8-K - TEX - Equibles

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported) October 8, 2024

TEREX CORPORATION

(Exact Name of Registrant as Specified in Charter)

Delaware	1-10702	34-1531521
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)
301 Merritt 7, 4th Floor	Norwalk	Connecticut	06851
---	---	---	---
(Address of Principal Executive Offices)			(Zip Code)

Registrant's telephone number, including area code

(203) 222-7170

NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock ($0.01 par value)	TEX	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01. Entry into a Material DefinitiveAgreement.

Indenture and 6.250% Senior Notes due 2032

On October 8, 2024 (the “Closing Date”), Terex Corporation (the “Company”) completed its previously announced private offering (the “Senior Notes Offering”) of $750.0 million aggregate principal amount of its 6.250% Senior Notes due 2032 (the “Senior Notes”). The Senior Notes were issued pursuant to an indenture dated as of October 8, 2024 (the “Indenture”), among the Company, HSBC Bank USA, National Association, as trustee (“HSBC” or the “Trustee”), and the guarantors named therein (the “Guarantors”). The Senior Notes are fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis by the Company’s wholly-owned domestic subsidiaries that guarantee the New Credit Facilities (as defined below). The Senior Notes and the related guarantees were offered in the United States to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and outside the United States only to non-U.S. investors pursuant to Regulation S under the Securities Act.

The Indenture and the Senior Notes provide, among other things, that the Senior Notes will be the Company’s senior unsecured obligations and will rank equally in right of payment with all of the Company’s senior unsecured indebtedness. The Senior Notes will bear interest from October 8, 2024 at an annual rate of 6.250%, payable semi-annually on April 15 and October 15 of each year, commencing on April 15, 2025. The Senior Notes will mature on October 15, 2032.

The Company may redeem the Senior Notes in whole or in part, on or after October 15, 2027, at the redemption prices set forth in the Indenture. Prior to October 15, 2027, the Company may redeem the Senior Notes, in whole or in part, at a price equal to 100% of the principal amount thereof plus a “make-whole” premium set forth in the Indenture. In addition, prior to October 15, 2027, the Company may redeem up to 40% of the Senior Notes with an amount equal to the proceeds of certain equity offerings. Upon certain change of control events, the holders of the Senior Notes may require the Company to repurchase all or a portion of the Senior Notes at a purchase price of 101% of their principal amount plus accrued and unpaid interest, if any, to the date of purchase. In addition, the holders of the Senior Notes may require the Company to apply the net cash proceeds of certain asset sales to repurchase all or a portion of the Senior Notes at par.

The terms of the Indenture, among other things, limit the ability of the Company and its restricted subsidiaries to (i) incur or guarantee additional indebtedness or issue preferred stock, (ii) pay dividends or make other restricted payments; (iii) make certain investments, (iv) transfer and sell assets, (v) create or incur certain liens, (vi) engage in certain transactions with affiliates, (vii) sell stock of the Company’s subsidiaries and (viii) consolidate or merge or transfer all or substantially all of the Company’s assets and the assets of the Company’s subsidiaries. These covenants are subject to a number of important exceptions and qualifications. The Indenture provides for customary events of default which include, among other things, (subject in certain cases to customary grace and cure periods) defaults based on (i) the failure to make payments under the Indenture when due, (ii) breach of covenants, (iii) acceleration of other material indebtedness, (iv) bankruptcy events and (v) material judgments. Generally, if an event of default occurs, the trustee or the holders of at least 25% in principal amount of the then outstanding Senior Notes may declare all of the Senior Notes to be due and payable.

HSBC and its affiliates maintain relationships in the ordinary course of business with the Company and its subsidiaries, including the provision of commercial banking, investment banking, trustee and/or other financial services.

Senior Secured Credit Facility

On the Closing Date, the Company entered into an Incremental Assumption Agreement, Borrowing Subsidiary Agreement and Amendment No. 2 (the “Amendment”) to the Amended and Restated Credit Agreement dated as of April 1, 2021 (as amended from time to time including by the Amendment, the “Amended Credit Agreement”), with certain of its subsidiaries, the lenders and issuing banks party thereto and UBS AG, Stamford Branch, as successor administrative agent and successor collateral agent (“UBSAG” or the “Administrative Agent”).

The Amendment (i) increased the size of the Company’s existing revolving credit facilities to $800.0 million and extended the maturity of the Company’s existing revolving credit facilities to the fifth anniversary of the Closing Date (the “New Revolving Credit Facilities”) and (ii) provided for a new seven-year term loan facility in an aggregate principal amount of $1,250.0 million (the “New Term Facility” and, together with the New Revolving Credit Facilities, the “New Credit Facilities”). In addition, the Amended Credit Agreement increased the size of the letter of credit facility.

Borrowings under the New Term Facility will initially bear interest at a per annum rate equal to, at the Company’s option, either (i) Term SOFR, plus 2.00% or (ii) the applicable base rate, plus 1.00%, in each case subject to a stepdown of 0.25% based on achieving and maintaining a first lien net leverage ratio equal to or less than 0.50x.

Borrowings denominated in U.S. dollars under the New Revolving Credit Facilities will initially bear interest at a per annum rate equal to, at the Company’s option, either (i) Term SOFR, plus 1.625% or (ii) the applicable base rate, plus 0.625%. In addition, borrowings denominated in Euros, Australian dollars or Pounds Sterling under the New Revolving Credit Facilities will initially bear interest at a per annum rate equal to EURIBOR, the Bank Bill Rate or Daily Simple SONIA, respectively plus, in each case, 1.625%. The foregoing interest rate margins are subject to two stepdowns of 0.25% each, based on achieving and maintaining first lien net leverage ratios of 0.90x and 0.40x, respectively.

The New Term Facility will amortize in equal quarterly installments equal to 0.25% of the original principal amount thereof and requires the Company to prepay outstanding term loans, subject to certain exceptions, in an amount equal to a portion of the Company’s annual excess cash flow and with the net cash proceeds of certain asset sales and casualty events.

Outstanding term loans under the New Term Facility may be prepaid at any time without premium or penalty other than customary breakage costs, subject to a 1.00% prepayment premium in connection with certain repricing transactions that occur prior to the date that is six months from the Closing Date.

The Amended Credit Agreement contains customary representations and warranties, negative and affirmative covenants and default provisions. The covenants limit, in certain circumstances, the Company’s ability to take a variety of actions, including, but not limited to: incurring or guaranteeing additional indebtedness or issuing preferred equity; creating or maintaining liens; making investments; pay dividends or make other restricted payments; consolidating or merging or transferring all or substantially all of the Company’s assets and the assets of the Company’s subsidiaries; transferring or selling assets, including stock of the Company’s subsidiaries; and redeeming debt. In particular, the New Revolving Credit Facilities requires the Company to maintain a first lien net leverage ratio of not more than 3.00x, which will be tested only if more than 30% of the total revolving credit commitments extended under the New Revolving Credit Facilities are utilized as of the last day of any fiscal quarter, subject to certain exclusions. The New Term Facility does not have the benefit of, or have any rights with respect to, the financial maintenance covenant. The Amended Credit Agreement provides for customary events of default which include, among other things, (subject in certain cases to customary grace and cure periods) defaults based on (i) the failure to make payments under the Indenture when due, (ii) breach of covenants, (iii) the occurrence of a default under other material indebtedness, (iv) a change of control, (v) bankruptcy events and (vi) material judgments.

UBSAG or its affiliates, and certain lenders, or their affiliates, are party to other agreements with the Company and its subsidiaries, including the provision of commercial banking, investment banking, trustee and/or other financial services in the ordinary course of business of the Company and its subsidiaries.

Terex used the proceeds from the Private Offering, together with new term loan borrowings under the New Term Facility and cash on hand, to consummate Terex’s previously announced acquisition (the “Acquisition”) of the subsidiaries and assets of Dover Corporation (“Dover”) that constitute Dover’s Environmental Solutions Group (“ESG”), and to pay related fees, costs and expenses.

The foregoing summary of each of the Indenture, the Senior Notes and the Amended Credit Agreement is qualified in its entirety by reference to the Indenture, the Senior Notes and the Amended Credit Agreement, copies of which are attached hereto and incorporated by reference herein as Exhibits 4.1 and 10.1 to this Current Report on Form 8-K.

Item 2.01. Completion of Acquisition or Dispositionof Assets.

On the Closing Date, in accordance with the Transaction Agreement, dated as of July 21, 2024, as amended by the First Amendment to the Transaction Agreement, dated as of October 8, 2024 (and as may be further amended, the “TA”), by and between the Company and Dover, the Company completed its acquisition of ESG from Dover for a purchase price of $2.0 billion in cash, subject to customary closing adjustments to be finalized after the Closing Date. The Company financed the purchase price and related fees and expenses using the net proceeds from the Senior Notes, new term loan borrowings under the New Term Facility and cash on hand.

There are no material relationships among the Company and Dover or any of their respective affiliates, other than with respect to the TA and the related ancillary agreements.

The foregoing discussion of the TA is qualified in its entirety by reference to the TA, a copy of which is attached hereto and incorporated by reference herein as Exhibit 2.1 to this Current Report on Form 8-K.

Item 2.03. Creation of a Direct Financial Obligationor an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth above under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

Item 7.01. Regulation FD Disclosure.

On October 8, 2024, the Company issued a press release announcing the completion of the Acquisition.

The information in Item 7.01 and in Exhibit 99.1 furnished herewith shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act unless specifically stated by the Company.

Item 9.01. Financial Statements and Exhibits.

(a) Financial Statements of Businessesor Funds Acquired

The audited combined financial statements of ESG as of December 31, 2023 and December 31, 2022 and for the years then ended, together with the notes thereto and the independent auditors report thereon, and the unaudited condensed combined financial statements of ESG as of June 30, 2024 and for the six months ended June 30, 2024 and June 30, 2023, are incorporated by reference as Exhibits 99.2 and 99.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

(b) Pro Forma Financial Information

The Company intends to file any pro forma financial information required by Item 9.01(b) as an amendment to this Current Report on Form 8-K not later than 71 days after the required filing date for this Current Form 8-K is required to be filed.

(d) Exhibits

Exhibit Number	Description
2.1*+	Transaction Agreement, by and between Terex Corporation and Dover Corporation, dated as of July 21, 2024.
2.2*	First Amendment to Transaction Agreement, by and between Terex Corporation and Dover Corporation, dated as of October 8, 2024.
4.1	Indenture, dated as of October 8, 2024, among Terex Corporation, the subsidiary guarantors named therein and the Trustee (including the Form of 6.250% Senior Notes due 2032 included therein).
10.1*	Incremental Assumption Agreement, Borrowing Subsidiary Agreement and Amendment No. 2, dated as of October 8, 2024, among Terex Corporation, certain of its subsidiaries, the lenders and issuing banks party thereto, UBS AG Cayman Islands Branch, as existing administrative agent, and UBS AG, Stamford Branch, as successor administrative agent, relating to the Amended and Restated Credit Agreement, dated as of April 1, 2021, among Terex Corporation, certain of its subsidiaries, the lenders and issuing banks party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent.
23.1	Consent of PricewaterhouseCoopers LLP.
99.1	Press release of Terex Corporation issued on October 8, 2024.
99.2	Audited Combined Financial Statements of ESG as of December 31, 2023 and December 31, 2022 and for the years then ended, together with the notes thereto and the independent auditor’s report thereon.
99.3	Unaudited Condensed Combined Financial Statements of ESG as of June 30, 2024 and for the six months ended June 30, 2024 and June 30, 2023.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).
*	Certain schedules, annexes or exhibits have been omitted pursuant to Item 601(a)(5) of Regulation<br>S-K, but will be furnished supplementally to the SEC upon request.
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+	Portions of Exhibit 2.1 have been redacted in accordance with Item 601(b)(2)(ii) of Regulation S-K.
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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: October 8, 2024

By:	/s/ Julie A. Beck
	Julie A. Beck
	Senior Vice President and Chief Financial Officer

Exhibit 2.1

EXECUTION VERSION

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT MARKEDWITH “[redacted]” HAVE BEEN REDACTED IN ACCORDANCE WITH ITEM 601(b)(2)(ii)OF REGULATION S-K.

TRANSACTION AGREEMENT

BY AND BETWEEN

TEREX CORPORATION

AND

DOVER CORPORATION

Dated as of July 21, 2024

TABLE OF CONTENTS

Article I
Definitions
1.1	Definitions	2
Article II
THE TRANSACTIONS
2.1	Sales and Purchases	22
2.2	Purchase Price	22
2.3	Closing Purchase Price	22
2.4	Post-Closing Adjustment	23
2.5	Withholding	27
Article III
CLOSING AND CLOSING DELIVERIES
3.1	Closing; Time and Place	28
3.2	Deliveries by Seller	28
3.3	Deliveries by Purchaser	29
3.4	Payment Mechanics	29
Article IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1	Authority; Enforceability	29
4.2	Non-Contravention; Consents	30
4.3	Organization; Acquired Companies	31
4.4	Title; Shares	32
4.5	Financial Information; Liabilities	33
4.6	Absence of Certain Changes	34
4.7	Compliance with Legal Requirements	34
4.8	Material Contracts	35
4.9	Litigation	38
4.10	Intellectual Property; Information Technology	38
4.11	Real Property	41
4.12	Labor Matters	43
4.13	Employee Benefits	44
4.14	Taxes	46
4.15	Sufficiency of Assets	49
4.16	Environmental Matters	50

4.17	Anti-Bribery Matters	50
4.18	Brokers	50
4.19	Related Party Transactions	50
4.20	Key Customers and Key Suppliers	51
4.21	Accounts Payable; Accounts Receivable	51
4.22	Product Warranties; Product Liability	51
4.23	Government Contracts	52
4.24	Insurance	53
4.25	Trade Controls	54
4.26	No Other Representations	54
Article V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1	Authority; Enforceability	55
5.2	Non-Contravention; Consents	55
5.3	Organization	56
5.4	Litigation	56
5.5	Securities Matters	56
5.6	Financing	57
5.7	Solvency	58
5.8	Brokers	58
5.9	R&W Insurance Policy	59
5.10	Pending Transactions	59
5.11	Investigation	60
5.12	Disclaimer Regarding Projections	60
5.13	No Other Representations	60
Article VI
COVENANTS OF THE PARTIES
6.1	Conduct of the Business Prior to Closing	61
6.2	Pre-Closing Access to Information	65
6.3	Cooperation	66
6.4	Consents; Termination of Intercompany Agreements	66
6.5	Confidentiality	67
6.6	Reasonable Best Efforts; Regulatory Filings	69
6.7	Financing Cooperation	72
6.8	Financing Obligation	74
6.9	Financial Statements	77
6.10	Insurance	77
6.11	R&W Insurance Policy	79
6.12	Registered Office Addresses	79
6.13	Exclusivity	79

ii

Article VII
ADDITIONAL COVENANTS OF THE PARTIES
7.1	Transitional Trademark Rights	80
7.2	IP Licenses	81
7.3	Post-Closing Access to Information	82
7.4	D&O Insurance	82
7.5	Non-Competition; Non-Solicitation	84
7.6	Further Assurances	85
7.7	Assignment of Right to Enforce Restrictive Covenants	87
Article VIII
TAX MATTERS
8.1	Section 338(h)(10) Election; Purchase Price Allocation	87
8.2	Tax Returns	88
8.3	Tax Sharing Agreements	89
8.4	Transfer Taxes	90
8.5	Straddle Periods	90
8.6	Cooperation	90
8.7	Prohibited Actions	90
8.8	Survival	91
Article IX
EMPLOYEES
9.1	Transfer of Business Employees	91
9.2	Continuation Period	92
9.3	Annual Cash Bonuses	93
9.4	Vacation and Paid Time Off	93
9.5	Communications	93
9.6	Immigration Compliance	93
9.7	COBRA	93
9.8	No Third-Party Beneficiaries	93
Article X
CONDITIONS TO CLOSING
10.1	Conditions of Purchaser	94
10.2	Conditions of Seller	94
10.3	Mutual Conditions	95
10.4	Failure of Conditions	95
10.5	Waiver of Conditions	95

iii

Article XI
TERMINATION
11.1	Termination	96
11.2	Notice of Termination	97
11.3	Effect of Termination	97
Article XII
SURVIVAL; INDEMNIFICATION
12.1	Survival	97
12.2	Indemnification by Seller	98
12.3	Indemnification by Purchaser	99
12.4	Procedures	99
12.5	Exclusive Remedy	103
12.6	Additional Indemnification Provisions	103
12.7	Limitation on Liability	103
12.8	Tax Treatment of Indemnity Payments and Post-Closing Adjustments	103
12.9	Indemnification Obligations Net of Insurance Proceeds and Other Amounts	104
Article XIII
MISCELLANEOUS PROVISIONS
13.1	Expenses	104
13.2	Interpretation	105
13.3	Entire Agreement	105
13.4	Amendment and Waivers	106
13.5	Successors and Assigns	106
13.6	Governing Law	106
13.7	Jurisdiction; Venue; Service of Process	107
13.8	Waiver of Jury Trial	108
13.9	Specific Performance	108
13.10	Severability	109
13.11	Certain Releases	109
13.12	The Seller Disclosure Schedule, Exhibits and Schedules	111
13.13	Notices	111
13.14	No Third-Party Beneficiaries	112
13.15	Provision Regarding Legal Representation	112
13.16	No Other Duties	113
13.17	Reliance on Counsel and Other Advisors	113
13.18	Public Announcements	113
13.19	Counterparts	114

iv

Exhibits

Exhibit A: IP Seller IP

Exhibit B: Form of Transition Services Agreement

Exhibit C: Intellectual Property Assignment Agreement

Exhibit D: R&W Insurance Policy

Schedules

Schedule A: Accounting Principles

INDEX

	Section
Accounting Principles	1.1
Accrued PTO	9.4
Acquired Companies	1.1
Acquired Company	1.1
Acquired Company Benefit Plan	1.1
Acquired Company IP	1.1
Acquired Company IT Assets	1.1
Acquired Company Registered IP	4.10(a)
Acquired Company Source Code	4.10(h)
Acquired Entities	Recitals
Acquired Entity	Recitals
Acquired Entity 1	Recitals
Acquisition Proposal	1.1
Affiliate	1.1
Agreement	1.1
Allocation	8.1(e)(i)
Alternative Debt Financing	6.8(c)
Alternative Debt Financing Commitment	6.8(c)
Anti-Bribery Laws	4.17
Antitrust Law	1.1
Assumed Incentive Amount	9.3
Assumed Liabilities	1.1
Audited Financial Information	6.9(a)
Available Insurance Policies	6.10(c)
Bankruptcy and Equity Exception	1.1
Benchmark Time	1.1
Benefit Plan	1.1
Business	1.1
Business Day	1.1
Business Employee	1.1
Canadian Business Employee	1.1
CARES Act	1.1
Cash	1.1
Claim Notice	12.4(a)
Closing	3.1
Closing Conditions	1.1
Closing Date	3.1
Closing Purchase Price	2.3(a)
Closing Transaction Expenses	1.1
Code	1.1
Collective Bargaining Agreement	1.1
Competing Business Activities	1.1
Compliant	1.1

vi

Condition Satisfaction Date	1.1
Confidentiality Agreement	1.1
Consent	1.1
Consolidated Return	1.1
Consultation Period	2.4(e)
Contagion Event	1.1
Continuation Period	9.2(a)
Contract	1.1
Copyrights	1.1
Corporate Functions	1.1
COVID-19	1.1
Credit Agreement Amendment	5.6(a)
Current Insurance	7.4(b)
D&O Indemnitee	7.4(a)
Data Security Requirements	4.10(k)
Debt Commitment Documents	5.6(a)
Debt Commitment Letter	5.6(a)
Debt Financing	1.1
Debt Financing Commitment	5.6(a)
Definitive Agreements	6.8(a)
Disputed Items	2.4(e)
DOJ	6.6(a)
eCommerce Platform Software	1.1
Employment Commencement Date	1.1
Encumbrance	1.1
Environmental Authorizations	4.16(a)
Environmental Law	1.1
ERISA	1.1
Estimated Closing Statement	2.3(a)
Exchange Act	4.2(a)
Final Closing Indebtedness	2.4(f)
Final Closing Net Working Capital	2.4(f)
Final Closing Statement	2.4(f)
Final Closing Transaction Expenses	2.4(f)
Final Overage	2.4(g)
Final Purchase Price	2.4(f)
Final Underage	2.4(h)
Financing Entities	1.1
Financing Related Action	13.7(c)
Financing Source	1.1
Former Business Employee	1.1
Fraud	1.1
FTC	6.6(a)
GAAP	1.1
Government Contract	1.1
Governmental Approvals	6.6(a)

vii

Governmental Authority	1.1
Hazardous Materials	1.1
HSR Act	1.1
Income Tax	1.1
Indebtedness	1.1
Indemnified Party	1.1
Indemnified Party Defense Matter	12.4(c)
Indemnifying Party	1.1
Indemnity Payment	12.9
Initial Deductible	12.2(b)
Initial Marketing Period	1.1
Insurance Policies	4.24
Insurance Proceeds	12.9
Insured Persons	7.4(b)
Intellectual Property	1.1
Intellectual Property Assignment Agreement	3.2(c)
Intercompany Agreements	6.4(b)
Investment Screening Laws	1.1
IP Contract	1.1
IP Seller	1.1
IP Seller IP	1.1
IRS	1.1
IT Assets	1.1
Key Customer	1.1
Key Supplier	1.1
Latest Balance Sheet	4.5(a)
Leased Real Property	1.1
Legal Requirement	1.1
Liabilities	1.1
Losses	1.1
Malicious Code	1.1
Marketing Periods	1.1
Material Adverse Effect	1.1
Material Contracts	4.8(a)
Net Working Capital	1.1
Net Working Capital Overage	1.1
Net Working Capital Underage	1.1
Non-Business Proprietary Information	6.5(a)
Notice Period	12.4(a)
Open Source Software	1.1
Option	4.11(a)
Options	4.11(a)
Order	1.1
Outside Date	11.1(d)
Owned Real Property	4.11(a)
Patents	1.1

viii

Pension Plan	4.13(c)
Permit	1.1
Permitted Encumbrances	1.1
Person	1.1
Personal Information	1.1
Post-Closing Statement	2.4(a)
Post-Closing Straddle Period	1.1
Post-Closing Tax Period	1.1
Pre-Closing Claims	6.10(c)
Pre-Closing Covenants	12.1(a)
Pre-Closing Straddle Period	1.1
Pre-Closing Tax Period	1.1
Preliminary Cash	2.4(a)
Preliminary Closing Purchase Price	2.4(a)
Preliminary Closing Transaction Expenses	2.4(a)
Preliminary Indebtedness	2.4(a)
Preliminary Net Working Capital	2.4(a)
Privacy Laws	1.1
Privileged Communications	13.15
Proceeding	1.1
Processing	1.1
Prohibited Modification	6.8(b)
Proprietary Software	4.10(h)
Purchase Price	2.2
Purchaser	Preamble
Purchaser Disclosure Schedule	1.1
Purchaser Fundamental Representations	1.1
Purchaser Indemnified Parties	12.2(a)
Purchaser Material Adverse Effect	1.1
Purchaser Releasee	13.11(b)
Purchaser’s Draft Allocation	8.1(e)(i)
Purchaser’s Knowledge	1.1
Purchaser-Filed Tax Return	8.2(b)
R&W Binder Agreement	5.9
R&W Insurance Policy	5.9
Real Property	1.1
Real Property Lease	4.11(b)
Real Property Leases	4.11(b)
Reference Date	4.5(a)
Related Person	4.19
Release	1.1
Representatives	1.1
Required Amount	5.6(b)
Required Information	1.1
Restricted Cash	1.1
Restricted Person	1.1

ix

Retained Liabilities	1.1
Review Period	2.4(d)
Sanctioned Jurisdiction	1.1
Sanctioned Person	1.1
Sanctions	1.1
SEC	1.1
Second Deductible	12.2(b)
Secondary Marketing Period	1.1
Section 338(h)(10) Election	8.1(a)
Section 338(h)(10) Election Taxes	8.1(f)
Section 338(h)(10) Forms	8.1(b)
Securities Act	1.1
Security Plan	4.10(m)
Seller	Preamble
Seller Affiliated Group	1.1
Seller Benefit Plan	1.1
Seller Disclosure Schedule	1.1
Seller Fundamental Representations	1.1
Seller Group	1.1
Seller Group Marks	1.1
Seller Indemnified Parties	12.3
Seller Parties	5.9
Seller Party	1.1
Seller Post-Closing Statement	2.4(c)
Seller Releasee	13.11(a)
Seller’s Allocation Notice	8.1(e)(i)
Seller’s Knowledge	1.1
Seller-Filed Tax Return	8.2(a)
Senior Management of the Business	7.5(a)(ii)
Settlement	12.4(b)
Settlement Accountant	2.4(e)
Share Seller	Recitals
Shared Contracts	1.1
Shares	1.1
Skadden	3.1
Software	1.1
Specified Material Contracts	4.8(a)
Specified Matter	12.4(a)
Statement of Objections	2.4(d)
Straddle Period	1.1
Submission Deadline	2.4(a)
Subsidiary	1.1
Target Net Working Capital Lower Amount	1.1
Target Net Working Capital Upper Amount	1.1
Tax	1.1
Tax Authority	1.1

Tax Return	1.1
Third Party Proceeds	12.9
Third-Party Claim	12.4(a)
Trade Controls	1.1
Trade Materials	7.1(c)
Trade Secrets	1.1
Trademarks	1.1
Transaction Documents	1.1
Transaction Tax Treatment	8.1(d)
Transactions	1.1
Transfer Taxes	1.1
Transferred Employee	9.1
Transition Period	7.1(c)
Transition Services Agreement	3.2(b)
Treasury Regulations	1.1
U.S. Foreign National Employees	9.6
Unaudited Financial Information	4.5(a)
Unpaid Income Taxes	1.1
Willful Breach	1.1

xi

TRANSACTION AGREEMENT

THIS TRANSACTION AGREEMENT is dated as of July 21, 2024, by and between:

**(A)**Terex Corporation, a Delaware corporation (“Purchaser”); and

**(B)**Dover Corporation, a Delaware corporation (“Seller”).

RECITALS

WHEREAS, Seller holds, indirectly through Dover Climate & Sustainability Technologies Segment, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Seller (the “Share Seller”), all of the Shares (as defined below), which shares constitute all of the issued and outstanding capital stock of each of The Heil Co., a Delaware corporation (“Acquired Entity 1”) and Marathon Equipment Company (Delaware), a Delaware corporation (together with Acquired Entity 1, the “Acquired Entities” and each, an “Acquired Entity”), as of the date of this Agreement;

WHEREAS, Seller owns, indirectly through IP Seller, the IP Seller IP;

WHEREAS, the Acquired Companies are engaged in the Business;

WHEREAS, Seller desires to cause (a) the Share Seller to sell, transfer, convey, assign and deliver to Purchaser, and Purchaser desires to purchase from the Share Seller, all of the Shares and (b) IP Seller to sell, transfer, convey, assign and deliver to Purchaser, and Purchaser desires to purchase from IP Seller, all of IP Seller’s right, title and interest in and to the IP Seller IP, in each case, subject to the terms and the conditions set forth in this Agreement;

WHEREAS, the parties hereto desire that Purchaser and its Affiliates assume the Assumed Liabilities and that Seller and its Subsidiaries retain the Retained Liabilities, in each case, subject to the terms and conditions set forth in this Agreement;

WHEREAS, Seller will, and will cause its Affiliates to, and Purchaser will, and will cause its Affiliates to, at or prior to the Closing, execute and deliver each of the Transaction Documents (other than this Agreement) to which they are a party; and

WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual representations, warranties, covenants and promises contained herein and other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

Article I

Definitions

1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in this Agreement. The following terms, whenever used herein, shall have the following meanings for all purposes of this Agreement:

“Accounting Principles” shall mean the accounting principles, policies, treatments, categorizations, practices, methods, bases and estimation techniques set forth on Schedule A attached hereto.

“Acquired Companies” shall mean each of the Acquired Entities and their respective Subsidiaries, and “Acquired Company” shall mean any of them.

“Acquired Company Benefit Plan” shall mean each Benefit Plan that is sponsored, maintained or contributed to solely by one or more Acquired Companies.

“Acquired Company IP” shall mean any and all Intellectual Property that is (a) both (i) owned by the Acquired Companies as of the date of this Agreement and (ii) used in the conduct of the Business, and (b) the IP Seller IP, excluding, in each case of the foregoing clauses (a) and (b), any portion thereof that are Seller Group Marks.

“Acquired Company IT Assets” shall mean all IT Assets used in the operation of the Business, to the extent owned by, or licensed or leased to, the Acquired Companies pursuant to a Contract entered into between an Acquired Company and a third party, including pursuant to outsourced or cloud computing arrangements.

“Acquisition Proposal” shall mean, other than the transactions contemplated hereby, any inquiry, proposal or offer for, or any indication of interest in any direct or indirect (a) sale, lease, exchange, transfer, license or other disposition, in one or a series of related transactions, of all or a majority of the assets of the Business other than the sale of the Businesses’ products or services in the ordinary course of business and otherwise in accordance with Section 6.1, or (b) acquisition, whether by share exchange, merger or in any other manner, by any Person or group of related Persons, in one or a series of related transactions, of any equity securities of any of the Acquired Companies.

“Affiliate” as to any Person, shall mean any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person, through one or more intermediaries or otherwise. For purposes of this definition, “control” of a Person shall mean the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by ownership of equity interests, by contract or otherwise. The Acquired Companies shall be deemed, for purposes of this Agreement, Affiliates of Seller prior to the Closing and Affiliates of Purchaser from and after the Closing.

“Agreement” shall mean this Transaction Agreement (including the Seller Disclosure Schedule and all other schedules and exhibits attached hereto), as it may be amended, restated or otherwise modified from time to time.

“Antitrust Law” shall mean any Legal Requirements applicable to Purchaser, Seller or any Acquired Company under any applicable jurisdiction that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.

“Assumed Liabilities” shall mean (a)(i) any and all Liabilities of the Acquired Companies and (ii) any and all Liabilities arising out of, resulting from or to the extent relating to the Business, including the IP Seller IP, and in the case of each of the forgoing clauses (i) and (ii), including, for the avoidance of doubt, the matters set forth on Schedule 1.1(a) of the Seller Disclosure Schedule and (b) any Taxes allocated to Purchaser pursuant to Section 8.2(c), in each of the foregoing clauses (a) and (b), regardless of (A) when or where such Liabilities arose or arise (whether arising prior to, at or after the Closing), (B) where or against whom such Liabilities are asserted or determined, (C) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Legal Requirement, fraud or misrepresentation by Seller and its Affiliates (including the Acquired Companies), as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (D) which entity is named in any Proceeding associated with any Liability; provided that Assumed Liabilities shall not include any Liabilities (1) for Taxes for which any member of the Seller Group is responsible under Article VIII or Article XII or (2) arising out of or resulting from any Seller Benefit Plans.

“Bankruptcy and Equity Exception” shall mean the effect on enforceability of (a) any applicable Legal Requirement relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Legal Requirement relating to or affecting creditors’ rights generally, and (b) general principles of equity (regardless of whether enforceability is considered in a Proceeding in equity or at law).

“Benchmark Time” shall mean 12:01 a.m., Central Standard Time, on the Closing Date.

“Benefit Plan” shall mean each (a) “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA and (b) each employment, individual consulting, severance or similar contract, plan, agreement, arrangement or policy and each other benefit or compensation plan, policy, program, practice, agreement or arrangement (written or oral), including any equity, equity-based, phantom equity, stock option or other stock related rights, retirement, profit sharing, bonus, incentive, severance, post-retirement, separation, change in control, retention, employment, deferred compensation, fringe benefit, vacation, paid time off, medical, health, welfare, dental, life or disability plan, program, policy or arrangement; provided that “Benefit Plan” excludes any such plan, program or arrangement that is maintained, sponsored or otherwise required by a Governmental Authority to which any Person is required to contribute without discretion as to the level of benefits.

“Business” shall mean the business of researching, developing, designing, manufacturing, providing, promoting, marketing, selling, supplying and distributing refuse collection vehicles (RCVs), stationary compaction and bailing equipment, parts (including after-market parts), associated components and services, onboard technology and software solutions used in the North American solid waste and recycling collection industry as conducted by Seller and its Affiliates (including the Acquired Companies) as of immediately prior to the Closing; provided that the “Business” shall exclude (a) general corporate functions provided by the Seller Group either directly or indirectly as of immediately prior to the Closing that constitute an Excluded Service (as defined in the Transition Services Agreement) or that are finance, accounting, tax, human resources, insurance and risk management, treasury, operational, environmental health and safety, legal, information technology, supply chain management shared services provided by the Seller Group (the functions referred to herein as the “Corporate Functions”) and (b) the eCommerce Platform Software.

“Business Day” shall mean any day other than (a) a Saturday or a Sunday or (b) a day on which banking and savings and loan institutions are authorized or required to be closed in either (i) New York, New York or (ii) Chicago, Illinois.

“Business Employee” shall mean (i) each individual who is employed by an Acquired Company, including each such employee who is on a leave of absence (including medical leave, personal leave, military leave, workers’ compensation leave, short-term disability and long-term disability) and paid or unpaid time off, and (ii) the Canadian Business Employee.

“Canadian Business Employee” shall mean the individual listed on Schedule 1.1(b) of the Seller Disclosure Schedule by employee identification number.

“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act of 2020, as amended and any similar or successor Legal Requirement or any administrative or other guidance published with respect thereto by any Governmental Authority.

“Cash” shall mean, as of the time of determination, an amount equal to, without duplication, the aggregate amount of all cash and cash equivalents, investment accounts and marketable investments of the Acquired Companies (excluding Restricted Cash) plus (a) the aggregate amount of checks, wires, transfers and drafts for cash or cash equivalents (other than Restricted Cash) received or deposited for the account of the Acquired Companies, but only to the extent the associated receivable is not included as a current asset in the calculation of Net Working Capital, minus (b) the aggregate amount of uncleared checks, wires, transfers and drafts issued by the Acquired Companies, but only to the extent the associated payable is not included as a current liability in the calculation of Net Working Capital, in each case, determined in accordance with the Accounting Principles. “Restricted Cash” shall mean any (i) cash or cash equivalents held in escrow, security or similar deposits, (ii) customer deposits or other cash or cash equivalents held on behalf of third parties, (iii) cash or cash equivalents, investment accounts or marketable investments that are subject to any restriction or local exchange control, Tax or other requirements, to the extent that the amount of such cash or cash equivalents cannot, within ninety (90) days, be accessed, or be used by the Acquired Companies for the repayment of Indebtedness or (iv) any cash equivalents, investment accounts or marketable investments to the extent not convertible into cash within ninety (90) days.

“Closing Conditions” shall mean the conditions to the respective obligations of the parties hereto to consummate the Transactions, as set forth in Article X.

“Closing Transaction Expenses” shall mean, except as otherwise incurred by the Seller Group or the Acquired Companies in compliance with Section 6.7, the aggregate amount of all out-of-pocket fees and expenses (whether or not yet invoiced), incurred by the Seller Group or the Acquired Companies, or otherwise on behalf of the Acquired Companies, and, in each case, to be paid by the Acquired Companies or that constitutes an Assumed Liability to be paid by Purchaser, in connection with the sale process for the Business (or any portion thereof), or otherwise relating to the negotiation, preparation or execution of this Agreement or any documents or agreements contemplated hereby or the performance or consummation of the transactions contemplated hereby or thereby, in each case, solely to the extent unpaid as of the Benchmark Time and incurred by the Seller Group or the Acquired Companies, or otherwise on behalf of the Acquired Companies, and, in each case, payable by an Acquired Company or that constitutes an Assumed Liability to be paid by Purchaser, including: (a) fees and expenses of counsel, advisors and consultants, accountants and auditors and experts engaged in connection with the transactions contemplated by this Agreement or the sale process for the Business, in each case, to be paid by the Acquired Companies or that constitutes an Assumed Liability to be paid by Purchaser and (b) all transaction-related bonuses, severance payments and other similar payments in connection with the consummation of the transactions contemplated hereby (and including, in each case, the employer portion of any corresponding unemployment, social security, and payroll Taxes incurred under applicable Legal Requirements) (excluding (i) any severance payments arising as a result of the occurrence of one or more additional post-Closing events under so-called “double-trigger” severance provisions contained in any Acquired Company Benefit Plan, (ii) any payments or benefits made or provided pursuant to an arrangement implemented by, or severance payments or similar benefits that are triggered as a result of post-Closing actions taken by, Purchaser or any of its Affiliates (including, post-Closing, the Acquired Companies), and (iii) any retention bonuses or similar compensation that are payable based on continued employment post-Closing that were disclosed in accordance with Section 4.13(a) of this Agreement to Purchaser prior to the date hereof), in each case, to be paid by the Acquired Companies or that constitutes an Assumed Liability to be paid by Purchaser. It is agreed and understood that any item that is included in Closing Transaction Expenses shall not be included as a current liability for purposes of calculating Net Working Capital as of the Benchmark Time or as an item of Indebtedness as of the Benchmark Time.

“Code” shall mean the Internal Revenue Code of 1986.

“Collective Bargaining Agreement” shall mean any collective bargaining agreement or other labor-related agreement with any labor or trade union, works council, employee representative or association or other labor organization, representing Business Employees.

“Competing Business Activities” shall mean the research, development, design, manufacture, provision, marketing, promotion, sale, supply or distribution of any product, process or service that has the same or substantially similar purpose or use as, or is otherwise competitive with, a product, process or service researched, developed, designed, manufactured, promoted, marketed, sold or offered for sale by the Business as of immediately prior to the Closing.

“Compliant” shall mean, as of any time of determination, with respect to the Required Information, that (a) such Required Information, taken as a whole, at such time does not contain any untrue statement of a material fact with respect to the Acquired Companies or omit to state any material fact with respect to the Acquired Companies required to be stated therein or necessary in order to make the Required Information, in the light of the circumstances under which the statements contained therein are made, not misleading with respect to the Acquired Companies, (b) the independent auditors of the Acquired Companies have not objected to the use of, withdrawn or otherwise modified any audit opinion with respect to the financial statements contained in the Required Information and have confirmed they are prepared to issue a customary comfort letter, including as to customary negative assurances and change period, in order to consummate any Debt Financing (subject to their completion of customary procedures) on any day during the applicable Marketing Period, (c) with respect to any interim financial statements, such interim financial statements have been SAS 100 reviewed by the independent auditors of the Acquired Companies, (d) such Required Information complies in all material respects with all applicable requirements of Regulation S-K and Regulation S-X under the Securities Act for a registered public offering of securities on Form S-1 (other than financial statements and other information required by Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X (and in each case any successor thereto), the compensation discussion and analysis or other information required by Item 402 of Regulation S-K or the executive compensation and related person disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A, and other information or financial data customarily excluded from a Rule 144A offering memorandum), and (e) the financial statements and other financial information included in such Required Information would not be deemed stale or otherwise be unusable under customary practices for offerings and private placements of debt securities under Rule 144A of the Securities Act and are, and remain throughout the applicable Marketing Period, sufficient to permit the Acquired Companies’ independent accountants to issue comfort letters, including as to customary negative assurances and change period, in order to consummate any offering of debt securities on any day during the applicable Marketing Period, which such accountants have confirmed they are prepared to issue (it being understood and agreed by the parties hereto that any financial statements required pursuant to the terms hereof shall be in substantially the same scope and level of detail as the Required Information, except that only annual financial statements will be subject to audit procedures, with any interim periods subject to SAS 100 review).

“Condition Satisfaction Date” shall mean the date on which the Closing Conditions, other than those conditions which, by their terms or nature, are to be satisfied at the Closing, are satisfied or, to the extent permitted by applicable Legal Requirements, so waived in writing.

“Confidentiality Agreement” shall mean the confidentiality agreement between Purchaser and Seller, dated December 8, 2023.

“Consent” shall mean any consent, approval or authorization.

“Consolidated Return” shall mean any consolidated, combined, unitary or similar Tax Return that includes Seller or any of its Affiliates (other than the Acquired Companies), on the one hand, and any Acquired Company, on the other hand.

“Contagion Event” shall mean the outbreak and ongoing effects of a contagious disease, epidemic or pandemic (including COVID-19).

“Contract” shall mean any agreement, contract, instrument, obligation, promise, understanding, arrangement, commitment or undertaking of any nature that is legally binding on any Person or entity or any part of its property under applicable Legal Requirements, other than a Permit.

“COVID-19” shall mean SARS-CoV-2 or COVID-19 (and all related mutations, variations, strains and sequences), and any future intensification, resurgence, variants, evolutions or mutations thereof or related or associated health conditions, epidemics, pandemics, disease outbreaks or public health emergencies.

“Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Documents, including any offering or private placement of debt securities pursuant to the capital markets debt financing engagement referred to therein, for the purpose of financing the Transactions and related fees and expenses contemplated by this Agreement.

“eCommerce Platform Software” shall mean the proprietary software (including the object code and source code) that is owned by Seller or any of its Affiliates (other than the Acquired Companies) that is related to the eCommerce platform made available to end users of any of the Acquired Companies, which shall include, the business solutions known as Parts Central, Partable and any aftermarket parts punch-out catalog. “eCommerce Platform Software” shall not mean or include any historical or future data or meta data related to the Business, Acquired Companies or their respective end users, including, but not limited to, data pertaining to parts, weights, dimensions, or photographs.

“Employment Commencement Date” shall mean the Closing Date.

“Encumbrance” shall mean any lien, pledge, claim, hypothecation, charge, mortgage, deed of trust, easement, servitude, purchase agreement, option, security interest or similar encumbrance.

“Environmental Law” shall mean any applicable Legal Requirement relating to pollution, protection of the environment or natural resources, or human health or safety (to the extent relating to Hazardous Materials), including the use, handling, transportation, treatment, storage, disposal, Release or threat of Release, distribution, sale, marketing, or labeling of, or exposure to, Hazardous Materials.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974.

“Financing Source” shall mean the Persons that have committed to provide or arrange the Debt Financing, including the parties who have committed to provide Debt Financing pursuant to the Debt Commitment Documents (such persons, the “Financing Entities”), and, in each case, their respective former, current and future Representatives and other Affiliates; provided that neither Purchaser nor any Affiliate thereof shall be a Financing Source.

“Former Business Employee” shall mean each individual who was employed by an Acquired Company whose employment terminated for any reason prior to the Closing.

“Fraud” shall mean, with respect to any party hereto, an actual and intentional act of common law fraud by such party in the making of a representation or warranty expressly stated in this Agreement; which satisfies each of the following conditions: (a) such representation or warranty was materially false or materially inaccurate at the time such representation or warranty was made; (b) the party making such representation or warranty had actual knowledge (and not imputed or constructive knowledge), without any duty of inquiry or investigation, that such representation or warranty was materially false or materially inaccurate when made; (c) such party had the specific intent to deceive another party hereto and induce such other party to enter into this Agreement; and (d) such other party reasonably relied on such false or inaccurate representation or warranty in entering into this Agreement, the other Transaction Documents or the certificates required to be delivered hereunder. “Fraud” shall not include any cause of action under law or equity, including for fraud, based on constructive or imputed knowledge, negligence or recklessness, and only the Persons who committed Fraud shall be responsible for such Fraud and only to the party established to have suffered Loss as a proximate result of such Fraud.

“GAAP” shall mean the generally accepted accounting principles in the United States in effect from time to time, consistently applied.

“Government Contract” shall mean any Contract, including purchase, task, or delivery orders, between any Acquired Company or, to the extent related to the Business, Seller or any of its Subsidiaries, on the one hand, and (a) any Governmental Authority and (b) any prime contractor of any Governmental Authority in its capacity as a prime contractor.

“Governmental Authority” shall mean any United States federal, state or local, or any supra-national or other non-United States government, political subdivision, governmental, regulatory or administrative authority, instrumentality, service cooperative, agency, body or commission, self-regulatory organization or any court, tribunal or judicial or arbitral body (public or private), in each case, exercising executive, legislative, judicial, regulatory, taxing or administrative functions.

“Hazardous Materials” shall mean (a) petroleum, petroleum products, by-products or breakdown products, radioactive materials, asbestos and asbestos-containing materials, lead and lead-based paint, per-and polyfluoroalkyl substances, toxic mold in quantities or concentrations that exceed applicable health standards or guidelines, radon, or polychlorinated biphenyls and (b) any chemical, material or substance defined or regulated as hazardous, toxic, a pollutant or a contaminant, or words of similar meaning or regulatory effect or for which liability or standards of conduct may be imposed under any applicable Environmental Law.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Income Tax” shall mean any Taxes imposed on or determined with reference to gross or net income, profits or receipts (including any franchise or withholding Taxes imposed in lieu thereof).

“Indebtedness” shall mean, without duplication with respect to the Acquired Companies (or Assumed Liabilities, but excluding Retained Liabilities): (a) the unpaid principal amount of and accrued interest in respect of indebtedness for borrowed money, whether secured or unsecured, (b) all obligations that are evidenced by a note, bond, draft, mortgage, debenture or similar debt instrument or security, (c) all obligations under or pursuant to leases which are capitalized or in accordance with GAAP are required to be capitalized (which, for the avoidance of doubt, excludes any obligations under any operating leases that may be required to be recorded on a balance sheet pursuant to Accounting Standards Codification Topic 840 or 842, including those items set forth on Schedule 1.1(c) of the Seller Disclosure Schedule), (d) all obligations in respect of letters of credit, bankers’ acceptances, surety and performance bonds and guarantees, and similar obligations, in each case, solely to the extent drawn or called, (e) all indebtedness secured by a purchase money mortgage or other Encumbrance on assets of the Acquired Companies to secure all or part of the purchase price of property subject to such Encumbrance, (f) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired, (g) all obligations to purchase, redeem, retire, defease or otherwise acquire for value any debt or equity securities, (h) all obligations under derivative financial instruments, including hedges, currency and interest rate swaps and similar instruments and arrangements, (i) any Unpaid Income Taxes, (j) any payment obligation with respect to the termination of the Intercompany Agreements and other intercompany accounts or obligations in accordance with Section 6.4(a), (k) any accrued or earned but unpaid severance, restructuring costs, pension, unfunded or underfunded pension obligations, or any other similar obligations (and any employer portion of unemployment, social security, payroll or similar Taxes payable in connection therewith) in respect of any Business Employees, Former Business Employees or current or former officers, employees, directors, consultants or other service providers of the Business or any Acquired Company, (l) any guaranty (or, pursuant to any Contract or other arrangement, that has the economic effect of a guaranty) by any Acquired Company of obligations of the types described in the foregoing clauses (a) through (k), (m) all accrued and unpaid interest, together with prepayment premiums or penalties or accrued interest, prepayment penalties, make-whole payments and termination or breakage costs or other exit fees with respect to any indebtedness of a type described in the foregoing clauses (a) through (l); provided, however, that, in no event will Indebtedness include: (i) any indebtedness incurred by any Acquired Company, on the one hand, that is owed to any other Acquired Company, on the other hand, (ii) any amounts under existing letters of credit, lines of credit and revolving credit facilities to the extent not drawn or called, or (iii) any amount that is included as a Closing Transaction Expense. Indebtedness shall not include any fees or expenses of, or expenses initiated at the written request of, Purchaser or any of its Affiliates and not otherwise explicitly required to be incurred by Seller or any of its Affiliates under the Agreement, whether related to the Debt Financing, the Transactions or otherwise. It is agreed and understood that any item that is included in Indebtedness as of the Benchmark Time shall not be included as a current liability for purposes of calculating Net Working Capital as of the Benchmark Time.

“Indemnified Party” shall mean a party entitled to seek indemnification under Article XII.

“Indemnifying Party” shall mean a party hereto from whom indemnification or recovery is sought under Article XII.

“Initial Marketing Period” shall mean the first period of 16 consecutive Business Days after the date on which Seller shall have delivered to Purchaser the Required Information and throughout and at the end of which the Required Information delivered to Purchaser prior to the beginning of such period remains Compliant; provided that (x) the Initial Marketing Period shall either be completed on or prior to August 16, 2024 or commence no earlier than September 3, 2024, (y) the days from November 27, 2024 through and including November 29, 2024 shall not be included when counting such 16 consecutive Business Day period (and the Initial Marketing Period need not be consecutive to the extent it would have otherwise included any of those days) and (z) the Initial Marketing Period shall either be completed on or prior to December 20, 2024 or commence no earlier than January 6, 2025. Notwithstanding anything in the preceding sentence of this definition to the contrary, the Initial Marketing Period shall not commence or be deemed to have commenced if, after the date hereof and prior to the completion of such 16 consecutive Business Day period: (i) (A) Seller or any of its Affiliates has an intention to restate in any material respect any of the financial statements contained in the Required Information, or (B) any such restatement is under active consideration, in which case Seller shall promptly disclose such intention or reconsideration and the material facts and circumstances relating thereto to Purchaser and the Business’s independent auditor and the Initial Marketing Period shall not commence unless and until such restatement has been completed, the applicable Required Information has been amended and, to the extent such financial statements had previously been audited, an “unqualified” audit opinion is issued with respect to such restated financial statements, or Seller has certified in writing to Purchaser and the Business’s independent auditor that no restatement is required; or (ii) the Business’s independent auditor shall have withdrawn any audit opinion with respect to any of the financial statements contained in the Required Information, in which case the Initial Marketing Period shall not be deemed to commence unless and until a new “unqualified” audit opinion is issued with respect to such financial statements or any restatement thereof. Notwithstanding anything in this definition to the contrary, the Initial Marketing Period shall be deemed to have ended on the date on which the Debt Financing has been consummated. If at any time Seller shall reasonably and in good faith believe that it has provided the Required Information, it may deliver to Purchaser a written notice to that effect (stating when it believes it completed such delivery), in which case, the requirement to deliver the Required Information will be deemed to have been satisfied as of the date of such notice, unless Purchaser in good faith reasonably believes that Seller has not completed the delivery of the Required Information on such date and, within three (3) Business Days after the date of delivery of such notice, delivers a written notice to Seller to that effect (stating with specificity which Required Information Seller has not delivered) and, following delivery of such Required Information specified in such notice, the Initial Marketing Period will commence; provided that such written notice from Purchaser to Seller will not prejudice Seller’s right to assert that the Required Information was, in fact, delivered.

“Intellectual Property” shall mean all: (a) patents, patent applications and all related divisionals, continuations, continuations-in-part, reissues, extensions, substitutions and reexaminations (“Patents”), (b) trade secrets and other confidential and proprietary know-how, information, ideas, inventions, processes, formulae, models and methodologies (“Trade Secrets”), (c) trademarks, service marks, trade names, Internet domain names, logos, trade dress, and other similar designations of source or origin, and all registrations and applications for registration of the foregoing, together with the goodwill symbolized by and arising out of the use of any of the foregoing (“Trademarks”), (d) copyrights and copyrightable subject matter (whether registered or unregistered), all registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications (“Copyrights”), (e) rights in Software and (f) any and all other proprietary rights.

“Investment Screening Laws” shall mean any applicable United States or non-United States Legal Requirement intended to screen, prohibit or regulate foreign investments on public interest or national security grounds.

“IP Contract” shall mean any (a) Contract pursuant to which any Acquired Company or IP Seller has granted to any Person a license to or right to use any Acquired Company IP, other than (i) licenses of Acquired Company IP granted by an Acquired Company or IP Seller on a non-exclusive basis to a customer in connection with business or sales Contracts entered into in the ordinary course of business or (ii) other Contracts in which grants of rights to use Intellectual Property are non-exclusive, incidental and not material to the performance under such Contract; (b) Contract pursuant to which any Acquired Company has been granted a license to or right to use any Intellectual Property, other than (i) licenses of commercially available off-the-shelf software that have not been modified or customized for the Acquired Companies in any material respect and is licensed to an Acquired Company for a one-time or annual fee of five-hundred thousand dollars ($500,000) or less and (ii) other Contracts in which grants of rights to use Intellectual Property are non-exclusive, incidental and not material to the performance under such Contract and (c) consent, settlement and coexistence agreements and Orders governing the use, validity or enforceability of Acquired Company IP.

“IP Seller” shall mean Delaware Capital Formation, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Seller.

“IP Seller IP” shall mean the Intellectual Property set forth on Exhibit A.

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

“IT Assets” shall mean all computers, computer software, systems, websites, hardware, firmware, middleware, networks, servers, workstations, routers, hubs, switches, data communications lines and all other information technology equipment, and all associated documentation.

“Key Customer” shall mean each of the top twenty (20) customers of the Business who receive goods or services of the Business through Contracts directly with Seller or any of its Subsidiaries, determined on the basis of aggregate revenue of the Business for the twelve (12) month period ended December 31, 2023, and each of the top twenty (20) customers of the Business who receive goods or services of the Business through Contracts directly with Seller or any of its Affiliates, determined on the basis of aggregate revenue of the Business for the five (5) month period ended May 31, 2024, in each case as set forth on Schedule 1.1(d) of the Seller Disclosure Schedule.

“Key Supplier” shall mean each of the top twenty (20) suppliers or vendors of the Business who provide goods or services to the Business through Contracts directly with Seller or any of its Subsidiaries, determined on the basis of the aggregate spend of the Business for the twelve (12) month period ended December 31, 2023, and each of the top twenty (20) suppliers or vendors of the Business who provide goods or services to the Business through Contracts directly with Seller or any of its Affiliates, determined on the basis of the aggregate spend of the Business for the five (5) month period ended May 31, 2024, in each case as set forth on Schedule 1.1(e) of the Seller Disclosure Schedule.

“Leased Real Property” shall mean all real property leased, licensed or subleased by any Acquired Company pursuant to the Real Property Leases, together with all rights and interests (including if applicable easements) of the lessee appurtenant thereto.

“Legal Requirement” shall mean any statute, law (including international conventions, protocols and treaties), ordinance, regulation, rule, code, Order or enforceable or binding requirement of any Governmental Authority or any other requirement or rule of law (including common law) promulgated by a Governmental Authority.

“Liabilities” shall mean any and all Indebtedness, liabilities, guarantees, assurances, commitments and obligations of any kind or nature, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, reflected on a balance sheet or otherwise, whenever or however arising, including, but not limited to, those arising under any Legal Requirement or judgment, Contract or tort based on negligence or strict liability.

“Losses” shall mean all losses, damages, judgments, costs, expenses and Liabilities actually suffered or incurred (including reasonable attorneys’ fees).

“Malicious Code” shall mean any (i) virus, malware, ransomware, Trojan horse, worm, back door, time bomb, drop dead device, spyware, trackware or adware and (ii) similar program, routine, instruction, device, code, contaminant, logic or effect designed or intended to disable, disrupt, erase, harm, or otherwise impede the operation of, or enable any Person to access without authorization, or otherwise materially and adversely affect the functionality of, any IT Asset (or portion thereof).

“Marketing Periods” shall mean each of the Initial Marketing Period and Secondary Marketing Period.

“Material Adverse Effect” shall mean any event, change, development or effect that, individually or in the aggregate, has had or would be reasonably expected to have a material adverse effect on the business, financial condition, assets and liabilities, operations or results of operations of the Business or the Acquired Companies, taken as a whole; provided that, no event, change, development or effect resulting or arising from or in connection with any of the following matters shall be deemed, either alone or in combination, to constitute or contribute to, or be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect: (a) any national, international, foreign, domestic or regional economic, financial, social or political conditions (including changes therein), including (i) hostilities, acts of war, protests, riots, unrest, sabotage, terrorism, or military actions or any escalation or worsening of any of the same, (ii) changes in any financial, debt, credit, capital or banking markets or conditions (including the prices or availability of commodities, raw materials or energy supply used in the Business, any increase in operating costs or capital expenses, inflation or any changes in the rate, increase or decrease of inflation or any disruption thereof), and (iii) changes in interest, currency or exchange rates or tariffs or any trade wars, (b) any act of God, hurricane, flood, tornado, fire, explosion, weather event, earthquake, landslide, other natural disaster, any Contagion Event or other outbreak of illness or public health event (whether human or animal), (c) changes in legal or regulatory conditions, including changes in Legal Requirements (or standards, interpretations or enforcement thereof and including guidelines and directives of industry groups), whether or not related to a Contagion Event or other public health emergency, (d) changes in GAAP or other accounting practices, policies or requirements, or standards, interpretations, including in the interpretation or enforcement thereof, (e) changes in the industries or markets in which the Business operates, including competition in any of the geographic areas in which the Business operates, (f) the failure of the Business to meet any internal or published projections, estimates or forecasts of revenues, goals, earnings or other measures of financial or operating performance for any period (it being understood and agreed that any underlying facts giving rise or contributing to such failure that are not otherwise expressly excluded from this definition of “Material Adverse Effect” may be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur), (g) changes in credit ratings or changes in the trading price or volume of Seller’s common stock (it being understood and agreed that any underlying facts giving rise or contributing to such changes that are not otherwise expressly excluded from this definition of “Material Adverse Effect” may be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur), (h) any effect resulting from the negotiation, execution, pendency, announcement or consummation of the Transactions or compliance with the terms of any Transaction Document (provided that the exception in this clause (h) shall not apply with respect to representations and warranties in Section 4.2 and, to the extent related to such representation and warranty, the condition set forth in Section 10.1(a)), (i) any actions taken to which Purchaser has consented in writing or that are taken after the date hereof at the written request of Purchaser, (j) the effect of any action taken or omission to act by Purchaser with respect to the Business, the Acquired Companies or the Transactions, including any communication or disclosure by Purchaser or any of its Affiliates of its plans or intentions with respect to the Business or the Acquired Companies, including Losses or threatened Losses of, or any adverse change in the relationship with, employees, customers, suppliers, vendors, resellers, distributors, financing sources, licensors, licensees, Governmental Authorities or others having relationships with the Business, or (k) the effect of any event or action taken or omission to act by Seller or its Affiliates with the express written consent (or at the express written request) of Purchaser; provided that to the extent that any event, change, development or effect in the foregoing clauses (a), (b), (c), (d) or (e) has a greater adverse impact on the Business, taken as a whole, as compared to the adverse impact such event, change, development or effect has on other Persons operating in the same industries as the Business operates, then the incremental effect of such event, change, development or effect shall be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur.

“Net Working Capital” shall have the meaning set forth on Schedule A.

“Net Working Capital Overage” shall mean the amount, if any, by which (a) the Net Working Capital as of the Benchmark Time is greater than (b) the Target Net Working Capital Upper Amount.

“Net Working Capital Underage” shall mean the amount, if any, by which (a) the Net Working Capital as of the Benchmark Time is less than (b) the Target Net Working Capital Lower Amount.

“Open Source Software” shall mean any Software that is, contains or is derived from Software distributed as freeware, shareware or open source Software, or under similar licensing or distribution models that (a) require the licensing, disclosure or distribution of source code or any other Intellectual Property to any other Person, (b) prohibit or limit the receipt of consideration in connection with licensing or distributing any Software or other Intellectual Property, (c) allow any Person to decompile, disassemble or reverse engineer any Software or (d) otherwise are identified as open source licensing or distribution models by the Open Source Initiative at www.opensource.org or the Free Software Foundation at www.fsf.org.

“Order” shall mean any order, writ, judgment, injunction (whether temporary, preliminary, or permanent), temporary restraining order, decree, stipulation, decision, ruling, determination or award entered by or with any Governmental Authority.

“Permit” shall mean any permit, license, authority, registration, concession, grant, franchise, certificate, accreditation, clearance, consent, approval, identification numbers exemption, waiver, filing or other authorization issued or required by any Governmental Authority under any applicable Legal Requirement.

“Permitted Encumbrances” shall mean (a) Encumbrances for Taxes, assessments or other governmental charges or levies not yet delinquent or the amount or validity of which is being contested in good faith by appropriate Proceedings and, in each case for which adequate accruals or reserves have been established on the books and records of the Acquired Companies in accordance with GAAP, (b) Encumbrances of carriers, warehousemen, mechanics or suppliers, materialmen, workmen, repairmen and other similar Encumbrances imposed or permitted by Legal Requirements arising or incurred in the ordinary course of business for amounts which are not yet delinquent or the amount or validity of which is being contested in good faith by appropriate Proceedings, (c) Encumbrances incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security, (d) Encumbrances, defects or imperfections of title, and other similar matters, in each case affecting title to the Real Property that do not impose material monetary obligations on the Acquired Companies and do not, and would not reasonably be expected to, individually or in the aggregate, materially impair the value of the assets to which they apply, or materially and adversely affect, or materially disrupt, the ordinary course operation of the Business, (e) zoning, entitlement, building and other generally applicable land use restrictions (including those related to the use or management of environmental resources) by a Governmental Authority (provided that such liens and restrictions are not violated in a manner that would materially and adversely impair the Company’s current business operations at such location), (f) Encumbrances imposed on the underlying fee interest of any Leased Real Property not created or permitted by Seller or its Affiliates (unless permission is required under the terms of the applicable lease), (g) leases, subleases, licenses, sublicenses or other agreements (including proposed leases and renewals) for the use and/or occupancy of the Real Property, and any Encumbrances arising thereunder or created thereby, (h) Encumbrances incurred in the ordinary course of business securing liabilities that are not material to the Business, taken as a whole, (i) Encumbrances arising out of, relating to or resulting from any Transaction Document, (j) rights, terms or conditions of any Real Property Lease, (k) licenses or sublicenses of Intellectual Property granted by the Acquired Companies in the ordinary course of business, (l) Encumbrances on securities created under federal, state or foreign securities Legal Requirements, (m) deposits to secure the performance of bids, trade Contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business, (n) statutory Encumbrances of lessors or licensors imposed by Legal Requirements as against tenant’s fixtures arising or incurred in the ordinary course of business for amounts which are not yet delinquent or the amount or validity of which is being contested in good faith by appropriate Proceedings and for which adequate accruals or reserves have been established on the books and records of the Acquired Companies in accordance with GAAP, (o) Encumbrances that will be released at or prior to the Closing, (p) deed restrictions limiting the use of Real Property to the extent the same are not and would not in the future be violated by the current use of such Real Property; (q) Encumbrances created or permitted by Purchaser or any of its Affiliates in writing, (r) any set of facts that would be disclosed by an accurate and up-to-date title report, inspection or survey of the Real Property; provided that such facts do not materially interfere with the current use and operation or materially impair the value of any parcel of Real Property, individually or in the aggregate and (t) those Encumbrances set forth on Schedule 1.1(f) of the Seller Disclosure Schedule.

“Person” shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust or company (including any limited liability company or joint stock company) or other similar entity, including a Governmental Authority.

“Personal Information” shall mean means any information that either directly or indirectly identifies or, alone or in combination with any other information, could reasonably be used to identify, locate, or contact a natural Person, including name, street address, telephone number, email address, identification number issued by a Governmental Authority, payment card number, bank information, customer or account number, online identifier, device identifier, IP address, browsing history, search history, or other website, application, or online activity or usage data, location data, biometric data, medical or health information, or any other information that is considered “personally identifiable information,” “personal information,” or “personal data” or any similar term under applicable Legal Requirement or in an Acquired Company’s privacy policies, notices, or the contracts to which it is subject.

“Post-Closing Straddle Period” shall mean the portion of any Straddle Period beginning after the Closing Date.

“Post-Closing Tax Period” shall mean any taxable period beginning after the Closing Date and any Post-Closing Straddle Period.

“Pre-Closing Straddle Period” shall mean the portion of any Straddle Period ending on the Closing Date.

“Pre-Closing Tax Period” shall mean any taxable period ending on or before the Closing Date and any Pre-Closing Straddle Period.

“Privacy Laws” shall mean all applicable Legal Requirements or any Orders concerning the privacy, security, or Processing of Personal Information (including Legal Requirements of jurisdictions where Personal Information was collected), including, as applicable, Legal Requirements concerning data breach notification; consumer protection requirements for website and mobile application privacy policies and practices; social security number protection; and data security. Without limiting the foregoing, Privacy Laws include: the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act, the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, the California Online Privacy Protection Act, the California Invasion of Privacy Act, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Video Privacy Protection Act, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the General Data Protection Regulation (Regulation (EU) 2016/679), the UK General Data Protection Regulation and the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications as amended by Directive 2009/136/EC (and any member state laws and regulations implementing it), the Privacy and Electronic Communications Regulation, the Personal Information Protection and Electronic Documents Act, and Canada’s Anti-Spam Legislation (SC 2010, c 23), and all other similar international, federal, state, provincial, and local Legal Requirements.

“Proceeding” shall mean any audit, action, claim, suit, litigation, lawsuit, arbitration, complaint, investigation or proceeding (whether civil, criminal or administrative) by or before any Governmental Authority.

“Processing” shall mean any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as the receipt, access, acquisition, collection, recording, organization, compilation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transfer, transmission, dissemination or otherwise making available, alignment or combination, restriction, disposal, erasure or destruction of such Personal Information or sets of Personal Information.

“Purchaser Disclosure Schedule” shall mean the disclosure schedules dated as of the date of this Agreement and delivered by Purchaser to Seller in connection with the execution of this Agreement.

“Purchaser Fundamental Representations” shall mean the representations and warranties of Purchaser set forth in Section 5.1 (Authority;Enforceability), Section 5.3 (Organization), Section 5.7 (Solvency) and Section 5.8 (Brokers).

“Purchaser Material Adverse Effect” shall mean any event, change, development or effect that is or would reasonably be expected to be, individually or in the aggregate, materially adverse to the ability of Purchaser to timely perform its obligations under this Agreement or would reasonably be expected to, individually or in the aggregate, prevent, impede, impair, interfere with, hinder, delay, or adversely affect, in any material respect, the consummation by Purchaser of the Transactions.

“Purchaser’s Knowledge” and similar phrases shall mean the knowledge of the individuals set forth on Schedule 1.1(a) of the Purchaser Disclosure Schedule after due inquiry of each such individual of such individual’s direct reports.

“Real Property” shall mean the Leased Real Property and the Owned Real Property.

“Release” shall mean any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, dispersing, or migrating in, into, onto or through the indoor or outdoor environment.

“Representatives” shall mean officers, directors, employees, principals, partners, members, managers, attorneys, accountants, agents, consultants, financial or other advisors, authorized representatives and Affiliates.

“Required Information” shall mean, collectively, (a) the Audited Financial Information, (b) the unaudited consolidated balance sheets and the related unaudited consolidated interim statements of income, stockholders’ equity and cash flows of the Business for each subsequent interim financial period (other than any fourth fiscal quarter) ended more than 45 days prior to the Closing Date (and the corresponding period of the prior fiscal year), in each case, prepared in accordance with U.S. GAAP and (c) such other customary information regarding the Business that is reasonably necessary to complete the Debt Financing and of the type and form customarily included in a confidential offering memorandum for private placements of non-convertible high-yield bonds pursuant to Rule 144A promulgated under the Securities Act (including information necessary for Purchaser’s preparation of customary pro forma financial statements to be included therein), consistent with the information required by paragraph 12 of Exhibit D of the Debt Commitment Letter.

“Restricted Person” shall mean any Person identified on the U.S. Department of Commerce’s Entity List, Denied Persons List, Unverified List or Military End User List, or the U.S. Department of State’s Debarred List.

“Retained Liabilities” shall mean any and all Liabilities (other than the Assumed Liabilities) of any member of the Seller Group, whether arising prior to, on or after the Closing Date.

“Sanctioned Jurisdiction” shall mean a country or territory that is itself the subject or target of any comprehensive Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, the so-called Luhansk People’s Republic, and the so-called Donetsk People’s Republic regions of Ukraine, and the non-government-controlled areas of Ukraine in the oblasts of Kherson and Zaporizhzhia).

“Sanctioned Person” shall mean any Person that is the subject of Sanctions, including as a result of being (a) listed in any list of sanctioned or designated Persons under Sanctions; (b) located, organized, or resident in a Sanctioned Jurisdiction; or (c) directly or indirectly owned fifty percent (50%) or more or controlled, individually or in the aggregate, by one or more Persons described in the foregoing clauses (a) or (b).

“Sanctions” shall mean any economic or financial sanctions and trade embargoes, including those administered by the United States (including through U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Department of State), United Nations, the European Union or any member state, or the United Kingdom.

“SEC” shall mean the Securities and Exchange Commission.

