of receipt if personally delivered or sent by

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overnight courier, or if so deposited in the United States Mail, the earlier of three (3) Business

Days following such deposit or the date of receipt as disclosed on the return receipt. Rejection or

other refusal to accept or the inability to deliver because of changed address for which no Notice

was given shall be deemed to be receipt of the Notice sent. By giving at least ten (10) days prior

Notice thereof, the Borrower or the Bank shall have the right from time to time and at any time

during the term of this Agreement to change their respective addresses and each shall have the

right to specify as its address any other address within the United States of America.

9.6 Amendment Modification and Waiver. Neither this Agreement nor any

provision hereof may be waived, amended or modified except pursuant to an agreement or

agreements in writing entered into by the Borrower and the Bank.

9.7 Calculations, etc. Calculations hereunder shall be made and financial data

required hereby shall be prepared, both as to classification of items and as to amounts, in

accordance with GAAP and in conformity with those used by the Borrower in the preparation of

the financial statements referred to herein.

9.8 Survival of Agreements, etc. All representations, warranties, covenants

and agreements made in this Agreement or the other Loan Documents, or in any other document

or paper delivered, by or on behalf of the Borrower pursuant hereto or thereto or in connection

herewith or therewith or with the transactions contemplated hereby or thereby, shall be deemed

to have been relied upon by the Bank, notwithstanding any investigation made at any time by or

on behalf of the Bank (or lack of any such investigation), shall survive the execution and

delivery of this Agreement and the making of the Loans, and shall continue in full force and

effect so long as any Loan or any other obligation under this Agreement or the other Loan

Documents remains outstanding or unpaid, or the Bank has any obligation to make any Loan. All

statements contained in any loan application, certificate or other paper delivered to the Bank at

any time, by or on behalf of the Borrower, pursuant to or in connection with this Agreement or

any other Loan Document or the transactions contemplated hereby or thereby, shall constitute

representations and warranties by the Borrower hereunder. The Obligations of the Borrower

under Section 9.2 and Section 9.3 hereof shall survive the payment of the Loans and of all other

Obligations hereunder and under the other Loan Documents.

9.9 Action by Bank. No notice to or demand on the Borrower, in any instance,

shall entitle the Borrower to any other or further notice or demand under similar or other

circumstances, unless expressly required by this Agreement, any other Loan Document or

applicable law. The Bank shall be entitled to rely on any instrument or communication in any

form believed by it to be genuine and to have been signed or given by a proper Person. The Bank

shall not be liable for any action taken or omitted to be taken by it hereunder or under any other

Loan Document, except for its own gross negligence or willful misconduct.

9.10 Entire Agreement, etc. This Agreement and the other Loan Documents

constitute the entire contract between the parties hereto and shall supersede and take the place of

any other instrument purporting to be an agreement of the parties hereto relating to the

transactions contemplated hereby. This Agreement may not be changed orally but only by an

agreement in writing signed by the party against whom any waiver, change, modification or

discharge is sought.

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9.11 Successors and Assigns. The provisions of this Agreement shall be

binding upon and inure to the benefit of the parties hereto and their respective successors and

assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of

its rights or obligations hereunder without the prior written consent of the Bank (and any

attempted assignment or transfer by the Borrower without such consent shall be null and void),

and the term “Bank” shall include any such holder or holders whenever the context permits.

Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person

(other than the parties hereto, their respective successors and assigns permitted hereby and, to the

extent expressly contemplated hereby, the officers, employees, and agents of the Bank) any legal

or equitable right, remedy or claim under or by reason of this Agreement.

9.12 Bank’s Right to Pledge. The Bank may at any time pledge all or any

portion of its rights under the loan documents including any portion of the Notes to any of the

twelve (12) Federal Reserve Banks organized under Section 4 of the Federal Reserve Act 12

U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank from its

obligations under this Agreement.

