Molina Healthcare (MOH) 10-Q2020 Q3 Quarterly report

WHEREAS, subject to the terms and conditions set forth in this Agreement, Affinity desires to sell to Buyer, and Buyer desires to purchase from Affinity, substantially all of the assets owned or leased by Affinity that are used or held for use in the operation of the Business; and

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

ARTICLE I.

The following terms have the definitions set forth below or otherwise ascribed thereto in the Section of this Agreement identified below:

(a)    any payments or other amounts due to employees of Affinity by reason of this Agreement or the consummation of the transactions contemplated by this Agreement, including any retention, stay or change in control payments;

(b)    amounts payable to any Person (including additional contribution credits as a result of this Agreement or the transactions contemplated by this Agreement and Tax gross-up payments or amounts for which there is an acceleration of vesting) under any nonqualified deferred compensation plan of Affinity;

(c)    all accrued but unpaid salaries, wages, commissions, severance (solely with respect to any employees of Affinity terminated by Affinity on or prior to the Closing Date), vacation or sick pay, personal leave, incentive compensation or other compensation or payroll items earned by, or accrued in respect of, any current employee of Affinity for any period through and including the Closing Date; and

(d)    with respect to the payments described in each of the foregoing clauses (i)-(iii), all employer related payroll Tax Liabilities.

connection with the individual’s employment, or (c) conviction of any felony or crime of moral turpitude.

instruments, (iii) with respect to any interest rate hedging, swap agreements, foreign currency exchange agreements or similar arrangements and related break-up fees, (iv) for any liability for all or any part of the deferred purchase price of property, assets, securities, goods or services (other than trade payables incurred in the ordinary course of business to the extent not included in Net Asset Value), at the maximum value, whether contingent or not, including any “earn-out”, purchase price adjustment, release of “holdback” or similar payment or any non-compete payments, (v) for any liability under any reimbursement obligation relating to a surety bond, letter of credit, bankers’ acceptance, note purchase facility or similar credit transactions, (vi) under leases required in accordance with GAAP to be recorded as capital leases or leases classified as a capital/finance lease in the Financial Statements and excluding operating leases, (vii) for indebtedness secured by an Encumbrance, except for Permitted Encumbrances, (viii) under conditional sale or other title retention agreements relating to any property purchased, (ix) for all negative balances in bank accounts and all overdrafts, (x) for deferred rent Liabilities recorded in accordance with GAAP, (xi) for any accounts payable or loans of any kind or nature between Affinity, on the one hand, and any officers, directors, employees or agents of Affinity, on the other hand, (xii) escheat Liabilities, (xiii) audit settlement Liabilities, (xiv) bankruptcy reserves, and (xv) any guarantee of the payment or performance of, or any contingent obligation in respect of, any Indebtedness of any other Person. “Indebtedness” shall not include any item included in the definition of Net Asset Value.

(D) require the purchase of any product or service exclusively from a single party or grant exclusive rights to marketing or distribution or (E) grant to any Person (other than Affinity) an option or a first refusal, first-offer or similar preferential right to purchase or acquire any assets which are material to Affinity or the Business; (v) Contracts for joint venture agreements or similar partnerships entered into within the last three (3) years; (vi) Contracts with any licensed producer or broker relating to the sale of Affinity’s health plans providing for annual payments by Affinity in excess of Ten Thousand Dollars ($10,000); (vii) Contracts relating to the settlement of any Actions, other than (A) settlements immaterial in nature or amount to Affinity and the Business, taken as a whole, entered into with former employees or current or former independent contractors in the ordinary course of business, and (B) settlement agreements under which Affinity does not have any continuing obligations or Liabilities equal to or greater than Seventy-Five Thousand Dollars ($75,000) or rights (excluding releases); (viii) any other Contract with a Governmental Authority; (ix) Contracts with vendors providing for payments by or to Affinity in excess of One Hundred Thousand Dollars ($100,000) during the fiscal year ended December 31, 2019; (x) any Contracts for the sale or purchase of any assets or business (whether by merger, sale of stock, sale of assets or otherwise) within the last three (3) years with a value in excess of One Million Dollars ($1,000,000) or pursuant to which there are continuing indemnification, “earn-out” or other contingent payment Liabilities, including Contracts providing for indemnification to or from any Person with respect to Liabilities relating to any current or former business of Affinity; (xi) Contracts or agreements relating to or evidencing Indebtedness of Affinity or any mortgage, pledge, indenture or security agreement or similar arrangement constituting an Encumbrance that is material to the Purchased Assets, taken as a whole; (xii) Contracts that relate to any off-balance sheet arrangements, loss sharing, or loss guarantee and contingent purchase transactions, special purpose entity transactions or other similar transactions of Affinity, and any hedging, derivatives or similar Contracts or arrangements; (xiii) Contracts that require additional capital expenditures in excess of One Million Dollars ($1,000,000) that are not reflected on the Balance Sheet; and (xiv) all other Contracts involving annual payments of more than One Million Dollars ($1,000,000).

Non-Compete Agreements, and the other agreements, instruments and documents required to be delivered at the Closing.