“Secondary Marketing Period” shall mean, solely to the extent the proceeds of the Debt Financing in an amount equal to at least the Required Amount have not been obtained prior to the satisfaction of the conditions set forth in Article X (other than those conditions that by their nature are to be satisfied at the Closing), the first period of 16 consecutive Business Days after the date on which (a) Seller shall have delivered to Purchaser the Required Information and throughout and at the end of which the Required Information delivered to Purchaser prior to the beginning of such period remains Compliant and (b) the conditions set forth in Article X shall have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing) as of (and throughout) the beginning of such period and nothing has occurred and no condition or state of facts exists that would cause any of the conditions set forth in Article X to fail to be satisfied assuming the Closing were to be scheduled for any time during such 16 consecutive Business Day period; provided that (x) the Secondary Marketing Period shall either be completed on or prior to August 16, 2024 or commence no earlier than September 3, 2024, (y) the days from November 27, 2024 through and including November 29, 2024 shall not be included when counting such 16 consecutive Business Day period (and the Secondary Marketing Period need not be consecutive to the extent it would have otherwise included any of those days) and (z) the Secondary Marketing Period shall either be completed on or prior to December 20, 2024 or commence no earlier than January 6, 2025. Notwithstanding anything in the preceding sentence of this definition to the contrary, the Secondary Marketing Period shall not commence or be deemed to have commenced if, after the date hereof and prior to the completion of such 16 consecutive Business Day period: (i) (A) Seller or any of its Affiliates has an intention to restate in any material respect any of the financial statements contained in the Required Information, or (B) any such restatement is under active consideration, in which case Seller shall promptly disclose such intention or reconsideration and the material facts and circumstances relating thereto to Purchaser and the Business’s independent auditor and the Secondary Marketing Period shall not commence unless and until such restatement has been completed, the applicable Required Information has been amended and, to the extent such financial statements had previously been audited, an “unqualified” audit opinion is issued with respect to such restated financial statements, or Seller has certified in writing to Purchaser and the Business’s independent auditor that no restatement is required; or (ii) the Business’s independent auditor shall have withdrawn any audit opinion with respect to any of the financial statements contained in the Required Information, in which case the Secondary Marketing Period shall not be deemed to commence unless and until a new “unqualified” audit opinion is issued with respect to such financial statements or any restatement thereof. Notwithstanding anything in this definition to the contrary, the Secondary Marketing Period shall be deemed to have ended on the date on which the Debt Financing has been consummated. If at any time Seller shall reasonably and in good faith believe that it has provided the Required Information, it may deliver to Purchaser a written notice to that effect (stating when it believes it completed such delivery), in which case, the requirement to deliver the Required Information will be deemed to have been satisfied as of the date of such notice, unless Purchaser in good faith reasonably believes that Seller has not completed the delivery of the Required Information on such date and, within three (3) Business Days after the date of delivery of such notice, delivers a written notice to Seller to that effect (stating with specificity which Required Information Seller has not delivered) and, following delivery of such Required Information specified in such notice, the Secondary Marketing Period will commence; provided that such written notice from Purchaser to Seller will not prejudice Seller’s right to assert that the Required Information was, in fact, delivered.

“Securities Act” shall mean the United States Securities Act of 1933.

“Seller Affiliated Group” shall mean any affiliated group (within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local, or non-U.S. law) that includes Seller or any of its Affiliates (other than the Acquired Companies), on the one hand, and any Acquired Company, on the other hand.

“Seller Benefit Plan” shall mean each Benefit Plan, other than an Acquired Company Benefit Plan, that is sponsored, maintained or contributed to (or required to be contributed to) by Seller or any of its Affiliates for the benefit of any Business Employee or Former Business Employee.

“Seller Disclosure Schedule” shall mean the disclosure schedules dated as of the date of this Agreement and delivered by Seller to Purchaser in connection with the execution of this Agreement.

“Seller Fundamental Representations” shall mean the representations and warranties of Seller set forth in Section 4.1 (Authority;Enforceability), Section 4.3(a) and Section 4.3(b) (Organization; Acquired Companies), Section 4.4 (Title; Shares) and Section 4.18 (Brokers).

“Seller Group” shall mean Seller and its Affiliates (other than the Acquired Companies).

“Seller Group Marks” shall mean all Trademarks consisting of or incorporating “Dover” or any other Trademark of the Seller Group set forth on Schedule 7.1 of the Seller Disclosure Schedule, and all variations and derivatives thereof.

“Seller Party” shall mean Seller, the Share Seller and the IP Seller.

“Seller’s Knowledge” and similar phrases shall mean the knowledge of the individuals set forth on Schedule 1.1(g) of the Seller Disclosure Schedule after due inquiry of each such individual of such individual’s direct reports. Notwithstanding the foregoing, with respect to Intellectual Property, such inquiry is not required to include freedom to operate analyses, clearance searches, validity or noninfringement analyses or opinions, or any other similar analyses or opinions of counsel.

“Shared Contracts” shall mean any (a) Contracts under which the Business and at least one other business unit of Seller or any of its Affiliates purchases or sells goods or services on a joint basis or uses goods or services on a joint basis and (b) Contracts that directly benefit both the Business and at least one other business unit of Seller and its Affiliates; provided that with respect to the foregoing clauses (a) and (b), in no event shall the term “Shared Contracts” include any Contracts (i) for general corporate functions furnished by Seller or its Affiliates (other than the Acquired Companies) on an enterprise-wide basis to Seller and its Affiliates, including the Corporate Functions, to the extent such functions will be provided to Purchaser under the Transition Services Agreement or (ii) set forth on Schedule 1.1(h) of the Seller Disclosure Schedule.

“Shares” shall mean all of the issued and outstanding shares of each Acquired Entity.

“Software” shall mean (a) firmware, middleware, computer programs, applications, and code, including source code and object code; (b) data and databases, whether machine-readable or otherwise and (c) development and design tools, library functions and compilers, and graphical user interfaces, together, in each case of clauses (a) through (c), with respect to any Software in existence as of the Closing Date, all (i) bug or error fixes, patches, modifications, enhancements, updates, upgrades, corrections, replacement and successor products, new versions, new releases, and derivative works of, to or based on any of the foregoing; (ii) media, documentation, user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing are recorded; and (iii) copies and tangible embodiments of any of the foregoing in any form or media.

“Straddle Period” shall mean any Tax period that begins on or before the Closing Date and ends after the Closing Date.

“Subsidiary” shall mean, with respect to any Person, whether incorporated or unincorporated, any other Person of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions or (b) such first Person is a general partner or managing member; provided that, from and after the Closing, none of the Acquired Companies shall be considered a Subsidiary of Seller or any of its Affiliates.

“Target Net Working Capital Lower Amount” shall mean [redacted] dollars ($[redacted]).

“Target Net Working Capital Upper Amount” shall mean [redacted] dollars ($[redacted]).

“Tax” shall mean (a) all forms of taxation imposed by any Governmental Authority including all United States federal, state, local or non-U.S. taxes of any kind, (including income, value added, occupation, real and personal property, social security (or similar), gross receipts, sales, use, ad valorem, franchise, profits, license, withholding, payroll, employment, unemployment, excise, severance, occupation, premium or windfall profit, estimated, alternative, add-on minimum, transfer, stamp or other taxes, charges, duties, imposts, assessments, tariffs or levies) and (b) any interest, penalties and additions to tax imposed with respect to any item described in the preceding clause.

“Tax Authority” shall mean a Governmental Authority responsible for the imposition, assessment or collection of any Tax.

“Tax Return” shall mean any report, return, statement, declaration, notice, certificate or other document filed or required to be filed with any Tax Authority in connection with the determination, assessment, collection or payment of any Tax.

“Trade Controls” shall mean any applicable Legal Requirement related to (a) the importation of merchandise, the export or re-export or transfer of products (including software, technology and services), or the ethical conduct of international business activities, including, but not limited to, the Tariff Act of 1930, the Export Administration Act of 1979, the Export Control Reform Act of 2018, the Export Administration Regulations, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the Arms Export Control Act, the International Traffic in Arms Regulations, Executive Orders of the President of the United States regarding economic sanctions and restrictions on transactions with designated entities (including countries, territories, terrorists, organizations and individuals), (b) Sanctions, (c) the anti-boycott regulations administered by the United States Department of Commerce, and the anti-boycott provisions administered by the United States Department of the Treasury.

“Transaction Documents” shall mean this Agreement, the Transition Services Agreement and the Intellectual Property Assignment Agreement, in each case including all exhibits, annexes and schedules thereto and all amendments thereto made in accordance with the respective terms hereof and thereof and the other documents contemplated by such agreements, including the certificates delivered pursuant thereto.

“Transactions” shall mean the transactions contemplated by this Agreement and the other Transaction Documents.

“Transfer Taxes” shall mean any sales, use, stock transfer, real property transfer, transfer, indirect transfer, goods and services, value-added, stamp, registration, documentary, conveyancing, recording or similar Taxes.

“Treasury Regulations” shall mean the United States Treasury regulations promulgated under the Code.

“Unpaid Income Taxes” shall mean an amount (which shall not be less than zero in the aggregate or in respect of any jurisdiction or any type of Income Tax) equal to the unpaid Income Taxes of the Acquired Companies for any Pre-Closing Tax Period for which Tax Returns have not been filed as of the end of the Closing Date solely in respect of those jurisdictions in which the applicable Acquired Company is currently filing Tax Returns for such Income Taxes; provided that the amount of such Income Taxes shall be determined: (a) on an entity-by-entity basis, such that the deductions and losses of one Acquired Company may not be used to offset the income and gain of another Acquired Company unless such offset is actually permitted by applicable Legal Requirements; (b) by including in taxable income any adjustment as a result of a change in or use of an improper method of accounting on or prior to the Closing Date and any prepaid amounts or deferred revenue that, in each case, would not otherwise be included in taxable income on or prior to the Closing Date, and (c) by disregarding or otherwise excluding any transactions or other actions entered into by Purchaser, its Affiliates or the Acquired Companies outside the ordinary course of business on the Closing Date after the Closing not otherwise contemplated by this Agreement; (d) by excluding any Liabilities for contingent Income Taxes or with respect to uncertain Tax positions for which accruals or reserves have been established in accordance with GAAP; (e) in accordance with the accounting methodologies and the past practices (including reporting positions, elections and accounting methods) of the applicable Acquired Company in preparing its Tax Returns in respect of Income Taxes; (f) by excluding any deferred Tax assets and liabilities; (g) by taking into account any estimated payments and overpayments of such Income Taxes with respect to any Pre-Closing Tax Period; and (h) by excluding any Section 338(h)(10) Election Taxes and any Taxes for any Seller-Filed Tax Returns. In the case of any Straddle Period, Unpaid Income Taxes shall include any amount of Income Taxes allocable to the portion of the Straddle Period ending on and including the Closing Date as determined by applying the conventions set forth in Section 8.5.

“Willful Breach” shall mean: (a) an action or failure to act by one of the parties hereto that constitutes a material breach or violation of this Agreement, and was taken or occurred with such party’s knowledge or intention that such action or failure to act constituted a material breach or violation of this Agreement, and such breach or violation: (i) resulted in, or was a principal cause of, the failure of any of the Closing Conditions to be satisfied or (ii) resulted in, or was a principal cause of, the Closing not being consummated at the time the Closing would have occurred pursuant to Section 3.1, or (b) the failure of Purchaser to deliver the full consideration payable pursuant to Article III at the time the Closing is required to occur pursuant to Section 3.1.

Article II

THE TRANSACTIONS

2.1            Sales and Purchases.

(a)            Subject to the terms and conditions of this Agreement, at the Closing, Seller shall cause (i) the Share Seller to sell, transfer, convey, assign and deliver to Purchaser (or Purchaser’s designee), and Purchaser shall (or shall cause one or more of its designees to) purchase from the Share Seller, all of the Shares and (ii) IP Seller to sell, transfer, convey, assign and deliver to Purchaser (or one or more of Purchaser’s designees), and Purchaser shall (or shall cause one or more of its designees to) purchase from IP Seller all of IP Seller’s right, title and interest in and to the IP Seller IP, in each case, free and clear of all Encumbrances (other than, in the case of the Shares, those arising under applicable securities Legal Requirements and, in the case of the IP Seller IP, Permitted Encumbrances of the type described in clause (j) of the definition thereof).

(b)            Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall assume and agree to pay, perform and discharge, as and when due, any and all Assumed Liabilities to the extent such Assumed Liabilities are not then a Liability of an Acquired Company.

2.2            Purchase Price. The aggregate consideration to be paid by Purchaser (or one or more of Purchaser’s designees) to the Share Seller for the purchase of the Shares and the IP Seller IP shall be an amount in cash equal to (a) two billion dollars ($2,000,000,000.00), plus (b) the Net Working Capital Overage (if any), minus (c) the Net Working Capital Underage (if any), plus(d) Cash as of the Benchmark Time, minus (e) Indebtedness as of the Benchmark Time, minus (f) Closing Transaction Expenses (the amount calculated pursuant to this sentence, the “Purchase Price”).

2.3            Closing Purchase Price.

(a)            Not less than four (4) Business Days prior to the anticipated Closing Date, Seller shall prepare and deliver to Purchaser a written statement that is duly executed by an authorized officer of Seller (the “Estimated Closing Statement”) setting forth Seller’s good faith estimate of: (i) Cash as of the Benchmark Time, (ii) Indebtedness as of the Benchmark Time, (iii) Net Working Capital as of the Benchmark Time (and the Net Working Capital Overage (if any), or the Net Working Capital Underage (if any)), (iv) Closing Transaction Expenses and (v) the resulting calculation of the Purchase Price (such amount, the “Closing Purchase Price”), together with reasonable supporting detail.

(b)            Seller shall provide Purchaser and its Representatives with reasonable access to the work papers and other documents and information that were used in, or are relevant to, the preparation of the Estimated Closing Statement, as well as making available personnel to the extent reasonably requested for review of the Estimated Closing Statement. Purchaser may provide Seller with comments to the Estimated Closing Statement and Seller shall consider in good faith any reasonable comments from Purchaser that are provided at least one (1) Business Day prior to the Closing Date; provided that (i) Seller’s obligation to consider in good faith any such comments shall not delay or otherwise prevent the Closing, and (ii) nothing in this Section 2.3(b) shall obligate Seller to accept Purchaser’s comments and, to the extent of any dispute regarding Purchaser’s comments, Seller’s computations shall be conclusive solely for purposes of determining the amounts set out in the Estimated Closing Statement and for the payments under Section 2.1.

2.4            Post-Closing Adjustment.

(a)            As soon as practicable after the Closing Date but in no event later than one-hundred twenty (120) days after the Closing Date (the “Submission Deadline”), Purchaser shall deliver to Seller a written statement that is duly executed by an authorized officer of Purchaser (the “Post-Closing Statement”) setting forth Purchaser’s good faith calculation of: (i) Cash as of the Benchmark Time (the “Preliminary Cash”), (ii) Indebtedness as of the Benchmark Time (the “Preliminary Indebtedness”), (iii) Net Working Capital as of the Benchmark Time (the “Preliminary Net Working Capital”), (iv) Closing Transaction Expenses (the “Preliminary Closing Transaction Expenses”) and (v) the resulting calculation of the Purchase Price (such amount, the “Preliminary Closing Purchase Price”), together with reasonable supporting detail. Following the Closing Date through the Submission Deadline, Purchaser, its Affiliates, and its and their Representatives shall be permitted to reasonably access and review the books, records, work papers and other documents of the Seller Group that are reasonably related to the calculations of Cash, Indebtedness, Net Working Capital and Closing Transaction Expenses, and Seller shall, and shall cause its Affiliates and its and their respective Representatives to, cooperate with and assist Purchaser, its Affiliates, and its and their Representatives in connection with such review, including by providing reasonable access to such books, records and other documents and making available personnel to the extent reasonably requested, in each case, upon reasonable notice and during normal business hours; provided that, if Seller or its Affiliates fail to provide such cooperation, assistance or access, the Submission Deadline shall be extended by one (1) day for each day Seller or its Affiliates fail to provide such cooperation, assistance or access. Seller agrees that, following the Closing through the date that the Final Closing Statement becomes final and binding in accordance with Section 2.4(f), it will, and will cause its Affiliates to, preserve all accounting books, records, policies or procedures that are reasonably related to the calculations of Cash, Indebtedness, Net Working Capital and Closing Transaction Expenses. In the event that Purchaser delivers the Post-Closing Statement to Seller in accordance with this Section 2.4(a) prior to the Submission Deadline, Purchaser may amend, supplement or otherwise modify the Post-Closing Statement at any time on or prior to the Submission Deadline; provided,however, that the Review Period shall restart upon receipt of an amended Post-Closing Statement.

(b)            Each component of the Estimated Closing Statement, the Post-Closing Statement and the Seller Post-Closing Statement, as applicable, shall be finally and solely determined consistent with the applicable definitions of such terms set forth herein and calculated in accordance with the Accounting Principles, as applicable (i.e., no accounting principles, policies, treatments, categorizations, practices, methods, bases or estimation techniques inconsistent with the Accounting Principles may be used by Seller or Purchaser (or if applicable, the Settlement Accountant) in calculating or determining any such component as the sole purpose of the adjustment contemplated by Section 2.4 is to measure the difference, if any, between the estimate of an amount of an item set forth in the Estimated Closing Statement and the actual amount of such item as of the Benchmark Time or Closing, as applicable). No amount shall be included in the calculations of the items in the Post-Closing Statement or the Seller Post-Closing Statement, as applicable, for changes in assets or liabilities of the Acquired Companies as a result of purchase accounting adjustments.

(c)            If Purchaser fails to deliver a Post-Closing Statement within the time period contemplated by Section 2.4(a) and such failure has not been cured on or prior to the date that is five (5) days from the date that Purchaser is notified in writing by Seller of such failure, then, at the election of Seller, either (i) the Estimated Closing Statement shall be final and binding on all parties hereto or (ii) not later than the date that is the sixtieth (60^th^) day following Submission Deadline, Seller shall prepare a written statement that is duly executed by an authorized officer of Purchaser (the “Seller Post-Closing Statement”) setting forth its good faith calculation of (A) Cash as of the Benchmark Time, (B) Indebtedness as of the Benchmark Time, (C) Net Working Capital as of the Benchmark Time, (D) Closing Transaction Expenses and (E) the resulting calculation of the Purchase Price, and such resulting calculation shall be final and binding on all parties hereto; provided that so long as Purchaser delivers the Post-Closing Statement within the time period contemplated by Section 2.4(a), Seller shall have no right to prepare a Seller Post-Closing Statement on the grounds that Purchaser did not provide reasonable supporting detail for such Post-Closing Statement. If Seller elects to prepare the Seller Post-Closing Statement, then, until the delivery of the Seller Post-Closing Statement and without limiting Section 7.3 in any respect, Purchaser shall provide Seller with reasonable access to (x) any and all books, records, workpapers, Contracts and other documents of the Acquired Companies relating to Seller’s preparation of the Seller Post-Closing Statement as may be reasonably requested by Seller and (y) the Representatives of the Acquired Companies, in each case, during normal business hours; provided, however, that Purchaser’s accountants shall not be obligated to make any work papers available to Seller except in accordance with such accountants’ normal disclosure procedures and then only after Seller has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.

(d)            Upon receipt of the Post-Closing Statement, Seller shall have sixty (60) days (the “Review Period”) to review such Post-Closing Statement and related computations of the Preliminary Cash, the Preliminary Indebtedness, the Preliminary Net Working Capital, the Preliminary Closing Transaction Expenses and the Preliminary Closing Purchase Price. Following the Closing through the date that the Final Closing Statement becomes final and binding in accordance with Section 2.4(f), Seller, its Affiliates, and its and their Representatives retained by Seller shall be permitted to reasonably access and review the books, records, work papers and other documents of the Acquired Companies that are reasonably related to the calculations of Cash, Indebtedness, Net Working Capital and Closing Transaction Expenses, and Purchaser shall, and shall cause the Acquired Companies and their Representatives to, cooperate with and assist Seller, its Affiliates, and its and their Representatives retained by Seller in connection with such review, including by providing reasonable access to such books, records and other documents and making available personnel to the extent reasonably requested, in each case, upon reasonable notice and during normal business hours; provided that, if the accountants of Purchaser or the Acquired Companies fail to provide such cooperation, assistance or access, the Review Period shall be extended by one (1) day for each day Purchaser the Acquired Companies fail to provide such cooperation, assistance or access. Purchaser agrees that, following the Closing through the date that the Final Closing Statement becomes final and binding in accordance with Section 2.4(f), it will preserve any accounting books, records, policies or procedures on which the Post-Closing Statement is based, or upon which the Final Closing Statement is to be based. The accountants of Purchaser or the Acquired Companies shall not be obliged to make any work papers available to Seller, its Affiliates or any of its or their Representatives except in accordance with such accountants’ normal disclosure procedures and then only after the applicable Persons seeking access has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants; provided, further, that, in exercising its rights hereunder, Seller shall conduct itself so as not to unreasonably interfere in the conduct of the business following the Closing, and that Seller acknowledges and agrees that any contact by Seller with officers, directors, employees or Representatives of Purchaser or its Affiliates following the Closing shall be arranged and supervised by designated representatives of Purchaser or its Affiliates unless Purchaser otherwise consents with respect to specific contact. Notwithstanding anything in this Agreement to the contrary, Purchaser and its Affiliates shall not be required following the Closing to disclose Seller or its representatives any information that is subject to the attorney-client privilege, attorney work product doctrine, or other applicable privilege or where any such disclosure would violate any applicable Legal Requirement or expose such Person to any liability for disclosure of any personal information or personally identifiable information; provided that Purchaser shall use commercially reasonable efforts to allow for access to the extent that doing so does not result in the loss of any such protection or violate any applicable Legal Requirement. If Seller has accepted the Post-Closing Statement in writing or has not given written notice to Purchaser setting forth any objection of Seller to such Post-Closing Statement, specifying in reasonable detail the basis for such objection and Seller’s proposed modifications to the Post-Closing Statement (such notice, the “Statement of Objections”) prior to the expiration of the Review Period, then such Post-Closing Statement shall be final, binding and non-appealable upon the parties hereto, and shall be deemed the Final Closing Statement for purposes of Section 2.4(f).

(e)            In the event that Seller delivers a Statement of Objections to Purchaser prior to the expiration of the Review Period, Seller and Purchaser shall negotiate in good faith to resolve any such objection on Cash, Indebtedness, Net Working Capital or Closing Transaction Expenses, as the case may be, within thirty (30) days following the receipt by Purchaser of the Statement of Objections or such longer period as Purchaser and Seller may mutually agree in writing (the “Consultation Period”). If Seller and Purchaser reach an agreement in writing as to any such objections within the Consultation Period, the amounts so agreed upon shall be final, binding and non-appealable upon the parties hereto and such agreement shall be deemed to be included in the Final Closing Statement for purposes of Section 2.4(f). If Seller and Purchaser are unable to reach an agreement in writing as to any such objections within the Consultation Period, then either Seller or Purchaser may submit such matter to BDO USA, LLP, or if BDO USA, LLP is unable or unwilling to serve in such capacity, such other internationally recognized accounting or consulting firm mutually acceptable to Seller and Purchaser (in each case, the “Settlement Accountant”), for resolution of those items on the Statement of Objections that remain in dispute (the “Disputed Items”). If, within ten (10) Business Days after the date BDO USA, LLP informs Seller and Purchaser that it is unable or unwilling to serve as the Settlement Accountant, Seller and Purchaser cannot mutually agree on an alternate independent accounting firm to serve as the Settlement Accountant, either Seller or Purchaser may request the American Arbitration Association to appoint as the Settlement Accountant, within fifteen (15) days from the date of such request or as soon as practicable thereafter, a partner in a nationally recognized accounting or consulting firm that is not the auditor, independent accounting firm or otherwise an advisor or consultant to Seller or any of its Affiliates or Purchaser or any of its Affiliates, who is a certified public accountant. If requested by the Settlement Accountant, each of Seller and Purchaser agrees that it will enter into a customary engagement letter with the Settlement Accountant and provide customary indemnities in favor of the Settlement Accountant. The Settlement Accountant shall act as an expert and not as an arbitrator, and shall only consider the Disputed Items. If any Disputed Item is referred to the Settlement Accountant, Seller, on the one hand, and Purchaser, on the other hand, shall prepare written reports addressing any Disputed Item and deliver such reports to the Settlement Accountant, and each other within fifteen (15) Business Days after the date the Settlement Accountant is retained. Seller and Purchaser, as applicable, shall have ten (10) Business Days to deliver to the Settlement Accountant, and each other one written rebuttal. Unless otherwise agreed to in writing by Purchaser and Seller, any offers to compromise between Seller and Purchaser, and their respective Representatives regarding the items set forth in the Statement of Objections during the Consultation Period shall constitute confidential settlement discussions pursuant to Rule 408 of the Federal Rules of Evidence (as in effect as of the date of this Agreement) and any applicable similar state rule and shall not be submitted to, or considered by, the Settlement Accountant. The Settlement Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Seller or Purchaser in the Statement of Objections and Post-Closing Statement, respectively, or less than the smallest value for such Disputed Item claimed by either Purchaser or Seller in the Statement of Objections and Post-Closing Statement, respectively. Seller and Purchaser shall use their respective commercially reasonable efforts to cause the Settlement Accountant to deliver a written decision resolving all disagreements as soon as practicable and in any event within thirty (30) days after the later of the submission of the (i) written reports and (ii) written rebuttals, if any, or as soon thereafter as practicable; provided that any delay by the Settlement Accountant in delivering a written report shall not affect the validity of such report. The Settlement Accountant’s review and determination shall be (A) limited only to the reports, rebuttals and materials concerning Disputed Items prepared and submitted to the Settlement Accountant by Seller and Purchaser (i.e., not on the basis of an independent review), (B) based solely on such reports, rebuttals and materials submitted by Seller and Purchaser and the basis for Seller’s and Purchaser’s respective positions and (C) in accordance with the terms and procedures set forth in this Agreement, including the Accounting Principles, and consistent with the definitions of Cash, Indebtedness, Net Working Capital and Closing Transaction Expenses contained herein. Neither Seller nor Purchaser shall authorize the Settlement Accountant to modify or amend any term or provision hereof or modify items previously agreed in writing between Seller and Purchaser. During the review by the Settlement Accountant, each of Seller and Purchaser shall, and shall cause their respective Subsidiaries (including, in the case of Purchaser, the Acquired Companies) and their respective Representatives to, each make available to the Settlement Accountant such information, books, records and work papers as may be reasonably requested by the Settlement Accountant to fulfill its obligations under this Section 2.4(e); provided that the accountants of Seller or Purchaser shall not be obliged to make any work papers available to the Settlement Accountant except in accordance with such accountants’ normal disclosure procedures and then only after such Settlement Accountant has signed a customary agreement relating to such access to work papers. A copy of all materials submitted to the Settlement Accountant shall be promptly provided by Seller or Purchaser, as applicable, to the other party in the dispute; provided that the accountants of Seller or Purchaser, as applicable, shall not be obliged to make any work papers available to the other party except in accordance with such accountants’ normal disclosure procedures and then only after such other party has signed a customary agreement relating to such access to work papers. Neither Seller nor Purchaser may disclose to the Settlement Accountant, and the Settlement Accountant may not consider for any purpose, any settlement discussions or settlement offer(s) made by or on behalf of either Seller or Purchaser unless otherwise agreed by Seller and Purchaser. None of Seller, Purchaser or any of their respective Affiliates shall have any ex parte communications or meetings with the Settlement Accountant regarding the subject matter hereof without the other party’s prior written consent. The Settlement Accountant shall have exclusive jurisdiction over, and resort to the Settlement Accountant as provided in this Section 2.4(e) shall be the only recourse and remedy of the parties hereto against one another with respect to, any disputes arising out of the calculation of, and any adjustments to, the Purchase Price; provided that, upon the determination of the Settlement Accountant, such determination may be entered and enforced in any court of competent jurisdiction in accordance with Section 13.7. The final determination with respect to all Disputed Items shall be set forth in a written statement by the Settlement Accountant delivered to Seller and Purchaser and, absent mathematical error that is not promptly corrected by the Settlement Accountant or manifest error or fraud, the resolution of the dispute by the Settlement Accountant shall be final, binding and non-appealable on the parties hereto and such determination may be entered and enforced in any court of competent jurisdiction in accordance with Section 13.7. The costs and expenses of the Settlement Accountant shall be borne by Seller and Purchaser in proportion to the difference between the Settlement Accountant’s determination of the Purchase Price and the determination of the Purchase Price claimed by Seller and Purchaser. For example, if Seller claims that the Purchase Price is, in the aggregate, $1,000 greater than the amount determined by Purchaser and if the Settlement Accountant ultimately resolves the dispute by awarding to Seller an aggregate of $300 of the $1,000 contested, then the costs and expenses of the Settlement Accountant will be allocated 30% to Purchaser and 70% to Seller. Notwithstanding the foregoing, Seller and Purchaser shall each be responsible for one half of any initial retainers or other fees and expenses of the Settlement Accountant, subject to reallocation by the Settlement Accountant at the conclusion of the proceeding as set forth immediately above.

(f)            The “Final Closing Statement” shall mean (i) the Estimated Closing Statement in the event that Purchaser has failed to deliver the Post-Closing Statement in accordance with the terms of this Agreement and Seller elects for the Estimated Closing Statement to be final and binding in accordance with Section 2.4(c), (ii) the Post-Closing Statement (A) in the event that Seller has accepted the Post-Closing Statement in writing or does not deliver a Statement of Objections prior to the expiration of the Review Period, (B) as agreed to in writing by Seller and Purchaser in accordance with Section 2.4(e), or (C) as determined by the Settlement Accountant in accordance with Section 2.4(e) or (iii) the Seller Post-Closing Statement in the event that Purchaser has failed to deliver the Post-Closing Statement in accordance with the terms of this Agreement and Seller elects to deliver a Seller Post-Closing Statement in accordance with Section 2.4(c) and (1) the Cash set forth on such Final Closing Statement shall be deemed the final Cash, (2) the Indebtedness set forth on such Final Closing Statement shall be deemed the final Indebtedness (the “Final Closing Indebtedness”), (3) the Net Working Capital set forth on such Final Closing Statement shall be deemed the final Net Working Capital (the “Final Closing Net Working Capital”), (4) the Closing Transaction Expenses set forth on such Final Closing Statement shall be deemed the final Closing Transaction Expenses (the “Final Closing Transaction Expenses”) and (5) the Purchase Price set forth on such Final Closing Statement shall be deemed the final Purchase Price (the “Final Purchase Price”).

(g)            In the event that the Final Purchase Price is greater than the Closing Purchase Price (such excess, the “Final Overage”), Purchaser shall pay, or cause to be paid, within five (5) Business Days of the determination of the Final Overage and the Final Closing Statement, to the Share Seller (or its designee) by wire transfer of immediately available funds, an amount equal to such Final Overage.

(h)            In the event that the Closing Purchase Price is greater than the Final Purchase Price (such excess, the “Final Underage”), the Share Seller shall pay, or cause to be paid, within five (5) Business Days of the determination of the Final Underage and the Final Closing Statement, to Purchaser (or its designee) by wire transfer of immediately available funds, an amount equal to such Final Underage.

2.5            Withholding. Purchaser shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Legal Requirements. Purchaser acknowledges and agrees that, as of the date of this Agreement, no withholding Taxes are expected to be applicable to the payment of the Purchase Price (other than any obligation to withhold in respect of payments that are in the nature of compensation to employees or other services providers); provided that Seller delivers the documentation required pursuant to Section 3.2(e). To the extent Purchaser becomes aware of any obligation to withhold (other than any obligation to withhold in respect of payments that are in the nature of compensation or result from Seller’s failure to deliver the documentation required pursuant to Section 3.2(e)), it shall use commercially reasonable efforts to provide reasonable advance notice to Seller of the amounts subject to withholding and provide Seller with a reasonable opportunity to deliver any forms, documentation or other evidence that would reduce or eliminate such withholding Tax under Legal Requirements and shall reasonably cooperate with Seller in connection therewith. To the extent any amounts are deducted and withheld by Purchaser under this Section 2.5 and paid over to the applicable Governmental Authority in accordance with the applicable Legal Requirements, such amounts shall be treated for purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Article III

CLOSING AND CLOSING DELIVERIES

3.1            Closing; Time and Place. The closing of the Transactions (the “Closing”) shall be effected by the exchange of documents and signatures by electronic transmission or, if such exchange is not practicable at the offices of Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), One Manhattan West, New York, NY 10001 (which Closing may occur by electronic exchange of documents), at 10:00 a.m. Eastern time on (a) if the Condition Satisfaction Date is on or prior to the nineteenth (19^th^) date of a calendar month, the date that is four (4) Business Days following the Condition Satisfaction Date (but subject to the satisfaction of those Closing Conditions which, by their terms or nature, are to be satisfied at the Closing), (b) if the Condition Satisfaction Date is after the nineteenth (19^th^) date of a calendar month, at Seller’s election, the later of (i) the date that is four (4) Business Days following the Condition Satisfaction Date and (ii) the first (1^st^) Business Day of the calendar month immediately following the calendar month in which the Condition Satisfaction Date occurs (but subject to the satisfaction of those Closing Conditions which, by their terms or nature, are to be satisfied at the Closing), or (c) at such other date, time or place as Seller and Purchaser mutually agree in writing; provided, however, in no event shall the Closing Date occur until the fifth (5^th^) Business Day immediately following the Business Day on which the Initial Marketing Period or, if the Debt Financing has not been obtained pursuant to the terms of this Agreement and the Debt Commitment Documents prior to the commencement of the Secondary Marketing Period, Secondary Marketing Period expires (or such earlier Business Day as may be specified by Purchaser on no less than five (5) Business Days’ prior written notice to Seller). The date on which the Closing occurs is referred to herein as the “Closing Date.”

3.2            Deliveries by Seller. At the Closing, Seller shall deliver, or cause to be delivered, to Purchaser:

(a)            assignments of the Shares executed by the Share Seller, in form and substance reasonably satisfactory to Purchaser or, for Shares in certificate form, certificates evidencing the Shares, duly endorsed in blank or with stock powers or a similar instrument of transfer duly executed in proper form for transfer and with any required stock transfer stamps affixed thereto;

(b)            duly executed counterparts to a transition services agreement, substantially in the form attached hereto as Exhibit B (the “Transition Services Agreement”);

(c)            duly executed counterparts to an intellectual property assignment agreement executed by IP Seller with respect to IP Seller IP, substantially in the form attached hereto as Exhibit C (the “Intellectual Property Assignment Agreement”);

(d)            the certificate required to be delivered by Seller pursuant to Section 10.1(d);

(e)            a duly executed and completed IRS Form W-9 of each of the Share Seller and IP Seller;

(f)            fully executed Section 338(h)(10) Forms;

(g)            resignation letters, in form and substance reasonably acceptable to Purchaser, of such members of the board of directors of each of the Acquired Companies and such officers of each of the Acquired Companies which have been requested in writing by Purchaser at least ten (10) Business Days prior to the Closing Date, such resignation letters to be effective concurrently with, and subject to the occurrence of, the Closing;

(h)            evidence, in form and substance reasonably satisfactory to Purchaser of the settlement or elimination of all intercompany accounts, and the termination of all Intercompany Agreements in accordance with Section 6.4(b), with no ongoing Liabilities on the part of Purchaser or any of its Affiliates, including the Acquired Companies; and

(i)             all forms required to be delivered by Seller pursuant to Section 8.1.

3.3            Deliveries by Purchaser. At the Closing, Purchaser shall deliver, or cause to be delivered:

(a)            to the Share Seller or its designee(s), by wire transfer of immediately available funds, the Closing Purchase Price;

(b)            to Seller, duly executed counterparts to the Transition Services Agreement;

(d)            to Seller, duly executed counterparts to the Intellectual Property Assignment Agreement; and

(e)            to Seller, the certificate required to be delivered by Purchaser pursuant to Section 10.2(c).

3.4            Payment Mechanics. Any payment to be made pursuant to this Agreement by Purchaser shall be made to the designee(s) and the bank account or accounts designated by Seller in writing to Purchaser on or before the third (3^rd^) Business Day prior to the due date for payment. Any payment to be made pursuant to this Agreement by Seller shall be made to the designee and the bank account or accounts designated by Purchaser in writing to Seller on or before the third (3^rd^) Business Day prior to the due date for payment. Unless otherwise agreed in writing by Seller and Purchaser, any payments by wire transfer under this Agreement shall be in immediately available funds. All payments shall be made by electronic transfer on or prior to the due date for payment and receipt of the amount due shall be an effective discharge of the relevant payment obligation.

Article IV

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth in the Seller Disclosure Schedule, Seller hereby represents and warrants to Purchaser as follows:

4.1            Authority; Enforceability.

(a)            Seller has the requisite corporate power and authority to execute and deliver this Agreement, and each of the other Transaction Documents to which it is or will be a party, to perform its obligations hereunder and under each of the other Transaction Documents to which it is or will be a party, and to consummate the Transactions in accordance with the terms of this Agreement, and each of the other Transaction Documents to which it is or will be a party. Each other Seller Party has the requisite corporate power and authority to execute and deliver each of the other Transaction Documents to which it is or will be a party, to perform its obligations under each of the other Transaction Documents to which it is or will be a party, and to consummate the Transactions in accordance with the terms of each of the other Transaction Documents to which it is or will be a party. The execution, delivery and performance by Seller of this Agreement and by each Seller Party of each of the other Transaction Documents to which such Seller Party is or will be a party and the consummation of the Transactions contemplated by each of the Transaction Documents to which it is or will be a party, have been duly and validly authorized by all necessary corporate action on the part of each Seller Party and such authorization has not been subsequently modified or rescinded. No additional corporate or shareholder authorization is necessary for the execution, delivery or performance by Seller of this Agreement or by any Seller Party of any other Transaction Document to which it is or will be a party or the consummation by Seller of the Transactions in accordance with the terms of this Agreement and by any Seller Party in accordance with the terms of each other Transaction Document to which it is or will be a party.

(b)            This Agreement and each of the other Transaction Documents to which Seller is or will be a party have been duly and validly executed and delivered by Seller, and constitutes, assuming due authorization, execution and delivery of this Agreement and the other Transaction Documents by Purchaser and any other parties thereto, a valid and binding legal obligation of Seller, enforceable against Seller in accordance with the terms hereof or thereof, as applicable, subject to the Bankruptcy and Equity Exception. Assuming due authorization, execution and delivery of each of the other Transaction Documents to which any other Seller Party is or will be a party by the other parties thereto, each of the other Transaction Documents will constitute a valid and binding legal obligation of the other Seller Parties party thereto, enforceable against such Seller Parties in accordance with the terms thereof, in each case, subject to the Bankruptcy and Equity Exception.

4.2            Non-Contravention; Consents.

(a)            The execution and delivery by Seller of this Agreement and by each Seller Party of each other Transaction Document to which it is a party does not, and the performance by Seller of this Agreement and by each Seller Party of each other Transaction Document to which such Seller Party is a party will not, require any Consent or Permit of, registration, declaration or filing with, or notification to, any Governmental Authority, except (i) under applicable Antitrust Laws or Investment Screening Laws, (ii) under the applicable requirements of the Securities Exchange Act of 1934 (the “Exchange Act”), or applicable blue sky laws, (iii) compliance with any Permits relating to the Business, (iv) for such other Consents, filings or notifications, the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (v) those required by reasons of the regulatory status or operations of Purchaser.

(b)            The execution and delivery by Seller of this Agreement and by each Seller Party of each of the other Transaction Documents to which such Seller Party is a party does not, and the consummation of the Transactions will not, (i) conflict with, violate or constitute a breach of, or require notice, consent or waiver under any provision of the organizational documents of the applicable Seller Party or any of their respective Subsidiaries, (ii) conflict with, violate or constitute a breach of, in each case, in any material respect, or require any notice, consent or waiver under any Legal Requirement applicable to the Business, the Seller Parties or any of their respective Subsidiaries, except with respect to the required filings and approvals set forth in Sections 4.2(a)(i) and (ii) and Schedule 4.2(b)(ii) of the Seller Disclosure Schedule or (iii) result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the creation or acceleration (or loss of benefit from) of any rights or obligations under, or create in any party the right to, accelerate, terminate, modify or cancel, or require any notice, consent or waiver under, any Material Contract to which any Acquired Company is a party or any Shared Contract, except, in the case of the foregoing clauses (ii) or (iii), as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.3            Organization; Acquired Companies.

(a)            Seller is duly incorporated, validly existing and in good standing under the Legal Requirements of the state of Delaware and each of the other Seller Parties is duly incorporated, validly existing and in good standing under the Legal Requirements of the state of its jurisdiction of incorporation, in each case, except as would not reasonably be expected to materially impair or materially delay Seller or any other Seller Party from consummating the Transactions or otherwise prevent Seller from performing in all material respects its obligations hereunder or any Seller Party under any other Transaction Document to which it is or will be a party. Seller has all necessary corporate power and authority to conduct its business in the manner in which it is currently being conducted, except where the absence of such power and authority to conduct its business would not reasonably be expected to materially impair or materially delay Seller from consummating the Transactions or otherwise prevent Seller from performing in all material respects its obligations hereunder.

(b)            Each of the Acquired Companies (i) is duly organized, incorporated or formed, validly existing and in good standing under the Legal Requirements of the jurisdiction of its organization, incorporation or formation, in all material respects, and (ii) has all necessary organizational or corporate power and authority to conduct its business in all material respects in the manner in which it is being conducted as of the date of this Agreement and as of the Closing.

(c)            Each of the Acquired Companies is duly qualified or licensed to do business in the jurisdictions in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed would not, individually or in the aggregate, (i) reasonably be expected, individually or in the aggregate, to be material to the Acquired Companies or the Business, taken as a whole, or (ii) prevent or materially delay the consummation of the Transactions.

(d)            Schedule 4.3(d) of the Seller Disclosure Schedule sets forth a true and complete list of the names of each Subsidiary of the Acquired Entities, the jurisdiction in which each such Subsidiary of the Acquired Entities is organized and the equity ownership thereof (including the authorized capitalization, number of outstanding shares of each class of capital stock or other equity interest and the record and beneficial owners thereof), in each case, as of the date of this Agreement and as of the Closing. Except as set forth on Schedule 4.3(d) of the Seller Disclosure Schedule, the Acquired Entities do not own, directly or indirectly (including indirectly through any Acquired Company), any capital stock, shares, membership interests, other equity or ownership rights, interests or other securities or derivatives in any Person, other than the Acquired Entities’ Subsidiaries.

(e)            All of the outstanding issued share capital, shares or membership interests, other equity rights, interests or other securities of each Acquired Company are and, as of the Closing shall be, duly and validly issued and outstanding, fully paid and nonassessable and legally and beneficially owned, directly or indirectly, by Seller and the Acquired Entities, as applicable, free and clear of all Encumbrances (other than Encumbrances on securities imposed by applicable Legal Requirements). All of the outstanding issued share capital, shares or membership interests, other equity rights, interests or other securities of each Acquired Company have been issued in compliance with applicable Legal Requirements and the organizational documents of such Acquired Company, and are not subject to any preemptive, subscription or similar right under any provision of any of the foregoing.

(f)            None of Seller nor any of the Acquired Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

(g)            Seller has made available to Purchaser accurate and complete copies of the organizational documents of each Acquired Company as in effect as of the date of this Agreement, and such organizational documents are in full force and effect and no Acquired Company is in violation of any such organizational document.

4.4            Title; Shares.

(a)            The Share Seller is the sole record and beneficial owner of all of the outstanding Shares, has good and valid title to the Shares and has full power and authority to transfer and deliver to Purchaser (or Purchaser’s designee) the Shares free and clear of all Encumbrances (other than Encumbrances on securities imposed by applicable Legal Requirements), and, upon the payment by Purchaser of the Purchase Price at the Closing, Purchaser (or Purchaser’s designee) shall be the sole record and beneficial owner of all of the outstanding Shares, free and clear of all Encumbrances (other than Encumbrances on securities imposed by applicable Legal Requirements). Except pursuant to this Agreement, there is no obligation pursuant to which the Share Seller or any of its Affiliates has granted any option, warrant or other right to any Person to acquire, receive or vote any Shares.

(b)            The Shares are duly authorized, validly issued, fully paid and nonassessable and owned by the Share Seller, free and clear of all Encumbrances (other than Encumbrances on securities imposed by applicable Legal Requirements). Except for the Shares, there are no shares of capital stock of or other voting or equity interests in any of the Acquired Entities that are issued, reserved for issuance or outstanding. There are no shares of capital stock of or other voting or equity interests in any Subsidiary of any of the Acquired Entities that are issued, reserved for issuance or outstanding that are not directly owned by an Acquired Entity.

(c)            There are no outstanding warrants, options, rights, agreements, convertible, exercisable or exchangeable securities or outstanding or authorized appreciation, phantom interest, profit participation or similar rights or other commitments (i) pursuant to which any Acquired Company is or may become obligated to issue, deliver, sell, transfer or grant any (x) shares of capital stock of or other voting or equity interests in an Acquired Company or (y) security convertible into, or exercisable or exchangeable for, any shares of capital stock of or other voting or equity interests in an Acquired Company, (ii) pursuant to which any Acquired Company is or may become obligated to issue, deliver, sell, transfer or grant any such warrant, option, right, unit, security, commitment or undertaking described in the foregoing clause (i) or (iii) that gives any Person the right to receive any benefits or rights similar to any rights enjoyed by or accruing to the holder of the Shares or any shares of capital stock of or other voting or equity interests in any Acquired Company. There are no voting trusts, proxies or other agreements or undertakings with respect to the voting, dividend rights or disposition of the Shares or any shares of capital stock of or other voting or equity interests in any Acquired Company.

4.5            Financial Information; Liabilities.

(a)            Schedule 4.5(a) of the Seller Disclosure Schedule sets forth true, correct and complete copies of (i) the unaudited combined balance sheet of the Business as of March 31, 2024 (such date, the “Reference Date” and such balance sheet, the “Latest Balance Sheet”), and the related unaudited combined statement of income of the Business (taking into account the Corporate Functions used by the Business) for the three (3) month period ended March 31, 2024, and (ii) the unaudited combined balance sheet of the Business as of December 31, 2022 and December 31, 2023, and the related unaudited combined statements of income of the Business (taking into account the Corporate Functions used by the Business) for the fiscal years ended December 31, 2022 and December 31, 2023 (such unaudited financial statements referred to in the foregoing clauses (i) and (ii), collectively, the “Unaudited Financial Information”) (it being understood, however, that the Business has not been operating historically as a separate “standalone” entity and, therefore, the Unaudited Financial Information will reflect certain costs and other allocations made that may not reflect what would have been incurred if the Business had operated as a standalone business during the period covered by the Unaudited Financial Information and does not reflect costs and other allocations that would be allocated to the Business on a carveout basis). The Unaudited Financial Information: (A) has been prepared in good faith and, except as set forth in the notes thereto, in accordance with GAAP, consistently applied throughout the periods covered thereby, (B) fairly presents the financial condition and results of operations of the Business (taking into account the Corporate Functions used by the Business), as of the dates and for the periods therein specified, and (C) has been derived from books and records of Seller that are regularly maintained by management of Seller and are based upon group accounting guidelines and procedures of Seller used to prepare Seller and its Affiliates’ consolidated financial statements in accordance with GAAP.

(b)            Seller has established and maintains a system of internal accounting controls sufficient to provide reasonable assurance that, with respect to the Business transactions (i) including transactions between the Business, on the one hand, and Seller or any of its Affiliates (other than the Business), on the other hand, are recorded as necessary based upon group accounting guidelines and procedures of Seller to permit preparation of Seller’s consolidated financial statements in conformity with GAAP and to maintain asset accountability therein and (ii) involving the Business are recorded as necessary based upon group accounting guidelines and procedures of Seller to permit preparation of Seller’s consolidated financial statements that are free from material misstatement, except, in the case of each of clauses (i) through (ii), for any deficiency that, individually or in the aggregate, is not material to the Acquired Companies or the Business, taken as a whole. The Acquired Companies have possession of all material books, records and other material documents (whether in paper or electronic form) pertaining to the Business, and the properties and assets of the Business. Since the date that is three (3) years from the date of this Agreement, none of Seller, its Affiliates, their independent accountant(s) or their respective board of managers or board of directors, as applicable, has received any written, or to Seller’s Knowledge, oral notification of any (A) “significant deficiency” in the internal controls over financial reporting, (B) “material weakness” in the internal controls over financial reporting or (C) fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls over financial reporting.

(c)            There are no Liabilities of the Acquired Companies or the Business of any nature, whether or not accrued, contingent or otherwise, other than such Liabilities: (i) that are specifically set forth and adequately reserved against in the Latest Balance Sheet, (ii) incurred in the ordinary course of business, (iii) arising out of, relating to or resulting from the Transactions or the announcement, negotiation, execution or performance of any Transaction Document, by one of the Acquired Companies since the date of the Latest Balance Sheet or (iv) that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.6            Absence of Certain Changes.

(a)            Since the Reference Date, except in connection with the Transactions and the negotiation and execution of this Agreement and the other Transaction Documents, (i) the Business has been conducted in the ordinary course of business in all material respects and (ii) none of the Acquired Companies (or Seller or any of its other Affiliates, with respect to the Acquired Companies or the Business) has taken any action (or refrained from taking any action) that, if such action (or failure to act) were to be taken between date hereof and the Closing Date, would require Purchaser’s consent pursuant to clauses (i), (ii), (iii), (iv), (vi), (vii), (xi), (xii), (xv) and (xviii) of Section 6.1(a).

(b)            Since December 31, 2023, there has not occurred any event, change, development or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. For purposes of Section 10.1(a), this Section 4.6(b) shall be deemed true and correct in all respects as of the Closing as if made on the Closing Date unless any such Material Adverse Effect is continuing as of the Closing Date.

(c)            During the past twelve (12) months, none of the Acquired Companies or, to the extent related to the Business, Seller or any of its other Affiliates has failed to make, reduced or delayed any repairs or capital expenditures or commitments for capital expenditures, which would not reasonably be expected to be, individually or in the aggregate, material to the Business or the Acquired Companies, taken as a whole.

4.7            Compliance with Legal Requirements.

(a)            Since January 1, 2021, (i) the Acquired Companies and the Business have been in compliance with applicable Legal Requirements and (ii) Seller and its Affiliates have not received any written or, to Seller’s Knowledge oral, notice from any Governmental Authority of any actual, alleged, alleged or potential violation by any Acquired Company or the Business of any applicable Legal Requirement, except, in the case of each of the foregoing clauses (i) and (ii) for which such instances of non-compliance which would not reasonably be expected to be, individually or in the aggregate, material to the Business or the Acquired Companies, taken as a whole. To Seller’s Knowledge, no investigation or inquiry is currently being conducted, or threatened, by any Governmental Authority with respect to the Acquired Companies or the Business.

(b)            Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business or the Acquired Companies, taken as a whole, (i) the Acquired Companies own, hold, possess or lawfully use in the operation of the Business all Permits, which are necessary to conduct the Business as conducted as of the date of this Agreement, (ii) all such Permits are in full force and effect and (iii) none of the Acquired Companies have been in conflict with, or in default, breach or violation of, any such Permit. There is no actual, pending or to Seller’s Knowledge threatened in writing, revocation, cancellation, termination, suspension, restriction, materially adverse modification or non-renewal of any such Permit, nor any actual, pending, or to Seller’s Knowledge threatened notice of material violation, order of forfeiture or complaint or investigation against any Acquired Company relating to any conflict with, or default, breach or violation of, any such Permit in any material respect.

4.8            Material Contracts.

(a)            Schedule 4.8(a) of the Seller Disclosure Schedule lists all of the following Contracts to which any Acquired Company is a party or to which Seller or any of its Affiliates is a party that is a Shared Contract or primarily relates to the Business (indicating with an asterisk (*) any such Contracts to which Seller or any of its Affiliates (other than the Acquired Companies) is a party) and that are in effect and not entirely fulfilled or performed as of the date of this Agreement (other than Benefit Plans) (the Contracts required to be listed on Schedule 4.8(a) of the Seller Disclosure Schedule, collectively, the “Material Contracts”); provided that (x) order forms, purchase orders, statements of work and (y) any Contracts of the type described in Section 4.8(a)(iii), in each case, need not be listed on Schedule 4.8(a) of the Seller Disclosure Schedule (the Contracts described in clauses (x) and (y), the “Specified Material Contracts”), but shall otherwise constitute Material Contracts hereunder:

(i)               any Contract with a Key Customer;

(ii)              any Contract with a Key Supplier;

(iii)             Contracts that (A) involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in the prior twelve (12) months or (B) are reasonably expected to involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in any calendar year period;

(iv)            any Contract that requires Seller or any of its Subsidiaries (including the Acquired Companies) to deal exclusively with a third party in connection with the sale or purchase of any product or service or geographic area;

(v)              any Contract that contains (A) “most favored nation”, first refusal, right of first negotiation, first offer provisions or similar preferential terms or (B) take-or-pay or similar minimum purchase requirements, in each case, in favor of any other Person;

(vi)            any Contract that relates to an acquisition, lease or divestiture of the equity, assets or property or business of any Person (whether by merger, sale of stock or other equity, sale of assets or otherwise) (A) with a purchase price in excess of $3,000,000, (B) that is material to the operation of the Business, taken as a whole or (C) that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;

(vii)           any Contract relating to Indebtedness for borrowed money of the Acquired Companies or with respect to the Business;

(viii)          any Contract that creates any Encumbrance (other than any Permitted Encumbrance) upon any Owned Real Property, any Leased Real Property or any material asset of any Acquired Company or the Business;

(ix)             any Contract that is a material IP Contract;

(x)              any Shared Contract;

(xi)             any Government Contract involving aggregate revenue of the Business in excess of $3,000,000 for the twelve (12) month period ended December 31, 2023;

(xii)            any Contract that provides for any joint venture, partnership, collaboration or other arrangement involving a sharing of profits or losses of any Acquired Company with any Person;

(xiii)           any Contract limiting or restraining (or purporting to limit or restrain) in any material respect Seller or any of its Subsidiaries (including the Acquired Companies) or the Business from (A) competing with any Person in any market or geographic area or in any business, (B) engaging in any type of business or (C) acquiring any entity, in each case, that relates to or affects the Business or any of the Acquired Companies;

(xiv)           any Contract involving a loan (other than transactions on credit in the ordinary course of business) or advance to (other than advances to any Business Employee extended in the ordinary course of business), or investment in, any Person or any Contract relating to the making of any such loan, advance or investment;

(xv)            any Contract involving any actual or threatened Proceeding or other dispute (A)(1) entered into since January 1, 2021 and (2) that has involved or will involve payment in an amount in excess of $250,000 (net of third-party insurance coverage) or (B) that contains ongoing material obligations, including obligations to pay amounts, individually or in the aggregate, in excess of $500,000 (net of third-party insurance coverage and excluding compliance with confidentiality, non-disparagement, and other similar customary provisions);

(xvi)           any Contract requiring any capital commitment or capital expenditure (or series of the capital expenditures) by Seller or any of its Subsidiaries (including the Acquired Companies) in respect of the Business in excess of $3,000,000;

(xvii)          any Contract that contains obligations with respect to any contingent payment of any type (including under any purchase price adjustment, earn-out, deferred payment or similar provision) in excess of $3,000,000;

(xviii)         any Real Property Lease that is material to the Business;

(xix)           any supply or tolling Contract for the supply of raw materials, intermediates or finished goods for which there is no reasonably available alternative source as of the date of this Agreement; and

(xx)            any Contract that contains any material indemnification or contribution right or obligation, other than any such right or obligation (1) incurred in the ordinary course of business with any customer or supplier, (2) that provides for any type of customary director and officer indemnification arrangement or (3) in respect of Retained Liabilities.

(b)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Material Contracts is in full force and effect, (ii) there exists no default or breach under any such Material Contracts by any Acquired Company or Seller or any of its Subsidiaries or, to Seller’s Knowledge, any other party to such Material Contracts, (iii) there exists no event or circumstance with respect to any Acquired Company or Seller or any of its Subsidiaries or, to Seller’s Knowledge, any other party to such Material Contracts, that (with notice or lapse of time or both) would create a default or breach under any of the Material Contracts or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material right or obligation or the loss of any material benefit thereunder and (iv) there exists no actual or, to Seller’s Knowledge, threatened termination or cancellation of any Material Contract. Seller has made available to Purchaser a complete and accurate copy of each Material Contract, other than any Specified Material Contract, that is in effect as of the date of this Agreement (together with all legally binding amendments, modifications, schedules or supplements thereto). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Acquired Companies or, to the extent related to the Business, Seller or any of its other Affiliates has received any written or, to Seller’s Knowledge, oral notice under any Material Contract that any counterparty to any Material Contract intends to terminate any such Material Contracts or is repudiating, not renewing, modifying, or accelerating any material obligation under any Material Contract or that it intends to do so. There have been no material disputes under any Material Contract during the period beginning three (3) years prior to the date hereof.

4.9            Litigation. Since January 1, 2021, there have been no Proceedings pending, or, to Seller’s Knowledge, threatened against any Acquired Company, any of the Acquired Companies’ material assets or properties or the Business or any of their present or former officers, employees, or directors in their capacity as such that, if adversely decided, would, individually or in the aggregate, reasonably be expected to result in (a) a Loss in excess of $500,000 to the Acquired Companies or the Business for which insurance is unavailable, (b) equitable or injunctive relief, (c) any criminal or regulatory sanction or (d) seeking to or having the effect of preventing, materially impairing, or materially delaying the transactions contemplated by this Agreement, in the case of clauses (a), (b) and (c), except for such Proceedings as would not reasonably be expected to be, individually or in the aggregate, material to the Business or the Acquired Companies. Neither the Acquired Companies nor the Business is subject to any material outstanding or unsatisfied Order or settlement agreement (excluding customary confidentiality and non-disparagement provisions) that is, or would reasonably be expected to be, material to the Business or the Acquired Companies.

4.10          Intellectual Property; Information Technology.

(a)            Schedule 4.10(a) of the Seller Disclosure Schedule sets forth a list of all material United States and international registrations and applications for: (i) Patents, (ii) Trademarks, and (iii) Copyrights, in each case of the foregoing clauses (i)-(iii), that constitute Acquired Company IP (excluding the IP Seller IP) as of the date hereof (such Intellectual Property, the “Acquired Company Registered IP”). The Acquired Companies solely and exclusively own the Acquired Company IP and IP Seller solely and exclusively owns the IP Seller IP, in each case of the foregoing clauses, free and clear of all Encumbrances (other than Permitted Encumbrances). Each item of Acquired Company Registered IP is duly registered or filed in the name of an Acquired Company, and each item of IP Seller IP is duly registered or file in the name of IP Seller, and all such Acquired Company IP is valid, subsisting and enforceable. None of the Acquired Company IP is subject to any outstanding Order adversely affecting any Acquired Company’s or IP Seller’s use thereof or rights thereto, or that would impair the validity or enforceability thereof.

(b)            No material Proceeding is pending, or to Seller’s Knowledge, has been threatened in writing, against Seller or its Subsidiaries (including IP Seller and the Acquired Companies), since January 1, 2021, alleging (i) that the conduct of the Business is infringing, misappropriating or otherwise violating any Person’s Intellectual Property, or (ii) the invalidity, misappropriation or unenforceability of or challenging their ownership or scope of any Acquired Company IP. The conduct of the Business as currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any third party, and the conduct of the Business has not done so since January 1, 2021.

(c)            No Proceeding is pending or has been threatened in writing since January 1, 2021, (i) by Seller or its Subsidiaries (including IP Seller and the Acquired Companies), alleging that any Person is infringing, misappropriating or otherwise violating any Acquired Company IP or (ii) by any Acquired Company or, with respect to the Business, Seller or its Subsidiaries, alleging the invalidity, misappropriation or unenforceability of any Intellectual Property. No third party is, in any material respect, infringing, misappropriating or otherwise violating the Acquired Company IP, nor has done so since January 1, 2021.

(d)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, Seller and its Subsidiaries, including IP Seller and the Acquired Companies, own or have a valid license to or other right to use all Intellectual Property used in the conduct of the Business; provided that the foregoing is not a representation or warranty with respect to infringement, misappropriation or other violation of Intellectual Property.

(e)            After the Closing, there will be no Intellectual Property or IT Asset owned by Seller or its Affiliates (other than any Seller Group Marks) that is necessary for or used by the Business as of the Closing as to which no provision is made in this Agreement or any Transaction Document for continued use thereof after the Closing by the Acquired Companies or Purchaser.

(f)            Each Person who has invented, developed or created material Intellectual Property for or on behalf of the Business has assigned all of its rights in same to an Acquired Company, to the extent such rights do not vest in an Acquired Company by operation of law, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(g)            The Acquired Companies take and have taken commercially reasonable steps to protect and preserve the confidentiality and security of their material Trade Secrets (and Seller and its Subsidiaries have done the same as it relates to the Trade Secrets of the Business), and no such Trade Secrets have been disclosed to any Person except pursuant to non-disclosure obligations that require that Person to maintain the confidentiality of such Trade Secrets. No present or former officer, director, consultant, advisor, employee or independent contractor of any Acquired Company (or as it relates to the Business, of Seller or its other Subsidiaries) is in default or breach of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement relating to the protection, use, or transfer of Acquired Company IP, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(h)            Schedule 4.10(h) of the Seller Disclosure Schedule sets forth a list of all material software that is Acquired Company IP (“Proprietary Software”). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Acquired Companies, Seller or its other Subsidiaries, have a duty or obligation to disclose, deliver, license or otherwise make available to any other Person any source code of or for the Proprietary Software (“Acquired Company Source Code”) on a contingent basis pursuant to an escrow agreement or similar contractual arrangement. No Acquired Company Source Code has been disclosed to any Person (other than employees and independent contractors of the Acquired Companies that are subject to appropriate confidentiality obligations).

(i)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Acquired Companies, and as it relates to the Business, Seller and its other Subsidiaries, are and since January 1, 2021 have been in compliance, in each case, with all terms of all licenses governing the use or distribution of third party Software (including Open Source Software), and no use or activities with respect to Open Source Software by the Acquired Companies, and as it relates to the Business, Seller and its other Subsidiaries, (i) requires the licensing, disclosure or distribution of any Acquired Company Source Code or other Acquired Company IP to licensees or any other Person, (ii) prohibits or limits the receipt of consideration in connection with licensing or otherwise distributing any Proprietary Software, or (iii) allows any Person to decompile, disassemble or otherwise reverse-engineer any Proprietary Software. The Acquired Companies, and with respect to the Business, Seller and its other Subsidiaries maintain and comply with a policy to review the requirements associated with Open Source Software prior to the use thereof. An Acquired Company has in its possession the Acquired Company Source Code.

(j)            No funding, facilities or personnel of any Governmental Authority were used to develop or create, in whole or in part, any Acquired Company IP. The Acquired Companies, and as it relates to the Business, Seller and its other Subsidiaries, have not and have never been a member of, or contributor to, any industry standards organization, body, working group, or similar organization, and none of the Acquired Company IP is subject to any licensing, assignment, contribution, disclosure or other requirement or restriction of any industry standards organization, body, working group, or similar organization.

(k)            Since January 1, 2021, the Acquired Companies, and with respect to the Business, Seller and its other Subsidiaries, are and have been in compliance in all material respects with (i) all applicable Privacy Laws, (ii) all applicable rules of self-regulatory organizations and codes of conduct to which any Acquired Companies has obligated itself to comply, including the Payment Card Industry Data Security Standard, (iii) contractual obligations concerning information security and data privacy (including the Processing of Personal Information) and (iv) their own written internal and external privacy and data security policies (collectively, the “Data Security Requirements”). All vendors, processors, subcontractors and other Persons acting for or on behalf of the Business in connection with the Processing of Personal Information or that otherwise have been authorized to have access to the Acquired Company IT Assets or the Personal Information in the possession or control of such Acquired Company, or, with respect to the Business, Seller and its other Subsidiaries, are subject to reasonable contractual requirements regarding the Processing of Personal Information, and to Seller’s Knowledge, comply, and have since January 1, 2021, complied, in each case, in all material respect, with such contractual requirements. Neither the negotiation nor consummation of the transactions contemplated by this Agreement, nor any disclosure or transfer of information in connection therewith, will breach or otherwise cause any material violation of any Data Security Requirement. As of the date of this Agreement no Proceedings are pending or, to Seller’s Knowledge, have been threatened in writing against the Acquired Companies, or with respect to the Business, Seller and its other Subsidiaries, since January 1, 2021 alleging a violation of the Data Security Requirements, except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect.

(l)            The Acquired Company IT Assets (i) are designed, implemented, and operated in a manner consistent with industry standards in all material respects and perform in a manner that permits the Acquired Companies to conduct their respective businesses as currently conducted, (ii) are free from material bugs, errors or other defects that would restrict the Acquired Companies from conducting their respective businesses as currently conducted, and (iii) do not contain any Malicious Code.

(m)            Each Acquired Company, and, with respect to the Business, Seller and its other Subsidiaries, has implemented and maintains an information security plan (the “Security Plan”), which includes commercially reasonable administrative, technical, and physical safeguards consistent with current industry standards, designed to protect the confidentiality, availability, integrity, and security of the Acquired Company IT Assets and the information and data stored therein (including Personal Information and other sensitive information) against any loss, damage, misuse, unauthorized use, access, interruption, modification, corruption, or disclosure, including cybersecurity and malicious insider risks. The Security Plan conforms, and at all times has conformed, in each case, in all material respects, to the Data Security Requirements. Each Acquired Company, and, with respect to the Business, Seller and its other Subsidiaries have implemented commercially reasonable anti-malware, anti-virus, data backup, disaster avoidance and recovery procedures and business continuity procedures and technology that are in all material respects consistent with applicable industry standards. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021 there has been no (i) unauthorized use or access or security breaches, loss or corruption or material malfunction or failure, of any of the Acquired Company IT Assets or any other IT Assets used in the Business (or any data or other information or transactions stored or contained in any Acquired Company IT Assets or such other IT Assets), and the Acquired Company IT Assets and such other IT Assets have not experienced denial of service attacks, continued substandard performance or other adverse events, (ii) unauthorized disclosure, or other breach of security of the Personal Information maintained by or on behalf of any Acquired Company (including, but not limited to, any event that would give rise to a breach or incident for which notification by such Acquired Company to individuals and/or Governmental Authorities is required under Data Security Requirements) or (iii) phishing, social engineering, or business email compromise incident; that, in each case of (i)-(iii), has resulted in a material monetary loss or that has otherwise had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business on the Business.

4.11          Real Property.

(a)            Schedule 4.11(a) of the Seller Disclosure Schedule sets forth a true and complete list of all real property owned in fee by any Acquired Company (together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, the “Owned Real Property”), including, with respect to each Owned Real Property, (i) the fee owner and (ii) physical address. The applicable Acquired Company has good and valid fee title to the applicable Owned Real Property, free and clear of all Encumbrances (other than Permitted Encumbrances). Seller has made available to Purchaser true, correct and complete copies of all deeds, title insurance policies (or if none for the applicable property, title insurance commitments or title insurance reports for such property), surveys, and zoning reports within the possession and control of Seller for each Owned Real Property. Other than as set forth on Schedule 4.11(a) of the Seller Disclosure Schedule or in any real property leases, licenses or other occupancy agreements relating to the Owned Real Property made available to Purchaser, (i) other than an Acquired Company, there are no parties who have a right to possess or are in possession of the Owned Real Property and (ii) no Acquired Company is a party to any Contract granting, or has otherwise granted to, another party any outstanding Encumbrance, option, right of first offer or first negotiation or right of first refusal or other similar right to purchase or lease the Owned Real Property or any portion thereof (each an “Option” and collectively, “Options”) and to Seller’s Knowledge, no Owned Real Property is subject to any such Options.

(b)            Schedule 4.11(b) of the Seller Disclosure Schedule sets forth a list of all leases, licenses and subleases to which an Acquired Company is party as a lessee, licensee or sublessee (any such lease, license or sublease, individually, and together with all material amendments, modifications, extensions, renewals, guaranties and other agreements with respect thereto, a “Real Property Lease” and collectively, the “Real Property Leases”), including with respect to each such Leased Real Property, (i) the landlord, sublandlord, licensor, sublicensor or grantor, (ii) the tenant, subtenant, licensee, sublicensee, grantee or occupant, and (iii) to the extent specified in the applicable Real Property Lease, the address. Each Real Property Lease is a valid and binding obligation of the Acquired Company party thereto, subject to the Bankruptcy and Equity Exception. Seller has made available to Purchaser copies of the Real Property Leases as in effect as of the date of this Agreement which are accurate and complete in all material respects. Each of the applicable Acquired Companies has a valid and enforceable leasehold, license or subleasehold (as applicable) interest under each of the Real Property Leases to which it is a party, free and clear of all Encumbrances (other than Permitted Encumbrances).

(c)            None of Seller or any of its Affiliates has received any written notice of any default or event that, with or without notice, lapse of time or both, would constitute a material default by such Acquired Company under any of the Real Property Leases. No Acquired Company has received written notice from the landlord of any material default or breach (after the expiration of any notice or cure period) by an Acquired Company under any Real Property Lease, and no such material default or breach (after the expiration of any notice or cure period) exists. No Acquired Company is in material default or breach (after the expiration of any notice or cure period) under any Real Property Lease. To Seller’s Knowledge, there are no existing defaults or breaches (after the expiration of any notice or cure period) by the lessor under any Real Property Lease. To Seller’s Knowledge, no condition exists which, but for the giving of notice or the passage of time, would constitute a material breach or default by any Acquired Company (or to Seller’s Knowledge, any other party thereto), or permit termination or modification by any party thereto or acceleration of rent by the landlord, sublessor or licensor of any Real Property Lease.

(d)            There is no pending, and to Seller’s Knowledge, there is no threatened appropriation, condemnation, eminent domain or like proceedings relating to the Real Property. Neither the whole nor any portion of the Real Property has been materially damaged or destroyed by fire or other casualty and not restored to a condition reasonably sufficient for the operation thereof for its current use. Subject to Permitted Encumbrances, no improvements constituting a part of the Owned Real Property encroach, in any material respect, on real property owned by any Person other than the Acquired Companies or the owner of such Owned Real Property. Subject to Permitted Encumbrances, no Acquired Company has received written notice from a lender of a default which remains uncured after the expiration of any notice or cure period, nor is there any such default (after the expiration of any notice or cure period) under any mortgage or similar instrument encumbering any Owned Real Property. None of Seller’s leasehold interests in the Leased Real Property is encumbered by a mortgage.

(e)            The Real Property and all material improvements thereon are in all material respects in adequate working condition and repair for the conduct of the Business thereon. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business or the Acquired Companies, taken as a whole, there are no structural or other physical defects or deficiencies in the condition of the Owned Real Property. Other than as set forth in any documents relating to the Owned Real Property made available to Purchaser, none of Seller or any of its Affiliates has received any written notice of, and there are no material special Taxes, levies or assessments, pending, certified or, to Seller’s Knowledge, contemplated, with respect to any of the Owned Real Property, in each case, subject to Permitted Encumbrances.

(f)            Seller has provided all material permits, certificates of occupancy, licenses, authorizations and approvals within Seller’s possession and control relating to the use and occupancy of the Owned Real Property by the Acquired Companies.

(g)            The Real Property constitutes all of the real property occupied by the Acquired Companies for the conduct of the Business.

4.12         Labor Matters.

(a)            Schedule 4.12(a) of the Seller Disclosure Schedule sets forth as a list, as of the date of this Agreement, of each Business Employee, and for each: (i) identification number, (ii) work location, (iii) hire date, (iv) annual base salary or hourly wage rate (as applicable), (v) exempt or non-exempt classification (as applicable), (vi) active or inactive status, and if inactive, the type of leave, (vii) full-time or part-time status and (viii) employing entity.

(b)            Solely with respect to the Business or any Business Employee, Seller and its Affiliates are, and since January 1, 2021 have been, in compliance with all applicable Legal Requirements relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, immigration, health and safety, worker classification, affirmative action, plant closings and employee layoffs, information privacy and security, payment and withholding of taxes and continuation coverage with respect to group health plans, except for any non-compliance that would not reasonably be expected to be material to the Business and the Acquired Companies, taken as a whole.

(c)            Since January 1, 2021, with respect to Business Employees, there has not been any strike, material slowdown, work stoppage or unfair labor practice claim against any Acquired Company, and none is pending nor, to Seller’s Knowledge, threatened. To Seller’s Knowledge, no activities or proceedings of any labor union to organize any Business Employees are pending or threatened. No labor union or works council represents any Business Employees in connection with their employment with any Acquired Company or the Business, nor are any Business Employees in connection with their employment with any Acquired Company or the Business covered by any Collective Bargaining Agreement.

(d)            To Seller’s Knowledge, with respect to the Business Employees, Seller and its Affiliates have reasonably investigated all sexual harassment or other harassment, discrimination, retaliation or material policy violation allegations against officers, directors or managerial or supervisory employees. With respect to each such allegation (except those that the applicable Acquired Company or Seller or its Affiliates (as applicable) reasonably deemed to not have merit), such Acquired Company or Seller or its Affiliates (as applicable) has taken corrective action reasonably calculated to prevent further improper action. Since January 1, 2021 there have been no such allegations of harassment or discrimination pending or, to Seller’s Knowledge, threatened, that if known to the public would bring the Acquired Companies or the Business into material disrepute.

(e)            To Seller’s Knowledge, no Business Employee is in any material respect in violation of any term of any employment agreement, non-disclosure agreement, common law non-disclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other similar obligation: (i) to any of Seller and its Affiliates (solely in respect of the Business), the Business or the Acquired Companies or (ii) to a former employer of any such Business Employee relating (A) to the right of any such employee to be employed by any member of the Seller Group in connection with the Business, as the case may be or (B) to the knowledge or use of trade secrets or proprietary information.

(f)            To Seller’s Knowledge, no Business Employee who is at the level of director or higher, intends to terminate his or her employment.

4.13         Employee Benefits.

(a)            Schedule 4.13(a) of the Seller Disclosure Schedule sets forth a list, as of the date of this Agreement, of each material Acquired Company Benefit Plan and each material Seller Benefit Plan (marked with an asterisk (*)). With respect to each such material Acquired Company Benefit Plan, Seller has made available to Purchaser accurate and complete copies of, as applicable, the current plan documents (or, if such plan is not in writing, a written description of such plan), trust agreements, insurance contracts or other funding vehicles and all amendments thereto, in the case of any plan intended to be qualified under Section 401(a) of the Code, the most recent determination or opinion letter from the IRS, the most recently filed Form 5500 and any non-routine correspondence with a Governmental Authority since January 1, 2021. With respect to each such material Seller Benefit Plan, Seller has made available to Purchaser a copy of, or a summary of the material terms of, such Seller Benefit Plan.

(b)            (i) Each Acquired Company Benefit Plan and Seller Benefit Plan has been administered, funded and operated in compliance with applicable Legal Requirements and in accordance with its terms and (ii) no action is pending or, to Seller’s Knowledge, threatened with respect to any Acquired Company Benefit Plan or Seller Benefit Plan (other than routine claims for benefits payable in the ordinary course, and appeals of denied claims), in each case of clauses (i) and (ii), except as would not reasonably be expected to be material to the Business and the Acquired Companies, taken as a whole. With respect to each Acquired Company Benefit Plan and Seller Benefit Plan, all contributions of any Acquired Company due on or before the date hereof have been made or properly accrued in all material respects.

(c)            No Acquired Company Benefit Plan or Seller Benefit Plan is and no Acquired Company has ever sponsored or contributed to in the prior six (6) years (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) or a “defined benefit plan” (as defined in Section 3(35) of ERISA) or any other plan that is subject to Section 302 or Title IV of ERISA (each, a “Pension Plan”), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple employer plan” (within the meaning of Section 413 of the Code) or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. None of the Acquired Companies have failed to make any minimum required contribution as defined in Section 302 of ERISA and Sections 412 and 430 of the Code or otherwise failed to comply with the minimum funding standards set forth in such sections with respect to any funded Pension Plans that are subject to such requirements.

(d)            Each Acquired Company Benefit Plan or Seller Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable from the IRS regarding the tax-qualified status of such plan and, to Seller’s Knowledge, no event has occurred or condition exists that would reasonably be expected to result in the loss of such tax-qualification.

(e)            None of the Acquired Company Benefit Plans or Seller Benefit Plans obligates Seller or any of its Subsidiaries (including the Acquired Companies) to provide any Business Employee or Former Business Employee any life insurance or medical or health benefits after his or her termination of employment or service with any Acquired Company, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state Legal Requirement.

(f)            Except as otherwise provided in this Agreement, neither the execution of this Agreement nor the consummation of the Transactions will (whether alone or together with any other event) (i) result in any payment or benefit becoming due to any Business Employee or Former Business Employee, (ii) increase any payment or benefit to be paid or provided to any Business Employee or Former Business Employee, (iii) result in any acceleration of the time of payment, funding or vesting of any payments or benefits to any Business Employee or Former Business Employee, (iv) result in the forgiveness of any indebtedness of any Business Employee or Former Business Employee or (v) result in any payment to a Business Employee or Former Business Employee that could reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).

(g)            None of the Acquired Companies is obligated to provide any gross-up, make-whole or other additional payment in respect of any Tax (including Taxes imposed under Section 4999 or 409A of the Code) or interest or penalty related thereto.

(h)            Except as would not reasonably be expected to be material to the Business and the Acquired Companies, taken as a whole, each Acquired Company Benefit Plan and Seller Benefit Plan or other compensation or benefit plan, program, policy, practice, contract, agreement or arrangement that constitutes, in whole or in part, a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) has been maintained, operated and administered in all respects in documentary compliance with Section 409A of the Code and applicable guidance thereunder, and no amount under any such plan has been or is reasonably expected to be subject to any interest or additional Taxes imposed under Section 409A of the Code.

(i)            Each Acquired Company Benefit Plan and each Seller Benefit Plan that is subject to the laws of a jurisdiction other than the United States (i) if intended to qualify for special tax treatment, meets all requirements for such treatment and, to Seller’s Knowledge, there are no existing circumstances or events that have occurred that could reasonably be expected to affect adversely the special tax treatment with respect to such plan, (ii) if a defined benefit pension plan that is intended to be funded and/or book-reserved, is funded and/or book reserved, as appropriate, in accordance with applicable Legal Requirements, based upon reasonable actuarial assumptions, and (iii) if intended or required to be qualified, approved or registered with a Governmental Authority, is and has been so qualified, approved or registered and nothing has occurred that could reasonably be expected to result in the loss of such qualification, approval or registration, as applicable, in each case of clauses (i), (ii) and (iii), except as would not reasonably be expected to be material to the Business and the Acquired Companies, taken as a whole. No Acquired Company Benefit Plan that is subject to the laws of a jurisdiction other than the United States is a defined benefit pension plan.

4.14         Taxes.

(a)            Each of the Acquired Companies and, with respect to the IP Seller IP, the IP Seller, has filed, or has caused to be filed on its behalf, all material Tax Returns required to be filed by it (taking into account any valid extensions of time in which to file), and all such Tax Returns are true, accurate, and complete in all respects. All material Taxes due and payable by the Acquired Companies have been paid in full.

(b)            Each of the Acquired Companies has (i) deducted, withheld and timely paid to the appropriate Tax Authority all material Taxes required to be deducted, withheld or paid by it (whether or not shown on any Tax Return), and (ii) complied with all related information reporting requirements in all respects.

(c)            All material Taxes required to have been collected and paid by each of the Acquired Companies on the sale of products or taxable services by the applicable Acquired Company (whether or not denominated as sales or use Taxes) have been properly collected and paid or have been accrued for in the Audited Financial Information, and all sales tax exemption certificates or other proof of the exempt nature of sales of such products or services have been properly collected and retained or, to the extent required, submitted to the appropriate Tax Authority.

(d)            No power of attorney has been granted with respect to any of the Acquired Companies as to any matter relating to Taxes that will remain in effect following the Closing.

(e)            None of the Acquired Companies has a permanent establishment (within the meaning of an applicable Tax treaty), or is otherwise subject to Tax in a jurisdiction other than the United States.

(f)            None of the Acquired Companies has ever been a member of an affiliated group or filed or been included in a combined, consolidated or unitary income Tax Return (other than the Seller Affiliated Group or a Consolidated Return, respectively). None of the Acquired Companies is liable for the Taxes of another Person other than any of the Acquired Companies (i) under Treasury Regulations Section 1.1502-6 (or comparable provisions of any state, local or non-U.S. Tax Legal Requirement), other than any other Person that is or was a member of the Seller Affiliated Group or (ii) as a transferee or successor, or by Contract (other than a Contract entered into in the ordinary course of business, the primary purpose of which is not Taxes). No Acquired Company is party to or bound by any Tax allocation, Tax indemnity, Tax sharing or similar agreement (other than any agreement (x) entered into in the ordinary course of business, the primary purpose of which is not Taxes, or (y) solely among the Acquired Companies).

(g)           There is no current or pending dispute, audit, examination, claim, litigation, proposed adjustment, matter in controversy or other Proceeding concerning any material Tax liability of any Acquired Company or with respect to the IP Seller IP, and no such dispute, audit, examination, claim, litigation, proposed adjustment, matter in controversy or other Proceeding has been proposed or threatened in writing.

(h)           No extension or waiver of (i) the limitation period applicable to any Tax Return of any Acquired Company or (ii) any period of assessment or collection with respect to Taxes of any of the Acquired Companies or the Seller Affiliated Group has been granted or requested from Seller or any of the Acquired Companies which extension or waiver has not expired.

(i)            There are no outstanding Encumbrances for material Taxes (other than Permitted Encumbrances) on the IP Seller IP or assets of any Acquired Company.

(j)            None of the Acquired Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for any Post-Closing Tax Period as a result of: (i) any prepaid amount or deferred revenue received at or prior to the Closing; (ii) any change in method of accounting or use of improper method of accounting prior to the Closing Date; (iii) any “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or non-U.S. Income Tax Legal Requirements) executed prior to the Closing; (iv) any installment sale or open transaction disposition made prior to the Closing or (v) any intercompany transactions or excess loss accounts as described in the Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. Income Tax Legal Requirements) arising on or prior to the Closing Date.

(k)           None of the Acquired Companies has entered into any voluntary disclosure agreements with any Tax Authority with respect to any Tax.

(l)            None of the Acquired Companies has distributed stock of another Person, nor had its shares distributed by another Person, in a transaction that was purported or intended to be governed, in whole or in part, by Section 355 or Section 361 of the Code (or any corresponding provision of state, local or non-U.S. Legal Requirements).

(m)          None of the Acquired Companies has participated in, or is currently participating in, any “listed transaction” within the meaning of Section 6707A(c) of the Code or Treasury Regulations Section 1.6011-4(b)(2), or any transaction requiring disclosure under a corresponding provision of state, local, or non-U.S. Legal Requirements.

(n)            None of the Acquired Companies (i) is the beneficiary of any extension of time within which to file any Tax Return (or has made or had made on its behalf a request for such which is currently pending), other than automatic extensions of time or other extensions of time obtained in the ordinary course of business, (ii) has received a written claim by a Tax Authority in a jurisdiction in which it does not file Tax Returns that it is or may be subject to taxation therein or required to file a Tax Return therein, (iii) has received (or is subject to) any private letter or similar ruling or agreement from any Tax Authority, in each case, that will remain binding on the applicable Acquired Company after the Closing, or (iv) is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.

(o)            Each of the Acquired Companies is classified as a corporation for U.S. federal income Tax purposes.

(p)            All payments by, to, or among any of the Acquired Companies and/or any Affiliate of the any of the Acquired Companies related to any Affiliate agreement have complied with all applicable transfer pricing requirements imposed by any Tax Authority in all material respects and all material documentation required by relevant transfer pricing laws has been timely prepared or obtained and, if necessary, retained by the applicable Acquired Company.

(q)            Except as set forth on Schedule 4.14 of the Seller Disclosure Schedule, none of the Acquired Companies has (a) deferred any payroll, social security, unemployment, withholding or other Tax under the CARES Act which deferrals remain outstanding or (b) applied for or received any Tax credits under the CARES Act. Each Acquired Company was eligible to receive and validly claimed any Tax credits it received under the CARES Act.

(r)            The Acquired Companies have each filed with the appropriate Governmental Authorities all material unclaimed property reports as required under applicable Legal Requirements and are otherwise in compliance in all material respects with applicable Legal Requirements relating to unclaimed property or escheat obligations.

(s)            For purposes of the Section 338(h)(10) Election, each of the Acquired Companies is a member of the affiliated group filing consolidated U.S. federal income Tax Returns of which Seller is the common parent. Neither Seller nor any of its Affiliates has taken or agreed to take any action, and, to Seller’s Knowledge, no fact or circumstance exists, that would prevent or impede, or could reasonably be expected to prevent or impede, the timely making of the Section 338(h)(10) Election.

4.15         Sufficiency of Assets. Except as set forth on Schedule 4.15 of the Seller Disclosure Schedule, and subject to the rights and covenants under Section 7.1, upon the receipt of any necessary third-party consents, approvals and Permits required in connection with consummation of the transactions contemplated by this Agreement, the material assets, rights, properties and interests owned, leased or licensed by the Acquired Companies, together with the IP Seller IP transferred to Purchaser or its designees at the Closing, and the assets, rights properties and interests to be provided pursuant to the Transition Services Agreement or any other transitional arrangements between Seller, Purchaser or any of their respective Affiliates, are sufficient for, and constitute all of the material assets, rights, properties and interests used in or necessary for, the conduct of the Business immediately following the Closing in substantially the same manner as conducted as of the date of this Agreement; provided that this Section 4.15 shall not be deemed to be breached as a result of any action (i) that Seller or any of its Affiliates is or are expressly required to take pursuant to this Agreement, the Transition Services Agreement, or (ii) for which Purchaser has expressly consented in writing (including pursuant to Section 6.1); and provided further that the foregoing is not a representation or warranty with respect to infringement, misappropriation or other violation of Intellectual Property. Nothing in this Section 4.15 shall be deemed to expand the scope of any other representations or warranties made by Seller in this Article IV.

4.16         Environmental Matters.

(a)            Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business or the Acquired Companies, taken as a whole, (i) the Acquired Companies possess, and, since January 1, 2020, have possessed, all Permits required by Environmental Laws for the conduct of the Business (collectively, “Environmental Authorizations”); (ii) the Acquired Companies and the Business are and, since January 1, 2020, have been in compliance with all applicable Environmental Laws and Environmental Authorizations; (iii) there are no Orders or Proceedings pending or, to Seller’s Knowledge, threatened, against or involving the Business, any Acquired Company or any of their respective predecessors alleging the violation of, non-compliance with or liability under any applicable Environmental Laws; (iv) no written notice under any Environmental Law has been received by Seller or any of its Affiliates from any Governmental Authority or other Person concerning the Release or possible Release of Hazardous Materials, or requiring an investigation for Hazardous Materials, at any location owned, operated or leased, now or in the past, by the Business or any Acquired Company or otherwise concerning violations of Environmental Law by or Liability of the Business or any Acquired Company pursuant to any Environmental Law, in each case, except for any such written notice that has been fully and finally resolved with no further Liability; (v) there have been no Releases or threatened Releases of, or exposure to, Hazardous Materials (A) at, on, about, under or migrating from any Real Property or any other real property currently owned, leased or operated by the Business or any of the Acquired Companies (including any facilities or structures located on, in, or under such property) or, to Seller’s Knowledge, any real property formerly owned, leased or operated by the Business or any of the Acquired Companies or any of their respective predecessors or at any other third-party location, or (B) arising from or relating to the operations of or any products manufactured, marketed, sold or distributed by the Business or any of the Acquired Companies or any of their predecessors, in each case, that would reasonably be likely to give rise to violations of, or Liabilities under, any Environmental Laws; (vi) none of the Business or the Acquired Companies has assumed or retained, by contract or operation of law, any obligation under any Environmental Law or concerning any Hazardous Materials that could reasonably be expected to result in Liability of any of the Business or Acquired Company under any applicable Environmental Law; (vii) Seller is not aware of any past, present or anticipated conditions, events, circumstances (including (A) anticipated regulatory requirements and (B) anticipated obligations pursuant to Environmental Law or Environmental Authorizations that are triggered by the contemplated transaction) that are expected to (1) materially increase the costs of or prevent continued compliance by any of the Acquired Companies with Environmental Laws and the requirements of Environmental Authorizations, or (2) give rise to Liability of the Business or any Acquired Company under any Environmental Laws; and (viii) since January 1, 2021, none of the Acquired Companies or any of their predecessors has been named as a defendant in or is or has been subject to any Proceeding relating to the use of or exposure to asbestos, and, to Seller’s Knowledge, no Proceedings have been threatened.

(b)           Seller has made available to Purchaser copies of any Phase I or Phase II Environmental Site Assessments or any material reports, studies, analyses, tests, or monitoring and any other material documents possessed by (or initiated by and within the reasonable control of) Seller or any of its Affiliates pertaining to matters relating to any compliance or non-compliance with or Liability under Environmental Law with respect to the Business, any of the Acquired Companies or any of their predecessors (including any real property currently or formerly owned, leased or operated by the foregoing); provided, however, that with respect to compliance with Environmental Laws, routine filings or submittals made in the ordinary course which demonstrate compliance with Environmental Law are not considered to be material reports, studies, analyses, tests, or monitoring or other material documents.

4.17          Anti-Bribery Matters. Except as would not be material to the Acquired Companies or the Business taken as a whole, for the past five (5) years prior to the date of this Agreement, none of the Acquired Companies (including any of their respective officers, directors or employees) nor, to Seller’s Knowledge, any agent or other Person acting on behalf of the Acquired Companies has (a) taken any action in violation of any anti-corruption or anti-bribery Legal Requirement applicable to any Acquired Company (in each case, as in effect at the time of such action), including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, any laws enacted pursuant to, or arising under, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any other applicable laws or regulations relating to bribery or corruption (collectively, the “Anti-Bribery Laws”), (b) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (c) made, offered or authorized any unlawful payment to foreign or domestic government officials or employees or (d) made, offered or authorized any unlawful bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment. For the five (5) years prior to the date of this Agreement, there have been no charges, reports, internal investigations or inquiries, voluntary disclosures or Proceedings pending, or, to Seller’s Knowledge, threatened against the Business, or any of the Acquired Companies, or any of the Business’s or Acquired Companies’ officers or directors in their capacity as such pursuant to any applicable Anti-Bribery Laws. The Business and the Acquired Companies maintain policies and procedures reasonably designed to ensure compliance with all applicable Anti-Bribery Laws.

4.18         Brokers. Other than with respect to fees or commissions that will be borne solely by the Seller Group, neither Seller nor any of its Affiliates has retained any broker, finder, agent, financial advisor, investment banker or similar intermediary who has acted on behalf of the Acquired Companies and no broker, finder, agent, financial advisor, investment banker or similar intermediary is entitled to, nor has any Acquired Company incurred any liability or obligation for, any brokerage fees, commissions, finders’ fees, financial advisor fees or other similar fees, in each case, with respect to this Agreement or the Transactions.

4.19         Related Party Transactions. Except as set forth on Schedule 4.19 of the Seller Disclosure Schedule, and other than Contracts, Benefits Plans or policies for employment and benefits provided to employees and other individual service providers in the ordinary course of business, no officer, director, manager or employee of Seller or its Affiliates (including the Acquired Companies) or Seller or any of its Affiliates (other than the Acquired Companies) (each, a “Related Person”): (a) has entered into any transaction with or is a party to any Contract with the Business or any Acquired Company; (b) has any right, title, or interest in or to, or uses, holds for use, or licenses, any of the assets or properties used in the Business, whether tangible or intangible (including any Intellectual Property); or (c) provides or causes to be provided to the Business any of the assets, properties, services or facilities used in the Business (other than those that will continue to be provided under the Transition Services Agreement), in each case, that is material to the Business and the Acquired Companies, taken as a whole. None of Seller or any of its Affiliates owns, leases or uses (or prior to the Closing will own, use or lease) any Owned Real Property or Leased Real Property or any other warehouses, distribution facility or other facility that is used by, or related to, the Business and any other business of Seller or any other Related Person. Schedule 4.19 of the Seller Disclosure Schedule sets forth a list of each Shared Contract and, with respect to each, as applicable, (i) the parties thereto and (ii) the subject matter. There have not been any transfers of personnel between the Business and the other businesses of Seller and its Affiliates other than in the ordinary course.

4.20         Key Customers and Key Suppliers. Schedule 4.20 of the Seller Disclosure Schedules lists (a) the Key Customers and (b) the Key Suppliers. During the preceding twelve (12) months, (i) neither Seller nor any of its Affiliates (including the Acquired Companies) has engaged in any material dispute with any Key Customer or Key Supplier, nor has any Key Customer or Key Supplier provided written or, to Seller’s Knowledge, oral notice to Seller or any of its Affiliates (including the Acquired Companies) that it intends to terminate, not renew or adversely alter in any material respect its relationship with such entity or the terms thereof and (ii) no Key Customer has (A) materially decreased its purchases of products or services from Seller or any of its Affiliates (including the Acquired Companies) relative to such Key Customer’s purchasing history during the twelve (12) months prior to such change or (B) requested in writing reduced pricing (whether through increased credits or otherwise) from that in effect under an existing Contract.

4.21         Accounts Payable; Accounts Receivable. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies or the Business, taken as a whole, (a) all accounts payable of the Business that are reflected in the Unaudited Financial Information (except as specifically set forth therein) and all accounts payable of the Business arising since the date of the Latest Balance Sheet are valid obligations of one of the Acquired Companies and have arisen only from bona fide arm’s length transactions in the ordinary course of business, and all such accounts payable have either been paid, are not yet due and payable in the ordinary course of business, are being contested by the Acquired Companies in good faith (and appropriate reserves established therefor), and if not paid, have been properly recorded, (b) all accounts receivable of the Business that are reflected in the Unaudited Financial Information (except as specifically set forth therein) and all accounts receivable of the Business arising since the date of the Latest Balance Sheet are held by one or more of the Acquired Companies and are valid obligations and have arisen only from bona fide arm’s length transactions in the ordinary course of business and are not subject to defenses, credits, setoffs or counterclaims and (c) all of the outstanding receivables deemed uncollectible have been reserved against in the Unaudited Financial Information in accordance with GAAP.

4.22         Product Warranties; Product Liability. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies or the Business, taken as a whole, (a) each product or service manufactured, provided, developed, sold, leased, licensed or delivered by or on behalf of any Acquired Company or, to the extent related to the Business, Seller or any of its Affiliates meets, and at all times since January 1, 2021 has met, in all material respects, all standards for quality and workmanship prescribed by applicable Legal Requirement and industry standards; (b) (i) no material product liability or similar claims or Proceedings and (ii) no material claims or Proceedings for breach of contractual warranties or due diligence or other obligations under Contracts or other material claims or Proceedings for breach of contract, in each case, relating to any product or service manufactured, provided, developed, sold, leased, licensed or delivered by or on behalf of any Acquired Company or, to the extent related to the Business, Seller or its Affiliates are pending or, to Seller’s Knowledge, threatened since January 1, 2021; (c) since January 1, 2021, there have been no recalls (mandatory or voluntary), market withdrawals, market replacement or post-sale warning of any product manufactured, provided, developed, sold, leased, licensed or delivered of any Acquired Company or, to the extent related to the Business, Seller or any of its Affiliates (and there is no current plan for any recall, market withdrawal, market replacement or post-sale warning; nor is any such recall, market withdrawal, market replacement, or post-sale warning currently under consideration); and (d) no Acquired Company (or, to the extent related to the Business, Seller or any of its Affiliates) has received any written communication from any Governmental Authority regarding a recall, withdrawal, suspension or discontinuance of any such product since January 1, 2021.

4.23         Government Contracts.

(a)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021: (i) each current Government Contract is in full force and effect, constitutes a legal, valid and binding agreement enforceable in accordance with its terms and was awarded in compliance with applicable Legal Requirements; (ii) the Acquired Companies and Seller and any of its Subsidiaries have complied, in all material respects, with the terms and conditions of each Government Contract and all Legal Requirements applicable to each Government Contract; (iii) the representations, certifications and warranties made by each Acquired Company and by Seller or any of its Subsidiaries in writing with respect to each Government Contract were accurate, in all material respects, as of their respective effective dates and each Acquired Company and Seller or any of its Subsidiaries has made any reasonably required updates to such representations, certifications and statements; (iv) all invoices and claims for payment, reimbursement or adjustment submitted by any Acquired Company or by Seller or any of its Subsidiaries in connection with any payments from any Governmental Authority pursuant to any Government Contract were current, accurate and complete in all material respects as of their respective submission dates; (v) no terminations for default or cause, cure notices, or “show cause” notices have been issued in writing to any of the Acquired Entities with respect to any Government Contract; (vi) there are no material outstanding claims, requests for equitable adjustment, audits, or disputes relating to any Government Contract; (viii) there have been no written document requests, subpoenas, search warrants or civil investigative demands addressed to any of the Acquired Companies or Seller or any of its Subsidiaries in connection with or related to any Government Contract; and (ix) there have been no written requests by a Governmental Authority for a contract price adjustment based on a claimed disallowance by an applicable Governmental Authority or claim of defective pricing relating to any Government Contract.

(b)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021, none of the Acquired Companies or, to the extent related to the Business, Seller or any of its other Affiliates nor any of their directors, officers, agents or employees has been debarred, suspended, or proposed for debarment or otherwise excluded from participation in the award of Government Contracts by any Governmental Authority.

(c)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021, no Acquired Company nor Seller nor any of its Subsidiaries (i) has conducted or initiated any internal investigation, or made a voluntary disclosure or mandatory disclosure under the Federal Acquisition Regulation mandatory disclosure provisions (48 C.F.R. § 52.203-13) or similar regulatory requirements with respect to any alleged misstatement, or omission, arising under or relating to any Government Contract, or (ii) has received credible evidence of a violation of a federal criminal Legal Requirement involving the fraud, conflict of interest, bribery, or gratuity provisions found in Title 18 of the U.S. Code, a violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733), or a significant overpayment, in connection with the award, performance, closeout, or receipt of any Government Contract.

(d)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021, (i) all material costs charged to any Government Contract have been allowable, allocable, reasonable, and reimbursable in accordance with applicable cost principles and the terms of the underlying Government Contracts; (ii) no Acquired Company nor Seller nor any of its Subsidiaries has submitted any certified cost or pricing data that was not current, accurate or complete in all material respects as of the certification date in connection with any Government Contract; (iii) no Governmental Authority has, to Seller’s Knowledge, threatened to assess against any Acquired Company or Seller or any of its Subsidiaries any material penalties, credits, or other similar contractual offsets pursuant to any performance-based Government Contract that contains service level arrangements or performance guarantees; (iv) none of the Acquired Companies nor Seller nor any of its Subsidiaries has sold a product or service to any customer at a price that would invoke any “most favored customer” pricing provision under any Government Contract, except as in accordance with the terms of such Government Contract; and (v) each of the Acquired Companies and Seller and any of its Subsidiaries has maintained adequate systems of internal controls appropriate for the operations of the Business that are in compliance in all material respects with all relevant and applicable requirements of the Government Contracts.

4.24         Insurance. Schedule 4.24 of the Seller Disclosure Schedule contains a true and complete list of all material insurance policies currently maintained by or for the benefit of the Business or the Acquired Companies (other than any insurance policy comprising a Benefit Plan) (“Insurance Policies”), true and complete copies of which have been made available to Purchaser, other than the Insurance Policies in the name of the Seller Group. The Insurance Policies are sufficient for compliance in all material respects by the Acquired Companies or, to the extent related to the Business, Seller or any of its other Affiliates with all Material Contracts. The Insurance Policies are in full force and effect; all premiums due and payable under the Insurance Policies have been paid in full; the limits of each Insurance Policy are fully in place without any exhaustion or erosion; neither Seller nor any of its Affiliates (including the Acquired Companies) has received notice of cancellation, non-renewal, termination or material modification of any terms and conditions with respect to any of the Insurance Policies; neither Seller nor any of its Affiliates (including the Acquired Companies) is in material breach or default with respect to its obligations under any of the Insurance Policies; and there are no material open insurance claims under any of the Insurance Policies relating to the Business or the Acquired Companies, including for which the applicable insurer has questioned, disputed or denied coverage or reserved rights. To Seller’s Knowledge, no event has occurred that would reasonably be expected to result in the cancellation, non-renewal, termination or material limitation of coverage under any Insurance Policy.

4.25         Trade Controls.

(a)            Each of the Acquired Companies (and, to the extent related to the Business, Seller and its other Affiliates) and their respective officers, directors, and, to Seller’s Knowledge, employees, agents or other third parties acting on their behalf, are, and have been for the past five (5) years, in compliance with applicable Trade Controls in all material respects. Each of the Acquired Companies (and, to the extent related to the Business, Seller and its other Affiliates) have obtained all applicable material import and export licenses as well as all other necessary material licenses, consents, notices, waivers, approvals, orders, authorizations, and declarations, and completed all necessary material registrations and filings, required under applicable Trade Controls.

(b)            None of the Acquired Companies (or, to the extent related to the Business, Seller or any of its other Affiliates) is conducting, or has in the past five (5) years conducted any business, directly or indirectly, with, in, or involving any Sanctioned Person, Restricted Person, or Sanctioned Jurisdiction.

(c)            None of the Acquired Companies (or, to the extent related to the Business, Seller or any of its other Affiliates), or any of their respective officers, directors, employees, or agents, is, or has been for the past five (5) years, a Sanctioned Person or a Restricted Person.

(d)            In the past five (5) years, none of the Acquired Companies (or, to the extent related to the Business, Seller or any of its other Affiliates) has (i) made any voluntary or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission arising under or relating to any non-compliance with any Trade Controls, (ii) been the subject of a past, current, pending or threatened investigation, inquiry or enforcement proceeding for a material violation of Trade Controls, or (iii) received any written notice, request, penalty, or citation for any actual or potential non-compliance with Trade Controls.

4.26          No Other Representations. It is the explicit intent of each party hereto, and Purchaser expressly acknowledges and agrees, that, in connection with this Agreement, none of Seller nor any of its Affiliates has made, is making or has authorized any Person to make any representation or warranty whatsoever, express or implied, except those representations and warranties expressly set forth in this Article IV or in the other Transaction Documents. Except as expressly and specifically set forth in the representations and warranties made by Seller in this Article IV and the representations and warranties in the other Transaction Documents, each of Seller, its Affiliates, and its Representatives expressly disclaims any and all other representations and warranties, whether express or implied, and in entering into this Agreement, Purchaser expressly disclaims reliance on any and all such other representations or warranties, express or implied, including those relating to Seller, the Acquired Companies, the Business, the IP Seller IP or the Transactions, or any of their financial condition, business, operations, results of operations, properties, assets, liabilities or prospects, or any estimate, projection, prediction, data, financial information, teaser, confidential information presentation or any other materials or information provided or addressed to Purchaser, its Affiliates or its and their Representatives, including with respect to the accuracy or completeness of any such information. Except as expressly and specifically set forth in the representations and warranties made solely by Seller in this Article IV and the representations and warranties in the other Transaction Documents, each of Seller, its Affiliates, and its Representatives has not made, is not making, has not authorized anyone to make and specifically disclaims any statement, representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to assets of the Business (including the IP Seller IP), any part thereof, the workmanship thereof, and the absence of any defects therein, whether latent or patent, it being understood that such assets are being acquired “as is, where is” on the Closing Date, and in their present condition.

Article V

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser hereby represents and warrants to Seller as follows:

5.1            Authority; Enforceability.

(a)            Purchaser has the requisite corporate power and authority to execute and deliver this Agreement, and each of the other Transaction Documents to which it is or will be a party, to perform its obligations hereunder and under each of the other Transaction Documents to which it is or will be a party, and to consummate the Transactions in accordance with the terms of this Agreement, and each of the other Transaction Documents to which it is or will be a party. The execution, delivery and performance by Purchaser of this Agreement and each of the other Transaction Documents to which it is or will be a party and the consummation of the Transactions contemplated by each of the Transaction Documents to which it is or will be a party, have been duly and validly authorized by all necessary corporate action on the part of Purchaser and such authorization has not been subsequently modified or rescinded. No additional corporate or shareholder authorization is necessary for the execution, delivery or performance by Purchaser of this Agreement or any other Transaction Document to which it is or will be a party or the consummation by Purchaser of the Transaction in accordance with the terms of this Agreement and each other Transaction Document to which it is a party.

(b)            This Agreement and each of the other Transaction Documents to which Purchaser is or will be a party have been duly and validly executed and delivered by Purchaser and constitutes, assuming due authorization, execution and delivery of this Agreement and the other Transaction Documents by Seller and the other parties thereto, a valid and binding legal obligation of Purchaser, enforceable against Purchaser in accordance with the terms hereof, subject to the Bankruptcy and Equity Exception. Assuming due authorization, execution and delivery of each of the other Transaction Documents to which Purchaser is or will be a party by the other parties thereto, each of the other Transaction Documents will constitute a valid and binding legal obligation of Purchaser, enforceable against Purchaser in accordance with the terms thereof, in each case, subject to the Bankruptcy and Equity Exception.

5.2            Non-Contravention; Consents.

(a)            The execution and delivery by Purchaser of this Agreement and each other Transaction Document to which it is or will be a party does not, and the performance by Purchaser of this Agreement and each other Transaction Document to which it is or will be a party will not, require any Consent or Permit of, registration, declaration or filing with, or notification to, any Governmental Authority, except (i) under applicable Antitrust Laws or Investment Screening Laws, (ii) under the applicable requirements of the Exchange Act or applicable blue sky laws, (iii) compliance with any Permits relating to the Business, (iv) for such other Consents, filings or notifications, the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

(b)            The execution and delivery by Purchaser of this Agreement and each of the other Transaction Documents to which it is or will be a party does not, and the consummation of the Transactions will not, (i) conflict with, violate or constitute a breach of, or require notice, consent or waiver under any provision of the organizational documents of Purchaser, (ii) conflict with, violate or constitute a breach of, or require any notice, consent or waiver under any Legal Requirement applicable to Purchaser, except with respect to the required filings and approvals set forth in Sections 5.2(a)(i) and (ii) and in Schedule 5.2(b)(ii) of the Purchaser Disclosure Schedule or (iii) result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the creation or acceleration (or loss of benefit from) of any rights or obligations under, or create in any party the right to, accelerate, terminate, modify or cancel, or require any notice, consent or waiver under, any Contract to which Purchaser is a party, except, in the case of the foregoing clauses (ii) or (iii), as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.3            Organization. Purchaser is duly incorporated, validly existing and in good standing under the Legal Requirements of the state of Delaware, except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser has all necessary corporate power and authority to conduct its business in the manner in which it is currently being conducted, except where the absence of such power and authority to conduct its business would not reasonably be expected to materially impair or materially delay Purchaser from consummating the Transactions or otherwise prevent Purchaser from performing in all material respects its obligations hereunder or under any other Transaction Document to which it is or will be a party.

5.4            Litigation. Since January 1, 2021, there are no Proceedings pending, or, to Purchaser’s Knowledge, threatened against Purchaser, any of Purchaser’s material assets or properties or any of its present or former officers, employees or directors in their capacity as such that, if adversely decided, would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.5            Securities Matters. Purchaser is an “accredited investor” (as such term is defined in Rule 501 of Regulation D under the Securities Act). The Shares are being acquired by Purchaser (or Purchaser’s designee) for its own account, and not with a view to, or for the offer or sale in connection with, any public distribution or sale of the Shares or any interest in them. Purchaser has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of its investment in the Shares, and Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Shares. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any applicable provincial, state and foreign securities Legal Requirement, and agrees that the Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of except pursuant to a registered offering in compliance with, or in a transaction exempt from, the registration requirements of the Securities Act, or any applicable provincial, state and foreign securities Legal Requirement.

5.6            Financing.

(a)            Purchaser has delivered to Seller true, complete and correct fully executed copies of (i) the debt commitment letter (including all exhibits, schedules and annexes thereto and as amended or modified from time to time in accordance with its terms and to the extent permitted by Section 6.8(b), the “Debt Commitment Letter”), dated as of the date hereof, from the Financing Entities, and (ii) that certain Incremental Assumption and Amendment Agreement and Amendment, dated as of the date hereof (including all exhibits, schedules and annexes thereto and as amended and restated, supplemented or otherwise modified from time to time in accordance with its terms and to the extent permitted by Section 6.8(b), the “Credit Agreement Amendment” and together with the Debt Commitment Letter, the “Debt Commitment Documents”), among the Purchaser, the Financing Entities and the other parties thereto, and (iii) any fee letters related to the foregoing (redacted, in the case of such fee letters, solely with respect to the amounts and percentages of the fees and other economic terms that are customarily redacted in connection with similar financings; provided that such redactions would not be reasonably expected to conceal any term that could terminate, reduce to below the Required Amount the amount of, or adversely affect the conditionality or enforceability of the Debt Financing) (such Debt Commitment Documents and each such fee letter, collectively, the “Debt Financing Commitment”), pursuant to which the applicable Financing Entities have committed, on the terms and subject to the conditions set forth therein, to provide debt financing in the amounts set forth therein to Purchaser for the purposes of, among other things, financing the Transactions and related fees and expenses.

(b)            As of the date hereof, the Debt Financing Commitment is a legal, valid, binding and enforceable obligation of Purchaser and (to Purchaser’s knowledge) each of the other parties thereto (subject to the Bankruptcy and Equity Exception). As of the date hereof, the Debt Financing Commitment is in full force and effect, and the Debt Financing Commitment has not been terminated, withdrawn, rescinded or otherwise amended or modified in any respect and the commitments contained therein have not been terminated, withdrawn, rescinded, reduced or otherwise amended or modified in any respect (and no such termination, withdrawal, rescission, reduction, amendment or modification thereof is contemplated other than an amendment or modification solely to join additional Financing Sources thereto and to make certain other amendments, including to upsize the Purchaser’s revolver, modify existing financial maintenance covenants and make certain other amendments and modifications relating to the Purchaser’s revolver, provided that such amendments are not Prohibited Modifications). As of the date hereof, there are no side letters or other Contracts, agreements, arrangements or understandings of any kind (written or oral) to which Purchaser or (to Purchaser’s knowledge) any of its Affiliates is a party that are directly or indirectly related to the Debt Financing Commitment or the Debt Financing, other than customary engagement letters and fee credit letters. Purchaser has fully paid any and all commitment fees or other fees or expenses in connection with the Debt Financing that are payable on or prior to the date hereof. As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the Required Amount, other than as expressly set forth in the Debt Commitment Documents. As of the date hereof, no event has occurred as of the date hereof which, with or without notice, lapse of time or both, (i) constitutes, or could reasonably be expected to constitute, a default or breach on the part of Purchaser or, to Purchaser’s Knowledge, any other party thereto under any term or condition of the Debt Financing Commitment or (ii) could reasonably be expected to (A) make any of the representations of Purchaser or, to Purchaser’s Knowledge, any other party thereto set forth in the Debt Financing Commitment inaccurate in any respect, (B) result in any of the conditions in the Debt Financing Commitment not being satisfied on a timely basis or (C) otherwise result in the Debt Financing in an amount equal to at least the Required Amount not being available in accordance with the terms of the Debt Financing Commitment. As of the date hereof, no Financing Entity has notified Purchaser of its intention to terminate the Debt Financing Commitment or not to provide all or any portion of the Debt Financing. Assuming (1) the accuracy of the representations and warranties set forth in Article IV in all material respects and (2) the performance by Seller of the covenants and agreements contained in this Agreement in all material respects, the Debt Financing, when funded in accordance with the Debt Financing Commitment, shall provide Purchaser with cash proceeds on the Closing Date in an amount that, together with cash then otherwise immediately available to Purchaser, is sufficient for the satisfaction of all of their respective obligations under the Transaction Documents and the Debt Financing Commitment, including the (i) payment of the Closing Purchase Price (as well as the Final Purchase Price) and the repayment or refinancing of any outstanding Final Closing Indebtedness contemplated or required to be repaid or otherwise satisfied in connection with the consummation of the transactions contemplated hereby, (ii) payment of any and all fees and expenses of or required to be paid by Purchaser or any of its Affiliates on or prior to the Closing Date in connection with the transactions contemplated hereby and by the Debt Financing and (iii) satisfaction of all other payment obligations of Purchaser or any of its Affiliates contemplated hereunder and under the other Transaction Documents and under the Debt Financing Commitment required to be made at or in connection with the Closing (the amounts contemplated by clauses (i) through (iii), the “Required Amount”).

(c)            Purchaser acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, the consummation of the Debt Financing shall not be a condition to the obligation of Purchaser to consummate the transactions contemplated hereby.

5.7            Solvency. As of the Closing, after giving effect to any indebtedness being incurred on such date in connection herewith (including the funding of the full amount of the Debt Financing), and assuming (i) satisfaction of the conditions to Purchaser’s obligations to consummate the Closing set forth in Article X and (ii) that the Required Information presents fairly in all material respects the consolidated financial condition and consolidated results of operations of the Acquired Companies as of the end of the periods thereby and as of the Closing Date, neither Purchaser nor the Acquired Companies, on a consolidated basis, will (a) be insolvent (either because its financial condition is such that the sum of its debts (including a reasonable estimate of the amount of all contingent liabilities) is greater than the fair value of its assets, or because the present fair saleable value of its assets will be less than the amount required to pay its probable liability on its debts as they become absolute and matured), (b) have unreasonably small capital with which to engage in its business or (c) have incurred or plan to incur debts beyond its ability to pay as they become absolute and matured. No transfer of property is being made and no obligation is being incurred in connection with the Transactions with the intent to hinder, delay or defraud either present or future creditors of Purchaser, its Affiliates or the Acquired Companies.

5.8            Brokers. Other than with respect to fees or commissions that will be borne solely by Purchaser and its Affiliates, Purchaser and its Affiliates have not retained any broker, finder, agent, financial advisor, investment banker or similar intermediary who has acted on behalf of Purchaser and its Affiliates and no broker, finder, agent, financial advisor, investment banker or similar intermediary is entitled to, nor have Purchaser and its Affiliates incurred any liability or obligation for any brokerage fees, commissions or finders’ fees, financial advisor fees or other similar fees, in each case, with respect to this Agreement or the Transactions.

5.9            R&W Insurance Policy. Attached hereto as Exhibit D is a true, accurate and complete copy of the binder agreement (the “R&W Binder Agreement”) for the buyer-side representations and warranties insurance policy(ies) (the “R&W Insurance Policy”) including the form of the R&W Insurance Policy. The R&W Binder Agreement is in full force and effect and is a legal, valid, binding and enforceable obligation of Purchaser and the insurer(s) party thereto, subject to the Bankruptcy and Equity Exception. Purchaser is solely responsible for all costs to procure, maintain and make claims under the R&W Insurance Policy, including all premiums, retention amounts, Taxes, expenses and costs of any nature whatsoever. The R&W Insurance Policy: (a) names Purchaser, or an Affiliate thereof, as an insured thereunder; (b) contains a provision whereby the insurer(s) expressly waives, and agrees not to pursue, directly or indirectly, any subrogation, contribution or any other rights against Seller, its Affiliates and their respective current and former Representatives, Affiliates and fiduciaries (or the functional equivalent of any such position) (collectively, “Seller Parties”) based upon, arising out of, or relating to this Agreement or the transactions contemplated hereby, or the negotiation, execution or performance of this Agreement, other than in the case of Fraud by any such Seller Party, and then only to the extent of such Fraud by such Seller Party; and (c) names the Seller Parties as express third-party beneficiaries in respect of the waiver in clause (b) of this Section 5.9. The R&W Insurance Policy does not increase the liability hereunder of the Seller Parties. As of the date of this Agreement, neither Purchaser nor any of its Affiliates has received or given any written or, to Purchaser’s Knowledge, oral notice or claim of any material breach or violation of, or default under, the R&W Binder Agreement.

5.10          Pending Transactions. Neither Purchaser nor any of its Affiliates is a party to any pending transaction or contemplating any transaction, in each case, to acquire (by merging or consolidating with, by purchasing a substantial portion of the assets of or equity in, or by any other similar transaction) any Person (or business division or unit thereof), where, in the case of such contemplated transaction, the entering into of a definitive agreement relating to or, in either case, the consummation of such transaction would reasonably be expected to (a) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any Consents, Orders or Governmental Approvals necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (b) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the Transactions or (c) otherwise materially delay the consummation of the Transactions.

5.11          Investigation. Purchaser is an informed and sophisticated purchaser and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its purchase of the Acquired Companies and the IP Seller IP, and its consummation of the Transactions. Purchaser acknowledges and agrees that it has (a) conducted such inquiries and independent investigations into the Business, the IP Seller IP and the Acquired Companies as it has deemed sufficient to make an independent and informed decision with respect to the execution, delivery and performance of this Agreement and the consummation of the Transactions and (b) been furnished with or afforded adequate access to and the adequate opportunity to review the books, records, facilities and personnel of Seller, IP Seller and the Acquired Companies for purposes of conducting a due diligence investigation of the Business, the IP Seller IP and the Acquired Companies. Purchaser expressly acknowledges and agrees that none of Seller, its Affiliates nor any other Person has made, makes or is authorized to make any representations or warranties to Purchaser, express or implied, relating to Seller, the Acquired Companies, the Seller IP, the Business or the Transactions other than those representations and warranties of Seller expressly set forth in Article IV or the other representations and warranties in the other Transaction Documents, and that none of Seller, its Affiliates nor any other Person shall be subject to any liability or any claim by Purchaser in respect of such other representations or warranties. In making its determination to proceed with the Transactions and acquire the Shares and the IP Seller IP, Purchaser expressly acknowledges and agrees that it has relied exclusively on its own independent investigation and the representations and warranties of Seller set forth in Article IV and the other representations and warranties in the other Transaction Documents, and that it is not relying on and expressly disclaims reliance on any other statement, representation or warranty made by Seller, its Affiliates or any other Person, whether oral or written, express or implied, including those relating to Seller, the Acquired Companies, the IP Seller IP, the Business or the Transactions, or any of their financial condition, business, operations, results of operations, properties, assets, liabilities or prospects, or any estimate, projection, prediction, data, financial information, teaser, confidential information presentation or any other materials or information provided or addressed to Purchaser, its Affiliates or its and their Representatives or any other Person, including with respect to the accuracy or completeness of any such information.

5.12         Disclaimer Regarding Projections. In connection with Purchaser’s due diligence investigation of the Business, the IP Seller IP and the Acquired Companies, Purchaser has received from Seller, its Affiliates and its and its Affiliates’ Representatives certain projections and other forecasts, whether written or oral, related to the Business, the IP Seller IP, Seller and the Acquired Companies. Purchaser expressly acknowledges and agrees that (a) there are uncertainties inherent in attempting to make such projections and forecasts, (b) Purchaser is familiar with such uncertainties and is taking full responsibility for making its own evaluation of the adequacy and accuracy of all forecasts, predictions, projections estimates or other materials, documents or information relating to the Business and the IP Seller IP, (c) Purchaser is not relying upon such projections and other forecasts, and (d) Purchaser shall have no claim against Seller and its Affiliates with respect to any inaccuracy, misstatement or omission with respect to any such financial forecasts, predictions or financial projections, whether written or oral, made available to Purchaser, its Affiliates or its and their Representatives or any other Person in any data room, confidential information presentation or any other materials or information provided or addressed to Purchaser, its Affiliates or its and their Representatives.

5.13          No Other Representations. Except as expressly provided in this Article V and the other representations and warranties made in the other Transaction Documents, Purchaser does not make any other express or implied representations or warranties to Seller, and, in entering into this Agreement, Seller expressly acknowledges and agrees that it is not relying on any statement, representation or warranty, other than those representations and warranties set forth in this Article V and the other representations and warranties made in the other Transaction Documents.

Article VI

COVENANTS OF THE PARTIES

6.1            Conduct of the Business Prior to Closing.

(a)            Except (i) as expressly required by this Agreement or any other Transaction Document, (ii) as required by Legal Requirement, (iii) for matters set forth on Schedule 6.1(a) of the Seller Disclosure Schedule or (iv) with the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed; it being understood that the failure of Purchaser to respond to a written request for consent within five (5) Business Days thereafter shall be deemed to constitute consent for all purposes hereunder), from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to its terms, Seller shall, and shall cause its Affiliates to in each case, exclusively with respect to the Acquired Companies and the Business, (A)(x) operate the Business in the ordinary course of business in all material respects and (y) use commercially reasonable efforts to (1) maintain the assets and properties of the Business, (2) preserve the current relationships of the Business with customers, suppliers, distributors, licensors, licensees, contractors, employees, Governmental Authorities and other business relations; (3) preserve the goodwill and ongoing operations of the Business and (4) comply in all material respects with all Legal Requirements (provided, however, that (1) no action or inaction by Seller or any of its Affiliates with respect to any matters specifically addressed by Section 6.1(a)(B) shall be deemed to be a breach of this Section 6.1(a)(A) unless such action or inaction would constitute a breach of Section 6.1(a)(B), (2) the failure of Seller or any of its Affiliates (including the Acquired Companies) to take any action prohibited by Section 6.1(a)(B) shall in no circumstances be deemed a breach of this Section 6.1(a)(A) and (3) Purchaser’s written consent (which may be email) with respect to any specific action or matter pursuant to Section 6.1(a)(B) shall be deemed to constitute consent with respect to such action or matter for all purposes under this Section 6.1(a)) and (B) not do any of the following:

(i)            modify, amend or otherwise change the organizational documents of any Acquired Company in a manner adverse to Purchaser;

(ii)           split, reverse split, combine, subdivide or reclassify any shares of capital stock or other voting or equity interests of any Acquired Company (including the Shares) or effect any recapitalization or like change in the capitalization of any Acquired Company, or issue any other security in respect of, in lieu of or in substitution for any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares);

(iii)          redeem, purchase or otherwise acquire any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares), or issue, deliver, sell, pledge, encumber, transfer or grant (A) any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares) or (B) any warrant, option, right, agreements, “phantom” stock right, stock appreciation right, stock-based performance unit, convertible, exercisable or exchangeable securities or rights or any other commitment or undertaking (1) pursuant to which any Acquired Company is or may become obligated to issue, deliver, sell, transfer or grant (x) any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares) or (y) any security convertible into, or exercisable or exchangeable for, any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares), or (2) pursuant to which any Acquired Company is or may become obligated to issue, deliver, sell, transfer or grant any such warrant, option, right, unit, security, commitment or undertaking described in the foregoing clause (1) that gives any Person the right to receive any benefit or right similar to any rights enjoyed by or accruing to the holders of any shares of capital stock of or other voting or equity interests in any Acquired Company (including the Shares);

(iv)          except for (A) indebtedness that will be settled in full or terminated or canceled at or before the Closing, (B) indebtedness for borrowed money incurred under credit facilities of any Acquired Company in existence as of the date hereof and (C) indebtedness in respect of currency or interest rate hedges entered into to hedge currency or interest rate risks arising in the ordinary course of business and not for speculative purposes, (1) incur in excess of $1,000,000 of indebtedness for borrowed money outstanding at any time; (2) enter into any Contract involving financing or borrowing of money; or (3) assume, guarantee or endorse the obligations of any Person if, in each of the foregoing (1), (2) and (3), such obligations would be obligations of the Acquired Companies following the Closing or would be Assumed Liabilities;

(v)           permit any of the material assets of the Acquired Companies or the Business to become subjected to any Encumbrance other than (A) those Encumbrances which will be removed at or prior to the Closing or (B) Permitted Encumbrances;

(vi)          with respect to any Acquired Company, fail to maintain its corporate existence, adopt or enter into any plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or merge or consolidate with any other Person, or, with respect to any Acquired Company or the Business, enter into any joint venture or similar venture with any other Person;

(vii)         permit any Acquired Company or the Business to purchase any securities or make any investment or capital contribution in any Person, either by purchase of stock or securities, contributions to capital or asset transfers, or acquire (either by merger, consolidation or otherwise), direct or indirect control over, any Person, business, business organization or division thereof other than any such purchases, investments, capital contributions or acquisitions by an Acquired Company for which the aggregate consideration paid (A) in any individual transaction is not in excess of $2,500,000 or (B) in the aggregate is not in excess of $5,000,000;

(viii)        permit any Acquired Company to loan or advance any amount other than (A) to another Acquired Company or (B) loans or advances to employees of any Acquired Company for travel and business expenses in the ordinary course of business;

(ix)          except for the sale of the Businesses’ products or services in the ordinary course of business, sell, transfer, lease (other than renewals of existing leases), sublease or otherwise dispose of any material properties or assets of (A) the Acquired Companies or Business having an aggregate value in excess of $1,000,000 or (B) the Acquired Companies to any member of the Seller Group;

(x)            commit to make any capital expenditures for the Business to be made after the Closing in excess of $1,000,000, individually, or $2,500,000, in the aggregate, other than as set forth in the capital budget of the Business made available to Purchaser prior to the date hereof;

(xi)           waive, abandon, or otherwise dispose of any rights in or to any material Acquired Company IP, (A) other than the expiration of Acquired Company Registered IP in accordance with the applicable statutory term and (B) with respect to Acquired Company IP that Seller has determined in the ordinary course of business consistent with past practice (including its policies and procedures regarding the protection and maintenance of Intellectual Property) is no longer material;

(xii)         disclose any material Trade Secrets of the Business, other than to any Persons that are subject to a confidentiality or non-disclosure obligations protecting against further disclosure thereof;

(xiii)        declare or set aside any dividends or distributions on any shares of capital stock of or other voting or equity interests of any Acquired Company (in cash or in kind) to the extent such dividends or distributions (A) are payable at or after the Closing or (B) payable in anything other than cash;

(xiv)        initiate any Proceeding relating to the Business outside the ordinary course of business or enter into any settlement or release with respect to any Proceeding relating to the Business to the extent constituting an Assumed Liability other than (A) any settlement or release that contemplates only the payment of money of an amount less than $250,000 individually or $1,000,000 in the aggregate (net of any insurance coverage) and does not involve any equitable relief imposed against the Acquired Companies or the Business (excluding confidentiality, non-disparagement, and other similar customary provisions) and results in a release of the claims giving rise to such Proceeding, (B) any settlement or release involving the payment of liabilities to the extent reflected or reserved against in the reserved against in the Latest Balance Sheet or that are fully covered by insurance policies of Seller or its Subsidiaries (including the Acquired Companies) or (C) to the extent such Proceeding and any associated liabilities are Retained Liabilities;

(xv)         other than in the ordinary course of business, for any Acquired Company (A) make, change, or revoke any Tax election, (B) make any change to any Tax or accounting method or system of internal accounting control of the Business, (C) change any annual Tax accounting period, (D) file any amended Tax Return, (E) enter into any material closing agreement or settle any material Tax claim or assessment, (F) surrender any right to claim a material refund of Taxes, or (G) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment;

(xvi)        accelerate the collection of accounts receivable, materially outside the ordinary course of business;

(xvii)       terminate, cancel, modify, waive any right under, amend, or assign any Material Contract (other than any Specified Material Contract), other than in the ordinary course of business, or enter into any Contract that would have constituted a Material Contract (other than a Specified Material Contract) if entered into prior to the date hereof, other than new Contracts that are entered into in the ordinary course of business;

(xviii)      modify, renew, extend, or enter into any Collective Bargaining Agreement;

(xix)         (A) acquire any material real property interest, (B) incur, grant, suffer, create or assume any Encumbrance (other than Permitted Encumbrances) with respect to Real Property of the Business, or (C) sell, lease, or transfer or dispose of any Real Property of the Business;

(xx)          except as may be required by the terms of an Acquired Company Benefit Plan, Seller Benefit Plan or Collective Bargaining Agreement (A) increase or promise to increase (i) the compensation of any Business Employee, other than, (I) for any Business Employee at or above the level of director who the Seller or the applicable Acquired Company determines, in their sole discretion, has received a competitive offer of employment from any other company, increases in the annual target compensation for any such Business Employee up to an amount equal to 125% of such Business Employee’s annual target compensation, or (II) for any Business Employee below the level of director, increases in annual base salary and proportionate target bonus opportunity in the ordinary course of business not to exceed 1% in the aggregate (and proportionate target bonus opportunity) or (ii) the severance, termination pay or benefits of any Business Employee, except for increases under Seller Benefit Plans (other than any severance plan, program, practice or policy) that provide for health, welfare or retirement benefits and that are applied in a substantially similar manner to all similarly situated employees of Seller and its Affiliates who participate in such plans, (B) enter into, adopt, amend or terminate any Acquired Company Benefit Plan, other than (i) renewals for health and welfare benefits, that would not reasonably be expected to result in a material liability to Purchaser and its Affiliates (including, following the Closing, the Acquired Companies) and (ii) entering into employment agreements or offer letters with Business Employees hired after the date hereof that provide for terms and conditions consistent with past practice, (C) hire or terminate (other than for cause) any Business Employee at or above the level of director, other than to hire a Business Employee to fill any position or role vacancies (provided, that, the annual target compensation for any such newly hired Business Employee shall not exceed 125% of the annual target compensation of the Business Employee who previously occupied the applicable position or role), (D) transfer the employment of any Business Employee outside of the Business other than where such Business Employee applied for, and was selected in a competitive process not targeted at Business Employees, a position within the Seller Group that is outside of the Business, (E) transfer the sponsorship of any Acquired Company Benefit Plan to Seller or one of its Affiliates (other than the Acquired Companies) or cause any Acquired Company to accept the transfer of the sponsorship of any Seller Benefit Plan; (F) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any Business Employees; or (G) implement or announce any employee layoffs, plant closings, or other actions covering Business Employees that could implicate the Worker Adjustment and Retraining Notification Act of 1988 and any similar Legal Requirement; or

(xxi)         enter into any legally binding commitment with respect to any of the foregoing.

(b)            Notwithstanding anything to the contrary in this Agreement, nothing in this Section 6.1 shall prohibit or otherwise restrict in any way the operation of the business of Seller or its Subsidiaries, except solely with respect to the conduct of the Business. Notwithstanding any provision herein to the contrary, prior to (but not after) the Benchmark Time, without the consent of Purchaser, Seller and its Subsidiaries will be permitted to (i) declare and pay dividends and distributions of, or otherwise transfer or advance, to Seller or any Subsidiary thereof, any Cash (including in connection with any “cash sweep” or cash management practices), (ii) make any payments under, or repay (in part or in full), refinance or replace, any Indebtedness or intercompany receivables, payables, loans and balances and (iii) take any action contemplated pursuant to Sections 6.4 or 6.8.

(c)            Nothing contained in this Agreement is intended to give Purchaser, directly or indirectly, the right to control or direct the operations of the Business or any of the Acquired Companies prior to the Closing. Prior to the Closing, Seller shall, and shall cause its Subsidiaries to, exercise, consistent with the terms and conditions of this Agreement, control and supervision over the operations of the Business and the Acquired Companies.

6.2            Pre-Closing Access to Information.

(a)            Until the earlier of (i) the Closing and (ii) the termination of this Agreement pursuant to its terms, Seller shall, and shall cause IP Seller and the Acquired Companies (and to the extent related to the Business, its other Affiliates) to, permit Purchaser and the Financing Sources to have reasonable access, upon reasonable prior notice, during normal business hours in a manner so as not to interfere with the normal business operations of Seller and its Affiliates and in accordance with the reasonable procedures established in good faith by Seller, to the books, assets, properties, Contracts and records of the Acquired Companies and the Business; provided, however, that the foregoing shall not: (1) require Seller or its Affiliates (including IP Seller and the Acquired Companies) to provide access or to disclose information where Seller reasonably believes in good faith that such access or disclosure would contravene any Legal Requirement (including those relating to data protection or privacy) or Contract, or would result in the waiver of any legal privilege or work-product protection; provided that Seller shall use commercially reasonable efforts to allow for access to the extent that doing so does not result in the loss of any such protection, (2) include any invasive investigations, sampling or testing whatsoever for or regarding any environmental matters, which may be granted or withheld in Seller’s sole and absolute discretion, (3) require Seller or any of its Affiliates to provide Purchaser, its Affiliates or its and their Representatives with (A) any Consolidated Return (or copy thereof), (B) information relating to businesses of Seller or any of its Affiliates other than the Business or (C) information relating to individual performance or evaluations or medical histories, (4) require Seller or its Affiliates to provide Purchaser or its Representatives with any information related to the Transactions or Seller’s or its Representatives’ evaluation thereof, including projections, financial or other information related thereto other than projections, financial or other information prepared in the ordinary course of the Business without being primarily prepared for the Transactions or (5) require Seller to provide (A) confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received in connection with transactions comparable to the Transactions or any information or analysis relating to any such communications or (B) financial or operating data or other information that has not previously been prepared by Seller or its Affiliates (including the Acquired Companies), or that is not otherwise prepared in the ordinary course of operating the Business. Any information disclosed under this Section 6.2(a) will be subject to the provisions of Section 6.5.

(b)            Until the earlier of the Closing and the termination of this Agreement pursuant to its terms, Purchaser shall not, and shall cause its Affiliates and its and their respective Representatives not to, communicate with any of the officers, directors, employees, customers or landlords of, or suppliers to, the Business, the Acquired Entities or their Affiliates (including the Acquired Companies), to the extent such communications are related to the Business or the Acquired Companies, without the prior written consent of Seller (which consent may not be unreasonably withheld, conditioned or delayed); provided that nothing in this Section 6.2 shall prohibit Purchaser, its Affiliates and its and their respective Representatives from communicating with (i) such Persons in the ordinary course of their respective business unrelated to this Agreement, the Transactions, the Acquired Companies or the Business in connection with ongoing commercial relationships or (ii) Business Employees at such a time and in such a manner as mutually agreed by the parties in advance in connection with post-Closing matters relating to such Business Employees’ employment.

6.3            Cooperation. Subject to Section 6.6, prior to the Closing, Seller shall, and shall cause its Affiliates to, and Purchaser shall, and shall cause its Affiliates to, use reasonable best efforts to cause all Closing Conditions to be met as promptly as reasonably practicable and, in any event, prior to the Outside Date.

6.4            Consents; Termination of Intercompany Agreements.

(a)            Subject in all cases to the other terms and conditions set forth in this Agreement, prior to the Closing, Seller shall, and shall cause its Affiliates and the Acquired Companies to, use commercially reasonable efforts to obtain any Consents of, and make any registrations, declarations, filings and notifications to, any Persons (other than to the extent subject to Section 6.6) that may be (i) required in connection with the Transactions and (ii) requested by Purchaser. Except with the written consent of Seller, prior to Closing, Seller or its Affiliate shall be the sole party that contacts or communicates with any counterparty to third-party Consents (other than to the extent subject to Section 6.6) concerning this Agreement, the other Transaction Documents or the Transactions; providedthat, Seller and its applicable Affiliates shall consult in good faith with Purchaser and keep Purchaser reasonably informed, in each case, regarding the obtaining of any third-party Consents, and shall not agree to any adverse modifications or amendments to any Contract or Permit or to the payment of any amount in connection with obtaining or seeking any Consent, waiver, novation, modification, replication or approval applicable to the Acquired Companies or the Business following the Closing without the prior written consent of Purchaser. Any amounts payable in connection with obtaining any Consent, waiver, novation, modification, replication or approval under any Contract or Permit, and any financial penalty or fee or refund of any amounts payable in connection with, or as a result of, the Transactions under any Contract or Permit of any Acquired Company, shall be borne and paid by Purchaser. Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor any of its Affiliates shall (i) be required to expend any money, commence or participate in any Proceeding, incur liabilities or offer or grant any accommodation (financial or otherwise) to any third party to obtain any Consent described in this Section 6.4(a), or (ii) have any obligations to obtain any Consent (except as expressly set forth in this Section 6.4(a) and Section 6.6).

(b)            Except for (i) the Transaction Documents (and each other agreement or instrument expressly contemplated by the Transaction Documents to be entered into by any member of the Seller Group, on the one hand, and any Acquired Company, on the other hand), (ii) any Contracts or understandings to which any third party is a party (including the Shared Contracts) and (iii) any intercompany contracts, any arrangements, financing agreements, intercompany loans, transactions, accounts, commitments and claims between the Acquired Companies, on the one hand, and Seller or any of its Affiliates (other than an Acquired Company), on the other hand (the “Intercompany Agreements”), shall be terminated (or deemed terminated without any further action on the part of any party thereto) effective no later than as of the Closing without any party having any continuing obligations or liability to the other party under the Intercompany Agreements. Seller shall, and shall cause the Acquired Companies to, settle all amounts due and payable to an Acquired Company from Seller or any of its Affiliates (other than an Acquired Company), and all amounts due and payable to Seller or any of its Affiliates (other than an Acquired Company) from an Acquired Company, shall, in each case, prior to the Closing and in a manner that does not result in an increase of any ongoing Liabilities of the Acquired Companies following the Closing.

(d)            Purchaser acknowledges and agrees that (i) the Business as presently conducted receives or benefits from the Corporate Functions and (ii) effective as of the Closing, the sole obligations of Seller and its Affiliates with respect to the provision of any such Corporate Functions to the Business shall be as set forth in the Transition Services Agreement.

6.5            Confidentiality.

(a)            The terms of the Confidentiality Agreement are incorporated into this Agreement by reference and shall continue in full force and effect (and all obligations thereunder shall be binding upon Purchaser and its Representatives (as defined in the Confidentiality Agreement) as set forth therein) until the Closing, at which time the obligations under the Confidentiality Agreement shall terminate; provided,however, that Purchaser’s confidentiality obligations shall terminate only in respect of that portion of the Proprietary Information (as defined in the Confidentiality Agreement) exclusively to the extent relating to the Acquired Companies, the IP Seller IP and the Business and, for all other Proprietary Information (“Non-Business Proprietary Information”), the term of the Confidentiality Agreement shall continue to apply to such Non-Business Proprietary Information until the termination or expiration of the applicable terms of the Confidentiality Agreement, and shall promptly destroy or cause to be destroyed all Non-Business Proprietary Information in its possession or in the possession of any of its Representatives (as defined in the Confidentiality Agreement) in accordance with the Confidentiality Agreement. If for any reason the Closing does not occur, the Confidentiality Agreement shall continue in full force and effect in accordance with its terms. In the event of a conflict or inconsistency between the terms expressly set forth in this Agreement (rather than incorporated by reference herein) and the Confidentiality Agreement, the terms of this Agreement will govern. Notwithstanding the foregoing, the Purchaser and its Representatives may disclose the Required Information without any obligation on the part of the Financing Sources or other recipients thereof contemplated in Section 6.7(c) hereof to comply with the terms of this Agreement or the Confidentiality Agreement.

(b)            During the four (4)-year period following the Closing, Seller shall keep confidential and refrain from using, and cause its Affiliates and its and their respective Representatives to keep confidential and refrain from using, all non-public, confidential or proprietary information concerning the Acquired Companies or the Business, except (i) as required or requested by a Governmental Authority or required pursuant to Legal Requirements or the rules or regulations of any securities exchange or listing authority or legal, administrative or judicial process (provided that Seller shall, to the extent permitted by Legal Requirements, promptly notify Purchaser of such requirement or request and the disclosure that is expected to be made with respect thereto and, to the extent requested by Purchaser, shall reasonably cooperate with Purchaser (at Purchaser’s sole expense) to seek a protective order or other appropriate remedy to limit or obtain confidential treatment for such disclosure, and in the event no such protective order or remedy is obtained, Seller will furnish only that portion of such non-public, confidential or proprietary information which Seller is advised by counsel is required by Legal Requirements and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to such non-public, confidential or proprietary information), (ii) for information that is available, as of immediately following the Closing, generally to the public, or thereafter becomes generally available to the public, other than as a result of a breach of this Section 6.5(b), (iii) to the extent such use is reasonably necessary to enable Seller or its Affiliates to fulfill its obligations to Purchaser and the Acquired Companies under any Transaction Document, (iv) for information disclosed to Seller or any of its Affiliates following the Closing Date on a non-confidential basis by any Person not known by Seller after reasonable inquiry to be bound by an obligation of confidentiality to Purchaser or any of its Affiliates, (v) as necessary for the preparation and filing of any Tax Return or defense of any Tax Proceeding or as reasonably related to any Tax matter of any member of the Seller Group or (vi) is demonstrated by Seller or its Affiliates to have been independently developed following the Closing Date not in violation of its or its Representatives’ obligations under this Section 6.5(b) and without reference to any non-public, confidential or proprietary information concerning the Acquired Companies or the Business or any information from a source that is subject to a confidentiality obligation to the Acquired Companies or the Business or is otherwise prohibited from furnishing such information to Seller, its Affiliates or their respective Representatives.

(c)            Promptly following the Closing, Seller shall deliver, or cause to be delivered, to Purchaser copies of all books, records and documents, in any form or medium, to the extent related to the Business or the Acquired Companies (in each case, including any applicable attorney-client privilege, attorney work product protection and expectation of client privilege attaching to any such books, records and documents) and in the possession of Seller and its Affiliates (other than the Acquired Companies), other than books, records and documents the provision of which is subject to the Transition Services Agreement. Seller shall promptly destroy or cause to be destroyed all duplicate or back-up copies thereof and any notes, extracts or summaries based thereon in its possession or in the possession of any of its Representatives, without retaining any copy thereof in any form or medium; provided, however, that Seller, its Affiliates and its Representatives may keep one copy of such information, including one copy of any notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other material based thereon, to the extent such retention is required to comply with applicable Legal Requirement or pursuant to a bona fide internal document retention policy for use solely to demonstrate compliance with such requirements (and, to the extent such information is retained electronically, ordinary access thereto shall be limited only to information technology personnel in connection with their information technology duties). Upon Purchaser’s written request, Seller will certify to Purchaser in writing that all information has been so destroyed. This Section 6.5(c) shall not apply to any Consolidated Returns or other Tax Returns of the Seller Group or any books, records, documents, working papers or other information related thereto or to the Tax matters of any member of the Seller Group.

6.6            Reasonable Best Efforts; Regulatory Filings.

(a)            Subject to the limitations set forth in this Section 6.6, Seller and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate in doing, all things necessary, proper or advisable under this Agreement and Legal Requirements to consummate and make effective the Transactions as promptly as possible following the date of this Agreement, which actions include (i) using reasonable best efforts to obtain as promptly as possible each Consent, Permit and Order of any Governmental Authority that may be, or become, necessary for the consummation of the Transactions (collectively, “Governmental Approvals”), (ii) cooperating in determining which filings are required or advisable to obtain any Governmental Approval or any exemption by any Governmental Authority, (iii) furnishing all information and documents required by or advisable under applicable Legal Requirements in connection with Governmental Approvals or filings with any Governmental Authority, (iv) filing, or causing to be filed, as promptly as practicable following the execution and delivery of this Agreement, applicable notifications with the necessary Governmental Authorities (v) using reasonable best efforts to obtain as promptly as possible the requisite clearances, approvals or expiration of any waiting period, including those under the HSR Act, and any other applicable Antitrust Laws or Investment Screening Laws, and (vi) defending any actions, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any Order entered by any court or other Governmental Authority vacated or reversed. In furtherance and not in limitation of the foregoing, each party hereto agrees that it will use its reasonable best efforts to file or cause to be made as promptly as reasonably practicable, but in any event no later than fifteen (15) Business Days following the date of this Agreement, any required notification and report forms under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”).

(b)            In connection with, and without limiting, the efforts referenced in Section 6.6(a), Seller and Purchaser shall (i) furnish to the other, and Seller shall cause the Acquired Companies to furnish to Purchaser, such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act, and any other applicable Governmental Approval, (ii) permit the other party to review any filing or submission prior to forwarding to the FTC, the DOJ, and other Governmental Authorities (except where such material is confidential to a party in which case it will be provided, subject to applicable Legal Requirements, to the other party’s counsel on an “external counsel” basis) and consider in good faith the other party’s reasonable comments in connection therewith, (iii) keep each other apprised of the status of any material communications with, and any inquiries or requests for additional information from, any Governmental Authorities and substantially comply as promptly as reasonably practicable with any such inquiry or request and (iv) agree not to, and Seller shall cause the Acquired Companies not to, participate in any substantive meeting or discussion, either in person or by telephone or videoconference, with any Governmental Authority in connection with the Transactions, unless (A) it consults with the other party in advance and (B) gives the other party the opportunity to attend and participate; provided that a party shall not be required to give the other party the opportunity to attend and participate to the extent prohibited by such Governmental Authority. Neither Seller nor Purchaser shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period or withdraw its filing under the HSR Act or any other Antitrust Law or Investment Screening Law without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary contained in this Section 6.6 or any other provision of this Agreement, Purchaser shall, after considering in good faith Seller’s views and comments, control and lead all communications, negotiations, timing, decisions, and strategy on behalf of the parties relating to the Governmental Approvals. Whether or not the Transactions are consummated, Purchaser shall be responsible for the payment of all filing fees payable to any Governmental Authority in connection with the HSR Act and any other notifications or filings required pursuant to this Section 6.6. Notwithstanding anything to the contrary in this Section 6.6, each of Seller and Purchaser may redact materials provided to the other party: (I) to remove competitively sensitive information or information concerning valuation; (II) as necessary to comply with legal or contractual arrangements; and (III) as necessary to address reasonable attorney-client privilege or other privilege or confidentiality concerns.

(c)            Seller and Purchaser will use reasonable best efforts to substantially comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Authority. Purchaser agrees to take any and all steps necessary or advisable to avoid or eliminate each and every impediment under any Legal Requirement that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to expeditiously consummate the Transactions, including proposing, negotiating, committing to and consenting to any divestiture, sale, disposition, hold separate order or other structural or conduct relief, or other operational undertakings, in order to obtain any Governmental Approval; provided, however, that, notwithstanding anything to the contrary in this Agreement, none of Purchaser or any of its Affiliates or Subsidiaries shall be required to (and without Purchaser’s prior written consent, the Acquired Companies and Seller shall not) agree to divest, sell, dispose of, encumber, limit or otherwise take any other action or agree to any remedy, whether structural, behavioral, or otherwise, that would, individually or in aggregate, reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of Purchaser and its Subsidiaries (including the Acquired Companies) after giving effect to the Closing, taken as a whole; provided, further, however, that notwithstanding anything in this Agreement to the contrary, any actions or efforts by Purchaser contemplated in this Section 6.6(c) shall be conditioned upon the consummation of the Transactions.

(d)            Purchaser shall not, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to (i) impose a material delay in the obtaining of, or materially increase the risk of not obtaining, any Governmental Approval of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period under any Legal Requirement, (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting the Transactions or (iii) prevent or materially delay the consummation of the Transactions.

(e)             Notwithstanding anything in this Section 6.6 to the contrary, nothing in this Section 6.6 shall to the extent not conditioned upon the Closing, require, or be deemed to require, Seller or any of its Subsidiaries or Purchaser or any of its Subsidiaries or Affiliates to propose, negotiate, offer to commit, effect or agree to (A) any sale, divestiture, license or disposition of assets or businesses of any Acquired Company, Purchaser, or Purchaser’s Subsidiaries or Affiliates or (B) any behavioral remedy of any Acquired Company, Purchaser, or Purchaser’s Subsidiaries or Affiliates.

6.7	Financing Cooperation.

(a)            From the date hereof until the Closing, Seller shall use its reasonable best efforts to provide, Seller shall cause IP Seller and the Acquired Companies to use reasonable best efforts to provide, and Seller shall use reasonable best efforts to cause each of its Representatives to use reasonable best efforts to provide, at Purchaser’s sole cost and expense, customary cooperation, to the extent reasonably requested by Purchaser, necessary or advisable for the arrangement of the Debt Financing (including an offering of notes in lieu of any bridge facility for the purpose of financing the Transactions and related fees and expenses contemplated by this Agreement) or any Alternative Debt Financing, including using reasonable best efforts to do the following: (i) participating (and causing appropriate members of Senior Management of the Business to participate) in a reasonable number of lender marketing meetings, presentations, drafting sessions, road shows, due diligence sessions and calls and sessions and other customary syndication activities with ratings agencies and prospective financing sources, in each case, in connection with the Debt Financing and with reasonable advance notice and at reasonable times and locations to be mutually agreed upon (it being understood that any such meetings may take place via videoconference or web conference at Seller’s option), (ii) at least four (4) Business Days prior to the Closing Date, providing all information regarding the Acquired Companies and the Business required in connection with the Debt Financing by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, in each case, as reasonably requested by Purchaser in writing at least nine (9) Business Days prior to the Closing Date, (iii) furnishing Purchaser as promptly as reasonably possible with the Required Information, all of which is Compliant, (iv) furnishing Purchaser with reasonable information and materials with respect to the Acquired Companies to be used in Purchaser’s preparation of customary lender and investor presentations, rating agency presentations, bank information memoranda (including a version thereof that does not contain material non-public information), business projections (it being understood that Purchaser shall have sole responsibility therefor), offering documents, prospectuses, memoranda and other similar documents for the Debt Financing, including customary authorization letters related thereto authorizing the distribution of information to prospective lenders and containing customary representations with respect to the presence or absence of material non-public information about the Acquired Companies and regarding the accuracy of the information provided by, or with respect to, the Acquired Companies; provided that any such information distributed (including any authorization letters) shall contain customary language which shall exculpate Seller and its Representatives and Affiliates with respect to any liability related to or responsibility for the contents of such information or related marketing materials by the recipients thereof, except to the extent of the representations with respect to the presence or absence of material non-public information described above, (v) assisting with the preparation and/or filing of, and executing and delivering, any customary pledge and security documents and any other agreements, documents or certificates that facilitate the pledging of collateral as reasonably requested by Purchaser and required for the funding of the Debt Financing, including UCC termination statements, similar release documents (if any), and delivery of possessory collateral, all of which shall be effective only at or after Closing, (vi) cooperating with the Financing Sources’ due diligence efforts (including the provision of “backup” support), to the extent reasonable and customary for financings similar to the Debt Financing, (vii) causing the Acquired Companies’ independent auditors to provide, consistent with customary practice, customary auditors consents and customary “comfort” letters (including “negative assurance” comfort and change period comfort) as reasonably requested by the Financing Sources with respect to financial information relating to the Business included in the offering documentation for the Debt Financing (including using reasonable best efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case as reasonably requested by Purchaser or the Financing Sources) and participate in due diligence sessions and drafting sessions with the Financing Sources and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that are necessary or advisable to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; provided that nothing in this Agreement (including this Section 6.7) will require any such cooperation or action to the extent that it could (A) require Seller or any of its Affiliates or any of their respective Subsidiaries or officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other Representatives to pay (or agree to pay) any commitment or other fee, make any other payment, provide (or agree to provide) any indemnities, reimburse any expenses or otherwise incur any liability or other obligation in connection with the Debt Financing, (B) require Seller or any of its Affiliates or any of their respective Subsidiaries or any individual who is a member of the board of directors (or other similar governing body) of such entities to pass resolutions or consents to approve, or authorize the execution of, the Debt Financing or any Definitive Agreement (other than with respect to the Acquired Companies only, any such resolutions or consents that (x) are passed by Persons who will continue as members of the board of directors (or other similar governing body) of the Acquired Companies after the occurrence of the Closing and (y) are subject to and conditioned upon, and do not become effective until, the occurrence of the Closing), (C) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to enter into, execute or deliver any Contract or other documentation (other than (1) the authorization letters referred to in clause (iv) of this Section 6.7(a) and (2) with respect to the Acquired Companies only, any such documents that (x) are executed or delivered, as applicable, by Persons who will continue as officers or members of the board of directors (or other similar governing body) of the Acquired Companies after the occurrence of the Closing and (y) are subject to and conditioned upon, and do not become effective until, the occurrence of the Closing), (D) impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other Representatives of Seller, its Affiliates or their respective Subsidiaries, (E) unreasonably interfere with the operation of the business of Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives, (F) cause any representation or warranty in this Agreement to be breached by Seller, its Affiliates or its Subsidiaries or require any waiver or amendment of the terms of this Agreement, (G) conflict with or result in any violation of the organizational documents of Seller or its Subsidiaries or any of their respective Affiliates or any Legal Requirement, (H) result in the contravention of, or result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which Seller, its Subsidiaries or any of their respective Affiliates is party or by which it is bound (and, in each case, which was not entered into in contemplation of this Agreement), (I) provide access to or disclose information that Seller or its Subsidiaries reasonably determines would jeopardize any attorney-client or similar privilege or protection of Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives so long as Seller or its Subsidiaries shall have used commercially reasonable efforts to disclose such information in a way that would not waive such privilege or protection, (J) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to provide any solvency or other similar certificate of its chief financial officer or similar Representative, or (K) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to provide or prepare any projections, pro forma financial statements or other forward-looking financial information or any financial information other than the Required Information. Notwithstanding anything to the contrary herein, the failure of Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to comply with this Section 6.7 shall not give rise to the failure of a condition precedent set forth in Section 10.1(b) or termination right pursuant to Section 11.1(b) unless Purchaser’s failure to obtain any portion of the proceeds of the Debt Financing was a result of the material breach of the obligations of Seller to comply with its obligations under this Section 6.7.

(b)            Seller and the Acquired Companies hereby consent to the customary use of their logos in connection with the Debt Financing prior to the Closing Date; provided that such logos are used solely in a manner that is not intended or reasonably likely to (i) harm or disparage Seller or its Subsidiaries or their reputation, goodwill or marks or (ii) otherwise materially adversely affect Seller or any of its Subsidiaries.

(c)            Notwithstanding any other provision set forth herein, the Confidentiality Agreement or in any other agreement between Seller and Purchaser (or their respective Affiliates), Seller agrees that Purchaser and its Affiliates may share any confidential information with respect to Seller, the Acquired Companies and the Business with any Financing Sources, and that Purchaser and their respective Affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts with respect to the Debt Financing; provided that the recipients of such information and any other confidential information contemplated to be provided by Seller and the Acquired Companies or any of their respective Affiliates pursuant to this Section 6.7 are subject to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in customary bank books or offering materials.

(d)            Upon written request by Seller, Purchaser will (i) upon the earlier of the Closing and termination of this Agreement in accordance with Section 11.1, reimburse Seller and its Subsidiaries for any reasonable and documented out-of-pocket costs or expenses (limited in the case of legal expenses, to the reasonable and documented out-of-pocket attorney’s fees of one firm of outside counsel) incurred or otherwise payable by Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives in connection with their cooperation requested by Purchaser pursuant to this Section 6.7 and (ii) indemnify, defend and hold harmless Seller and its Affiliates and their respective Subsidiaries and Representatives, and the successors and assigns of each of the foregoing Persons from and against any and all liabilities, losses, damages, claims, reasonable and documented out-of-pocket costs and expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the cooperation or efforts pursuant to this Section 6.7 or otherwise in complying with their obligations in connection with the arrangement of the Debt Financing (including actions taken in accordance with this Section 6.7) or any information used or misused in connection therewith, except to the extent that any of the foregoing arises from the bad faith, gross negligence, material breach or willful misconduct of Seller or its Subsidiaries, in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision.

(e)            The parties hereto acknowledge and agree that the provisions contained in this Section 6.7 represent the sole obligation of Seller and its Affiliates and any of their respective Subsidiaries or Representatives with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement (including the Debt Financing Commitment), and no other provision of this Agreement (including the Exhibits and Schedules hereto) or the Debt Financing Commitment shall be deemed to expand or modify such obligations.

6.8	Financing Obligation.

(a)            Purchaser shall, and shall use reasonable best efforts to cause each of its Affiliates to, use its reasonable best efforts to take all actions and do all things necessary, proper or advisable to obtain the proceeds of the Debt Financing in an amount equal to at least the Required Amount on the terms and subject only to the conditions set forth in the Debt Financing Commitment at or prior to the Closing, including (i) complying with its obligations under the Debt Financing Commitment, (ii) maintaining in effect the Debt Financing Commitment and the definitive financing agreements related to the Debt Financing (the “Definitive Agreements”) in accordance with the terms and conditions thereof, (iii) negotiating, entering into and delivering the Definitive Agreements on a timely basis (taking into account the Marketing Periods, as applicable) on terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and without any Prohibited Modification, (iv) satisfying on a timely basis all conditions applicable to Purchaser and/or its Affiliates contained in the Debt Financing Commitment and the Definitive Agreements within their control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing, (v) enforcing all of its rights, and using reasonable best efforts to enforce the obligations of the other parties, under the Debt Financing Commitment and the Definitive Agreements and (vi) consummating, and obtaining the proceeds of, the Debt Financing at or prior to the Closing. Purchaser shall, upon the request of Seller, keep Seller informed on a current and timely basis and in reasonable detail of the status of its efforts to obtain the Debt Financing and of developments concerning the timing of the closing of the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt written notice (A) of any actual or threatened (in writing) violation, breach or default (or, to Purchaser’s Knowledge, any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any violation, breach or default) by any party to the Debt Financing Commitment or any Definitive Agreement or any termination of the Debt Financing Commitment or any Definitive Agreement, (B) of any actual or threatened (in writing) reduction, withdrawal, repudiation or termination of the Debt Financing by any party to the Debt Financing Commitment or (C) if at any time for any reason Purchaser has determined in good faith that it will not be able to obtain all or any portion of the Required Amount of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or any Definitive Agreement. As soon as reasonably practicable, but in any event within two (2) Business Days following delivery by Seller to Purchaser of written request therefor, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence.

(b)            Purchaser shall not, without the prior written consent of Seller: (i) amend, modify, supplement, or waive any of the conditions to funding contained in the Debt Financing Commitment or any Definitive Agreement or any other provision of, or remedies under, the Debt Financing Commitment or any Definitive Agreement, in each case, to the extent such amendment, modification or supplement could reasonably be expected to have the effect of (A) reducing the amount of the Debt Financing to an amount less than the Required Amount, (B) otherwise adversely affecting the ability of Purchaser in any material respect to timely consummate the transactions contemplated by this Agreement, including the ability to pay the Required Amount in full, (C) adding new or additional conditions or amending, modifying or supplementing any of the existing conditions to the Debt Financing, (D) delaying, preventing or impeding the Closing or making the timely funding of the Debt Financing (in an amount no less than the Required Amount) or satisfaction of the conditions to obtaining the Required Amount under the Debt Financing less likely to occur or (E) adversely affecting the ability of Purchaser to enforce its rights against the other parties to the Debt Financing Commitment or the Definitive Agreements (the effects described in clauses (A) through (E), collectively, the “Prohibited Modification”); or (ii) terminate the Debt Financing Commitment or any Definitive Agreement; provided, however, subject to compliance with the other provisions of this Section 6.8, Purchaser may (1) amend, modify, supplement or waive any provision of the Debt Commitment Documents to add Financing Sources that have not executed the Debt Commitment Documents as of the date hereof, (2) amend the Definitive Agreements to implement any flex provisions contained in the Debt Financing Commitment or (3) otherwise amend, modify or supplement the Debt Financing Commitment or any Definitive Agreement so long as such amendment, modification or supplement could not effect a Prohibited Modification. Purchaser shall promptly deliver to Seller copies of any such amendment, modification, supplement or replacement (with customary redactions solely to the extent consistent with the requirements under Section 5.6). In the event Purchaser amends, modifies, supplements or replaces the Debt Financing Commitment or any Definitive Agreement in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” “Definitive Agreements,” and “Debt Financing Commitment” (and other like terms in this Agreement) as used in this Agreement shall be deemed to refer to the Debt Financing Commitment and/or Definitive Agreement as so amended, modified or supplemented. In the event all conditions to the Debt Financing Commitment have been satisfied (or waived) and all of the conditions set forth in Section 10.1 and Section 10.3 (not including conditions which are to be satisfied by the delivery of documents, or taking of any other action, at the Closing by any party) have been satisfied (or waived), Purchaser shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing in an amount no less than the Required Amount for purposes of consummating the transactions contemplated by this Agreement.

(c)            If all or any portion of the Debt Financing becomes unavailable for any reason, Purchaser shall (i) notify Seller in writing of such event and the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, (ii) use reasonable best efforts, and cause each of its Affiliates to use reasonable best efforts, to arrange and obtain, as promptly as possible following the occurrence of such event, alternative financing for any such unavailable portion of the Debt Financing from the same or alternative sources (it being understood that Purchaser shall not be required to pay fees, economics, or other amounts in excess of that contemplated by the Debt Commitment Documents, and the related fee letters and engagement letters, in effect on the date of this Agreement), which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, (A) in an amount sufficient, when added to any portion of the Debt Financing that is and will be available, that is equal to or greater than the Required Amount, (B) on terms no less favorable to Purchaser than the Debt Financing Commitment as of the date hereof (taking into account any flex provisions contained therein), (C) containing conditions that (1) are not more onerous to Purchaser than those conditions contained in the Debt Financing Commitment as of the date hereof and (2) could not reasonably be expected to delay the Closing and (D) which does not contain any Prohibited Modification (any such alternative financing, the “Alternative Debt Financing”) and (iii) obtain a new financing commitment letter (together with its related term sheets and fee letters, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto that provides for such Alternative Debt Financing. In the event Purchaser obtains Alternative Debt Financing in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” and “Definitive Agreements” (and other like terms in this Agreement) as used in this Agreement shall be deemed to include any Alternative Debt Financing (and consequently the term “Debt Financing” shall include any available portion of the then-existing Debt Financing and the Alternative Debt Financing), and the term “Debt Financing Commitment” as used in this Agreement shall be deemed to include any Alternative Debt Financing Commitment.

(d)            Without limitation to any other obligation of Purchaser and its Affiliates under this Agreement, prior to, and from and after the commencement of the Initial Marketing Period, Purchaser shall use commercially reasonable efforts (taking into account market conditions, the cost of funding into escrow, the expected timing to Closing and such other factors as Purchaser in good faith deems commercially reasonable) to obtain, at or prior to the conclusion of the Initial Marketing Period, the proceeds of the Debt Financing in an amount equal to at least the Required Amount on the terms and subject only to the conditions set forth in the Debt Financing Commitment; provided that, the decision to obtain the Debt Financing during the Initial Marketing Period shall be the sole decision of Purchaser. During the Initial Marketing Period, Purchaser shall consult with, and provide reasonably frequent updates on its financing efforts, to the Chief Financial Officer of Seller.

(e)            Purchaser expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement to the contrary, Purchaser’s obligations hereunder are not conditioned in any manner upon Purchaser obtaining the Debt Financing, or any other financing.

6.9	Financial Statements.

(a)            Prior to the Closing, Seller shall use reasonable best efforts to cause to be prepared and delivered to Purchaser the (i) audited combined balance sheets of the Business as of December 31, 2022 and December 31, 2023 and (ii) respective related audited combined statements of income, shareholder’s equity and cash flows of the Business (taking into account the Corporate Functions used by the Business), for the fiscal years ended December 31, 2022 and December 31, 2023, and the last day of any subsequent fiscal year ended at least ninety (90) calendar days before the Closing Date, in each case together with an “unqualified” audit opinion issued with respect to such audited financial statements by the Business’s independent auditor (such audited financial statements referred to in the foregoing clauses (i) and (ii), collectively, the “Audited Financial Information”). The Audited Financial Information shall (A) be prepared in good faith and, except as set forth in the notes thereto, in accordance with GAAP, consistently applied throughout the periods covered thereby, (B) fairly present the financial condition and results of operations of the Business (taking into account the Corporate Functions used by the Business), as of the dates and for the periods therein specified, (C) be derived from books and records of Seller that are regularly maintained by management of Seller in accordance with GAAP and (D) have been reviewed in accordance with the applicable procedures of the American Institute of Certified Public Accountants.

(b)            During the period commencing as of the date hereof and continuing until the Closing, Seller shall use reasonable best efforts to deliver the financial information of the Acquired Companies for each calendar month in the form set forth on Schedule 6.9(b) of the Seller Disclosure Schedules to Purchaser within ten (10) Business Days of the end of such calendar month.

6.10	Insurance.

(a)            Without limiting Seller’s obligations under Section 6.7, prior to the Closing, Seller shall use commercially reasonable efforts to keep, or cause its Affiliates to use commercially reasonable efforts to keep, all insurance policies currently maintained by Seller or its Affiliates that cover the Business, or reasonably suitable replacements or renewals of at least equal coverage, in full force and effect through the Closing.

(b)            Subject to, and other than as set forth in this Section 6.10(b) and Section 6.10(c), from and after the Closing, (i) the Acquired Companies shall cease to be insured by the Seller Group’s insurance policies (other than any insurance policies held solely in the name of the Acquired Companies), including any self-insurance, fronted insurance or captive insurance policy or program and (ii) neither Purchaser nor its Subsidiaries (including the Acquired Companies) shall have any access, right, title or interest to or in any such insurance policies (including the right to make claims or receive proceeds thereunder) to cover the Acquired Companies or any liability arising from the operation of the Business on or after the Closing. Seller or any of its Affiliates may, to be effective at the Closing, amend any insurance policies (other than any insurance policies held solely in the name of the Acquired Companies) in the manner it deems appropriate to give effect to this Section 6.10. Notwithstanding the foregoing, Seller shall direct any insurers for any third-party Insurance Policies (other than any self-insurance, fronted insurance or captive insurance policy or program) affording coverage for the Acquired Companies or the Business to continue to process any claims made thereunder by the Acquired Companies or the Business to the extent such claims were made prior to the Closing and cooperate with Purchaser following the Closing in connection therewith, and any such claims shall be further subject to Section 6.10(c)mutatis mutandis.

(c)            From and after the Closing, Seller shall, and shall cause the other members of the Seller Group to, use commercially reasonable efforts, to make any available coverage under the Seller Group’s occurrence-based insurance policies other than any self-insurance, fronted insurance or captive insurance (such policies “Available Insurance Policies”), available to the Acquired Companies with respect to claims arising out of events which have occurred, or conditions which are in existence, prior to the Closing relating to the Acquired Companies, the Business, Business Employees or former employees of the Acquired Companies (such claims “Pre-Closing Claims”), including noticing claims to and reasonably cooperating with the applicable insurer(s) and remitting proceeds to the Acquired Companies, subject to the terms and conditions of such Available Insurance Policies; provided that (i) all applicable deductibles or retentions under any such Available Insurance Policies shall be shared in the same proportion as any insurance proceeds actually received by the Seller Group, on the one hand, and the Acquired Companies, on the other hand, with respect to any one claim (or related claims) under the relevant Available Insurance Policy, (ii) except as expressly set forth in the prior clause (i), Purchaser shall exclusively bear the amount of any claims handling fees or any other amounts payable or to be retained or incurred under any such Available Insurance Policies associated with Pre-Closing Claims, (iii) Seller and its Affiliates shall not be liable for any uninsured or uncovered amounts of such Pre-Closing Claims; (iv) the Acquired Companies shall not, without the express written consent of Seller, amend, modify or waive any rights of Seller or other insureds under any such Available Insurance Policies; (v) Seller shall have the right to reasonably monitor any such Pre-Closing Claims under the Available Insurance Policies, and the Acquired Companies shall keep Seller reasonably apprised of any such Pre-Closing Claims under the Available Insurance Policies; (vi) upon Seller’s request, Purchaser and the Acquired Companies shall provide Seller with reasonable documentation and information regarding any Pre-Closing Claim under an Available Insurance Policy, including with respect to the amount of the claimed loss or damage; (vii) upon Purchaser’s request, Seller shall provide Purchaser with reasonable documentation and information regarding any Pre-Closing Claim or Available Insurance Policy; and (viii) the Acquired Companies shall not assign any Available Insurance Policies or any rights or claims under the Available Insurance Policies. Notwithstanding anything contained herein, (A) neither Seller nor any member of the Seller Group shall be liable to Purchaser or the Acquired Companies for any claims, or portions thereof, not reimbursed by an insurer under any Available Insurance Policy for any reason (other than a failure to comply with this Section 6.10) and (B) Seller shall retain the exclusive right to control all of their insurance policies and programs, including the Available Insurance Policies, including the right to exhaust, erode, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and to amend, modify, terminate or waive any such insurance policies and programs or any rights thereunder; provided that, Seller shall not amend, modify, terminate or waive any coverage under any Available Insurance Policies with respect to periods prior to the Closing in a manner that would impair coverage thereunder available for Pre-Closing Claims or otherwise limit the rights of Purchaser under this Section 6.10, other than pursuant to corporate-wide or multi-business amendments, modifications, terminations, waivers or reductions of limits.

(d)            Prior to the Closing, Seller shall, and shall cause the Acquired Companies to, at Purchaser’s sole cost and expense, use commercially reasonable efforts to cooperate with Purchaser in obtaining any insurance, including any “tail” insurance with respect to matters existing, occurring or arising at or prior to the Closing, related to any Acquired Company or the Business (other than the “tail” insurance contemplated in Section 7.4(b), which insurance is addressed in Section 7.4(b)); provided that failure of Purchaser to obtain any such insurance shall not delay the Closing or be the basis for any claim that the conditions in Section 10.1 have not been satisfied.

6.11         R&W Insurance Policy. Purchaser has conditionally bound the R&W Insurance Policy pursuant to the R&W Binder Agreement. At the Closing, or promptly thereafter, Purchaser shall deliver to Seller a copy of the R&W Insurance Policy. Purchaser acknowledges and agrees that, except in the case of Fraud, from and after the Closing, the R&W Insurance Policy (whether or not it is ultimately bound, and whether or not the R&W Insurance Policy is sufficient to cover any Losses of Purchaser or any of its Affiliates) shall be the sole and exclusive remedy of Purchaser or any of its Affiliates and its and their respective Representatives, successors and assigns of whatever kind and nature, at law, in equity or otherwise, known or unknown, which such Persons have now or may have against Seller or any of its Affiliates in the future, resulting from, arising out of, or related to any inaccuracy or breach of any representation or warranty contained in this Agreement, and none of such Persons shall have any recourse against Seller or any of its Affiliates with respect thereto. Purchaser and its Affiliates shall not consent to, amend, waive or otherwise modify the subrogation provision of the R&W Binder Agreement or the R&W Insurance Policy in any manner without Seller’s prior written consent (which consent shall be in the sole and absolute discretion of Seller). Purchaser shall be solely responsible for all costs to procure, maintain and make claims under the R&W Insurance Policy, including all premiums, retention amounts, Taxes, expenses and costs of any nature whatsoever. The parties hereto acknowledge that Purchaser obtaining the R&W Insurance Policy is a material inducement to Seller entering into the transactions contemplated by this Agreement, and Seller is relying on Purchaser’s covenants and obligations set forth in this Section 6.11.

6.12         Registered Office Addresses. To the extent an Acquired Company uses any facility address of Seller or any of its Affiliates (other than the Acquired Companies) as a registered office address, at Purchaser’s written request, Seller shall, at Purchaser’s sole cost and expense, take any and all actions to transfer the registered office address of any such Acquired Company to the registered office address of Purchaser or any of its Affiliates effective as of the Closing.

6.13         Exclusivity. During the period from the date of this Agreement until the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with its terms, Seller shall not, and shall cause its Affiliates (including the Acquired Companies) and their respective Representatives not to, directly or indirectly, (i) solicit, initiate or encourage any Acquisition Proposal or (ii) institute, pursue or engage in any discussions or negotiations with, or enter into any understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with, or provide any information relating to the Business or any of member of the Seller Group to, any Person or group of Persons (other than Purchaser and its Affiliates and its and their Representatives) in furtherance of an Acquisition Proposal.

Article VII

ADDITIONAL COVENANTS OF THE PARTIES

7.1	Transitional Trademark Rights.

(a)            The parties hereto expressly acknowledge and agree that, subject to Section 7.1(b), Section 7.1(c) and Section 7.6, (i) the Acquired Companies, as of the Closing, do not and will not have any right, title or interest (whether express or implied) in, to or under any Seller Group Mark (except for any portion thereof that is Acquired Company IP), and (ii) Purchaser and its Affiliates (including the Acquired Companies) shall have no right, title or interest in or to, or right to use, and Purchaser acknowledges and agrees that it and its Affiliates (including the Acquired Companies) will not hereafter adopt, use, apply to register or register, or authorize others to adopt, use, apply to register or register, any such Seller Group Marks. Neither Seller nor any of its Affiliates shall, following Closing, (A) have any rights in or to any Trademarks included in the Acquired Company IP, and shall not hereafter adopt, use, apply to register or register, or authorize others to adopt, use, apply to register or register, any such Trademarks, or (B) contest the ownership or validity of any rights of the Acquired Companies or Purchaser in or to any such Trademarks.

(b)            Notwithstanding the restrictions set forth in Section 7.1(a), no later than twenty (20) days following the Closing Date, Purchaser shall cause the Acquired Companies to, and the Acquired Companies shall, change their names and cause their certificates of incorporation (or equivalent organizational documents), as applicable, to be amended to remove any reference to the Seller Group Marks.

(c)            Promptly (and in any event, within six (6) months) after the Closing Date (the “Transition Period”) or a reasonable extension of time as the parties may otherwise agree in writing in good faith, Purchaser shall, and Purchaser shall cause its Affiliates to, cease use of the Seller Group Marks in use as of the Closing Date and take commercially reasonable actions to remove, obliterate or cover up the Seller Group Marks from the any vehicles, equipment, business cards, purchase orders and invoices, schedules, stationary, business cards, labels, packaging materials, displays, signs, promotional materials, manuals, forms, websites, email, computer software and other materials (collectively, the “Trade Materials”); provided, however, that (i) Purchaser shall, and shall cause its Affiliates (including, for the avoidance of doubt, the Acquired Companies after Closing) to, comply with all reasonable instructions of Seller relating to such utilization of the Seller Group Marks that the Acquired Companies were subject to prior to the Closing Date or that otherwise apply to the Seller Group’s use of the Seller Group Marks and (ii) neither Purchaser nor any of its Affiliates (including, for the avoidance of doubt, the Acquired Companies after Closing) shall develop new Trade Materials bearing the Seller Group Marks, it being agreed that Purchaser and the Acquired Companies may continue producing and manufacturing of any Trade Materials in use prior to Closing that bear the Seller Group Marks in connection with their continued operation of the Business during the Transition Period, so long as such use is consistent with the use by the Business prior to Closing (including, for clarity, with respect to the presentation of the Seller Group Marks). Any use by the Acquired Companies of any of the Seller Group Marks as permitted in this Section 7.1(c) is subject to their use of the Seller Group Marks in the same form and manner, and with the same standards of quality, of that used by the Acquired Companies immediately prior to Closing.

(d)            Following the Closing Date, Purchaser shall immediately cause the Acquired Companies to cease to hold themselves out as having any affiliation with the Seller Group, except that at any and all times after Closing, Purchaser and the Acquired Companies shall be permitted to communicate to third parties that Purchaser has purchased the Acquired Companies from Seller and reference such name in such communications. Notwithstanding anything in this Agreement to the contrary, and without limiting the rights otherwise granted in Section 7.1(c), nothing shall prevent Purchaser or its Affiliates from using any Trademark (i) to refer to the historical fact that the Business was previously conducted under those Seller Group Marks under which it was conducted; (ii) to the extent already shipped to or in use by customers of Seller or its Affiliates or required or permitted under Contracts of Seller or its Affiliates as of the Closing or required or permitted under Contracts of Purchaser or its Affiliates (including, for clarity, any of the Acquired Companies); and (iii) to the extent required by or permitted as a fair use or otherwise under applicable Legal Requirement (including historical references).

7.2	IP Licenses.

(a)            Effective as of the Closing, Seller, on behalf of itself and its Subsidiaries, hereby grants to each of the Acquired Companies a perpetual, irrevocable, non-exclusive, worldwide, sublicensable (including through multiple tiers for use in connection with the operation of the Business but not for the independent use by third parties), and royalty-free license to use and exploit all rights under any Intellectual Property (other than Trademarks) owned by Seller Group and its Affiliates as of the Closing that is not Acquired Company IP but was used in the Business within the twelve (12) months prior to the Closing, for use in connection with the conduct of the Business and evolutions and extensions of such Business. The foregoing license is assignable, in whole or in part, in connection with the sale or transfer of any business or assets of the Acquired Companies to which the license relates.

(b)            Effective as of the Closing, each of the Acquired Companies hereby grants to Seller a perpetual, irrevocable, non-exclusive, worldwide, sublicensable (including through multiple tiers for use in connection with the operation of the businesses of Seller and its Subsidiaries (other than the Business) but not for the independent use by third parties), and royalty-free license to use and exploit all rights under any Patents, Copyrights and Trade Secrets, in each case, included in the Acquired Company IP that was used in the businesses of Seller and its Subsidiaries within the twelve (12) months prior to the Closing, for use in connection with the conduct of the businesses of Seller and its Subsidiaries (other than the Business) solely as conducted as of the Closing Date and evolutions and extensions of such businesses. The foregoing license is assignable, in whole or in part, in connection with the sale or transfer of any business or assets of Seller or its Subsidiaries to which the license relates.

7.3	Post-Closing Access to Information.

(a)            From and after the Closing, Purchaser shall, and shall cause the Acquired Companies and its other Affiliates to, afford the Seller Group and their respective Representatives, during normal business hours, upon reasonable request and advance notice, reasonable access to the employees, books, records and properties of each Acquired Company, their Affiliates and the Business, and to make copies of such books and records at Seller’s expense, to the extent that such access is requested in connection with financial statements, Taxes, any potential Proceeding or investigation by or before a Governmental Authority or other Governmental Authority reporting obligations with respect to periods occurring prior to or upon the Closing; provided that the foregoing shall not apply (i) with respect to any information the disclosure of, or access to, which would waive any privilege, violate any Legal Requirement or breach any duty of confidentiality owed to any Person; provided that Purchaser shall use reasonable best efforts to allow for access to the extent that doing so does not result in the loss of any such privilege or violate or breach any such Legal Requirement or duty; or (ii) if such access is sought pursuant to this Agreement in connection with any pending, threatened, or potential claim or Proceeding against Purchaser or its Subsidiaries.

(b)            Purchaser agrees to hold, and to cause the Acquired Companies to hold, all the books and records of the Acquired Companies and the Business existing on the Closing Date and not to destroy or dispose of any such books and records for a period of seven (7) years from the Closing Date or such longer time as may be required by Legal Requirement, and thereafter, if any Acquired Company desires to destroy or dispose of such books and records, to offer first in writing at least sixty (60) days prior to such destruction or disposition to surrender them to Seller.

7.4	D&O Insurance.

(a)            From and after the Closing until the date that is six (6) years after the Closing Date, Purchaser shall cause the Acquired Companies to, and the Acquired Companies shall, maintain in effect the provisions regarding indemnification, advancement of expenses and exculpation from liability as set forth in the certificate of incorporation, articles of association, bylaws or other organizational documents of the Acquired Companies that have been made available to Purchaser prior to the date hereof, which provisions shall not be amended, repealed or otherwise modified in any manner that would reasonably be expected to adversely affect the rights thereunder (if any) of any past or present officer or director of any Acquired Company (each, a “D&O Indemnitee”) without his/her written consent except to the extent required by applicable Legal Requirement; provided that, from and after the Closing, all rights of the D&O Indemnitees to and regarding such indemnification, advancement of expenses and exculpation from liability shall be mandatory rather than permissive. For the avoidance of doubt, Purchaser shall cause the Acquired Companies to maintain in effect such provisions for any claim made by a D&O Indemnitee prior to the expiration of the sixth (6^th^) anniversary of the Closing until such claim has been finally resolved.

(b)            At or prior to the Closing, Seller shall, at Seller’s sole cost and expense, obtain six (6)-year irrevocable and non-cancellable directors’ and officers’ liability, employment practices liability and fiduciary liability “tail” insurance covering the D&O Indemnitees and any other natural persons who are covered by the directors’ and officers’ liability, employment practices liability and fiduciary liability insurance maintained by or for the benefit of the Acquired Companies in effect as of the Closing (such persons “Insured Persons” and such insurance “Current Insurance”), with respect to any actual or alleged error, misstatement, misleading statement, act, omission, circumstance, event, neglect, breach of duty or any other matter claimed against an Insured Person, in each case, that actually or allegedly existed or occurred at or prior to the Closing (including in connection with the approval or execution of any Transaction Document or the Transactions, or arising out of, relating to or resulting from any Transaction Document and the Transactions), on terms and conditions, including limits and retentions, substantially equivalent to the Current Insurance with respect to Insured Persons; provided that if such “tail” insurance is not reasonably available, then Seller, at Seller’s sole cost and expense, shall obtain the most advantageous coverage that is reasonably available. Purchaser shall cause the Acquired Companies to, and the Acquired Companies shall, maintain such “tail” insurance in full force and effect from and after the Closing and shall not, and shall cause the Acquired Companies not to, amend the terms and conditions of such “tail” insurance in any manner that may be adverse to the Insured Persons.

(c)            With respect to any indemnification obligations of the Acquired Companies pursuant to this Section 7.4, Purchaser acknowledges and agrees that: (i) the Acquired Companies shall be the indemnitors of first resort with respect to all indemnification obligations of the Acquired Companies pursuant to this Section 7.4 (i.e., their obligations to an applicable D&O Indemnitee are primary, and any obligation of any other Person to advance expenses or to provide indemnification and/or insurance for the same expenses or liabilities incurred by such D&O Indemnitee are secondary) and (ii) Purchaser shall cause the Acquired Companies to, and the Acquired Companies shall, irrevocably waive, relinquish and release Seller or any of its Affiliates from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof; provided that nothing in this Agreement is intended to relieve, or shall be construed as relieving, any insurer of its obligations under any insurance policy.

(d)            If, following the Closing until the date that is six (6) years after the Closing Date, Purchaser or any Acquired Company or any of their respective successors or assigns: (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made to ensure that the successors and assigns of Purchaser or such Acquired Company or any of its respective successors or assigns, as the case may be, shall assume all of the respective obligations set forth in this Section 7.4.

(e)            The rights of the D&O Indemnitees under this Section 7.4 shall be in addition to, and not in substitution for, any other rights such D&O Indemnitee may have under the organizational documents of the Acquired Companies, or under any applicable contracts or Legal Requirements, and Purchaser shall cause each of the Acquired Companies to, and the Acquired Companies shall, honor and perform under all indemnification agreements entered into by the Acquired Companies as in effect as of the date of this Agreement, which have been made available to Purchaser prior to the date hereof.

(f)             The obligations of Purchaser and the Acquired Companies under this Section 7.4 shall not be terminated, amended or modified in any manner so as to adversely affect any D&O Indemnitee (including such Person’s successors, heirs and legal representatives) to whom this Section 7.4 applies without the written consent of such affected D&O Indemnitee (it being expressly agreed that the D&O Indemnitee to whom this Section 7.4 applies shall be third-party beneficiaries of this Section 7.4, and this Section 7.4 shall be enforceable by such D&O Indemnitee and their respective successors, heirs and legal representatives and shall be binding on all successors and assigns of Purchaser and each Acquired Company).

7.5	Non-Competition; Non-Solicitation.

(a)            Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):

(i)            for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and

(ii)           (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business to perform services other than for the benefit of Purchaser or the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companies.

(b)            Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted in any way with respect to: (i) advertising job openings by use of newspapers, magazines, the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereof; (ii) hiring or soliciting any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for the most recent fiscal year ended prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.

(c)            Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope and time period) and such restrictions are necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement or any of the transactions contemplated hereby without the restrictions contained in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If a court of competent jurisdiction finds that the time period of any of the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broad, the restrictive time period will be deemed to be the longest period permissible under applicable Legal Requirement and the geographic coverage and scope will be deemed to comprise the largest coverage and scope permissible under applicable Legal Requirements. With respect to each restrictive covenant, the contemplated restricted period shall be extended during the term of any breach of such restrictive covenant.

7.6	Further Assurances.

(a)            From time to time following the Closing, Seller shall, and shall cause its Affiliates to, and Purchaser shall, and shall cause its Affiliates (including the Acquired Companies) to, execute, acknowledge and deliver all reasonable further conveyances, notices, assumptions, releases and acquittances and such other instruments, and shall take such reasonable actions as may be necessary or appropriate to make effective the Transactions as may be reasonably requested by any other party hereto; provided, however, that except as otherwise provided in any Transaction Document, nothing in this Section 7.6 shall require any party hereto or any of their respective Affiliates to expend any money, commence or participate in any Proceeding, incur liabilities or offer or grant any accommodation (financial or otherwise) to any third party following the Closing.

(b)            In furtherance, and not by way of limitation, of the foregoing, if after the Closing: (i) Seller or any of its Affiliates, or Purchaser or any of its Affiliates, discovers that any assets and properties owned, leased or licensed by any Acquired Company that are not used or held for use primarily in connection with the Business were retained by any Acquired Company, then Purchaser shall, and shall cause its Affiliates to: (A) immediately cease using such assets and properties and (B) cooperate with Seller to transfer or assign such assets and properties to Seller (or its designee) with no requirement of additional consideration to the fullest extent permitted by applicable Legal Requirements and execute and deliver any amendments or supplements to this Agreement, exhibits, schedules or the Seller Disclosure Schedule, as applicable, to transfer such assets and properties to Seller (or its designee) effective as of the Closing and (ii) Seller or any of its Affiliates, or Purchaser or any of its Affiliates, discovers that any (A) the IP Seller IP or (B) any assets or properties that are owned, leased or licensed by Seller or any of its Affiliates used or held for use primarily in connection with the Business was not retained by or transferred to any Acquired Company or, in the case of the IP Seller IP, was not transferred to Purchaser or any of its Affiliates at the Closing, then Seller shall, and shall cause its Affiliates to: (A) immediately cease using such assets and properties and (B) cooperate with Purchaser to transfer or assign such assets and properties to Purchaser (or its designee) with no requirement of additional consideration to the fullest extent permitted by applicable Legal Requirements and execute and deliver any amendments or supplements to this Agreement, exhibits, schedules or the Seller Disclosure Schedule, as applicable, to transfer such assets and properties to Purchaser effective as of the Closing. The parties hereto agree to use their reasonable best efforts to structure any transfer of assets and properties referred to in the immediately preceding sentence in a manner that minimizes Taxes.

(c)            Following the Closing, Seller shall, and shall cause its Affiliates to, promptly deliver to Purchaser (i) any mail, packages, orders, inquiries and other communications addressed to Seller or its Affiliates primarily relating to the Business and (ii) any assets or property that Seller or its Affiliates receive and that properly belongs to the Business or an Acquired Company (including any assets or property primarily related to the Business). Following the Closing, Purchaser shall, and shall cause its Affiliates to, promptly deliver to Seller (A) any mail, packages, orders, inquiries and other communications addressed to Seller or any of its Affiliates or relating to a business, product line or asset of Seller or its Affiliates other than the Business (to the extent not primarily related to the Business) and (B) any assets or property that Purchaser or its Affiliates receive and that properly belongs to Seller or any of its Affiliates (including any assets or property of Seller or its Affiliates that are not primarily related to the Business).

(d)            If, following the Closing, (i) Seller, or any of its Affiliates, receives any funds belonging to the Business or Purchaser or its Affiliates, Seller shall, or shall cause its Affiliates to, (A) promptly advise Purchaser or its applicable Affiliate, (B) segregate and hold such funds in trust for the benefit of Purchaser or its applicable Affiliate and (C) promptly deliver such funds, together with any interest earned thereon, to an account or accounts designated in writing by Purchaser, and (ii) Purchaser or any of its Affiliates receives any funds belonging to Seller or its Affiliates in accordance with the terms of this Agreement, Purchaser shall, or shall cause its Affiliates to, (A) promptly advise Seller or its applicable Affiliate, (B) segregate and hold such funds in trust for the benefit of Seller or its applicable Affiliate and (C) promptly deliver such funds, together with any interest earned thereon, to an account or accounts designated in writing by Seller.

7.7           Assignment of Right to Enforce Restrictive Covenants. Prior to or at the Closing, Seller and each of its Affiliates (other than the Acquired Companies) shall assign to the Acquired Companies all rights under any non-disclosure, non-solicitation, non-competition or other restrictive covenants of Contracts to which Seller or any of its Affiliates (other than the Acquired Companies) is a party with any current or former employee or service provider of the Business to the extent that such provisions primarily relate to the Business.

Article VIII

TAX MATTERS

8.1	Section 338(h)(10) Election; Purchase Price Allocation.

(a)            Purchaser and Seller shall join in making an election under Section 338(h)(10) of the Code (and any corresponding elections under state, local, or non-U.S. tax law) with respect to the acquisition of the Acquired Companies pursuant to this Agreement (the “Section 338(h)(10) Election”). Neither Seller nor any of its Affiliates shall take any action that would prevent or impede, or could reasonably be expected to prevent or impede, the timely making of the Section 338(h)(10) Election.

(b)            Purchaser and Seller shall (and shall cause their relevant Affiliates to) cooperate in the preparation of IRS Form 8023 and all other forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election (including any analogous forms required to effectuate the Section 338(h)(10) Election for state or local Tax purposes) (collectively, the “Section 338(h)(10) Forms”). Purchaser and Seller shall (or shall cause their relevant Affiliates to) file such Section 338(h)(10) Forms with the applicable Tax Authorities in accordance with applicable Legal Requirement. Each of Purchaser and Seller agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Election following the filing of the Section 338(h)(10) Forms without the prior written consent of Seller and Purchaser, respectively.

(c)            Prior to the Closing, Purchaser and Seller shall agree on the form and content of, and at Closing, Purchaser and Seller shall each deliver to the other party, all duly executed Section 338(h)(10) Election Forms.

(d)            For all Tax purposes, Purchaser and Seller agree to (and agree to cause their respective Affiliates to) treat the sale of the shares of the Acquired Companies pursuant to this Agreement in accordance with Treasury Regulations Section 1.338(h)(10)-1 (the “Transaction Tax Treatment”).

(e)	Purchase Price Allocation.

(i)            For all Tax purposes, no later than one hundred and twenty (120) days after the Final Purchase Price is finally determined hereunder, Purchaser shall deliver to Seller a proposed allocation of the Final Purchase Price (and any amounts treated as part of the consideration for the Shares and the IP Seller IP for applicable Tax purposes), which allocation shall incorporate, reflect and be consistent with the Transaction Tax Treatment, and be determined in a manner consistent with Sections 338 and 1060 of the Code and the Treasury Regulations promulgated thereunder (the “Purchaser’s Draft Allocation”). Purchaser’s Draft Allocation shall include the amount allocated to the IP Seller IP. If Seller disagrees with Purchaser’s Draft Allocation, Seller may, within thirty (30) days after delivery of Purchaser’s Draft Allocation, deliver a notice (the “Seller’s Allocation Notice”) to Purchaser to such effect, specifying those items as to which Seller disagrees and setting forth Seller’s proposed allocation of the Final Purchase Price (and other relevant amounts). If the Seller’s Allocation Notice is duly delivered, Purchaser and Seller shall, during the twenty (20) days following such delivery, negotiate in good faith to reach agreement on the disputed items or amounts in order to determine the allocation of the Final Purchase Price (and other relevant amounts). If Purchaser and Seller are unable to reach such agreement, any such disputed items or amounts shall be resolved by the Settlement Accountant pursuant to the procedures set forth in Section 2.4(e), applied mutatis mutandis; provided that any such allocation shall incorporate, reflect and be consistent with the Transaction Tax Treatment. The allocation of the Final Purchase Price (and other relevant amounts) as prepared by Purchaser if no Seller’s Allocation Notice has been timely delivered, as adjusted pursuant to any agreement reached by Purchaser and Seller, or as finally determined by the Settlement Accountant, as applicable (the “Allocation”), shall be conclusive and binding on all parties. The Allocation shall be adjusted, as necessary, to reflect any subsequent payments treated as adjustments to the Final Purchase Price. Any such adjustment shall be allocated, consistent with this Section 8.1(e)(i), to the asset, assets, share or shares (if any) to which such adjustment is attributable.

(ii)           Purchaser and Seller shall (and shall cause their Affiliates to) (A) prepare and file all Tax Returns (including the Section 338(h)(10) Forms), in a manner consistent with the Transaction Tax Treatment, the Section 338(h)(10) Election and the Allocation and (B) not take any position inconsistent therewith on any Tax Return, in connection with any Tax Proceeding or otherwise, in each case, except to the extent otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code (or any similar provision of applicable state, local or non-U.S. law).

(f)             Seller shall pay all Taxes attributable to the making of the Section 338(h)(10) Election (such Taxes, the “Section 338(h)(10) Election Taxes”).

8.2	Tax Returns.

(a)            Seller shall prepare and timely file, or cause to be prepared and timely filed, when due (taking into account any valid extension of a required filing date) all Tax Returns required to be filed by the Acquired Companies related to Pre-Closing Tax Periods that are due (taking into account any valid extension of a required filing date) on or before the Closing Date solely in respect of those jurisdictions in which the applicable Acquired Company is currently filing Tax Returns (each such Tax Return, a “Seller-Filed Tax Return”). Each such Seller-Filed Tax Return shall be prepared in a manner consistent with past practices of the Acquired Companies, except as otherwise required by a change in applicable Legal Requirements that is effective after the last day of the Taxable period immediately preceding the Taxable period for which the applicable Seller-Filed Tax Return will be filed. Seller shall pay, or cause to be paid, any Taxes shown as due on any Seller-Filed Tax Return at the time such Seller-Filed Tax Return is filed by Seller pursuant to this Section 8.2(a).

(b)            Purchaser (or its Affiliates) shall prepare and timely file, or cause to be prepared and timely filed, when due (taking into account any extensions of a required filing date) all Tax Returns required to be filed by the Acquired Companies related to Pre-Closing Tax Periods (including Straddle Periods) that are due after the Closing Date solely in respect of those jurisdictions in which the applicable Acquired Company is currently filing Tax Returns (each such Tax Return, a “Purchaser-Filed Tax Return”). The Purchaser-Filed Tax Returns shall not include any Consolidated Return. Each Purchaser-Filed Tax Return shall be prepared in a manner consistent with past practices of the Acquired Companies, except as otherwise required by a change in applicable Legal Requirements that is effective after the last day of the Taxable period immediately preceding the Taxable period for which the applicable Purchaser-Filed Tax Return will be filed.

(c)            Any Purchaser-Filed Tax Return shall be provided in draft form to Seller (together with schedules, statements or other supporting documentation reasonably requested) at least twenty-five (25) Business Days (or, in the case of any Tax Return that is not an income Tax Return, as soon as reasonably practicable) prior to the due date (including any applicable valid extension) of such Purchaser-Filed Tax Return. Seller shall have the right to review and comment on such Purchaser-Filed Tax Return, and Purchaser shall consider in good faith any comments thereto that are provided by Seller to Purchaser in writing at least fifteen (15) Business Days (or, in the case of any Tax Return that is not an income Tax Return, as soon as reasonably practicable) prior to the due date (including any applicable valid extension) of such Purchaser-Filed Tax Return. Purchaser and Seller shall cooperate in good faith to resolve any disputed items with respect to any comments that were timely provided by Seller. If Purchaser and Seller fail to resolve any disputed items within five (5) Business Days following Seller’s delivery of such comments (or within such longer period as the parties may mutually agree), Purchaser and Seller shall submit such disputed items to the Settlement Accountant for resolution, and Purchaser and Seller shall instruct the Settlement Accountant to resolve such disputed items as soon as practicable prior to the due date (including any applicable valid extension) of the Purchaser-Filed Tax Return. The fees and expenses of the Settlement Accountant shall be borne in the manner contemplated by Section 2.4(e), mutatis mutandis. No later than five (5) Business Days prior to the filing of any Purchaser-Filed Tax Return pursuant to this Section 8.2(c), Seller shall pay, or caused to be paid, all Taxes shown as due on any Purchaser-Filed Tax Return at such time and as finally determined pursuant to this Section 8.2(c), except to the extent such Taxes (i) were taken into account in determining the Final Purchase Price or (ii) are allocable to a Post-Closing Straddle Period in accordance with Section 8.5, which Taxes shall be the sole responsibility of Purchaser and its Affiliates (including, after the Closing, the Acquired Companies).

8.3           Tax Sharing Agreements. To the extent relating to the Acquired Companies, Seller shall terminate, or cause to be terminated, on or before the Closing Date, the rights and obligations of the Acquired Companies pursuant to all Tax sharing agreements or similar agreements (other than the Transition Services Agreement) if any, to which any of the Acquired Companies, on the one hand, and Seller or any of its Affiliates (other than the Acquired Companies), on the other hand, are parties, and neither Seller nor any of its Affiliates (other than the Acquired Companies), on the one hand, nor any of the Acquired Companies, on the other hand, shall have any rights or obligations to each other after the Closing in respect of such agreements or arrangements.

8.4           Transfer Taxes. Notwithstanding anything to the contrary contained in this Agreement, any Transfer Taxes imposed as a result of the Transactions shall be borne and paid fifty percent (50%) by Purchaser and fifty percent (50%) by Seller. The party responsible under applicable Legal Requirements for filing the Tax Returns with respect to any such Transfer Taxes shall prepare and timely file such Tax Returns and promptly provide a copy of such Tax Return to the other party. The party not responsible under applicable Legal Requirements for the filing of such Tax Returns shall pay its allocable portion of such Transfer Taxes to the party filing such Tax Returns no later than five (5) Business Days prior to the due date of any such Tax Return. Seller shall, and shall cause its Affiliates to, and Purchaser shall, and shall cause its Affiliates to, cooperate in connection with the preparation and filing of any such Tax Returns.

8.5           Straddle Periods. In the case of any Straddle Period, the amount of any Taxes for a Pre-Closing Straddle Period shall be determined as follows: (a) in the case of any Tax based on or measured by income, receipts, or payroll, be determined based upon an interim closing of the books and hypothetical closing of the taxable year as of 11:59 p.m. on the Closing Date, and (b) in the case of any other Tax, including Taxes imposed on a periodic basis (such as real or personal property Taxes), the amount of such Taxes attributable to a Pre-Closing Straddle Period shall be equal to the amount of Taxes for such Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Straddle Period from the beginning of the Straddle Period through and including the Closing Date and the denominator of which is the total number of days in the Straddle Period. The portion of Tax attributable to a Post-Closing Straddle Period shall be calculated in a corresponding manner. Notwithstanding the foregoing, any Taxes attributable to actions taken outside the ordinary course of business on the Closing Date after the Closing (other than the Section 338(h)(10) Election Taxes) shall be allocated to the portion of the Straddle Period beginning after the Closing Date.

8.6           Cooperation. Following the Closing, Purchaser and Seller shall cooperate, as and to the extent reasonably requested by the other party in writing, in connection the filing of Consolidated Returns and other Tax Returns pursuant to this Article VIII. Such cooperation shall include the provision of such information in such party’s possession and assistance, including access to books and records, as is reasonably relevant to any such filing and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided in accordance with this Agreement.

8.7	Prohibited Actions.

(a)            Other than as set forth in Section 8.1, Purchaser shall not take, and shall cause its Affiliates (including the Acquired Companies) not to take, any action outside the ordinary course of business after the Closing on the Closing Date (or pursuant to a plan in existence on the Closing Date) that would reasonably be expected to (i) increase any Tax liability of Seller or any of its Affiliates (other than the Acquired Companies) or of any Acquired Company (A) that would be taken into account in determining the Final Purchase Price or (B) for which Seller would otherwise be responsible pursuant to Section 8.2 or (ii) result in a payment obligation to a Purchaser Indemnified Party pursuant to Section 12.2.

(b)            Without limiting the generality of Section 8.7(a), other than as set forth in Section 8.1, following the Closing Date, neither Purchaser nor any of its Affiliates (including the Acquired Companies) shall (i) make any election with respect to any Acquired Company or change any method of Tax accounting or any Tax accounting period of any Acquired Company, which election or change would be effective on or prior to the Closing Date, (ii) amend any previously filed Tax Returns of the Acquired Companies for a Pre-Closing Tax Period, (iii) file Tax Returns of the Acquired Companies for a Pre-Closing Tax Period in a manner inconsistent with past practice (except as otherwise provided under Section 8.2) or in a jurisdiction where the relevant Acquired Company has not historically filed Tax Returns, (iv) settle or compromise any Tax audit or similar proceeding with respect to the Acquired Companies for any Pre-Closing Tax Period, (v) initiate discussions or examinations with Tax Authorities regarding Taxes of the Acquired Companies with respect to any Pre-Closing Tax Period or (vi) make any voluntary disclosures with respect to Taxes of the Acquired Companies for Pre-Closing Tax Periods, in each case, without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed) if such action would reasonably be expected to (A) increase any Tax liability of Seller or any of its Affiliates (other than the Acquired Companies) or of any Acquired Company (I) that would be taken into account in determining the Final Purchase Price or (II) for which Seller would otherwise be responsible pursuant to Section 8.2 or (B) result in a payment obligation to a Purchaser Indemnified Party pursuant to Section 12.2.

8.8           Survival. This Article VIII shall survive the Closing until ninety (90) days after the expiration of the statute of limitations (including extensions) applicable to the relevant Tax matter.

Article IX

EMPLOYEES

9.1           Transfer of Business Employees. No later than five (5) Business Days prior to the Closing Date, Purchaser shall or shall cause one of its Affiliates to offer employment, in writing, to the Canadian Business Employee, effective as of 12:01 a.m. local time on the Closing Date. Such offer of employment made by Purchaser or one of its Affiliates to the Canadian Business Employee shall provide for terms and conditions consistent with this Article IX, employment in the same or a substantially similar position and work location (within a fifteen (15)-mile radius or such shorter distance required by applicable law in order to avoid the imposition of severance or other termination obligations), in each case, as those provided to such Canadian Business Employee immediately prior to the Closing. Purchaser shall (x) provide the Seller with a copy of the offer of employment to be made pursuant to this Section 9.1 at least ten (10) Business Days prior to the making of such offer for the Seller’s reasonable review and comment prior to the time that such offer is made and (y) promptly notify the Seller upon making such offer. Each Business Employee who is employed by any Acquired Company as of the Employment Commencement Date and, if the offer of employment with Purchaser or one of its Affiliates is accepted, the Canadian Business Employee shall be referred to herein as a “Transferred Employee.”

9.2	Continuation Period. Subject, and in addition, to requirements<br>imposed by applicable Legal Requirements:

(a)            For the period commencing on the Employment Commencement Date and ending on the one-year anniversary of the Employment Commencement Date (the “Continuation Period”), Purchaser shall provide, or shall cause to be provided, to each Transferred Employee: (i) a base salary (or hourly base wage rate) that is at least equal to the base salary (or hourly base wage rate) provided to such Transferred Employee immediately prior to the Employment Commencement Date, (ii) a target annual cash bonus or commission opportunity that is at least equal to the target annual cash bonus or commission opportunity provided to such Transferred Employee immediately prior to the Employment Commencement Date, (iii) long-term incentive opportunities that are at least equal to the long-term incentive opportunities provided to similarly situated employees of Purchaser, and (iv) employee health, welfare, retirement and fringe benefits and perquisites that are no less favorable in the aggregate than the employee health, welfare, retirement and fringe benefits and perquisites provided or made available to such Transferred Employee immediately prior to the Employment Commencement Date;

(b)            In the event of termination of the employment of any Transferred Employee during the Continuation Period, Purchaser shall provide, or shall cause to be provided, to such Transferred Employee severance pay and benefits no less favorable than the severance pay and benefits to which such Transferred Employee would have been entitled under any applicable Seller Benefit Plan or Acquired Company Benefit Plan immediately prior to the Employment Commencement Date;

(c)            For purposes of vesting and eligibility, Purchaser shall, or shall cause its applicable Affiliate (including any Acquired Company) to, give each Transferred Employee full credit for all purposes under each employee benefit plan, policy or arrangement of Seller or its applicable Affiliates (other than a defined benefit plan) maintained or made available for the benefit of Transferred Employees as of and after the Employment Commencement Date by Purchaser or any of its Affiliates, for such Transferred Employee’s service prior to the Employment Commencement Date with Seller and its applicable Affiliates and their respective predecessors, to the same extent and for the same purpose as such service is recognized by Seller and its applicable Affiliates immediately prior to the Employment Commencement Date; providedthat such credit shall not be given to the extent that it would result in a duplication of benefits for the same period of service; and

(d)            Purchaser shall use commercially reasonable efforts, or shall use commercially reasonable efforts to cause its applicable Affiliates (including any Acquired Company) to: (i) waive any limitation on health and welfare coverage of such Transferred Employees due to pre-existing conditions, waiting periods, active employment requirements and requirements to show evidence of good health under any applicable health and welfare plan of Purchaser or any of its Affiliates (including any Acquired Company) and (ii) credit each such Transferred Employee with all deductible payments, co-payments and co-insurance paid by such employee under any medical plan of Seller or any of its Affiliates prior to the Employment Commencement Date during the year in which the Employment Commencement Date occurs for the purpose of determining the extent to which any such employee has satisfied any applicable deductible and whether such employee has reached the out-of-pocket maximum under any benefit plan of Purchaser or any of its Affiliates for such year.

9.3           Annual Cash Bonuses. Purchaser shall, or shall cause one of its Affiliates (including, following the Closing, the Acquired Companies) to, assume all unpaid cash incentive amounts, including cash bonuses and commissions, that are earned, credited or accrued as of the Employment Commencement Date in respect of each Transferred Employee (the “Assumed Incentive Amount”). Purchaser shall, or shall cause one of its Affiliates (including, following the Closing, the Acquired Companies) to, pay to the Transferred Employees the Assumed Incentive Amount in accordance with the terms of the applicable arrangements in effect immediately prior to the Employment Commencement Date at such time as such amounts would have been paid to the Transferred Employees by Seller or one of its Affiliates had the Closing not occurred; provided that the aggregate cash incentive amount paid to Transferred Employees for services rendered for the portion of the performance period elapsing prior to the Employment Commencement Date shall not be less than the Assumed Incentive Amount.

9.4           Vacation and Paid Time Off. Unless otherwise required under applicable Legal Requirements, a Collective Bargaining Agreement, Purchaser and its Affiliates shall cause the Acquired Companies to credit each Transferred Employee with, and assume all liabilities for, the amount of accrued but unused vacation time, paid time off and other time-off benefits (“Accrued PTO”) as such Transferred Employee had with any Acquired Company, Seller or any of its Affiliates as of immediately prior to the Employment Commencement Date. Neither Seller nor its Subsidiaries shall have any liabilities for such Accrued PTO as of the Closing.

9.5           Communications. Prior to the Employment Commencement Date, except as otherwise approved in advance and in writing by Seller, Purchaser shall not make any written or oral communications pertaining to the transfer of Business Employees, any compensation or benefits matters or any redundancy and layoff plans, in each case, that may affect the Business Employees in connection with the Transactions.

9.6           Immigration Compliance. From and after the date of this Agreement and following the Employment Commencement Date, Purchaser shall, or shall cause its applicable Affiliates to, use commercially reasonable efforts to process and support visa, green card or similar applications in respect of Transferred Employees as of the Employment Commencement Date. Purchaser or its Affiliates (including, following the Closing, the Acquired Companies), as applicable, shall employ any Business Employees who are foreign nationals working in the United States in non-immigrant visa status (the “U.S. Foreign National Employees”) under terms and conditions such that Purchaser or its Affiliates (including, following the Closing, the Acquired Companies), as applicable, qualify as a “successor employer” under applicable United States immigration laws effective as of the Employment Commencement Date. As of the Employment Commencement Date, Purchaser and its Affiliates (including, following the Closing, the Acquired Companies) agree to assume all immigration-related liabilities and responsibilities with respect to such U.S. Foreign National Employees.

9.7           COBRA. Seller and Purchaser hereby acknowledge and agree that Seller shall be solely responsible for any obligation to provide continuation coverage under Section 4980B of the Code and Part 6 of Subtitle B of Part 1 of ERISA with respect to (i) any “M&A qualified beneficiaries,” as defined in Q&A 4 of Treasury Regulation Section 54.4980B-9, in connection with the Transactions and (ii) any Business Employee or Former Business Employee or their beneficiaries receiving or entitled receive to such continuation coverage as of the Closing Date.

9.8           No Third-Party Beneficiaries. Nothing contained in this Article IX, express or implied, is intended to confer upon any Person not a party hereto (including any Business Employee or any beneficiary thereof) any right, benefit or remedy of any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, any right to a particular term or condition of employment or any right to any specific compensation or benefits. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Benefit Plan or similar arrangement.

Article X

CONDITIONS TO CLOSING

10.1          Conditions of Purchaser. The obligations of Purchaser to consummate the Transactions shall be subject to the satisfaction (or, if permitted by applicable Legal Requirements, waiver by Purchaser (in its sole discretion)) of each of the following conditions at or prior to the Closing:

(a)            Representations and Warranties of Seller. (i) The representations and warranties of Seller (other than the Seller Fundamental Representations and the representation and warranty of Seller set forth in Section 4.6(b) (Absence of Certain Changes)) contained in Article IV shall be true and correct in all respects as of the Closing as if made on the Closing Date (other than any such representation and warranty that is made as of a specific date, which representation and warranty shall have been true and correct as of such date), except for breaches or inaccuracies, as the case may be, as to matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; provided, however, that for purposes of determining the satisfaction of the condition in this clause (i), no effect shall be given to the exceptions or qualifications of “material” or “Material Adverse Effect”, or similar “materiality” based exceptions or qualifications in such representations and warranties, (ii) the representation and warranty of Seller set forth in Section 4.6(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing as if made on the Closing Date and (iii) the Seller Fundamental Representations shall be true and correct in all material respects as of the Closing as if made on the Closing Date (other than any such representation and warranty that is made as of a specific date, which representation and warranty shall have been true and correct in all material respects as of such date).

(b)            Covenants of Seller. The covenants contained in this Agreement required to be performed or complied with by Seller on or before the Closing shall have been performed or complied with in all material respects.

(c)            No Material Adverse Effect. Since the date of this Agreement, no Material Adverse Effect shall have occurred and be continuing as of the Closing Date.

(d)            Certificate of Seller. Purchaser shall have received a certificate signed by an authorized officer of Seller, dated as of the Closing Date, certifying that the conditions set forth in Section 10.1(a), Section 10.1(b) and Section 10.1(c) have been satisfied.

10.2          Conditions of Seller. The obligations of Seller to consummate the Transactions shall be subject to the satisfaction (or, if permitted by applicable Legal Requirements, waiver by Seller (in its sole discretion)) of each of the following conditions at or prior to the Closing:

(a)            Representations and Warranties of Purchaser. (i) The representations and warranties of Purchaser (other than the Purchaser Fundamental Representations) contained in Article V shall be true and correct in all respects as of the Closing as if made on the Closing Date (other than any such representation and warranty that is made as of a specific date, which representation and warranty shall have been true and correct in all respects as of such date), except for breaches or inaccuracies, as the case may be, as to matters that, individually or in the aggregate, would not reasonably be expected to have a Purchaser Material Adverse Effect; provided, however, that for purposes of determining the satisfaction of the condition in this clause (i), no effect shall be given to the exceptions or qualifications of “material” or “Purchaser Material Adverse Effect”, or similar “materiality” based exceptions or qualifications in such representations and warranties and (ii) the Purchaser Fundamental Representations shall be true and correct in all material respects as of the Closing as if made on the Closing Date (other than any such representation and warranty that is made as of a specific date, which representation and warranty shall have been true and correct in all material respects as of such date).

(b)            Covenants of Purchaser. The covenants contained in this Agreement required to be performed or complied with by Purchaser on or before the Closing shall have been performed or complied with in all material respects.

(c)            Certificate of Purchaser. Seller shall have received a certificate signed by an authorized officer of Purchaser, dated as of the Closing Date, certifying that the conditions set forth in Section 10.2(a) and Section 10.2(b) have been satisfied.

10.3          Mutual Conditions. The respective obligations of each party to this Agreement to consummate the Transactions shall be subject to the satisfaction (or, if permitted by applicable Legal Requirements, waiver by mutual consent of Seller and Purchaser) of each of the following conditions at or prior to the Closing:

(a)            Regulatory Approvals. All waiting periods (and any extensions thereof) under the HSR Act applicable to the Transactions shall have expired or early termination shall have been granted.

(b)            No Orders. No Governmental Authority of competent authority and jurisdiction shall have enacted, issued, promulgated, enforced or entered any Order or Legal Requirement that remains in effect and makes illegal or prohibits the Transactions.

10.4          Failure of Conditions. Neither Seller nor Purchaser may rely on the failure of any condition set forth in this Article X, as applicable, to be satisfied if such failure was caused by such party’s failure to (a) use, as required by this Agreement, its reasonable best efforts to consummate the Transactions or (b) otherwise comply with any provision of this Agreement, in all material respects.

10.5          Waiver of Conditions. The conditions set forth in Section 10.1 may only be waived by written notice from Purchaser. The conditions set forth in Section 10.2 may only be waived by written notice from Seller. The conditions set forth in Section 10.3 may only be waived by written notice from both Purchaser and Seller.

Article XI

TERMINATION

11.1	Termination. This Agreement may be terminated at any time<br>prior to the Closing:

(a)            by the mutual written consent of Purchaser and Seller;

(b)            by Seller, if any representation or warranty of Purchaser shall be inaccurate or Purchaser shall have failed to comply with any covenant or agreement applicable to Purchaser, in each case that would cause any Closing Condition set forth in Section 10.2 not to be satisfied and such (i) Closing Condition is incapable of being satisfied by the Outside Date or (ii) inaccuracy or failure to perform has not been cured on or prior to the earlier of (A) the date that is thirty (30) days from the date that Purchaser is notified in writing by Seller of such inaccuracy or failure to perform or (B) the day prior to the Outside Date; provided, however, that the right to terminate this Agreement under this Section 11.1(b) shall not be available to Seller if any representation or warranty of Seller shall then be inaccurate or Seller shall have failed to comply with any covenant or agreement applicable to Seller, and in each case that would cause any Closing Condition set forth in Section 10.1 not to be satisfied; provided, further, that the failure by Purchaser to deliver the Purchase Price at the Closing by the date the Closing is required to have occurred pursuant to this Agreement shall not be subject to cure unless otherwise expressly agreed to in writing by Seller;

(c)            by Purchaser, if any representation or warranty of Seller shall be inaccurate or Seller shall have failed to comply with any covenant or agreement applicable to Seller, in each case that would cause any Closing Condition set forth in Section 10.1 not to be satisfied and such (i) Closing Condition is incapable of being satisfied by the Outside Date or (ii) inaccuracy or failure to perform has not been cured on or prior to the earlier of (A) the date that is thirty (30) days from the date that Seller is notified in writing by Purchaser of such inaccuracy or failure to perform or (B) the day prior to the Outside Date; provided, however, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to Purchaser if any representation or warranty of Purchaser shall then be inaccurate or Purchaser shall have failed to comply with any covenant or agreement applicable to Purchaser, and in each case that would cause any Closing Condition set forth in Section 10.2 not to be satisfied;

(d)            by either Seller or Purchaser, if the Closing has not occurred by April 21, 2025 (the “Outside Date”); provided,however, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to any party that is then in material breach of any covenant contained in this Agreement in any manner that shall have been a principal cause of the failure of the Closing to occur by the Outside Date; provided, further, that (i) if the Condition Satisfaction Date occurs before the Outside Date, then the Outside Date will be extended to the date that is one (1) Business Day after the date on which the Closing is required to occur in accordance with Section 3.1 and (ii) if either Marketing Period has commenced before, and has not completed by, the Outside Date, then the Outside Date will be extended to the date that is one (1) Business Day after such Marketing Period expires; or

(e)            by either Seller or Purchaser (i) in the event that any Governmental Authority shall have issued an Order that permanently enjoins or otherwise makes illegal or prohibits the consummation of the Transactions and such Order shall have become final and non-appealable or (ii) if there shall be a Legal Requirement in effect that permanently makes illegal or prohibits the consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any party that is then in material breach of any covenant contained in this Agreement in any manner that shall have been a principal cause of the issuance of such Order or imposition of such other Legal Requirement.

11.2          Notice of Termination. If this Agreement is terminated pursuant to Section 11.1, written notice of such termination shall be given by the terminating party to the other party (setting forth a reasonably detailed description of the basis on which such party is terminating the Agreement).

11.3          Effect of Termination. If this Agreement is terminated in accordance with Section 11.1 and Section 11.2, all rights and obligations of the parties hereto shall terminate without any liability of any party or other Person; provided that (a) the rights and obligations of the parties hereto under Section 6.5 (Confidentiality), the penultimate sentence of Section 6.6(b) (ReasonableBest Efforts; Regulatory Filings), Section 6.7(d), this Section 11.3 (Effect of Termination) and Article XIII (Miscellaneous Provisions) shall survive any termination of this Agreement and (b) nothing herein shall relieve any party to this Agreement from liability for Willful Breach of any covenant or agreement contained herein occurring prior to termination or for claims of Fraud. The parties hereto may petition a court to award damages in connection with any breach by the other party hereto of the terms and conditions set forth in this Agreement, and the parties hereto agree that such damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and may include the benefit of the bargain lost by, or any lost profits or opportunity or consequential damages incurred by, the other party hereto (taking into consideration all relevant matters, including other combination opportunities and the time value of money), in each case in accordance with applicable Legal Requirement.

Article XII

SURVIVAL; INDEMNIFICATION

12.1	Survival.

(a)            (i) The representations and warranties made by Seller in Article IV, in the certificate delivered by Seller pursuant to Section 10.1(d) shall not survive and shall terminate immediately upon the Closing; (ii) the representations and warranties made by Purchaser in Article V, in the certificate delivered by Purchaser pursuant to Section 10.2(c) shall not survive and shall terminate immediately upon the Closing; (iii) the covenants, obligations and agreements of Seller and Purchaser set forth in this Agreement that, by their terms, contemplate performance in whole prior to the Closing shall survive the Closing until the date that is twelve (12) months following the Closing (the “Pre-Closing Covenants”); and (iv) the covenants, obligations and agreements of Seller and Purchaser set forth that, by their terms, contemplate performance in whole or in part following the Closing by Seller and Purchaser shall survive the Closing in accordance with their terms and until they have been completely performed or complied with by the applicable party hereto. Notwithstanding the foregoing, the indemnification obligations of Seller pursuant to Section 12.2(a)(v) shall survive the Closing until the date that is three (3) years following the Closing. The survival periods set forth in this Section 12.1(a) shall not limit, reduce or restrict the rights or ability of any party to maintain, or recover any amounts in connection with, any claim based on Fraud. In no event shall the termination of any representation, warranty or covenant affect any claim in connection therewith if notice is provided to the Indemnifying Party in accordance with Section 12.4 prior to such termination.

(b)            The foregoing is not intended to limit the survival periods set forth in the R&W Insurance Policy.

12.2	Indemnification by Seller.

(a)            Subject to the provisions of this Article XII and without limitation to Section 2.1(b), effective as of and after the Closing, Seller shall indemnify, defend and hold harmless Purchaser and its Affiliates and its and their respective directors, officers, employees, agents, successors and representatives (collectively, the “Purchaser Indemnified Parties”) from and against any and all Losses incurred or suffered by any of the Purchaser Indemnified Parties, to the extent arising out of, relating to or resulting from, without duplication, any: (i) breach or violation of, or default in connection with, any covenant made by or to be performed by Seller in this Agreement, (ii) Retained Liabilities, (iii) Liabilities of any of the Acquired Companies for Taxes of any member of the Seller Group (other than any of the Acquired Companies) under Treasury Regulations Sections 1.1502-6 or 1.338(h)(10)-1(d)(2) (or any similar provision of state, local, or non-U.S. law), as transferee or successor, or by reason of having been a member of a consolidated, affiliated, combined or other group for Tax purposes at any time before the Closing, (iv) Liabilities set forth on Schedule 12.2(a)(iv) of the Seller Disclosure Schedule, (v) Liabilities set forth on Schedule 12.2(a)(v) of the Seller Disclosure Schedule, and (vi) Section 338(h)(10) Election Taxes. If a Purchaser Indemnified Party’s claim may be properly characterized in multiple ways in accordance with this Article XII such that such claim may or may not be subject to different time limitations and other limitations depending on such characterization, then such Purchaser Indemnified Party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article XII; provided, however, that no Purchaser Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach or inaccuracy of more than one of the representations, warranties and covenants in this Agreement or be subject to indemnification pursuant to multiple clauses of this Section 12.2.

(b)            Seller shall not be liable for any claim for indemnifiable Losses arising out of any claim under (i) Section 12.2(a)(i) relating to any Pre-Closing Covenant (other than the covenants in Section 7.4(b) and Section 8.2(a)) unless and until the aggregate amount of any and all such indemnifiable Losses with respect to Pre-Closing Covenants equals or exceeds the amount set forth in Schedule 12.2(b)(i) of the Seller Disclosure Schedule, in which case the Purchaser Indemnified Parties shall be entitled to recover all such indemnifiable Losses with respect to Pre-Closing Covenants from the first dollar thereof or (ii) Section 12.2(a)(iv) unless and until the aggregate amount of any and all such indemnifiable Losses equals or exceeds the amount set forth in Schedule 12.2(b)(ii) of the Seller Disclosure Schedule (the “Initial Deductible”), in which case the Purchaser Indemnified Parties shall be entitled to recover fifty percent (50%) all indemnifiable Losses arising out of any claim under Section 12.2(a)(iv) in excess of the Initial Deductible until the aggregate amount of any and all indemnifiable Losses arising out of any claim under Section 12.2(a)(iv) equals or exceeds the amount set forth in Schedule 12.2(b)(iii) of the Seller Disclosure Schedule (the “Second Deductible”), in which case the Purchaser Indemnified Parties shall be entitled to recover all indemnifiable Losses arising out of any claim under Section 12.2(a)(iv) in excess of the Second Deductible.

12.3          Indemnification by Purchaser. Subject to the provisions of this Article XII and without limitation to Section 2.1(b), effective as of and after the Closing, Purchaser shall indemnify, defend and hold harmless Seller and its Affiliates and its and their respective directors, officers, employees, agents, successors and representatives (collectively, the “Seller Indemnified Parties”) from and against any and all Losses incurred or suffered by any of the Seller Indemnified Parties, to the extent arising out of, relating to or resulting from (a) any breach or violation of, or default in connection with, any covenant made by or to be performed by Purchaser in this Agreement and (b) Assumed Liabilities (other than Assumed Liabilities in respect of which Seller is obligated to indemnify Purchaser Indemnified Parties pursuant to Section 12.2). If a Seller Indemnified Party’s claim may be properly characterized in multiple ways in accordance with this Article XII such that such claim may or may not be subject to different time limitations and other limitations depending on such characterization, then such Seller Indemnified Party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article XII; provided,however, that no Seller Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach or inaccuracy of more than one of the representations, warranties and covenants in this Agreement or be subject to indemnification pursuant to multiple clauses of this Section 12.3.

12.4	Procedures.

(a)            In the event that any Proceeding for which an Indemnifying Party may have liability to any Indemnified Party hereunder is actually threatened, asserted against or sought to be collected from any Indemnified Party by a third party and such Indemnified Party has actual knowledge thereof (a “Third-Party Claim”), such Indemnified Party shall promptly (but no later than ten (10) Business Days after such Indemnified Party receives actual notice of such Third-Party Claim) notify the Indemnifying Party in a writing that (i) describes such Third-Party Claim in reasonable detail (including the particular sections of this Agreement pursuant to which indemnification is being sought by the Indemnified Party) and (ii) sets forth the amount or the estimated amount sought thereunder to the extent then reasonably ascertainable (which estimate shall not be conclusive of the final amount recoverable in respect of, or otherwise limit the amount of recovery the Indemnified Party may seek in respect of, such Third-Party Claim) (a “Claim Notice”); provided,however, that a delay in providing a Claim Notice in accordance with this Section 12.4(a) shall not affect the rights of an Indemnified Party hereunder, except (and only to the extent that) any such delay has a direct, material adverse and prejudicial effect on the Indemnifying Party with respect to such Third-Party Claim (in which case, the Indemnifying Party shall be relieved only of any portion of the indemnification liability hereunder that resulted from such delay); provided, further, that for any Third-Party Claims relating to the exposure or alleged exposure of any person to asbestos or asbestos-containing substances or materials, the Indemnified Party shall not be required to submit a formal Claim Notice to the Indemnifying Party and may instead promptly forward a copy of any complaint, demand letter or similar documentation to the Indemnifying Party. The Indemnifying Party shall have twenty (20) days (or such lesser number of days set forth in the Claim Notice as may be required in the event of a litigated Proceeding) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether the Indemnifying Party desires to assume the control, investigation and defense of such Third-Party Claim. For purposes of the matter set forth on Schedule 12.2(a)(iv) of the Seller Disclosure Schedule (the “Specified Matter”), the parties hereto acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, Seller shall be deemed to have assumed the control, investigation and defense of the Specified Matter; provided that Seller shall (A) keep Purchaser reasonably informed of all substantive developments and events relating to the Specified Matter, (B) reasonably promptly forward copies to Purchaser of any litigation filings or substantive correspondence with other parties with respect to the Specified Matter, (C) provide Purchaser with a reasonable opportunity to review and comment on any proposed substantive litigation filings in connection with the Specified Matter and (D) notify Purchaser in advance of any settlement discussions in connection with the Specified Matter, and confer with Purchaser regarding the strategy and objectives for any such discussions. Notwithstanding anything in this Agreement to the contrary, for so long as Seller has assumed the control, investigation and defense of the Specified Matter, Seller shall be responsible for all legal defense costs (including reasonable attorneys’ fees) relating to the Specified Matter.

(b)            In the event that, prior to the expiration of the Notice Period, the Indemnifying Party notifies the Indemnified Party in writing that it desires to assume the control, investigation and defense of such Third-Party Claim, subject to Section 12.4(c), (i) the Indemnifying Party shall have the right to control the investigation and defense of such Third-Party Claim at the Indemnifying Party’s sole cost and expense, including the appointment, removal or replacement of counsel; provided that, other than with respect to the Specified Matter, the counsel is reasonably acceptable to the Indemnified Party; provided, further, that, other than with respect to the Specified Matter, the Indemnifying Party acknowledges in writing that it is obligated to indemnify the Indemnified Party against any Losses that may be directly or indirectly suffered, paid, incurred or sustained by the Indemnified Party that, directly or indirectly, arise out of, result from or are related to such Third-Party Claim to the extent required hereunder; (ii) the Indemnifying Party shall not settle or compromise or offer to settle or compromise (“Settlement”) or consent to the entry of any Order with respect to any Third-Party Claim (including the Specified Matter) without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), unless (1) such Settlement or Order does not (I) include any criminal liability or injunctive or non-monetary relief against the Indemnified Party or any of its Affiliates, (II) require any admission of liability (other than with respect to the Specified Matter) or require any admission of a violation of Legal Requirement by the Indemnified Party or any of its Affiliates, or (III) other than with respect to the Specified Matter, require any admission that would have an adverse effect on other claims then pending or threatened in writing against the Indemnified Party or any of its Affiliates that have been made known to the Indemnifying Party, (2) the Indemnifying Party fully indemnifies the Indemnified Party for all Losses arising out of, resulting from or related to the Third-Party Claim that is the subject of such Settlement or Order, and (3) the settlement contains a full and unconditional release of the Indemnified Party; provided that, with respect to a Settlement of the Specified Matter proposed by Seller, clause (ii)(2) shall be deemed to have been satisfied, and Purchaser shall be deemed to have consented to such Settlement, if Seller bears at least fifty percent (50%) of the Losses with respect to such proposed Settlement of the Specified Matter; (iii) the Indemnified Party shall reasonably cooperate with and assist the Indemnifying Party and its Representatives in the investigation, defense and Settlement of such Third-Party Claim, including by, to the extent permitted by applicable Legal Requirements, (x) furnishing documentary evidence to the extent reasonably available to the Indemnified Party or its Affiliates and (y) providing reasonable access to the Indemnified Party’s Representatives, as reasonably necessary to ensure the proper and adequate defense of a Third-Party Claim and (iv) the Indemnified Party shall have the right, but not the obligation, to participate in any such investigation and defense and to employ separate counsel of its choosing (at the Indemnified Party’s sole cost and expense, unless, (A) there exists a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (B) there are one or more defenses available to the Indemnified Party that are not available to the Indemnifying Party or (C) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to defend in good faith a Third-Party Claim it has assumed, as provided in Sections 12.4(a) or 12.4(b), then in each case, the Indemnifying Party shall be liable for the reasonable and documented out-of-pocket fees and expenses of the Indemnified Party for one separate counsel (in addition to any necessary local counsel) to the extent such Third-Party Claim is subject to indemnification or reimbursement under this Article XII); provided that clauses (A), (B) and (C) shall not apply with respect to the Specified Matter.

(c)            Notwithstanding Section 12.4(b), other than with respect to the Specified Matter, if a Third-Party Claim (i) is a Proceeding or threatened Proceeding by a Governmental Authority, (ii) seeks injunctive or other non-monetary relief, that, if granted, would adversely affect the Indemnified Party or any of its Affiliates, (iii) seeks a finding or admission of liability or a violation of any criminal or civil regulatory Legal Requirement by the Indemnified Party or any of its Affiliates, (iv) seeks a finding or admission that would have an adverse effect on other claims actually made or threatened in writing against the Indemnified Party or any of its Affiliates or (v) would materially and adversely affect the ongoing business (including any dispute with any officers, managers, key employees, customers, suppliers, vendors and others having commercial relationships with the Indemnified Party or any of its Affiliates) of the Indemnified Party or any of its Affiliates (any such Third-Party Claim, an “Indemnified Party Defense Matter”) then, in each case of the foregoing clauses (i)-(v), the Indemnified Party shall be entitled to assume the control, investigation and defense such Third-Party Claim at the sole expense of the Indemnifying Party and the Indemnifying Party shall have the right, but not the obligation, to participate in any such investigation and defense and to employ separate counsel of its choosing (at the Indemnifying Party’s sole cost and expense). Notwithstanding the foregoing, the Indemnified Party shall not affect a Settlement or consent to the entry of any Order of an Indemnified Party Defense Matter, unless such Settlement or consent complies with Section 12.4(b)mutatismutandis.

(d)            The Indemnifying Party shall give the Indemnified Party a reasonable period to review and comment upon drafts of any documentation relating to any Settlement that the Indemnifying Party proposed to enter into or Order that the Indemnifying Party proposed to consent to, and the Indemnifying Party shall consider any such comments in good faith.

(e)            If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as provided in Section 12.4(c), or (iii) after assuming the defense of a Third-Party Claim, fails to defend in good faith such Third-Party Claim then, in each case, the Indemnified Party shall have the right, but not the obligation, to control the investigation, defense and resolution of such Third-Party Claim, and shall reasonably consult with the Indemnifying Party regarding the strategy for investigation, defense and resolution of such Third-Party Claim, it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim.

(f)             The Indemnified Party and the Indemnifying Party shall cooperate in order to allow for the proper and adequate investigation, defense and resolution of a Third-Party Claim, including by providing reasonable access during normal business hours to each other’s relevant business records and other documents and employees. The Indemnified Party and the Indemnifying Party shall keep each other reasonably informed with respect to the status of such Third-Party Claim and shall, to the extent permitted by applicable Legal Requirements, deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to the Third-Party Claim, and the Indemnifying Party, to the extent it is controlling the investigation and defense of such Third-Party Claim, shall in good faith allow the Indemnified Party to propose comments to the materials submitted in such defense (and shall consider such comments in good faith).

(g)            In the event that any Indemnified Party has a claim against any Indemnifying Party under this Article XII for Losses not involving a Third-Party Claim that such Indemnified Party believes gives rise to a claim for indemnification or reimbursement in accordance with the terms of this Article XII, the Indemnified Party shall promptly notify the Indemnifying Party of such Losses in a writing that meets the requirements set forth in Section 12.4(a); provided, however, that a delay in providing such notification in accordance with the requirements set forth in Section 12.4(a) shall not affect the rights of an Indemnified Party hereunder, except (and only to the extent that) any such delay has a direct, material adverse and prejudicial effect on the Indemnifying Party with respect to such claim (in which case, the Indemnifying Party shall be relieved only of any portion of the indemnification obligation hereunder that resulted from such delay).

(h)            Notwithstanding anything in this Section 12.4 to the contrary, neither Purchaser nor Seller shall be required to provide access to or disclose any information (i) that is subject to attorney-client privilege, work product protection or trade secret protection or other similar privilege or protection or (ii) if such access or disclosure would (A) or would reasonably be expected to cause material harm to such party or (B) violate applicable Legal Requirements, contravene fiduciary duty or conflict with any Contract by which Purchaser, the Acquired Companies or any of their respective Affiliates is bound; provided that the party not providing access or disclosing information shall advise the other party that the party not providing access or disclosing information is withholding such information and shall use its commercially reasonable efforts to allow for such access or disclosure (or as much of it as possible) to the other party in a manner that does not violate any of the foregoing clause (i) or clause (ii).

12.5          Exclusive Remedy. Purchaser and Seller acknowledge and agree that, except with respect to Fraud and as provided for in the R&W Insurance Policy, and without limiting any right or obligation under any other documents entered into in connection with the Transactions, following the Closing, Section 8.1, Section 8.3, Section 8.4, and this Article XII and specific performance of this Agreement pursuant to Section 13.9 shall be the sole and exclusive remedies of the Seller Indemnified Parties and the Purchaser Indemnified Parties, respectively, for any Losses (including any Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability, or otherwise) that each party hereto may at any time suffer or incur, or become subject to, as a result of or in connection with this Agreement, including any failure by any party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement. Without limiting the generality of the foregoing, the parties hereby irrevocably waive any right of rescission they may otherwise have or to which they may become entitled.

12.6	Additional Indemnification Provisions.

(a)            Upon making any payment to the Indemnified Party for any indemnification claim pursuant to this Article XII, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third party insurers (other than pursuant to the R&W Insurance Policy) with respect to indemnification claim, and the Indemnified Party shall assign any such rights to the Indemnifying Party to the extent permitted by the applicable insurance policy.

(b)            Each Indemnified Party shall take, and cause its controlled Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.

12.7          Limitation on Liability. Notwithstanding anything to the contrary contained in this Agreement (including Article VIII and this Article XII), after the Closing, neither party shall be liable to the other party or its Affiliates or any other Person, whether in contract, tort (including negligence and strict liability) or otherwise, at law or in equity, and “Losses” shall not include any amounts for any special, incidental, consequential or punitive damages (except, in the case of special, incidental or consequential damages only, to the extent such damages are a reasonably foreseeable consequence of the matter giving rise to the applicable Loss); provided that nothing herein shall prevent any Purchaser Indemnified Party or Seller Indemnified Party from being indemnified pursuant to this Article XII and Article VIII for all components of awards against them in any Third-Party Claim, including components of such Third-Party Claim relating to special, incidental, consequential or punitive damages. Notwithstanding any provision herein to the contrary, no indemnity may be sought hereunder in respect of any Losses to the extent such liability (a) is specifically reserved for or otherwise specifically reflected as a liability of the Acquired Companies in the calculations of Final Closing Indebtedness, Final Closing Net Working Capital or Final Closing Transaction Expenses as of the Closing, or (b) was otherwise actually taken into account as a liability of the Acquired Companies in determining the Final Purchase Price.

12.8          Tax Treatment of Indemnity Payments and Post-Closing Adjustments. Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or non-U.S. Legal Requirement), Seller, Purchaser and their respective Affiliates shall treat any and all payments pursuant to Section 2.4, Article VIII or this Article XII as an adjustment to the Final Purchase Price, for Tax purposes.

12.9          Indemnification Obligations Net of Insurance Proceeds and Other Amounts. Any Losses subject to indemnification pursuant to this Article XII shall be calculated (a) net of insurance proceeds actually received by the Indemnified Party for such liability that actually reduce the amount of the Loss (“Insurance Proceeds”) and (b) net of any indemnity or contribution proceeds actually received by the Indemnified Party from any third party for such liability that actually reduce the amount of the Loss (“Third Party Proceeds”); provided that for purposes of this Section 12.9, Insurance Proceeds and Third Party Proceeds shall be calculated net of any deductible, retention amount or increased insurance premiums and net of reasonable and documented costs of recovery incurred by the Indemnifying Party in obtaining such recovery. Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Article XII to any Indemnified Party pursuant to this Article XII shall be reduced by any Insurance Proceeds or Third Party Proceeds theretofore actually recovered by or on behalf of the Indemnified Party in respect of the related Loss. If an Indemnified Party receives a payment required by this Agreement from an Indemnifying Party in respect of any Loss (an “Indemnity Payment”) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnified Party shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made. The Indemnified Party shall use commercially reasonable efforts to seek to collect or recover any Insurance Proceeds and any Third Party Proceeds to which the Indemnified Party is entitled in connection with any Loss for which the Indemnified Party seeks indemnification pursuant to this Article XII; provided, however, that in no event shall the Indemnified Party be required to (A) file one or more lawsuits or commence any other Proceeding or (B) seek to first recover under the R&W Insurance Policy, any insurance policy or any other third party; provided, further, that the Indemnified Party’s inability to collect or recover any such Insurance Proceeds or Third Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder. Notwithstanding anything to the contrary provided herein, Purchaser Indemnified Parties shall have no obligation to seek to first collect or first recover any Insurance Proceeds or Third Party Proceeds prior to obtaining indemnification from the Indemnifying Party pursuant to this Article XII.

Article XIII

MISCELLANEOUS PROVISIONS

13.1          Expenses. Whether or not the Transactions are consummated, unless otherwise expressly provided herein, and except as otherwise specified in the other Transaction Documents, each party hereto shall pay its own costs and expenses in connection with this Agreement and the Transactions, including the fees and expenses of its advisers, accountants and legal counsel.

13.2          Interpretation. Except as otherwise explicitly specified to the contrary, (a) references to a Section, Article, exhibit or schedule means a Section or Article of, or schedule or exhibit to this Agreement, unless another agreement is specified, (b) references to a subsection or other subdivision without further reference to a Section is a reference to such subsection or subdivision as contained in the same Section in which the reference appears, (c) the word “including” (and words of similar import) means “including, without limitation,” (d) references to a particular statute or regulation include all rules and regulations thereunder and any predecessor or successor statute, rules or regulation, in each case, as amended or otherwise modified from time to time, (e) words in the singular or plural form include the plural and singular form, respectively, and words of one gender shall be held to include all genders as the context requires, (f) references to the parties means the parties hereto, unless another agreement is specified, (g) references to a particular Person include such Person’s successors and assigns to the extent not prohibited by this Agreement, (h) “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if,” (i) the headings contained in this Agreement, in any exhibit or schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement, (j) references to “$” means United States dollars and all calculations of a number of dollars shall be rounded to the nearest whole number of cents, as applicable, with 0.5 rounded up to the next whole cent, as applicable (aggregating all payments to be made to any Person prior to such rounding), (k) “U.S.” or “United States” means the United States of America, (l) the word “either,” “or,” “neither,” “nor” and “any” are not exclusive, (m) the words “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement including the schedules and exhibits hereto, (n) the word “any” means “any and all,” (o) the words “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form, (p) no provision of this Agreement is to be construed to require, directly or indirectly, any Person to take any action, or omit to take any action, to the extent such action or omission would violate applicable Legal Requirements, (q) the term “made available to Purchaser” and words of similar import means that copies of relevant documents, instructions or materials were made available to Purchaser and Purchaser’s Representatives in the data room on or prior to 11:59 p.m. Eastern time on July 20, 2024 and were so available from such time through the date hereof, (r) whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified, and if the last day of the time period for the giving of any notice or the taking of any action required under this Agreement falls on a day that is not a Business Day, the time period for giving such notice or taking such action shall be extended through the next Business Day following the original expiration date of such, (s) when calculating the period of time before which, within which or following which any action is to be taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and the ending date shall be included, (t) the phrases “ordinary course” and “ordinary course of business” mean “ordinary course of business consistent with past practices” and (u) Seller and Purchaser have each participated in the negotiation and drafting of the Transaction Documents and if an ambiguity or question of interpretation should arise, the Transaction Documents shall be construed as if drafted jointly by the parties thereto and no presumption or burden of proof shall arise favoring or burdening any party by virtue of the authorship of any of the provisions in the Transaction Documents.

13.3          Entire Agreement. This Agreement and the other Transaction Documents, including the other documents, agreements, exhibits and schedules specifically referred to herein and therein, constitute the entire agreement between and among the parties hereto with regard to the subject matter hereof and supersede all prior agreements and understandings with regard to such subject matter.

13.4          Amendment and Waivers. This Agreement shall not be amended, modified, altered or supplemented in whole or in part, except by supplemental agreement or amendment signed by Seller and Purchaser. No failure or delay by a party in exercising any right or remedy provided by Legal Requirement or under this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. Any extension or waiver of the requirements hereunder shall be valid only if set forth in an instrument in writing by the party to be bound hereby. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not be construed as a waiver of any other provision or any subsequent breach. Notwithstanding the foregoing, in the event that any party seeks an amendment, modification, consent or waiver to any of (a) this sentence, (b) Section 13.14, (c) Section 13.7(c), (d) Section 13.11(c) or (e) the definition of “Financing Source” herein, in each case, that adversely affects the Financing Sources, the prior written consent of the applicable Financing Entity shall be required before any such amendment, modification, consent or waiver may become effective.

13.5          Successors and Assigns. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that no party hereto may assign any right or obligation hereunder without the prior written consent of the other parties hereto, and any assignment in violation of this Section 13.5 shall be null and void. Notwithstanding the foregoing, (a) Seller may transfer or assign in whole or in part, its rights and interests (but not its obligations) hereunder to any of its Affiliates without Purchaser’s prior written consent (but with notice to Purchaser), (b) Purchaser may transfer or assign in whole or in part, its rights and interests (but not its obligations) hereunder to any of its controlled Affiliates without Seller’s prior written consent (but with notice to Seller) except to the extent that such transfer or assignment would require an amount of Taxes to be withheld under applicable Legal Requirement from any amounts otherwise payable hereunder in excess of the amount of Taxes that would be required to be withheld absent such transfer or assignment and (c) Purchaser may transfer or assign, in whole or in part, its rights and interests (but not its obligations) hereunder to (i) any Financing Source (or any agent on behalf of all such Financing Sources) as collateral for security purposes in connection with the Debt Financing (including for purposes of creating a security interest herein or otherwise assigning as collateral in respect of such financing) or (ii) the R&W Insurance Policy provider (but solely in the case of Fraud). Notwithstanding anything to the contrary in this Section 13.5, no assignment shall relieve the assigning party of its obligations hereunder.

13.6          Governing Law. This Agreement, the rights of the parties and all Proceedings arising in whole or in part under or in connection herewith, will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.

13.7	Jurisdiction; Venue; Service of Process.

(a)            Each of the parties hereto, by its execution hereof, hereby (i) irrevocably submits to the exclusive jurisdiction of the Delaware Chancery Court (or, if the Delaware Chancery Court declines to accept jurisdiction, any United States District Court located in the State of Delaware, or if the United States District Courts located in the State of Delaware decline to accept jurisdiction, any state court of the State of Delaware) for the purpose of any Proceeding among the parties hereto relating to or arising in whole or in part under or in connection with the Transaction Documents or the Transactions, (ii) waives to the extent not prohibited by applicable Legal Requirements, and agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such Proceeding brought in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred or removed to any court other than one of the above-named courts, or should be stayed by reason of the pendency of some other Proceeding in any other court other than one of the above-named courts or that the Transaction Documents or the subject matter hereof or thereof may not be enforced in or by such court and (iii) agrees not to commence any such Proceeding other than before one of the above-named courts. Notwithstanding the previous sentence, a party may commence any Proceeding in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.

(b)            Each of the parties hereto (i) consents to service of process in any Proceeding among any of the parties hereto relating to or arising in whole or in part under or in connection with the Transaction Documents or the Transactions in any manner permitted by Delaware law, (ii) agrees that service of process made in accordance with the foregoing clause (i) or made by registered or certified mail, return receipt requested, at its address specified pursuant to Section 13.13, will constitute good and valid service of process in any such Proceeding and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such Proceeding any claim that service of process made in accordance with the foregoing clause (i) or (ii) does not constitute good and valid service of process. This Section 13.7 shall not apply to any dispute that is required to be decided by the Settlement Accountant.

(c)            Notwithstanding the foregoing and without limiting Sections 13.6, 13.7(a) and 13.7(b), each of Seller and the Acquired Companies (on behalf of themselves and their Affiliates) (i) agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Financing Sources in any way relating to this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby, including, but not limited to, any dispute arising out of or relating in any way to the Debt Commitment Documents or any other letter or agreement related to the Debt Financing or the performance thereof (any such action, a “Financing Related Action”) in any forum other than any State or Federal court sitting in the Borough of Manhattan in the City of New York, (ii) waives any right to trial by jury in respect of any Financing Related Action and (iii) agrees that any Financing Related Action shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflicts of law rules of such State that would result in the application of the laws of any other State; except as otherwise expressly provided in the Debt Commitment Documents.

13.8          Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LEGAL REQUIREMENTS THAT CANNOT BE WAIVED, THE PARTIES HERETO KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THE TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES HERETO AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES HERETO UNCONDITIONALLY AND IRREVOCABLY TO WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN OR AMONG THEM RELATING TO THE TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS AND THAT SUCH PROCEEDINGS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.8.

13.9	Specific Performance.

(a)            Each party hereto acknowledges and agrees that (i) the other party will be irreparably damaged if this Agreement is not performed in accordance with its terms and (ii) any breach of this Agreement would not be adequately compensated by monetary damages, even if available. Accordingly, in addition to any other right or remedy to which a party may be entitled, at law or in equity, that party shall be entitled to equitable relief (including an injunction or injunctions) to prevent breaches or threatened breaches of this Agreement and to compel specific performance of the terms and provisions of this Agreement (including to require the other party to consummate the Closing as contemplated hereby), without (A) the need for proof of actual damages and (B) the requirement of posting any bond or other security or indemnity. Furthermore, each party hereto agrees not to raise (1) any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement, or to specifically enforce the terms of this Agreement (including to require the other party to consummate the Closing as contemplated hereby) (except that the party opposing specific performance may contest the existence of any breach or threatened breach), or (2) that a remedy of monetary damages would provide an adequate remedy for any such breach.

(b)            Each party hereto further agrees that (i) by seeking the remedies provided for in this Section 13.9 a party shall not in any respect waive its right to seek any other form of relief that may be available to such party under this Agreement or in the event that the remedies provided for in this Section 13.9 are not available or otherwise are not granted, and (ii) nothing set forth in this Section 13.9 shall require any party to institute any Proceeding for (or limit any party’s right to institute any action for) specific performance under this Section 13.9 prior to or as a condition to exercising any termination right under Article XI, nor shall the commencement of any action pursuant to this Section 13.9 or anything set forth in this Section 13.9 restrict or limit any such party’s right to terminate this Agreement in accordance with Article XI or pursue any other remedies under this Agreement that may be available then or thereafter. If any party hereto brings any Proceeding to enforce specifically the performance of the terms and conditions hereof by the other party, the party bringing such action may petition a court to extend the Outside Date (notwithstanding the termination provisions of Section 11.1(d)) (and the other party hereto shall not assert that the extension of the Outside Date is an inappropriate remedy if the other party is in material breach of any covenant contained in this Agreement in any manner that shall have been a principal cause of the failure of the Closing to occur by the Outside Date), so long as the party bringing such action is actively seeking a court order for an injunction or injunctions or to specifically enforce the terms and provisions of this Agreement.

13.10        Severability. Each of the provisions of this Agreement is severable, such that if any such provision is held to be or becomes invalid or unenforceable in any respect under the Legal Requirements of any jurisdiction, it shall have no effect in that respect in such jurisdiction and the parties hereto shall use all reasonable efforts to replace it in that respect with a valid and enforceable substitute provision the effect of which is as close to its intended effect as possible. Notwithstanding the foregoing, the parties hereto intend that the remedies and limitations thereon contained in Article XI and Article XII be construed as an integral provision of this Agreement and that such remedies and limitations shall not be severable in any manner that increases a party’s liability or obligations hereunder or under the Debt Financing Commitment.

13.11	Certain Releases.

(a)            Except in the case of Fraud or as otherwise expressly set forth in any Transaction Document, Purchaser, for itself and on behalf of its controlled Affiliates (including, after the Closing, the Acquired Companies) and its and their respective successors and assigns, in each case, in their capacity as such, acknowledges and agrees that, from and after the Closing, to the fullest extent permitted by Legal Requirement, any and all rights, claims, demands, obligations, liabilities, defenses, setoffs, counterclaims, actions and causes of action it has, had, may have or may have had against any Seller or any of its Affiliates (other than the Acquired Companies) or its or their Representatives (each, a “Seller Releasee”), in each case in their capacity as such, to the extent arising out of (i) Seller’s ownership or operation of the Business, (ii) the negotiation, execution or performance of any Transaction Document or the Transactions, (iii) any inaccuracy or breach of any representation or warranty or the breach of any covenant, undertaking or other agreement contained in this Agreement, the Seller Disclosure Schedules and Exhibits hereto or in any certificate contemplated hereby and delivered in connection herewith or (iv) any information (whether written or oral), documents or materials furnished in connection with the Transactions, are hereby irrevocably and unconditionally waived and released and covenant not to initiate or maintain any Proceeding relating to the foregoing against any Seller Releasee; provided that nothing contained in this Agreement shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any party hereto or any of their respective Affiliates with respect to enforcing the terms of any Transaction Document.

(b)            Except in the case of Fraud or as otherwise expressly set forth in any Transaction Document, Seller, for itself and on behalf of its controlled Affiliates, and its and their respective successors and assigns, in each case, in their capacity as such, acknowledges and agrees that, from and after the Closing, to the fullest extent permitted by Legal Requirement, any and all rights, claims, demands, obligations, liabilities, defenses, setoffs, counterclaims, actions and causes of action it has, had, may have or may have had against any of (x) the Acquired Companies or their Representatives, in each case, in their capacity as such, or (y) Purchaser or any of its Affiliates (other than the Acquired Companies) or their Representatives (each of the Persons described in clauses (x) and (y), a “Purchaser Releasee”), in each case, in their capacity as such and in each case to the extent arising out of (i) solely in the case of the Acquired Companies, the operation of the Business prior to the Closing Date, (ii) the negotiation, execution or performance of any Transaction Document or the Transactions, (iii) any inaccuracy or breach of any representation or warranty or the breach of any covenant, undertaking or other agreement contained in this Agreement, the Purchaser Disclosure Schedule and Exhibits hereto or in any certificate contemplated hereby and delivered in connection herewith or (iv) any information (whether written or oral), documents or materials furnished in connection with the Transactions, are hereby irrevocably and unconditionally waived and released and covenant not to initiate or maintain any Proceeding relating to the foregoing against any Purchaser Releasee; provided that nothing contained in this Agreement shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any party hereto or any of their respective Affiliates with respect to enforcing the terms of any Transaction Document.

(c)            Notwithstanding anything in this Agreement to the contrary, each of Purchaser and Seller acknowledge and agree that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any Seller Releasee (other than Seller) or any Purchaser Releasee (other than Purchaser), as applicable, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Legal Requirement, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Seller Releasee (other than Seller) for any obligation of Seller under this Agreement or any documents or instruments delivered in connection with this Agreement or by any Purchaser Releasee (other than Purchaser) for any obligation of Purchaser under this Agreement or any documents or instruments delivered in connection with this Agreement, for any claim based on, in respect of or by reason of such obligations or their creation.

(d)            Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates will not have any rights or claims, regardless of the legal theory under which such right or claim may be asserted, whether sounding in contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory, and will not seek any such rights or claims against any of the Financing Sources in connection with this Agreement, the Debt Commitment Documents or the Debt Financing, and no Financing Source shall have any liability to Seller or any of its Affiliates for any obligations or liabilities of the parties or for any claim (regardless of the legal theory under which such claim may be asserted, whether sounding in contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory), based on, in respect of, or by reason of, the transactions contemplated hereby, the Debt Commitment Documents or the Debt Financing. Nothing in this Section 13.11 shall in any way limit or qualify the rights and obligations of the Financing Sources and the other parties to the Debt Commitment Documents or the Debt Financing (or the Definitive Agreements) to each other thereunder or in connection therewith.

(e)            The parties hereto unconditionally and irrevocably acknowledge and agree that (i) the agreements contained in this Section 13.11 are an integral part of this Agreement and the Transactions and (ii) without the agreements set forth in this Section 13.11, the other party would not enter into this Agreement or otherwise agree to consummate the Transactions.

13.12        The Seller Disclosure Schedule, Exhibits and Schedules. The Seller Disclosure Schedule, schedules and exhibits attached to this Agreement shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. The representations and warranties of Seller set forth in this Agreement are made and given subject to the disclosures contained in the Seller Disclosure Schedule. Inclusion of information in the Seller Disclosure Schedule will not be construed as an admission that such information is material to the business, operations or condition (financial or otherwise) of Seller, the IP Seller IP, the Business or any Acquired Company. Disclosure of any matter in any Section of the Seller Disclosure Schedule shall be deemed to be disclosure of such matter with respect to any other schedule of the Seller Disclosure Schedule to which such matter is specifically cross referenced or to which such matter relates to the extent it is reasonably apparent on the face of such disclosure that such disclosure applies to the relevant representation or warranty of such other Section. The headings contained in the Seller Disclosure Schedule are inserted for convenience only and shall not be considered in interpreting or construing any of the provisions contained in this Agreement.

13.13        Notices. Any notice required or permitted to be given hereunder shall be sufficient if in writing and shall be deemed to have been duly given or made: (a) when personally delivered, (b) the day of sending, if sent by email transmission prior to 9:00 p.m. Eastern time on any Business Day or the next succeeding Business Day if sent after 9:00 p.m. Eastern time on any Business Day or on any day other than a Business Day or (c) one (1) Business Day after deposit with an overnight courier service, in each case to the addresses, email addresses and attention parties indicated below (or such other address, email address or attention party as the recipient party has specified by prior notice given to the sending party in accordance with this Section 13.13):

To Purchaser at:

Terex Corporation

301 Merritt 7, 4th Floor

Norwalk, CT 06851

Attention:	Scott Posner
Email:	[Email]
---	---

With copies (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attention:	Maxwell Yim

Philip Richter

Email:	Maxwell.Yim@FriedFrank.com

Philip.Richter@FriedFrank.com

To Seller at:

Dover Corporation

3005 Highland Parkway

Downers Grove, IL 60515

Attention:	Ivonne M. Cabrera, SVP & General Counsel;

Matthew S. Gaudette, VP & Associate Counsel, M&A

Email:	[Email];

[Email]

With copies (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, NY 10001

Attention:	Brandon Van Dyke

Dohyun Kim

Email:	Brandon.VanDyke@skadden.com

Dohyun.Kim@skadden.com

13.14        No Third-Party Beneficiaries. Except for Section 7.4 (with respect to the D&O Indemnitees and their respective successors, heirs and legal representatives), Section 13.11 (with respect to the Seller Releasees and Purchaser Releasees), Section 13.15 (with respect to Skadden) and this Section 13.14, the last sentence of Section 13.4, Section 13.7(c) and Section 13.11(c) (with respect to the Financing Sources), a Person who is not a party to this Agreement shall have no right to enforce any of its terms and this Agreement is not intended to give any Person other than the parties to this Agreement and their permitted assigns any rights hereunder.

13.15        Provision Regarding Legal Representation. It is acknowledged by each party hereto that Seller has retained Skadden to act as its counsel in connection with the Transactions and that Skadden has not acted as counsel for any other party in connection with such Transactions. The parties hereto agree that, in the event that a dispute arises after the Closing between Purchaser, any Acquired Company or their Affiliates, on the one hand, and Seller or its Affiliates, on the other hand, Skadden may represent Seller and its Affiliates in such dispute even though the interests of Seller and its Affiliates may be directly adverse to Purchaser, the Acquired Companies or their Affiliates, and even though Skadden may have represented any of the Acquired Companies or any of their Affiliates in a matter substantially related to such dispute. Purchaser further agrees that, all communications among Seller, the Acquired Companies or any of their respective Affiliates, on the one hand, and their counsel, including Skadden, on the other hand, that relate in any way to the Transactions shall be deemed attorney-client privileged communications (collectively, the “Privileged Communications”) and the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and, notwithstanding anything to the contrary contained in this Agreement, shall not pass to or be claimed by Purchaser, any Acquired Company or any of their Affiliates. The Privileged Communications are (and upon the Closing shall remain) the property of Seller, and from and after the Closing, none of Purchaser, the Acquired Companies, their Affiliates or any Person purporting to act on behalf of or through Purchaser, the Acquired Companies or their Affiliates will seek to access, use or obtain such communications, whether by seeking a waiver of the attorney-client privilege or through other means. As to any such Privileged Communications made prior to the Closing Date, Purchaser, together with its Affiliates (including the Acquired Companies), successors and assigns, further agree that no such party may access, use or rely on any of the Privileged Communications in any Proceeding against or involving any of the parties hereto after the Closing. The Privileged Communications may be used by Seller in connection with any dispute that relates in any way to the Transactions. If Seller uses any Privileged Communications in connection with any dispute such documents and information shall no longer be deemed to be protected by any privilege; providedthat Purchaser and Seller reserve their rights to seek or oppose discovery relating to any other Privileged Communications. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser, any Acquired Company or any of their Affiliates, on the one hand, and any other Person or Persons (other than a party to this Agreement or any of its respective Affiliates), on the other hand, after the Closing, such Acquired Company and its Affiliates may assert the attorney-client privilege to prevent disclosure of the Privileged Communications to such Person or Persons; provided, however, that none of the Acquired Companies nor their Affiliates may waive such privilege without the prior written consent of Seller.

13.16        No Other Duties. The only duties and obligations of the parties hereto under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, Legal Requirement or equity, or under any principle of fiduciary obligation.

13.17        Reliance on Counsel and Other Advisors. Each party hereto has consulted such legal, financial, technical or other experts as it deems necessary or desirable before entering into this Agreement.

13.18        Public Announcements. None of Seller or its Affiliates, Purchaser or its Affiliates or any representative of any such party shall issue or cause the publication of any press release or public announcement in respect of this Agreement or the Transactions without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except (a) as may be required by Legal Requirement or stock exchange rules or as Seller or Purchaser deems necessary or advisable to comply with their respective SEC filing requirements, in which case the party seeking to publish such press release or public announcement shall use reasonable efforts to provide the other party a reasonable opportunity to comment on such press release or public announcement in advance of such publication; provided that the foregoing will not restrict or prohibit Purchaser, Seller or any of the Acquired Companies from making any announcement in compliance with the terms and conditions of this Agreement to its respective employees, customers, suppliers, vendors and other business relations (in each case, in their capacity as such) to the extent Seller or any Acquired Company reasonably determines in good faith that such announcement is necessary or advisable (but only to the extent the context of which is consistent with that of any prior announcement made in compliance with this Section 13.18), or (b) to the extent the contents of such press release or public announcement or filing have previously been released publicly by a party or are consistent in all material respects with materials or disclosures that have previously been released publicly, in each case, without violation of this Section 13.18. The parties hereto agree that the initial press release to be issued with respect to the execution of this Agreement shall be in the form agreed to by Seller and Purchaser. Notwithstanding the foregoing, this Section 13.18 shall not apply to the disclosure of the express terms of this Agreement in any public filing required by Legal Requirement, stock exchange rules or SEC filing requirements.

13.19        Counterparts. This Agreement may be signed in any number of counterparts, including via DocuSign or other electronic signature or electronic scan copies thereof delivered by electronic mail, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

[Signature pages follow.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

TEREX CORPORATION
By:	/s/ Simon A. Meester
Name:	Simon A. Meester
Title:	President and Chief Executive Officer
DOVER CORPORATION
By:	/s/ Richard J. Tobin
Name:	Richard J. Tobin
Title:	Chairman, President & Chief Executive Officer

[Signature Page to Transaction Agreement]

Exhibit A

IP Seller IP

| 1 |

| --- |

Exhibit B

Form of Transition Services Agreement

| 1 |

| --- |

Exhibit C

Intellectual Property Assignment Agreement

| 1 |

| --- |

Exhibit D

R&W Insurance Policy

| 1 |

| --- |

Schedule A

Accounting Principles

| Schedule A |

| --- |

Exhibit 2.2

Execution Version

FIRST AMENDMENT TO TRANSACTION AGREEMENT

THIS FIRST AMENDMENT TO TRANSACTION AGREEMENT (“Amendment”) is made and entered into as of October 8, 2024, by and between Dover Corporation, a Delaware corporation (“Seller”) and Terex Corporation, a Delaware corporation (“Purchaser”).

RECITALS:

A.           WHEREAS, Seller and Purchaser have entered into that certain Transaction Agreement, dated as of July 21, 2024 (the “Transaction Agreement”);

B.            WHEREAS, in accordance with Section 13.4 of the Transaction Agreement, Seller and Purchaser may amend the Transaction Agreement by written agreement; and

C.            WHEREAS, Seller and Purchaser desire to amend the Transaction Agreement on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

1.             Definitions. Capitalized terms used in this Amendment without definition shall have the meanings given to them in the Transaction Agreement.

2.             Exhibit A. Exhibit A attached to the Transaction Agreement is hereby deleted in its entirety and replaced with Exhibit A attached to this Amendment. All references in the Transaction Agreement to such Exhibit shall be deemed to refer to the Exhibit attached to this Amendment.

3.             Miscellaneous. The Transaction Agreement is amended only as expressly provided in this Amendment and shall otherwise remain in full force and effect. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Transaction Agreement, the terms of this Amendment shall, in all instances, control and prevail. The provisions set forth in Article XIII of the Transaction Agreement are herein incorporated by reference, mutatis mutandis, as if set forth in full herein.

[Remainder of Page Intentionally LeftBlank; Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.

DOVER CORPORATION
By:	/s/ Matthew S. Gaudette
Name:	Matthew S. Gaudette
Title:	Vice President & Assistant Secretary

[Signature Page – Amendment to TransactionAgreement]

TEREX CORPORATION
By:	/s/ Scott Posner
Name:	Scott Posner
Title:	SVP, General Counsel and Secretary

[Signature Page – Amendment to TransactionAgreement]

Exhibit 4.1

EXECUTION VERSION

TEREX CORPORATION,

as Issuer,

The Subsidiary Guarantors (as defined herein)

and

HSBC BANK USA, NATIONAL ASSOCIATION,

as Trustee

INDENTURE

Dated as of October 8, 2024

6.250% Senior Notes Due 2032

TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01.	Definitions	1
SECTION 1.02.	Compliance Certificates and Opinions	45
SECTION 1.03.	Form of Documents Delivered to Trustee	46
SECTION 1.04.	Acts of Holders	47
SECTION 1.05.	Notices, Etc., to Trustee and the Company	48
SECTION 1.06.	Notice to Holders; Waiver	48
SECTION 1.07.	Trust Indenture Act	49
SECTION 1.08.	Effect of Headings and Table of Contents	49
SECTION 1.09.	Successors and Assigns	49
SECTION 1.10.	Separability Clause	49
SECTION 1.11.	Benefits of Indenture	49
SECTION 1.12.	Governing Law	49
SECTION 1.13.	Non-Business Day	49
SECTION 1.14.	Immunity of Incorporators, Stockholders, Directors and Officers	50
SECTION 1.15.	[Reserved]	50
SECTION 1.16.	Language of Notices, Etc	50
SECTION 1.17.	Calculations	50
SECTION 1.18.	Counterpart Originals	50
SECTION 1.19.	No Adverse Interpretation of Other Agreements	51
SECTION 1.20.	USA Patriot Act	51
ARTICLE II
Note Forms
SECTION 2.01.	Forms of Notes	51
SECTION 2.02.	Form of Trustee’s Certificate of Authentication	51
SECTION 2.03.	Notes in Global Form	51
SECTION 2.04.	CUSIP Numbers	51
ARTICLE III
The Notes
SECTION 3.01.	Title; Payment and Terms	52
SECTION 3.02.	[Reserved]	52
SECTION 3.03.	Execution, Authentication, Delivery and Dating	52
SECTION 3.04.	Temporary Notes	53
SECTION 3.05.	Registration, Registration of Transfer and Exchange	53
SECTION 3.06.	Mutilated, Destroyed, Lost and Stolen Notes	54

SECTION 3.07.	Payment of Interest; Interest Rights Preserved	55
SECTION 3.08.	Persons Deemed Owners	56
SECTION 3.09.	Cancelation	56
SECTION 3.10.	Computation of Interest	57
SECTION 3.11.	Ranking	57
SECTION 3.12.	Issuance of Additional Notes	57
ARTICLE IV
Legal Defeasance and Covenant Defeasance; Satisfaction and Discharge
SECTION 4.01.	Option to Effect Legal Defeasance or Covenant Defeasance	57
SECTION 4.02.	Legal Defeasance and Covenant Defeasance	58
SECTION 4.03.	[Reserved]	58
SECTION 4.04.	Conditions to Legal or Covenant Defeasance	58
SECTION 4.05.	Satisfaction and Discharge of Indenture	60
SECTION 4.06.	Survival of Certain Obligations	61
SECTION 4.07.	Acknowledgment of Discharge by Trustee	61
SECTION 4.08.	Application of Trust Moneys	62
SECTION 4.09.	Repayment to the Company; Unclaimed Money	62
SECTION 4.10.	Reinstatement	62
ARTICLE V
Remedies
SECTION 5.01.	Events of Default	63
SECTION 5.02.	Acceleration of Maturity	66
SECTION 5.03.	Collection of Indebtedness and Suits for Enforcement by Trustee	66
SECTION 5.04.	Trustee May File Proofs of Claim	67
SECTION 5.05.	Trustee May Enforce Claims Without Possession of Notes	68
SECTION 5.06.	Application of Money Collected	68
SECTION 5.07.	Limitation on Suits	68
SECTION 5.08.	Unconditional Right of Holders To Receive Principal (and Premium, If Any) and Interest, If Any	69
SECTION 5.09.	Restoration of Rights and Remedies	69
SECTION 5.10.	Rights and Remedies Cumulative	69
SECTION 5.11.	Delay or Omission Not Waiver	69
SECTION 5.12.	Control by Holders	69
SECTION 5.13.	Waiver of Past Defaults	70
SECTION 5.14.	Undertaking for Costs	70
SECTION 5.15.	Waiver of Stay, Extension or Usury Laws	70

ii

ARTICLE VI
The Trustee
SECTION 6.01.	Certain Duties and Responsibilities	71
SECTION 6.02.	Notice of Defaults	72
SECTION 6.03.	Certain Rights of Trustee	72
SECTION 6.04.	Not Responsible for Recitals or Issuance of Notes	74
SECTION 6.05.	May Hold Notes	74
SECTION 6.06.	Money Held in Trust	74
SECTION 6.07.	Compensation and Reimbursement	75
SECTION 6.08.	[Reserved]	75
SECTION 6.09.	Company Representation and Warranty	75
SECTION 6.10.	Corporate Trustee Required; Eligibility	76
SECTION 6.11.	Resignation and Removal; Appointment of Successor	76
SECTION 6.12.	Acceptance of Appointment by Successor	77
SECTION 6.13.	Merger, Conversion, Consolidation or Succession to Business	77
SECTION 6.14.	[Reserved]	78
SECTION 6.15.	Authenticating Agents	78
ARTICLE VII
Holders’ Lists and Reports by Trustee and the Company
SECTION 7.01.	Company To Furnish Trustee Names and Addresses of Holders	79
SECTION 7.02.	Preservation of Information; Communications to Holders	79
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
SECTION 8.01.	Company May Consolidate, Etc., Only on Certain Terms	80
SECTION 8.02.	Successor Person Substituted	81
SECTION 8.03.	Subsidiaries May Consolidate, Etc., Only on Certain Terms	81
ARTICLE IX
Supplemental Indentures
SECTION 9.01.	Supplemental Indentures Without Consent of Holders	82
SECTION 9.02.	Supplemental Indentures With Consent of Holders	83
SECTION 9.03.	Execution of Supplemental Indentures	85
SECTION 9.04.	Effect of Supplemental Indentures	85
SECTION 9.05.	Reference in Notes to Supplemental Indentures	85

iii

ARTICLE X
Covenants
SECTION 10.01.	Payment of Principal (and Premium, If Any) and Interest, If Any	85
SECTION 10.02.	Maintenance of Office or Agency	85
SECTION 10.03.	Money for Notes Payments To Be Held in Trust	86
SECTION 10.04.	Statements as to Compliance	87
SECTION 10.05.	Corporate Existence	87
SECTION 10.06.	[Reserved]	87
SECTION 10.07.	[Reserved]	87
SECTION 10.08.	Statement by Officers as to Default	87
SECTION 10.09.	SEC Reports	87
SECTION 10.10.	Limitation on Restricted Payments	89
SECTION 10.11.	Limitation on Restrictions on Distributions from Restricted Subsidiaries	93
SECTION 10.12.	Limitation on Affiliate Transactions	95
SECTION 10.13.	Limitation on Indebtedness and Preferred Stock	97
SECTION 10.14.	Limitation on Sale/Leaseback Transactions	103
SECTION 10.15.	Change of Control	103
SECTION 10.16.	Limitation on Sales of Assets and Subsidiary Stock	105
SECTION 10.17.	Limitation on Liens	108
SECTION 10.18.	Limitation on Designations of Unrestricted Subsidiaries	109
SECTION 10.19.	Future Subsidiary Guarantors	110
SECTION 10.20.	Suspended Covenants	110
SECTION 10.21.	Withholding Tax	111
SECTION 10.22.	Financial Calculations for Limited Condition Acquisitions	111
ARTICLE XI
Redemption of Notes
SECTION 11.01.	Applicability of this Article	112
SECTION 11.02.	Election to Redeem; Notice to Trustee	112
SECTION 11.03.	[Reserved]	112
SECTION 11.04.	[Reserved]	112
SECTION 11.05.	Deposit of Redemption Price	112
SECTION 11.06.	Notes Payable on Redemption Date	112
SECTION 11.07.	Notes Redeemed in Part	113
SECTION 11.08.	Optional Redemption of the Notes	113
SECTION 11.09.	Selection and Notice	114
SECTION 11.10.	Mandatory Redemption	115
SECTION 11.11.	Special Mandatory Redemption	115

iv

ARTICLE XII
Subsidiary Guarantees
SECTION 12.01.	Subsidiary Guarantee Obligations	116
SECTION 12.02.	Limitation on Liability	118
SECTION 12.03.	Successors and Assigns	118
SECTION 12.04.	No Waiver	118
SECTION 12.05.	Modification	118
SECTION 12.06.	Contribution	118
SECTION 12.07.	Execution and Delivery	118
SECTION 12.08.	Benefits Acknowledged	119
SECTION 12.09.	Release of Subsidiary Guarantees	119
Appendix 1	Rule 144A/Regulation S Appendix
---	---
Annex 1	Regulation S Certificate
Annex 2	Rule 144A Certificate
Exhibit A	Form of Note
Exhibit B	Form of Subsidiary Guarantee

INDENTURE dated as of October 8, 2024, among TEREX CORPORATION, a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 45 Glover Avenue, 4th Floor, Norwalk, CT 06850 (hereinafter called the “Company”), the Subsidiary Guarantors (as defined below) and HSBC Bank USA, National Association, a national banking association, as Trustee (hereinafter called the “Trustee”).

RECITALS OF THE COMPANY

The Company deems it necessary to issue for its lawful purposes securities evidencing its senior unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of up to $750,000,000 aggregate principal amount of the Company’s 6.250% Senior Notes due 2032 (together with any Notes issued in replacement thereof, the “Initial Notes”), and, if and when issued, any Additional Notes (as defined below) (collectively, the “Notes”).

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided.

In addition, the Subsidiary Guarantors party hereto have duly authorized the execution and delivery of this Indenture as guarantors of the Notes. All things necessary to make this Indenture a valid agreement of each Subsidiary Guarantor, in accordance with its terms, has been done, and each Subsidiary Guarantor has done all things necessary to make the Subsidiary Guarantees, when the Notes are executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of such Subsidiary Guarantor as hereinafter provided.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes thereof, as follows:

ARTICLE I

Definitions and Other Provisions of General Application

SECTION 1.01. Definitions. For all purposes of this Indenture and all Notes issued hereunder, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular;

(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date or time of such computation;

(d) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

(e) unless otherwise provided in this Indenture or in any Note, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.

Certain terms, used principally in Article III and Article VI, are defined in those Articles.

“Acquired Companies” means, collectively, The Heil Co., a Delaware corporation, So. Cal. Soft-Pak, Incorporated, a California corporation, Marathon Equipment Company, a Delaware corporation, and their respective Subsidiaries.

“Acquired Indebtedness” means (x) Indebtedness of a Person or any of its Subsidiaries (the “Acquired Person”) (i) existing at the time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or consolidates with the Company or any of its Restricted Subsidiaries or (ii) assumed in connection with the acquisition of assets from such Person or (y) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“Acquired Person” shall have the meaning specified in the definition of “Acquired Indebtedness”.

“Acquisition” means the acquisition by the Company, directly or indirectly, of the Acquired Companies and certain assets relating to the business of the Acquired Companies, along with associated intellectual property and other assets used in the business of the Acquired Companies, pursuant to the Acquisition Agreement.

“Acquisition Agreement” means the Transaction Agreement, dated as of July 21, 2024, between the Company and Dover Corporation, as it may be amended, modified or otherwise supplemented in accordance with its terms.

“Acquisition Closing Date” means the date of consummation of the Acquisition.

“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.

“Additional Notes” means any Notes issued after the date of this Indenture from time to time in accordance with the terms of this Indenture, including the provisions of Sections 3.01, 3.12, 10.13 and the Rule 144A/Regulation S Appendix (the “Appendix”) as part of the same series as the Initial Notes whether or not they bear the same CUSIP, ISIN or other Identifying Number.

“Affiliate” of any specified Person means any other Person which, directly or indirectly, is in control of, is controlled by or is under common control with such specified Person. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Appendix” shall have the meaning specified in the definition of “Additional Notes”.

“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:

(1) 1.0% of the principal amount of such Note; and

(2) the excess, if any, of (A) the present value at such Redemption Date of (i) the redemption price of such Note at October 15, 2027 (such redemption price being set forth in Section 11.08(b)), plus (ii) all required interest payments due on such Note through October 15, 2027 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate, as of such Redemption Date, plus 50 basis points; over (B) the principal amount of such Note.

“Asset Disposition” means any sale, lease, transfer, conveyance or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary, including any disposition by means of a merger or consolidation (each referred to for the purposes of this definition as a “disposition”), of:

(1) any shares of Capital Stock of a Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary (other than directors qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary);

(2) all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary; or

(3) any other assets of the Company or any Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary,

in each case other than:

(A) dispositions of (x) cash or Cash Equivalents or Investment Grade Securities or (y) property or equipment that is no longer used or that is uneconomical, obsolete, damaged, unnecessary, surplus or otherwise unsuitable or no longer required in the business of the Company or a Restricted Subsidiary;

(B) dispositions of assets (including issuances and sales of Capital Stock of Subsidiaries) in one or a series of related transactions for an aggregate consideration of less than $100.0 million for any such transaction or series of transactions;

(C) the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to the provisions set forth in Article VIII or any disposition that constitutes a Change of Control;

(D) any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 10.10;

(E) any disposition of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” to a Receivables Subsidiary in a Qualified Receivables Financing or to any Person in a factoring or similar transaction or transactions;

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

(G) any disposition of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(H) the sale, assignment, lease, sub-lease, rental, license, sub-license, consignment, conveyance or other disposition of equipment, inventory or other assets in the ordinary course of business (including leases or subleases with respect to real or personal property temporarily not in use or pending disposition, or not interfering in any material respect with the business) or the sale or discounting of accounts receivable or notes receivable in the ordinary course of business or in connection with the compromise, settlement or collection thereof or the conversion of accounts receivable to notes receivable;

(I) the sale of financial services products, including loans, leases, rental agreements or other arrangements with purchasers of equipment or (x) retail financing for the purchase or lease of equipment manufactured by the Company, its Restricted Subsidiaries or any other manufacturer whose products are from time to time sold through the Company, (y) other retail and wholesale financing programs reasonably related thereto and (z) insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products;

(J) any disposition of assets of the type specified in the definition of “Equipment Securitization Transaction” to an Equipment Subsidiary in a Qualified Equipment Financing or to any Person in a similar transaction or transactions;

(K) any disposition of assets of the type specified in the definition of “Equipment Securitization Transaction” (or a fractional undivided interest therein or a security interest therein) by an Equipment Subsidiary in a Qualified Equipment Financing;

(L) sales of assets received by the Company or any Restricted Subsidiary upon the foreclosure on a Lien;

(M) the unwinding of any Hedging Obligations;

(N) any exchange of assets for assets (including a combination of assets and cash and Cash Equivalents) related to the business of the Company and its Restricted Subsidiaries as conducted as of the Issue Date of comparable or greater market value or usefulness to the business of the Company and its Restricted Subsidiaries as a whole, as determined in good faith by the Company, which in the event of an exchange of assets with a Fair Market Value in excess of (1) $20.0 million shall be evidenced by an Officer’s Certificate, and (2) $30.0 million shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors of the Company;

(O) the grant in the ordinary course of business of any license or sub-license of patents, trademarks, know-how and any other intellectual property;

(P) any sale or other disposition deemed to occur with creating, granting or perfecting a Lien not otherwise prohibited by this Indenture or the note documents;

(Q) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business;

(R) foreclosures, condemnations or any similar action on assets;

(S) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and

(T) the lapse, abandonment or other disposition of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Company are no longer commercially reasonable to maintain or are not material to the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole.

“Attributable Debt” in respect of a Sale/Leaseback Transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP. Notwithstanding the foregoing, if such Sale/Leaseback Transaction results in a Finance Lease Obligation, the amount of Attributable Debt represented thereby will be determined in accordance with the definition of “Finance Lease Obligation”.

“Authenticating Agent” means any Person authorized to authenticate and deliver Notes on behalf of the Trustee pursuant to Section 6.15.

“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing:

(1) the sum of the products of numbers of years from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment, by

(2) the sum of all such payments.

“Bank Indebtedness” means:

(1) the Indebtedness outstanding or arising under the Credit Agreement pursuant to Section 10.13(b)(i);

(2) all obligations and other amounts owing to the holders of such Indebtedness or any agent or representative thereof outstanding or arising under the Credit Agreement (including, but not limited to, interest (including interest accruing on or after the filing of any petition in bankruptcy, reorganization or similar proceeding relating to the Company or any Restricted Subsidiary, whether or not a claim for such interest is allowed in such proceeding), fees, charges, indemnities, expense reimbursement obligations and other claims under the Credit Agreement); and

(3) all Hedging Obligations arising in connection therewith with any party to the Credit Agreement.

“Bank Products” means any facilities or services related to Cash Management Services.

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“Board of Directors” means the board of directors of the Company or any committee thereof duly authorized to act on behalf of such board.

“Board Resolution” means, when used with reference to the Company, (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification, or (2) a certificate signed by the director or directors or officer or officers to whom the Board of Directors of the Company shall have duly delegated its authority, and delivered to the Trustee.

“Business Day” means each day which is not a Legal Holiday.

“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into or exchangeable for such equity.

“Cash Equivalents” means:

(1) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof;

(2) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;

(3) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s;

(4) certificates of deposit or bankers acceptances maturing within one year from the date of acquisition thereof issued by (x) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or (y) a commercial banking institution organized and located in a country recognized by the United States of America, in each case having at the date of acquisition thereof combined capital and surplus of not less than $200 million (or the foreign currency equivalents thereof);

(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (4) above;

(6) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (5) above;

(7) U.S. dollars, Canadian dollars, pounds sterling, euros, any national currency of any participating member state of the EMU, held by the Company or any of its Restricted Subsidiaries from time to time in the ordinary course of business; and

(8) other short-term investments utilized by foreign Restricted Subsidiaries in accordance with normal investment practices for cash management.

“Cash Flow” for any period means the Consolidated Net Income for such period, plus, without duplication and (other than with respect to clauses (9) and (10) of this definition) to the extent deducted (and not added back) in determining Consolidated Net Income for such period, the sum of:

(1) the aggregate amount of income, profits, capital and franchise tax expense;

(2) Consolidated Interest Expense;

(3) depreciation expense and amortization expense;

(4) any expenses or other charges Incurred during such period (other than depreciation or amortization expense) in connection with any acquisition, Permitted Investment, recapitalization, Asset Dispositions, issuance or incurrence of Indebtedness, Equity Offering, refinancing transaction or amendment or modification of any debt instrument (in each case, (i) including any such transactions consummated prior to the Issue Date, (ii) whether or not any such transaction is undertaken but not completed, (iii) whether or not such transaction is permitted by this Indenture and (iv) including expenses or charges of any direct or indirect parent company of the Company);

(5) all non-cash charges, impairment charges (including bad debt expense), write offs or write downs or amortization of intangibles, in each case, reducing Consolidated Net Income for such period (other than any recurring non-cash charges to the extent such charges represent an accrual of or reserve for cash expenditures in any future period);

(6) all non-cash adjustments made to translate foreign assets and liabilities for changes in foreign exchange rates made in accordance with ASC 830 for such period;

(7) the aggregate amount of letter of credit fees paid during such period;

(8) all infrequent, non-recurring or unusual charges during such period;

(9) the amount of pro forma “run rate” cost savings, operating expense reductions and cost synergies (but not, for the avoidance of doubt, revenue synergies) (in each case, net of amounts actually realized and only to the extent reasonably identifiable and factually supportable (in each case, as determined by the Company in good faith)) related to the Transactions that are projected by the Company in good faith to result from actions that either have been taken, with respect to which substantial steps have been taken or that are expected to be taken within 18 months of the Issue Date (in the good faith determination of the Company);

(10) the amount of pro forma “run rate” cost savings, operating expense reductions and cost synergies (but not, for the avoidance of doubt, revenue synergies) (in each case net of amounts actually realized and only to the extent reasonably identifiable and factually supportable (in each case, as determined by the Company in good faith)) related to acquisitions, dispositions and other specified transactions, or related to cost savings initiatives that are projected by the Company in good faith to result from actions that have been taken, with respect to which substantial steps have been taken or that are expected to be taken within 18 months after the date of consummation of such acquisition, disposition or other specified transaction or the initiation of such initiative (in the good faith determination of the Company); provided that the amount added to Cash Flow pursuant to this clause (10) for such period shall be capped at an amount equal to 25.0% of Cash Flow for such period (determined after giving effect to such adjustment without giving effect to this proviso);

(11) the amount of any restructuring charges and business optimization expenses, including charges related to the closure, reconfiguration and/or consolidation of facilities and costs to relocate employees, integration and transaction costs, retention charges, severance costs, contract termination costs, recruiting and signing bonuses and expenses, systems establishment costs, systems conversion costs, expenses attributable to the implementation of costs savings initiatives, as well as expenses in connection with any transition services or similar agreements and costs consisting of professional consulting or other fees relating to any of the foregoing;

(12) adjustments and add-backs used in connection with the calculations of “Terex Adjusted EBITDA”, “ESG Adjusted EBITDA” and “Total Pro Forma Adjusted EBITDA” as set forth in the sections titled “Summary Historical Financial Information of Terex”, “Summary Historical Financial Information of ESG” and “Summary Pro Forma Financial Information” in the Offering Memorandum to the extent such adjustments and add-backs continue to be applicable to such period;

(13) expenses or charges related to the Acquisition to remove corporate allocations from Dover Corporation or its Subsidiaries which are not related to the standalone operations of the Acquired Companies;

(14) earn-out and similar obligations and adjustments thereof incurred in connection with any acquisition or other Investment permitted hereunder and paid or accrued during such period; and

(15) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization or such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of, and resulting from the, initial application of FASB Accounting Standards Codification 715;

and minus, without duplication and to the extent added to revenues in determining Consolidated Net Income for such period, (i) all infrequent, non-recurring or unusual gains during such period and (ii) all non-cash adjustments made to translate foreign assets and liabilities for changes in foreign exchange rates made in accordance with ASC 830, all as determined on a consolidated basis with respect to the Company and its Restricted Subsidiaries in accordance with GAAP.

Notwithstanding clause (5) above, there shall be deducted from Cash Flow in any period any cash expended in such period that funds a non-recurring, non-cash charge accrued or reserved in a prior period which was added back to Cash Flow pursuant to clause (5) in such prior period.

“Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight draft facility that is not in default): automated clearing house transactions, treasury and/or cash management services, including, without limitation, treasury, depository, overdraft, credit, purchasing or debit card, non-card e-payables services, electronic funds transfer, treasury management services (including controlled disbursement services, supply chain finance facilities, overdraft automatic clearing house fund transfer services, return items and interstate depository network services), other demand deposit or operating account relationships and merchant services.

“Change of Control” means the occurrence of any of the following:

(1) the sale, lease or transfer, in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or

(2) the Company becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or a series of related transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision; except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of more than 50.0% of the voting power of the Voting Stock of the Company (directly or through the acquisition of voting power of Voting Stock of any of the Company’s direct or indirect parent companies);

provided*,* however, that (x) a transaction in which the Company becomes a direct or indirect wholly owned Subsidiary of another Person (other than an individual) (such Person, the “Other Person”) shall not constitute a Change of Control if immediately following the consummation of such transaction, no “person” or “group” (as such terms are defined above) “beneficially owns” (as such term is defined above), directly or indirectly through one or more intermediaries, more than 50.0% of the voting power of the outstanding Voting Stock of such Other Person; (y) the transfer of assets between or among the Company and the Restricted Subsidiaries in accordance with the terms of this Indenture shall not itself constitute a Change of Control and (z) a “person” or “group” (as such terms are defined above) shall not be deemed to “beneficially own” (as such term is defined above) securities subject to a stock purchase agreement, merger agreement or similar agreement (or any voting or option agreement related thereto) until the consummation of the transactions contemplated by such agreement.

“Clearstream Banking” means Clearstream Banking S.A. or its successor.

“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.

“Commission” or “SEC” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.

“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” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.

“Company Request” and “Company Order” mean a written request or order signed in the name of the Company, as the case may be by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee by any two of the foregoing officers and delivered to the Trustee.

“Consolidated Cash Flow Coverage Ratio” as of any date of determination means the ratio of (a) the aggregate amount of Cash Flow for the period of the most recent four consecutive fiscal quarters for which financial statements are available to (b) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:

(1) if the Company or any Restricted Subsidiary has issued any Indebtedness since the beginning of such period that remains outstanding or if the transaction giving rise to the need to calculate the Consolidated Cash Flow Coverage Ratio is an issuance of Indebtedness, or both, Cash Flow and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been issued on the first day of such period and the discharge of any other Indebtedness repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period;

(2) if, since the beginning of such period, the Company or any Restricted Subsidiary shall have made any Asset Disposition, the Cash Flow for such period shall be reduced by an amount equal to the Cash Flow (if positive) directly attributable to the assets which are the subject of such Asset Disposition for such period, or increased by an amount equal to the Cash Flow (if negative), directly attributable thereto for such period, and Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Asset Dispositions for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale);

(3) if, since the beginning of such period, the Company or any Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets (including Capital Stock of a Subsidiary), including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, Cash Flow and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the issuance of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and

(4) if, since the beginning of such period, any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary, since the beginning of such period) shall have made any Asset Disposition or any Investment that would have required an adjustment pursuant to clause (2) or (3) above, if made by the Company or a Restricted Subsidiary during such period, Cash Flow and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Asset Disposition or Investment occurred on the first day of such period.

For purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto, and the amount of Consolidated Interest Expense associated with any Indebtedness issued in connection therewith, the pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest of such Indebtedness shall be calculated as if the average interest rate for the period up to the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Protection Agreement applicable to such Indebtedness if such Interest Rate Protection Agreement has a remaining term in excess of 12 months). For purposes of this definition, whenever pro forma effect is to be given to any Indebtedness Incurred pursuant to a revolving credit facility, the amount outstanding under such Indebtedness shall be equal to the average of the amount outstanding during the period commencing on the first day of the first of the four most recent fiscal quarters for which financial statements are available and ending on the date of determination. For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Company as set forth in an Officer’s Certificate, whether or not in accordance with GAAP or Regulation S-X under the Securities Act, to reflect operating expense reductions, cost savings or synergies that have been realized or are reasonably expected to result within 18 months from the applicable pro forma event.

“Consolidated Interest Expense” means, for any period, the total interest expense of the Company and its consolidated Restricted Subsidiaries, plus, to the extent not included in such interest expense but Incurred by the Company or its Restricted Subsidiaries:

(1) interest expense attributable to finance leases;

(2) amortization of debt discount;

(3) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing;

(4) net cash payments and receipts (if any) pursuant to Hedging Obligations (including amortization of fees);

(5) dividends in respect of all Disqualified Stock held by Persons other than the Company, a Subsidiary Guarantor or a Wholly Owned Subsidiary;

(6) interest Incurred in connection with investments in discontinued operations;

(7) the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Company) in connection with Indebtedness Incurred by such plan or trust; and minus

(8) interest income; and minus to the extent included in total interest expense,

(9) non-cash interest expense on the Existing Notes;

(10) amortization or write-off of deferred financing fees and debt issuance costs;

(11) penalties and interest relating to taxes; and

(12) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Financing.

For purposes of this definition, interest expense attributable to any Indebtedness represented by the guarantee (other than (a) Guarantees permitted by Section 10.13(b)(xi) and (b) Guarantees by the Company of Indebtedness of a consolidated Restricted Subsidiary or by a consolidated Restricted Subsidiary of the Company or another consolidated Restricted Subsidiary) by such person or a Subsidiary of such person of an obligation of another person shall be deemed to be the interest expense attributable to the Indebtedness guaranteed.

“Consolidated Net Income” means, for any period, the net income or loss of the Company and its consolidated Subsidiaries; provided, however, that there shall not be included in such Consolidated Net Income:

(1) any net income or loss of any Person if such Person is not a Restricted Subsidiary, except that the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (3) below);

(2) any net income or loss of any Person accrued prior to the date such Person was acquired by or merged into the Company or a Restricted Subsidiary or such Person’s assets were acquired by the Company or a Restricted Subsidiary;

(3) any net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Company, except that (A) the Company’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash permitted to be distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend, advance or other distribution (subject, in the case of a dividend or other distribution to another Restricted Subsidiary, to the limitation contained in this clause) and (B) any such restrictions on a Receivables Subsidiary or an Equipment Subsidiary in connection with a Qualified Receivables Financing or Qualified Equipment Financing, as applicable, shall be disregarded for purposes of this definition of “Consolidated Net Income”;

(4) any gain or loss realized upon the sale or other disposition of any property, plant or equipment of the Company or its consolidated subsidiaries (including pursuant to any sale and leaseback arrangement) which is not sold or otherwise disposed of in the ordinary course of business and any gain or loss realized upon the sale or other disposition of any Capital Stock of any Person outside the ordinary course of business;

(5) all non-recurring gains or losses;

(6) any goodwill impairment charge pursuant to GAAP;

(7) the cumulative effect of a change in accounting principles;

(8) any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, grants and sales of stock, stock appreciation or similar rights, stock options or other rights to officers, directors and employees shall be excluded;

(9) income or loss attributable to discontinued operations (including operations disposed of during such period whether or not such operations were classified as discontinued);

(10) unrealized gains and losses relating to Hedging Obligations or other derivative instruments and the application of ASC 815 (or other corresponding future applicable accounting standards) and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of ASC 830 (or other corresponding future applicable accounting standards);

(11) effects of adjustments (including the effects of such adjustments pushed down to the Company and the Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements (including, but not limited to, any step-ups or reductions with respect to re-valuing assets and liabilities) pursuant to GAAP and related authoritative pronouncements resulting from the application in accordance with GAAP of purchase accounting in relation to the Transactions or any investment, acquisition, merger or consolidation (or reorganization or restructuring) that is consummated after the Issue Date or the depreciation, amortization or write-off of any amounts thereof, net of taxes; and

(12) any net after-tax income (loss) from the early extinguishment of Indebtedness, Cash Management Services or Swap Obligations, or other derivative instruments.

“Consolidated Senior Secured Net Debt Ratio” as of any date of determination means the ratio of (1) (x) Consolidated Total Indebtedness (other than (A) Currency Agreement Obligations and obligations in respect of Interest Rate Protection Agreements or other interest or exchange rate hedging arrangements and (B) obligations as an account party in respect of letters of credit (except to the extent of any unreimbursed drawings thereunder)) that is secured by Liens incurred under clause (9), (14) or (17) (or clause (18) if in respect of the foregoing) of the definition of “Permitted Liens” on such date, minus (y) the aggregate amount of any cash and Cash Equivalents of the Company and its Restricted Subsidiaries determined on a consolidated basis as reflected on the balance sheet in accordance with GAAP, in each case of clause (x) and (y) as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) Cash Flow of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case, with such pro forma adjustments to Consolidated Total Indebtedness, cash and Cash Equivalents and Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Cash Flow Coverage Ratio.”

“Consolidated Tangible Assets” as of any date of determination, on a pro forma basis, means the Consolidated Total Assets as of such date, and after giving effect to purchase accounting and after deducting, to the extent otherwise included, the amounts of: (1) minority interests in consolidated Subsidiaries held by Persons other than the Company or a Restricted Subsidiary; (2) excess of cost over fair value of assets of businesses acquired, as determined in good faith by the Company; (3) any revaluation or other write-up in book value of assets subsequent to the Issue Date as a result of a change in the method of valuation in accordance with GAAP consistently applied; (4) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items; (5) cash set apart and held in a sinking or other analogous fund established for the purpose of redemption or other retirement of Capital Stock; and (6) Investments in and assets of Unrestricted Subsidiaries.

“Consolidated Total Assets” as of any date of determination, on a pro forma basis, means the total amount of assets (less accumulated depreciation and amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) that would appear on a consolidated balance sheet of the Company as of such date, determined on a consolidated basis in accordance with GAAP.

“Consolidated Total Indebtedness” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP.

“Consolidated Total Net Debt Ratio” as of any date of determination means the ratio of (1) (x) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries, minus (y) the aggregate amount of any cash and Cash Equivalents of the Company and its Restricted Subsidiaries determined on a consolidated basis as reflected on the balance sheet in accordance with GAAP, in each case of clauses (x) and (y) as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) the Cash Flow of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case, with such pro forma adjustments to Consolidated Total Indebtedness, cash and Cash Equivalents and Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Cash Flow Coverage Ratio”.

“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office of HSBC Bank USA, National Association, at the date of the execution of this Indenture, is located at 66 Hudson Boulevard East, New York, NY 10001, Attention: Transaction Management, Issuer Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

“corporation” includes corporations, limited liability companies, partnerships, associations, companies and business trusts and similar entities.

“Covenant Defeasance” shall have the meaning specified in Section 4.02.

“Covenant Suspension Event” shall have the meaning specified in Section 10.20(a).

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of April 1, 2021, among the Company, certain of its subsidiaries, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, the lenders and issuing banks named therein and certain financial institutions, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, refunded, refinanced or otherwise modified from time to time.

“Credit Facility” means (1) a collective reference to any term loan and revolving credit facilities (including, but not limited to, any term loan and revolving credit facilities under the Credit Agreement), including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as such credit facilities and/or related documents may be further amended, restated, supplemented, renewed, replaced, refunded, increased, refinanced, restructured or otherwise modified, in whole or in part, from time to time whether or not with the same agent, trustee, lenders or holders and irrespective of any changes in the terms and conditions thereof and (2) whether or not the credit facilities referred to in clause (1) remain outstanding, if designated by the Company to be included in the definition of “Credit Facility,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including any Receivables Financing or otherwise through the sale of receivables and related assets (or undivided interests therein) to lenders or to special purpose entities formed to borrow from lenders against such receivables), asset-backed financing (including any Equipment Securitization Transaction or otherwise through the sale of assets of the type specified in the definition of “Equipment Securitization Transaction” (or undivided interests therein) to lenders or to special purpose entities formed to borrow from lenders against such assets) or letters of credit, (B) debt securities, 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 borrowers or issuers and, in each case, as amended, supplemented, modified, extended, increased, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time. Without limiting the generality of the foregoing, the term “Credit Facility” shall include agreements in respect of reimbursement of letters of credit issued pursuant to any Credit Facility and agreements in respect of Hedging Obligations with lenders party to any Credit Facility and shall also include any amendment, amendment and restatement, renewal, extension, restructuring, supplement or modification to any Credit Facility and all refunding, refinancings (in whole or in part) and replacements of any Credit Facility, including any agreement (i) extending the maturity of any indebtedness incurred thereunder or contemplated thereby, (ii) adding or deleting borrowers or guarantors thereunder, so long as borrowers and issuers include one or more of the Company and its Restricted Subsidiaries and their respective successors and assigns or (iii) adding or deleting agents, trustees, lenders or holders, and whether or not any such amendment, amendment and restatement, renewal, extension, restructuring, supplement or modification occurs simultaneously with the termination or repayment of a prior Credit Facility.

“Currency Agreement Obligations” means the obligations of any person under a foreign exchange contract, currency swap agreement or other similar agreement or arrangement to protect such person against fluctuations in currency values.

“Deemed Date” shall have the meaning specified in Section 10.13(j).

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Defaulted Interest” shall have the meaning specified in Section 3.07.

“Depositary” means, with respect to the Notes issuable or issued in the form of a Global Note, the Person designated as Depositary by the Company in Section 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder. The Company initially appoints The Depository Trust Company (“DTC”), its nominees and their respective successors to act as Depositary with respect to the Notes.

“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/ or the creditworthiness of the Company and/or any one or more of the Subsidiary Guarantors (the “Performance References”).

“Description of Notes” means that section of the same name in the Offering Memorandum .

“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash and Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.

“Designation” shall have the meaning specified in Section 10.18.

“Designation Amount” shall have the meaning specified in Section 10.18(b).

“Directing Holder” shall have the meaning specified in Section 5.01.

“Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:

(1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 91 days following the Stated Maturity of the Notes at the time of the issuance of such Capital Stock; provided*,* however, that, (a) any class of Capital Stock of any Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock other than Disqualified Stock shall not be deemed to be Disqualified Stock and (b) Capital Stock will not constitute Disqualified Stock solely because of provisions giving holders thereof the right to require repurchase or redemption upon a change in control occurring prior to such date; or

(2) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) Indebtedness or (b) any Capital Stock referred to in clause (1) above, in each case at any time on or prior to the date that is 91 days following the Stated Maturity of the Notes at the time of the issuance of such Capital Stock; provided*,* however*,* that, (a) any class of Capital Stock of any Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock other than Disqualified Stock shall not be deemed to be Disqualified Stock and (b) Capital Stock will not constitute Disqualified Stock solely because of provisions giving holders thereof the right to require repurchase or redemption upon a change in control occurring prior to such date.

“Dollars” and the sign “$” mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

“Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States of America or any state thereof or the District of Columbia.

“DTC” shall have the meaning specified in the definition of “Depositary”.

“Equipment Fees” means interest or other payments made directly or by means of discounts with respect to any participation or other interests issued or sold in connection with, and all other fees paid to a Person that is not an Equipment Subsidiary or not a Restricted Subsidiary in connection with, any Equipment Securitization Transaction.

“Equipment Loans” means any purchase money loans or lease or other financing (and related activities) to customers of the Company, any Restricted Subsidiary or any joint venture of the Company or any Restricted Subsidiary to finance the acquisition or lease by such customers of (i) equipment manufactured or sold by the Company, any Restricted Subsidiary or any such joint venture, in each case in the ordinary course of business, and (ii) equipment purchased by the Company or any Restricted Subsidiary from other manufacturers or other persons in connection with a transaction in which the Company or any Restricted Subsidiary finances the acquisition or lease of such equipment by the customers of the Company, any Restricted Subsidiary or any joint venture of the Company or any Restricted Subsidiary.

“Equipment Receivables” shall mean all rental fleet equipment, loans secured by equipment, leases or rental agreements (whether now existing or arising in the future) of the Company or any of the Restricted Subsidiaries, and any assets related thereto including all instruments, chattel paper or general intangibles relating thereto, all payments and other rights under insurance policies or warranties related thereto, all disposition proceeds received upon sale thereof, all rights under manufacturers’ repurchase programs or guaranteed depreciation programs relating thereto, all credit enhancements related thereto, all leases, loans or rental agreements related thereto, all collateral securing such assets, all contracts and all guarantees or other obligations in respect of such assets, proceeds of such assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions or similar transactions involving such assets.

“Equipment Repurchase Obligation” means any obligation of a seller of assets in a Qualified Equipment Financing to repurchase assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or other asset or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

“Equipment Securitization Transaction” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer (or transfer an undivided interest) to (a) an Equipment Subsidiary or (b) any other Person, or may grant a security interest in, any rental fleet equipment, loans secured by equipment, leases or rental agreements (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including all instruments, chattel paper or general intangibles relating thereto, all payments and other rights under insurance policies or warranties related thereto, all disposition proceeds received upon sale thereof, all rights under manufacturers’ repurchase programs or guaranteed depreciation programs relating thereto, all credit enhancements related thereto, all leases, loans or rental agreements related thereto, all collateral securing such assets, all contracts and all guarantees or other obligations in respect of such assets, proceeds of such assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions or similar transactions involving such assets.

“Equipment Subsidiary” means a Wholly Owned Subsidiary of the Company (or another Person formed for the purposes of engaging in Qualified Equipment Financing with the Company or any Subsidiary of the Company in which the Company or any Subsidiary of the Company makes an Investment and to which the Company or any Restricted Subsidiary of the Company transfers assets of the type specified in the definition of “Equipment Securitization Transaction”) that engages in no activities other than in connection with the financing of assets of the Company and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and that is designated by the Board of Directors (as provided below) as an Equipment Subsidiary and:

(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Company or any other Restricted Subsidiary of the Company (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is with recourse to or obligates the Company or any other Restricted Subsidiary of the Company in any way other than pursuant to Standard Securitization Undertakings, or (iii) subjects any property or asset of the Company or any other Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;

(2) with which neither the Company nor any other Restricted Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms which the Company reasonably believes to be no less favorable to the Company or such Restricted Subsidiary than those that would be obtained at the time from Persons that are not Affiliates of the Company; and

(3) to which neither the Company nor any other Restricted Subsidiary of the Company has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conclusion.

“Equity Offering” means a private or public sale for cash of common stock or Preferred Stock (other than Disqualified Stock) of the Company.

“Euroclear” means Euroclear Bank S.A./N.V. or its successor.

“Event of Default” shall have the meaning specified in Section 5.01.

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

“Excluded Subsidiary” means:

(1) any Foreign Subsidiary, foreign-owned Domestic Subsidiary or Domestic Subsidiary substantially all the assets of which consist of Capital Stock (or Capital Stock and indebtedness) of one or more Subsidiaries that are “controlled foreign corporations” within the meaning of Section 957 of the Code,

(2) any Receivables Subsidiary,

(3) any Equipment Subsidiary, or

(4) any Immaterial Subsidiary.

“Existing Notes” means the Company’s $600.0 million aggregate principal amount of 5.000% Senior Notes due 2029, issued under the indenture, dated as of April 1, 2021, between the Company and HSBC Bank USA, National Association, as trustee, as such may be amended or supplemented from time to time.

“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 by the Company).

“Finance Lease Obligations” of a Person means any obligation that is required to be classified and accounted for as a finance lease on the face of a balance sheet of such Person prepared in accordance with GAAP; the amount of such obligation shall be the amount of the liability in respect of a finance lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto), determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such finance lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

“Finsub” means one or more bankruptcy-remote legal entities that are wholly owned Unrestricted Subsidiaries of the Company organized solely for the purpose of engaging in a Receivables Program.

“Floor Plan Guarantees” means guarantees (including, but not limited to, repurchase or remarketing obligations) by the Company or a Restricted Subsidiary Incurred in the ordinary course of business of Indebtedness Incurred by a franchise dealer, or other purchaser or lessor, for the purchase of inventory manufactured or sold by the Company or a Restricted Subsidiary, the proceeds of which Indebtedness is used solely to pay the purchase price of such inventory to such franchise dealer, or other purchaser or lessor, and any related reasonable fees and expenses (including financing fees), provided, however, that (1) to the extent commercially practicable, the Indebtedness so guaranteed is secured by a perfected first priority Lien on such inventory in favor of the holder of such Indebtedness and (2) if the Company or such Restricted Subsidiary is required to make payment with respect to such guarantee, the Company or such Restricted Subsidiary will have the right to receive either (x) title to such inventory, (y) a valid assignment of a perfected first priority Lien in such inventory or (z) the net proceeds of any resale of such inventory.

“Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any state thereof or the District of Columbia.

“GAAP” means generally accepted accounting principles in the United States of America set forth in (1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Public Company Accounting Oversight Board, (2) statements and pronouncements of the Financial Accounting Standards Board or (3) in such other statements by such other entities as have been approved by a significant segment of the accounting profession, in each case that are in effect on the Issue Date. For clarity purposes, in determining whether a lease is a finance lease or an operating lease and whether Indebtedness or interest expense exists, such determination shall be made in accordance with GAAP as in effect on the Issue Date.

“Global Notes” means, individually and collectively, each of the Global Notes, substantially in the form of Exhibit A hereto, issued in accordance with Section 3.01.

“Government Obligations” means securities which are (i) direct obligations of the United States government or (ii) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the United States government the payment of which is unconditionally guaranteed by the United States government, which, in either case, are full faith and credit obligations of the United States government and are not callable or redeemable at the option of the issuer thereof.

“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing in any manner any Indebtedness or other obligation of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person:

(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or

(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

provided*,* however, that the term “Guarantee” shall not include (x) endorsements of negotiable instruments for collection or deposit in the ordinary course of business or (y) Standard Securitization Undertakings. The term “Guarantee” used as a verb has a corresponding meaning.

“Guaranteed Obligations” shall have the meaning specified in Section 12.01.

“Hedging Obligations” of any Person means the obligations of such Person pursuant to any interest rate swap agreement, foreign currency exchange agreement, interest rate collar agreement, option or futures contract or other similar agreement or arrangement designed to protect such Person against changes in interest rates or foreign exchange rates.

“Holder” means the Person in whose name a Note is registered in the Security Register.

“Identifying Numbers” shall have the meaning specified in Section 2.04.

“Immaterial Subsidiary” means a Subsidiary that (a) is not an obligor (by Guarantee or otherwise) in respect of Indebtedness for borrowed money in an aggregate principal amount in excess of $25,000,000 at any time outstanding and (b) as of the last day of any fiscal quarter, does not satisfy either of the following tests:

(1) such Subsidiary’s total tangible assets (after intercompany eliminations) exceeds 3.0% of consolidated total tangible assets of the Company and its Subsidiaries; or

(2) such Subsidiary’s revenue for the last twelve months ending as of the last day of such fiscal quarter exceeds 3.0% of the revenue for the last twelve months ending as of the last day of such fiscal quarter of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;

provided, that, if on the last day of any fiscal quarter of the Company, Subsidiaries that are Domestic Subsidiaries, are Restricted Subsidiaries and on such date are not otherwise Subsidiary Guarantors shall in the aggregate have either combined consolidated total tangible assets in excess of 10.0% of the consolidated total tangible assets of the Company and its Subsidiaries or combined consolidated revenues for the last twelve month period ending on such date in excess of 10.0% of the consolidated revenues of the Company and its Subsidiaries for such period, in each case on a consolidated basis in accordance with GAAP, then the Company shall promptly cause one or more of such Subsidiaries to become Subsidiary Guarantors so that neither of such thresholds is exceeded.

“Incur” means create, issue, assume, Guarantee, incur or otherwise become liable for, directly or indirectly, or otherwise become responsible for, contingently or otherwise, Indebtedness or Disqualified Stock; provided, however, that any Indebtedness or Disqualified Stock of a Person existing at the time such Person becomes a subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning.

“Indebtedness” of any Person means, without duplication:

(1) all obligations of such Person for borrowed money or advances of any kind;

(2) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;

(3) all obligations of such Person upon which interest charges are customarily paid;

(4) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such person;

(5) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business);

(6) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;

(7) all Guarantees by such Person of Indebtedness of others;

(8) all Finance Lease Obligations and Synthetic Lease Obligations of such Person;

(9) all Currency Agreement Obligations of such Person and all obligations of such Person in respect of Interest Rate Protection Agreements or other interest or exchange rate hedging arrangements;

(10) all obligations of such Person as an account party in respect of letters of credit;

(11) all obligations of such Person as an account party in respect of bankers’ acceptances; and

(12) the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock of such Person;

provided, that (a) contingent obligations Incurred in the ordinary course of business not related to Indebtedness, (b) obligations under or in respect of Receivables Financings, (c) Obligations associated with other post-employment benefits and pension plans, (d) any “straight-line” lease or any lease that would be categorized as an “operating lease” in accordance with Accounting Standard Codification 842 and any successor pronouncements, (e) in connection with the purchase by the Company or its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may be entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing until 30 days after any such obligation becomes contractually due and payable, (f) deferred or prepaid revenues, (g) any Capital Stock (other than Disqualified Stock), (h) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller and (i) premiums payable to, and advance commissions or claims payments from, insurance companies, in each case, of such Person, shall not constitute Indebtedness of such Person.

The Indebtedness of any Person shall include the Indebtedness of any partnership in which such person is a general partner, to the extent such Indebtedness is recourse to such Person either expressly or by operation of law. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon or measured by the fair market value of such Disqualified Stock, such fair market value to be determined in good faith by the Board of Directors. For purposes hereof, the amount of any Indebtedness issued with original issue discount shall be the original purchase price plus accrued interest; provided, however, that such accretion shall not be deemed an incurrence of Indebtedness. Notwithstanding the foregoing, obligations of the Company or any Restricted Subsidiary in respect of the sale or purported sale of Retained Recourse Equipment Loans shall only be included as Indebtedness to the extent of the Retained Recourse Amount thereof.

“Indenture” means this Indenture, as amended or supplemented from time to time.

“Initial Lien” shall have the meaning specified in Section 10.17(a).

“Initial Notes” shall have the meaning specified in the Recitals hereto.

“Interest Payment Date” means each April 15 and October 15.

“Interest Rate Protection Agreement” means any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates.

“Investment” in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable or deposits on the balance sheet of the Person making the advance or loan, in each case in accordance with GAAP) or other extensions of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition (by means of any transfer of cash or other property to such Person or any other Person) of Capital Stock, Indebtedness or other similar instruments issued by such Person and shall include the designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

For purposes of the definition of “Unrestricted Subsidiary”, the definition of “Restricted Payment” and Section 10.10:

(1) “Investment” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Company 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 Company shall be deemed to continue to have a permanent investment in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the Company’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, in each case as determined in good faith by the Board of Directors.

Notwithstanding the foregoing, in no event shall any issuance of Capital Stock (other than Preferred Stock or Disqualified Stock, or Capital Stock exchangeable, exercisable or convertible for any of the foregoing) of the Company in exchange for Capital Stock, property or assets of another Person constitute an Investment by the Company in such Person.

“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 Rating Agency.

“Investment Grade Securities” means:

(i) securities issued or directly and fully guaranteed or insured by the United States of America, Canada, any country that is a member of the European Union, or the United Kingdom or any agency or instrumentality thereof (other than cash and Cash Equivalents);

(ii) securities that have an Investment Grade Rating; and

(iii) investments in any fund that invests at least 95.0% of its assets in investments of the type described in clauses (i) and (ii), which fund may also hold immaterial amounts of cash pending investment and/or distribution.

“issue” means issue, assume, Guarantee, Incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be issued by such Subsidiary at the time it becomes a Subsidiary; and the term “issuance” has a corresponding meaning.

“Issue Date” means October 8, 2024, the date on which the Notes were originally issued.

“Legal Defeasance” shall have the meaning specified in Section 4.02.

“Legal Holiday” means a Saturday, Sunday or other day on which banking institutions are not required by law or regulation to be open in the State of New York.

“Lien” means any mortgage, pledge, security interest, privilege, conditional sale or other title retention agreement or other similar lien (statutory or otherwise), or encumbrance upon or with respect to any property of any kind, real or personal, moveable or immovable, now owned or hereafter acquired.

“Limited Condition Acquisition” means an acquisition, including by means of a merger, amalgamation or consolidation, by the Company or one or more of its Restricted Subsidiaries, the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing or in connection with which any fee or expense would be payable by the Company or one or more of its Restricted Subsidiaries to the seller or target in the event financing to consummate the acquisition is not obtained as contemplated by the definitive acquisition agreement.

“Limited Recourse Receivables Financing” shall mean a receivables financing with a customary market structure and with limited or no recourse to the Company, any Subsidiary Guarantor or any Restricted Subsidiary, other than through the provision of undertakings that are customary in receivables securitization or receivables financing transactions. A transaction will be considered to be a Limited Recourse Receivables Financing if treated as a true sale of the related receivables for accounting purposes, even if the financing provider has limited or partial recourse to the Company, any Subsidiary Guarantor or any Restricted Subsidiary.

“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.

“Maturity” means, when used with respect to any Note, the date on which the principal of that Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment at the option of the holder, pursuant to any sinking fund or otherwise.

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

“Net Available Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form) therefrom, in each case net of:

(1) all legal, title and recording tax expenses, commissions and other fees and expenses Incurred, and all U.S. federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability or reserve under GAAP, as a consequence of such Asset Disposition;

(2) all payments made on any Indebtedness which (A) is secured by any assets subject to such Asset Disposition, in accordance with the terms of any lien upon or other security agreement of any kind with respect to such assets, or (B) which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition;

(3) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and

(4) reasonable amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Disposition. Further, with respect to an Asset Disposition by a Subsidiary which is not a Wholly Owned Subsidiary, Net Available Cash shall be reduced pro rata for the portion of the equity of such Subsidiary which is not owned by the Company.

“Net Short” means, with respect to a holder or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives Definitions) to have occurred with respect to the Company or any Subsidiary Guarantor immediately prior to such date of determination.

“non-Guarantor Subsidiary” means any Restricted Subsidiary that is not a Subsidiary Guarantor.

“Noteholder Direction” shall have the meaning specified in Section 5.01.

“Notes” shall have the meaning specified in the Recitals hereto.

“Obligations” means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.

“Offering Memorandum” means the final offering memorandum dated September 30, 2024 relating to the offering of the Notes.

“Officer” shall have the meaning specified in the definition of “Officer’s Certificate”.

“Officer’s Certificate” means a certificate signed on behalf of the Company by any one officer of the Company or of a Subsidiary or parent of the Company that is designated by the Company, who must be the principal executive officer, the principal financial officer, the treasurer, the principal accounting officer, controller, general counsel or any similar position of the Company or such Subsidiary or parent that meets the requirements set forth in this Indenture (each an “Officer”).

“Opinion of Counsel” means an opinion from legal counsel that is reasonably acceptable to the Trustee that meets the requirements set forth in this Indenture. The counsel may be an employee of or counsel to the Company or any affiliate of the Company.

“Other Person” shall have the meaning specified in the definition of “Change of Control”.

“Outstanding” means, when used with respect to Notes, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:

(1) Notes theretofore canceled by the Trustee or delivered to such Trustee for cancelation;

(2) Notes or portions thereof for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any other obligor upon the Notes) in trust or set aside and segregated in trust by the Company or any other obligor upon the Notes (if the Company or any other obligor upon the Notes shall act as its own Paying Agent) for the Holders of the Notes; provided, however, that, if the Notes or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to the Trustee has been made; and

(3) Notes which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any Notes in respect of which there shall have been presented proof satisfactory to the Trustee that any such Notes are held by a bona fide holder in due course;

provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.

“Paying Agent” means HSBC Bank USA, National Association or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Notes on behalf of the Company.

“Permitted Investment” means an Investment by the Company or any Restricted Subsidiary in:

(1) the Company, a Restricted Subsidiary or a Person that will, upon the making of such Investment, become a Restricted Subsidiary and any Investment held by such Person; provided, however, that any Investment held by such Person was not acquired by such Person in contemplation of such Person becoming a Restricted Subsidiary or in contemplation of such merger, consolidation, amalgamation, transfer, conveyance or liquidation;

(2) another Person if as a result of such Investment such other Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Subsidiary and any Investment held by such Person; provided, however, that any Investment held by such Person was not acquired by such Person in contemplation of such Person becoming a Restricted Subsidiary or in contemplation of such merger, consolidation, amalgamation, transfer, conveyance or liquidation;

(3) cash and Cash Equivalents or Investment Grade Securities;

(4) receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business;

(5) loans or advances to employees made in the ordinary course of business;

(6) stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments;

(7) any Person to the extent such Investment represents the non-cash portion of the consideration received for an asset sale as permitted pursuant to Section 10.16;

(8) so long as no Default has occurred and is continuing (or would result therefrom), any Investment the payment for which consists of Capital Stock of the Company (other than Disqualified Stock); provided, however, that such Capital Stock will not increase the amount available for Restricted Payments set forth in Section 10.10(a)(iii)(B);

(9) any Investment for the purpose of financing purchases and leases of inventory in connection with a “captive finance” entity whose sole business is providing financing to customers of the Company or any Restricted Subsidiary; provided that, at the time of any such Investment either (x) the Consolidated Total Net Debt Ratio shall be less than or equal to 3.75 to 1.00 or (y) the aggregate amount of Investments made pursuant to this clause (9) at any time when the Consolidated Total Net Debt Ratio exceeds 3.75 to 1.00 does not exceed the greater of (i) $2,000.0 million and (ii) 54.0% of Consolidated Tangible Assets as of the date of such Investment (with the Fair Market Value of each such Investment being measured at the time made and without giving effect to subsequent changes in value);

(10) Floor Plan Guarantees permitted by Section 10.13(b)(xi);

(11) any Person to the extent such Investments consist of Hedging Obligations not incurred for speculative purposes and either: (A) for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding, (B) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (C) for the purpose of fixing or hedging commodity price risk with respect to any commodity purchases or sales;

(12) any Person to the extent such Investments, when taken together with all other Investments made pursuant to this clause (12) and outstanding on the date such Investment is made, do not have an aggregate Fair Market Value in excess of the greater of (i) $925.0 million and (ii) 25.0% of Consolidated Tangible Assets as of the date of such Investment (with the Fair Market Value of each such Investment being measured at the time made and without giving effect to subsequent changes in value);

(13) joint ventures of the Company or any of its Restricted Subsidiaries; provided*,* however*,* that at the time of any such Investment and immediately after giving effect thereto (A) the Fair Market Value of such Investment, taken together with the aggregate Fair Market Value of all other Investments made pursuant to this clause (13) and Section 10.10(b)(xiii)(A) that are at that time outstanding, does not exceed the greater of (i) $465.0 million and (ii) 13.0% of Consolidated Tangible Assets as of the date of such Investment (with the Fair Market Value of each such Investment being measured at the time made and without giving effect to subsequent changes in value) or (B) the Consolidated Total Net Debt Ratio is less than or equal to 3.75 to 1.00;

(14) purchases and acquisitions of real estate, services, inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property, in each case, in the ordinary course of business;

(15) a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness; provided, however, that any Investment in a Receivables Subsidiary is in the form of a Purchase Money Note, contribution of additional receivables and related assets of the type specified in the definition of “Receivables Financing”, cash and Cash Equivalents or an equity interest;

(16) Guarantees issued or made in accordance with Sections 10.13 and 10.19 (other than Guarantees issued or made pursuant to Section 10.13(b)(xxiii));

(17) any Investment in an entity that is not a Restricted Subsidiary to which a Restricted Subsidiary sells accounts receivable and related assets of the type specified in the definition of “Receivables Financing” or cash and Cash Equivalents pursuant to a Receivables Financing;

(18) Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged into, amalgamated with, or consolidated with the Company or a Restricted Subsidiary in a transaction that is not prohibited by Article VIII after the Issue Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;

(19) Investments resulting from the sale of financial services products, including (x) retail financing for the purchase or lease of equipment manufactured by the Company, its Restricted Subsidiaries or any other manufacturer whose products are from time to time sold through the Company or its Restricted Subsidiaries, (y) other retail and wholesale financing programs reasonably related thereto and (z) insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products;

(20) an Equipment Subsidiary or any Investment by an Equipment Subsidiary in any other Person in connection with a Qualified Equipment Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Equipment Financing or any related Indebtedness; provided, however, that any Investment in an Equipment Subsidiary is in the form of a Purchase Money Note, contribution of assets of the type specified in the definition of “Equipment Securitization Transaction”, cash and Cash Equivalents or an equity interest;

(21) any Investment in an entity that is not a Restricted Subsidiary to which a Restricted Subsidiary sells assets of the type specified in the definition of “Equipment Securitization Transaction” or cash and Cash Equivalents pursuant to an Equipment Securitization Transaction;

(22) any Investment existing on the Issue Date or made pursuant to legally binding written commitments in existence on the Issue Date;

(23) loans and advances to, and guarantees of Indebtedness of, employees of the Company (or any of its direct or indirect parent companies) or a Restricted Subsidiary not in excess of the greater of (i) $20.0 million and (ii) 1.0% of Consolidated Tangible Assets outstanding at any one time, in the aggregate;

(24) any Investment acquired by the Company or any of its Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, (b) in good faith settlement of delinquent obligations of, and other disputes with Persons who are not Affiliates or (c) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(25) advances, loans, rebates and extensions of credit (including the creation of receivables) to suppliers, customers and vendors, and performance guarantees, in each case in the ordinary course of business;

(26) investments to fund supplemental executive retirement plan obligations in an aggregate amount not to exceed $200.0 million; and

(27) any Investment, so long as the Consolidated Total Net Debt Ratio of the Company and its Restricted Subsidiaries on a consolidated basis is no greater than 3.75 to 1.00.

“Permitted Liens” means, with respect to any Person:

(1) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits or cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, or deposits to secure liability to insurance carriers, insurance companies and brokers, in each case Incurred in the ordinary course of business;

(2) Liens imposed by law, including carriers’ , warehousemen’s, mechanics’, materialmens’, repairmens’, landlords’ and other similar Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings; or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review;

(3) Liens for taxes, assessments or other governmental charges (i) not yet subject to penalties for non-payment or (ii) which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been taken on the books of the Company;

(4) Liens to secure the performance of statutory obligations or in favor of issuers of surety bonds, performance bonds, appeal bonds or letters of credit or other obligations of a like nature issued pursuant to the request of and for the account of such Person, in each case in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness;

(5) Liens securing a Hedging Obligation or Bank Products so long as the related Indebtedness is, and is permitted to be under this Indenture, secured by a Lien on the same property securing the Hedging Obligation or Bank Products;

(6) Liens for the purpose of securing the payment (or the refinancing of the payment) of all or a part of any Purchase Money Indebtedness or Finance Lease Obligations relating to assets or property acquired, constructed or leased in the ordinary course of business provided that (x) the aggregate principal amount of Indebtedness secured by such Liens shall not exceed the cost of the assets or property so acquired or constructed and (y) such Liens shall not encumber any other assets or property of the Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto;

(7) Liens arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Subsidiaries in the ordinary course of business;

(8) Liens in favor of the Company and/or any of its Restricted Subsidiaries, other than such a Lien with respect to intercompany indebtedness if the Company or a Subsidiary Guarantor is not the beneficiary of such a Lien;

(9) Liens securing Indebtedness of a Person existing at the time that such Person is acquired by, merged into or consolidated with the Company or any Restricted Subsidiary; provided, however, that such Liens were not incurred in connection with, or in contemplation of, such acquisition, merger or consolidation, and do not extend to any property or assets other than those of such Person;

(10) Liens on property or assets existing at the time of acquisition thereof by the Company or any Restricted Subsidiary; provided, however, that such Liens were not incurred in connection with, or in contemplation of, such acquisition, and do not extend to any other property or assets;

(11) Liens existing on the Issue Date;

(12) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary that does not give rise to an Event of Default;

(13) encumbrances consisting of zoning restrictions, surety exceptions, utility easements, licenses, rights of way, easements of ingress or egress over property of the Company or any Restricted Subsidiary, rights or restrictions of record on the use of real property, minor defects in title, landlords’ and lessors’ liens under leases and subleases on property located on the rented premises, in each case not interfering in any material respect with the ordinary conduct of the business of the Company and the Restricted Subsidiaries;

(14) Liens securing Indebtedness permitted to be incurred by Section 10.13(b)(i);

(15) Liens with respect to Floor Plan Guarantees permitted by Section 10.13(b)(xi);

(16) Liens on (A) receivables and related assets of the type specified in the definition of “Receivables Financing” or pledges of interests in a Receivables Subsidiary, in each case Incurred in connection with a Qualified Receivables Financing and (B) assets of the type specified in the definition of “Equipment Securitization Transaction” or pledges of interests in an Equipment Subsidiary, in each case Incurred in connection with a Qualified Equipment Financing;

(17) Liens securing Indebtedness of a Foreign Subsidiary permitted to be Incurred pursuant to Section 10.13; provided, however, that such Liens do not extend to the property or assets of the Company or any Domestic Subsidiary;

(18) any extension, renewal, refinancing, refunding or replacement of any Permitted Lien, provided that such new Lien is limited to the property or assets that secured (or under the arrangement under which the original Permitted Lien, could secure) the obligations to which such Liens relate;

(19) other than during a Suspension Period, Liens securing Indebtedness (other than Subordinated Obligations) in an aggregate principal amount outstanding at any one time not to exceed the greater of (i) $925.0 million and (ii) 25.0% of Consolidated Tangible Assets;

(20) during the continuation of a Suspension Period, Liens securing Indebtedness in an aggregate principal amount outstanding at any one time not to exceed 15.0% of Consolidated Total Assets;

(21) [reserved];

(22) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods, in each case Incurred in the ordinary course of business;

(23) Liens on the Capital Stock and Indebtedness of Unrestricted Subsidiaries and joint ventures that are not Restricted Subsidiaries;

(24) grants of licenses and sublicenses of intellectual property in the ordinary course of business;

(25) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

(26) Liens Incurred to secure Cash Management Services (and other Bank Products), owed to a lender under the Credit Agreement in the ordinary course of business;

(27) restrictions on dispositions of assets contained in merger agreements, stock or asset purchase agreements and similar agreements;

(28) customary options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and similar investment vehicles;

(29) (i) Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement in connection with an Investment permitted under this Indenture and (ii) Liens on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in a Permitted Investment to be applied against the purchase price for such Investment;

(30) customary Liens on deposits required in connection with the purchase of property, equipment and inventory, in each case Incurred in the ordinary course of business;

(31) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge, repayment or redemption of Indebtedness; provided that such defeasance, discharge or redemption is permitted under this Indenture;

(32) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets; and

(33) Liens given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of the Company or a Restricted Subsidiary in the ordinary course of business; provided that such Liens do not materially interfere with the operations of the Company and its Restricted Subsidiaries, taken as a whole.

“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

“Place of Payment” means the place or places where the principal of (and premium, if any) and interest, if any, are payable, as contemplated by Section 10.02.

“Position Representation” shall have the meaning specified in Section 5.01.

“Predecessor Note” means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note, and, for the purposes of this definition, any Note authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.

“Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

“Program Receivables” shall mean all Trade Receivables and Equipment Receivables originated and owned by the Company or any Restricted Subsidiary and sold pursuant to a Receivables Program.

“Purchase Money Indebtedness” means any Indebtedness of a Person to any seller or other Person incurred to finance the acquisition (including in the case of a Finance Lease Obligation, the lease) of any after acquired real or personal tangible property or assets related to the business of the Company or the Restricted Subsidiaries and which is incurred substantially concurrently with such acquisition and is secured only by the assets so financed.

“Purchase Money Note” means a promissory note of a Receivables Subsidiary or an Equipment Subsidiary evidencing a line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a Receivables Subsidiary or an Equipment Subsidiary in connection with a Qualified Receivables Financing or Qualified Equipment Financing, as applicable, which note is intended to finance that portion of the purchase price for accounts receivables and related assets or assets of the type set forth in the definition of “Equipment Securitization Transaction”, as applicable, that is not paid by cash or as a contribution of equity.

“Qualified Equipment Financing” means any Equipment Securitization Transaction of an Equipment Subsidiary that meets the following conditions and with respect to which the Company delivers an Officer’s Certificate to the Trustee certifying as to compliance with all such conditions:

(1) all sales of assets to the Equipment Subsidiary are made at Fair Market Value (as determined in good faith by the Company);

(2) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company); and

(3) shall be non-recourse to the Company and its Subsidiaries (other than the Equipment Subsidiary) except for Standard Securitization Undertakings.

The grant of a security interest in any assets of the Company or any Subsidiaries (other than an Equipment Subsidiary or the Subsidiary undertaking such Equipment Securitization Transaction) to secure Bank Indebtedness shall not be deemed to be a Qualified Equipment Financing.

“Qualified Receivables Financing” means any Receivables Financing of a Receivables Subsidiary that meets the following conditions and with respect to which the Company delivers an Officer’s Certificate to the Trustee certifying as to compliance with all such conditions:

(1) all sales of receivables and related assets to the Receivables Subsidiary are made at Fair Market Value (as determined in good faith by the Company);

(2) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company); and

(3) shall be non-recourse to the Company and its Subsidiaries (other than the Receivables Subsidiary) except for Standard Securitization Undertakings.

The grant of a security interest in any accounts receivable of the Company or any Subsidiaries (other than a Receivables Subsidiary or the Subsidiary undertaking such Receivables Financing) to secure Bank Indebtedness shall not be deemed to be a Qualified Receivables Financing.

“Rating Agencies” means Moody’s and S&P, or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.

“Receivables Fees” means interest or other payments made directly or by means of discounts with respect to any participation or other interests issued or sold in connection with, and all other fees paid to a Person that is not a Receivables Subsidiary or not a Restricted Subsidiary in connection with, any Receivables Financing.

“Receivables Financing” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer (or transfer an undivided interest) to (a) a Receivables Subsidiary or (b) any other Person, or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including all instruments, chattel paper or general intangibles relating thereto, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions, factorings or similar transactions involving accounts receivable and any Hedging Obligations entered into by the Company or any such Subsidiary in connection with such accounts receivable.

“Receivables Program” shall mean, collectively, (a) the sale of, or transfer of interests in, Program Receivables to Finsub, directly or indirectly, in exchange for consideration equal to the fair market value of such Program Receivables (i.e., a “true sale”), (b) the sale of, or transfer of interests in, such Program Receivables by Finsub to special purpose trusts or other funding vehicles which are not Affiliates of the Company and (c) other sales or transfers of Program Receivables pursuant to a Limited Recourse Receivables Financing; provided, in each case, that recourse to the Company, any Subsidiary Guarantor or any Restricted Subsidiary in connection with such transactions is limited to the extent customary for similar transactions.

“Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified Receivables Financing to repurchase receivables and related assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

“Receivables Subsidiary” means a Wholly Owned Subsidiary of the Company (or another Person formed for the purposes of engaging in Qualified Receivables Financing with the Company or any Subsidiary of the Company in which the Company or any Subsidiary of the Company makes an Investment and to which the Company or any Restricted Subsidiary of the Company transfers accounts receivable and related assets) that engages in no activities other than in connection with the financing of accounts receivable of the Company and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and that is designated by the Board of Directors (as provided below) as a Receivables Subsidiary and:

“Redemption Date” shall have the meaning specified in Section 11.08(a).

“Redemption Price” means, when used with respect to any Note to be redeemed, the price at which it is to be redeemed pursuant to the terms of this Indenture or in any Note issued hereunder.

“Reference Date” means January 31, 2017, the original issue date of the Company’s 5.625% Senior Notes due 2025.

“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for, such indebtedness. “Refinanced” and “Refinancing” shall have correlative meanings.

“Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Subsidiary existing on the Issue Date or Incurred in compliance with this Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that:

(1) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of (x) the Indebtedness being Refinanced or (y) the Notes;

(2) such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of (x) the Indebtedness being Refinanced or (y) the Notes; and

(3) such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding or committed (plus unpaid accrued interest) under the Indebtedness being Refinanced, plus actual fees and expenses Incurred in connection with the Refinancing;

provided, further, however, that (x) Refinancing Indebtedness shall not include (1) Indebtedness of a Subsidiary that is not a Wholly Owned Subsidiary or a Subsidiary Guarantor that Refinances Indebtedness of the Company or (2) Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary, (y) if the Indebtedness being Refinanced is a Subordinated Obligation, then unless the Company would be permitted at the time to issue an additional $1.00 of Indebtedness under Section 10.13(a) such Refinancing Indebtedness shall be at least as subordinated in right of payment to the Notes as the Indebtedness being Refinanced and (z) Refinancing Indebtedness shall be secured only by assets of a similar type and in a similar amount to those that secured the Indebtedness so refinanced.

“Regular Record Date” means, with respect to the interest payable on any Interest Payment Date on the Notes, April 1 and October 1.

“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

“Restricted Investment” means an Investment other than a Permitted Investment.

“Restricted Payment” shall have the meaning specified in Section 10.10(a).

“Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.

“Retained Recourse Amount” shall have the meaning assigned to such term in the definition of the term “Retained Recourse Equipment Loans”.

“Retained Recourse Equipment Loans” shall mean Equipment Loans sold by the Company or a Restricted Subsidiary to a person that is not an Affiliate of the Company in a transaction (a) that is not part of the Receivables Program and (b) in which the purchaser of such Equipment Loans (or its successors or assigns) has recourse to the Company or a Restricted Subsidiary for all or a portion of the payment of such Equipment Loans (with the aggregate amount of such recourse being referred to herein as the “Retained Recourse Amount”).

“Reversion Date” shall have the meaning specified in Section 10.20(b).

“Revocation” shall have the meaning specified in Section 10.18.

“S&P” means S&P Global Ratings Services, a business unit of Standard & Poor’s Financial Services LLC, and any successor to its rating agency business.

“Sale/Leaseback Transaction” means any arrangement with any Person or Persons providing for the leasing by the Company or any Restricted Subsidiary of any real or tangible property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person in contemplation of such leasing.

“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Security Register” and “Security Registrar” shall have the respective meanings specified in Section 3.05.

“Senior Indebtedness” means, with respect to the Company or any Subsidiary Guarantor, any Indebtedness of such Person unless the instrument creating or evidencing such Indebtedness expressly provides that such Indebtedness is subordinate in right of payment to any other Indebtedness or Guarantee of such Person, including the Notes or the applicable Subsidiary Guarantee, other than:

(1) any obligation of such Person to any subsidiary of such Person or to any officer, director or employee of such Person or any such subsidiary;

(2) any accounts payable or other liability of such Person to trade creditors arising in the ordinary course of business (including Guarantees thereof or instruments evidencing such liabilities);

(3) that portion of any Indebtedness of such Person which at the time of issuance is issued in violation of this Indenture;

(4) any liability for U.S. federal, state, local or other taxes owed or owing by such Person;

(5) Indebtedness of such Person represented by Disqualified Stock; or

(6) any Capital Stock.

“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.

“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Company within the meanings of Rule 1-02 under Regulation S-X promulgated by the SEC as in effect on the Issue Date.

“Special Mandatory Redemption” shall have the meaning specified in Section 11.11.

“Special Mandatory Redemption Date” shall have the meaning specified in Section 11.11.

“Special Mandatory Redemption Outside Date” shall have the meaning specified in Section 11.11.

“Special Mandatory Redemption Price” shall have the meaning specified in Section 11.11.

“Special Record Date” means, with respect to the payment of any Defaulted Interest on the Notes, a date fixed by the Trustee pursuant to Section 3.07.

“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Company or any Subsidiary of the Company, which the Company has determined in good faith to be customary in a Receivables Financing, including those relating to the servicing of the assets of a Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.

“Stated Maturity” means, with respect to any security, the final date specified in such security as the fixed date on which all outstanding principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred).

“Subordinated Obligation” means any Indebtedness of the Company or any Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is subordinate or junior in right of payment to the Notes or the relevant Subsidiary Guarantee, as applicable, pursuant to a written agreement to that effect.

“Subsidiary” means:

(1) any corporation, association, partnership, limited liability company or other business entity of which more than 50.0% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by:

(A) the Company;

(B) the Company and one or more Subsidiaries of the Company; or

(2) any limited partnership of which the Company or any Subsidiary is a general partner; or

(3) any other Person (other than a corporation or limited partnership) in which the Company, or one or more other Subsidiaries or the Company and one or more other Subsidiaries, directly or indirectly, has more than 50.0% of the outstanding partnership or similar interests or has the power, by contract or otherwise, to direct or cause the direction of the policies, management and affairs thereof.

Unless the context otherwise requires, Subsidiary means each direct and indirect Subsidiary of the Company.

“Subsidiary Guarantee” means a Guarantee by a Subsidiary Guarantor of the Company’s Obligations with respect to the Notes.

“Subsidiary Guarantor” means each Subsidiary of the Company that guarantees the Notes pursuant to the terms of this Indenture.

“Successor Company” shall have the meaning specified in Section 8.01(a).

“Suspended Covenants” shall have the meaning specified in Section 10.20(a).

“Suspension Period” shall have the meaning specified in Section 10.20(b).

“Swap Obligation” means, with respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of §1a(47) of the Commodity Exchange Act.

“Synthetic Lease” means a lease of property or assets (other than inventory) designed to permit the lessee (a) to claim depreciation on such property or assets under U.S. tax law and (b) to treat such lease as an operating lease or not to reflect the leased property or assets on the lessee’s balance sheet under GAAP.

“Synthetic Lease Obligations” means, as to any person, an amount equal to the sum of (a) the obligations of such person to pay rent or other amounts under any Synthetic Lease which are attributable to principal and, without duplication, (b) the amount of any purchase price payment under any Synthetic Lease assuming the lessee exercises the option to purchase the leased property at the end of the lease term.

“Trade Receivables” shall mean all trade receivables and related security (including all related contract rights, collections, records, lockboxes and bank accounts in the name of or transferred to the name of Finsub, goods, security deposits, guarantees and other agreements or arrangements (including all Liens) supporting or securing payment of the Program Receivables) originated and owned by the Company or any Restricted Subsidiary and sold pursuant to the Receivables Program.

“Transactions” means the consummation of the following transactions: (1) the issuance of the Initial Notes pursuant to this Indenture and the application of the proceeds thereof as described in the Offering Memorandum under the heading “Use of Proceeds”; (2) the anticipated incurrence of $1,250.0 million of new term loans pursuant to the Credit Agreement; (3) the increase in the aggregate amount of revolving commitments under the Credit Agreement to $800.0 million; (4) the consummation of the Acquisition and the payment of the consideration thereof; and (5) the payment of fees, costs and expenses in connection with the foregoing, in each case as further described in the Offering Memorandum.

“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to October 15, 2027; provided, however, that if the period from the Redemption Date to such date, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

“Trigger Date” shall have the meaning specified in Section 11.11.

“Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of this Indenture.

“Trustee” means the Person named as the “Trustee” in the Preamble of this instrument and, subject to the provisions of Article VI hereof, shall also include its successors and assigns as Trustee hereunder.

“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer’s option.

“United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions (which include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to its jurisdiction.

“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such pursuant to and in compliance with Section 10.18 and any Subsidiary of an Unrestricted Subsidiary. Any such designation may be revoked by a resolution of the Board of Directors delivered to the Trustee, subject to the provisions of Section 10.18.

“Verification Covenant” shall have the meaning specified in Section 5.01.

“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

“Wholly Owned Subsidiary” means a Restricted Subsidiary, all the Capital Stock of which (other than directors qualifying shares and shares held by other Persons to the extent such shares are required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary) is owned by the Company or one or more Wholly Owned Subsidiaries.

SECTION 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture or any supplement hereto, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished; provided that no such Officer’s Certificate shall be required to be furnished in connection with the issuance or authentication of the Notes that are issued on the Issue Date.

Every certificate (other than certificates provided pursuant to Section 10.03) or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to matters upon which his certificate or opinion is based are erroneous.

Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 1.04. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section.

The Company may at its discretion set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action, by vote or consent, authorized or permitted under this Indenture, but the Company shall have no obligation to do so. If not set by the Company prior to the first solicitation of Holders made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be 30 days prior to the first solicitation of such vote or consent. Upon the fixing of such a record date, those persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority.

(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems reasonably sufficient.

(d) The principal amount and serial numbers of Notes held by any Person, and the date of holding the same, shall be proved by the Security Register.

(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Note.

(f) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee.

SECTION 1.05. Notices, Etc., to Trustee and the Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Transaction Management, Issuer Services, or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage prepaid to the Trustee addressed to it as provided above, or

(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in Section 5.01(d), (e) and (h)) if furnished in writing and mailed, first class postage prepaid, addressed in the case of the Company to it, to the attention of the Chief Financial Officer, at the address of its principal office specified in the Preamble of this instrument or at any other address previously furnished in writing to the Trustee by the Company, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy mailed, first class postage prepaid, to the Company addressed to it as provided above.

SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders if in writing and electronically delivered or mailed, first class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or as otherwise permitted by the Trustee; provided that where this Indenture requires notice to a Holder of a beneficial interest in a Global Note, such notice shall be deemed delivered upon delivery to the applicable Depositary (or its designee) pursuant to the procedures of such Depositary, if any, prescribed for the delivery of such notice, notwithstanding any reference to mailing of notices.

In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed in the manner prescribed by this Indenture shall be conclusively deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the reasonable approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

SECTION 1.07. Trust Indenture Act. Notwithstanding Section 1.01(b) and for the avoidance of doubt, this Indenture is not subject to any provision of the Trust Indenture Act, except to the extent the Trust Indenture Act is specifically incorporated by reference in or made a part of this Indenture.

SECTION 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company and the Trustee shall bind its successors and assigns, whether so expressed or not.

SECTION 1.10. Separability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Security Registrar, an Authenticating Agent and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 1.12. Governing Law. THE INDENTURE, THE NOTES AND ANY RELATED SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICT OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN THE BOROUGH OF MANHATTAN IN SUCH STATE IN CONNECTION WITH ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF RELATING TO THIS INDENTURE OR ANY ACTION TAKEN OR OMITTED HEREUNDER, AND WAIVES ANY CLAIM OF FORUM NON CONVENIENS AND ANY OBJECTIONS AS TO LAYING OF VENUE. EACH PARTY FURTHER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, RIGHT TO A JURY TRIAL AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH PERSON AT SUCH PERSON’S ADDRESS FOR PURPOSES OF NOTICES HEREUNDER.

SECTION 1.13. Non-Business Day. Unless otherwise stated with respect to the Notes, in any case where any Interest Payment Date, Redemption Date or Stated Maturity shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal of (and premium, if any) and interest, if any, with respect to the Notes need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

SECTION 1.14. Immunity of Incorporators, Stockholders, Directors and Officers. No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Notes or Guarantees, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, director, officer or employee, as such, past, present or future, of the Company, the Subsidiary Guarantors or of any of their respective successor corporations, either directly or indirectly through the Company, the Subsidiary Guarantors or any of their respective successor corporations, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Notes and Guarantees are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, director, officer or employee, past, present or future, of the Company, the Subsidiary Guarantors or of any of their respective successor corporations, either directly or indirectly through the Company, the Subsidiary Guarantors or any of their respective successor corporations, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Notes or Guarantees, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Notes and the Subsidiary Guarantees.

SECTION 1.15. [Reserved]

SECTION 1.16. Language of Notices, Etc. Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, and any published notice may also be in an official language of the country of publication.

SECTION 1.17. Calculations. Except as otherwise provided in this Indenture, the Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, accrued interest payable on the Notes. The Company and its agents, if any, shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders. The Company shall provide a schedule of its calculations to the Trustee, and the Trustee is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder upon the request of that Holder at the sole cost and expense of the Company.

SECTION 1.18. Counterpart Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties to this Indenture and the Notes transmitted by facsimile or PDF shall be deemed effective for all purposes.

SECTION 1.19. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

SECTION 1.20. USA Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this agreement agree that they shall provide the Trustee with such information as they may request in order to satisfy the requirements of the USA Patriot Act.

ARTICLE II

Note Forms

SECTION 2.01. Forms of Notes. Provisions relating to the Notes are set forth in the Rule 144A/Regulation S Appendix hereto, which is hereby incorporated in and expressly made part of this Indenture. The Notes may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may reasonably deem appropriate and as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange, automated quotation system or clearing agency or to conform to usage, as may, consistently herewith, be determined by the officer executing the Notes, as evidenced by such officer’s execution of the Notes. Each Note under this Indenture will be offered and sold in accordance with the Appendix and in reliance on Rule 144A or Regulation S, as indicated by the legend on the Notes.

SECTION 2.02. Form of Trustee’s Certificate of Authentication. Subject to Section 6.15, the Certificate of Authentication will be in the form included on Exhibit A.

SECTION 2.03. Notes in Global Form. Notes issued in global form shall be substantially in the form of Exhibit A hereto. If any Note is issuable in global form, such Note may provide that it shall represent the aggregate amount of Outstanding Notes from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Notes represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of a Note in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Notes represented thereby shall be made by the Trustee and in such manner as shall be specified in such Note. Any instructions by the Company with respect to a Note in global form, after its initial issuance, shall be in writing but need not comply with Section 1.02.

SECTION 2.04. CUSIP Numbers. The Company in issuing the Notes may use CUSIP, ISIN or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee, in writing, of any change in the Identifying Numbers.

ARTICLE III

The Notes

SECTION 3.01. Title; Payment and Terms. The Trustee shall authenticate Notes to be authenticated and delivered under this Indenture on the Issue Date in an aggregate amount equal to $750,000,000 (except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.05, 3.06, 9.05, 10.15, 10.16 or 11.07). The Trustee shall authenticate Additional Notes thereafter in unlimited amount for original issue upon a written order of the Company in the form of an Officer’s Certificate in aggregate principal amount as specified in such order (so long as permitted by this Indenture, including Section 10.13). Any such Officer’s Certificate shall also specify the date on which the original issue of Notes is to be authenticated and shall certify that such issuance will not be prohibited by Section 10.13.

The Trustee shall not be required to authenticate any Additional Notes, nor will it be liable for its refusal to authenticate any Additional Notes, if the issue of such Additional Notes will affect the Trustee’s own rights, duties or immunities under the Notes and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or may expose the Trustee to personal liability to existing Holders or others.

SECTION 3.02. [Reserved]

SECTION 3.03. Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, its President, Chief Executive Officer or one of its Vice Presidents. The signature of any of these officers on the Notes may be manual, electronic or facsimile.

Notes bearing the manual, electronic or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee, in accordance with the Company Order, shall authenticate and deliver such Notes.

Each Note shall be dated the date of its authentication.

No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein manually or electronically executed by the Trustee or on its behalf pursuant to Section 6.15, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

In case any Notes shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent then in office, any successor by merger, conversion or consolidation to such Trustee, or any successor Authenticating Agent, as the case may be, may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Notes.

Each Depositary for a Global Note in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.

SECTION 3.04. Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officer executing the temporary Notes, as evidenced by the execution of the temporary Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company designated for the purpose pursuant to Section 10.02, without charge to the Holder. Upon surrender for cancellation of any temporary Notes the Company will execute and the Trustee will authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Any temporary Notes so exchanged will be cancelled by the Trustee. Until so exchanged, the temporary Notes will be entitled to the same benefits under this Indenture as definitive Notes.

SECTION 3.05. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Trustee is hereby initially appointed “Security Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.

The Notes shall be transferable only in compliance with the Appendix. Upon surrender for registration of transfer of any Note at the office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations, and of a like Stated Maturity and aggregate principal amount and with like terms and conditions.

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.

No service charge shall be made for any registration of transfer or exchange of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Sections 9.05 and 11.07 not involving any transfer.

The Company shall not be required (i) to issue or register the transfer of or exchange of Notes during a period beginning at the opening of business 15 days before the day of the delivery of a notice of redemption of Notes selected for redemption under Section 11.09 and ending at the close of business on the day of the delivery of the relevant notice of redemption, (ii) to register the transfer of or exchange any Note so selected for redemption as a whole or in part, except the unredeemed portion of any Note being redeemed in part, or any Note that has been tendered in a Change of Control Offer or (iii) to register the transfer of or exchange any Note between a Regular Record Date and the succeeding Interest Payment Date.

Furthermore, notwithstanding any other provision of this Section 3.05, the Company will not be required to exchange any Notes if, as a result of the exchange, the Company would suffer adverse consequences under any law or regulation.

SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Notes. If (i) any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to their satisfaction of the destruction, loss or theft of any Note and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Note has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note or in exchange for such mutilated Note, a new Note in a like principal amount and of a like Stated Maturity and with like terms and conditions.

In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note (without surrender thereof except in the case of a mutilated Note) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee and any agent of any of them of the destruction, loss or theft of such Note and the ownership thereof.

Upon the issuance of any new Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee) connected therewith.

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Note, be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest payment.

Unless otherwise provided with respect to the Notes, payment of interest may be made at the Corporate Trust Office or, at the option of the Company, may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Notwithstanding the foregoing, a Holder of $5,000,000 or more in aggregate principal amount of Notes in definitive form, whether having identical or different terms and provisions, having the same Interest Payment Dates will, at the option of the Company, be entitled to receive interest payments, other than at Maturity, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee for the Notes at least 15 days prior to the applicable Interest Payment Date. Any wire instructions received by the Trustee for the Notes shall remain in effect until revoked by the Holder. Notwithstanding the forgoing, payment of interest in respect of Notes represented by Global Notes should be made in accordance with procedures required by the Depositary.

Every permanent Global Note will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream Banking with respect to that portion of such permanent Global Note held for its account by the Depositary. Each of Euroclear and Clearstream Banking will in such circumstances credit the interest received by it in respect of such permanent Global Note to the accounts of the beneficial owners thereof.

Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be delivered in the manner set forth in Section 1.06 to each Holder at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been delivered as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section and Section 3.05, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.

SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name any such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.07) interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Notes or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

SECTION 3.09. Cancelation. All Notes surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancelation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Notes shall be provided to the Company by the Trustee upon the written request of the Company. Permanent Global Notes shall not be disposed of until exchanged in full for definitive Notes or until payment thereon is made in full.

SECTION 3.10. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of 12 30-day months.

SECTION 3.11. Ranking. The Notes shall constitute the senior indebtedness of the Company and shall rank pari passu in right of payment among themselves and with all of the other existing and future senior indebtedness of the Company.

SECTION 3.12. Issuance of Additional Notes. The Company shall be entitled to issue Additional Notes under this Indenture which shall have substantially identical terms as the Initial Notes, other than with respect to the date of issuance, issue price and, if applicable, the first interest payment date and the first date from which interest will accrue. The Initial Notes issued on the date of this Indenture and any Additional Notes shall be treated as a single class for all purposes under this Indenture. In the event that any of the Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP, ISIN or other Identifying Number so that they are distinguishable from the Initial Notes.

With respect to any Additional Notes, the Company shall set forth in an Officer’s Certificate, a copy of which shall be delivered to the Trustee, the following information:

(1) the aggregate principal amount of the Notes outstanding immediately prior to the issuance of such Additional Notes;

(2) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

(3) the issue price and the issue date of such Additional Notes and the amount of interest payable on the first payment date applicable thereto; and

(4) the “CUSIP” or “ISIN” number of such Additional Notes.

All references to the Notes shall be deemed to include any Additional Notes actually issued.

ARTICLE IV

Legal Defeasance and Covenant Defeasance; Satisfaction and Discharge

SECTION 4.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced by a Board Resolution, set forth in an Officer’s Certificate, at any time, with respect to the Notes, elect to have Section 4.02 be applied to all of the Outstanding Notes upon compliance with the conditions set forth below in this Article IV.

SECTION 4.02. Legal Defeasance and Covenant Defeasance. The Company may, at its option and at any time, elect to have its obligations discharged with respect to the Notes and this Indenture (“Legal Defeasance”). Such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Notes, except for:

(a) the rights of Holders of the Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due from the trust fund referred to below;

(b) the Company’s obligations with respect to mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(d) the rights, powers, trust, duties and immunities of the Trustee under Article VI and the Company’s obligations in connection therewith; and

(e) the provisions of Article VII.

In addition, the Company at its option at any time may terminate its obligations under Sections 10.01, 10.02, 10.04, 10.05, 10.08 and 10.10 through 10.20 (other than with respect to the Company as described under Article VIII) (and any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes), and the limitations contained in Section 8.01(c) (“Covenant Defeasance”). In the event that a Covenant Defeasance occurs, the events (not including non-payment and bankruptcy and insolvency events with respect to the Company) described under Section 5.01 will no longer constitute Events of Default with respect to the Notes.

The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect thereto.

SECTION 4.03. [Reserved]

SECTION 4.04. Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance:

(a) the Company must irrevocably deposit, or cause to be irrevocably deposited, with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the report of a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm, to pay and discharge the principal of, premium, if any, and interest on the Notes to the applicable redemption or maturity date, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee or an agent of the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee or an agent of the Trustee on or prior to the redemption date; provided, further, that any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;

(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel (which may be subject to customary assumptions and exclusions) in the United States reasonably acceptable to the Trustee confirming that:

(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

(ii) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law,

in either case to the effect that, and based thereon such Opinion of Counsel (which may be subject to customary assumptions and exclusions) shall confirm that, the Holders and the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and Legal Defeasance had not occurred;

(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel (which may be subject to customary assumptions and exclusions) in the United States reasonably acceptable to the Trustee confirming that the Holders and the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and Covenant Defeasance had not occurred;

(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;

(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Company is a party or by which the Company is bound;

(f) the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;

(g) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and

(h) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on such Notes on the date of such deposit on the date of such deposit.

Notwithstanding the foregoing, the Opinion of Counsel required by Section 4.04(b) with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable whether on the Stated Maturity or on a Redemption Date by reasons of the making of a notice of redemption or otherwise or (2) will become due and payable at the Stated Maturity within one year or, if redeemable at the option of the Company, are to be called for redemption within one year in accordance with the terms of this Indenture for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.

If the funds deposited with the Trustee to effect Legal Defeasance or Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due, then the obligations of the Company under this Indenture will be revived and no such defeasance will be deemed to have occurred.

SECTION 4.05. Satisfaction and Discharge of Indenture. This Indenture will be discharged with respect to the Notes and will cease to be of further effect (except as to surviving rights of transfer or exchange of such Notes, as expressly provided for in this Indenture) solely as to all Notes under this Indenture when with respect to such Notes:

(a) either:

(i) all Notes previously authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or

(ii) all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable whether on the Stated Maturity or on a Redemption Date by reasons of the making of a notice of redemption or otherwise, (ii) will become due and payable at the Stated Maturity within one year or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; provided that the Company has irrevocably deposited or caused to be deposited with the Trustee cash or non-callable U.S. Government Obligations or a combination thereof in an amount sufficient to pay and discharge the entire Indebtedness on the Notes theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the Stated Maturity or such Redemption Date together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;

(b) the Company has paid all other sums payable with respect to the Notes under this Indenture by the Company; and

(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture with respect to the Notes have been complied with;

provided that, upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee or an agent of the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee or an agent of the Trustee on or prior to the redemption date; provided, further, that any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption.

Notwithstanding the satisfaction and discharge of this Indenture with respect to the Notes, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with the Trustee under Section 4.05(a)(ii), the obligations of the Trustee under Section 4.08 and Section 6.06 shall survive such satisfaction and discharge, in each case, with respect to the Notes.

SECTION 4.06. Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes referred to in Sections 4.01, 4.02, 4.04, or 4.05, the respective obligations of the Company and the Trustee for the Notes under Sections 3.03, 3.05, 3.09, 4.07, 4.08, 4.09, 4.10, and 5.08, Article VI, and Sections 7.01, 7.02, 10.02, 10.03, 10.04 and 10.05, shall survive with respect to Notes until the Notes are no longer outstanding, and thereafter the obligations of the Company and the Trustee under Sections 4.07, 4.08, 4.09, and 4.10 shall survive. Nothing contained in this Article IV shall abrogate any of the obligations or duties of the Trustee under this Indenture.

SECTION 4.07. Acknowledgment of Discharge by Trustee. Subject to Section 4.10, after (i) the conditions of Section 4.04 or 4.05 have been satisfied, (ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article IV.

SECTION 4.08. Application of Trust Moneys. All money and Government Obligations deposited with the Trustee pursuant to Section 4.04 or 4.05 in respect of the Notes shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 4.04 or 4.05 with respect to the Notes or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.

SECTION 4.09. Repayment to the Company; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Company upon Company Order any cash or Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest, if any, on the Notes of that series for which cash or Government Obligations have been deposited pursuant to Section 4.04 or 4.05.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Note and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of the Note shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Note in the manner set forth in Section 1.06, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.

SECTION 4.10. Reinstatement. If the Trustee or Paying Agent is unable to apply any cash or Government Obligations, as applicable, in accordance with Section 4.02, 4.04 or 4.05 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.02, 4.04 or 4.05 until such time as the Trustee or Paying Agent is permitted to apply all such cash or Government Obligations in accordance with Section 4.02, 4.04 or 4.05; provided, however, that if the Company has made any payment of principal (and premium, if any) and interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash or Government Obligations, as applicable, held by the Trustee or Paying Agent.

ARTICLE V

Remedies

SECTION 5.01. Events of Default. An “Event of Default” is defined in this Indenture as the following:

(a) a default in the payment of interest on the Notes when due, continued for 30 days;

(b) a default in the payment of principal of any Note when due at its Stated Maturity, upon optional redemption, upon mandatory redemption, upon required repurchase, upon declaration or otherwise;

(d) the failure by the Company to comply for 60 days after notice with any of its obligations set forth in Section 10.15 (other than a failure to purchase the Notes), 10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.16 (other than a failure to purchase the Notes), 10.17, 10.18, or 10.19;

(e) the failure by the Company to comply for 60 days after notice with its other covenants, obligations, warranties or agreements contained in this Indenture;

(f) Indebtedness of the Company or any Significant Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $150.0 million;

(g) the Company or any Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

(i) commences proceedings to be adjudicated bankrupt or insolvent;

(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;

(iii) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property; or

(iv) makes a general assignment for the benefit of its creditors;

(h) any judgment or decree for the payment of money, the portion of which is not covered by insurance is in excess of $150.0 million, which is rendered against the Company or any Significant Subsidiary and is not discharged and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there is a period of 60 days following such judgment during which such judgment or decree is not discharged, waived or the execution thereof stayed (including pending appeal); or

(i) any Subsidiary Guarantee by a Significant Subsidiary ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void (other than in accordance with the terms of the Subsidiary Guarantee or this Indenture) or any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Subsidiary Guarantee.

However, a default under Section 5.01(d), (e) and (h) will not constitute an Event of Default until the Trustee or the holders of 25.0% in principal amount of the outstanding Notes notify the Company of the default and the Company does not cure such default within the time specified after receipt of such notice.

If an Event of Default (other than the bankruptcy provisions relating to the Company) occurs and is continuing, the trustee or the holders of at least 25.0% in principal amount of the outstanding notes may declare the principal of and accrued but unpaid interest on all the notes to be due and payable; provided, however, that no such declaration may occur with respect to any action taken, and publicly reported or reported to Holders, more than two years prior to such declaration. Upon such a declaration, such principal and interest shall be due and payable immediately.

Any notice of Default, notice of continuing Event of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of continuing Event of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more holders (each a “Directing Holder”) must be accompanied by a written representation from each Directing Holder to the Company and the Trustee that such Directing Holder is not (or, in the case such Directing Holder is DTC or its nominee, that such Directing Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which Position Representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Company with such other information as the Company may reasonably request from time to time in order to verify the accuracy of such holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Directing Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee.

If, following the delivery of a Noteholder Direction, but prior to the acceleration of the notes, the Company determines in good faith that there is a reasonable basis to believe a Directing Holder providing such Noteholder Direction was, at any relevant time, in breach of its Position Representation and provides to the Trustee evidence that the Company has filed papers with a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Default or Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the Trustee an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Directing Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Directing Holder, the percentage of Notes held by the remaining Directing Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Default or Event of Default shall be deemed never to have occurred.

Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs.

For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officer’s Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise. The Trustee shall have no liability or responsibility to the Company, any holder or any other Person in connection with any Noteholder Direction or to determine whether or not any holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other agreement.

In the event of any Event of Default specified in Section 5.01(f), such Event of Default and all consequences thereof (including, without limitation, the declaration of acceleration of the Notes) will be annulled, waived and rescinded, automatically and without any action by the trustee or the holders of the notes, if within 20 days after such Event of Default arose the Company delivers an Officer’s Certificate to the trustee stating that (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged or (y) the holders thereof have rescinded or waived the acceleration, default, notice or action (as the case may be) giving rise to such Event of Default or (z) the default or acceleration that is the basis for such Event of Default has been cured or waived.

The Company shall deliver to the Trustee, within 30 days after knowledge of the occurrence thereof, written notice in the form of an Officer’s Certificate of any Event of Default under Section 5.01(f) or (h) and any event which with the giving of notice or the lapse of time would become an Event of Default under Section 5.01(d), (e) or (i), its status and what action the Company is taking or proposes to take with respect thereto.

SECTION 5.02. Acceleration of Maturity. (a) If an Event of Default (other than specified in Section 5.01(g) with respect to the Company) occurs and is continuing, the Trustee or the holders of at least 25.0% in principal amount of the Outstanding Notes may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately.

(b) If an Event of Default pursuant to Section 5.01(g) relating to the Company occurs and is continuing, the principal of and interest on the Notes will ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. At any time after a declaration of acceleration with respect to the Notes as set forth in Section 5.02(a), the Holders of a majority in principal amount of the Notes under this Indenture may rescind and cancel such declaration and its consequences:

(i) if the rescission would not conflict with any judgment or decree;

(ii) if all existing Events of Default with respect to the Notes have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;

(iii) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and

(iv) if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances.

No such rescission shall affect any subsequent Default or impair any right consequent thereto.

SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:

(a) default is made in the payment of any interest upon any Notes when such interest becomes due and payable and such default continues for a period of 30 days; or

(b) default is made in the payment of the principal of (or premium, if any, on) any Note at its Maturity;

the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of Notes, the whole amount then due and payable on the Notes for principal (and premium if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Notes; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.07.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.

If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Notes by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 5.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of any Note shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.07) and of the Holders of Notes allowed in such judicial proceeding;

(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and

(c) any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Notes to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders of Notes, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Note any plan of reorganization, arrangement, adjustment or composition affecting Notes or the rights of any Holder thereof, or to authorize the Trustee for the Notes to vote in respect of the claim of any Holder in any such proceeding for the election of a trustee in bankruptcy or other person performing similar functions.

SECTION 5.05. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee for the Notes without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.07, be for the ratable benefit of the Holders of Notes in respect of which such judgment has been recovered.

SECTION 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article V shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Notes, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: To the payment of all amounts due such Trustee under Section 6.07;

SECOND: To the payment of the amounts then due and unpaid upon the Notes for principal of (and premium, if any) and interest, if any, on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal (and premium, if any) and interest, if any, respectively; and

THIRD: The balance, if any, to the Company.

SECTION 5.07. Limitation on Suits. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:

(a) such Holder has previously given the Trustee notice that an Event of Default is continuing;

(b) Holders of at least 25.0% in principal amount of the Outstanding Notes have requested the Trustee to pursue the remedy;

(d) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and

(e) the Holders of a majority in principal amount of the Outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

SECTION 5.08. Unconditional Right of Holders To Receive Principal (and Premium, If Any) and Interest, If Any. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 3.07) interest, if any, on such Note on the Stated Maturity expressed in such Note (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.

SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder of a Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and such Holders shall continue as though no such proceeding had been instituted.

SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default with respect to the Notes shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.

SECTION 5.12. Control by Holders. The Holders of a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to the Notes or exercising any trust or power conferred on the Trustee with respect to the Notes, provided that:

(a) such direction shall not be in conflict with any rule of law, regulation or fiscal requirements, court order, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system or with this Indenture and could not involve the Trustee in personal liability; and

(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction or which the Trustee regards as necessary to comply with any applicable law, regulation or fiscal requirements, court order, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system.

The Trustee may refuse to follow any direction that conflicts with applicable law, this Indenture, the Notes or any Subsidiary Guarantee or that the Trustee determines in good faith is unduly prejudicial to the rights of any other Holder (provided that the Trustee shall have no affirmative duty to determine whether any such action is unduly prejudicial to the rights of any other Holder) or that would involve the Trustee in personal liability.

SECTION 5.13. Waiver of Past Defaults. Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past default hereunder and its consequences, except:

(a) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Notes; or

(b) a default with respect to a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Note.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Notes, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Notes or to any suit instituted by any Holder of any Note for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Notes on or after the Stated Maturity expressed in such Note (or, in the case of redemption, on or after the Redemption Date).

SECTION 5.15. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE VI

The Trustee

SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default:

(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.

(b) In case an Event of Default with respect to the Notes has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that:

(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;

(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved (by a non-appealable final decision of a court of competent jurisdiction which is binding on the Trustee) that the Trustee was negligent in ascertaining the pertinent facts;

(iii) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders, determined as provided in this Indenture, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights or powers.

(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

SECTION 6.02. Notice of Defaults. Within 90 days after the occurrence of any default hereunder, the Trustee shall give to Holders, in the manner set forth in Section 1.06, notice of such default known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.

SECTION 6.03. Certain Rights of Trustee. Except as otherwise provided in Section 6.01:

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties and delivered by mail, facsimile, email or other form of electronic communication;

(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Note, to the Trustee for authentication and delivery pursuant to Section 3.03 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;

(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

(d) the Trustee may consult with counsel of its selection at the expense of the Company and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Notes pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document;

(g) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them;

(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it under this Indenture or for any loss or damage resulting from its action, sufferance or inaction except where such loss or damage is directly attributable to its own negligence or willful misconduct;

(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office, and such notice references the Notes and this Indenture; the Trustee shall have no duty to determine whether an Event of Default has occurred or is continuing;

(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

(k) the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;

(l) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit, goodwill, reputation, business opportunity or anticipated savings) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

(m) the permissive rights of the Trustee enumerated herein shall not be construed as duties;

(n) the Trustee shall not incur any liability for not performing any act or not fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, pandemics or epidemics, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility);

(o) notwithstanding any instruction received by the Trustee to the contrary, amounts shall only be paid with respect to the Notes to the extent that the Trustee has actually received the funds;

(p) notwithstanding any other provision of this Indenture, the Trustee shall be entitled to take any action or to refuse to take any action which the Trustee regards as necessary for the Trustee to comply with any applicable law, regulation or fiscal requirement, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system;

(q) before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or Opinion of Counsel, and the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;

(r) the Trustee may perform any duties hereunder either directly or by or through delegates, agents or attorneys or a custodian or nominee, and the Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder; and

(s) the Trustee shall not be bound to make any investigation into the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Indenture.

SECTION 6.04. Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication thereof, shall be taken as the statements of the Company, as the case may be, and neither the Trustee, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes, and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Notes or the proceeds thereof.

SECTION 6.05. May Hold Notes. The Trustee, any Authenticating Agent, Paying Agent, Security Registrar or any other agent of the Company, or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company in writing, as the case may be.

SECTION 6.07. Compensation and Reimbursement. The Company agrees:

(a) to pay to the Trustee as the Company and the Trustee shall agree in writing from time to time such compensation in Dollars for all services rendered by it hereunder as shall be agreed upon in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(b) except as otherwise expressly provided herein, to reimburse the Trustee in Dollars upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or wilful misconduct; and

(c) to indemnify the Trustee and its officers, directors, employees, representatives and agents in Dollars for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence or wilful misconduct on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim, whether asserted by the Company or any Holder or any other Person, or liability in connection with the exercise or performance of any of their powers or duties hereunder.

As security for the performance of the obligations of the Company under this Section, the Trustee for the Notes shall have a lien prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Notes.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(g), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable U.S. federal or state bankruptcy, insolvency or other similar law.

The obligations of the Company under this Section 6.07 shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture.

SECTION 6.08. [Reserved]

SECTION 6.09. Company Representation and Warranty. The Company has reasonably instituted and maintains policies and procedures designed to ensure continued compliance with the regulations administered by the U.S. Office of Foreign Assets Control.

SECTION 6.10. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be:

(a) a corporation or banking company organized and doing business under the laws of the United States of America, any state thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by U.S. federal or state authority, or

(b) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation, or other order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustee, having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under the common control of the Company shall serve as Trustee. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereunder specified in this Article VI.

SECTION 6.11. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.12.

(b) The Trustee may resign at any time by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.12 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. The costs and expenses (including attorneys fees and expenses) incurred by the Trustee in connection with such petition shall be paid by the Company.

(c) The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to such Trustee and to the Company.

(d) If at any time:

(i) the Trustee shall cease to be eligible under Section 6.10 and shall fail to resign after written request therefor by the Company or by any such Holder, or

(ii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (x) the Company by a Board Resolution may remove the Trustee and appoint a successor Trustee or (y) subject to Section 5.14, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Trustee for any reason, the Company, by a Board Resolution, shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 6.12. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall have not been appointed by the Company pursuant to this Section 6.11, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee. If no successor Trustee shall have been so appointed by the Company or the Holders or shall have accepted appointment in the manner required by Section 6.12, and if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide Holder of a Note for at least six months, on behalf of itself and all others similarly situated, or the retiring Trustee, may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee in the manner and to the extent provided in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

SECTION 6.12. Acceptance of Appointment by Successor. (a) Every such successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsection (a) of this Section, as the case may be.

(c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VI.

SECTION 6.13. Merger, Conversion, Consolidation or Succession to Business. Any entity into which the Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such entity shall be otherwise qualified and eligible under this Article VI, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Notes.

SECTION 6.14. [Reserved]

SECTION 6.15. Authenticating Agents. At any time when any of the Notes remain Outstanding, the Trustee may, subject to its sole discretion, appoint one or more Authenticating Agents, which may include the Company or any Affiliate of the Company, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Notes in connection with transfers and exchanges under Sections 3.05 and 11.07 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by an Authenticating Agent for such Notes pursuant to this Section shall be deemed to be authentication and delivery of such Notes “by the Trustee”. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by U.S. federal or state authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.

Any Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 1.05. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section, the Trustee may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Notes in the manner set forth in Section 1.06. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section.

If an appointment with respect to the Notes is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s certification of authentication, an alternate certificate of authentication in the following form:

“This is one of the Notes designated therein described in the within-mentioned Indenture.

HSBC Bank USA, National Association,
as Trustee
By		By
	As Authenticating Agent		As Authenticating Agent”

ARTICLE VII

Holders’ Lists and Reports by Trustee and the Company

SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee, (a) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form as such Trustee may reasonably require, containing all the information in the possession or control of the Company or any of its Paying Agents other than such Trustee as to the names and addresses of the Holders as of such dates, and (b) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by such Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.

SECTION 7.02. Preservation of Information; Communications to Holders. The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 or received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act (as if the provisions of the Trust Indenture Act applied to this Indenture).

Every Holder of Notes, by receiving and holding the same, agrees with the Company, the Subsidiary Guarantors and the Trustee that neither the Company nor the Subsidiary Guarantors nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to this Article VII.

ARTICLE VIII

Consolidation, Merger, Conveyance or Transfer

SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. The Company will not, in a single transaction or a series of related transactions, consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets (computed on a consolidated basis) to, any Person or group of affiliated Persons, unless:

(a) the resulting, surviving or transferee Person shall be the Company or, if not the Company, shall be a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia (the “Successor Company”), and such Successor Company shall expressly assume, by an indenture supplemental to this Indenture, executed and delivered to the Trustee, all the obligations of the Company under the Notes and this Indenture (and the Subsidiary Guarantees, if applicable, shall be confirmed as applying to such Person’s obligations);

(b) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person or any Subsidiary as a result of such transaction as having been Incurred by such Person or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;

(c) immediately after giving effect to such transaction, the resulting, surviving or transferee Person would be able to Incur at least $1.00 of Indebtedness pursuant to Section 10.13(a) or the Consolidated Cash Flow Coverage Ratio of the resulting, surviving or transferee Person would be greater than immediately prior to such transaction; and

(d) the Company shall have delivered to the Trustee an Officer’s Certificate and if a supplemental indenture is required, an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.

The Successor Company will be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor company, in the case of a conveyance, transfer or lease, shall be released from its obligations under the Notes.

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of all or substantially all of the properties and assets of one or more Subsidiaries, the Company’s interest in which constitutes all or substantially all of the properties and assets of the Company will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

SECTION 8.02. Successor Person Substituted. Upon any consolidation or merger, or any conveyance, transfer or lease of all or substantially all of the assets of the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Notes and, in the event of any such consolidation, merger, conveyance, transfer or lease, the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up, or liquidated.

SECTION 8.03. Subsidiaries May Consolidate, Etc., Only on Certain Terms. The Company will not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to, any Person unless:

(a) the resulting, surviving or transferee Person shall be the Company or a Subsidiary Guarantor or, if not the Company or such a Subsidiary Guarantor, shall be a corporation, partnership, limited liability company or other entity organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any state thereof or the District of Columbia, and such Person shall expressly assume, by executing a Subsidiary Guarantee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;

(b) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; and

(c) the Company delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Subsidiary Guarantee, if any, complies with this Indenture.

The provisions of Section 8.03(a), (b) and (c) shall not apply to any one or more transactions which constitute (a) an Asset Disposition subject to the applicable provisions of Section 10.16 or (b) the grant of any Lien on the assets of a Restricted Subsidiary, which Lien is otherwise permitted by the terms of this Indenture, or any conveyance or transfer of such assets resulting from an exercise of remedies in respect of any such Lien.

Notwithstanding the foregoing, (i) the Company may merge with or into, or convey, transfer or lease all or substantially all of its assets to, any Subsidiary Guarantor, (ii) the Company may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company in another state of the United States of America or the District of Columbia, (iii) a Subsidiary Guarantor may merge with or into, or convey, transfer or lease all or substantially all of its assets to, the Company or any other Subsidiary Guarantor, (iv) a Subsidiary Guarantor may convey, transfer or otherwise dispose of receivables and related assets of the type specified in the definition of “Receivables Financing” in connection with a Qualified Receivables Financing or assets of the type specified in the definition of “Equipment Securitization Transaction” in connection with a Qualified Equipment Financing and (v) any Subsidiary Guarantor may convert into a corporation, partnership, limited liability company or similar entity or a trust organized under the laws of the jurisdiction of organization of such Subsidiary Guarantor.

ARTICLE IX

Supplemental Indentures

SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of the Notes, the Company and the Subsidiary Guarantors, when authorized by a Board Resolution, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:

(a) to cure any ambiguity, omission, defect or inconsistency or to effect any provision of this Indenture (including the release of any Subsidiary Guarantor in accordance with the terms of this Indenture);

(b) to provide for (x) the assumption by a Successor Company of the obligations of the Company under this Indenture or (y) the assumption by a successor guarantor of the obligations of a Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee as contemplated by Article VIII;

(d) to add guarantees with respect to the Notes or to secure the Notes;

(e) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power conferred upon the Company;

(f) to make any change that does not adversely affect the rights of any Holder in any material respect;

(g) to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act;

(h) to conform any non-conforming language or defined terms in the text of this Indenture or any Notes to any provision of the Description of Notes so that such provision reflects a verbatim recitation of a provision of such Description of Notes;

(i) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of the Notes; provided, however, that any such action shall not adversely affect the interests of the Holders of the Notes in any material respect;

(j) to evidence and provide for the acceptance of appointment hereunder of a successor Trustee, as Trustee, and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts under this Indenture by more than one Trustee, pursuant to the requirements thereunder;

(k) to provide for the issuance of Additional Notes permitted to be Incurred under this Indenture;

(l) to comply with the rules of any applicable securities depositary;

(m) to provide for the issuance of exchange notes or private exchange notes;

(n) to comply with the covenant relating to mergers, consolidations and sales of assets;

(o) to add or release a Guarantee with respect to the Notes in accordance with the terms of this Indenture and comply with the provisions described under Section 10.19 and/or Article XII (it being understood that such a release does not require a supplemental indenture);

(p) to provide for the succession of any parties to this Indenture;

(q) to provide for a reduction in the minimum denominations of the Notes; or

(r) to make any amendment to the provisions of this Indenture relating to the transfer and legending of the Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided that (a) compliance with this Indenture as so amended may not result in the Notes being transferred in violation of the Securities Act or any applicable securities laws and (b) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.

SECTION 9.02. Supplemental Indentures With Consent of Holders. Except as provided below in this Section 9.02, this Indenture may be amended with the consent of the holders of a majority in principal amount of the Notes then Outstanding voting as a single class (which consents may be obtained in connection with a tender offer or exchange for the Notes or an issuance of Additional Notes) and, subject to Sections 5.08 and 5.13, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture may also be waived with the consent of the Holders of a majority in principal amount of the Notes then Outstanding voting as a single class (which consents may be obtained in connection with a tender offer or exchange for the Notes or an issuance of Additional Notes).

Notwithstanding the foregoing, without the consent of each Holder of an Outstanding Note affected thereby, no amendment may:

(a) reduce the amount of Notes whose Holders must consent to an amendment or waiver;

(b) reduce the rate of or extend the time for payment of interest on any Note;

(d) reduce the premium payable upon the redemption of any Note or change the time at which any Note may be redeemed as set forth in Sections 11.08 and 11.09 or, after the occurrence of a Change of Control, alter the provisions (including definitions) set forth in Section 10.15 in a manner adverse to the Holders;

(e) make any Note payable in money or payable in a place other than that stated in the Note;

(f) impair the right of any holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

(g) make any change in the amendment provisions which require each Holder’s consent or in the waiver provisions;

(h) make any change in the ranking of the Notes as Senior Indebtedness that would adversely affect the Holders in any material respect;

(i) make any change in any Subsidiary Guarantee that would adversely affect the Holders in any material respect; or

(j) alter Section 11.11 (other than with respect to an extension of the Special Mandatory Redemption Outside Date).

It shall not be necessary for any Act of Holders to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such Act shall approve the substance thereof. For the avoidance of doubt, no amendment to, or deletion of, any of the covenants set forth in Sections 10.10 through 10.20 shall be deemed to impair or affect any rights of Holders of Notes to receive payment of, or premium, if any, or interest on, the Notes on or after the due dates therefor

After an amendment under this Indenture becomes effective, the Company is required to deliver to Holders, in the manner set forth in Section 1.06, a notice briefly describing such amendment. However, the failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of the amendment.

SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, in addition to the documents required by Section 1.02, an Opinion of Counsel and an Officer’s Certificate, each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise. Notwithstanding the forgoing, no Opinion of Counsel will be required for the Trustee to execute any amendment or supplemental indenture adding a new Subsidiary Guarantor under this Indenture.

SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 9.05. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion the Board of Directors of the Company, to any such supplemental indenture may be prepared and executed by the Company and such Notes may be authenticated and delivered by such Trustee in exchange for Outstanding Notes.

ARTICLE X

Covenants

SECTION 10.01. Payment of Principal (and Premium, If Any) and Interest, If Any. The Company agrees that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, in accordance with the terms of the Notes, and this Indenture. Principal, premium, if any, and interest, if any, shall be considered paid on the date due if the Paying Agent, if other than the Issuer or an Affiliate thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

SECTION 10.02. Maintenance of Office or Agency. The Company will maintain in the Place of Payment an office or agency where the Notes may be presented or surrendered for payment, an office or agency where the Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations (to the extent permitted by law), and surrenders of Notes may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee.

The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Notes may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such office or agency. The Company hereby designates as a Place of Payment for the Notes the office or agency of the Company in the Borough of Manhattan, the City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

SECTION 10.03. Money for Notes Payments To Be Held in Trust. If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:

(i) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(ii) give such Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any payment of principal (or premium, if any) and interest, if any; and

(iii) at any time during the continuation of any such default, upon the written request of the Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

SECTION 10.04. Statements as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company stating that:

(a) a review of the activities of the Company during such year and of performance under this Indenture has been made under his or her supervision; and

(b) to the knowledge of such officer, based on such review, the Company is in compliance with all conditions and covenants under this Indenture.

For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.

SECTION 10.05. Corporate Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and rights (charter and statutory); provided, however, that the Company shall not be required to preserve any right if an Officer (evidenced by an Officer’s Certificate) or the Board of Directors of the Company shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company.

SECTION 10.06. [Reserved]

SECTION 10.07. [Reserved]

SECTION 10.08. Statement by Officers as to Default. The Company shall deliver to the Trustee, within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or event and the action which the Company proposes to take with respect thereto.

SECTION 10.09. SEC Reports. Whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as the Notes are outstanding, the Company shall furnish to the Holders or post on its website or file with the SEC for public availability:

(a) within 90 days after the end of each fiscal year (or such other period then in effect under the rules and regulations promulgated under the Exchange Act with respect to the filing of an Annual Report on Form 10-K by a non-accelerated filer), an annual report as would be required to be filed with the SEC on Form 10-K if the Company were required to file such reports;

(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such other period then in effect under the rules and regulations promulgated under the Exchange Act with respect to the filing of a Quarterly Report on Form 10-Q by a non-accelerated filer), a quarterly report as would be required to be filed with the SEC on Form 10-Q if the Company were required to file such reports; and

(c) as soon as practicable (and in any event no later than five days after the period then in effect under the rules and regulations promulgated under the Exchange Act with respect to the filing of a Current Report on Form 8-K) after the occurrence of an event required to be therein reported, a current report as would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports;

provided, however, that, if the last day of any such period is not a Business Day, such report shall be due on the next succeeding Business Day. All such reports shall be prepared in all material respects in accordance with all of the rules and regulations of the SEC applicable to such reports, except that such reports (a) will not be required to include separate financial information that would be required by Rules 3-10 and 3-16 of Regulation S-X under the Securities Act and (b) will not be subject to the Trust Indenture Act.

The Company or any direct or indirect parent company of the Company shall maintain a public or non-public website on which Holders, prospective investors and securities analysts are given access to the annual and quarterly financial information described above. If the website containing the financial reports is not available to the public, the Company or any direct or indirect parent company of the Company shall direct Holders, prospective investors and securities analysts on its publicly available website to contact the Company to obtain access to the nonpublic website.

If any direct or indirect parent company of the Company guarantees the Notes on terms substantially similar to those applicable to Subsidiary Guarantees and files reports with the SEC in accordance with Section 13 of 15(d) of the Exchange Act, whether voluntarily or otherwise, in compliance with the filing periods specified in the first paragraph of this Section 10.09, then the Company shall be deemed to comply with this Section 10.09. For the avoidance of doubt, such reports need not include separate financial information required by Rules 3-10 and 3-16 of Regulation S-X under the Securities Act.

In addition, to the extent not satisfied by the foregoing, the Company hereby agrees, for so long as any Notes are outstanding, it shall furnish to Holders, securities analysts and prospective investors in the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Notwithstanding anything herein to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 5.01(d) until 120 days after the date any report hereunder is due, and failure to comply with this Section 10.09 shall be automatically cured when the Company or its direct or indirect parent company provides all required reports to the Holders or files all required reports with the SEC.

SECTION 10.10. Limitation on Restricted Payments. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of its Capital Stock in their capacities as such (except dividends or distributions payable solely in Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase its Capital Stock (other than Disqualified Stock) and except dividends or distributions payable to the Company or any Restricted Subsidiary (and, if the Restricted Subsidiary making such dividends or distributions has any stockholders other than the Company or another Restricted Subsidiary, to such stockholders on no more than a pro rata basis, measured by value)), (ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company or any Affiliate of the Company, (iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than (A) from the Company or a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement) or (iv) make any Restricted Investment (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment being herein referred to as a “Restricted Payment”) if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:

(i) an Event of Default shall have occurred and be continuing (or would result therefrom); or

(ii) the Company would not be permitted to issue an additional $1.00 of Indebtedness pursuant to Section 10.13(a) after giving pro forma effect to such Restricted Payment; or

(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments since March 31, 1998 would exceed the sum of, without duplication:

(A) 50.0% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the first full fiscal quarter commencing after March 31, 1998 to the end of the most recent fiscal quarter for which financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100.0% of such deficit) plus

(B) 100.0% of the aggregate net cash proceeds received by the Company and the fair market value, as determined in good faith by the Company, of marketable securities or other assets (including businesses and Capital Stock) received by the Company from (x) the issue or sale of its Capital Stock (other than Disqualified Stock) subsequent to March 31, 1998 (other than an issuance or sale to a Subsidiary or an employee stock ownership plan or similar trust in the benefit of employees) and (y) the issue or sale (other than an issuance or sale to a Subsidiary or an employee stock ownership plan or similar trust in the benefit of employees) after March 31, 1998 of Disqualified Stock or debt securities that have been converted or exchanged in accordance with their terms for Capital Stock of the Company (other than Disqualified Stock), in each case to the extent such proceeds are not used to redeem, repurchase, retire or otherwise acquire Capital Stock or any Indebtedness of the Company or any Restricted Subsidiary or to make any Investment pursuant to clause (8) of the definition of “Permitted Investment,” plus

(C) 100.0% of the aggregate amount of cash and the fair market value, as determined in good faith by the Company, of marketable securities or other property contributed to the capital of the Company after the Reference Date (other than any contribution made by a Restricted Subsidiary), plus

(D) to the extent not already included in Consolidated Net Income, 100.0% of the aggregate amount received in cash and the fair market value, as determined in good faith by the Company, of marketable securities or other property received by the Company after the Reference Date by means of:

(1) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of, or other returns on Investments from, Investments (excluding Permitted Investments) made by the Company or any Restricted Subsidiary and repurchases and redemptions of such Investments (excluding Permitted Investments) from the Company or any Restricted Subsidiary and repayments to the Company or a Restricted Subsidiary of loans or advances that constitute Investments (excluding Permitted Investments); or

(2) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary was made by the Company or a Restricted Subsidiary pursuant to clauses (vi) or (xiii) of paragraph (b) below or to the extent such Investment constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus; provided that the foregoing amounts in clause (1) and (2) shall not exceed, in the case of any such Investment or Unrestricted Subsidiary, the amount of Investments previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in respect of such Investment or Unrestricted Subsidiary; and

(E) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Reference Date, the fair market value of the Investment in such Unrestricted Subsidiary, as determined by the Company in good faith, not to exceed the amount of the Restricted Payment associated with the initial designation of such Subsidiary as an Unrestricted Subsidiary, at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary, other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary was made by the Company or a Restricted Subsidiary pursuant to clauses (vi) or (xiii) of paragraph (b) below or to the extent such Investment constituted a Permitted Investment.

(b) The foregoing provisions shall not prohibit:

(i) any purchase or redemption of Capital Stock or Subordinated Obligations of the Company made by exchange for, or out of the proceeds of the substantially concurrent sale or issuance of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan);

(ii) dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this provision; provided, however, that such dividend shall be deducted in the calculation of the amount of Restricted Payments available to be made referred to in Section 10.10(a)(iii);

(iii) the repurchase of shares of, or options to purchase shares of, Capital Stock of the Company or any of its Subsidiaries from employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of any repurchases pursuant to this Section 10.10(b)(iii) and any purchases pursuant to Section 10.10(b)(iv) shall not exceed $50.0 million per year (with unused amounts in any calendar year being carried over to the next one succeeding calendar year);

(iv) provided that no Default or Event of Default shall have occurred or be continuing at the time of such payment or after giving effect thereto, the purchase by the Company of shares of its common stock (for not more than fair market value) in connection with the delivery of such stock to grantees under any stock option plan (upon the exercise by such grantees of their stock options) or any other deferred compensation plan of the Company approved by the Board of Directors; provided, however, that the aggregate amount of any purchases pursuant to this Section 10.10(b)(iv) and any repurchases pursuant to Section 10.10(b)(iii) shall not exceed $125.0 million per year (with unused amounts in any calendar year being carried over to the next one succeeding calendar year);

(v) the redemption, purchase, retirement or other payoff of any Subordinated Obligations with the proceeds of any Indebtedness permitted to be incurred pursuant to the terms of Section 10.13(a) or Refinancing Indebtedness permitted to be incurred pursuant to the terms of Section 10.13(b)(vi);

(vi) provided that no Default or Event of Default shall have occurred or be continuing at the time of such payment or after giving effect thereto, other Restricted Payments in an aggregate amount not to exceed the greater of (A) $200.0 million and (B) 5.0% of Consolidated Tangible Assets as of the date of such Restricted Payment;

(vii) repurchases of Capital Stock deemed to occur upon netting for tax purposes or upon exercise of stock options, restricted stock or warrants if such Capital Stock represents a portion of the exercise price of such options, stock or warrants;

(viii) distributions or payments of (A) Receivables Fees and purchases of receivables and related assets of the type specified in the definition of “Receivables Financing” pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing or (B) Equipment Fees and purchases of assets of the type described under the definition of “Equipment Securitization Transaction” and related assets pursuant to an Equipment Repurchase Obligation in connection with a Qualified Equipment Financing;

(ix) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary of the Company by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and Cash Equivalents);

(x) cash payments, or dividends, distributions or advances by the Company or any Restricted Subsidiary to allow any such entity to make payments in cash, in lieu of the issuance of fractional shares upon the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company or any Restricted Subsidiary;

(xi) the declaration and payment of dividends and distributions to holders of Preferred Stock of the Company or Disqualified Stock of the Company Incurred in accordance with Section 10.13 to the extent such dividends are included in the definition of Consolidated Interest Expense;

(xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Obligations in accordance with provisions similar to those set forth under Section 10.15 and Section 10.16; provided, however, that, prior to such repurchase, redemption, acquisition or retirement for value, the Company (or a third party to the extent permitted by this Indenture) shall have made a Change of Control offer or Asset Disposition offer, as the case may be, with respect to the Notes and shall have repurchased, redeemed, acquired or retired for value all Notes validly tendered and not withdrawn in connection with such Change of Control offer or Asset Disposition offer;

(xiii) Investments in Unrestricted Subsidiaries: provided, however, that at the time of any such Investment and immediately after giving effect thereto (A) the Fair Market Value of such Investment, taken together with the aggregate Fair Market Value of all other Investments made pursuant to this Section 10.10(b)(xiii) and clause (13)(A) of the definition of “Permitted Investments” that are at that time outstanding, does not exceed the greater of (x) $465.0 million and (y) 13.0% of Consolidated Tangible Assets as of the date of such Investment (with the Fair Market Value of each such Investment being measured at the time made and without giving effect to subsequent changes in value) or (B) the Consolidated Total Net Debt Ratio is less than or equal to 3.75 to 1.00;

(xiv) the redemption, repurchase, acquisition or retirement of Capital Stock in any Restricted Subsidiary;

(xv) purchases of shares of, or options to purchase shares of, Capital Stock of the Company in the open market to satisfy the Company’s obligations under any of its 401(k) plans, employee stock purchase plans or deferred compensation plans;

(xvi) [reserved]; and

(xvii) other Restricted Payments, so long as the Consolidated Total Net Debt Ratio of the Company and its Restricted Subsidiaries on a consolidated basis is no greater than 3.50 to 1.00.

In determining whether any Restricted Payment is permitted by this Section 10.10, the Company and its Restricted Subsidiaries may allocate all or any portion of such Restricted Payment among the categories described in Section 10.10(b)(i) through (b)(xvii) or among such categories and the types of Restricted Payments described in Section 10.10(a) (including categorization in whole or in part as a Permitted Investment); provided that, at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of this Section 10.10 and provided further that the Company and its Restricted Subsidiaries may, consistent with the terms of this Section 10.10, reclassify all or a portion of such Restricted Payment or Permitted Investment in any manner that complies with this Section 10.10 (based on circumstances existing at the time of such reclassification), and following such reclassification such Restricted Payment or Permitted Investment shall be treated as having been made pursuant to only this Section 10.10 to which such Restricted Payment or Permitted Investment has been reclassified. For purposes of determining when a Restricted Payment is made in respect of a keepwell or other comfort letter arrangement or agreement by the Company or any Restricted Subsidiary for the benefit of an Unrestricted Subsidiary, such Restricted Payment shall be deemed made at such time as the amount of the obligation of the Company or such Restricted Subsidiary is quantifiable.

SECTION 10.11. Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Company or a Restricted Subsidiary, (b) make any loans or advances to the Company or any other Restricted Subsidiary or (c) transfer any of its property or assets to the Company or any other Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of:

(a) the Credit Agreement or any other agreement or instrument as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, replacements or refinancings are no more materially restrictive with respect to such dividend and other payment restrictions than those contained in the Credit Agreement or such agreement (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing;

(b) applicable law or any applicable rule, regulation or order;

(c) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition); provided, however, that such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person;

(d) by reason of customary non-assignment provisions in leases or other agreements entered into the ordinary course of business and consistent with past practices;

(e) Finance Lease Obligations and Purchase Money Indebtedness that only impose restrictions on the property so acquired;

(f) an agreement for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 10.16;

(g) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more materially restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing;

(h) customary provisions in joint venture agreements, sale-leaseback agreements, partnership agreements, limited liability company operating agreements and other similar agreements;

(i) any encumbrance or restriction of (A) a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary or (B) an Equipment Subsidiary effected in connection with a Qualified Equipment Financing; provided, however, that such restrictions apply only to such Equipment Subsidiary;

(j) any Restricted Payment not prohibited by Section 10.10 and any Permitted Investment;

(k) Indebtedness secured by a Lien otherwise permitted to be Incurred pursuant to Section 10.13 and Section 10.17 that limit the right of the debtor to dispose of the assets securing such Indebtedness;

(l) any agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date by Section 10.13 (A) if the encumbrance and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the holders of the Notes than the encumbrances and restrictions contained in this Indenture or the Credit Agreement in effect as of the Issue Date (as determined in good faith by the Company) or (B) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal and interest payments on the Notes as and when they become due or (C) such encumbrance or restriction applies only if a default occurs in respect of a payment or a financial covenant relating to such Indebtedness;

(m) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; or

(n) any encumbrances or restrictions of the type referred to in Section 10.11(a), (b) and (c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Section 10.11(a) through (m); provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more materially restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the ordinary course of business, consistent with past practice, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the ability of the applicable Restricted Subsidiary to transfer such agreements or assets, as the case may be.

SECTION 10.12. Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into any transaction or series of similar transactions involving an amount in excess of $25.0 million (including the purchase, sale, lease or exchange of any asset or property or the rendering of any service) with any Affiliate of the Company (other than any employee stock ownership plan for the benefit of the Company’s or a Restricted Subsidiary’s employees) unless the terms of such business, transaction or series of transactions are:

(i) not materially less favorable to the Company or such Restricted Subsidiary taken as a whole than terms that would be obtainable at the time for a comparable transaction or series of similar transactions in arms length dealings with an unrelated third Person; and

(ii) if such business, transaction or series of similar transactions involves an amount in excess of $50.0 million, the terms of such business, transaction or series of similar transactions shall be in writing and a majority of the disinterested members of the Board of Directors shall have, by resolution, determined in good faith that such business or transaction or series of transactions meets the criteria set forth in (i) above.

(b) The provisions of Section 10.12(a) shall not apply to:

(i) any Restricted Payment permitted to be made pursuant to Section 10.10, any payment or transaction specifically excepted from the definition of Restricted Payment or any Permitted Investment;

(ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans entered into in the ordinary course of business and approved by a majority of the entire Board of Directors or by a majority of the disinterested members of the Board of Directors or a majority of the entire board of directors or a majority of the disinterested members of the board of directors of the relevant Restricted Subsidiary;

(iii) the grant of stock options or similar rights to employees and directors pursuant to plans approved by a majority of the entire Board of Directors or by a majority of the disinterested members of the Board of Directors or a majority of the entire board of directors or a majority of the disinterested members of the board of directors of the relevant Restricted Subsidiary;

(iv) loans or advances to officers, directors or employees in the ordinary course of business;

(v) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries;

(vi) any business transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries;

(vii) indemnification or insurance provided to officers or directors of the Company or any Subsidiary approved in good faith by the Board of Directors (or a committee thereof);

(viii) payment of compensation and benefits to directors, officers and employees of the Company and its Subsidiaries approved in good faith by the Board of Directors (or a committee thereof);

(ix) the purchase of or the payment of Indebtedness of or monies owed by the Company or any of its Restricted Subsidiaries for goods or materials purchased, or services received, in the ordinary course of business;

(x) the existence of, or the performance by the Company or any of its Restricted Subsidiaries under the terms of, any agreement or instrument as in effect on the Issue Date or any amendment thereto (so long as any such agreement or instrument together with all amendments thereto, taken as a whole, is not more disadvantageous to the holders of the Notes in any material respect than the original agreement or instrument as in effect on the Issue Date) or any transaction contemplated thereby;

(xi) any transactions, arrangements or agreements effected as part of a Qualified Receivables Financing or a Qualified Equipment Financing;

(xii) intercompany transactions, arrangements or agreements in effect on the Issue Date;

(xiii) transactions with joint ventures, Unrestricted Subsidiaries or other Affiliates entered into in the ordinary course of business or where the Affiliate relationship arises by virtue of its equity ownership interest;

(xiv) the payment of premiums, receipt of proceeds and other finance-related transactions in each case on terms customary for such transactions between the Company or any Restricted Subsidiary of the Company and any Affiliate of the Company that is a “captive finance” entity whose primary business is providing financing to customers of the Company or any Restricted Subsidiary;

(xv) transactions in which the Company or any of the Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from a nationally recognized independent investment banking firm, accounting firm or appraisal firm with experience in evaluating the terms and conditions of such type of business or transactions stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view; and

(xvi) pledges of Capital Stock of Unrestricted Subsidiaries.

SECTION 10.13. Limitation on Indebtedness and Preferred Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness), and shall not permit any Restricted Subsidiary to issue Preferred Stock; provided that the Company may Incur Indebtedness (including Acquired Indebtedness), and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) and issue Preferred Stock if, on the date of such Incurrence, and after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing or would occur and (ii) the Consolidated Cash Flow Coverage Ratio for the most recently ended four full fiscal quarters for which financial information is available to holders immediately preceding the date on which such additional Indebtedness is Incurred would have exceeded 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of the proceeds therefrom had occurred at the beginning of such four-quarter period.

(b) Section 10.13(a) shall not apply to:

(i) Indebtedness Incurred pursuant to a Credit Facility in an aggregate outstanding principal amount not to exceed (A) the greater of (1) $2,050.0 million at any time outstanding and (2) the sum of (x) 80.0% of the consolidated book value of the net accounts receivable of the Company and its Restricted Subsidiaries and (y) 50.0% of the consolidated book value of the inventory of the Company and its Restricted Subsidiaries, in each case determined on a pro forma basis in accordance with GAAP, plus (B) the greater of (i) $925.0 million and (ii) 100.0% of Cash Flow for the period of the most recent four consecutive fiscal quarters for which financial statements are internally available, plus (C) an additional amount such that, on a pro forma basis after giving effect to the Incurrence of such Indebtedness and the application of the proceeds therefrom, the Consolidated Senior Secured Net Debt Ratio (before giving effect to any amount incurred simultaneously under clause (A) above) (i) would be less than or equal to 2.75 to 1.00 or (ii) if Incurred in connection with any acquisition or similar Investment permitted hereunder, would be less than or equal to the Consolidated Senior Secured Net Debt Ratio as of the last day of the most recently ended four full fiscal quarters for which financial statements are internally available; provided that for purposes of determining the amount of Indebtedness that may be Incurred under this clause (i), all Indebtedness Incurred under this clause (i) (whether secured or unsecured) shall be included in the numerator used in the calculation of the Consolidated Senior Secured Net Debt Ratio;

(ii) Indebtedness of the Company owed to and held by a Restricted Subsidiary or Indebtedness or Preferred Stock of a Restricted Subsidiary issued to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock that results in any such Subsidiary ceasing to be a Restricted Subsidiary, or (B) any subsequent transfer of such Indebtedness or Preferred Stock (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness or Preferred Stock by the issuer thereof;

(iii) the Notes (other than Additional Notes);

(iv) Acquired Indebtedness or any Indebtedness incurred to finance acquisitions; provided, however, that after giving effect to such Incurrence and merger, consolidation or acquisition, if more than the greater of (x) $280.0 million and 8.0% of Consolidated Tangible Assets of Acquired Indebtedness or Indebtedness Incurred to finance acquisitions is at any time outstanding under this clause (iv): (A) the Company could incur $1.00 of Indebtedness pursuant to paragraph (a) above, (B) the Consolidated Cash Flow Coverage Ratio of the Company would be greater than immediately prior to such merger, consolidation or acquisition of assets giving rise to the Incurrence of such Indebtedness or (C) the Consolidated Total Net Debt Ratio would be less than or equal to 3.75 to 1.00;

(v) Indebtedness or, in the case of a Restricted Subsidiary, Preferred Stock (other than Indebtedness (or, in the case of a Restricted Subsidiary, Preferred Stock) described in clause (i), (ii), or (iii) above) outstanding on the Issue Date (including the Existing Notes and the Guarantees in respect of the Existing Notes);

(vi) any Refinancing Indebtedness in respect of Indebtedness (or, in the case of a Restricted Subsidiary, Preferred Stock) Incurred pursuant to paragraph (a) or referred to in clause (iii), (iv) or (v) or this clause (vi) of this paragraph (b);

(vii) Obligations of the Company or a Restricted Subsidiary pursuant to (A) Interest Rate Protection Agreements in respect of Indebtedness of the Company or such Restricted Subsidiary that is permitted by the terms of this Indenture to be outstanding to the extent the notional principal amount of such obligation does not exceed the aggregate principal amount of the Indebtedness to which such Interest Rate Protection Agreements relate, (B) Currency Agreement Obligations in respect of foreign exchange exposures of the Company or such Restricted Subsidiary and (C) commodity agreements of the Company or such Restricted Subsidiary to the extent designed to protect the Company or such Restricted Subsidiary from fluctuations in the prices of raw materials used in its business;

(viii) Indebtedness of the Company or any Restricted Subsidiary consisting of Obligations in respect of indemnification, purchase price adjustments, earnouts or similar obligations Incurred or assumed, in each case, in connection with the acquisition or disposition of assets by the Company or any Restricted Subsidiary permitted under this Indenture;

(ix) Finance Lease Obligations, mortgage financings, Purchase Money Indebtedness and Acquired Indebtedness; provided, however, that at the time of such Incurrence, creation or assumption and immediately after giving effect thereto the aggregate principal amount of Finance Lease Obligations, mortgage financings, Purchase Money Indebtedness and Acquired Indebtedness Incurred, created or assumed pursuant to this clause (ix) does not exceed the sum of (A) the greater of (x) $280.0 million and (y) 8.0% of Consolidated Tangible Assets as of the date of such Incurrence, creation or assumption and (B) Indebtedness in an amount such that Consolidated Total Net Debt Ratio is equal to 3.75 to 1.00;

(x) performance bonds, appeal and surety bonds, completion guarantees, insurance obligations or bonds and other similar bonds or obligations incurred by the Company or a Restricted Subsidiary in the ordinary course of business consistent with past practice;

(xi) (A) Indebtedness in respect of Retained Recourse Equipment Loans so long as the Retained Recourse Amount does not exceed $1,000.0 million at any time and (B) Floor Plan Guarantees;

(xii) Indebtedness resulting from endorsement of negotiable instruments for collection in the ordinary course of business;

(xiii) Indebtedness arising under indemnity agreements to title insurers to cause such title insurers to issue to one or more collateral agents under Credit Facilities mortgagee title insurance policies;

(xiv) other Indebtedness and Preferred Stock; provided, however, that at the time of such Incurrence, creation or assumption and immediately after giving effect thereto (A) the aggregate principal amount or liquidation preference, as applicable, of such other Indebtedness and Preferred Stock of the Company and its Restricted Subsidiaries Incurred, created or assumed pursuant to this clause (xiv) and then outstanding does not exceed the greater of (x) $695.0 million and (y) 19.0% of Consolidated Tangible Assets as of the date of such Incurrence, creation or assumption or (B) the Consolidated Total Net Debt Ratio is less than or equal to 3.75 to 1.00;

(xv) Indebtedness of Foreign Subsidiaries of the Company (A) in an amount not to exceed at any one time outstanding and together with any other Indebtedness Incurred under this clause (xv) the greater of (x) $695.0 million and (y) 19.0% of Consolidated Tangible Assets of Foreign Subsidiaries or (B) Incurred to finance working capital or for other operational purposes of such Foreign Subsidiary, including capital expenditures and acquisitions;

(xvi) Indebtedness Incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not with recourse to the Company or any Restricted Subsidiary other than a Receivables Subsidiary (except for Standard Securitization Undertakings);

(xvii) Indebtedness consisting of (A) financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(xviii) the Guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or any other Restricted Subsidiary that was permitted to be Incurred by another provision of this Section 10.13; provided, however, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee thereof Incurred pursuant to this Section 10.13(b)(xviii) shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness being Guaranteed;

(xix) Indebtedness Incurred by the Company or any Restricted Subsidiary (x) in respect of any bankers’ acceptance, bank guarantees, discounted bill of exchange or the discounting or factoring of receivables, warehouse receipt or similar facilities, and reinvestment obligations related thereto, entered into in the ordinary course of business and (y) constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, leases, litigation and appeals thereof, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, environmental and other permits or licenses from governmental authorities and other letters of credit in connection with transactions in the ordinary course of business; provided, however, that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

(xx) Indebtedness Incurred by an Equipment Subsidiary in a Qualified Equipment Financing that is not with recourse to the Company or any Restricted Subsidiary other than an Equipment Subsidiary (except for Standard Securitization Undertakings);

(xxi) Indebtedness arising from (i) Bank Products and (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that in the case of this clause (ii) such Indebtedness is extinguished within ten Business Days of its Incurrence;

(xxii) guarantees (a) Incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors and licensees that, in each case, are non-Affiliates or (b) otherwise constituting Investments permitted under this Indenture;

(xxiii) Indebtedness issued by the Company or any of its Restricted Subsidiaries to current or former employees, directors, managers and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Capital Stock of the Company or any direct or indirect parent company of the Company to the extent described in Section 10.10(b)(iii); provided, however*,*such Indebtedness incurred pursuant to this clause (xxiii) is subordinated in right of payment to the Company’s Obligations with respect to this Indenture;

(xxiv) Indebtedness owed on a short-term basis of no longer than 30 days to banks and other financial institutions Incurred in the ordinary course of business of the Company and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Company and its Restricted Subsidiaries;

(xxv) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; and

(xxvi) Cash Management Services Incurred not for speculative purposes.

(c) Except to the extent that such Indebtedness is permitted to be Incurred pursuant to Section 10.13(a), the Company shall not Incur any Indebtedness if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations, unless such Indebtedness shall be subordinated to the Notes to at least the same extent as such Subordinated Obligations.

(d) For purposes of determining compliance with this Section 10.13, in the event that an item of Indebtedness meets the criteria of more than one of the types of permitted Indebtedness set forth in Section 10.13(b)(i) through (b)(xxvi) or is entitled to be Incurred pursuant to Section 10.13(a), the Company, in its sole discretion, will be entitled to classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness or Preferred Stock (or any portion thereof) in any manner that complies with this Section 10.13; provided, however, that all Indebtedness under the Credit Agreement outstanding on the Issue Date and the Acquisition Closing Date shall be deemed to have been Incurred pursuant to Section 10.13(b)(i) and the Company shall not be permitted to reclassify all or any portion of such Indebtedness under the Credit Agreement. The Company shall be required to include the amount and type of any Indebtedness or Preferred Stock (or any portion thereof) in one or more of clauses (i) through (xxvi) of Section 10.13(b). At the time of Incurrence, the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Section 10.13(a) and (b) without giving pro forma effect to the Incurrence on the same date of any Indebtedness pursuant to Section 10.13(b) when calculating the amount of Indebtedness that may be Incurred pursuant to Section 10.13(a). To the extent any item of Indebtedness that is Guaranteed or secured by a Lien is reclassified, each of the Incurrence of the Indebtedness upon reclassification, the Incurrence of the Guarantee of such Indebtedness upon reclassification and the Incurrence of the Lien upon reclassification must be permitted under this Indenture in order for the Company to make such reclassification.

(e) For purposes of determining amounts of Indebtedness under Section 10.13, Indebtedness resulting from security interests granted with respect to Indebtedness otherwise included in the determination of Indebtedness, and Guarantees (and security interests with respect thereof) of, or obligations with respect to letters of credit supporting, Indebtedness otherwise included in the determination of Indebtedness shall not be included in the determination of Indebtedness.

(f) Indebtedness of any Person that is outstanding at the time such Person becomes a Restricted Subsidiary of the Company (including upon designation of any subsidiary or other person as a Restricted Subsidiary) or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred at the time such Person becomes such a Restricted Subsidiary of the Company or merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company, as applicable.

(g) For purposes of determining compliance with this Section 10.13, the Incurrence of Indebtedness with respect to keepwell or other comfort letter arrangements or agreements given by the Company for the benefit of Unrestricted Subsidiaries shall be deemed to be an Incurrence of Indebtedness at such time as the amount of the obligation of the Company thereunder is quantifiable.

(h) The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness or Preferred Stock will not be deemed to be an Incurrence of Indebtedness or Preferred Stock for purposes of this Section 10.13.

(i) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or incurred (whichever yields the lowest U.S. dollar-equivalent), in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased. The principal amount of any Indebtedness incurred to extend, replace, refund, refinance, renew or defease other Indebtedness, if incurred in a different currency from the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance.

(j) In connection with the Incurrence of any commitment relating to the Incurrence or issuance of Indebtedness or Preferred Stock under this Section 10.13 (including revolving credit Indebtedness) and the granting of any Lien to secure such Indebtedness, the Company or applicable Restricted Subsidiary may designate such Incurrence and the granting of any Lien securing the same as having occurred on the date of first Incurrence of such commitment (such date, the “Deemed Date”) and, if the Incurrence of such commitment and the granting of any Lien securing the same would be permitted under this Section 10.13 and Section 10.17, as applicable, as of such Deemed Date in reliance on a financial ratio-based exception or basket, such committed amount may thereafter be Incurred (and, in the case of commitments of a revolving nature, reborrowed), in whole or in part, from time to time, and such Liens may be granted without any further testing of such financial ratio; provided, that all calculations under this Indenture on and after the Deemed Date until the termination of such commitment shall be made on a pro forma basis to give effect to the deemed Incurrence or issuance of the full amount of such commitment and the granting of any such Lien, as applicable.

SECTION 10.14. Limitation on Sale/Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary, to enter into any Sale/Leaseback Transaction with respect to any property unless: (1) the Company or such Restricted Subsidiary would be entitled to (A) other than during the continuance of a Suspension Period, Incur Indebtedness in an amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant to Section 10.13 and (B) create a Lien on such property securing such Attributable Debt without equally and ratably securing the Notes pursuant to Section 10.17; provided, however, that whether or not the Company or any Restricted Subsidiary could create such a Lien as set forth in Section 10.14(1)(B), and in addition to any Permitted Liens, the Company or any Restricted Subsidiary shall be entitled to create Liens to secure Attributable Debt in respect of Sale/Leaseback Transactions in an aggregate principal amount at any one given time outstanding that does not exceed 2.0% of Consolidated Tangible Assets as of the date of such Incurrence without equally and ratably securing the Notes; (2) the gross proceeds received by the Company or such Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at least equal to the fair market value of such property; and (3) to the extent that such Sale/Leaseback Transaction involves an Asset Disposition, the Company or any Restricted Subsidiary applies the proceeds of such transaction in compliance with Section 10.16.

SECTION 10.15. Change of Control. (a) Upon a Change of Control, each Holder shall have the right to require the Company repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest on the relevant Interest Payment Date).

(b) Not later than 15 Business Days following any Change of Control, except to the extent we have elected to redeem the Notes as described under Section 11.08, the Company shall send electronically or by mail a notice to the Trustee and each Holder (or otherwise provide notice to each Holder in accordance with the procedures of the Depositary, with a copy to the Trustee) stating:

(i) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest on the relevant Interest Payment Date);

(ii) the circumstances and relevant facts regarding such Change of Control;

(iii) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is sent, except in the case of a conditional Change of Control offer made in advance of a Change of Control as described below);

(iv) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control offer is conditional on the occurrence of such Change of Control; and

(v) the instructions determined by the Company, consistent with this Section 10.15, that a Holder must follow in order to have its Notes purchased.

(c) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 3:00 p.m. New York City time two Business Days prior to the date required for participation, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased.

(d) On the purchase date, all Notes purchased by the Company under this Section 10.15 shall be delivered to the Trustee for cancellation, and the Company shall pay or cause to be paid the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto.

(e) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate, upon which the Trustee may conclusively rely, stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 10.15. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers in accordance with the procedures of the Depositary payment therefor to the surrendering Holder.

(f) The Company shall comply in all material respects, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 10.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.15 by virtue of the Company’s compliance thereof.

(g) The Company may make a Change of Control offer in advance of a Change of Control, conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the Change of Control offer and the Change of Control payment date may be extended automatically until such Change of Control occurs.

(h) The Company shall not be required to make a Change of Control offer following a Change of Control if (1) a third party (including any of the Company’s Restricted Subsidiaries) makes the Change of Control offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control offer, or (2) a notice of redemption has previously been given for all of the Notes pursuant to this Indenture as described above under Section 11.08 (which is or has become unconditional) unless and until there is a default in the payment of the applicable redemption price.

SECTION 10.16. Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Disposition unless:

(i) The Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Company (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition and at least 75.0% of the consideration thereof received, together with all other Asset Dispositions since the Reference Date (on a cumulative basis), by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however*,* that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or (y) for aggregate consideration of less than $100.0 million, only 50.0% of the consideration therefor must be in the form of cash or Cash Equivalents; provided further that:

(A) any promissory notes, securities or other obligations or amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i), and

(B) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 10.16(a)(i)(B) that is at that time outstanding, not to exceed the greater of (x) $225.0 million and (y) 6.0% of Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i); and

(ii) an amount equal to 100.0% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be), at its option except as described below:

(A) (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay or purchase Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (y) at the Company’s election, to the investment by the Company or such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Acquisition Closing Date, in each case within 365 days from the date of such Asset Disposition, or (z) a combination of the foregoing purposes within such 365-day period; or

(B) to make a pro rata offer to purchase Notes at par (and, to the extent required by the instrument governing such Indebtedness, any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within 10 Business Days after such period; and

(C) to the extent of the balance of such Net Available Cash after application in accordance with Sections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), for general corporate purposes otherwise permitted under this Indenture;

provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Sections 10.16(a)(ii)(A) or 10.16(a)(ii)(B), the Company or such Subsidiary shall retire such Indebtedness and cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, further, that in connection with any investment pursuant to Section 10.16(ii)(A)(y) above, a binding commitment entered into during the 365-day period described in Section 10.16(ii)(A) above shall be treated as a permitted application of the Net Available Cash from such Asset Disposition from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good-faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided, further, that, if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then the Company and its Restricted Subsidiaries shall be required to apply such Net Available Cash in accordance with this Section 10.16.

Notwithstanding the foregoing provisions of this Section 10.16, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since the Issue Date) which are not applied in accordance with this Section 10.16 exceeds the greater of (i) $235.0 million and (ii) 6.0% of Consolidated Tangible Assets as of the date of such Asset Disposition.

For the purposes of this Section 10.16, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes or to any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Restricted Subsidiary has been validly released by all creditors in writing.

(b) In the event of an Asset Disposition that results in an offer to purchase the Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to Section 10.16(a)(ii)(B), the Company or such Restricted Subsidiary shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and, to the extent required, other Senior Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100.0% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than the greater of (i) $235.0 million and (ii) 6.0% of Consolidated Tangible Assets (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions.

Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in cash and Cash Equivalents or Investment Grade Securities.

(c) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 10.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.16(c) by virtue thereof.

SECTION 10.17. Limitation on Liens.

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or Incur any Lien (the “Initial Lien”), other than Permitted Liens, upon any of its property or assets (including Capital Stock of Restricted Subsidiaries), whether owned on the Issue Date or acquired after that date, which Lien secures any Indebtedness, unless contemporaneously with the Incurrence of such Lien effective provision is made to secure the Indebtedness due with respect to the Notes or, with respect to Liens on any Restricted Subsidiary's property or assets, any Subsidiary Guarantee of such Restricted Subsidiary, equally and ratably with (or prior to in the case of Liens with respect to Subordinated Obligations) the Indebtedness secured by such Lien for so long as such Indebtedness is so secured. Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged (i) upon the release and discharge of the Initial Lien, (ii) upon the sale or other disposition of the assets subject to such Initial Lien (or the sale or other disposition of the Person that owns such assets) in compliance with the terms of this Indenture, (iii) upon the designation of a Restricted Subsidiary whose property or assets secure such Initial Lien as an Unrestricted Subsidiary in accordance with the terms of this Indenture or (iv) upon the effectiveness of any defeasance or satisfaction and discharge of the Notes as specified in this Indenture.

