8-K
Cooper-Standard Holdings Inc. (CPS)
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) – March 4, 2026
COOPER-STANDARD HOLDINGS INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36127 | 20-1945088 | |
|---|---|---|---|
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | |
| 40300 Traditions Drive | Northville | Michigan | 48168 |
| --- | --- | --- | --- |
| (Address of principal executive offices) | (Zip code) |
Registrant’s telephone number, including area code (248) 596-5900
Check the appropriate box below in the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | 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-4c)) |
| --- | --- |
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, par value $0.001 per share | CPS | New York Stock Exchange |
| Preferred Stock Purchase Rights | - | 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 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| 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 Definitive Agreement.
Issuance of New First Lien Notes
On March 4, 2026 (the “Settlement Date”), Cooper-Standard Automotive Inc. (the “Issuer”), a wholly-owned subsidiary of Cooper-Standard Holdings Inc. (the “Company”), issued $1,100,000,000 aggregate principal amount of its 9.250% Senior Secured First Lien Notes due 2031 (the “Notes”) pursuant to an Indenture, dated as of March 4, 2026 (the “Indenture”), by and among the Issuer, the Guarantors (as defined below) and U.S. Bank Trust Company, National Association, as trustee and collateral agent (the “Collateral Agent”).
The Notes are senior secured obligations of the Issuer and are guaranteed on a senior secured basis by CS Intermediate Holdco 1 LLC (“Holdings”) and each of the Issuer’s domestic subsidiaries that guarantee certain other indebtedness, including the Amended ABL Facility (as defined below) (together with Holdings, the “Domestic Guarantors”). The Notes are also guaranteed on a senior unsecured basis by Cooper-Standard Latin America B.V. (together with the Domestic Guarantors, the “Guarantors”), which also guarantees the Issuer’s Amended ABL Facility on a senior unsecured basis.
The Notes will mature on March 1, 2031. The Notes bear interest at the rate of 9.250% per annum, payable semi-annually in arrears in cash on May 15 and November 15 of each year, commencing on November 15, 2026.
The Issuer may, at its option, redeem all or part of the Notes at any time on or after March 1, 2028 at the redemption prices set forth in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. Prior to March 1, 2028, the Issuer may, at its option, redeem some or all of the Notes at any time, at a price equal to 100% of the principal amount of the Notes redeemed plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus a “Make-Whole Premium,” as described in the Indenture. The Issuer may also redeem up to 35% of the Notes prior to March 1, 2028 using the proceeds from certain equity offerings at the redemption price set forth in the Indenture. In addition, at any time prior to March 1, 2028, the Issuer may, at its option, redeem during any twelve-month period commencing on the Settlement Date up to 10% of the aggregate principal amount of the Notes (including any additional Notes issued after the Settlement Date) at a redemption price equal to 103% of the principal amount of the Notes redeemed plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
Upon the occurrence of certain events constituting a Change of Control (as defined in the Indenture), the Issuer will be required to make an offer to repurchase all of the Notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date.
The Indenture contains certain covenants that limit the Issuer’s and its restricted subsidiaries’ ability to, among other things, incur or guarantee additional indebtedness or issue certain preferred stock; incur liens on assets, pay dividends or make other distributions in respect of, or repurchase or redeem, their capital stock or make other restricted payments; prepay, redeem or repurchase certain debt; make certain loans and investments; enter into agreements restricting certain subsidiaries’ ability to pay dividends; enter into transactions with affiliates; and sell certain assets or merge or consolidate with or into other companies. These covenants are subject to a number of important limitations and exceptions. The Indenture also provides for events of default, which, if any occur, would permit or require the principal, premium, if any, interest and any other monetary obligations on all the then-outstanding Notes to be due and payable immediately.
In connection with the issuance of the Notes and execution of the Indenture, the Issuer and the Domestic Guarantors entered into a pledge and security agreement, dated as of the Settlement Date (the “Pledge and Security Agreement”), among the Issuer, the Domestic Guarantors and the collateral agent for the Notes. Pursuant to the Pledge and Security Agreement, the obligations of the Issuer and the Domestic Guarantors will be secured on (i) a first-priority basis, equally and ratably with all of the Issuer’s and the Domestic Guarantor’s obligations under any other pari passu indebtedness, by liens on substantially all of the Issuer’s and each Domestic Guarantor’s assets (other than ABL Facility Priority Collateral (as defined below)) (the “Fixed Asset Collateral”) and (ii) a second-priority basis by liens on the Issuer’s and each Domestic Guarantor’s accounts receivable, inventory, instruments, chattel paper and other contracts, evidencing, or substituted for, any accounts receivable, guarantees, letters of credit, security and other credit enhancements in each case for the accounts receivable, commercial tort claims and general intangibles to the extent relating to any of the accounts receivable or inventory, bank accounts or securities accounts into which any proceeds of accounts receivable or inventory are deposited, tax refunds, and books and records relating to any of the foregoing (the “ABL Facility Priority Collateral”) and, in each case, any proceeds thereof, subject to certain exceptions set forth in such agreement. On the Settlement Date, the Collateral Agent also joined, as the applicable collateral agent holding a first-priority lien on the Fixed Asset Collateral and a second-priority lien on the ABL Facility Priority Collateral, that certain intercreditor agreement, dated as of January 23, 2023 (the “Intercreditor Agreement”), which provides for the relative priorities of the respective security interests in the Fixed Asset Collateral and the ABL Facility Priority Collateral, and certain other matters relating to the administration of security interests.