ARTICLE II

PURCHASE AND SALE

(a)    all communications involving attorney-client confidences between Affinity and counsel;

(b)    all rights and obligations relating to, and any and all proceeds due to Affinity in connection with, the Risk Corridor Claim;

(d)    Affinity’s rights and claims under this Agreement (including, for the avoidance of any doubt, Affinity’s right to the Cash Purchase Price);

(a)    all trade accounts payable of Affinity to third parties in connection with the Business and all claims under any Provider Contracts or the Health Plans that remain unpaid as of the Closing Date;

(b)    all Liabilities under the Assigned Contracts, including any regulatory liabilities;

(c)    solely to the extent set forth and itemized on the AEP Schedule, any Liabilities of Affinity to or with respect to any present or former employee, officer, or director who provided or provides services to the Business (or with or for the benefit of their respective spouses or dependents);

(d)    all Liabilities directly relating to Buyer’s ownership or operation of the Business and the Purchased Assets; and

(e)    the DSRIP EIP Liabilities.

(a)    any Liabilities of Affinity arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others;

(b)    any Liabilities relating to or arising out of the Excluded Assets;

such term is defined in Treasury Regulation Section 54.4980B9 with respect to the transactions contemplated by this Agreement;

(d)    all Liabilities relating to any payable to any broker or finder engaged by or on behalf of Affinity in connection with the transactions contemplated by this Agreement or the Transaction Documents;

(e)    any Liability for Taxes (i) attributable to, incurred in connection with or arising out of the operation of the Business or the ownership of the Purchased Assets for any Pre-Closing Tax Period or (ii) of or attributable to Affinity or its Affiliates;

(f)    the Special DOH Payables; and

or Liabilities of Affinity as a result of purchase accounting adjustments arising from or resulting as a consequence of the transactions contemplated by this Agreement and (2) shall be based solely on facts and circumstances as they are reasonably expected to exist as of the Measurement Time and shall exclude the effect of any event, change, circumstance, development, occurrence, condition, effect or state of facts occurring after the Measurement Time, except as specifically set forth in the Applicable Accounting Principles or otherwise in accordance with this Agreement.

(b)    In connection with Buyer’s review of the Estimated Closing Statement, Affinity shall, prior to the Closing, cooperate with Buyer in good faith to resolve any disagreements between the Parties over the amount of any items set forth in the Estimated Closing Statement, and the items set forth in the Estimated Closing Statement shall for all purposes in this Agreement be equal to the amounts initially proposed by Affinity together with any revisions thereto that are mutually agreed by Affinity and Buyer, each acting reasonably, prior to the Closing. To facilitate Buyer’s review of the Estimated Closing Statement, and upon Buyer’s reasonable written request, Affinity will use commercially reasonable efforts to (i) provide Buyer with supporting data reasonably necessary to allow Buyer to verify the amounts set forth in the Estimated Closing Statement, and (ii) subject to applicable Law and other obligations to which Affinity may be bound, provide to Buyer reasonable access (that shall be during normal business hours and shall not interfere with Affinity’s normal business operations) to all relevant books and records of Affinity and make appropriate personnel reasonably available to discuss Buyer’s reasonable inquiries regarding the Estimated Closing Statement.

work papers, schedules, financial statements, memoranda, etc.) and shall reasonably cooperate with Affinity in obtaining work papers from Buyer’s accountants pertaining to or used in connection with the preparation of the Closing Statement and calculation of the Updated Net Asset Value, and provide Affinity with copies thereof (as reasonably requested by Affinity). If Affinity does not deliver a Closing Statement Objection Notice to Buyer on or before the expiration of the Review Period, Affinity shall be deemed to have accepted the Closing Statement and the calculations therein in full. Any determination set forth on the Closing Statement which is not specifically objected to in the Closing Statement Objection Notice shall be deemed accepted by Affinity and shall be final and binding upon Affinity upon delivery of the Closing Statement Objection Notice.

Accountant or manifest error. Absent such fraud or manifest error, such other party shall reimburse the Party seeking enforcement for all of its expenses related to the enforcement of the Independent Accountant’s determination. The fees and costs of the Independent Accountants, if one is required, shall be borne by Buyer, on the one hand, and Affinity, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Independent Accountants, which proportionate allocation will also be determined by the Independent Accountants. For example, if Affinity claims that the appropriate adjustments are One Thousand Dollars ($1,000) greater than the amount determined by Buyer and if the Independent Accountants ultimately resolve such items by awarding to Affinity Three Hundred Dollars ($300) of the One Thousand Dollars ($1,000) contested, then the fees, costs and expenses of the Independent Accountants will be allocated 30% (i.e., 300 ÷ 1,000) to Buyer and 70% (i.e., 700 ÷ 1,000) to Affinity. Affinity and Buyer shall enter into an engagement letter with the Independent Accountants, including customary indemnity, confidentiality and other provisions.

directly or indirectly, or have any direct or indirect equity participation or direct or indirect membership interest in any corporation, partnership, limited liability company, trust or other business association.

(a)    conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, bylaws, operating agreement or other organizational documents of Affinity;

(b)    conflict with or result in a violation or breach of any provision of any Law or Order applicable to Affinity, the Business or the Purchased Assets;

(c)    require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the termination or acceleration of or create in any party a right of termination, cancellation, acceleration, modification, purchase or sale under, any Material Contract or Permit to which Affinity is a party or by which Affinity or the Purchased Assets are bound or affected;

(d)    result in the creation or imposition of any Encumbrance on the Purchased Assets; or

(e)    require the consent, approval, Permit, Order, declaration or filing with, or notice to, any Governmental Authority by or with respect to Affinity.

(c)    Affinity maintains, and during the last three (3) years has maintained, systems of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with SAP in all material respects, including but not limited to internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as

necessary to permit the preparation of financial statements of Affinity in conformity with SAP and maintain accountability for assets; and (iii) the recorded accountability for assets is maintained at reasonable intervals and appropriate action is taken with respect to any differences. During the last three (3) years, (A) no written or, to Affinity’s Knowledge, verbal complaints from any source outside Affinity regarding accounting, internal accounting controls or auditing matters relating to Affinity, and (B) no concerns, charges, or complaints from any employees of Affinity regarding questionable accounting or auditing matters relating to Affinity, have been received by Affinity or members of the management of Affinity.

(d)    The accounts receivable and other receivables reflected on the Audited Financial Statements, and those arising in the ordinary course of business after the date thereof, (i) are calculated in accordance with SAP, (ii) are valid receivables that have arisen from bona fide transactions in the ordinary course of business, (iii) to the Knowledge of Affinity, are not subject to any counterclaims, setoffs, adjustments, defenses, security interests or Encumbrances, other than Permitted Encumbrances, and (iv) have not been factored or sold.

(a)    event, occurrence or development that has had, or could reasonably be expected to have, a Material Adverse Effect;

(b)    incurrence of any Indebtedness or the making of any loans, advances or guarantees, in each case, having an aggregate principal amount outstanding any time greater than Ten Thousand Dollars ($10,000), except in the ordinary course of business consistent with past practice;

(c)    imposition of any Encumbrance upon any of the Purchased Assets, except for Permitted Encumbrances;

(d)    material increase in the compensation payable by Affinity (or for which Affinity may have any liability) to any Provider except as set forth in writing in a Provider Contract;

(e)    adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;

(f)    purchase or other acquisition (by merger, exchange, consolidation, acquisition of stock or assets or otherwise), or sale, lease or disposal, of any property, material asset, corporation, partnership, joint venture, limited liability company or other business organization or division, or assets thereof, in each case, as would be material to Affinity and the Business, taken as a whole, other than in the ordinary course of business consistent with past practice;

(g)    (i) amendment, waiver, modification or consent to the termination of any Material Contract, or amendment, waiver, modification or consent to the termination of Affinity’s rights thereunder other than in the ordinary course of business consistent with past practice or (ii) entry into any Material Contract in connection with the Business or the Purchased Assets other than in the ordinary course of business consistent with past practice;

(h)    receipt of any communications or reports or any notifications from a Payor regarding an adverse change to any material Payor Contract except for changes applicable to all similarly situated plans, and except for renewal or extension negotiations with Payor in the ordinary course of business consistent with its past practice;

(i)    payment, discharge or satisfaction of any material claim or Liability relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice;

(j)    material increase in the compensation or benefits of any employee of Affinity or the Business, or adoption, implementation, termination, modification, or amendment of any Affinity Employee Plan, in each case other than in the ordinary course of business consistent with past practice;

(k)    lapse of any existing policy of insurance material to the Business or the Purchased Assets, taken as a whole;

(l)    acceleration of the collection of or discounting of any accounts receivable and other receivables reflected on the Audited Financial Statements, delay in the payment of Liabilities that would become Assumed Liabilities or deferment of expenses, or other increase in the cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice;

(m)    commencement or settlement of any Action material to the Business, the Purchased Assets or the Assumed Liabilities, except for settlements of Actions or potential Actions in the ordinary course of business consistent with past practice and so long as such settlement will not create any material obligation on behalf of Buyer at Closing;

(n)    conclusion of or agreement to any corrective action plans, consents, decrees, actions or Orders material to the Business or the Purchased Assets, other than in the ordinary course of business consistent with past practice; or

(o)    commitment or agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.

given written notice to Affinity of a termination of its relationship with Affinity, no Provider Contract with a Key Provider has changed in its essential commercial terms, no Key Provider has materially altered the aggregate amount of provider claims it submits to Affinity except in the ordinary course of business, and no Key Provider has otherwise notified Affinity that it intends to terminate its business relationship with Affinity.

(a)    Affinity owns (or has the right to use pursuant to an Assigned Contract) all Business Intellectual Property free and clear of any Encumbrances other than Permitted Encumbrances. As of the date of this Agreement, the Registered Intellectual Property (i) is owned by Affinity, (ii) is subsisting, in full force and effect, and to Affinity’s Knowledge valid and (iii) has not expired, or, to Affinity’s Knowledge been cancelled, or abandoned, as applicable. The Business Intellectual Property constitutes all of the Intellectual Property necessary for the conduct of the Business as currently conducted.

(f)    Affinity has taken commercially reasonable actions consistent at least with industry-standard practice to protect (i) the confidentiality, integrity and security of all trade secrets and confidential information stored or contained in the Business Intellectual Property or transmitted thereby from any unauthorized use, access, destruction or modification, and to Affinity’s Knowledge no such use, access, destruction or modification has occurred, and (ii) its rights in the Purchased Intellectual Property owned by Affinity.