(b) For purposes of determining compliance with Section 10.17(a), (i) a Lien need not be incurred solely by reference to one category of Permitted Liens but may be incurred under any combination of such categories (including in part under one such category and in part under any one or more of such other such categories) and (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories, the Company, in its sole discretion, may divide and/or classify, or at any later time re-divide and/or reclassify, such Lien (or any portion thereof) in any manner that complies with the definition of “Permitted Liens”; provided, however, that all Liens incurred with respect to the Credit Agreement as in effect on the Issue Date and the Acquisition Closing Date shall be deemed to have been incurred under clause (14) of the definition of “Permitted Liens” and the Company shall not be permitted to reclassify all or any portion of such Liens under the Credit Agreement.

SECTION 10.18. Limitation on Designations of Unrestricted Subsidiaries. The Company shall be entitled to designate any Subsidiary of the Company (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) as an Unrestricted Subsidiary (a “Designation”) only if:

(a) no Default shall have occurred and be continuing at the time of or after giving effect to such Designation; and

(b) either (x) the Company’s Investment in such Subsidiary does not exceed $1,000 or (y) the Company would be permitted to make an Investment under Section 10.10 at the time of Designation (assuming the effectiveness of such Designation) in an amount (the “Designation Amount”) equal to the fair market value of the Company’s Investment in such Subsidiary on such date.

In the event of any such Designation, the Company shall be deemed to have made an Investment constituting a Restricted Payment pursuant to Section 10.10 in the Designation Amount. Further, the Company shall not, and shall not permit any Restricted Subsidiary to, at any time:

(1) provide credit support for, or a guarantee of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);

(2) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or

(3) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary),

except, in the case of clauses (1), (2) and (3) of this Section 10.18, to the extent permitted under Section 10.10 and Section 10.13; provided, however, that with respect to entering into keepwell or other comfort letter arrangements, such arrangements and agreements shall be deemed to be an Incurrence of Indebtedness or a Restricted Payment at such time as the amount of the obligation of the Company or such Restricted Subsidiary with respect thereto is quantifiable. Standard Securitization Undertakings with respect to (x) a Qualified Receivables Financing of a Receivables Subsidiary are not prohibited by clauses (1), (2) and (3) above and (y) a Qualified Equipment Financing of an Equipment Subsidiary are not prohibited by clauses (1), (2) and (3) above.

The Company shall be entitled to revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) if:

(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and

(2) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Indenture and for all purposes of this Indenture shall be deemed to have been Incurred at such time.

All Designations and Revocations must be evidenced by an Officer’s Certificate delivered to the trustee attaching a certified copy of the resolutions of the Board of Directors giving effect to such Designation or Revocation, as applicable, and certifying compliance with the foregoing provisions.

SECTION 10.19. Future Subsidiary Guarantors. The Company shall not permit any existing or future Wholly Owned Subsidiary that is not a Subsidiary Guarantor (other than an Excluded Subsidiary) to Guarantee any Indebtedness of the Company or any Restricted Subsidiary under the Credit Agreement unless such Wholly Owned Subsidiary executes a supplemental indenture to this Indenture providing for the Guarantee of the payment of the Notes by such Wholly Owned Subsidiary in the form set forth in Exhibit B to this Indenture within 30 days of such Guarantee of such Indebtedness.

SECTION 10.20. Suspended Covenants. (a) During any period of time that (i) the Notes have Investment Grade Ratings from both Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture (the occurrence of the events set forth in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”) then, the covenants in Sections 8.01(c), 10.10, 10.11, 10.12, 10.13, 10.16, 10.18 and 10.19 will not be applicable to the Notes (collectively, the “Suspended Covenants”).

(b) In the event that the Company or any Restricted Subsidiary is not subject to the Suspended Covenants under this Indenture for any period of time as a result of Section 10.20(a), and on any subsequent date (the “Reversion Date”) one or both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, then the Company or any Restricted Subsidiary shall thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events. The period of time between the suspension date and the Reversion Date is referred to as the “Suspension Period”. Any Subsidiary Guarantees granted by the Subsidiary Guarantors prior to any Suspension Period shall be suspended during the Suspension Period. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Net Available Cash from all Asset Dispositions (including Asset Dispositions made since the Issue Date) which are not applied in accordance with Section 10.16 shall be reset to zero.

(c) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by the Company or any of its Restricted Subsidiaries prior to the Reversion Date shall give rise to a Default or Event of Default under this Indenture with respect to the Notes; provided that (1) with respect to Restricted Payments made after such Reversion Date, the amount of Restricted Payments made will be calculated as though Section 10.10 had been in effect prior to and during the Suspension Period; (2) all Indebtedness incurred or issued, or Disqualified Stock issued, during the Suspension Period shall be classified to have been incurred or issued pursuant to Section 10.13(b)(v); (3) to the extent any Indebtedness is incurred or issued during the Suspension Period that would have required the Restricted Subsidiaries to become Subsidiary Guarantors and such Indebtedness is outstanding on the Reversion Date, such requirement shall become effective on the Reversion Date; (4) to the extent that any Liens are incurred during the Suspension Period such Liens shall be classified to have been incurred pursuant to clause (11) of the definition of Permitted Liens in Section 1.01 and (5) the applicable Subsidiary Guarantees shall be reinstated to the extent required by Section 10.19.

(d) The Company shall deliver promptly to the Trustee an Officer’s Certificate of the Company notifying it of any event set forth under this Section 10.20.

SECTION 10.21. Withholding Tax. Notwithstanding any other provision of this Indenture, the Company and the Trustee shall be entitled to make a deduction or withholding from any payment which it makes under this Indenture for or on account of any present or future taxes, duties, assessments or government charges if and to the extent so required by applicable law, in which event the Company or Trustee, as applicable, shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.

SECTION 10.22. Financial Calculations for Limited Condition Acquisitions. When calculating the availability under any basket or ratio under this Indenture, in each case in connection with a Limited Condition Acquisition (including, without limitation, any Incurrence of Indebtedness to finance such Limited Condition Acquisition), the date of calculation of such basket or ratio and determination as to whether any Default or Event of Default shall have occurred and be continuing may, at the option of the Company, be the date the definitive documentation with respect to such Limited Condition Acquisition is entered into and, if the Company so elects, such baskets or ratios shall be calculated on a pro forma basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable reference period for purposes of determining the ability to consummate any such Limited Condition Acquisition, and, for the avoidance of doubt, (a) if any of such baskets or ratios are exceeded as a result of fluctuations in such basket or ratio (including due to fluctuations in Cash Flow of the Company or the target company) subsequent to such date of determination and at or prior to the consummation of the relevant Limited Condition Acquisition, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (b) such baskets or ratios need not be tested at the time of consummation of such Limited Condition Acquisition or related transactions; provided, however, that if the Company elects to have such calculation and determination occur at the time of entry into such definitive documentation, any such transactions (including any Incurrence of Indebtedness and the use of proceeds thereof) shall be deemed to have occurred on the date the definitive documentation is entered into for purposes of calculating any baskets or ratios under this Indenture after the date of such documentation and before the consummation of such Limited Condition Acquisition or, if applicable, the date that the definitive documentation with respect to such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition.

ARTICLE XI

Redemption of Notes

SECTION 11.01. Applicability of this Article. Redemption of Notes as permitted or required by any form of Note issued pursuant to this Indenture shall be made in accordance with such form of Note and this Article XI; provided, however, that if any provision of any such form of Note shall conflict with any provision of this Article XI, this Article XI shall govern.

SECTION 11.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Notes shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Notes, the Company shall, at least 10 days but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) notify Trustee by Company Request of such Redemption Date and of the principal amount of Notes to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Notes to be redeemed pursuant to Section 11.09. In the case of any redemption of Notes prior to the expiration of any restriction on such redemption provided in the terms of such Notes or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 11.03. [Reserved]

SECTION 11.04. [Reserved]

SECTION 11.05. Deposit of Redemption Price. Prior to 11:00 a.m. Eastern Time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Notes which are to be redeemed on that date.

SECTION 11.06. Notes Payable on Redemption Date. Notice of redemption having been given as set forth in Section 11.09, the Notes so to be redeemed shall, subject to 11.09(c) and the terms of the applicable redemption notice (including any conditions precedent contained therein), on the Redemption Date, become due and payable at the Redemption Price therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Notes shall cease to bear interest. Upon surrender of such Notes for redemption in accordance with said notice, such Note or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, installments of interest on Notes whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section 3.07.

If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Note.

SECTION 11.07. Notes Redeemed in Part. Any Note which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, and the Security Registrar for such Note duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of the Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

SECTION 11.08. Optional Redemption of the Notes. Except as set forth below, the Company will not be entitled to redeem the Notes at its option:

(a) At any time after the Acquisition Closing Date and prior to October 15, 2027, the Company will be entitled at its option to redeem all or a portion of the Notes, in whole or in part, at any time or from time to time, upon notice as set forth in Section 11.09, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium as of, plus accrued and unpaid interest, if any, to the date of redemption (the “Redemption Date”), subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.

(b) On and after October 15, 2027, the Company will be entitled at its option to redeem all or a portion of the Notes, in whole or in part, at any time or from time to time, upon notice as set forth in Section 11.09, at the following redemption prices (expressed in percentages of principal amount), plus accrued interest to the Redemption Date (subject to the right of holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on October 15 of the years set forth below:


2027	103.125	%
2028	101.563	%
2029 and thereafter	100.000	%

(c) In addition, after the Acquisition Closing Date and before October 15, 2027, the Company will be entitled at its option on one or more occasions, to redeem in the aggregate up to 40.0% of the original principal amount of the Notes (including the original principal amount of any Additional Notes) with an amount equal to the proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount) of 106.250% plus accrued interest to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date); provided, however, that at least 50.0% of the aggregate principal amount of the Notes originally outstanding remains outstanding (including the original principal amount of any Additional Notes) after each such redemption.

(d) Notwithstanding the foregoing, in connection with any tender offer for the Notes (including, without limitation, any Change of Control offer or Asset Disposition offer), if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice (provided that such notice is not given more than 30 days following such purchase date) to redeem all Notes that remain outstanding following such purchase at a price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the applicable Redemption Date.

SECTION 11.09. Selection and Notice. (a) In the case of any partial redemption, the Company will select the Notes for redemption in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a securities exchange, the Trustee will select the Notes on a pro rata basis or by lot or otherwise in accordance with the procedures of DTC, although no Note in original principal amount of $2,000 or less shall be redeemed in part.

(b) Except in connection with a Special Mandatory Redemption under Section 11.11, notices of redemption shall be delivered electronically or mailed by first-class mail, postage prepaid to each Holder at such Holder’s registered address or provided otherwise in accordance with the procedures of the Depositary, at least 10 days but not more than 60 days, before the Redemption Date, except that notices of redemption may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a conditional redemption, a defeasance of the Notes or a satisfaction and discharge of this Indenture. If any Note is to be redeemed in part only, any notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed. All notices of optional redemption shall state:

(i) the Redemption Date;

(ii) the Redemption Price;

(iii) if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Notes to be redeemed, including the Identifying Number of such Notes;

(iv) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed;

(v) that on the Redemption Date the Redemption Price will become due and payable upon each such Note or portion thereof, and that interest thereon, if any, shall cease to accrue on and after said date;

(vi) the place or places where such Notes, if any, maturing after the Redemption Date are to be surrendered for payment of the Redemption Price; and

(vii) if applicable, any condition to such redemption.

Notice of redemption of Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee for such Notes in the name and at the expense of the Company.

(c) Any optional redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering, Change of Control or other corporate transaction or event. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed (including more than 60 days after the date the notice of redemption was sent or mailed) without any specified notice requirement until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another person.

(d) The Trustee for the Notes to be redeemed shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.

(e) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.

SECTION 11.10. Mandatory Redemption. Except as set forth in Section 11.11, the Company shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.

SECTION 11.11. Special Mandatory Redemption. The Notes shall be subject to a mandatory redemption (a “Special Mandatory Redemption”) in the event that (i) the Acquisition is not consummated on or prior to May 15, 2025 (the “Special Mandatory Redemption Outside Date”), (ii) the Acquisition Agreement is terminated or (iii) the Company has publicly announced that it no longer intends to consummate the Acquisition (the date of any such event, the “Trigger Date”). The Company shall cause a notice of Special Mandatory Redemption to be delivered electronically or mailed by first-class mail, postage prepaid, to each Holder at such Holder’s registered address or provided otherwise in accordance with the procedures of the Depositary, with a copy to the Trustee, promptly, but in any event not later than five Business Days after the Trigger Date, and shall redeem the Notes on the date specified in the notice of redemption (which shall be no later than five Business Days following the date of such notice) (such date of redemption, the “Special Mandatory Redemption Date”). The aggregate redemption price for any Special Mandatory Redemption (the “Special Mandatory Redemption Price”) will be equal to 100.0% of the aggregate initial offering price of the then outstanding Notes as shown on the cover page of the Offering Memorandum. Prior to 11:00 a.m. Eastern Time on the Special Mandatory Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Special Mandatory Redemption Price, together with accrued interest on the Notes from the Issue Date to, but excluding, the Special Mandatory Redemption Date. If the Company has provided a proper redemption notice as provided above to Holders, then, unless the Company defaults in the payment of the Special Mandatory Redemption Price, on and after the Special Mandatory Redemption Date, interest will cease to accrue on the Notes. Notwithstanding the foregoing provisions of this Section 11.11, if the Acquisition Closing Date occurs on or prior to the Issue Date, the Special Mandatory Redemption provisions described above shall not apply to the Notes.

ARTICLE XII

Subsidiary Guarantees

SECTION 12.01. Subsidiary Guarantee Obligations. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article XII notwithstanding any extension or renewal of any Guaranteed Obligation.

Each Subsidiary Guarantor waives, to the fullest extent permitted by law, presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations. The Obligations of each Subsidiary Guarantor hereunder shall not be affected, to the fullest extent permitted by law, by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Subsidiary Guarantor) under this Indenture, the Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; or (3) the failure of any Holder or the Trustee to exercise any right or remedy against any other Subsidiary Guarantor of the Guaranteed Obligations.

Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection).

Except as expressly set forth in Sections 4.02, 10.20 and 12.02, to the fullest extent permitted by law, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, to the fullest extent permitted by law, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any Default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.

Each Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.

In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, and (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law).

Each Subsidiary Guarantor shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full in cash or Cash Equivalents of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations hereby may be accelerated as provided in Article V for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article V, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section.

Each Subsidiary Guarantor shall pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.

SECTION 12.02. Limitation on Liability. Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

SECTION 12.03. Successors and Assigns. This Article XII shall be binding upon each Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

SECTION 12.04. No Waiver. To the fullest extent permitted by applicable law, neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article XII shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. To the fullest extent permitted by applicable law, the rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article XII at law, in equity, by statute or otherwise.

SECTION 12.05. Modification. To the fullest extent permitted by applicable law, no modification, amendment or waiver of any provision of this Article XII, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any other or further notice or demand in the same, similar or other circumstances.

SECTION 12.06. Contribution. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

SECTION 12.07. Execution and Delivery. To evidence its Subsidiary Guarantee set forth in Section 12.01, each Subsidiary Guarantor hereby agrees that this Indenture shall be executed on behalf of such Subsidiary Guarantor by one of its Officers. If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Subsidiary Guarantee of such Subsidiary Guarantor shall be valid nevertheless.

The deliver of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantees set forth in this Indenture on behalf of the Subsidiary Guarantors.

The Subsidiary Guarantees shall be enforceable whether or not the Subsidiary Guarantors have executed a counterpart to the Note, and no signatures by the Subsidiary Guarantors on the Note shall be required.

SECTION 12.08. Benefits Acknowledged. Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.

SECTION 12.09. Release of Subsidiary Guarantees. (a) A Subsidiary Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Company or the Trustee is required for the release of such Subsidiary Guarantor’s Subsidiary Guarantee, upon the occurrence of both of the following:

(i) One of the following events:

(A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Restricted Subsidiary or all or substantially all of the assets of such Subsidiary Guarantor to a Person other than the Company or a Restricted Subsidiary, in each case, if such sale, exchange or transfer is made in compliance with Section 10.16(a)(i);

(B) the release and discharge of the Guarantee by such Subsidiary Guarantor of the Credit Agreement, except a discharge or release by or as a result of payment under such Guarantee;

(C) the designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary in compliance with the applicable provisions of this Indenture;

(D) the Company exercising its Legal Defeasance option or Covenant Defeasance option in accordance with Article IV or the Company’s obligations under this Indenture being discharged in accordance with the terms of this Indenture;

(E) during a Suspension Period; or

(F) the merger or consolidation of a Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation or dissolution of such Subsidiary Guarantor following the transfer of all or substantially all of its assets to the Company or another Subsidiary Guarantor; and

(ii) such Subsidiary Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to the transaction permitting the release of such Subsidiary Guarantee have been complied with.

(b) The release and discharge of a Subsidiary Guarantee pursuant to Section 12.09 shall be limited to a suspension of such Subsidiary Guarantee during the continuation of a Suspension Period and shall be fully and unconditionally reinstated as of the Reversion Date to the extent required by Section 10.19.

* * *

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

[Remainder of this page intentionally leftblank]

IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated as of October 8, 2024 to be duly executed as of October 8, 2024.

TEREX CORPORATION
as Issuer
By:	/s/ Scott J. Posner
Name:	Scott J. Posner
Title:	Senior Vice President, General
	Counsel and Secretary
GENIE INDUSTRIES, INC.
TEREX ADVANCE MIXER, INC.
TEREX SOUTH DAKOTA, INC.
TEREX WASHINGTON, INC.
as Subsidiary Guarantors
By:	/s/ Scott J. Posner
Name:	Scott J. Posner
Title:	Vice President and Secretary
TEREX USA, LLC
as Guarantor
By:	/s/ Scott J. Posner
Name:	Scott J. Posner
Title:	Senior Vice President and Secretary
TEREX UTILITIES, INC.
as Guarantor
By:	/s/ Scott J. Posner
Name:	Scott J. Posner
Title:	President & Secretary

[Signature Page To Indenture]

HSBC Bank<br> USA, National Association, as Trustee,
By:	/s/ Kevin Glatting
Name:	Kevin Glatting
Title:	Assistant Vice President Transaction Manager

[Signature Page To Indenture]

Appendix 1

RULE 144A/REGULATION S APPENDIX

PROVISIONS RELATING TO THE NOTES

1. Definitions

Capitalized terms used but not defined in this Appendix have the meanings given to them in the Indenture. For the purposes of this Appendix the following terms shall have the meanings indicated below:

“Agent Members” means members of, or participants in, the Depositary.

“Applicable Procedures” means, with respect to any transfer or transaction involving a Regulation S Global Note or beneficial interest therein, the rules and procedures of the Depositary for such a Regulation S Global Note, to the extent applicable to such transaction and as in effect from time to time.

“Global Notes Legend” means the appropriate legend set forth in Section 2.2(e) of this Appendix.

“Global Notes” has the meaning specified in Section 2.1(a) of this Appendix.

“Non-U.S. Person” means a Person that is not a U.S. person, as defined in Regulation S.

“Notes Custodian” means the custodian with respect to a Global Note (as appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

“Registered Notes Legend” means the appropriate legend set forth in Section 2.2(e) of this Appendix.

“Registered Notes” means a certificated Initial Note or Additional Note that does not include the Global Notes Legend.

“Regulation S” means Regulation S under the Securities Act or any successor to such regulation.

“Regulation S GlobalNote” has the meaning specified in Section 2.1(a) of this Appendix.

“Regulation S Legend” means the appropriate legend set forth in Section 2.2(e) of this Appendix.

Appendix 1

“Restricted Legend” means the appropriate legend set forth in Section 2.2(e) of this Appendix.

“Restricted Period”, with respect to any Notes, means the period of 40 consecutive days beginning on and including the later of (i) the day on which such Notes are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the issue date with respect to such Notes.

“Rule 144A” means Rule 144 promulgated under the Securities Act or any successor to such rule.

“Rule 144A GlobalNote” has the meaning specified in Section 2.1(a) of this Appendix.

2. The Notes.

2.1 (a) Form and Dating. The Notes will be offered and sold by the Company pursuant to a purchase agreement. The Notes will be resold initially only to (i) persons reasonably believed to be QIBs in reliance on Rule 144A and (ii) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S. Notes may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Notes initially resold pursuant to Rule 144A shall be issued initially in the form of one or more Global Notes that bear the Rule 144A Legend in fully registered form (collectively, the “Rule 144AGlobal Note”) and Notes initially resold pursuant to Regulation S shall be issued initially in the form of one or more Global Notes that bear the Regulation S Legend representing Notes issued and sold in reliance on Rule 903 of Regulation S in fully registered form (collectively, the “Regulation S Global Note”), in each case without interest coupons and with the global notes legend and the applicable restricted notes legend set forth in Section 2.2(e) hereof, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Notes Custodian and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in this Indenture. Except as set forth herein, beneficial ownership interests in the Regulation S Global Note will not be exchangeable for interests in the Rule 144A Global Note or any other Note prior to the expiration of the Restricted Period and then, after the expiration of the Restricted Period, may be exchanged for interests in a Rule 144A Global Note only upon certification that beneficial ownership interests in such Regulation S Global Note are owned either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did not require registration under the Securities Act.

Beneficial interests in Regulation S Global Notes may be exchanged for interests in Rule 144A Global Notes if (1) such exchange occurs in connection with a transfer of Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Note first delivers to the Trustee a written certificate to the effect that the beneficial interest in the Regulation S Global Note is being transferred to a Person (a) who the transferor reasonably believes to be a QIB, (b) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions.

A-1

Appendix 1

Beneficial interests in a Rule 144A Global Note may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if applicable).

The Rule 144A Global Note and the Regulation S Global Note are collectively referred to herein as “Global Notes”. The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided.

By its acceptance of any Note bearing the Restricted Legend or Regulation S Legend (or any beneficial interest in such a Note), each Holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Note (and any such beneficial interest) set forth in this Indenture and in the Restricted Legend or Regulation S Legend and agrees that it will transfer such Note (and any such beneficial interest) only in accordance with this Indenture and such legend.

(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Depositary.

The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary and (b) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary.

Agent Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Note, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

(c) Registered Notes. Except as provided in this Section 2.1 or Section 2.2 or 2.3, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Registered Notes.

A-2

Appendix 1

2.2 Transfer and Exchange.

(a) Transfer and Exchange of Registered Notes. When Registered Notes are presented to the Registrar with a request:

(x) to register the transfer of such Registered Notes; or

(y) to exchange such Registered Notes for an equal principal amount of Registered Notes of other authorized denominations,

the Registrar shall register the transfer or make the exchange as requested if the requirements set forth herein for such transaction are met; provided, however, that the Registered Notes surrendered for transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

(ii) if such Registered Notes are required to bear a restricted notes legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.2(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:

(A) if such Registered Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect;

(B) if such Registered Notes are being transferred to the Company, a certification to that effect; or

(C) if such Registered Notes are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A or Regulation S under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth on the reverse of the Note) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.2(e)(i).

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Appendix 1

(b) Restrictions on Transfer of a Registered Note for a Beneficial Interest in a Global Note. A Registered Note may not be exchanged for a beneficial interest in a Rule 144A Global Note or a Regulation S Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Registered Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

(i) certification to the effect that such Registered Note is either (A) being transferred to a QIB in accordance with Rule 144A or (B) being transferred after expiration of the Restricted Period by a Person who initially purchased such Note in reliance on Regulation S to a buyer who elects to hold its interest in such Note in the form of a beneficial interest in the Regulation S Global Note; and

(ii) written instructions directing the Trustee to make, or to direct the Notes Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Note (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Note (in the case of a transfer pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate principal amount of the Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, such instructions to contain information regarding the Depositary account to be credited with such increase,

then the Trustee shall cancel such Registered Note and cause, or direct the Notes Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Notes Custodian, the aggregate principal amount of Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, to be increased by the aggregate principal amount of the Registered Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note or Regulation S Global Note, as applicable, equal to the principal amount of the Registered Note so canceled. If no Rule 144A Global Notes or Regulation S Global Notes, as applicable, are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officer’s Certificate of the Company, a new Rule 144A Global Note or Regulation S Global Note, as applicable, in the appropriate principal amount.

(i) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global Note. The Registrar shall, in accordance with such instructions instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.

(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.

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Appendix 1

(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.3), a Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(d) Restrictions on Transfer of Regulation S Global Notes. During the Restricted Period, beneficial ownership interests in Regulation S Global Notes may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S, or (iii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States.

(e) Legend.

(i) Each Note certificate evidencing the Global Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (“Restricted Legend”):

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION REQUIREMENTS.

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS (A) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR (IN THE CASE OF RULE 144A SECURITIES) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES) AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.

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Appendix 1

Each certificate evidencing a Note offered in reliance on Regulation S shall, in addition to the foregoing, bear a legend in substantially the following form (“RegulationS Legend”):

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

Each Registered Note shall also bear the following additional legend (“Registered Notes Legend”):

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Appendix 1

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

Each Global Note shall also bear the following additional legend (“Global Notes Legend”):

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY (AS HEREINAFTER DEFINED) OR A NOMINEE THEREOF OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, HAS AN INTEREST HEREIN.

(f) Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Registered Notes, redeemed, purchased or canceled, such Global Note shall be returned to the Depositary for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes, redeemed, purchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.

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Appendix 1

(g) No Obligation of the Trustee.

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.

(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

2.3 Registered Notes.

(a) A Global Note deposited with the Depositary or with the Trustee as Notes Custodian for the Depositary pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Registered Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 hereof and (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note and the Depositary fails to appoint a successor depositary or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act, in either case, and a successor depositary is not appointed by the Company within 90 days of such notice, or (ii) an Event of Default has occurred and is continuing or (iii) the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Registered Notes under this Indenture.

(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to the Trustee located at its Corporate Trust Office in New York City, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Registered Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in minimum denominations of $2,000 principal amount and any greater integral multiple of $1,000 thereof and registered in such names as the Depositary shall direct. Any Registered Note delivered in exchange for an interest in a Global Note shall, except as otherwise provided by Section 2.2(e) hereof, bear the applicable restricted notes legend and certificated notes legend set forth in Section 2.2(e) hereof.

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Appendix 1

(c) Subject to the provisions of Section 2.3(b) hereof, the registered Holder of a Global Note shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

(d) In the event of the occurrence of one of the events specified in Section 2.3(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Registered Notes in certificated, fully registered form without interest coupons. In the event that such Registered Notes are not issued, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 5.07 of this Indenture, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Registered Notes had been issued.

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EXHIBIT A

[Form of Note]

[Insert Restricted Legend, if applicable, pursuant to the terms of the Indenture]

[Insert Regulation S Legend, if applicable, pursuant to the terms of the Indenture]

[Insert Global Securities Legend, if applicable, pursuant to the terms of the Indenture]

[Insert Registered Notes Legend, if applicable, pursuant to the terms of the Indenture]

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(FACE OF NOTE)

TEREX CORPORATION

6.250% SENIOR NOTE DUE 2032

No. $

[If Regulation 144A Global Note CUSIP<br> 880779 BB8
ISIN US880779BB83]
[If Regulation S Global Note CUSIP U88125 AE6
ISIN USU88125AE69]

Terex Corporation, a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $_____ U.S. Dollars on October 15, 2032, at the office or agency of the Company referred to below, and to pay interest thereon from October 8, 2024, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on April 15 and October 15 of each year, commencing April 15, 2025, at the rate of 6.250% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Notes from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 1 or October 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other provision of the Indenture) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, and, if such payment is made, no interest shall accrue for the period from and after such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest, and (to the extent lawful) interest on such Defaulted Interest at the rate borne by the Notes, may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day months.

Payment of the principal of (and premium, if any), or interest on this Note will be made at the office or agency of the Company maintained for that purpose, which initially will be the office of the Trustee maintained at 66 Hudson Boulevard East, New York, NY 10001, Attention: Transaction Management, Issuer Services, or at such other office or agency of the Company as may be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register related to this Note or by wire transfer to an account maintained by the payee located inside the United States. Notwithstanding the foregoing, payment of interest in respect of Notes represented by Global Notes shall be made in accordance with procedures required by the Depositary.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

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Unless the certificate of authentication hereon has been duly executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:	TEREX CORPORATION
	By:
		Name:
		Title:
Certificate of Authentication, dated .
---
This is one of the Notes referred to in the within-mentioned Indenture.
HSBC BANK USA,
National Association, as Trustee
By:

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(REVERSE OF NOTE)

1. Indenture. This Note is one of a duly authorized issue of securities of the Company designated as its 6.250% Senior Notes due 2032 (herein called the “Notes”), issued under an indenture (herein called the “Indenture”) dated as of October 8, 2024, among the Company, the Subsidiary Guarantors party thereto and HSBC BANK USA, National Association, as Trustee (herein called the “Trustee,” which term includes any successor Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of an initial issuance of $750,000,000 and any Additional Notes issued in accordance with the Indenture.

Capitalized terms used herein but not otherwise defined herein shall have the meaning assigned to such terms in the Indenture.

No reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed.

To the extent that the provisions of this Note conflict with any provision of the Indenture, the provisions of the Indenture shall govern and be controlling.

2. Redemption. Except as set forth in this paragraph, the Notes are not redeemable.

(a) Except as set forth below, the Company will not be entitled to redeem the Notes at its option.

(1) At any time after the Acquisition Closing Date and prior to October 15, 2027, the Company will be entitled at its option to redeem all or a portion of the Notes, in whole or in part, at any time or from time to time, upon notice as set forth in Section 11.09 of the Indenture, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium as of, plus accrued and unpaid interest, if any, to the date of redemption (the “Redemption Date”), subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.

(2) On and after October 15, 2027, the Company will be entitled at its option to redeem all or a portion of the Notes, in whole or in part, at any time or from time to time, upon notice as set forth in Section 11.09 of the Indenture, at the following redemption prices (expressed in percentages of principal amount), plus accrued interest to the Redemption Date (subject to the right of holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on October 15 of the years set forth below:

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Redemption Period
2027	103.125	%
2028	101.563	%
2029 and thereafter	100.000	%

(3) In addition, after the Acquisition Closing Date and before October 15, 2027, the Company will be entitled at its option on one or more occasions to redeem in the aggregate up to 40.0% of the original principal amount of the Notes (including the original principal amount of any Additional Notes) with an amount equal to the proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount) of 106.250% plus accrued interest to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date); provided, however, that at least 50.0% of the aggregate principal amount of the Notes originally outstanding remains outstanding (including the original principal amount of any Additional Notes) after each such redemption.

(4) Notwithstanding the foregoing, in connection with any tender offer for the Notes (including, without limitation, any Change of Control offer or Asset Disposition offer), if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice (provided that such notice is not given more than 30 days following such purchase date) to redeem all Notes that remain outstanding following such purchase at a price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the applicable Redemption Date.

(b) In the case of any partial redemption, the Company will select the Notes for redemption in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a securities exchange, the Trustee will select the Notes on a pro rata basis or by lot or otherwise in accordance with the procedures of The Depository Trust Company, although no Note in original principal amount of $2,000 or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, interest ceases to accrue on Notes or portions of them called for redemption.

(c) Upon the occurrence of the events set forth in Section 11.11 of the Indenture, the Company will be required to redeem the Notes at the Special Mandatory Redemption Price plus accrued and unpaid interest thereon, if any, to, but excluding, the Special Mandatory Redemption Date in accordance with Section 11.11 of the Indenture.

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3. Offers to Purchase. Section 10.15 of the Indenture provides that upon the occurrence of a Change of Control and subject to certain conditions and limitations contained therein, each Holder shall have the right to require the Company to repurchase all or any part of such Holder’s Notes in accordance with the procedures set forth in the Indenture.

4. Defaults and Remedies. If an Event of Default occurs and is continuing, the principal of and premium, if any, on all of the Outstanding Notes, plus all accrued and unpaid interest, if any, may be declared due and payable in the manner and with the effect provided in the Indenture.

5. Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company represented by this Note and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.

6. Amendment and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults or Events of Default under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

7. Denominations, Transfers and Exchanges. The Notes are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registerable on the applicable Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company, maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

8. Persons Deemed Owners. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

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9. Unclaimed Money. If money deposited with the Trustee or any applicable agent for the payment of principal of, premium, if any, or interest on, the Notes remains unclaimed for two years, the Trustee and such paying agent shall return the money to the Company. After that, Holders entitled to the money must look to the Company for payment unless applicable abandoned property law designates another Person and all liability of the Trustee and such paying agent shall cease. Other than as set forth in this paragraph and Section 4.09 of the Indenture, the Notes and the Indenture, respectively, do not provide for any periods for the escheatment of the payment of principal of, premium, if any, or interest on the Notes.

10. GOVERNINGLAW. THIS NOTE SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUTREFERENCE TO THE PRINCIPLES OF CONFLICT OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. EACH OF THE PARTIESHERETO HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN THEBOROUGH OF MANHATTAN IN SUCH STATE IN CONNECTION WITH ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF RELATING TO THIS INDENTURE ORANY ACTION TAKEN OR OMITTED HEREUNDER, AND WAIVES ANY CLAIM OF FORUM NON CONVENIENS AND ANY OBJECTIONS AS TO LAYING OF VENUE. EACHPARTY FURTHER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, RIGHT TO A JURY TRIAL AND AGREES THAT SERVICE THEREOFMAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH PERSON AT SUCH PERSON’S ADDRESS FOR PURPOSES OF NOTICES HEREUNDER..

The Company will furnish to any Holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to: Terex Corporation, 45 Glover Avenue, 4th Floor, Norwalk, CT 06850, Attention: Chief Financial Officer.

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ASSIGNMENT FORM

If you, the Holder, want to assign this Note, fill in the form below and have your signature guaranteed:

For value received, I or we hereby sell, assign and transfer this Note to

_____________________________________________________________________________________________________________

(Insert assignee’s social security or tax ID number)______________________________________________________________________

_____________________________________________________________________________________________________________

(Print or type assignee’s name, address and zip code) and irrevocably appoint

_____________________________________________________________________________________________________________

as agent to transfer this Note on the books of the Company. The agent may substitute another to act for such agent.

If this Note is required to bear a restricted notes legend, the undersigned confirms that this Note is being transferred in accordance with its terms:

CHECK ONE BOX BELOW

¨ to the Company; or

(1) ¨ pursuant to an effective registration statement under the Securities Act of 1933, as amended; or

(2) ¨ to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or

(3) ¨ outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933, as amended; or

(4) ¨ in accordance with an exemption from the registration requirements of the Securities Act (and based upon an opinion of counsel or other evidence if the Company so requests).

Unless one of the boxes is checked, the Trustee shall refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered holder thereof.

A-8

Date:______________	Your signature:
		(The signature to this assignment must correspond with the name written upon the face of the Note in every particular without alteration<br>or enlargement or any change whatsoever.)

TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Date:______________	Signature:
	Notice: To be executed by a duly authorized officer

A-9

OPTION OF HOLDER TO ELECT PURCHASE

If you wish to have this Note purchased by the Company pursuant to Section 10.15 or 10.16 of the Indenture, check the following box: ¨

If you wish to have a portion of this Note purchased by the Company pursuant to Section 10.15 or 10.16 of the Indenture, state the amount:

$______________

Date:______________	Your signature:
		(Sign exactly as your name appears on the other side of this Note)
By:
---	---
	NOTICE: To be executed by a duly authorized officer

Signature Guarantee:_______________

A-10

EXHIBIT B

FORM OF SUBSIDIARY GUARANTEE

All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture.

R E C I T A L S

WHEREAS, Section 10.19 of the Indenture provides, among other things, that each Restricted Subsidiary of the Company (other than an Excluded Subsidiary) shall execute and deliver an indenture supplemental to the Indenture and thereby give a Subsidiary Guarantee and become a Subsidiary Guarantor (such new Subsidiary Guarantor, the “Guaranteeing Subsidiary”) which shall be bound by the Subsidiary Guarantee of the Notes upon the occurrence of the conditions set forth in Section 10.19 of the Indenture;

WHEREAS, the execution of this Supplemental Indenture has been duly authorized by the board of directors of the Guaranteeing Subsidiary and all things necessary to make this Supplemental Indenture, when executed and delivered by the Guaranteeing Subsidiary, a valid, binding and legal instrument according to its terms have been done and performed;

NOW, THEREFORE, THIS SUPPLEMENTALINDENTURE WITNESSETH:

SECTION 1.01 Agreement to Provide Subsidiary Guarantee.

The Guaranteeing Subsidiary hereby agrees to become a Subsidiary Guarantor of the Notes under the terms of the Indenture applicable to Subsidiary Guarantors, including Article IV thereof.

SECTION 1.02 Execution and Delivery.

The Guaranteeing Subsidiary hereby agrees that its Subsidiary Guarantee shall be enforceable whether or not the Guaranteeing Subsidiary has executed a counterpart to the Notes, and no signature by the Guaranteeing Subsidiary on the Notes shall be required.

SECTION 1.03 Governing Law.

THIS SUPPLEMENTAL INDENTURE AND THE RELATED SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICT OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN THE BOROUGH OF MANHATTAN IN SUCH STATE IN CONNECTION WITH ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF RELATING TO THIS SUPPLEMENTAL INDENTURE OR ANY ACTION TAKEN OR OMITTED HEREUNDER, AND WAIVES ANY CLAIM OF FORUM NON CONVENIENS AND ANY OBJECTIONS AS TO LAYING OF VENUE. EACH PARTY FURTHER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, RIGHT TO A JURY TRIAL AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH PERSON AT SUCH PERSON’S ADDRESS FOR PURPOSES OF NOTICES UNDER THE INDENTURE.

B-1

SECTION 1.04 Counterparts.

The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties to this Supplemental Indenture transmitted by facsimile or PDF shall be deemed effective for all purposes.

SECTION 1.05 The Trustee.

The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guaranteeing Subsidiary, except that the Trustee, represents that it is duly authorized to execute and deliver this Supplemental Indenture.

SECTION 1.06 Ratification of Indenture.

Except and so far as otherwise expressly provided herein, all of the provisions, terms and conditions of the Indenture are in all respects ratified and confirmed; and the Indenture as so modified by this Supplemental Indenture shall be taken, read and construed together with this Supplemental Indenture as one and the same instrument.

[Signature Pages Follow]

B-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the day and year first above written.

[INSERT NAME OF GUARANTEEING SUBSIDIARY],<br> as Guaranteeing Subsidiary
By:
	Name:
	Title:
TEREX CORPORATION, as Issuer
By:
	Name:
	Title:
HSBC BANK USA,
NATIONAL ASSOCIATION, as Trustee
By:
	Name:
	Title:

B-3

Exhibit 10.1

EXECUTION VERSION

INCREMENTAL ASSUMPTION AGREEMENT, BORROWING SUBSIDIARY AGREEMENT AND AMENDMENT NO 2. dated as of October 8, 2024 (this “Agreement”), relating to the AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 1, 2021 (as amended by that certain Incremental Assumption and Amendment Agreement dated as of July 21, 2024 (the “First Incremental Amendment”), and as further amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), among TEREX CORPORATION, a Delaware corporation (“Terex”), NEW TEREX HOLDINGS UK LIMITED, with company number 02962659, a limited company organized under the laws of England and Wales, TEREX INTERNATIONAL FINANCIAL SERVICES COMPANY UNLIMITED COMPANY, with company number 327184, a company organized under the laws of Ireland, TEREX INTERNATIONAL HOLDINGS 2 LIMITED, with company number 11541018, a limited company organized under the laws of England and Wales (the “New Borrowing Subsidiary”), and TEREX AUSTRALIA PTY LTD (ACN 010 671 048), a company organized under the laws of Australia and registered in Queensland, Australia, the LENDERS from time to time party thereto, the ISSUING BANKS from time to time party thereto, UBS AG CAYMAN ISLANDS BRANCH, as successor administrative agent to CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (in such capacity, the “Existing Administrative Agent”), and UBS AG, STAMFORD BRANCH, as successor administrative agent (in such capacity, the “Administrative Agent”) and as successor collateral agent to CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (in such capacity, the “Collateral Agent”) for the Lenders.

A.            Terex has requested that the Persons set forth on Schedule I hereto (the “U.S. Term Lenders”) provide incremental term loan commitments (the “U.S. Term Loan Commitments”) to Terex in an aggregate amount equal to $1,250,000,000.

B.             Terex has requested that the Persons set forth on Schedule II hereto (the “Revolving Credit Lenders” and, together with the U.S. Term Lenders, the “Amendment No. 2 Lenders”) provide Incremental Commitments comprised of (i) U.S. dollar-denominated revolving credit commitments (the “U.S. Revolving Credit Commitments”, and the Lenders providing such U.S. Revolving Credit Commitments, the “U.S. Revolving Credit Lenders”) to Terex in an aggregate amount equal to $400,000,000 and (ii) multicurrency revolving credit commitments (the “MulticurrencyRevolving Credit Commitments” and, together with the U.S. Revolving Credit Commitments, the “Revolving CreditCommitments”; and the Lenders providing such Multicurrency Revolving Credit Commitments, the “MulticurrencyRevolving Credit Lenders”) to the Borrowers in an aggregate amount equal to $400,000,000.

C.             Terex has requested that the New Borrowing Subsidiary become a Borrower under the Multicurrency Revolving Credit Commitments pursuant to and in accordance with Section 9.22 of the Existing Credit Agreement.

D.            Pursuant to and in accordance with Sections 2.27 and 9.08 of the Existing Credit Agreement, the Borrowers have requested that the Existing Credit Agreement be amended as provided herein in order to (i) provide for the terms of the U.S. Term Loans (as defined below) and the Revolving Credit Commitments and the extensions of credit thereunder and (ii) effect certain other amendments to the Existing Credit Agreement as set forth herein, in each case, on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement (as defined below).

E.             (i) The U.S. Term Lenders are willing to make the U.S. Term Loans, (ii) the U.S. Revolving Credit Lenders are willing to provide the U.S. Revolving Credit Commitments, (iii) the Multicurrency Revolving Credit Lenders are willing to provide the Multicurrency Revolving Credit Commitments, and (iv) the Lenders party hereto, constituting all of the Lenders under the Existing Credit Agreement (determined immediately after the transactions contemplated by Section 2 hereof and the termination of the Revolving Credit Commitments under the Existing Credit Agreement), are willing to so amend the Existing Credit Agreement, in each case on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement.

F.             Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Defined Terms and Interpretation. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement. The rules of interpretation set forth in Section 1.02 of the Amended Credit Agreement are hereby incorporated by reference herein, mutatis mutandis. This Agreement shall be a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents. As used in this Agreement, the following terms have the meanings specified below:

(a) “Commitment Letter” means the Amended and Restated Commitment Letter dated as of August 2, 2024, among Terex and the Commitment Parties (as defined therein) party thereto.

(b) “Fort Acquisition Agreement Representations” shall mean the representations made by, or with respect to, the Fort Acquired Business in the Fort Acquisition Agreement as are material to the interests of the Lenders under the Amended Credit Agreement in their capacity as such, but only to the extent that Terex (or any of its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its obligations (or otherwise decline to consummate the Fort Acquisition) under the Fort Acquisition Agreement as a result of a breach of any such representations in the Fort Acquisition Agreement.

(c) “Fort Acquisition Specified Representations” shall mean the representations and warranties set forth in Sections 3.01(a) (solely as it pertains to due incorporation and valid existence of the Loan Parties party hereto), 3.01(d) (solely as it pertains to the power and authority to enter into and perform this Agreement and the other Loan Documents), 3.02(a) (solely as it pertains to the entering into and performance of this Agreement and the other Loan Documents), 3.02(b)(i)(B) (solely as it pertains to this Agreement and the other Loan Documents), 3.03, 3.11(a) (solely as it pertains to the Loan Parties), 3.11(b), 3.12 (solely as it pertains to the Loan Parties), 3.19 (subject to the limitations set forth in Section 6(g) of this Agreement), 3.22 and 3.23 (solely as it pertains to the use of proceeds of the Commitments established, the Loans made and Letters of Credit issued on the Amendment No. 2 Effective Date), in each case, of the Amended Credit Agreement.

SECTION 2. U.S. Term Loan Facility; Revolving Credit Facilities.

(a) Effective as of the Amendment No. 2 Effective Date (as defined below) and on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement, each U.S. Term Lender hereby (i) agrees, severally and not jointly, to make incremental term loans (the “U.S. Term Loans”) to Terex on the Amendment No. 2 Effective Date (as defined below) in an aggregate principal amount not to exceed the amount of the U.S. Term Loan Commitment set forth opposite such U.S. Term Lender’s name on Schedule I hereto and (ii) consents to the amendments to the Existing Credit Agreement and the Guarantee and Collateral Agreement set forth in this Agreement (including the Exhibits hereto).

(b) Effective as of the Amendment No. 2 Effective Date and on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement, (i) each U.S. Revolving Credit Lender hereby agrees to provide to Terex a U.S. Revolving Credit Commitment in the amount set forth opposite such U.S. Revolving Credit Lender’s name on Schedule II hereto under the heading “U.S. Revolving Credit Commitment”, (ii) each Multicurrency Revolving Credit Lender hereby agrees to provide to the Borrowers a Multicurrency Revolving Credit Commitment in the amount set forth opposite such Multicurrency Revolving Credit Lender’s name on Schedule II hereto under the heading “Multicurrency Revolving Credit Commitment”, (iii) each Revolving Credit Lender shall have an L/C Commitment in the amount set forth opposite such Revolving Credit Lender’s name on Schedule II hereto under the heading “L/C Commitment”, (iv) each Revolving Credit Lender hereby consents to the amendments to the Existing Credit Agreement, to and the Guarantee and Collateral Agreement set forth in this Agreement (including the Exhibits hereto) and (v) each Multicurrency Revolving Credit Lender hereby consents to the amendment and restatement of the North Atlantic Guarantee Agreement on the date hereof, a copy of which is attached hereto as Exhibit D.

(c) The U.S. Term Loans shall have the terms applicable to U.S. Term Loans set forth in the Amended Credit Agreement. The U.S. Revolving Credit Commitments and the extensions of credit thereunder shall have the terms applicable to U.S. Revolving Credit Commitments and the U.S. Revolving Loans and other extensions of credit thereunder set forth in the Amended Credit Agreement. The Multicurrency Revolving Credit Commitments and the extensions of credit thereunder shall have the terms applicable to Multicurrency Revolving Credit Commitments and the Multicurrency Revolving Loans and other extensions of credit thereunder set forth in the Amended Credit Agreement. From and after the Amendment No. 2 Effective Date, (i) each U.S. Term Lender shall constitute a “Lender”, a “Term Lender” and a “U.S. Term Lender”, (ii) the U.S. Term Loans shall constitute “Loans”, “Incremental Term Loans”, “Term Loans” and “U.S. Term Loans”, (iii) each U.S. Revolving Credit Lender shall constitute a “Lender”, a “Revolving Credit Lender” and a “U.S. Revolving Credit Lender”, (iv) the U.S. Revolving Commitments shall constitute “Commitments”, “Revolving Credit Commitments” and “U.S. Revolving Credit Commitments”, (v) each Multicurrency Revolving Credit Lender shall constitute a “Lender”, a “Revolving Credit Lender” and a “Multicurrency Revolving Credit Lender” and (vi) the Multicurrency Revolving Credit Commitments shall constitute “Commitments”, “Revolving Credit Commitments” and “Multicurrency Revolving Credit Commitments”, in each case, for all purposes of the Amended Credit Agreement and the other Loan Documents.

(d) This Agreement constitutes (i) an Incremental Assumption Agreement with respect to the establishment of the U.S. Term Loan Commitments, the U.S. Revolving Credit Commitments and the Multicurrency Revolving Credit Commitments in accordance with Section 2.27 of the Existing Credit Agreement and (ii) a Borrowing Subsidiary Agreement with respect to the New Borrowing Subsidiary becoming a Borrower under the Multicurrency Revolving Credit Commitments in accordance with Section 9.22 of the Existing Credit Agreement.

SECTION 3. Amendment to the Existing Credit Agreement.

(a) Effective as of the Amendment No. 2 Effective Date, the Existing Credit Agreement (other than, except as set forth in clauses (b) and (c) below, the exhibits and schedules thereto) is hereby amended and restated in its entirety in the form of Exhibit A attached hereto (the Existing Credit Agreement as so amended and restated, the “Amended Credit Agreement”). As used in the Amended Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, from and after the Amendment No. 2 Effective Date, mean or refer to the Amended Credit Agreement. As used in any other Loan Document, from and after the Amendment No. 2 Effective Date, all references to the Credit Agreement in such Loan Documents shall, unless the context otherwise requires, mean or refer to the Amended Credit Agreement.

(b) Effective as of the Amendment No. 2 Effective Date, the Schedules to the Existing Credit Agreement are hereby amended and restated in their entirety in the form of Exhibit B attached hereto.

(c) Effective as of the Amendment No. 2 Effective Date, each of Exhibit D, Exhibit F, Exhibit G-1, Exhibit G-2, Exhibit I-1, Exhibit I-2 and Exhibit I-3 to the Existing Credit Agreement is hereby amended and restated in its entirety in the forms of Exhibit D, Exhibit F, Exhibit G-1, Exhibit G-2, Exhibit I-1, Exhibit I-2 and Exhibit I-3 attached as Exhibit C hereto.

SECTION 4. Amendment to Existing Security Agreement. Effective as of the Amendment No. 2 Effective Date, the Guarantee and Collateral Agreement is hereby amended as follows:

(a) The definition of “Cash Management Services” set forth in Section 1.02 of the Guarantee and Collateral Agreement is hereby deleted in its entirety.

(b) The definition of “Excluded Assets” set forth in Section 1.02 of the Guarantee and Collateral Agreement is hereby amended by (i) deleting the word “and” at the end of clause (h) thereof and (ii) adding the following new clause (j) immediately before the period at the end thereof:

“and (j) any asset if the granting of a security interest therein could reasonably be expected to result in adverse tax consequences (that are not de minimis) as reasonably determined in good faith by Terex in consultation with the Administrative Agent”.

(c) Section 4.04(b) of the Guarantee and Collateral Agreement is hereby amended and restated in its entirety to read as follows:

“[Reserved].”

(d) Section 7.15(a) of the Guarantee and Collateral Agreement is hereby amended and restated in its entirety to read as follows:

“(a) Subject to Section 2.04 (it being understood that Section 2.04 relates only to the Guarantees by the Guarantors hereunder), this Agreement, the Guarantees of the Obligations, the Security Interest, the pledge of the Pledged Collateral and all other security interests granted hereby shall terminate when all the Loan Document Obligations have been indefeasibly paid in full (other than contingent indemnification and reimbursement obligations not then due and payable), the Lenders have no further commitment to lend under the Credit Agreement, the aggregate L/C Exposure (other than with respect to Letters of Credit that have been fully cash collateralized or backstopped on terms satisfactory to the Collateral Agent and the applicable Issuing Bank) has been reduced to zero and the Issuing Banks have no further obligations to issue Letters of Credit under the Credit Agreement.”

SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each Loan Party party hereto hereby represents and warrants to the Administrative Agent and each of the Amendment No. 2 Lenders that:

(a) This Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against each of the Loan Parties party hereto in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(b) At the time of and immediately after giving effect to this Agreement, the representations and warranties set forth in Article III of the Amended Credit Agreement and in each other Loan Document are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality, Material Adverse Effect or words of similar import, in all respects) on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall have been true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality, Material Adverse Effect or words of similar import, in all respects) as of such earlier date.

(c) At the time of and immediately after giving effect to this Agreement, no Event of Default or Default has occurred and is continuing.

SECTION 6. Conditions to Effectiveness. The effectiveness of this Agreement and the obligations of the U.S. Term Lenders to make the U.S. Term Loans and of the Revolving Credit Lenders to provide the Revolving Credit Commitments are subject to the satisfaction or waiver of the following conditions precedent (the date on which all such conditions are satisfied or waived, the “Amendment No. 2Effective Date”):

(a) the Administrative Agent shall have received each of the following, each dated the Amendment No. 2 Effective Date unless otherwise indicated or agreed to by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent:

(i)            counterparts of this Agreement that, when taken together, bear the signatures of Terex, each Subsidiary Borrower, each Subsidiary Guarantor, each Amendment No. 2 Lender and each Issuing Bank under the Amended Credit Agreement;

(ii)            (x) an officer’s certificate of each Loan Party, in form and substance reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments, including (A) copies of resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and, in the case of each Borrower, the borrowings hereunder and under the Amended Credit Agreement, (B) incumbency certifications, (C) the certificate of incorporation or other similar organizational documents of each Loan Party certified by the relevant authority of the jurisdiction of organization, registration or incorporation of such Loan Party (or, in the case of a Subsidiary Borrower, if no such certification is available, comparable certification or an extract of such documents filed with an official registry, as available) and bylaws or other similar organizational documents of each Loan Party certified by a Responsible Officer as being in full force and effect on the Amendment No. 2 Effective Date and at all times since the date of the resolutions referred to in clause (A) above and (D) in the case of a Loan Party incorporated under the laws of England and Wales, a certification that the borrowing, guaranteeing or securing (as applicable) of the Loans would not cause any borrowing, guaranteeing, security or similar limit binding on that Loan Party to be exceeded and (y) a good standing certificate (or to the extent that an equivalent concept exists in the relevant jurisdictions, a comparable document or the results of searches of official registries demonstrating good standing or lack of insolvency proceedings against such person, as available) for each Loan Party from its jurisdiction of organization, registration or incorporation;

(iii)            the executed legal opinion of (i) the General Counsel of Terex, (ii) Fried, Frank, Harris, Shriver & Jacobson LLP, New York counsel to the Loan Parties, and (iii) each local counsel to the Loan Parties set forth on Schedule III hereto, each of which shall be customary in form and substance and reasonably satisfactory to the Administrative Agent;

(iv)            a Borrowing Request, dated and delivered at least one Business Day prior to the Amendment No. 2 Effective Date, requesting the U.S. Term Loans and the Revolving Loans to be borrowed on the Amendment No. 2 Effective Date, if any;

(v)            a notice of termination and a notice of prepayment with respect to all Revolving Credit Commitments (the “Existing RevolvingCredit Commitments”) and Revolving Loans (the “Existing Revolving Loans”) (if any), under, and as defined in, the Existing Credit Agreement in accordance with the terms of Sections 2.09 and 2.12 of the Existing Credit Agreement;

(vi)            a Solvency Certificate substantially in the form attached as Annex I to Exhibit D of the Commitment Letter certifying that Terex and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent;

(vii)            the certificate required by Section 2.27(c)(i) of the Existing Credit Agreement; and

(viii)            a certificate of a Responsible Officer of Terex certifying as to the satisfaction of the conditions precedent under paragraphs (b), (c) and (d) below;

(b) the Fort Acquisition shall have been, or substantially simultaneously with the borrowing of the U.S. Term Loans and the effectiveness of the Revolving Credit Commitments shall be, consummated, in all material respects in accordance with the terms of the Fort Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the Amendment No. 2 Lenders or the Commitment Parties (as defined in the Commitment Letter), in their capacities as such, without the prior written consent of each of the Commitment Parties);

(c) the Fort Acquisition Agreement Representations shall be true and correct to the extent required by the definition thereof and the Fort Acquisition Specified Representations shall be true and correct in all material respects (except in the case of any Fort Acquisition Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Fort Acquisition Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects;

(d) since July 21, 2024, no “Material Adverse Effect” (as defined in the Fort Acquisition Agreement as in effect on July 21, 2024) shall have occurred and be continuing;

(e) the Lead Arrangers (as defined in the Commitment Letter) shall have received (i) (A) the audited consolidated balance sheet of Terex and its Subsidiaries for each of Terex’s three most recent fiscal years ended at least 90 days prior to the Amendment No. 2 Effective Date and the related audited consolidated statements of income, comprehensive income, changes in stockholders’ equity and cash flows for those fiscal years and (B) the unaudited consolidated balance sheets and the related unaudited consolidated statements of income, comprehensive income, changes in equity and cash flows of Terex and its Subsidiaries for each subsequent interim financial period (other than any fourth fiscal quarter) ended more than 45 days prior to the Amendment No. 2 Effective Date (and the corresponding period of the prior fiscal year) and (ii) (A) the audited consolidated balance sheet of the Acquired Business (as defined in the Commitment Letter) for the two most recent fiscal years ended at least 90 days prior to the Amendment No. 2 Effective Date and the related audited consolidated statements of income, stockholders’ equity and cash flows for those fiscal years, in each case, together with an “unqualified” audit opinion issued with respect to such audited financial statements by the Acquired Companies’ (as defined in the Commitment Letter) independent auditor and (B) the unaudited consolidated balance sheets and the related unaudited consolidated interim statements of income, stockholders’ equity and cash flows of the Acquired Business for each subsequent interim financial period (other than any fourth fiscal quarter) ended more than 45 days prior to the Amendment No. 2 Effective Date (and the corresponding period of the prior fiscal year), in each case, prepared in accordance with GAAP;

(f) the Lead Arrangers shall have received (i) unaudited pro forma statements of income of Terex and its Subsidiaries (after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period) for the most recent fiscal year of Terex for which audited consolidated financial statements are provided pursuant to clause (i)(A) of paragraph (e) above and for the most recent interim financial period of Terex for which unaudited consolidated financial statements are provided pursuant to clause (i)(B) of paragraph (e) above, if any, and (ii) an unaudited pro forma balance sheet of Terex and its Subsidiaries (after giving effect to the Transactions as if the Transactions had occurred on such date) as of the date of the most recent balance sheet of Terex provided pursuant to clause (i) of paragraph (e) above (for the avoidance of doubt, it being understood that such pro forma financial statements need not be prepared in compliance with Regulation S-X under the Securities Act of 1933, as amended and need not include adjustments for purchase accounting);

(g) each of the entities acquired pursuant to the Fort Acquisition (the “Acquired Entities”) that is required to become a Loan Party pursuant to the terms of the Existing Credit Agreement shall have executed and delivered a supplement to the Guarantee and Collateral Agreement in substantially the form attached as an exhibit thereto (or such other form as the Collateral Agent may reasonably agree) and (ii) all documents and instruments necessary to establish that the Collateral Agent will have a perfected security interest (subject to liens permitted under the Existing Credit Agreement) in the Collateral acquired in the Fort Acquisition shall have been executed (to the extent applicable) and delivered to the Collateral Agent, and, if applicable, be in proper form for filing; providedthat, to the extent that any security interest in such Collateral is not or cannot be provided and/or perfected on the Amendment No. 2 Effective Date (other than the pledge and perfection of the security interests in (x) the certificated capital stock held by the Loan Parties (to the extent required to be pledged pursuant to the Loan Documents) (other than a pledge of any such certificate for any Acquired Entity if such certificate has not been made available to Terex at least two Business Days prior to the Amendment No. 2 Effective Date, so long as Terex shall have used commercially reasonable efforts to procure delivery thereof, it being agreed that any such certificate may instead be delivered within five Business Days after the Amendment No. 2 Effective Date (or such later date as may be agreed by the Administrative Agent in its reasonable discretion) and (y) other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after the use of commercially reasonable efforts to do so, then the delivery and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the U.S. Term Loans or the Revolving Credit Commitments on the Amendment No. 2 Effective Date but shall be required to be delivered and/or perfected, as applicable, within 90 days after the Amendment No. 2 Effective Date (or such longer period as may be agreed by the Administrative Agent in its reasonable discretion).

(h) The Administrative Agent and the Lead Arrangers shall have received, at least three Business Days prior to the Amendment No. 2 Effective Date, (i) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and (ii) if the applicable Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case of clauses (i) and (ii), that has been reasonably requested in writing at least ten Business Days in advance of the Amendment No. 2 Effective Date;

(i) Terex shall have paid to the Administrative Agent, for the account of the applicable Persons, including the Amendment No. 2 Lenders, all costs, fees, expenses (including without limitation legal fees and expenses) and other compensation contemplated by the Commitment Letter and the Fee Letters (as defined in the Commitment Letter) to the extent due and to the extent due and payable on the Amendment No. 2 Effective Date (and, in the case of expenses, invoiced at least three Business Days prior to the Amendment No. 2 Effective Date); and

(j) Terex shall have paid to the Existing Administrative Agent, for the ratable account of the Revolving Credit Lenders under the Existing Credit Agreement, the principal amount of all Existing Revolving Loans outstanding under the Existing Credit Agreement, together with all accrued and unpaid interest thereon, and all accrued Facility Fees, L/C Participation Fees and Issuing Bank Fees to but excluding the Amendment No. 2 Effective Date.

The Administrative Agent shall notify Terex and the Amendment No. 2 Lenders of the Amendment No. 2 Effective Date, and such notice shall be conclusive and binding.

SECTION 7. Concerning the First Incremental Amendment. It is intended that the Delayed Draw Term Loan Commitments (as defined in the Existing Credit Agreement) in an aggregate amount equal to $455,000,000 established pursuant to the First Incremental Amendment shall form part of, and shall be replaced by, the U.S. Term Loan Commitments established hereunder, and that from and after the date hereof, the First Incremental Amendment and the obligations of the Delayed Draw Term Lenders (as defined in the Existing Credit Agreement) thereunder shall be of no further effect. UBS AG, Stamford Branch, in its capacity as Delayed Draw Term Lender, and Terex hereby expressly acknowledge and agree to the provisions of this Section 7.

SECTION 8. Concerning the Administrative Agent. It is agreed that, on and as of the Amendment No. 2 Effective Date, (a) UBS AG, Stamford Branch shall become the Administrative Agent under the Amended Credit Agreement and the other Loan Documents, and shall be entitled to all of the rights of, and be bound by all of the obligations of, the Administrative Agent under the Amended Credit Agreement and the other Loan Documents, and (b) UBS AG Cayman Islands Branch shall cease to be the Administrative Agent under the Existing Credit Agreement, and shall be discharged from all of its duties and obligations as the Administrative Agent under the Existing Credit Agreement and the other Loan Documents, but it (and its sub-agents and its and their respective Related Parties) shall continue to be entitled to the benefits of Article VIII and Section 9.05 of the Existing Credit Agreement, as well as all the other exculpatory, reimbursement and indemnification provisions set forth in any Loan Document (as defined in the Existing Credit Agreement) for the benefit of the “Administrative Agent”, in each case, with respect to any action taken or omitted to be taken by any of them while UBS AG Cayman Islands Branch (and, for the avoidance of doubt, Credit Suisse AG, Cayman Islands Branch, as its predecessor-in-interest) was acting as the Administrative Agent (as defined in the Existing Credit Agreement). As used in this Section, the term “Administrative Agent” shall have the meaning (i) with respect to UBS AG Cayman Islands Branch, set forth in the Existing Credit Agreement and (ii) with respect to UBS AG, Stamford Branch, set forth in the Amended Credit Agreement.

SECTION 9. Concerning the New Borrowing Subsidiary. Pursuant to Section 9.22 of the Existing Credit Agreement, the Lenders have agreed, upon the terms and subject to the conditions therein set forth, to make Revolving Loans to any wholly owned Restricted Subsidiary that Terex shall designate as a Borrower under any of the Revolving Credit Commitments, and Terex and the New Borrowing Subsidiary desire that the New Borrowing Subsidiary become a Borrower under the Multicurrency Revolving Credit Commitments. Terex represents and warrants that the New Borrowing Subsidiary is a wholly owned Restricted Subsidiary. Each of Terex and the New Borrowing Subsidiary represent and warrant that the representations and warranties of Terex in the Existing Credit Agreement relating to the New Borrowing Subsidiary and this Agreement are true and correct in all material respects on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date. Terex agrees that the Guarantee of Terex contained in the Guarantee and Collateral Agreement will apply to the Obligations of the New Borrowing Subsidiary. Upon execution of this Agreement by each of Terex, the New Borrowing Subsidiary and the Administrative Agent, the New Borrowing Subsidiary shall be a party to the Amended Credit Agreement and shall constitute a “Subsidiary Borrower” and a “Borrower” for all purposes thereof, and the New Borrowing Subsidiary hereby agrees to be bound by all provisions of the Amended Credit Agreement.

SECTION 10. Breakage Events. Notwithstanding anything to the contrary set forth in the Existing Credit Agreement, each Revolving Credit Lender hereby waives any right to payment pursuant to Section 2.16 of the Existing Credit Agreement in connection with any prepayment of its Revolving Loans (as defined in the Existing Credit Agreement) on the Amendment No. 2 Effective Date.

SECTION 11. Termination of Control Agreements. Effective as of the Amendment No. 2 Effective Date, the Lenders hereby authorize and direct the Collateral Agent to terminate each deposit account control agreement entered into pursuant to the Guarantee and Collateral Agreement and in effect on the Amendment No. 2 Effective Date.

SECTION 12. Applicable Law. THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT (INCLUDING,WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF), SHALL BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided, however, thatFOR PURPOSES OF THIS AGREEMENT (a) the interpretation of the definition of “Material Adverse Effect” (and whether ornot a “Material Adverse Effect” has occurred) for purposes of Section 6(c) ofthis agreement (with respect to the FORT ACQUISITION AGREEMENT REPRESENTATIONS) and Section 6(d) ofthis agreement, (b) the determination of the accuracy of any FORT Acquisition Agreement Representations and whether as a resultof any BREACH of any FORT Acquisition Agreement Representations there has been a failure of a condition precedent to your obligationto consummate the FORT Acquisition or such failure gives Terex the right to terminate ITS obligations (or OTHERWISE DECLINE to consummatethe FORT Acquisition) under the FORT Acquisition Agreement and (c) the determination of whether the FORT Acquisition has been consummatedin accordance with the terms of the FORT Acquisition Agreement shall, in each case, be governed by, and construed in accordance with,the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the Stateof Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction.

SECTION 13. Jurisdiction; Consent to Service of Process. Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of the Federal court of the United States of America sitting in the Borough of Manhattan or the Commercial Division of the New York Supreme Court and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding may be heard and determined only in such Federal court, or, if such court lacks subject matter jurisdiction, the Commercial Division of the New York Supreme Court, provided that suit for the recognition or enforcement of any judgment obtained in any such New York State or Federal court may be brought in any other court of competent jurisdiction, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final and non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail addressed to you at the address above shall be effective service of process against you for any suit, action or proceeding brought in any such court.

SECTION 14. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF SERVICESHEREUNDER OR THEREUNDER.

SECTION 15. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), including both paper and electronic counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. Federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. Each of the parties represents and warrants to the other parties that it has the corporate or analogous capacity and authority to execute this Agreement through electronic means and there are no restrictions for doing so in that party’s constitutive documents.

SECTION 16. Notices. All notices hereunder or in connection herewith shall be given in accordance with the provisions of Section 9.01 of the Amended Credit Agreement.

SECTION 17. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 18. Consent and Reaffirmation. Terex, each Subsidiary Borrower and each Subsidiary Guarantor hereby (a) consents to this Agreement and the transactions contemplated hereby, (b) agrees that, notwithstanding the effectiveness of this Agreement, the Guarantee and Collateral Agreement, the North Atlantic Guarantee Agreement and/or each of the other Security Documents to which it is a party continue to be in full force and effect (as amended hereby (or, in the case of the North Atlantic Guarantee Agreement, as amended on the date hereof)), (c) affirms and confirms its guarantee (in the case of a Guarantor or a North Atlantic Guarantor (as defined in the North Atlantic Guarantee Agreement)) of the Obligations and the pledge and/or grant (in the case of a Grantor (as defined in the Guarantee and Collateral Agreement)) of a security interest in its assets as Collateral pursuant to the Security Documents to secure the Obligations, all as provided in the Loan Documents, and (d) acknowledges and agrees that such guarantee, pledge and/or grant continues in full force and effect in respect of, and to secure, the Obligations, including the U.S. Term Loans and the Revolving Credit Commitments and the Revolving Credit Loans and other extensions of credit thereunder. Except as expressly set forth herein, the execution of this Agreement shall not (x) operate as a waiver of any right, power or remedy of the Administrative Agent or Lenders or (y) constitute a waiver of any provision of any of the Loan Documents, and (v) the execution of this Agreement shall not (x) serve to effect a novation of the Obligations or (y) constitute a novation of the Existing Credit Agreement or any of the other Loan Documents.

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

TEREX<br> CORPORATION,
By
	/s/<br> Scott J. Posner
	Name:	Scott J. Posner
	Title:	Senior Vice President,<br> General Counsel and Secretary
NEW<br> TEREX HOLDINGS UK LIMITED,
---	---
By
	/s/<br> Scott J. Posner
	Name: Scott J. Posner
	Title:   Director<br> and Secretary
TEREX<br> INTERNATIONAL FINANCIAL SERVICES COMPANY UNLIMITED COMPANY,
---	---
By
	/s/<br> Jon Paterson
	Name: Jon Paterson
	Title:   Director
TEREX<br> INTERNATIONAL HOLDINGS 2 LIMITED,
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By
	/s/<br> Scott J. Posner
	Name: Scott J. Posner
	Title:   Director<br> and Secretary

[Signature Page to Incremental Assumption Agreement,