Exhibit 10.1

Execution Version

MANAGEMENT SERVICES AGREEMENT

THIS MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is made effective as of July 5, 2022, by and between Vectrus, Inc., an Indiana corporation (the “Company”), and AIP, LLC, a Delaware limited liability company (“AIP”).

Background

Subject to the terms and conditions of this Agreement, the Company desires to retain AIP to provide certain management services to the Company and its subsidiaries.

Terms and Conditions

In consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties agree as follows:

1.                  Management Services. AIP shall provide general management, financial and other corporate advisory services to the Company and its subsidiaries from time to time as are reasonably requested in advance by the Company in connection with its financial and business affairs as are mutually agreed upon and documented at such times, and from time to time, by the Company and AIP (the “Services”). These Services shall be performed by the officers, employees or agents of AIP as it may determine in its discretion and reasonably acceptable to the Company from time to time. Notwithstanding any provision in this Agreement to the contrary, each of the parties hereto acknowledges and agrees that there are no minimum levels of Services required to be provided to, or requested by, the Company or its subsidiaries pursuant to this Agreement.

2.                  Expense Reimbursement. The Company shall promptly following receipt of invoice (but no later than the Company’s next billing cycle), when requested, reimburse AIP for all reasonable, documented and customary out-of-pocket expenses incurred in the ordinary course by AIP and AIP’s respective officers, employees and agents in connection with AIP’s provision of Services hereunder, including, without limitation, expenses for travel, meals, lodging and other customary items incurred in connection with the performance of the Services hereunder, and the reasonable fees and expenses of counsel, accountants and other advisors of AIP in connection with the enforcement of rights or taking of actions under, or interpreting, this Agreement. Reimbursement of such expenses and costs shall be made during the next regular billing cycle following submission to the Company by AIP of a statement (with reasonable backup documentation) for such expenses.

3.                  Indemnification.

(a)               The Company agrees to defend, indemnify and hold harmless AIP and its current and former affiliates, members, partners, employees and agents (collectively, the “Indemnitees”) from and against any and all loss, liability, damage or reasonable and customary out-of-pocket expenses (including reasonable attorneys’ fees) arising from any claim by any person with respect to, or in any way related to, any act or omission of any of the Indemnitees to the extent in connection with the performance of Services by such Indemnitee under this Agreement (collectively, “Claims”), other than for Claims which shall be proven (as determined by a final, non-appealable determination of a court of competent jurisdiction) to be the direct result of willful misconduct by an Indemnitee. The Company shall defend at its own cost and expense any and all suits or actions (just or unjust) which may be brought against the Company, any of its affiliates or any of the Indemnitees or in which any of the Indemnitees may be impleaded with others upon any Claims, or upon any matter, directly or indirectly, related to or arising out of this Agreement or the performance hereof by any of the Indemnitees, except that if such damage shall be proven (as determined by a final, non-appealable determination of a court of competent jurisdiction) to be the direct result of willful misconduct by an Indemnitee, then AIP shall reimburse the Company for the costs of defense and other costs incurred by the Company. The obligation of the Company to indemnify the Indemnitees hereunder shall survive any termination of this Agreement and shall be binding on any successors and assigns of the Company. Any payments to be made by the Company hereunder shall not be subject to set-off and shall be increased by the amount, if any, of any taxes (other than taxes in respect of income) or other governmental charges levied in connection with such payments so that the net amount received by you shall be equal to the amount payable hereunder before deduction of any such taxes or charges (other than income taxes).

(b)               The Company hereby acknowledges that the Indemnitees have certain rights to indemnification, advancement of expenses or insurance provided, as applicable, by American Industrial Partners Capital Fund VI, L.P. or certain of its affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees with respect to any indemnification, hold harmless obligation, expense advancement or reimbursement provision or any other similar obligation whether pursuant to or with respect to this Agreement, the organizational documents of the Company or any other agreement, as applicable, (i) that the Company is the indemnitor of first resort (i.e., its obligations to the Indemnitees are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee are secondary), (ii) that the Company shall be required to advance the full amount of reasonable and customary expenses incurred by any Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines, and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, the organizational documents of the Company or any other agreement, as applicable, without regard to any rights any Indemnitee may have against the Fund Indemnitors, and (iii) that the Company irrevocably waives, relinquish and release the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of any Indemnitee with respect to any claim for which any Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of any Indemnitee against the Company. The Company agrees that the Fund Indemnitors are express third-party beneficiaries of the terms of this Section 3(b).

4.                  Independent Contractor; No Joint Venture. AIP is performing services hereunder as an independent contractor (and not as an agent, representative or employee of the Company) and AIP is not and shall not be deemed to be a co-venturer with, or partner of, the Company in any respect.

5.                  Information; Confidentiality. In addition to, and not in limitation of, AIP’s rights and obligations pursuant to Section 3 of the Shareholders Agreement:

(a)               The Company shall furnish AIP with such information as AIP reasonably requests in connection with performing the requested Services hereunder (all such information so furnished being referred to hereinafter as the “Information”). The Company recognizes and confirms that AIP (i) will use and rely primarily on the Information and information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same, and (ii) do not assume responsibility for the accuracy or completeness of the Information and such other information.

(b)               AIP agrees to keep confidential and not divulge any Information, and to use such Information only in connection with performing the requested Services hereunder; provided that nothing herein shall prevent AIP from disclosing such Information (i) upon the order of any court or administrative agency, (ii) upon the request or demand of any regulatory agency or authority having jurisdiction over AIP, (iii) to the extent required or requested pursuant to subpoena, interrogatories or other discovery requests, or (iv) to AIP’s officers, directors, managers, employees, consultants, financial advisors, counsel, accountants and other representatives (“Representatives”) in connection with performing the Services; provided that in the case of clause (i), (ii) or (iii) above, AIP shall notify the Company of the proposed disclosure in advance of such disclosure (to the extent legally permissible) and use reasonable best efforts to ensure that any Information so disclosed is accorded confidential treatment. The Company acknowledges that AIP’s review, and the review of AIP’s Representatives, of the Information may inevitably enhance such Person’s knowledge and understanding of the industries in which the Company and its Subsidiaries operate in a way that cannot be separated from such Person’s other knowledge and the Company agrees that the foregoing sentence shall not restrict such Person’s use of such general industry knowledge and understanding retained in such Person’s unaided memory without reference to Information in written, electronic or other fixed form, which may be included in the Information and that is not specific to the Company or its businesses, including in connection with investments in other companies in the same or similar industries.

6.                  Limitation of Liability. Neither AIP nor any other Indemnitee shall be liable to the Company or any of its affiliates for any loss, liability, damage or expense arising out of or in connection with the performance of services contemplated by this Agreement, unless such loss, liability, damage or expense shall be proven to result directly from willful misconduct on the part of an Indemnitee acting within the scope of such person’s employment or authority as determined by a final, non-appealable determination of a court of competent jurisdiction. In no event will AIP or any other Indemnitee be liable to the Company or any of its affiliates for any indirect, special, incidental or consequential damages, including, without limitation, lost profits or savings, whether or not such damages are foreseeable, or for any third party claims (whether based in contract, tort or otherwise), relating to the services to be provided by AIP hereunder.

7.                  No Representations or Warranties. AIP makes no representations or warranties, express or implied, in respect of the services to be provided by AIP or any of the other Indemnitees. Except as AIP may otherwise agree in writing after the date hereof (i) it shall have the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly (A) engage in the same or similar business activities or lines of business as the Company or any of its affiliates, including those competing with the Company or any of its affiliates and (B) do business with any client or customer of the Company or any of its affiliates, (ii) neither AIP nor any officer, director, employee, partner, affiliate or associated entity thereof shall be liable to the Company or any of its affiliates for breach of any duty (contractual or otherwise) by reason of any such activities of or of such person’s participation therein, and (iii) in the event that AIP acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Company or any of its affiliates, on the one hand, and AIP, on the other hand, or any other person, AIP shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or any of its affiliates and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the Company or any of its affiliates for breach of any duty (contractual or otherwise) by reasons of the fact that AIP directly or indirectly pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Company or any of its affiliates.

8.                  Entire Agreement; Amendment. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof. This Agreement may be amended or modified, or any provision hereof may be waived; provided that such amendment or waiver is set forth in a writing executed by the parties. No courses of dealing between or among any persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement.

9.                  No Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other parties hereto; provided that AIP may assign all of its rights and obligations hereunder to any affiliate of AIP without the consent of the Company; provided that AIP will inform the Company in advance of any such assignment.

10.              Binding Effect. In the event of assignment of this Agreement pursuant to Section 9 hereunder, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.

11.              Termination. This Agreement shall commence on, and shall be effective from, the date hereof and shall terminate on the eighth (8th) anniversary of the date hereof or such earlier date as AIP and the Company may mutually agree in writing. In the event of a termination of this Agreement, the Company shall pay AIP all unpaid expenses pursuant to Section 2 above due prior to the time of termination. Sections 3, 5 and 12 (as well as the obligation to pay any amounts that have become due before termination of this Agreement), shall survive any termination of this Agreement.

12.              Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement or to protect the rights obtained hereunder the prevailing party shall be entitled to its reasonable attorneys’ fees, including attorneys’ fees on appeal, costs, and disbursements in addition to any other relief to which it may be entitled.

13.              Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, as applied to contracts made and performed within the State of New York, without regard to principles of conflicts of laws. Each of the parties hereto agrees that all actions, suits or proceedings arising out of, based upon or relating to this Agreement or the subject matter hereof will be brought and maintained exclusively in the federal and state courts of the State of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York for the purpose of any action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts. Notwithstanding the foregoing, to the extent that any party hereto is or becomes a party in any litigation in connection with which it may assert indemnification rights set forth in this Agreement, the court in which such litigation is being heard will be deemed to be included in clause (i) above. The provisions of this Section will not restrict the ability of any party to enforce in any court any judgment obtained in a court included in clause (i) above.

14.              Waiver of Jury Trial. To the extent not prohibited by applicable law that cannot be waived, each of the parties hereto hereby waives, and covenants that it will not assert (whether as plaintiff, defendant, or otherwise), any right to trial by jury in any forum in respect of any issue, claim, demand, cause of action, action, suit or proceeding arising out of, based upon or relating to this agreement or the subject matter hereof, in each case whether now existing or hereafter arising and whether in contract or tort or otherwise. Each of the parties hereto acknowledges that it has been informed by each other party that the provisions of this section constitute a material inducement upon which such party is relying and will rely in entering into this agreement and the transactions contemplated hereby. Any of the parties hereto may file an original counterpart or a copy of this agreement with any court as written evidence of the consent of each of the parties hereto to the waiver of its right to trial by jury.

15.              Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by personal delivery, by reputable overnight courier or by mail (registered or certified mail, postage prepaid, return receipt requested) to the respective parties as follows:

If to AIP:

c/o American Industrial Partners
330 Madison Avenue, 28th Floor
New York, NY 10017

If to the Company:

Vectrus, Inc.

7901 Jones Branch Drive, Suite 700, McLean, Virginia 22102

Telephone:

or to such other address as any party hereto may, from time to time, designate in a written notice given in like manner Notices will be deemed to have been given hereunder when delivered personally, five (5) days after deposit in the U.S. mail and one (1) business day after deposit with a reputable overnight courier service.

17.       Certain Definitions. In addition to the other terms defined throughout this Agreement, the following terms shall have the following meanings when used in this Agreement:

(a)       “Person” means any corporation, association, partnership, limited liability company, joint venture or other company, business trust, trust, organization or other entity of any kind.

(b)       “Shareholders Agreement” means that certain Shareholders Agreement, dated July 5, 2022, by and between the Company and the shareholders of the Company who are or become signatories thereto.

(c)       “Subsidiary” or “subsidiary” means, with respect to any Person, any other Person of which such specified Person, directly or indirectly through one or more Subsidiaries, (i) owns at least 50% of the outstanding equity interests entitled to vote generally in the election of the board of directors or similar governing body of such other Person or (i) has the power to generally direct the business and policies of that other Person.

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[Signature page follows]

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the day and year first above written.

[Signature Page to Management Services Agreement]

[Signature Page to Management Services Agreement]

Exhibit 10.2

DIRECTOR’S INDEMNIFICATION AGREEMENT

THIS AGREEMENT is made as of ____________, _____ between V2X, Inc., an Indiana corporation (the “Corporation”), and __________________ (the “Indemnitee”).

WITNESSETH THAT:

WHEREAS, it is in the Corporation’s best interest to attract and retain capable directors;

WHEREAS, both the Corporation and the Indemnitee recognize the increased risk of litigation and other claims being asserted against directors of public corporations in today’s environment;

WHEREAS, it is now and has always been the policy of the Corporation to indemnify the members of its Board of Directors so as to provide them with the maximum possible protection available in accordance with applicable law;

WHEREAS, Article 4 of the Corporation’s By-laws (“By-laws”) and applicable law expressly recognize that the right of indemnification provided therein shall not be exclusive of any other rights to which any indemnified person may otherwise be entitled; and

WHEREAS, the Corporation’s By-laws, its Articles of Incorporation (“Articles of Incorporation”) and applicable law permit contracts between the Corporation and the members of its Board of Directors covering indemnification.

NOW, THEREFORE, the parties hereto agree as follows:

1.              Indemnity. In consideration of the Indemnitee’s agreement to serve or continue to serve as a Director of the Corporation, or, at the request of the Corporation, as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, whether for profit or not, and including, without limitation, any employee benefit plan (a “Designated Director”), if Indemnitee was or is made or is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened, pending or completed investigation, claim, action, suit, arbitration, alternate dispute resolution mechanism or proceeding (brought in the right of the Corporation or otherwise), whether civil, criminal, administrative or investigative (including, without limitation, any internal corporate investigation), whether formal or informal, and including all appeals thereto (a “Proceeding”), the Corporation hereby agrees to hold the Indemnitee harmless and to indemnify the Indemnitee to the fullest extent now or hereafter permitted by applicable law from and against any and all expenses (which term shall be broadly construed and include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, appeal bonds, other out-of-pocket costs) (“Expenses”)), judgments, fines, amounts paid in settlement (with such judgments, fines or amounts including, without limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan), liabilities or losses actually and reasonably incurred by the Indemnitee by reason of the fact such person is or was a Director of the Corporation or a Designated Director, or by reason of any actual or alleged action or omission to act taken or omitted in any such capacity.

2.              Maintenance of Insurance; Subrogation; Other Rights of Recovery. (a) Subject only to the provisions of Section 2(c) hereof, the Corporation hereby agrees that, so long as the Indemnitee shall continue to serve as a Director of the Corporation, and thereafter so long as the Indemnitee shall be entitled to indemnification hereunder, the Corporation will provide insurance coverage comparable to that presently provided and at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Corporation under the Corporation’s Directors’ and Officers’ Liability Insurance policies (the “insurance policies”) in effect at the date hereof.

(b)            At the time the Corporation receives notice from Indemnitee, or is otherwise aware, of a Proceeding, the Corporation shall give prompt notice to the insurers in accordance with the procedures set forth in the insurance policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such insurance policy.

(c)            However, the Corporation shall not be required to maintain all or any of such insurance policies or comparable insurance coverage if, in the business judgment of the Board of Directors of the Corporation, (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) such insurance is otherwise not reasonably available.

(d)            In the event of any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.

(e)            The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise; provided, however, that (i) the Corporation hereby agrees that it is the indemnitor of first resort under this Agreement and under the By-laws and the Articles of Incorporation of the Corporation or under any other indemnification agreement, i.e., its obligations to Indemnitee under this Agreement or any other agreement or undertaking to provide advancement and/or indemnification to Indemnitee are primary and any obligation of any Designating Stockholder (as defined herein) (or any affiliate thereof other than the Corporation) to provide advancement or indemnification for the same Expenses, liabilities, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by Indemnitee are secondary, and (ii) if any Designating Stockholder (or any affiliate thereof other than the Corporation) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with Indemnitee, then (x) such Designating Stockholder (or such affiliate, as the case may be) shall be fully subrogated to all rights of Indemnitee with respect to such payment, (y) the Corporation shall fully indemnify, reimburse and hold harmless such Designating Stockholder (or such other affiliate) for all such payments actually made by such Designating Stockholder (or such other affiliate), and (z) the Corporation shall not (and shall cause each of its affiliates not to) seek payment, reimbursement or other recourse against the Designating Stockholder or its affiliates with respect to such payment, including through any claim of subrogation, reimbursement exoneration, contribution, indemnification, set-off or in any other manner. For purposes of this Agreement, “Designating Stockholder” means Vertex Aerospace Holdco LLC or any affiliated or successor entity thereof. The Designating Stockholders are express third party beneficiaries of this Agreement, are entitled to rely upon this Section 2(e), and may specifically enforce the Corporation’s obligations hereunder as though a party hereunder.

3.              Additional Indemnity. Subject only to the exclusions set forth in Section 4 hereof, the Corporation hereby further agrees to hold harmless and indemnify the Indemnitee:

(a)            to the fullest extent provided under Article 4 of the Corporation’s By-laws as in effect at the date hereof; and

(b)            in the event the Corporation does not maintain in effect the insurance coverage provided under Section 2 hereof, to the fullest extent of the coverage which would otherwise have been provided for the benefit of the Indemnitee pursuant to the insurance policies in effect at the date hereof.

4.              Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:

(a)            except to the extent the aggregate of losses to be indemnified thereunder exceed the amount of such losses for which the Indemnitee is indemnified or insured pursuant to either Section 1 or 2 hereof;

(b)            in respect of any of the following as determined by a final judgment or other final adjudication:

(1)              remuneration paid to, or indemnification of, the Indemnitee that was or is prohibited by applicable law;

(2)              any transaction from which the Indemnitee derived an improper personal benefit;

(3)              any breach of the Indemnitee’s duty to act in good faith or if the Indemnitee did not (i) in the case of conduct in the Indemnitee’s official capacity with the Corporation, reasonably believe that his or her conduct was in the best interests of the Corporation, (ii) in all other cases, reasonably believe that his or her conduct was at least not opposed to the Corporation’s best interests or (iii) in the case of any criminal proceeding, have reasonable cause to believe that his or her conduct was lawful or had reasonable cause to believe that his or her conduct was unlawful; or

(4)              acts or omissions which involve intentional misconduct or a knowing violation of law by the Indemnitee.

5.              Continuation of Indemnity. All agreements and obligations of the Corporation contained herein shall continue during the period the Indemnitee is a Director of the Corporation and shall continue thereafter so long as the Indemnitee may be made or threatened to be made a party to, or be otherwise involved in, as a witness or otherwise, any Proceeding, by reason of the fact that the Indemnitee was a Director of the Corporation or a Designated Director, or by reason of any action alleged to have been taken or omitted in any such capacity.

6.              Notification and Defense of Claim.

(a)            Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Secretary of the Corporation in writing of the commencement thereof and shall provide the Secretary with such documentation and information as is reasonably available to Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification; but an omission to so promptly notify the Corporation will not relieve it from any liability which it may have to the Indemnitee (i) under this Agreement, except to the extent the Corporation is actually and materially prejudiced in its defense of such Proceeding or (ii) otherwise than under this Agreement, including, without limitation, its liability to indemnify the Indemnitee under the Corporation’s By-laws.

(b)            With respect to any such Proceeding:

(1)              except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Corporation to the Indemnitee of its election so to assume the defense thereof and approval by the Indemnitee of such counsel (which approval shall not be unreasonably withheld), the Corporation will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee for separate counsel in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ its own counsel in such Proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of such counsel by the Indemnitee has been authorized by the Corporation, (ii) the Indemnitee shall have reasonably concluded (with written notice to the Corporation setting forth the basis for such conclusion) that there may be a conflict of interest between the Corporation and the Indemnitee in the conduct of the defense of such Proceeding or that there are claims or allegations against the Indemnitee relating to or arising from the Indemnitee’s affiliation with the Designating Stockholder that are distinct from those asserted against other directors who were not designated by the Designating Stockholder, or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which the Indemnitee shall have made the conclusion provided for in (ii) above;

(2)              notwithstanding subsection (1) above, Indemnitee shall have the sole right and obligation to control the defense or conduct of any claim or Proceeding (including, for this purpose, any related claims or Proceedings involving directors of the Corporation based on substantially similar facts and circumstances) with respect to which Indemnitee and other directors designated by the Designating Stockholders are the sole directors party thereto, and the Corporation shall be entitled to participate therein at its own expense;

(3)              in the event the Corporation is required to pay or reimburse the fees and expenses of counsel to the Indemnitee, the Indemnitee and all other directors designated by the Designating Stockholder or its affiliates shall be represented by the same counsel, and the fees and expenses of any additional or separate counsel engaged by the Indemnitee shall be at the expense of the Indemnitee; and

(4)              the Corporation shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Corporation’s written consent. The Corporation shall not settle any Proceeding in any manner that would impose any penalty, obligation or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Corporation nor the Indemnitee will unreasonably withhold their consent to any proposed settlement.

(c)            Except as otherwise required by applicable law, the determination of the Indemnitee’s entitlement to indemnification shall be made pursuant to and in accordance with the procedures set forth in the By-Laws in effect as of the date hereof, or any such procedures that may be more favorable to the Indemnitee that are set forth in the By-Laws in effect on the date Indemnitee provides the Secretary notice of the request for indemnification.

(d)            The parties intend and agree that, to the extent permitted by applicable law, in connection with any determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person:

(1)              it will be presumed that Indemnitee is entitled to indemnification under this Agreement and the Corporation or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption;

(2)              the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; and

(3)              Indemnitee will be deemed to have acted in good faith if Indemnitee relies upon the books and records of the Corporation, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Corporation, or on the advice of the Corporation’s legal counsel or other advisors (including financial advisors and accountants) or on information or records given in reports made to the Corporation by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Corporation unless, in each case, Indemnitee has knowledge concerning the matter in question that makes such reliance unwarranted.

The provisions of this Section 6(e) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

7.              Advancement and Repayment of Expenses. Upon receipt by the Corporation of a statement from the Indemnitee requesting advancement or repayment of any Expenses incurred in connection with any Proceeding involving the Indemnitee, all such Expenses shall be paid promptly (and in any event within twenty (20) days of receipt of such statement, which statement shall reasonably evidence the Expenses incurred or to be incurred) by the Corporation in advance of the final disposition of such Proceeding. The Indemnitee agrees that the Indemnitee will reimburse (without interest) the Corporation for all reasonable Expenses advanced, paid or incurred by the Corporation on behalf of the Indemnitee in respect of a claim against the Corporation under this Agreement in the event and only to the extent that it shall be ultimately and finally determined that the Indemnitee is not entitled to be indemnified by the Corporation for such Expenses under the provisions of applicable law, the Corporation’s Articles of Incorporation or By-laws, this Agreement or otherwise. The Corporation’s obligations to advance Expenses under this Section 7 shall not be subject to any conditions or requirements not contained in this Section.

8.              Nonexclusivity. The provisions for indemnification and advancement and reimbursement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, in any court in which a proceeding is brought, the Corporation’s Articles of Incorporation or By-laws, other agreements or otherwise, and Indemnitee’s rights hereunder shall inure to the benefit of the heirs, executors and administrators of Indemnitee. No amendment or alteration of the Corporation’s Articles of Incorporation or By-laws or another agreement shall adversely affect the rights provided to Indemnitee under this Agreement. To the extent that a change in Indiana or other law, whether by statute or judicial decision, permits greater indemnification or payment than would be afforded currently under the Corporation’s Articles of Incorporation, By-laws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.

9.              Enforcement. If a claim under this Agreement is not paid in full by the Corporation within ninety days after a written request has been received by the Corporation, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the Indemnitee shall also be entitled to be indemnified for all expenses actually and reasonably incurred by the Indemnitee in connection with the prosecution of such claim. Nothing in this Section 9 is intended to limit the Corporation’s obligations with respect to the advancement or repayment of expenses to Indemnitee in connection with any such action, suit or proceeding instituted by Indemnitee to enforce or interpret this Agreement.

10.            Severability. If any provision of this Agreement shall be held to be or shall, in fact, be invalid, inoperative or unenforceable as applied to any particular case or in any particular jurisdiction, for any reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other distinguishable case or jurisdiction, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity, inoperability or unenforceability of any one or more phrases, sentences, clauses or Sections contained in this Agreement shall not affect any other remaining part of this Agreement.

11.            Governing Law; Binding Effect; Amendment or Termination. (a) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana.

(b)            This Agreement shall be binding upon the Indemnitee and upon the Corporation and its successors and assigns, and shall inure to the benefit of the Indemnitee and his or her heirs, personal representatives, executors and administrators, and to the benefit of the Corporation and its successors and assigns.

(c)            This Agreement constitutes the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement, except to the extent any such prior agreement may be more favorable to the Indemnitee than the provisions hereunder.

(d)            No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

[Signature Page to Director's Indemnification Agreement]

[Signature Page to Director's Indemnification Agreement]

Exhibit 10.3

FIRST LIEN CREDIT AGREEMENT

Dated as of December 6, 2021

as amended by amendment no. 1 to first lien credit agreement, dated as of July 5, 2022

among

VERTEX AEROSPACE SERVICES CORP.,

as the Borrower,

VERTEX AEROSPACE INTERMEDIATE LLC,

as Holdings,

THE LENDERS PARTY HERETO,

and

ROYAL BANK OF CANADA,

as Administrative Agent and Collateral Agent

__

RBC CAPITAL MARKETS,¹

MORGAN STANLEY SENIOR FUNDING, INC.,

CREDIT SUISSE LOAN FUNDING LLC,

MUFG UNION BANK, N.A.,

and

CITIZENS BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners

¹ RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.

TABLE OF CONTENTS

Page

SCHEDULES

EXHIBITS

This FIRST LIEN CREDIT AGREEMENT is entered into as of December 6, 2021, among VERTEX AEROSPACE SERVICES CORP., a Delaware corporation (the “Borrower”), VERTEX AEROSPACE INTERMEDIATE LLC, a Delaware limited liability company (“Holdings”), the lenders party hereto (collectively, the “Lenders” and individually, a “Lender”) and ROYAL BANK OF CANADA (“RBC”), as Administrative Agent and Collateral Agent.

PRELIMINARY STATEMENTS

Pursuant to that certain Share and Asset Purchase and Sale Agreement, dated as of September 8, 2021 (together with all exhibits, annexes and schedules thereto, as amended, modified, restated, supplemented or waived in accordance with the terms thereof, the “Purchase Agreement”), by and among Raytheon Company, a Delaware corporation (the “Seller”), Vertex Aerospace LLC, a Delaware limited liability company (the “Purchaser”), and Vertex Aerospace Services Holding Corp., a Delaware corporation (“Vertex Holdings”), the Purchaser will, directly or indirectly, acquire (the “Acquisition”) all of the Seller Entities’ (as defined in the Purchase Agreement) right, title and interest in and to certain assets constituting the Business (as defined in the Purchase Agreement), including the Purchased Entity Shares (as defined in the Purchase Agreement) (the “Target Business”) from the Seller and which, after giving effect to the Transactions, will be owned directly or indirectly by the Borrower.

The Borrower has requested that, upon the satisfaction in full (or waiver by the Administrative Agent) of the conditions precedent set forth in Article IV below, the Lenders make term loans to the Borrower in an aggregate principal amount of $925,000,000, the proceeds of which shall be used, together with the proceeds of the Equity Contribution, Second Lien Term Loans and proceeds of any borrowings under the ABL Credit Agreement, (i) to finance the Transactions, (ii) to pay the Transaction Costs, (iii) to pay fees and expenses in connection with the foregoing and (iv) to fund working capital and general corporate purposes, on the terms and subject to the conditions set forth in this Agreement.

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

ARTICLE I.
Definitions and Accounting Terms

Section 1.01         Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“2022 Incremental Term Lender” means a Lender with a 2022 Incremental Term Loan Commitment or an outstanding 2022 Incremental Term Loan.

“2022 Incremental Term Loan Arrangers” means each of RBC Capital Markets, Stifel Nicolaus and Company, Incorporated, MUFG Union Bank, N.A., U.S. Bank National Association and Citizens Bank, N.A., in their respective capacities as exclusive joint lead arrangers and joint bookrunners for the 2022 Incremental Term Loans.

“2022 Incremental Term Loan Commitment” means, as to each 2022 Incremental Term Lender, its obligation to make 2022 Incremental Term Loans to the Borrower pursuant to the First Amendment on the First Amendment Effective Date in an aggregate principal amount not to exceed the amount set forth opposite such 2022 Incremental Term Lender’s name on Schedule I to the First Amendment under the caption “2022 Incremental Term Loan Commitment” as such amount may be adjusted from time to time in accordance with this Agreement. As of the First Amendment Effective Date, the initial aggregate amount of the 2022 Incremental Term Loan Commitments is $260,000,000.

“2022 Incremental Term Loan Facility” means the Term Facility in respect of the 2022 Incremental Term Loans.

“2022 Incremental Term Loans” shall have the meaning assigned to such term in Section 2.01(b) hereof; provided that the 2022 Incremental Term Loans, on the one hand, shall constitute a separate and distinct Term Loan Tranche from the Initial Term Loans, on the other hand, for all purposes under the Loan Documents. The aggregate initial principal amount of 2022 Incremental Term Loans on the First Amendment Effective Date shall be $260,000,000.

“ABL Credit Agreement” means the ABL Credit Agreement, dated as of the date hereof, among Holdings, the Borrower, the lenders party thereto from time to time and the ABL Representative, which amends that certain ABL Credit Agreement, originally dated as of June 29, 2018, among the Borrower, Vertex Aerospace Services Holdings Corp., a Delaware corporation, as Holdings, the lenders party thereto from time to time and the ABL Representative, as amended pursuant to the First Amendment to ABL Credit Agreement, dated as of May 17, 2019 and the Second Amendment to ABL Credit Agreement, dated as of May 17, 2021, and as further amended, amended and restated, modified, supplemented, substituted, replaced, restated or refinanced, in whole or in part, pursuant to a Permitted Refinancing from time to time (whether with the original administrative agent and lenders or other agents and lenders or otherwise and whether provided under the original ABL Credit Agreement or another credit agreement, indenture, instrument, other document or otherwise, unless such credit agreement, indenture, instrument or document expressly provides that it is not an ABL Credit Agreement), in each case as and to the extent permitted by this Agreement and the ABL Intercreditor Agreement.

“ABL Facility” means the senior secured revolving loan facility under the ABL Credit Agreement or any amendment, supplement, modification, substitution, replacement, restatement or refinancing thereof, in whole or in part, pursuant to a Permitted Refinancing from time to time, in each case as and to the extent permitted by this Agreement and the ABL Intercreditor Agreement.

“ABL Intercreditor Agreement” means the ABL Intercreditor Agreement substantially in the form of Exhibit K among the Administrative Agent, the Second Lien Administrative Agent and the ABL Representative, with such modifications thereto as the Administrative Agent may reasonably agree.

“ABL Loan Documents” means, collectively, (i) the ABL Credit Agreement and (ii) the security documents, intercreditor agreements (including the ABL Intercreditor Agreement), guarantees, joinders and other agreements or instruments executed in connection with the ABL Credit Agreement or such other agreements, in each case, as amended, modified, supplemented, substituted, replaced, restated or refinanced, in whole or in part, pursuant to a Permitted Refinancing from time to time, in each case as and to the extent permitted by this Agreement and the ABL Intercreditor Agreement.

“ABL Loan Parties” has the meaning assigned to the term “Loan Parties” in the ABL Credit Agreement.

“ABL Obligations” means all Indebtedness and other obligations of the Borrower and any other ABL Loan Parties outstanding under or pursuant to the ABL Loan Documents, together with guarantees thereof that are secured, or intended to be secured, under the ABL Loan Documents, including any direct or indirect, absolute or contingent, interest and fees that accrue after the commencement by or against the Borrower or any other ABL Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and any obligations under a Secured Hedge Agreement or a Secured Cash Management Agreement (in each case, as defined in the ABL Credit Agreement) that are secured pursuant to the ABL Loan Documents.

“ABL Priority Collateral” has the meaning assigned to the term “ABL Collateral” in the ABL Intercreditor Agreement.

“ABL Representative” means initially, Ally Bank, in its capacity as administrative agent and collateral agent under the ABL Credit Agreement and the other ABL Loan Documents and any other administrative agent, collateral agent or representative of the holders of ABL Obligations appointed as a representative for purposes related to the administration of the ABL Loan Documents pursuant to the ABL Credit Agreement, in such capacity as provided in the ABL Credit Agreement.

“Accepting Lender” has the meaning specified in Section 10.01.

“Acquired Indebtedness” means, with respect to any specified Person, (a) Indebtedness of any other Person existing at the time such other Person is merged, amalgamated or consolidated with or into or becomes a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is Incurred in connection with, or in contemplation of, such other Person merging, amalgamating or consolidating with or into, or becoming a Restricted Subsidiary of, such specified Person and (b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“Acquisition” has the meaning specified in the Preliminary Statements of this Agreement.

“Adjusted Eurodollar Rate” means, with respect to any Eurodollar Rate Borrowing for any Interest Period, an interest rate per annum equal to the Eurodollar Rate for such Interest Period, multiplied by the Statutory Reserve Rate; provided that the Adjusted Eurodollar Rate with respect to the Initial Term Loans shall not be less than 0.75% per annum.

“Adjusted Term SOFR” means an interest rate per annum equal to (a) Term SOFR, plus (b) 0.10% (10 basis points); provided, that Adjusted Term SOFR shall not be less than the SOFR Floor.

“Administrative Agent” means RBC, acting through such of its Affiliates or branches as it may designate, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent permitted by the terms hereof.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-3 or any other form approved by the Administrative Agent.

“Affected Financial Institution” means (i) any EEA Financial Institution or (ii) any UK Financial Institution.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

“Affiliate Lender Assignment and Assumption” has the meaning specified in Section 10.07(i)(i).

“Affiliate Lenders” means, collectively, the Sponsor and its Affiliates (other than any Natural Person, Holdings, the Borrower and any of Holdings’ or the Borrower’s respective Subsidiaries).

“Affiliate Transaction” has the meaning specified in Section 6.18.

“Agent-Related Distress Event” means, with respect to the Administrative Agent, the Collateral Agent or any Person that directly or indirectly controls the Administrative Agent (each, a “Distressed Agent-Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law is commenced, or a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent-Related Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent or any Person that directly or indirectly controls the Administrative Agent by a Governmental Authority or an instrumentality thereof.

“Agent-Related Persons” means each Agent, together with its Related Parties.

“Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Arrangers and the Supplemental Agents (if any).

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

“Agreement” means this first lien credit agreement.

“AIP Manager” means AIP, LLC, a Delaware limited liability company.

“All-in Yield” means, with respect to any Indebtedness, the yield of such Indebtedness, whether in the form of interest rate, margin, OID, upfront fees, index floors or otherwise, in each case, payable by the Borrower generally to all lenders; provided that OID and upfront fees shall be equated to interest rate assuming a four-year life to maturity or, if less, the remaining life to maturity, and shall not include arrangement fees, structuring fees, advisory fees, success fees, ticking fees, commitment fees, unused line fees, underwriting fees, amendment, consent and similar fees (whether or not shared with all lenders providing such facility) and any other fees not paid by the Borrower generally to all lenders providing such Indebtedness; provided further that (A) if the Eurodollar Rate or Term SOFR, as applicable, (in each case with an Interest Period of three months) is less than any floor applicable to loans in respect to which the All-in Yield is being calculated on the date on which the All-in Yield is determined, the amount of the resulting difference will be deemed added to the interest rate margin applicable to the relevant Indebtedness for purposes of calculating the All-in Yield and (B) if the Eurodollar Rate or Term SOFR, as applicable, (in each case with an Interest Period of three months) is greater than any applicable floor on the date on which the All-in Yield is determined, the floor will be disregarded in calculating the All-in Yield.

“Applicable Discount” has the meaning specified in the definition of “Dutch Auction.”

“Applicable Rate” means, (x) with respect to the 2022 Incremental Term Loans, a percentage per annum equal to (i) for Term Benchmark Rate Loans, 4.00% and (ii) for Base Rate Loans, 3.00%, and (y) with respect to the Initial Term Loans, a percentage per annum equal to (i) for Term Benchmark Rate Loans, 4.00% and (ii) for Base Rate Loans, 3.00%; provided that from and after the first Business Day after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(b) calculating the Consolidated First Lien Net Leverage Ratio in respect of the first full fiscal quarter ending after the Closing Date, the “Applicable Rate” for Initial Term Loans shall be the applicable rate per annum set forth below under the caption “Alternate Base Rate Spread” or “Eurodollar Rate Spread,” respectively, based upon the Consolidated First Lien Net Leverage Ratio as of the last day of the applicable Test Period as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b); provided further that following the consummation of a Qualified IPO, each rate per annum set forth below shall automatically be decreased by an additional 0.25%:

No change in the Applicable Rate for Initial Term Loans shall be effective until the first Business Day after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(b). At any time after the date on which any annual or quarterly financial statement was required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b) but was not delivered (or the Compliance Certificate related to such financial statements was required to have been delivered pursuant to Section 6.02(b) but was not delivered), commencing with the first Business Day immediately following such date and continuing until the first Business Day immediately following the date on which such financial statements (or, if later, the Compliance Certificate related to such financial statements) are delivered, the Applicable Rate for Initial Term Loans shall be determined as if the Consolidated First Lien Net Leverage Ratio were in excess of 3.75 to 1.00. Within one Business Day of receipt of the applicable information under Section 6.02(b), the Administrative Agent shall give each Lender telefacsimile or telephonic notice (confirmed in writing) of the Applicable Rate in effect from the effective date set forth above.

“Appropriate Lender” means, at any time, (a) with respect to the Term Facility, a Lender that has a Commitment with respect to the Term Facility or holds a Term Loan at such time, (b) with respect to any New Term Facility, a Lender that holds a New Term Loan at such time and (c) with respect to any Specified Refinancing Debt, a Lender that holds Specified Refinancing Term Loans.

“Approved Commercial Bank” means a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.

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

“Arranger/Lender-Related Persons” has the meaning specified in Section 10.15(d).

“Arrangers” means each of RBC Capital Markets, Morgan Stanley Senior Funding, Inc., Credit Suisse Loan Funding LLC, MUFG Union Bank, N.A. and Citizens Bank, N.A., in their respective capacities as exclusive joint lead arrangers and joint bookrunners for the Initial Term Loans and each of the 2022 Incremental Term Loan Arrangers.

“Asset Sale” means any Disposition by the Borrower or any Restricted Subsidiary other than:

(a)            a sale, exchange or other disposition of cash, Cash Equivalents or Investment Grade Securities, or of obsolete, damaged, unnecessary, surplus, negligible, unsuitable or worn out equipment or other assets in the ordinary course of business, or dispositions of property no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower and the Restricted Subsidiaries (including allowing any such registrations or any such applications for registration of any such intellectual property or other such intellectual property rights to lapse or become abandoned);

(b)            without limiting the provisions of Section 8.01(k), the sale, conveyance, lease or other disposition of all or substantially all of the assets of the Borrower in compliance with the provisions of Section 7.03 or Section 7.04 or any Disposition that constitutes a Change of Control;

(c)            any Restricted Payment that is permitted to be made, and is made, pursuant to Section 7.05 or any Permitted Investment;

(d)            any Disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary, in a single transaction or series of related transactions, with an aggregate Fair Market Value of less than or equal to the greater of (x) $42,000,000 and (y) 20.0% of Consolidated EBITDA of the Group Parties per fiscal year; provided that any unused amounts pursuant to this clause (d) during any fiscal year shall carry forward to the succeeding fiscal year;

(e)            any transfer or Disposition of property or assets or issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary;

(f)             the creation of any Lien permitted under this Agreement;

(g)            any issuance, sale, pledge or other disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(h)            the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale in the ordinary course of business or the conversion of accounts receivable to notes receivable or dispositions of accounts receivable in connection with the collection or compromise thereof;

(i)             the lease, assignment, license, sublicense or sublease of any real or personal property in the ordinary course of business;

(j)             a sale or transfer of accounts receivable, or participations therein, and related assets of the type specified in the definition of “Receivables Financing” to a Receivables Subsidiary in a Qualified Receivables Financing or in factoring or similar transactions;

(k)            a transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing;

(l)             any exchange of assets for Related Business Assets (including a combination of Related Business Assets and a de minimis amount of cash or Cash Equivalents) of comparable or greater market value than the assets exchanged, as determined in good faith by the Borrower;

(m)           (i) the sale, assignment, licensing, sub-licensing, cross-licensing or other disposition of intellectual property or other general intangibles (1) in the ordinary course of business or (2) which do not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary and do not secure any Indebtedness, (ii) the sale, assignment, licensing, sub-licensing or other disposition of intellectual property or other general intangibles pursuant to any Intercompany License Agreement, and (iii) the statutory expiration of any intellectual property (for the avoidance of doubt, this clause (m) is subject to the last paragraph of Section 7.04);

(n)            any Sale/Leaseback Transaction of any property acquired or built after the Closing Date; provided that such sale is for at least Fair Market Value;

(o)            the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;

(p)            Dispositions arising from foreclosures, condemnations, eminent domain, seizure, nationalization or any similar action with respect to assets, dispositions of property subject to casualty events and (except for purposes of calculating Net Cash Proceeds of any Asset Sale under the second and third paragraphs of Section 7.04) Dispositions necessary or advisable (as determined by the Borrower in good faith) in order to consummate any acquisition of any Person, business or assets;

(q)            Dispositions of Investments (including Equity Interests) in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements or rights of first refusal between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(r)             to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;

(s)            the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third-parties to the extent required by applicable law;

(t)             [reserved];

(u)            a sale or transfer of equipment receivables, or participations therein, and related assets;

(v)            a sale or transfer of receivables made pursuant to factoring arrangements;

(w)           any Disposition constituting part of a Permitted Reorganization or a Permitted IPO Reorganization;

(x)            Dispositions of any assets (including Equity Interests) (i) acquired in connection with any Investment permitted hereunder, which assets are not core or principal to the business of the Borrower or the Restricted Subsidiaries or (ii) made to obtain the approval of any applicable antitrust or other regulatory authority in connection with any Investment permitted hereunder;

(y)            any Sale/Leaseback Transaction so long as either (i) the Maximum Leverage Requirement is satisfied after giving effect to any resulting Capitalized Lease Obligation on a Pro Forma Basis (but excluding the proceeds of such Sale/Leaseback for purposes of cash netting), (ii) any Capitalized Lease Obligation incurred in connection with such Sale/Leaseback Transaction is permitted under Section 7.01(d) or (iii) the Fair Market Value for all such assets disposed of pursuant to Sale/Leaseback Transactions under this clause (iii) does not exceed the greater of (x) $62,000,000 and (y) 30.0% of Consolidated EBITDA of the Group Parties;

(z)            Dispositions of assets that do not constitute Collateral with an aggregate Fair Market Value, for all such assets disposed of pursuant to this clause (z) in any fiscal year, not to exceed the greater of (x) $16,000,000 and (y) 7.5% of Consolidated EBITDA of the Group Parties; provided that any unused amounts pursuant to this clause (z) during any fiscal year shall carry forward into the succeeding fiscal year;

(aa)          Borrower and any Restricted Subsidiary may: (i) terminate or otherwise collapse its cost sharing agreements with Borrower or any Subsidiary and settle any crossing payments in connection therewith; (ii) convert any intercompany Indebtedness to Equity Interests or any Equity Interests to intercompany Indebtedness; (iii) transfer any intercompany Indebtedness to Borrower or any Restricted Subsidiary; (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by Borrower or any Restricted Subsidiary; (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, managers, directors, officers or employees of Borrower, any direct or indirect parent thereof, or any Subsidiary thereof or any of their successors or assigns; or (vi) surrender or waive contractual rights and settle, release, surrender or waive contractual or litigation claims (or other disposition of assets in connection therewith);

(bb)         Any disposition of property to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property (excluding any boot thereon) that is purchased within 270 days thereof or (2) the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually purchased within 270 days thereof); and

(cc)          Dispositions set forth on Schedule 1.01(b) hereto.

For the avoidance of doubt, the unwinding of Swap Contracts shall not be deemed to constitute an Asset Sale.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D-1, or otherwise in form and substance reasonably acceptable to the Administrative Agent.

“Auction” has the meaning specified in the definition of “Dutch Auction.”

“Auction Amount” has the meaning specified in clause (a) of the definition of “Dutch Auction.”

“Auction Notice” has the meaning specified in clause (a) of the definition of “Dutch Auction.”

“Available Incremental Amount” has the meaning specified in Section 2.14(a).

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

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

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

“Bankruptcy Code” means Title 11 of the United States Code, entitled “Bankruptcy”, as amended from time to time.

“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate on such day plus 1/2 of 1%, (b) the Prime Lending Rate on such day and (c) the applicable Term Benchmark Rate for such Term Loan Tranche published on such day (or if such day is not a Business Day the immediately preceding Business Day) for an Interest Period of one (1) month plus 1% per annum; provided that for the purposes of clause (c) of this definition with respect to Initial Term Loans, the Adjusted Eurodollar Rate for any day shall be based on the rate determined on such day at approximately 11:00 a.m. (London time) by reference to the Screen Rate, as if the relevant Borrowing of Base Rate Loans were a Eurodollar Rate Borrowing. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, the Base Rate shall be determined without regard to clause (a) above until the circumstances giving rise to such inability no longer exist.

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

“Basket” means any “basket”, amount, threshold, exception or value (including by reference to the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Consolidated Interest Coverage Ratio, Consolidated EBITDA or Consolidated Net Tangible Assets) permitted or prescribed with respect to any Lien, Indebtedness, Asset Sale (or other disposition or other sale of property or assets), Investment, Restricted Payment, Affiliate Transaction or any other transaction or action under any provision in this Agreement or any other Loan Document.

“Benchmark” shall mean, initially, (x) with respect to the Initial Term Loans, LIBOR and (y) with respect to the 2022 Incremental Term Loans, Term SOFR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (ii) of Section 1.09(a)(v) titled “Benchmark Replacement Setting” or Section 1.09(b).

“Benchmark Replacement” means (x) with respect to the Initial Term Loans for any Available Tenor:

(a)            For purposes of Section 1.09(a)(v)(i), each alternative set forth below that can be determined by the Administrative Agent (it being understood that if both the Term SOFR Benchmark Replacement and the Daily Simple SOFR Benchmark Replacement are available as of the Benchmark Transition Date, the Borrower may elect either of the Term SOFR Benchmark Replacement, on the one hand, or the Daily Simple SOFR Benchmark Replacement, on the other hand, as the Benchmark Replacement):

(i)             the sum of: (i) Term SOFR and (ii) 0.10000% (10.000 basis points) (the “Term SOFR Benchmark Replacement”), or

(ii)            the sum of: (A) Daily Simple SOFR and (B) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (i) above (the “Daily Simple SOFR Benchmark Replacement”); and

(b)            For purposes of Section 1.09(a)(v)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

provided that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than (i) in the case of the Initial Term Loans, 0.75%, or (ii) in the case of any other Term Loan Tranche, zero, the Benchmark Replacement will be deemed to be (x) in the case of the Initial Term Loans, 0.75%, or (y) in the case of any other Term Loan Tranche, zero for the purposes of this Agreement and the other Loan Documents; and

(y) with respect to any Benchmark Transition Event related to the 2022 Incremental Term Loans for any Available Tenor, the sum of (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that if the Benchmark Replacement as so determined above would be less than 0.75%, the Benchmark Replacement will be deemed to be 0.75% for the purposes of this Agreement and the other Loan Documents. Any Benchmark Replacement shall be applied in a manner consistent with market practices; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent in consultation with the Borrower.

“Benchmark Replacement Adjustment” means, solely for the purposes of clause (y) of the definition of “Benchmark Replacement” with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar denominated syndicated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines, in consultation with the Borrower, that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent, in consultation with the Borrower, decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Replacement Date” means (x) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and (y) with respect to the 2022 Incremental Term Loans, the earliest to occur of the following events with respect to the then-current Benchmark:

(a)            in the case of clause (y)(a) or (y)(b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(b)            in the case of clause (y)(c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (y)(c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (y)(a) or (y)(b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Date” shall have the meaning provided in Section 1.09(a)(v)(i).

“Benchmark Transition Event” means,

(x) with respect to the Initial Term Loans, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, and

(y) with respect to the 2022 Incremental Term Loans, the occurrence of one or more of the following events with respect to the then-current Benchmark:

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Start Date” means, with respect to the 2022 Incremental Term Loans (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth day (or such other date selected by the Administrative Agent and the Borrower) prior to the expected date of such event as of such public statement or publication of information (as such expected date may be delayed pursuant to any subsequent public statement or event) (or if the expected date of such prospective event is fewer than ninety days (or such other date selected by the Administrative Agent and the Borrower) after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date jointly elected by the Administrative Agent and the Borrower and specified by the Administrative Agent by notice to the Borrower and the Lenders.

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

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

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

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

“Board of Directors” means as to any Person, the board of directors, board of managers, sole member or managing member or other governing body of such Person, or if such Person is owned or managed by a single entity or a general partner, the board of directors, board of managers, sole member or managing member or other governing body of such entity or general partner, or in each case, any duly authorized committee thereof, and the term “directors” means members of the Board of Directors.

“Borrower” has the meaning specified in the introductory paragraph to this Agreement.

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

“Borrowing” means a Term Borrowing.

“Business Day” means:

(1)            any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of the State of New York, or are in fact closed in, New York City; and

(2)            if such day relates to any interest rate settings as to a Eurodollar Rate Loan, means any such day described in clause (1) above that is also a London Banking Day.

“Capital Stock” means:

(1)            in the case of a corporation or company, corporate stock or share capital;

(2)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3)            in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(4)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a finance lease on the balance sheet of that Person.

“Capitalized Lease Obligation” means at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP. For the avoidance of doubt, “Capitalized Lease Obligations” shall not include Non-Financing Lease Obligations.

“Captive Insurance Subsidiary” means any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).

“Cash-Capped Incremental Facility” has the meaning specified in Section 2.14(a).

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, as collateral for obligations of Lenders to fund participations in respect thereof, cash, Cash Equivalents (if reasonably acceptable to the Administrative Agent) or deposit account balances or, if the Administrative Agent benefiting from such collateral shall agree in its sole discretion, other credit support pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means:

(1)            Dollars, Canadian Dollars, Pounds Sterling, Euro, Japanese Yen, the national currency of any Participating Member State of the European Union and, with respect to any Foreign Subsidiaries, other currencies held by such Foreign Subsidiary in the ordinary course of business;

(2)            securities issued or directly guaranteed or insured by the government of the United States, the United Kingdom, or any country that is a member of the European Union or any agency or instrumentality thereof in each case with maturities not exceeding two (2) years from the date of acquisition;

(3)            money market deposits, certificates of deposit, time deposits and eurodollar time deposits with maturities of two (2) years or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding two (2) years, and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $250,000,000 in the case of domestic banks or $100,000,000 (or the dollar equivalent thereof) in the case of foreign banks;

(4)            repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (6) below entered into with any financial institution or securities dealers of recognized national standing meeting the qualifications specified in clause (3) above;

(5)            commercial paper or variable or fixed rate notes issued by a corporation or other Person (other than an Affiliate of the Borrower) rated at least “A-2” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within two (2) years after the date of acquisition;

(6)            readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two (2) years from the date of acquisition;

(7)            Indebtedness issued by Persons (other than the Sponsor) with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two (2) (years from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least “A-2” or “P-2” from either S&P or Moody’s (or reasonably equivalent ratings of another internationally recognized ratings agency);

(8)            investment funds investing at least 95% of their assets in investments of the types described in clauses (1) through (7) above and (9) and (10) below;

(9)            Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or reasonably equivalent ratings of another internationally recognized ratings agency); and

(10)          in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, other investments of comparable tenor and credit quality to those described in the foregoing clauses (1) through (9) customarily utilized in the countries where such Foreign Subsidiary is located or in which such investment is made.

In the case of Investments by any Foreign Subsidiary, the term “Cash Equivalents” shall also include (x) Investments of the type and maturity described in clauses (1) through (10) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (y) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments that are analogous to the Investments described in clauses (1) through (10) above and in this paragraph.

“Cash Management Agreement” means any agreement or arrangement to provide Cash Management Services to the Borrower or any Restricted Subsidiary.

“Cash Management Bank” means any Person party to a Cash Management Agreement that is (x) a Lender or an Agent or an Affiliate of a Lender or an Agent or (y) any other Person designated by the Borrower, in each case, in its capacity as a party to such Cash Management Agreement; provided that, in the case of clause (y) of this definition, such other Person has delivered to the Collateral Agent a written notice (1) appointing the Collateral Agent as its agent under the applicable Loan Documents and (2) agreeing to be bound by Article IX and Sections 10.05, 10.15 and 10.17 as if such Person were a Lender; provided that no Cash Management Bank shall have any rights in connection with the terms of the Loan Documents or management or release of Collateral or the obligations of any Loan Party under the Loan Documents, other than in its capacity as an Agent or a Lender.

“Cash Management Services” means any of the following: automated clearing house transactions, treasury and/or cash management services, including, without limitation, treasury, depository, overdraft, credit, purchasing or debit card, non-card e-payable services, electronic funds transfer, treasury management services (including controlled disbursement services, overdraft automatic clearing house fund transfer services, return items and interstate depository network services), cash pooling arrangements, other demand deposit or operating account relationships, foreign exchange facilities, credit card processing services and merchant services.

“Casualty Event” means any event that gives rise to the receipt by the Borrower or any Loan Party of any casualty insurance proceeds or condemnation awards or that gives rise to a taking by a Governmental Authority in respect of any equipment, fixed assets or real property (including any improvements thereon), in each case, not constituting ABL Priority Collateral, to replace, restore or repair, or compensate for the loss of, such equipment, fixed assets or real property.

“Change of Control” means, and will be deemed to have occurred if, at any time after the consummation of the Acquisition:

(a)            at any time, Holdings ceases to own, directly or indirectly, beneficially or of record, 100% of the issued and outstanding Equity Interests of the Borrower;

(b)            at any time prior to the consummation of a Qualified IPO, the Permitted Holders, taken together, shall cease to beneficially own (within the meaning of Rule 13d-5 under the Exchange Act), directly or indirectly, at least a majority of the Voting Stock of Holdings (determined on a fully diluted basis);

(c)            at any time after the consummation of a Qualified IPO, any person or “group” (within the meaning of Rule 13d-5 under the Exchange Act, but excluding any employee benefit plan of such person and its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders, acquires beneficial ownership (within the meaning of Rule 13d-5 under the Exchange Act) of Voting Stock of Holdings representing both (i) more than 35% of the aggregate ordinary voting power for the election of directors of Holdings and (ii) more than the percentage of the aggregate ordinary voting power for the election of directors of Holdings that is at the time beneficially owned (within the meaning of Rule 13d-5 under the Exchange Act), directly or indirectly, by the Permitted Holders, taken together, unless, in the case of clause (b) above or this clause (c) of this definition of “Change of Control”, the Permitted Holders have, at such time, the right or the ability by voting power, contract, or otherwise to elect or designate for election at least a majority of the board of directors (or analogous governing body) of Holding s; or

(d)            a “change of control” occurs under the ABL Loan Documents or the Second Lien Loan Documents;

provided that notwithstanding anything to the contrary in this definition or any provision of the Exchange Act, (A) if any group includes one or more Permitted Holders, the issued and outstanding Capital Stock of Holdings directly or indirectly owned by Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of this definition, (B) a Person or group shall be deemed not to beneficially own securities subject to an equity or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the securities in connection with the transactions contemplated by such agreement and (C) a Person or group will be deemed not to beneficially own the Capital Stock of another Person as a result of its ownership of Capital Stock or other securities of such other Person’s parent (or related contractual rights) unless it owns 50% or more of the Voting Stock of such Person’s parent.

“Closing Date” means December 6, 2021.

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

“Collateral” means all of the “Collateral” (or similar term) referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.

“Collateral Agent” means RBC, acting through such of its Affiliates or branches as it may designate, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent permitted by the terms hereof.

“Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreement, the Mortgages (if any), each of the mortgages, control agreements, collateral assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent pursuant to Section 6.12, Section 6.14 or Section 6.16, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

“Commitment” means a Term Commitment.

“Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a conversion of Loans from one Type to the other or (c) a continuation of Term Benchmark Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A, or otherwise in form and substance reasonably acceptable to the Administrative Agent.

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

“Company Competitor” means any Person that competes with the business of Holdings, the Borrower and their respective Subsidiaries from time to time.

“Compliance Certificate” means a certificate substantially in the form of Exhibit C or such other form as may be agreed between the Borrower and the Administrative Agent.

“Consolidated Cash Interest Expense” means, with respect to any Person on a consolidated basis for any period, Consolidated Interest Expense referred to in clause (a) of the definition thereof (less interest income of such Person and its Restricted Subsidiaries received in cash during such period) of such Person payable in cash during such period and excluding, for the avoidance of doubt, (i) any non-cash interest expense and any capitalized interest, whether paid or accrued, (ii) the amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (iii) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses (including agency costs, amendment, consent or other front end, one-off or similar non-recurring fees), (iv) any expenses resulting from discounting of indebtedness in connection with the application of recapitalization accounting or purchase accounting, (v) penalties or interest related to taxes and any other amounts of non-cash interest resulting from the effects of acquisition method accounting or pushdown accounting, (vi) the accretion or accrual of, or accrued interest on, discounted liabilities (other than Indebtedness) during such period, (vii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Contracts pursuant to FASB ASC 815 (or any similar accounting principle), (viii) any one-time cash costs associated with breakage in respect of Swap Contracts for interest rates, (ix) any payments with respect to make whole premiums, commissions or other breakage costs of any Indebtedness, (x) all non-recurring interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, all as calculated on a consolidated basis in accordance with GAAP, (xi) expensing of bridge, arrangement, structuring, commitment, fronting or other financing fees, (xii) any interest, expense or other fees or charges incurred with respect to any Excluded Indebtedness and (xiii) any lease, rental or other expense in connection with any Non-Finance Lease Obligation. For purposes of this definition, cash interest on Capitalized Lease Obligations will be deemed to accrue at the interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligations in accordance with GAAP.

“Consolidated Current Assets” means, with respect to any Person on a consolidated basis, all assets of such Person and its Restricted Subsidiaries on a consolidated basis that, in accordance with GAAP, would be classified as current assets on the balance sheet of a company conducting a business the same as or similar to that of such Person and its Restricted Subsidiaries on a consolidated basis, after deducting appropriate and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP, but excluding (i) cash, (ii) Cash Equivalents, (iii) Swap Contracts to the extent that the mark-to-market Swap Termination Value would be reflected as an asset on the consolidated balance sheet of such Person, (iv) deferred financing fees, (v) amounts related to current or deferred taxes (but excluding assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments) (so long as the items described in clauses (iv) and (v) are non-cash items) and (vi) in the event that a Qualified Receivables Financing is accounted for off balance sheet, (x) gross accounts receivable comprising part of the receivables and other related assets subject to such Qualified Receivables Financing minus (y) collection by such Person against the amounts sold pursuant to clause (x).

“Consolidated Current Liabilities” means, with respect to any Person on a consolidated basis, all liabilities in accordance with GAAP that would be classified as current liabilities on the consolidated balance sheet of such Person, but excluding (a) the current portion of Indebtedness (including the Swap Termination Value of any Swap Contracts) to the extent reflected as a liability on the consolidated balance sheet of such Person, (b) the current portion of interest, (c) accruals for current or deferred taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves or severance, (e) deferred revenue, (f) escrow account balances, (g) the current portion of pension liabilities, (h) liabilities in respect of unpaid earn-outs, (i) amounts related to derivative financial instruments and assets held for sale and (j) any letter of credit obligations, swing line loans or revolving loans under any revolving credit facility.

“Consolidated EBITDA” means, with respect to any Person on a consolidated basis for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period:

(1)            increased, in each case (other than with respect to clauses (i), (k), (l), (o), (p), (q) and (s) of this definition) to the extent deducted and not added back or excluded in calculating such Consolidated Net Income (and without duplication), by:

(a)            provision for taxes based on income, profits or capital, including federal, state, franchise, excise, property and similar taxes and foreign withholding taxes paid or accrued, including any penalties and interest with respect thereto, and state taxes in lieu of business fees (including business license fees) and payroll tax credits, income tax credits and similar credits and including an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of such Person or its Restricted Subsidiaries or any direct or indirect parent of such Person or its Restricted Subsidiaries in respect of such period (in each case, to the extent attributable to the operations of such Person and its Subsidiaries), which shall be included as though such amounts had been paid as income taxes directly by such Person or its Restricted Subsidiaries; plus

(b)            total interest expense and, to the extent not reflected in such total interest expense, any losses on Swap Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Swap Obligations or such derivative instruments, and bank and letter of credit fees, letter of guarantee and bankers’ acceptance fees and costs of surety bonds in connection with financing activities, together with items excluded from the definition of “Consolidated Interest Expense” pursuant to the definition thereof (other than clause (13) thereof); plus

(c)            all depreciation and amortization charges and expenses, including amortization or expense recorded for upfront payments related to any contract signing and signing bonus and incentive payments; plus

(d)            the amount of any minority interest expense consisting of income attributable to minority equity interests of third parties in any Restricted Subsidiary of such Person that is not a Wholly Owned Restricted Subsidiary of such Person; plus

(e)            the amount of (i) management, monitoring, consulting, transaction and advisory fees (including termination fees) and related indemnities, charges and expenses paid or accrued to or on behalf of any direct or indirect parent of the Borrower or any of the Permitted Holders, in each case, to the extent permitted by Section 6.18 and (ii) fees, expenses and indemnities paid to members of the board of directors of the Borrower or any direct or indirect parent of the Borrower; plus

(f)             earn-out obligations incurred in connection with any acquisition or other Investment and paid or accrued during the applicable period, including any mark to market adjustments; plus

(g)            all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of equity interests and all losses, charges and expenses related to payments made to holders of options or other derivative equity interests in the common equity of such Person or any direct or indirect parent of such Person in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its direct or indirect parents, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled to share in, such distribution; plus

(h)            all non-cash losses, charges and expenses, including any write-offs or write-downs, non-cash compensation expenses, non-cash translation losses, changes in reserves for earnouts and similar obligations and non-cash expenses relating to the vesting of warrants; provided that if any such non-cash loss, charge or expense represents an accrual or reserve for potential cash items in any future period, (i) such Person may determine not to add back such non-cash loss, charge or expense in the period for which Consolidated EBITDA is being calculated and (ii) to the extent such Person does decide to add back such non-cash loss, charge or expense, the cash payment in respect thereof in such future four-fiscal quarter period will be subtracted from Consolidated EBITDA for such future four-fiscal quarter period; plus

(i)             (i) all costs and expenses in connection with pre-opening and opening and closure and/or consolidation of facilities that were not already excluded in calculating such Consolidated Net Income and (ii) charges (including branch operating losses) related to any de novo facility, including any construction, pre-opening and start-up period prior to opening, until such facility has been open and operating for a period of 12 consecutive months); plus

(j)             restructuring charges (including tax restructurings), accruals or reserves and business optimization expense, including any restructuring costs and integration costs incurred in connection with the Transactions and any other acquisitions (including duplicative costs and increased costs in respect of any transition services agreement (including the Transition Arrangements), in each case resulting from the transition of the Target Business to a subsidiary or integrated business of the Borrower, and exit, separation, transition and integration charges, expenses, losses or special items associated with the separation of the Target Business from the consolidated business of the Sellers), start-up costs (including entry into new market/channels and new service offerings), new operation costs, software and other intellectual property development costs, new contract or corporate development costs, costs relating to entering or exiting a market, unused warehouse space costs, costs related to the closure, relocation, shutdown, reconfiguration, pre-opening and opening, expansion and/or consolidation of facilities and offices (including termination costs, moving costs and legal costs) and costs to relocate employees, any employee ramp-up charges or any charges related to underutilized personnel (including duplicative personnel), integration and transaction costs, retention charges, severance, contract termination costs (including costs relating to early termination of rights fee arrangements), recruiting and signing bonuses and expenses, future lease commitments, systems establishment costs, conversion costs and excess pension charges and consulting fees, expenses attributable to the implementation or undertaking of costs savings initiatives, new initiatives, cost rationalization programs, operating expense reductions, synergies and/or similar initiatives or programs (including, without limitation, in connection with any inventory optimization program, any implementation of operational and reporting systems and technology initiatives (including any expense relating to the implementation of enhanced accounting or IT functions or new system designs)), costs associated with tax projects/audits and costs consisting of professional consulting or other fees relating to any of the foregoing; plus

(k)            Pro Forma Cost Savings; provided that such Pro Forma Cost Savings added back pursuant to clause (B) of the definition thereof (excluding any such Pro Forma Cost Savings that result from mergers and other business combinations, acquisitions, investments, dispositions or other sales of assets, the discontinuance of activities or operations or other specified transactions, restructurings, cost savings initiatives, operating initiatives or operating improvements, in each case, occurring prior to the Closing Date) under this clause (k) in any Test Period, when aggregated with (X) the amount of any increase in Consolidated EBITDA for such Test Period as a result of Pro Forma Revenue Synergies (excluding any such Pro Forma Revenue Synergies that result from actions or initiatives undertaken prior to the Closing Date) added pursuant to clause (s) of the definition of Consolidated EBITDA and (Y) the amount of any increase in Consolidated EBITDA for such Test Period as a result of any “run-rate” cost savings, operating expense reductions and synergies added pursuant to clause (x) of the definition of “Pro Forma Basis” (excluding any such “run-rate” cost savings, operating expense reductions and synergies that either (A) are related to the Transactions or (B) result from, or are related to, mergers and other business combinations, acquisitions, Investments, dispositions or other sales of assets, the discontinuance of activities or operations or other specified transactions, operating improvements or purchasing improvements and other initiatives, in each case under this sub-clause (B), occurring prior to the Closing Date), shall not exceed an aggregate amount equal to 30.0% of Consolidated EBITDA of the Borrower (calculated after giving effect to all add-backs and adjustments (including all add-backs and adjustments subject to this cap)); plus

(l)             amounts included on Schedule 1.01(a), attached hereto, to the extent such amounts, or amounts of similar type and nature to those listed on Schedule 1.01(a), without duplication, continue to be applicable during such period; plus

(m)           the amount of loss or discount on sale of receivables and related assets in connection with a Receivables Financing or factoring transaction; plus

(n)            with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (a), (b) and (c) above relating to such joint venture corresponding to such Person’s and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) solely to the extent Consolidated Net Income was reduced thereby; plus

(o)            adjustments calculated in accordance with Regulation S-X; plus

(p)            adjustments (w) evidenced by, contained in, or of the type contained in, the quality of earnings report with respect to the Transactions prepared by CDS, dated August 31, 2021, (x) identified or set forth in any quality of earnings report in connection with any acquisition or other Permitted Investment conducted by financial advisors (which financial advisors are (A) nationally recognized or (B) reasonably acceptable to the Administrative Agent (it being understood that the “Big Four” accounting firms are acceptable) and retained by the Borrower, (y) identified or set forth in the Public Lender Presentation, dated October 2021, made available in connection with the initial syndication of the Initial Term Loan or (z) approved by the Administrative Agent; plus

(q)            add backs and adjustments contained in, or of the type contained in, the Financial Model (including, for the avoidance of doubt, add backs and adjustments of the same type in future periods); plus

(r)             [reserved], plus

(s)            Pro Forma Revenue Synergies; provided that such Pro Forma Revenue Synergies (excluding any such Pro Forma Revenue Synergies that result from actions or initiatives undertaken prior to the Closing Date) added pursuant to this clause (s) in any Test Period, when aggregated with (X) the amount of any increase in Consolidated EBITDA for such Test Period as a result of Pro Forma Cost Savings pursuant to clause (B) of the definition thereof (excluding any such Pro Forma Cost Savings that result from mergers and other business combinations, acquisitions, investments, dispositions or other sales of assets, the discontinuance of activities or operations or other specified transactions, restructurings, cost savings initiatives, operating initiatives or operating improvements, in each case, occurring prior to the Closing Date) added back under clause (k) of the definition of Consolidated EBITDA for such Test Period and (Y) the amount of any increase in Consolidated EBITDA for such Test Period as a result of any “run-rate” cost savings, operating expense reductions and synergies added pursuant to clause (x) of the definition of “Pro Forma Basis” (excluding any such “run-rate” cost savings, operating expense reductions and synergies that either (A) are related to the Transactions or (B) result from, or are related to, mergers and other business combinations, acquisitions, Investments, dispositions or other sales of assets, the discontinuance of activities or operations or other specified transactions, operating improvements or purchasing improvements and other initiatives, in each case under this sub-clause (B), occurring prior to the Closing Date), shall not exceed an aggregate amount equal to 30.0% of Consolidated EBITDA of the Borrower (calculated after giving effect to all add-backs and adjustments (including all add-backs and adjustments subject to this cap)); plus

(t)             the amount of any costs or expenses incurred on or prior to the Closing Date that are allocated to the Target Business (or otherwise to the Borrower and its Restricted Subsidiaries) in connection with corporate allocations made between the Borrower and its Subsidiaries, on the one hand, and the businesses of the Seller Entities (as defined in the Purchase Agreement) and their Affiliates (other than the Target Business, the Borrower and its Restricted Subsidiaries) (prior to giving effect to the Acquisition) (the “Post-Contribution Seller Business”), on the other hand, in each case, to the extent in excess of the costs or expenses incurred by the Target Business on a “carveout” basis (after giving effect to the Acquisition and separation of the Target Business from the Pre-Contribution Seller Business); plus

(u)            exit, separation, transition and stand-alone charges, expenses or losses associated with the separation of the Target Business from the consolidated business of the Seller Entities and their Affiliates (after giving effect to the Acquisition) (the “Pre-Contribution Seller Business”);

(2)            decreased (without duplication and to the extent increasing such Consolidated Net Income for such period) by (i) non-cash gains or income, excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that were deducted (and not added back) in the calculation of Consolidated EBITDA for any prior period ending after the Closing Date; provided that if any such non-cash gains or income relates to a potential cash items in any future period, (x) such Person may determine not to deduct such non-cash gain or income in the period for which Consolidated EBITDA is being calculated and (y) to the extent such Person does not decide to deduct such non-cash gain or income, the cash received in respect thereof in such future four-fiscal quarter period will be deducted from Consolidated EBITDA for such future four-fiscal quarter period; and (ii) the amount of any minority interest income consisting of a Subsidiary loss attributable to minority equity interest of third parties in any non-Wholly Owned Subsidiary (to the extent not deducted from Consolidated Net Income for such period);

(3)            increased (with respect to losses) or decreased (with respect to gains) by, without duplication, any net gains and losses relating to (i) amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including net gains and losses from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized gains or losses from related Swap Contracts (entered into in the ordinary course of business or consistent with past practice)) or (ii) any other amounts denominated in or otherwise trued-up to provide similar accounting as if it were denominated in foreign currencies; and

(4)            increased (with respect to losses) or decreased (with respect to gains) by, without duplication, any gain or loss relating to Swap Contracts;

provided that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to the foregoing clauses (1) through (4) above if any such item individually is less than $1,500,000 in any fiscal quarter.

“Consolidated First Lien Net Leverage Ratio” means, on any date of determination, with respect to the Group Parties on a consolidated basis, the ratio of (a) Consolidated Funded First Lien Indebtedness (less the Unrestricted Cash Amount) of the Group Parties on such date, calculated on a Pro Forma Basis to (b) Consolidated EBITDA of the Group Parties for the Test Period most recently then ended, calculated on a Pro Forma Basis.

“Consolidated Funded First Lien Indebtedness” means Consolidated Funded Indebtedness that is secured by a Lien on the Collateral that does not rank junior in priority or is not expressly subordinated (but, in each case, without regard to the control of remedies) to the Liens on the Collateral securing the Obligations. For the avoidance of doubt, (i) Consolidated Funded First Lien Indebtedness shall not include Capitalized Lease Obligations other than those that are secured on an equal priority basis with the Liens on the Collateral securing the Obligations and (ii) Consolidated Funded First Lien Indebtedness shall include all ABL Obligations that constitute Consolidated Funded Indebtedness.

“Consolidated Funded Indebtedness” means all third-party Indebtedness in respect of borrowed money and Capitalized Lease Obligations of a Person and its Restricted Subsidiaries on a consolidated basis, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but (x) excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any acquisition, (y) any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the entire stated principal amount thereof, without giving effect to any discounts or upfront payments and (z) excluding obligations in respect of letters of credit, bank guarantees, and guarantees on first demand, in each case, except to the extent of unreimbursed amounts thereunder). For the avoidance of doubt, it is understood that obligations (i) under Swap Contracts, Cash Management Agreements, and any Receivables Financing and (ii) owed by Unrestricted Subsidiaries, do not constitute Consolidated Funded Indebtedness.

“Consolidated Funded Secured Indebtedness” means Consolidated Funded Indebtedness that is secured by a Lien on the Collateral.

“Consolidated Interest Coverage Ratio” means, on any date of determination, with respect to the Group Parties on a consolidated basis, the ratio of (1) Consolidated EBITDA of the Group Parties for the Test Period most recently then ended, calculated on a Pro Forma Basis to (2) the Consolidated Cash Interest Expense of the Group Parties for the Test Period most recently then ended, calculated on a Pro Forma Basis.

“Consolidated Interest Expense” means, with respect to any Person on a consolidated basis for any period, without duplication, the cash interest expense (including that attributable to Capitalized Lease Obligations), net of cash interest income, with respect to Indebtedness of such Person and its Restricted Subsidiaries for such period, other than Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries (“Non-Recourse Indebtedness”), including commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net cash costs under hedging agreements (other than in connection with the early termination thereof);

excluding, in each case:

(1)            amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting),

(2)            interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Obligations or other derivative instruments, including pursuant to FASB Accounting Standards Codification Topic 815, Derivatives and Hedging,

(3)            costs associated with incurring or terminating Swap Obligations and cash costs associated with breakage in respect of hedging agreements for interest rates,

(4)            commissions, discounts, yield, make-whole premium and other fees and charges (including any interest expense) incurred in connection with any Non-Recourse Indebtedness,

(5)            “additional interest” owing pursuant to a registration rights agreement with respect to any securities,

(6)            any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, including any Indebtedness issued in connection with the Transactions,

(7)            penalties and interest relating to Taxes,

(8)            accretion or accrual of discounted liabilities not constituting Indebtedness,

(9)            interest expense attributable to a Parent Holdings Company resulting from push-down accounting,

(10)          any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting,

(11)          any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto in connection with the Transactions, any acquisition or Investment,

(12)          annual agency fees paid to any administrative agents, collateral agents and trustees with respect to any secured or unsecured loans, debt facilities, debentures, bonds, commercial paper facilities, revolving credit facilities or other forms of Indebtedness (including any security or collateral trust arrangements related thereto),

(13)          any interest expense or other fees or charges incurred with respect to any Escrowed Obligations (for the avoidance of doubt, so long as such Escrowed Obligations are held in Escrow), and

(14)          any lease, rental or other expense in connection with a Non-Finance Lease.

For purposes of this definition, interest on a Capitalized Lease Obligation will be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

“Consolidated Net Income” means, with respect to any Person on a consolidated basis for any period, the aggregate of the net income (or loss) of such Person and its Restricted Subsidiaries for such period, calculated on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that (without duplication):

(a)            all net after-tax extraordinary, special, nonrecurring, infrequent, exceptional or unusual (as determined by the Borrower in good faith) gains, losses, income, expenses and charges, and in any event including, without limitation, all restructuring, severance, relocation, retention and completion bonuses or payments, consolidation, integration or other similar charges and expenses, contract termination costs, system establishment charges, conversion costs, start-up or closure or transition costs, expenses related to any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, fees, expenses or charges relating to curtailments, settlements or modifications to pension and post-retirement employee benefit plans, expenses associated with strategic initiatives, office and facilities shutdown and opening costs, and any fees, expenses, charges or change of control payments related to the Transactions or any acquisition or Investment (including any transition-related expenses (including retention or transaction-related bonuses or payments) incurred before, on or after the Closing Date), will be excluded;

(b)            all (i) losses, charges and expenses related to the Transactions, (ii) transaction fees, accruals, costs and expenses (including rationalization, legal, tax, structuring and other costs and expenses) incurred in connection with the consummation of any equity issuances, dividends, investments, acquisitions, dispositions, recapitalizations, mergers, consolidations, amalgamations, option buyouts, exchange of equity interest, the early extinguishment of debt, hedging agreements or other derivative instruments, refinancing transactions, and the Incurrence, exchange, modification or repayment of Indebtedness permitted to be Incurred under this Agreement (including any Refinancing Indebtedness in respect thereof), the ABL Credit Agreement, the Second Lien Credit Agreement or any amendments, waivers or other modifications under the agreements relating to such Indebtedness or similar transactions, in each case whether or not such transaction was successfully completed, and (iii) without duplication of any of the foregoing, non-operating or non-recurring professional fees, costs and expenses for such period will be excluded;

(c)            all net after-tax income, loss, expense or charge from abandoned, closed or discontinued operations and any net after-tax gain or loss on the disposal of abandoned, closed or discontinued operations (and all related expenses) (but if such operations are classified as abandoned, closed or discontinued due to the fact that they are being held for sale or are subject to an agreement to dispose, abandon, divest or terminate such operations, only when and to the extent such operations are actually disposed, abandoned, divested or terminated) will be excluded;

(d)            all net after-tax gain, loss, expense or charge attributable to business dispositions and asset dispositions, including the sale or other disposition of any Equity Interests of any Person, other than in the ordinary course of business (as determined in good faith by such Person), will be excluded;

(e)            all net after-tax income, loss, expense or charge attributable to the early extinguishment or cancellation of Indebtedness, Swap Contracts or other derivative instruments (including deferred financing costs written off and premiums paid) will be excluded;

(f)            all non-cash gains, losses, expenses or charges attributable to the movement in the mark-to-market valuation of Indebtedness, Swap Contracts or other derivative instruments will be excluded;

(g)            any non-cash or unrealized currency translation gains and losses related to changes in currency exchange rates (including re-measurements of Indebtedness and any net loss or gain resulting from Swap Contracts for currency exchange risk), will be excluded;

(h)           (i) the net income for such period of any Person that is not a Restricted Subsidiary of the referent Person or that is accounted for by the equity method of accounting, will be included only to the extent of the amount of dividends or distributions to the referent Person or a Restricted Subsidiary thereof in respect of such period; and (ii) the net income for such period will include any dividends or distributions received from any such Person during such period in excess of the amounts included in subclause (i) above;

(i)             the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies will be excluded;

(j)             the effects of adjustments (including the effects of such adjustments pushed down to the referent Person and its Restricted Subsidiaries) (including in the inventory, property and equipment, rights, fee arrangements, software, goodwill, intangible assets, in-process research and development, deferred revenue, advanced billings, leases and debt line items thereof) resulting from the application of purchase accounting, fair value accounting or recapitalization accounting in relation to the Transactions or any acquisition consummated before or after the Closing Date, and the amortization, write-down or write-off of any amounts thereof, net of taxes, will be excluded;

(k)            all non-cash impairment charges and asset write-ups, write-downs and write-offs, in each case pursuant to GAAP, and the amortization of intangibles arising from the application of GAAP will be excluded;

(l)             all non-cash expenses realized in connection with or resulting from equity or equity-linked compensation plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation or similar rights, stock options and other equity-based compensation, restricted stock, preferred stock or other similar rights will be excluded;

(m)           any costs or expenses incurred in connection with the payment of dividend equivalent rights to option holders pursuant to any management equity plan, stock option plan or any other management or employee benefit plan or agreement or post-employment benefit plan or agreement will be excluded;

(n)            accruals and reserves for liabilities or expenses that are established or adjusted as a result of (i) the Transactions within 12 months after the Closing Date or (ii) any permitted acquisition within 12 months after the date of such acquisition will be excluded;

(o)            all amortization and write-offs of deferred financing fees, debt issuance costs, commissions, fees and expenses, costs of surety bonds, charges owed with respect to letters of credit, bankers’ acceptances or similar facilities, and expensing of any bridge, commitment or other financing fees (including in connection with a transaction undertaken but not completed), will be excluded;

(p)            all discounts, commissions, fees and other charges (including interest expense) associated with any Receivables Financing will be excluded;

(q)            the effects of any revaluation of inventory (including any impact of changes of inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments will be excluded;

(r)             expenses and lost profits with respect to liability or casualty events or business interruption will be excluded to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer, but only to the extent that such amount (i) has not been denied by the applicable carrier in writing and (ii) is in fact reimbursed within 365 days of the date on which such liability was discovered or such casualty event or business interruption occurred (with a deduction for any amounts so added back that are not reimbursed within such 365-day period); provided that any proceeds of such reimbursement when received will be excluded from the calculation of Consolidated Net Income to the extent the expense or lost profit reimbursed was previously excluded pursuant to this clause (r);

(s)            the amount of any fee, cost, charge, expense or reserve to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance will be excluded so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed, but only to the extent that such amount is in fact reimbursed within 365 days of the date on which the underlying event giving rise to such indemnification or reimbursement was discovered (with a deduction for any amounts so added back that are not reimbursed within such 365-day period); provided that any proceeds of such reimbursement when received will be excluded from the calculation of Consolidated Net Income to the extent the fee, cost, charge or expense reimbursed was previously excluded pursuant to this clause (s);

(t)             non-cash charges or income relating to increases or decreases of deferred tax asset valuation allowances will be excluded;

(u)            cash dividends or returns of capital from Investments received during such period, to the extent not otherwise included in Consolidated Net Income for that period or any prior period subsequent to the Closing Date will be included;

(v)            solely for the purpose of determining the amount available for Restricted Payments under clause (c) of the first paragraph of Section 7.05, and without duplication of provisions under clause (c) of the first paragraph of Section 7.05 with respect to returns on Investments, the net income (or loss) for such period of any Restricted Subsidiary (other than a Guarantor) will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to such Person or any of its Restricted Subsidiaries in respect of such period, to the extent not already included therein (subject, in the case of a dividend to another Restricted Subsidiary (other than a Guarantor), to the limitation contained in this clause);

(w)            any Public Company Costs will be excluded;

(x)             any (a) severance or relocation costs or expenses, (b) one-time non-cash compensation charges, (c) the costs and expenses related to employment of terminated employees, or (d) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights of officers, directors and employees, in each case of such Person or any of its Restricted Subsidiaries, shall be excluded;

(y)             any non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt, as the case may be, before the Latest Maturity Date of any then outstanding Term Loan Tranche, shall be excluded; and

(z)             losses, expenses or charges arising from any litigation, legal settlements, fines, judgments or orders and any accruals or reserves in respect thereof will be excluded;

provided that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to clauses (a) through (z) above if any such item individually is less than $1,500,000 in any fiscal quarter.

For the purpose of Section 7.05 only, there shall be excluded from Consolidated Net Income any income arising from the sale or other disposition of Restricted Investments, from repurchases or redemptions of Restricted Investments, from repayments of loans or advances which constituted Restricted Investments or from any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries, in each case to the extent such amounts increase the amount of Restricted Payments permitted under clause (c)(v) or (c)(vi) of the first paragraph of Section 7.05.

“Consolidated Net Tangible Assets” means the aggregate amount of assets (including deferred tax assets (without reducing such deferred tax assets by deferred tax liabilities), and less applicable reserves and other properly deductible items) after deducting therefrom all goodwill, trade names, trademarks, patents, unamortized debt discount and expense, investments and other like intangibles, all as set forth in the most recent consolidated balance sheet of the Group Parties, calculated on a Pro Forma Basis.

“Consolidated Secured Net Leverage Ratio” means, on any date of determination, with respect to the Group Parties on a consolidated basis, the ratio of (a) Consolidated Funded Secured Indebtedness (less the Unrestricted Cash Amount) of the Group Parties on such date, calculated on a Pro Forma Basis to (b) Consolidated EBITDA of the Group Parties for the Test Period most recently then ended, calculated on a Pro Forma Basis.

“Consolidated Total Net Leverage Ratio” means, on any date of determination, with respect to the Group Parties on a consolidated basis, the ratio of (a) Consolidated Funded Indebtedness (less the Unrestricted Cash Amount) of the Group Parties on such date, calculated on a Pro Forma Basis to (b) Consolidated EBITDA of the Group Parties for the Test Period most recently then ended, calculated on a Pro Forma Basis.

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:

(1)            to purchase any such primary obligation or any property constituting direct or indirect security therefor,

(2)            to advance or supply funds:

(a)            for the purchase or payment of any such primary obligation; or

(b)            to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or

(3)            to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

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

“Contribution Indebtedness” means Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount not greater than 100% of the aggregate amount of contributions (other than Excluded Contributions, any amounts applied to make Restricted Payments permitted under clause (c)(ii) or (c)(iii) of the first paragraph of Section 7.05 and any amounts applied pursuant to clause (14) of the definition of “Permitted Investments”) made to the capital of the Borrower (other than any such contributions applied to cure any default under any “equity cure” provisions with respect to any financial covenant under the ABL Credit Agreement) or any Restricted Subsidiary (other than, in the case of such Restricted Subsidiary, contributions by the Borrower or any other Restricted Subsidiary to its capital) after the Closing Date.

“Controlled Foreign Subsidiary” means any Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

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

“Covered Party” has the meaning specified in Section 10.24(a).

“Credit Agreement” means (i) this Agreement and (ii) whether or not this Agreement remains outstanding, if designated by the Borrower to be included in the definition of “Credit Agreement,” one or more (A) debt facilities, indentures or commercial paper facilities providing for revolving credit loans, term loans, notes, debentures, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, notes, mortgages, guarantees, collateral documents, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrower(s) or issuer(s) and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, increased (provided that such increase in borrowings is permitted under this Agreement), replaced or refunded in whole or in part from time to time and whether by the same or any other agent, lender or investor or group of lenders or investors.

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent, in consultation with the Borrower, may establish another convention in its reasonable discretion.

“Debt Fund Affiliate” means any Affiliate of the Sponsor (other than Holdings and its Subsidiaries) that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course. Notwithstanding the foregoing, in no event shall a Natural Person be a Debt Fund Affiliate.

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

“Declined Amounts” has the meaning specified in Section 2.05(c).

“Declining Lender” has the meaning specified in Section 2.05(c).

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

“Default Rate” means an interest rate equal to (after as well as before judgment), (a) with respect to any overdue principal or interest for any Loan, the applicable interest rate for such Loan plus 2.00% per annum (provided that with respect to Term Benchmark Rate Loans, the determination of the applicable interest rate is subject to Section 2.02(d) to the extent that Term Benchmark Rate Loans may not be converted to, or continued as, Term Benchmark Rate Loans, pursuant thereto) and (b) with respect to any other overdue amount, the interest rate applicable to Base Rate Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.

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

“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans within three (3) Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder, (c) has failed, within three (3) Business Days after reasonable request by the Administrative Agent or the Borrower, to confirm in a manner satisfactory to the Administrative Agent and the Borrower that it will comply with its funding obligations or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-in Action; provided that no Lender shall be a Defaulting Lender solely by virtue of (x) the ownership or acquisition by a Governmental Authority of any Equity Interest in that Lender or any direct or indirect parent company thereof so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender, or (y) the occurrence of any of the events described in clause (d)(i), (d)(ii) or (d)(iii) of this definition which in each case has been dismissed or terminated prior to the date of this Agreement. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

“Designated Funding Commitments” means any commitment to make loans or extend credit on a revolving basis (including commitments under a revolving credit facility) or delayed draw basis to Borrower or any Restricted Subsidiary by any Person other than Borrower or any Restricted Subsidiary, or any commitment by any Person other than Borrower or any Restricted Subsidiary to purchase Disqualified Stock or Preferred Stock issued by Borrower or any Restricted Subsidiary on a delayed basis, in each case, that have been specifically designated as a Designated Funding Commitment pursuant to a certificate executed by an Responsible Officer of the Borrower and delivered to the Administrative Agent, in each case, until such time as the Borrower delivers a certificate executed by a Responsible Officer of the Borrower specifically designating such Designated Funding Commitment as no longer constituting a Designated Funding Commitment for purposes of this Agreement.

“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by the Borrower or any of the Restricted Subsidiaries in connection with a Disposition made pursuant to Section 7.04(2)(c) that is designated as “Designated Non-Cash Consideration” pursuant to a certificate of a Responsible Officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.

“Designated Preferred Stock” means Preferred Stock of Holdings or any direct or indirect parent of Holdings, as applicable (other than Excluded Equity), that is issued after the Closing Date for cash and is so designated as Designated Preferred Stock, pursuant to an officer’s certificate of the Borrower, on the issuance date thereof, the cash proceeds of which are contributed to the capital of the Borrower and do not increase the amount available to make Restricted Payments permitted under clause (c)(ii) of the first paragraph of Section 7.05.

“Discount Range” has the meaning specified in the definition of “Dutch Auction.”

“Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Directors of the Borrower, Holdings or any Parent Holding Company having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors of the Borrower, Holdings or any Parent Holding Company shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of Holdings or any options, warrants or other rights in respect of such Capital Stock.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any issuance of Capital Stock by a Restricted Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided, however, that “Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its Capital Stock to another Person.

“Disqualified Institution” means (a) each person identified as a “Disqualified Institution” on a list delivered to the Arrangers by the Borrower (or representatives thereof) prior to September 8, 2021 (as such list may be supplemented by the Borrower after the Closing Date in a manner reasonably acceptable to the Administrative Agent), (b) any Company Competitor identified on a list delivered to the Administrative Agent by the Borrower from time to time and (c) as to any entity referenced in each of clauses (a) and (b) above (the “Primary Disqualified Institution”), any of such Primary Disqualified Institution’s Affiliates readily identifiable as such by name, but excluding any Affiliate of any Company Competitor that is primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which the Primary Disqualified Institution does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity; provided, that any designation of a Disqualified Institution shall not apply retroactively to disqualify any Person that has previously acquired an assignment or participation of the Term Loans. Notwithstanding the foregoing, any list of Disqualified Institutions shall only be required to be made available to any Lender, on a confidential basis only, upon written request by such Lender. For the purposes of clause (b) of this definition, such list shall be made available to the Administrative Agent pursuant to Section 10.02.

“Disqualified Stock” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is puttable, redeemable or exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:

(1)            matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control, Qualified IPO or asset sale; provided that any purchase requirement triggered thereby may not become operative until compliance with, in the case of an asset sale, the provisions of Section 7.04 or, in the case of a change of control, the repayment in full of the Obligations),

(2)            is convertible or exchangeable for Indebtedness or Disqualified Stock, or

(3)            is redeemable at the option of the holder thereof, in whole or in part,

in each case prior to the date that is 91 days after the Latest Maturity Date of the Term Loans at the time of issuance of the respective Disqualified Stock; provided that only the portion of Equity Interests that so mature or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided further that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

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

“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent date of determination) for the purchase of Dollars with such currency.

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

“Dutch Auction” means an auction (an “Auction”) conducted by Holdings or one of its Subsidiaries in order to purchase any Term Loans under a Tranche (the “Purchase”) in accordance with the following procedures or such other procedures as may be agreed to between the Administrative Agent and the Borrower:

(a)            Notice Procedures. In connection with any Auction, the Borrower shall provide notification to the Administrative Agent (for distribution to the Appropriate Lenders) of the Term Loans under such Tranche that will be the subject of the Auction (an “Auction Notice”). Each Auction Notice shall be in a form reasonably acceptable to the Administrative Agent and shall specify (i) the total cash value of the bid, in a minimum amount of $10,000,000 with minimum increments of $2,000,000 in excess thereof (the “Auction Amount”) and (ii) the discounts to par, which shall be expressed as a range of percentages of the par principal amount of the Term Loans under such Tranche at issue (the “Discount Range”), representing the range of purchase prices that could be paid in the Auction.

(b)            Reply Procedures. In connection with any Auction, each applicable Lender may, in its sole discretion, participate in such Auction by providing the Administrative Agent with a notice of participation (the “Return Bid”) which shall be in a form reasonably acceptable to the Administrative Agent and shall specify (i) a discount to par that must be expressed as a price (the “Reply Discount”), which must be within the Discount Range, and (ii) a principal amount of the applicable Loans such Lender is willing to sell, which must be in increments of $2,000,000 or in an amount equal to such Lender’s entire remaining amount of the applicable Loans (the “Reply Amount”). Lenders may only submit one Return Bid per Auction. In addition to the Return Bid, each Lender wishing to participate in such Auction must execute and deliver, to be held in escrow by the Administrative Agent, an assignment and acceptance agreement in a form reasonably acceptable to the Administrative Agent.

(c)            Acceptance Procedures. Based on the Reply Discounts and Reply Amounts received by the Administrative Agent, the Administrative Agent, in consultation with the Borrower, will determine the applicable discount (the “Applicable Discount”) for the Auction, which shall be the lowest Reply Discount for which Holdings or its Subsidiary, as applicable, can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow Holdings or its Subsidiary, as applicable, to complete a purchase of the entire Auction Amount (any such Auction, a “Failed Auction”), Holdings or such Subsidiary shall either, at its election, (i) withdraw the Auction or (ii) complete the Auction at an Applicable Discount equal to the highest Reply Discount. Holdings or its Subsidiary, as applicable, shall purchase the applicable Loans (or the respective portions thereof) from each applicable Lender with a Reply Discount that is equal to or greater than the Applicable Discount (“Qualifying Bids”) at the Applicable Discount; provided that if the aggregate proceeds required to purchase all applicable Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, Holdings or its Subsidiary, as applicable, shall purchase such Loans at the Applicable Discount ratably based on the principal amounts of such Qualifying Bids (subject to adjustment for rounding as specified by the Administrative Agent). Each participating Lender will receive notice of a Qualifying Bid as soon as reasonably practicable but in no case later than five (5) Business Days from the date the Return Bid was due.

(d)            Additional Procedures. Once initiated by an Auction Notice, Holdings or any of its Subsidiaries, as applicable, may not withdraw an Auction other than a Failed Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender will be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Discount. The Purchase shall be consummated pursuant to and in accordance with Section 10.07 and, to the extent not otherwise provided herein, shall otherwise be consummated pursuant to procedures (including as to timing, rounding and minimum amounts, Interest Periods, and other notices by Holdings or such Subsidiary, as applicable) reasonably acceptable to the Administrative Agent and the Borrower.

“Early Opt-in Effective Date” shall mean, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders.

“Early Opt-in Election” means (i) with respect to the Initial Term Loans, the delivery of a notification by the Administrative Agent (or at the request of the Borrower to the Administrative Agent to notify) to each of the other parties hereto that (x) at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (y) the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBOR; provided that upon such joint election to trigger a fallback from LIBOR, the Administrative Agent shall deliver a written notice of such election to the Lenders and (ii) with respect to the 2022 Incremental Term Loans, the occurrence of both (a) (i) a determination by the Administrative Agent or (ii) a notification by the Required 2022 Incremental Term Lenders to the Administrative Agent (with a copy to the Borrower) that the Required 2022 Incremental Term Lenders have determined, that U.S. dollar-denominated syndicated credit facilities are being executed or amended, as applicable, at such time, to incorporate or adopt a new benchmark interest rate to replace the then-current Benchmark with respect to the 2022 Incremental Term Loans, and (b) the joint election by the Administrative Agent and the Borrower to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the 2022 Incremental Term Lenders.

“ECF Deductions” has the meaning specified in Section 2.05(b)(i).

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

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

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

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.07(b) (subject to receipt of such consents, if any, as may be required for the assignment of the applicable Loan and/or Commitments to such Person under Section 10.07(b)(iii)).

“EMU” means the economic and monetary union as contemplated in the EU Treaty.

“EMU Legislation” means the legislative measures of the EMU for the introduction of, changeover to, or operation of the Euro in one or more member states.

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

“Environmental Laws” means any and all applicable federal, state, local and foreign statutes, laws, including common law, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses or governmental restrictions relating to pollution, the protection of the Environment, human health (to the extent relating to exposure to Hazardous Materials) or safety, including those related to Hazardous Materials, air emissions and discharges to public pollution control systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, monitoring or oversight by a Governmental Authority, fines, penalties or indemnities) of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) human exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other binding consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

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

“Equity Contribution” has the meaning specified in the definition of “Transactions”.

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any Capital Stock that arises only by reason of the happening of a contingency or any debt security that is convertible into, or exchangeable for, Capital Stock).

“Equity Issuance” means any issuance by any Person to any other Person of (a) its Equity Interests for cash, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests.

“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder, each as amended or modified from time to time.

“ERISA Affiliate” means any Person who together with any Loan Party is treated as a single employer within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code) or Section 4001 of ERISA.

“ERISA Event” means (a) a Reportable Event with respect to a Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA); (d) the filing of a notice of intent to terminate or the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, respectively, (e) the institution by the PBGC of proceedings to terminate a Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; (g) the determination that any Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; (h) the determination that any Multiemployer Plan is considered a plan in “endangered,” “critical,” or “critical and declining” status within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (j) the conditions for the imposition of a Lien under Section 430(k) of the Code or Section 303(k) of ERISA shall have been met with respect to any Plan or (k) any other event or condition with respect to a Plan or Multiemployer Plan that could result in liability of the Borrower or any Subsidiary.

“Erroneous Payment” has the meaning assigned to it in Section 9.18(a).

“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.18(d)(i).

“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 9.18(d)(i).

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.18(d)(i).

“Escrow” has the meaning specified in the definition of “Indebtedness”.

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

“EU Treaty” means the Treaty on European Union.

“Euro” and “€” means the single currency of the Participating Member States introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.

“Eurodollar Rate” means, in the case of any Eurodollar Rate Loan for any Interest Period:

(i)            the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters screen (or any successor thereto) which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over administration of that rate) (“LIBOR”) (such page currently being the LIBOR01 page) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time), two (2) Business Days prior to the first day of such Interest Period;

(ii)           in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the Screen Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period; and

(iii)          if Screen Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the Screen Rate shall be equal to the applicable Interpolated Rate.

“Eurodollar Rate Borrowing” means a Borrowing comprising Eurodollar Rate Loans.

“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the applicable Adjusted Eurodollar Rate.

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

“Excess Cash Flow” means, with respect to any Excess Cash Flow Period, an amount, not less than zero, equal to:

(a)            Consolidated Net Income of the Group Parties for such Excess Cash Flow Period, plus, without duplication:

(i)            all non-cash charges, losses and expenses (including, without limitation, taxes) of such Person or any of its Restricted Subsidiaries that were deducted in calculating such Consolidated Net Income (provided, in each case, that if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period); plus

(ii)           an amount equal to the sum of (A) the decrease in Working Capital of such Person during such period (measured as the excess, if any, of Working Capital at the beginning of such Excess Cash Flow Period minus Working Capital at the end of such Excess Cash Flow Period), if any, plus (B) the decrease in long-term accounts receivable of such Person and its Restricted Subsidiaries, if any (other than any such decreases contemplated by clauses (A) and (B) of this clause (ii) that are directly attributable to dispositions of a Person or business unit by Holdings and its Restricted Subsidiaries during such period); minus

(b)            the sum, without duplication (in each case, for the Borrower and the Restricted Subsidiaries on a consolidated basis), of:

(i)            to the extent not deducted as an ECF Deduction, repayments, prepayments, repurchases, redemptions and other cash payments made with respect to the principal of any Indebtedness (including principal representing capitalized interest) or the principal component of any Capitalized Lease Obligations of such Person or any of its Restricted Subsidiaries during such period (excluding voluntary and mandatory prepayments of Term Loans, but including all premium, make-whole or penalty payments paid in cash (to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income and such payments are not otherwise prohibited under this Agreement) and all repayments with respect to revolving Indebtedness to the extent accompanied by a corresponding reduction in commitments); provided that, with respect to any mandatory prepayment of Indebtedness (other than, for the avoidance of doubt, Term Loans), such prepayments shall only be deducted pursuant to this clause (i) to the extent not deducted in the computation of net proceeds in respect of the asset disposition or condemnation giving rise thereto; plus

(ii)           (A) cash payments made by such Person or any of its Restricted Subsidiaries during such period in respect of Taxes (including distributions to any Parent Holding Company in respect of Taxes), to the extent such payments exceed the amount of tax expense deducted in calculating such Consolidated Net Income, and (B) cash payments that such Person or any of its Restricted Subsidiaries will be required to make in respect of Taxes (including distributions to any Parent Holding Company in respect of Taxes) within 180 days after the end of such period; provided that amounts described in this clause (B) will not reduce Excess Cash Flow in subsequent periods, and, to the extent not paid, will increase Excess Cash Flow in the subsequent period; plus

(iii)          all cash payments and other cash expenditures made by such Person or any of its Restricted Subsidiaries during such period (A) with respect to items that were excluded in the calculation of such Consolidated Net Income pursuant to clauses (a) through (y) of the definition of “Consolidated Net Income” or (B) that were not expensed during such period in accordance with GAAP; plus

(iv)          all non-cash credits included in calculating such Consolidated Net Income (including insured or indemnified losses referred to in clauses (r) and (s) of the definition of “Consolidated Net Income” to the extent not reimbursed in cash during such period); plus

(v)           an amount equal to the sum of (A) the increase in the Working Capital of such Person during such period (measured as the excess, if any, of Working Capital at the end of such Excess Cash Flow Period minus Working Capital at the beginning of such Excess Cash Flow Period), if any, plus (B) the increase in long-term accounts receivable of such Person and its Restricted Subsidiaries, if any; plus

(vi)          cash payments made in satisfaction of noncurrent liabilities (excluding payments of Indebtedness for borrowed money) not made directly or indirectly using proceeds, payments or any other amounts available from events or circumstances that were not included in determining Consolidated Net Income during such period; plus

(vii)         to the extent not deducted in arriving at Consolidated Net Income, cash fees, expenses and purchase price adjustments incurred in connection with the Transactions, any acquisition consummated before or after the Closing Date or any Permitted Investment, Equity Issuance or debt issuance (whether or not consummated) and any Restricted Payment made to pay any of the foregoing incurred by Holdings; plus

(viii)        the amount of cash payments made in respect of pensions and other postemployment benefits in such period to the extent not deducted in arriving at such Consolidated Net Income; plus

(ix)          cash payments made by such Person or any of its Restricted Subsidiaries during such period in respect of items for which an accrual or reserve was established in a prior period, in each case to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income; plus

(x)            to the extent not deducted in arriving at Consolidated Net Income, cash payments (including reimbursement of out-of-pocket expenses or payments under any indemnity obligations) made by such Person during such period pursuant to the Management Agreement to the extent permitted hereunder.

“Excess Cash Flow Period” means any fiscal year of Holdings, commencing with the fiscal year ending on December 31, 2022.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

“Exchange Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent), after consultation with the Administrative Agent, to act as an arranger in connection with any Permitted Debt Exchange pursuant to Section 2.19; provided that the Borrower shall not designate the Administrative Agent as the Exchange Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Exchange Agent); provided further that neither the Borrower nor any of its Affiliates may act as the Exchange Agent.

“Excluded Contributions” means the net cash proceeds and Cash Equivalents, or the Fair Market Value of other assets, received by the Borrower after the Closing Date from:

(1)            contributions in the form of Equity Interests which are not Excluded Equity, and

(2)            the sale of Capital Stock (other than Excluded Equity) of the Borrower,

in each case designated as Excluded Contributions pursuant to an officer’s certificate of a Responsible Officer, or that has been utilized to make a Restricted Payment pursuant to clause (2) of the second paragraph of Section 7.05. Excluded Contributions will be excluded from the calculation set forth in clause (c) of the first paragraph of Section 7.05.

“Excluded Equity” means (i) Disqualified Stock, (ii) any Equity Interests issued or sold to a Restricted Subsidiary or any employee stock ownership plan or trust established by Holdings or any of its Subsidiaries or a direct or indirect parent of Holdings (to the extent such employee stock ownership plan or trust has been funded by Holdings or any Subsidiary or a direct or indirect parent of Holdings) and (iii) any Equity Interest that has already been used or designated (x) as (or the proceeds of which have been used or designated as) Designated Preferred Stock, an Excluded Contribution or Refunding Capital Stock, (y) to Incur Contribution Indebtedness or (z) to increase the amount available under clause (5)(a) of the second paragraph under Section 7.05 or clause (14) of the definition of “Permitted Investments” or is proceeds of Indebtedness referred to in clause (14)(b) of the second paragraph in Section 7.05.

“Excluded Indebtedness” has the meaning specified in the definition of “Indebtedness.”

“Excluded Information” has the meaning specified in Section 10.07(j).

“Excluded Property” means, with respect to any Loan Party, (a) (i) any fee-owned real property not constituting Material Real Property, any real property leasehold or subleasehold interests and (ii) any fee-owned real property (whether already mortgaged, or required or intended to be mortgaged, at any time of determination) located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” or such property or mortgage thereon would be subject to any flood insurance due diligence, flood insurance requirements or compliance with any flood insurance laws (it being agreed that (A) if it is subsequently determined that any such real property subject to, or otherwise required or intended to be subject to, a mortgage is or might be located in a flood hazard area, such property shall be deemed to constitute Excluded Property until a determination is made that such property is not located in a flood hazard area and does not require flood insurance, and (B) if there is an existing mortgage on such property, such mortgage shall be released if located in a special flood hazard area and would require flood insurance or if it cannot determined whether such fee owned real property is located in a special flood hazard area or would require flood insurance if the time or information necessary to make such determination would (as determined by the Borrower in good faith) delay or impair the intended date of funding any Loan or effectiveness of any amendment or supplement under this Agreement), (b) any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be perfected by filing an “all assets” UCC-1 financing statement and without the requirement to list any VIN, serial or similar number), (c) assets to the extent granting a security interest in such assets could reasonably be expected to result in material adverse tax consequences to the Borrower, Holdings or any of the Restricted Subsidiaries or Parent Holding Companies (other than the grant of security by Holdings or any Restricted Subsidiary of the Borrower that is a Loan Party as of the Closing Date), or material adverse regulatory consequences, in each case, as determined by the Borrower in good faith, (d) pledges of, and security interests in, certain assets, in favor of the Collateral Agent which are prohibited by applicable Law or would require obtaining the consent of any governmental authority; provided that (i) any such limitation described in this clause (d) on the security interests granted shall only apply to the extent that any such prohibition is not rendered ineffective pursuant to the Uniform Commercial Code of any applicable jurisdiction and shall not apply to any proceeds or receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibition and (ii) in the event of the termination or elimination of any such prohibition contained in any applicable Law or to the extent such consent is obtained, a security interest in such assets shall be automatically and simultaneously granted under the applicable Collateral Documents and such asset shall be included as Collateral, (e) subject to the FACA Requirement, any governmental or regulatory licenses or state or local franchises, charters, consent, permits and authorizations, to the extent security interests in favor of the Collateral Agent in such licenses, franchises, charters, consents, permits or authorizations are prohibited or restricted thereby or by applicable law, in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibition; provided (i) any such limitation described in this clause (e) on the security interests granted shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the Uniform Commercial Code of any applicable jurisdiction or any other applicable Law or principles of equity and shall not apply to any proceeds or receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibition and that in the event of the termination or elimination of any such prohibition or restriction contained in any applicable license, franchise, charter or authorization, or under applicable law, a security interest in such licenses, franchises, charters or authorizations shall be automatically and simultaneously granted under the applicable Collateral Documents and such licenses, franchises, charters, permits, consents or authorizations shall be included as Collateral, (f) Equity Interests in (A) any Person (other than the Borrower and Wholly Owned Restricted Subsidiaries of Holdings that are not Immaterial Subsidiaries), (B) any not-for-profit Subsidiary, (C) any Captive Insurance Subsidiary, (D) any Receivables Subsidiary or special purpose securitization vehicle (or similar entity), (E) any broker-dealer Subsidiary, (F) Subsidiaries that are special purpose entities (the entities in subclauses (B), (C), (D), (E) and (F) of this clause (f), each, a “Limited Purpose Subsidiary”), (G) any Unrestricted Subsidiary, (H) any Person which is acquired after the date hereof to the extent and for so long as such Equity Interests are pledged in respect of Acquired Indebtedness and such pledge constitutes a Permitted Lien and does not permit the grant of a security interest on such Equity Interests and (I) any Person that is an Excluded Subsidiary pursuant to clause (e) of the definition of “Excluded Subsidiary”, (g) subject to the FACA Requirement, any general intangible and any lease, license, permit or other agreement or any property or right subject thereto (including pursuant to a purchase money security interest, Capitalized Lease Obligation or similar arrangement, in each case permitted to be incurred under this Agreement or, in the case of after-acquired property, pre-existing secured debt not incurred in anticipation of the acquisition by the applicable Loan Party of such property), to the extent that a grant of a security interest therein would violate or invalidate such item or create a right of termination in favor of any other party thereto (other than a Loan Party), in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibition, (h) “intent-to-use” trademark applications prior to the filing of a “Statement of Use” or “Amendment to Allege Use” filing, (i) receivables and related assets (or interests therein) (A) sold to any Receivables Subsidiary or (B) otherwise pledged, factored, transferred or sold in connection with any Receivables Financing, (j) Equity Interests in excess of 65% of the Capital Stock of any first-tier Subsidiary that is a (A) a Controlled Foreign Subsidiary or (B) a FSHCO, (k) trust accounts holding funds for third parties, payroll accounts and escrow accounts holding funds for third parties, in each case, as long as each such account is used solely for such purpose, (l) cash to secure letter of credit reimbursement obligations and such pledge constitutes a Permitted Lien, (m) Margin Stock, (n) leasehold or subleasehold interests to the extent a security interest in respect thereof cannot be perfected by filing an “all-assets” UCC-1 financing statement, (o) letter of credit rights, except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security interest therein is accomplished by the filing of a UCC-1 financing statement, (p) all commercial tort claims that are not expected to result in a judgment or settlement payment in excess of $10,000,000 (as determined by the Borrower in good faith), (q) from and after the date of the termination and repayment in full of the ABL Facility and so long as no other similar facility is in effect with a first priority lien on the ABL Priority Collateral, cash and Cash Equivalents (other than cash and Cash Equivalents representing identifiable proceeds of other “Collateral” a security interest in which is perfected through the filing of a UCC-1 financing statement or automatically without filing), and any deposit, commodity or securities account (including any securities entitlement and any related asset) (in each case, except to the extent a security interest therein can be perfected through the filing of a UCC-1 financing statement or automatically without a filing), (s) any assets or property located or titled in any jurisdiction outside the U.S. and held by any Loan Party, to the extent a security interest in respect thereof cannot be perfected by filing an “all-assets” UCC-1 financing statement or the delivery of certificates or instruments otherwise required pursuant to the terms of the Loan Documents or automatically without a filing (provided that this clause (s) shall not apply to (x) the assets of any Loan Party that is a Foreign Subsidiary to the extent such assets or property are located in jurisdictions outside the U.S. that are agreed between the Borrower and the Administrative Agent, and (y) the Equity Interests of any Foreign Subsidiary that is a Guarantor); provided that Excluded Property shall not include any assets of any Loan Party which secure (or purport to secure) the ABL Obligations. Other assets shall be deemed to be “Excluded Property” if the Borrower determines in good faith that the burden or cost of obtaining or perfecting a security interest in such assets (including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary)) outweighs the benefit to the Lenders of the security afforded thereby. Notwithstanding anything herein or the Collateral Documents to the contrary, Excluded Property shall not include any Proceeds (as defined in the UCC), substitutions or replacements of any Excluded Property (unless such Proceeds, substitutions or replacements would otherwise constitute Excluded Property referred to above).

“Excluded Subsidiary” means any direct or indirect Subsidiary of the Borrower that is (a) an Unrestricted Subsidiary, (b) a non-Wholly-Owned Subsidiary, (c) an Immaterial Subsidiary, (d) a FSHCO, (e) established or created pursuant to clause (14)(g) of the second paragraph of Section 7.05 and meeting the requirements of the proviso thereto; provided that such Subsidiary shall only be an Excluded Subsidiary for the period immediately prior to such acquisition, (f) a Foreign Subsidiary and any Subsidiary of a Controlled Foreign Subsidiary; (g) a Subsidiary that is prohibited by applicable Law from guaranteeing the Facilities, or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee (including, for the avoidance of doubt, Laws relating to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance or similar legal principles, restrictions on upstreaming and/or cross-streaming of cash intra-group and Laws relating to the fiduciary and/or statutory duties of the Board of Directors of Holdings and/or any of its Subsidiaries) unless, such consent, approval, license or authorization has been received; provided that none of Holdings or is Restricted Subsidiaries shall have any obligation to obtain such consent, approval, license or authorization, (h) a Subsidiary that is prohibited from guaranteeing the Facilities by any Contractual Obligation in existence on the Closing Date (but not entered into in contemplation thereof) and for so long as any such Contractual Obligation exists (or, in the case of any newly-acquired Subsidiary, in existence at the time of acquisition thereof but not entered into in contemplation thereof and for so long as any such Contractual Obligation exists), (i) a Person (other than Holdings or a Restricted Subsidiary of the Borrower that is a Subsidiary of any Loan Party as of the Closing Date) whose guarantee of the Facilities would result in material adverse tax consequences to the Borrower, Holdings or any of the Restricted Subsidiaries or Parent Holding Companies, as determined by the Borrower in good faith, (j) any Limited Purpose Subsidiary, (k) any Restricted Subsidiary acquired by Holdings or any of the Restricted Subsidiaries after the Closing Date that, at the time of the relevant acquisition, is an obligor in respect of assumed Indebtedness that is permitted under this Agreement, and any Restricted Subsidiary thereof that guarantees such Indebtedness, in each case, to the extent (and for so long as) the documentation governing the applicable assumed Indebtedness or guaranty thereof prohibits such Subsidiary from becoming a Guarantor so long as such restriction was not incurred in contemplation of such acquisition, and (l) any other Subsidiary with respect to which, in the good faith determination of the Borrower, the burden or cost of guaranteeing the Facilities outweighs the benefits to be obtained by the Lenders therefrom; provided that the Borrower may from time to time elect to cause any Excluded Subsidiary (in the case of any Foreign Subsidiary, with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed)) to become a Guarantor upon notice to the Administrative Agent; provided further that if a Subsidiary executes the Subsidiary Guaranty as a “Subsidiary Guarantor,” then it shall not constitute an “Excluded Subsidiary” (unless released from its obligations under the Subsidiary Guaranty as a “Subsidiary Guarantor” in accordance with the terms hereof and thereof).

“Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any applicable keepwell, support, or other agreement for the benefit of such Guarantor), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and Hedge Bank applicable to such Swap Obligation.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by such Recipient’s net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. federal withholding Taxes imposed pursuant to a Law in effect on the date on which such Lender becomes a party hereto (other than pursuant to a request by any Loan Party under Section 3.08) or changes its lending office, except in each case to the extent that, pursuant to Section 3.01, additional amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changes its lending office, (c) Taxes attributable to such Recipient’s failure to comply with 3.01(g)(d) any Taxes imposed under FATCA, (e) U.S. federal backup withholding Taxes under Section 3406 of the Code and (f) Other Connection Taxes that are excluded from the definition of Other Taxes.

“Existing Lender Assignment” means an assignment of, as applicable, (x) Commitments under a Term Facility, a Specified Refinancing Term Loan Facility or a New Term Facility or (y) Term Loans, Specified Refinancing Term Loans and New Term Loans, in each case to an existing Lender, an Affiliate of an existing Lender or an Approved Fund thereof (other than any Disqualified Institution).

“Existing Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of June 29, 2018, by and among, the Borrower, Vertex Holdings, the lenders from time to time party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Extendable Bridge Loans” means any bridge loan which provides for an automatic extension of the maturity thereof, subject to customary conditions, to a date that is not earlier than the Latest Maturity Date of the Initial Term Loan Facility or the 2022 Incremental Term Loan Facility and the Weighted Average Life to Maturity of the long-term debt into which such bridge loan is to be converted or exchanged is not shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loan Facility or the 2022 Incremental Term Loan Facility or any Indebtedness that is being refinanced with the proceeds of such Extendable Bridge Loans, as applicable.

“FACA” means the Assignment of Claims Act of 1940 (41 U.S.C. Section 15, 31 U.S.C. Section 3737, and 31 U.S.C. Section 3727) including all amendments thereto and regulations promulgated thereunder.

“FACA Requirement” has the meaning specified in Section 6.20.

“FACA Requirement Documents” means all documents, instruments and assignments, as may be reasonably requested by the ABL Representative to comply with FACA in its Permitted Discretion (as defined in the ABL Credit Agreement).

“Facility” means the Term Facilities.

“Failed Auction” has the meaning specified in the definition of “Dutch Auction.”

“Fair Market Value” means, with respect to any asset or property, the price that could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the Borrower, whose determination will be conclusive for all purposes under the Loan Documents).

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

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided further that if the Federal Funds Rate is negative, then it shall be deemed to be 0% per annum.

“Financial Incurrence Test” has the meaning specified in Section 1.11(b).

“Financial Model” means the model made available by the Sponsor to the Arrangers on August 31, 2021.

“First Amendment” means that certain Amendment No. 1 to First Lien Credit Agreement, dated as of the First Amendment Effective Date, by and among the Borrower, Holdings, the other Loan Parties party thereto, the 2022 Incremental Term Lenders party thereto and the Administrative Agent.

“First Amendment Effective Date” has the meaning specified in the First Amendment.

“Fixed Amounts” has the meaning specified in Section 1.11(b).

“Foreign Casualty Event” shall have the meaning assigned to such term in Section 2.05(b)(viii).

“Foreign Disposition” shall have the meaning assigned to such term in Section 2.05(b)(viii).

“Foreign Lender” means a lender that is not a U.S. Person.

“Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower that is not a Domestic Subsidiary.

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

“FSHCO” means any direct or indirect Subsidiary of the Borrower that owns, directly or indirectly, no material assets other than Capital Stock (or, if applicable, Capital Stock and indebtedness) of one or more Controlled Foreign Subsidiaries or another FSHCO.

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

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession (but excluding the policies, rules and regulations of the SEC applicable only to public companies); provided that the Borrower may at any time elect by written notice to the Administrative Agent to use IFRS in lieu of GAAP for financial reporting purposes and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect from time to time and (b) for prior periods, GAAP as defined in this sentence without giving effect to the proviso thereto. All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.

“General Asset Sale Basket” has the meaning set forth in Section 7.04(2).

“General Debt Basket” has the meaning specified in Section 7.01(l).

“General Debt Basket Reallocated Amount” means any amount then available to be incurred under the General Debt Basket that, at the option of the Borrower, has been reallocated from the General Debt Basket to the Cash-Capped Incremental Facility.

“Government Contract” means an agreement, contract or license to which any Loan Party and the United States or any of its departments, agencies or instrumentalities are parties.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including any applicable supranational bodies (such as the European Union or the European Central Bank).

“Granting Lender” has the meaning specified in Section 10.07(g).

“Group Parties” means the collective reference to the Borrower and the Restricted Subsidiaries, and “Group Party” means any one of them.

“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary or reasonable indemnity obligations in effect on the Closing Date, or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guarantors” means, collectively, Holdings and, as of the Closing Date, the Subsidiaries of the Borrower listed on Schedule 1 and each other Subsidiary of the Borrower that executes and delivers a Guaranty or guaranty supplement pursuant to the Guaranty, Sections 6.12 or 6.16, unless it has ceased to be a Guarantor pursuant to the terms hereof.

“Guaranty” means, collectively, the Holdings Guaranty and the Subsidiary Guaranty.

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

“Hedge Bank” means (x) any Person that is a Lender or an Agent or an Affiliate of a Lender or an Agent or (y) any other Person designated by the Borrower, in each case, in its capacity as a party to such Swap Contract; provided that, in the case of clause (y), such other Person has delivered to the Collateral Agent a written notice (1) appointing the Collateral Agent as its agent under the applicable Loan Documents and (2) agreeing to be bound by Article IX and Sections 10.05, 10.15 and 10.17 as if such Person were a Lender; provided that no Hedge Bank shall have any rights in connection with the terms of the Loan Documents or management or release of Collateral or the obligations of any Loan Party under the Loan Documents, other than in its capacity as a Lender or an Agent.

“Historical Financial Statements” means (x) the audited balance sheet and the corresponding audited statement of income of Vertex Holdings for the fiscal year ended December 31, 2020 and (y) the unaudited balance sheet and statement of income for the fiscal quarters ended March 31, 2021, June 30, 2021 and September 30, 2021, in each case without regard to the Target Business.

“Holdings” has the meaning specified in the introductory paragraph to this Agreement.

“Holdings Guaranty” means the Holdings Guaranty made by Holdings in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit E-1.

“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.

“Immaterial Subsidiary” means any Subsidiary of the Borrower that, as of the last day of the Test Period most recently then ended, does not have (a) assets (when combined with the assets of all other Immaterial Subsidiaries, after eliminating intercompany obligations) in excess of 5.0% of Consolidated Net Tangible Assets of the Group Parties or (b) Consolidated EBITDA (when combined with the Consolidated EBITDA of all other Immaterial Subsidiaries) in excess of 5.0% of the Consolidated EBITDA of the Group Parties; provided that, at all times prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), this definition shall be applied based on the pro forma consolidated financial statements of the Group Parties delivered to the Administrative Agent prior to the date hereof.

“Immediate Family Member” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law or daughter-in-law (including adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, such individual’s estate (or an executor, administrator, heir or legatee, in each case, acting on their behalf) or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.

“Increase Effective Date” has the meaning specified in Section 2.14(c).

“Incremental Amounts” means the amount of any unused commitments under the applicable refinanced Indebtedness, Disqualified Stock or Preferred Stock and any accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, Disqualified Stock or Preferred Stock, and underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of the applicable Indebtedness, Disqualified Stock or Preferred Stock and the incurrence or issuance of the applicable refinancing Indebtedness, Disqualified Stock or Preferred Stock in connection therewith.

“Incremental Arranger” has the meaning specified in Section 2.14(a).

“Incremental Equivalent Cash Component Debt” has the meaning specified in the first paragraph of Section 7.01.

“Incremental Equivalent Debt” has the meaning specified in the first paragraph of Section 7.01.

“Incremental Equivalent Prepayment Component Debt” has the meaning specified in the first paragraph of Section 7.01.

“Incremental Equivalent Ratio Component Debt” has the meaning specified in the first paragraph of Section 7.01.

“Incur” means, with respect to any Indebtedness, Capital Stock or Lien, to issue, assume, guarantee, incur or otherwise become liable for such Indebtedness, Capital Stock or Lien, as applicable; provided that any Indebtedness, Capital Stock or Lien of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary.

“Incurrence-Based Amounts” has the meaning specified in Section 1.11(b).

“Indebtedness” means, with respect to any Person, without duplication:

(a)            the principal of any indebtedness of such Person, whether or not contingent, (i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof), (iii) representing the deferred and unpaid purchase price of any property, (iv) in respect of Capitalized Lease Obligations or (v) representing any Swap Contracts, in each case, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Swap Contracts) would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;

(b)            to the extent not otherwise included, any guarantee by such Person of the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and

(c)            to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value of such asset at such date of determination, and (b) the amount of such Indebtedness of such other Person.

The term “Indebtedness” shall not include any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practices, or obligations under any license, permit or other approval (or guarantees given in respect of such obligations) Incurred prior to the Closing Date or in the ordinary course of business or consistent with past practices.

Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:

(i)            Contingent Obligations Incurred in the ordinary course of business or consistent with past practices;

(ii)           obligations under or in respect of Receivables Financings;

(iii)          any balance that constitutes a trade payable, accrued expense or similar obligation to a trade creditor, in each case Incurred in the ordinary course of business;

(iv)         intercompany liabilities that would be eliminated on the consolidated balance sheet of Holdings and its consolidated Subsidiaries;

(v)          prepaid or deferred revenue arising in the ordinary course of business;

(vi)         Cash Management Services;

(vii)        any earn out obligation, purchase price adjustment or similar obligation until such obligation becomes a liability on the balance sheet (excluding the footnotes thereto) in accordance with GAAP and is not paid within 30 days after becoming due and payable;

(viii)       obligations, to the extent such obligations would otherwise constitute Indebtedness, under any agreement that have been defeased or satisfied and discharged pursuant to the terms of such agreement;

(ix)          for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, deferred compensatory or employee or director equity plans, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes;

(x)           Capital Stock (other than Disqualified Stock and Preferred Stock);

(xi)          Non-Finance Lease Obligations; or

(xii)         any obligations of Borrower and its Restricted Subsidiaries to any Seller Guarantor (as defined in the Purchase Agreement) in respect of Business Guarantees (as defined in the Purchase Agreement) pursuant to the Purchase Agreement, and any obligation of Borrower and its Restricted Subsidiaries in respect of Seller Guarantees (as defined in the Purchase Agreement) that are reimbursable to the Borrower or its Restricted Subsidiaries pursuant to the Purchase Agreement.

Subject to Section 1.02(i), Indebtedness will not be deemed to include obligations (“Escrowed Obligations”) Incurred in advance of, and the proceeds of which are to be applied in connection with, the consummation of a transaction solely to the extent the proceeds thereof are and continue to be held in an escrow, trust, collateral or similar account or arrangement (collectively, an “Escrow”) and are not otherwise made available to such Person (such indebtedness, “Excluded Indebtedness”). From and after the date on which any Escrow is established and prior to the date on which the proceeds in which such Escrow have been fully released to Holdings, any other Person or otherwise, for the purposes of determining whether any Indebtedness is permitted to be Incurred under this Agreement, such determination shall be made on a Pro Forma Basis assuming the release of proceeds under the Escrow, the use of proceeds thereof (and the consummation of the associated transactions) and the inclusion of the Excluded Indebtedness.

“Indemnified Liabilities” has the meaning specified in Section 10.05.

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

“Indemnitees” has the meaning specified in Section 10.05.

“Independent Financial Advisor” means an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing that is, in the good faith determination of the Borrower, qualified to perform the task for which it has been engaged.

“Information” has the meaning specified in Section 10.08.

“Initial Term Borrowing” means a borrowing consisting of simultaneous Initial Term Loans of the same Type and, in the case of Term Benchmark Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a), in each case, on the Closing Date.

“Initial Term Commitment” means, as to each Term Lender, its obligation to make Initial Term Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01 under the caption “Initial Term Commitment” as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Initial Term Commitments is $925,000,000.

“Initial Term Loans” has the meaning specified in Section 2.01(a).

“Initial Term Loan Facility” means the Term Facility in respect of the Initial Term Loans.

“Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sub-license agreement, distribution agreement, services agreement, intellectual property rights transfer agreement or any related agreements, in each case where all the parties to such agreement are one or more of the Borrower and any Restricted Subsidiary thereof.

“intellectual property” means intellectual property, including all (a) patents, inventions, industrial designs, processes, developments, technology, and know-how; (b) copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs, and photographs; (c) trademarks, service marks, trade names, brand names, corporate names, domain names, logos, trade dress, and other source indicators, and the goodwill of any business symbolized thereby; and (d) trade secrets, confidential, proprietary, or non public information.

“Intellectual Property Security Agreement” means, collectively, the intellectual property security agreement substantially in the form of Exhibit B to the Security Agreement, dated the date of this Agreement, together with each other intellectual property security agreement or Intellectual Property Security Agreement Supplement executed and delivered pursuant to Section 6.12, Section 6.14 or Section 6.16.

“Intellectual Property Security Agreement Supplement” means, collectively, any intellectual property security agreement supplement entered into in connection with, and pursuant to the terms of, any Intellectual Property Security Agreement.

“Intercompany Note” means an intercompany note, in substantially the form of Exhibit H hereto, or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower.

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Term Benchmark Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December, and the Maturity Date of the Facility under which such Loan was made, commencing December 31, 2021.

“Interest Period” means, as to each Term Benchmark Rate Loan, the period commencing on the date such Term Benchmark Rate Loan is disbursed or converted to or continued as a Term Benchmark Rate Loan and ending on the date one (1), three (3) or six (6) months thereafter, or solely with respect to Eurodollar Rate Loans and to the extent consented to by all Appropriate Lenders, twelve (12) months thereafter (or such shorter interest period as may be agreed to by all Lenders of the applicable Tranche) as the Borrower may elect; as selected by the Borrower in a Committed Loan Notice; provided that:

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

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

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

provided further that (x) the Interest Period for any Borrowing to be made on the Closing Date (which Interest Period shall commence on the Closing Date) may end on December 31, 2021 and (y) the Interest Period for any Borrowing of 2022 Incremental Term Loans to be made on the First Amendment Effective Date (which Interest Period shall commence on the First Amendment Effective Date) may end on July 29, 2022.

“Interpolated Rate” means, with respect to any Eurodollar Rate Borrowing for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such Interest Period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate is available that is longer than such Interest Period, in each case as of 11:00 a.m., London time on the day two (2) Business Days prior to the first day of such Interest Period.

“Investment” means, with respect to any Person, (i) all investments by such Person in other Persons (including Affiliates) in the form of (a) loans (including guarantees of Indebtedness), (b) advances or capital contributions (excluding accounts receivable, trade credit and advances or other payments made to customers, dealers, suppliers and distributors and payroll, commission, travel and similar advances to officers, directors, managers, employees consultants and independent contractors made in the ordinary course of business), and (c) purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and (ii) investments that are required by GAAP to be classified on the balance sheet of the Borrower in the same manner as the other investments included in clause (i) of this definition to the extent such transactions involve the transfer of cash or other property; provided that Investments shall not include, in the case of the Borrower and the Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business. If the Borrower or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Borrower, the Borrower shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary retained. In no event shall a guarantee of an operating lease or Non-Financing Lease Obligations of the Borrower or any Restricted Subsidiary be deemed an Investment. For purposes of the definition of “Unrestricted Subsidiary” and Section 7.05:

(1)            “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:

(a)           the Borrower’s “Investment” in such Subsidiary at the time of such redesignation; less

(b)           the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and

(2)            any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.

The amount of any Investment outstanding at any time (including for purposes of calculating the amount of any Investment outstanding at any time under any provision of Section 7.05 and otherwise determining compliance with Section 7.05) shall be the original cost of such Investment (determined, in the case of any Investment made with assets of the Borrower or any Restricted Subsidiary, based on the Fair Market Value of the assets invested and without taking into account subsequent increases or decreases in value), reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment and shall be net of any Investment by such Person in the Borrower or any Restricted Subsidiary.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other “nationally recognized statistical rating organization” within the meaning of Section 3 under the Exchange Act selected by the Borrower as a replacement agency for Moody’s or S&P, as the case may be.

“Investment Grade Securities” means:

(1)            securities issued or directly and guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents),

(2)            securities that have an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries,

(3)            investments in any fund that invests at least 95.0% of its assets in investments of the type described in clauses (1) and (2) above and clause (4) below which fund may also hold immaterial amounts of cash pending investment and/or distribution, and

(4)            corresponding instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition.

“Investors” has the meaning specified in the definition of “Transactions”.

“IP Cross-License Agreement” the IP Cross-License Agreement (as defined in the Purchase Agreement), to be entered into on or prior to the Closing Date, as amended, restated, amended and restated, modified or supplemented from time to time.

“IRS” means the United States Internal Revenue Service.

“ISDA CDS Definitions” has the meaning specified in Section 10.01.

“Japanese Yen” and “¥” means freely transferable lawful money of Japan.

“joint venture” means any joint venture or similar arrangement (in each case, regardless of legal formation), including but not limited to collaboration arrangements, profit sharing arrangements or other contractual arrangements.

“Junior Financing” has the meaning specified in Section 7.05(3).

“Junior Financing Document” means any documentation governing any Junior Financing.

“Junior Lien Obligations” shall mean any Indebtedness secured by Liens on the Collateral ranking junior to the Liens on the Collateral securing the Initial Term Loans and the 2022 Incremental Term Loans (but without regard to the control of remedies).

“JV Distribution” means, at any time, 50% of the aggregate amount of all cash dividends or distributions received by the Borrower or any of its Restricted Subsidiaries as a return on an Investment in a Permitted Joint Venture during the period from the Closing Date through the end of the fiscal quarter most recently ended for which financial statements are internally available; provided that the Borrower or any of its Restricted Subsidiaries are not required to reinvest such dividends or distributions in the Permitted Joint Venture.

“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Term Loan Tranche at such time under this Agreement, in each case as extended in accordance with this Agreement from time to time.

“Laws” means, collectively, all applicable international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“Legal Reservations” means:

(a)            the principle that equitable remedies may be granted or refused at the discretion of a court, the limitation of enforcement by laws relating to insolvency, bankruptcy, liquidation, judicial management, reorganization, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and similar principles or limitations under the laws of any applicable jurisdiction;

(b)            the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defenses of set-off or counterclaim and similar principles or limitations under the laws of any applicable jurisdiction;

(c)            any general principles, reservations or qualifications, in each case as to matters of law as set out in any legal opinion delivered to the Administrative Agent in connection with any provision of any Loan Document;

(d)            the principle that any additional interest imposed under any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;