(c)    Neither Affinity, any officer of Affinity nor, to the Knowledge of Affinity, any director, employee or agent of Affinity, in each case acting in their capacity thereof, have (i) offered, authorized, promised, made or agreed to make gifts of money, other property or similar benefits or contributions (other than incidental gifts or articles of nominal value) to any actual or potential customer, provider, supplier, governmental employee, Governmental Authority or other Person in a position to assist or hinder Affinity in connection with any actual or proposed transaction or to any political party, political party official or candidate for federal, state or local public office in violation of any Law or (ii) maintained any unrecorded fund or asset of Affinity for any improper purpose or made any intentional false entries on its books and records for any reason. No person while serving as an officer or director of Affinity has ever been debarred, suspended, or otherwise excluded from participating in any state or federally funded health care program.

(a)    Affinity operates, and for the past six (6) years has operated, the Business in compliance with the applicable privacy, security, transaction standards, breach notification, and other provisions and requirements of HIPAA except where any violation or failure to comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Without limiting the generality of the foregoing, Affinity has executed business associate agreements meeting all requirements set forth in the HIPAA privacy, security and breach notification regulations with all contractors that meet the definition of a business associate under HIPAA. Affinity has established and implemented such policies, programs, procedures, contracts and systems as are necessary to comply in all respects with Information Privacy and Security Laws, except where any violation or failure to comply with such Information Privacy and Security Laws has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Affinity is not subject to a corporate integrity agreement, consent order or similar agreement with any Governmental Authority.

(b)    Affinity’s receipt, collection, monitoring, maintenance, creation, transmission, use, analysis, disclosure, storage, disposal and security of Personal Information

has, for the past six (6) years, complied, and complies, in all material respects, with (i) any Contracts to which Affinity is party, (ii) applicable Information Privacy and Security Laws, (iii) if applicable, PCI DSS, and (iv) all consents and authorizations that apply to Affinity’s receipt, access, use and disclosure of Personal Information. Affinity has all necessary authority, consents and authorizations to receive, access, use and disclose the Personal Information in Affinity’s possession or under its control in connection with the operation of the Business.

(c)    For the past six (6) years Affinity has, in all material respects, protected the confidentiality, integrity and security of its Personal Information and IT Assets against any unauthorized control, use, access, interruption, modification or corruption in conformance with Information Privacy and Security Laws.

(e)    Affinity is not subject to any Orders, nor are any Orders pending or, to the Knowledge of Affinity, threatened against Affinity or its “workforce” (as defined under HIPAA) regarding or relating to Affinity’s processing of Personal Information.

(f)    The (i) collection, storage, processing, transfer, sharing and destruction of Personal Information in connection with the transactions contemplated by this Agreement and (ii) execution, delivery and performance of this Agreement and the other agreements and instruments contemplated hereby and the consummation of the transactions contemplated hereby and thereby complies with Affinity’s applicable privacy notices and policies and with all applicable Information Privacy and Security Laws. Affinity has the right to assign to Buyer, and Buyer shall have the right to possess and use following the Closing, all Personal Information as used or held for use by Affinity in the Business prior to the Closing.

(g)    For the past six (6) years Affinity has performed a security risk assessment no less frequently than annually that meets (i) the standards set forth at 45 C.F.R. § 164.308(a)(1)(ii)(A), including an assessment as described at 45 C.F.R. § 164.306(d)(3), taking into account factors set forth in 45 C.F.R. § 164.306(a)–(c); (ii) to the extent applicable, the requirements of the PCI DSS; (iii) any requirements to perform security assessments under any Information Privacy and Security Law; and (iv) any obligations to perform security assessments set forth in any Contracts to which Affinity is party and has addressed all threats and deficiencies identified therein.

and Information Privacy and Security Law matters, and no other representation or warranty contained in any other section of this Agreement shall be deemed to be made with respect to HIPAA and Information Privacy and Security Law matters.

(a)    As of the date hereof, Affinity has provided, for each employee of Affinity, the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus or other incentive-based compensation; (vi) employing entity; (vii) current active/leave status and the type of leave (e.g., short-term disability, long-term disability, military); and (viii) exempt or non-exempt status, to be updated following the date hereof upon reasonable request of Buyer.

(c)    Affinity is, and for the past six (6) years has been, in compliance in all material respects with all applicable Laws regarding employment and employment practices (including anti-discrimination), terms and conditions of employment and wages and hours (including classification of employees and independent contractors, and equal pay practices) and other laws in respect of any reduction in force (including notice, information and consultation requirements).

(d)    Affinity has not received notice of any pending or, to Affinity’s Knowledge, threatened (i) unfair labor practice charge or complaint against Affinity before the National Labor Relations Board or any similar state or local agency relating to an alleged violation or breach of any Laws or (ii) Action against Affinity concerning employment-related matters, employees of Affinity, or violation of any Laws regarding employment and employment practices or breach of any contractual obligations.

(e)    There are no Actions, including audits, requests for information, investigations, complaints, charges, or claims with respect to any regular or leased employee, consultant, or independent contractor of Affinity pending with or threatened in writing by the Equal Employment Opportunity Commission, the Department of Labor, the Internal Revenue Service, the National Labor Relations Board, or any other Governmental Authority.

any related funding vehicle, (ii) the current summary plan description and any related summary of material modifications, or (iii) any written notices or other written material correspondence with any Governmental Authority.

(g)    Each Affinity Employee Plan and related trust or other funding vehicle has been established, administered, funded and maintained in all material respects in accordance with its terms and in compliance in all material respects with applicable Law. All contributions, benefit payments and premium deposits or payments required to be made by Affinity under the Affinity Employee Plans have been made or paid by the due date thereof, and all contributions, benefit payments and premium deposits or payments that have accrued but have not been made or paid because they are not yet due have been properly accrued in the Financial Statements. No claims, investigations or other proceedings (other than routine claims for benefits in the ordinary course of business) are pending or, to the Knowledge of Affinity, threatened against or with respect to any Affinity Employee Plan.

(h)    In the last six (6) years, Affinity has not participated in, maintained or been liable for contributions to, nor does Affinity have any Liability, contingent or otherwise, pursuant to Title IV of ERISA or otherwise with respect to a plan that is a “pension plan” (within the meaning of Section 3(2) of ERISA) that is or was subject to Section 412 of the Code or Section 302 or Title IV of ERISA or that is or was a “multiemployer plan” (within the meaning of Section 3(37) of ERISA).

(i)    No Encumbrance has been imposed on the Purchased Assets pursuant to Section 302, 303 or Title IV of ERISA or Section 412 or 430 of the Code and no fact exists that would reasonably be expected to give rise to any such Encumbrance. Other than as required by Section 4980B of the Code or other similar applicable Law, no Affinity Employee Plan provides benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment (other than death benefits when termination occurs upon death).

(j)    Except as set forth on the AEP Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in the acceleration of vesting or payment, trigger any payment or funding, or increase the amount or value of any compensation, payment or benefits (including severance and unemployment compensation) to any current or former employee or consultant of Affinity.

(k)    No provision of a benefit, acceleration, or amount to be paid with respect to any current or former employee of, or consultant to, Affinity, would individually or in the aggregate, whether alone or in combination with any other event, (i) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (ii) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.

(l)    All employees of the Business are located within the United States. No Affinity Employee Plan (i) was established or is maintained outside of the United States, or (ii) is subject to the Laws of any jurisdiction outside of the United States.

(m)    No Affinity Employee Plan or other contract, plan, program, agreement or arrangement provides for retiree medical or welfare benefits to any current or former employees of the Business.

(n)    Each Affinity Employee Plan or other contract, plan, program, agreement or arrangement that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) has (i) been maintained and operated in compliance with Section 409A of the Code and all applicable Treasury Regulations promulgated thereunder so as to avoid any Tax, penalty or interest under Section 409A of the Code, and (ii) been in documentary and operational compliance with Section 409A of the Code and all applicable Internal Revenue Service guidance promulgated thereunder.

(a)    All Tax Returns required to be filed by Affinity or otherwise in respect of the Business or the Purchased Assets have been timely filed. Such Tax Returns are true, complete and correct in all material respects. All Taxes due and owing by Affinity or otherwise in respect of the Business or the Purchased Assets (whether or not shown on any Tax Return) have been or will be timely paid.

(b)    There are no pending or threatened audits, investigations, disputes, notices of deficiency, claims or other Actions for or relating to any Taxes of Affinity or otherwise in respect of the Business or the Purchased Assets. Affinity has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency that has not been resolved.

(c)    There are no Encumbrances for Taxes upon any of the Purchased Assets other than Permitted Encumbrances.

(d)    Affinity is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.

(e)    Affinity is exempt from tax within the meaning of Code section 501(a) and is an organization described in Code section 501(c)(3).

(f)    The IRS has not revoked Affinity’s status as an organization exempt from tax under Code section 501(c)(3) by ruling letter or otherwise.

(g)    Affinity has not participated in any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4.

(h)    No claim has been made or threatened in writing by a taxing authority in a jurisdiction where Affinity has not filed a Tax Return asserting that Affinity is or may be subject to Taxes imposed by that jurisdiction.

(i)    Affinity has properly and timely paid to the appropriate taxing authorities all payroll, unemployment and similar Taxes due on or before the Closing Date and has properly withheld and timely paid to the appropriate taxing authorities all other Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party with respect to the Business and the Purchased Assets, and has complied with all information reporting, backup withholding and Tax Return requirements, including maintenance of required records with respect thereto, in connection with any such amounts.

property currently or formerly owned, operated or leased with respect to the Business and Purchased Assets.

ARTICLE V

and thereby. The execution and delivery by Buyer of this Agreement and any other Transaction Document to which Buyer is or will be a party, the performance by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Affinity) this Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity). When each other Transaction Document to which Buyer is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity).

(a)    conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Buyer;

(b)    conflict with or result in a violation or breach of any provision of any material Law or Order applicable to Buyer;

(c)    require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the termination or acceleration of or create in any party a right of purchase, sale, acceleration, termination, modification or cancellation under, any material Contract or Permit to which Buyer is a party or by which it is bound or affected;

(d)    result in the creation or imposition of any Encumbrance on any of the material properties or assets of Buyer; or

(e)    require the consent, Permit, Order, declaration or filing with, or notice to, any Governmental Authority by or with respect to Buyer.

ARTICLE VI

(a)    preserve and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;

(b)    pay, discharge or satisfy the Liabilities, Taxes and other obligations of the Business and the Purchased Assets which are not in dispute when due in the ordinary course of business consistent with past practice;

(c)    not make, change or revoke any material Tax election; not settle or compromise any material claim or assessment in respect of Taxes; not surrender any right to claim a material Tax refund; not amend any material position on a Tax Return; not change any Tax accounting method; not enter into any closing agreement relating to any material Tax; not consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; and not file or prepare any material Tax Return on a basis that is inconsistent with past practice;

(d)    defend and protect the properties and assets included in the Purchased Assets from infringement or usurpation in the ordinary course of business consistent with past practice;

(e)    perform in all material respects all of its obligations under all Provider Contracts and the Payor Contracts in the ordinary course of business consistent with past practice;

(i)    not take any action intentionally that would render, or that may reasonably be expected to render, any representation or warranty made by it in this Agreement untrue or inaccurate at the Closing;

(j)    not enter into any Contract to support a community initiative or non-Affiliate non-profit corporation or similar entity or charitable endeavor that would create any obligation on Buyer;

(k)    not (i) incur or otherwise acquire, or modify in any material respect the terms of, any Indebtedness for borrowed money or assume, guarantee or endorse or otherwise become responsible for any such Indebtedness of any Person, make any loans, advances or capital contributions to, or investments in, any other Person or issue or sell any debt securities or calls, options, warrants, or other rights to acquire any debt securities of Affinity, enter into any “keep well” or Contract to maintain any financial statement condition of another Person or enter into any arrangement (including any capital lease) having the economic effect of the foregoing; or (ii) redeem, repurchase, prepay, defease or cancel any Indebtedness for borrowed money, other than (1) as required in accordance with its terms or expressly required by this Agreement or (2) in the ordinary course of business consistent with past practice;

(l)    not sell, transfer, lease, license, mortgage, pledge, encumber, allow to lapse, incur any Encumbrance on (other than a Permitted Encumbrance), or otherwise dispose of, or agree to do any of the foregoing with respect to, any of the Purchased Assets except (i) in the ordinary course of business consistent with past practice, (ii) pursuant to Contracts in force on the date of this Agreement and made available to Buyer prior to the date hereof, or (iii) such dispositions of assets no longer used in the ordinary course of business consistent with past practice of Affinity’s’ business as conducted as of the date of this Agreement;

(m)    not make or authorize any payment of, or commitment for, capital expenditures in excess of Two Million Dollars ($2,000,000) in the aggregate, except those budgeted for in a budget made available to Buyer prior to the date hereof;

(n)    not change any material financial accounting methods, practices, policies or elections from those utilized in the preparation of the Audited Financial Statements, other than any such changes as may be required by Applicable Accounting Principles;

(p)    not cancel, amend, compromise, terminate, release or waive any material debts, rights or claims relating to the Business or the Purchased Assets;

(q)  �� not conclude of or agree to any corrective action plans, consents, decrees, actions or Orders, other than in the ordinary course of business consistent with past practice;

(r)    not adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against Affinity under any similar Law;

(s)    not purchase or otherwise acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any property, material asset, corporation, partnership, joint venture, limited liability company or other business organization or division or material assets thereof for which the aggregate consideration paid or payable in the aggregate is in excess of One Million Dollars ($1,000,000);

(t)    not (i) enter into any transaction with any Affiliate of Affinity, any officers or directors of Affinity (or any of their respective Affiliates), or any FQHC Member (or any of their respective Affiliates) or (ii) amend, assign, terminate, or waive or release any material rights under any existing transactions or agreements with any Affiliate of Affinity, any officers or directors of Affinity (or any of their respective Affiliates) or any FQHC Member (or any of their respective Affiliates), including any Provider Contracts with any FQHC Member (or any of their respective Affiliates);

(u)    not allow to lapse any existing policy of insurance relating to the Business or the Purchased Assets;

(v)    not make material loans, advances or capital contributions to, or material investments in, any Provider, except as required by applicable Law; and

(w)    not enter into a Contract, commitment or arrangement to do any of the foregoing or that would materially impair its ability to consummate the transactions contemplated by this Agreement in accordance with the terms hereof.

manner and for the time period specified in the Confidentiality Agreement, dated September 25, 2019.

(c)    For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to each Hired Employee who remains employed with Buyer during such period (i) base salary or base wages and annual or other periodic cash incentive opportunities (excluding any retention or similar bonuses and other special or non-recurring bonuses or cash awards) that are no less favorable in the aggregate than those provided to such

Hired Employee by Affinity immediately before the Closing, and (ii) retirement (excluding pension and retiree medical or welfare benefits), welfare, fringe and other employee benefits which are substantially comparable in the aggregate to those provided to the Hired Employee by Affinity immediately prior to the Closing Date under the Affinity Employee Plans or, in Buyer’s discretion, which are substantially comparable in the aggregate to those made available to similarly situated employees of Buyer.