9.13 Bank’s Right to Sell Loans to Third Parties. The Bank shall have the

unrestricted right at any time or from time to time and without the Borrower’s consent to assign

all or any portion of its rights and obligations hereunder to one or more banks or other financial

institutions (each an “Assignee”) and the Borrower agrees that it shall execute or cause to be

executed such documents including without limitation amendments to this Agreement and to any

other documents, instruments and agreements executed in connection herewith as the Bank shall

deem necessary to effect the foregoing. In addition at the request of the Bank and any such

Assignee, the Borrower shall issue one or more new promissory notes as applicable to any such

assignee and, if Bank has retained any of its rights and obligations hereunder following such

assignment, to the Bank, which new promissory notes shall be issued in replacement of but not in

discharge of the liability evidenced by the promissory note held by the Bank prior to such

assignment and shall reflect the amount of the respective commitments and loans held by such

Assignee and the Bank after giving effect to such assignment. Upon the execution and delivery

of appropriate assignment documentation amendments and any other documentation required by

the Bank in connection with such assignment and the payment by Assignee of the purchase price

agreed to by the Bank and such Assignee, such Assignee shall be a party to this Agreement and

shall have all of the rights and obligations of the Bank hereunder (and under and all other

guaranties, documents, instruments and agreements executed in connection herewith) to the

extent that such rights and obligations have been assigned by Bank pursuant to the assignment

documentation between the Bank and such Assignee, and Bank shall be released from its

obligations hereunder and thereunder to a corresponding extent.

9.14 Bank’s Right to Grant Participations. The Bank shall have the

unrestricted right at any time and from time to time and without the consent of or notice to the

Borrower to grant to one or more banks or other financial institutions (each, a “Participant”)

participating interests in the Bank’s obligation to lend hereunder and/or any or all of the Loans

held by the Bank hereunder. In the event of any such grant by the Bank of a participating interest

to a Participant whether or not upon notice to the Borrower the Bank shall remain responsible for

the performance of its obligations hereunder and the Borrower shall continue to deal solely and

directly with the Bank in connection with the Bank’s rights and obligations hereunder.

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9.15 Bank’s Right to Furnish Information. The Bank may furnish any

information concerning the Borrower in its possession from time to time to prospective

Assignees and Participants provided that the Bank shall require any such prospective Assignee or

Participant to agree to maintain the confidentiality of such information.

9.16 Attachments. The Exhibits and Schedules hereto are hereby incorporated

into and made a part of this Agreement.

9.17 Reproductions. This Agreement, the other Loan Documents and all other

documents, instruments and agreements in the possession of the Bank which relate hereto or

thereto, or to any or all Obligations, may be reproduced by the Bank, by photographic or other

means, and any such reproduction shall be admissible in evidence, with the same effect as the

original itself, in any judicial or administrative proceeding, whether or not the original is in

existence. The Borrower shall not object to the admission into evidence of any such

reproduction, unless the Borrower reasonably believes that the reproduction does not accurately

reflect the contents of the original and objects on that basis.

9.18 Severability. If any provision of this Agreement, or the application

thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other

provision which can be given effect without the invalid provision or application, and to this end

the provisions hereof shall be severable.

9.19 Captions. The captions in this Agreement are for convenience of

reference only, shall not define or limit the provisions hereof and shall not have any legal or

other significance whatsoever.

9.20 Counterparts, etc. This Agreement may be executed in any number of

counterparts and by the different parties hereto on separate counterparts, each of which when so

executed and delivered shall be an original, but all the counterparts shall together constitute one

and the same instrument.

9.21 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement

and the Notes, including the validity thereof and the rights and obligations of the parties

hereunder and thereunder, shall be construed in accordance with and governed by the laws of the

Commonwealth of Massachusetts. The Borrower, to the extent that it may lawfully do so, hereby

consents to service of process, and to be sued, in the Commonwealth of Massachusetts and

consents to the jurisdiction of the courts of the Commonwealth of Massachusetts and the United

States District Court for the District of Massachusetts, as well as to the jurisdiction of all courts

to which an appeal may be taken from such courts, for the purpose of any suit, action or other

proceeding arising out of any of its obligations hereunder or under the Notes or with respect to

the transactions contemplated hereby or thereby, and expressly waives any and all objections it

may have as to venue in any such courts. The Borrower further agrees that a summons and

complaint commencing an action or proceeding in any of such courts shall be properly served

and shall confer personal jurisdiction if served personally or by certified mail to it at its address

provided in subsection 9.5 or as otherwise provided under the laws of the Commonwealth of

Massachusetts. THE BORROWER AND THE BANK MUTUALLY HEREBY KNOWINGLY,

VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A

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TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF,

UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE NOTES, OR ANY OTHER

LOAN DOCUMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN

CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,

STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY.

THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO

ACCEPT THE NOTES AND MAKE THE LOANS.

[The Remainder of this Page Left Intentionally Blank]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed

instrument as of the date first above written.

BORROWER

By:

Name:

Title:

BANK

By: