Common use of Investment Unit Allocation Clause in Contracts

Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loans and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the purchase price of such investment unit among the Term Loans and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The 2024 Term Loan Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Furthermore, the Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, to treat the amendments of warrants pursuant to the Warrant Agreement Amendment and the Additional Warrant Agreement Amendment, as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10. For purposes of this Section 4.10, the Defined terms used but not defined herein shall have the meanings given to them in the Loan Agreement.

Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loans and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the purchase price of such investment unit among the Term Loans and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The 2024 2023 Term Loan Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Furthermore, the Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, to treat the amendments of warrants pursuant to the Warrant Agreement Amendment and the Additional Warrant Agreement Amendment, as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10. For purposes of this Section 4.10, the Defined terms used but not defined herein shall have the meanings given to them in the Loan Agreement.

Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loans Loan disbursed to the Borrower on the Closing Date and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the purchase issue price of such investment unit among the Term Loans Loan and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The 2024 Term Loan Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Furthermore, the Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, to treat the amendments of warrants pursuant to the Warrant Agreement Amendment and the Additional Warrant Agreement Amendment, as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10. For purposes of this Section 4.10, the Defined terms used but not defined herein shall have the meanings given to them in the Loan Agreement4.15.

Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loans Purchaser and the Warrants Company shall treat and report the Series A Preferred Stock and the Common Stock issued on to the Closing Date, taken together, comprise Purchaser hereunder as having been issued as part of an “investment unit” for purposes within the meaning of Code Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the purchase price of such investment unit among the Term Loans and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The 2024 Term Loan Lenders shall determine in good faith , with (x) a portion of the total amount paid for such Series A Preferred Stock and Common Stock equal to the aggregate fair market value of such Common Stock (which shall be determined based on the Warrants for purposes of allocating the issue applicable trading price of the investment unit between Company’s Common Stock) being allocated to such Common Stock (the Term Loan “Common Stock Allocation”) and (y) the remainder being allocated to such Series A Preferred Stock (the “Series A Preferred Allocation”). Within thirty (30) days after the Initial Closing II Date and each subsequent Closing Date, the Company shall prepare and deliver to the Purchaser a draft valuation setting forth in reasonable detail the Common Stock Allocation and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing Series A Preferred Allocation with respect to the Company; providedPurchased Shares issued on such Closing Date (in the case of the Initial Closing II Date, however, that if the Company objects in writing with respect to the fair market value as determined by Purchased Shares issues on the Lenders Initial Closing Date and the Initial Closing II Date) (such draft valuation, the “Draft Purchased Shares Valuation”) for the Purchaser’s review. If the Purchaser does not agree with the Draft Purchased Shares Valuation, then within ten (10) Business Days after days of receipt of the Lenders give written notice thereofDraft Purchased Shares Valuation the Purchaser shall determine and deliver to the Company a proposed valuation of the Common Stock Allocation and the Series A Preferred Allocation (the “Purchaser’s Proposed Valuation”). If the Purchaser and the Company are not able to come to an agreement as to the final valuation of the Common Stock Allocation and the Series A Preferred Allocation within ten (10) days thereafter, the Purchaser and the Company shall engage agree in good faith on an independent, reputable appraiser selected jointly by independent nationally recognized valuation or financial advisory firm (the Company “Valuation Firm”) to determine the final valuation of the Common Stock Allocation and the LendersSeries A Preferred Allocation, to determine such fair market valuewhich valuation must be within the range of the Purchaser’s Proposed Valuation and the Draft Purchased Shares Valuation. The All fees and expenses of such appraiser the Valuation Firm relating to the work, if any, to be performed by the Valuation Firm hereunder shall be paid borne in inverse proportion to the relative extent to which the Company, on the one hand, and the Purchaser, on the other hand, prevail on the disagreements resolved by the Valuation Firm, which proportionate allocation shall be determined by the Valuation Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Valuation Firm shall be borne by the party incurring such cost and expense. Each valuation of the Common Stock Allocation and the Series A Preferred Allocation shall, once final (as finalized, a “Purchased Shares Valuation”), be binding upon the Purchaser and the Company. Furthermore, and the Purchaser and the Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, to treat the amendments of warrants pursuant to the Warrant Agreement Amendment and the Additional Warrant Agreement Amendment, as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, agree to file all tax returns in a manner U.S. federal, state and local income Tax Returns consistent with this Section 4.10. For purposes of this Section 4.10, the Defined terms used but not defined herein shall have the meanings given to them in the Loan Agreementeach Purchased Shares Valuation.