(e)    Buyer shall ensure that (i) all Hired Employees receive credit for prior service with Affinity (or any predecessor entities) for purposes of eligibility, participation, vesting and benefit accrual (but not for benefit accruals under any defined benefit pension plan) under any employee benefit or compensatory plan, program or arrangement of Buyer or any of Buyer’s Affiliates in which Hired Employees are eligible to participate, except for any employee benefits that are frozen or grandfathered as of the Closing Date, for purposes of qualifying for subsidized early retirement benefits (including retirement treatment under Buyer equity incentive plans) or to the extent it would result in a duplication of benefits, and (ii)  except as otherwise required by Law, all Hired Employees shall receive seven (7) days of paid time off (i.e., personal or sick leave) upon commencement of employment with Buyer, after which the Hired Employees will accrue benefits and paid time off as provided under Buyer’s policy. Buyer shall make reasonable best efforts to cause (A) any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any group health benefit plans of Buyer or any of Buyer’s Affiliates to be waived with respect to Hired Employees and their eligible spouses and dependents, to the extent waived or satisfied under a corresponding Affinity Employee Plan in which the applicable Hired Employee participated immediately prior to the Closing; and (B) subject to Affinity providing adequate data to Buyer, in a format reasonably requested by Buyer in writing, that the Hired Employees and their eligible spouses, dependents and beneficiaries will receive credit for the plan year in which the Closing Date occurs towards applicable deductibles and annual out-of-pocket limits for expenses incurred prior to the Closing Date that were credited for the same purpose to such individual under the corresponding Affinity Employee Plan as of the Closing Date. The aggregate amount of expenses subject to the

immediately-preceding clause (B) shall be added to (and shall increase) the total value of all items listed on the AEP Schedule.

(f)    Pursuant to the “Standard Procedure” provided in Section 4 of Revenue Procedure 2004-53, (i) Affinity and Buyer shall report on a predecessor/successor basis as set forth therein, (ii) Affinity will not be relieved from timely filing a Form W-2 with respect to any Hired Employees with respect to the portion of the calendar year in with the Closing occurs during which such employees are employed by Affinity and (iii) Buyer will undertake to file (or cause to be filed) a Form W-2 for each such Hired Employee with respect to the portion of the calendar year in which the Closing occurs during which the Hired Employee is employed by Buyer.

(a)    During the Restricted Period, Affinity shall not, directly or indirectly, either for Affinity’s own benefit or for the benefit of any other Person, without the prior consent of Buyer, which consent may be withheld in Buyer’s sole discretion, (i) engage in, make any

regulatory application to engage in, enter into any Contract (including any Provider Contract) in anticipation of engaging in, or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, joint venturer, agent, trustee, volunteer, lender or consultant; or (iii) induce or persuade, or seek or attempt to induce or persuade, any Provider, Enrollee, supplier or licensor of the Business (including any existing or former Provider, Enrollee, supplier or licensor of Affinity and any Person known to Affinity to have become a Provider, Enrollee, supplier or licensor of the Business during the Restricted Period) to terminate or modify its business relationship with the Business in a manner adverse to the Business.

make an appropriate filing pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof, with the exact timing of such filings to be mutually agreed upon by the Parties, and to supply as promptly as practicable to the appropriate Governmental Authority any additional information and documentary material that may be requested pursuant to the HSR Act. In addition, each Party shall provide or cause to be provided as promptly as practicable any information and documentary material that may be requested by the U.S. Department of Justice or Federal Trade Commission under the HSR Act or by any Governmental Authority with regulatory jurisdiction over enforcement of any Antitrust Laws. Affinity, on the one hand, and Buyer, on the other hand, shall be responsible for the payment of fifty percent (50%) of any filing fees under the HSR Act and any other Antitrust Laws.

(e)    Affinity shall give any notices to third parties in connection with the Required Third Party Consents, and shall use its reasonable best efforts to obtain the Required Third Party Consents.  Affinity shall regularly consult with Buyer in connection with the foregoing and shall keep Buyer reasonably apprised of the status of the matters relating to the Required Third Party Consents.  Affinity shall use its reasonable best efforts to obtain, or cause to be obtained, approval from all FQHC Members of the execution and delivery by Affinity of this Agreement, the other Transaction Documents and the performance and consummation by Affinity of the transactions contemplated hereby and thereby. Buyer shall reasonably cooperate with Affinity in connection with Affinity’s efforts related thereto.

(b)    In addition, after the Closing Affinity shall provide to Buyer such written certifications, sub-certifications or the like as may be reasonably requested by Buyer to support

(a)    From and after the Closing, Buyer shall use commercially reasonable good faith efforts to:

level of employment opportunities to residents of the State of New York as compared to those provided by the Business immediately prior to the Closing;

(d)    For the period commencing on the Closing Date and continuing through the five-year anniversary of the Closing Date, Buyer shall cause the headquarters of the Business to remain located in the Bronx, New York.

the Affinity Representative in order to avoid a conflict of interest as established by Buyer or MHNY policy on the part of the Affinity Representative or otherwise would require a similarly situated director to recuse himself under New York law.

ARTICLE VII

(a)    The filings of Buyer and Affinity pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated.

(b)    All other Required Governmental Approvals shall have been obtained.

(e)    The Parties shall have received a copy of the Escrow Agreement, duly executed by the Escrow Agent.

(b)    Affinity shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.

(c)    From the date hereof, there shall not have occurred any Material Adverse Effect or Regulatory Material Adverse Effect, nor shall any event(s), occurrence(s), fact(s), condition(s), change(s) or effect(s) have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect or a Regulatory Material Adverse Effect.

(d)    Affinity shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement).

(e)    Affinity shall have delivered to Buyer a duly executed affidavit prepared in accordance with Treasury Regulations Section 1.1445-2(b) certifying Affinity’s non-foreign status.

(f)    Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Affinity certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors of Affinity authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, and (ii) the names and signatures of the officers of Affinity authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(h)    Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Affinity as of the Closing Date.

(j)    Affinity shall have delivered to Buyer the Estimated Closing Statement, which in Buyer’s reasonable judgment complies with this Agreement and is accurate in all material respects.

(k)    Sufficient Provider Contracts shall have been successfully assigned to Buyer to enable Buyer to satisfy the Minimum Network Requirements.

(l)    Buyer shall have received duly executed copies of the FQHC Non-Compete Agreements, which are valid and in full force and effect.

(m)    Affinity shall have received approval for this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby from the requisite number of FQHC Members pursuant to Section 510(a)-1 of the New York Not-for-Profit Corporation Law and shall have delivered to Buyer a certificate, dated as of the Closing Date and duly executed by the requisite number of FQHC Members (pursuant to Section 510(a)-1 of the New York Not-for-Profit Corporation Law), approving the execution and delivery by Affinity of this Agreement, the other Transaction Documents and the performance and consummation by Affinity of the transactions contemplated hereby and thereby.

(b)    Buyer shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.

(c)    Buyer shall have delivered to Affinity duly executed counterparts to the Transaction Documents (other than this Agreement).

(d)    Buyer shall have delivered to Affinity an instrument or instruments of assignment and assumption of the Assumed Liabilities in form and substance reasonably satisfactory to Affinity and its counsel.

(c)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Affinity pursuant to this Agreement;

(d)    the Special DOH Indemnity;

(e)    the Special HCRA Indemnity;

(g)    any Affinity Transaction Expenses which are outstanding as of the Closing and which are not fully accounted for in the Final Net Asset Value;

(h)    any Closing Date Indebtedness which is outstanding as of the Closing and which is not fully accounted for in the Final Net Asset Value;

(i)    any Liabilities in connection with or relating to any Affinity Employee Payables that exceed the amount itemized in respect thereof on the AEP Schedule and that are not otherwise fully accounted for in the Final Net Asset Value; or

(j)    any Excluded Asset or any Excluded Liability.

(a)    any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement (other than the Buyer Fundamental Representations);

(b)    any inaccuracy in or breach of any Buyer Fundamental Representation;

(c)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement;

(e)    the Purchased Assets or Assumed Liabilities.

(f)    No Indemnified Party shall be entitled to be compensated more than once for the same Loss.

(g)    Each Indemnified Party shall use commercially reasonable efforts to mitigate Losses for which indemnification may be claimed by such Indemnified Party under this Agreement to the extent required by applicable Law.

(h)    The right of an Indemnified Party to indemnification or to assert or recover on any claim shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy of, or compliance with, any of the representations, warranties, covenants, or agreements set forth in this Agreement. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or agreement, shall not affect the right to indemnification or other remedy based on such representations, warranties, covenants or agreements.

(a)    by the mutual written consent of Affinity and Buyer;

(b)    by Buyer by written notice to Affinity if Buyer is not then in material breach of any provision of this Agreement and:

(d)    by Buyer or Affinity, by written notice to the other party, in the event that:

ARTICLE X

deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” Except as otherwise indicated, all references in this Agreement to Articles, Sections and Exhibits are intended to refer to Articles or Sections of this Agreement and Exhibits to this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificates, reports or other documents made or delivered pursuant hereto or thereto, unless the context otherwise requires. Any reference to $ in this Agreement shall mean the lawful currency of the United States. All references to statutes or related regulations shall include all amendments of the same and any successor or replacement statutes and regulations, in each case as in effect on the date of this Agreement, and all references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person). Any capitalized terms used in the Disclosure Schedules, the Buyer Disclosure Schedules or in any Exhibit hereto, but not otherwise defined therein, shall have the meanings as defined in this Agreement. All references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations.

exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

(a)    All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by and construed in accordance with the domestic Laws of the State of New York without giving effect to any choice or conflict of Law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than the State of New York.

(b)    ANY LEGAL SUIT, ACTION OR PROCEEDING (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY ONLY BE INSTITUTED IN THE FEDERAL OR STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN (AND ANY FEDERAL OR STATE APPELLATE COURT THEREFROM), AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. Nothing in this Agreement will affect the right of any Party to this Agreement to serve process in any other manner permitted by law. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)    EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (ii) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,

AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11(C).

management presentations or any other form in expectation of the transactions contemplated by this Agreement.

release or waiver of any rights of Buyer or (B) release or relieve any obligations of Affinity, in either case of clauses (A) and (B), that are expressly set forth in this Agreement or any Transaction Document. The foregoing release and waiver of Released Claims (X) was made with the advice of counsel and fully, finally and forever settles and releases the Released Claims and (Y) shall be and remain in effect notwithstanding the discovery of any additional Claims or facts relating to any of the Released Claims.

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

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