The foregoing description of the Notes, the Indenture, the Pledge and Security Agreement and the Intercreditor Agreement is not complete and is qualified in its entirety by reference to the full text of the Indenture, including the form of Notes
contained therein, the Pledge and Security Agreement and the Intercreditor Agreement, as applicable, and, in the case of the Indenture and the form of Notes contained therein, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Amendment to ABL Agreement
On March 4, 2026, certain subsidiaries of the Company, namely Holdings, the Issuer (the “Borrower”), Cooper-Standard Automotive Canada Limited (the “Canadian Borrower”), and certain other subsidiaries of the Borrower, entered into Amendment No. 5 (the “Fifth Amendment”) to the Third Amended and Restated Loan Agreement (as amended, the “Amended ABL Facility”) with certain lenders, Bank of America, N.A., as agent, and the other parties thereto.
Pursuant to the Fifth Amendment, the ABL Facility was amended to, among other matters, (i) modify the guarantors that guarantee the Amended ABL Facility to release the guarantees of the Borrower’s subsidiaries in certain foreign jurisdictions, such that the obligations of (a) the Borrower or its affiliates relating to the U.S. borrowing base facility are guaranteed on a senior secured basis by the Domestic Guarantors and on a senior unsecured basis by the Dutch Guarantor and (b) the Canadian Borrower relating to the Canadian borrowing base facility are guaranteed on a senior secured basis by the Issuer, the Domestic Guarantors, the Canadian Borrower and Canadian subsidiaries and (ii) modify certain of the negative covenants.
The foregoing description of the Fifth Amendment is not complete and is qualified in its entirety by reference to the full text of the Fifth Amendment, a copy of which is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included, or incorporated by reference, in Item 1.01 is incorporated into this Item 2.03 by reference.
Item 8.01 Other Events.
Redemption of Existing Notes
On the Settlement Date, the Issuer completed, using the proceeds from the offering of the Notes, together with cash on hand, the previously announced redemptions of (i) all $616.9 million aggregate principal amount of its 13.50% Cash Pay / PIK Toggle Senior Secured First Lien Notes due 2027 (the “Existing First Lien Notes”) at a redemption price of 102.250% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Settlement Date, (ii) all $391.8 million aggregate principal amount of its 5.625% Cash Pay / 10.625% PIK Toggle Senior Secured Third Lien Notes due 2027 (the “Existing Third Lien Notes”) at a redemption price of 101.410% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Settlement Date and (iii) all $42.6 million aggregate principal amount of its 5.625% Senior Notes due 2026 (together with the Existing First Lien Notes and the Existing Third Lien Notes, the “Existing Notes”) at a redemption price of 100.000% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Settlement Date. No Existing Notes remain outstanding following such redemptions.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are furnished pursuant to Item 9.01 of Form 8-K:
| Exhibit No. | Description |
|---|---|
| 104 | The cover page of this Current Report on Form 8-K, formatted in Inline XBRL. |
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.
Cooper-Standard Holdings Inc.
| /s/ MaryAnn Peterson Kanary | |
|---|---|
| Name: | MaryAnn Peterson Kanary |
| Title: | Senior Vice President, Chief Legal Officer and Secretary |
Date: March 4, 2026
Ex. 4.1 - First Lien Notes Indenture (2026) Exhibit 4.1
Execution Version
COOPER-STANDARD AUTOMOTIVE INC.
as Issuer,
the Guarantors named herein
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee and Collateral Agent
______________________________________
INDENTURE
Dated as of March 4, 2026
______________________________________
9.250% Senior Secured First Lien Notes due 2031
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01Definitions.1
Section 1.02Rules of Construction.46
ARTICLE II.
THE SECURITIES
Section 2.01Amount of Notes.47
Section 2.02Form and Dating; Legends.48
Section 2.03Execution and Authentication.48
Section 2.04Registrar and Paying Agent.49
Section 2.05Paying Agent To Hold Money in Trust.50
Section 2.06Noteholder Lists.50
Section 2.07Transfer and Exchange.50
Section 2.08Replacement Notes.51
Section 2.09Outstanding Notes.51
Section 2.10Treasury Notes.52
Section 2.11Temporary Notes.52
Section 2.12Cancellation.52
Section 2.13Defaulted Interest.52
Section 2.14CUSIP and ISIN Numbers.53
Section 2.15Deposit of Moneys.53
Section 2.16Book-Entry Provisions for Global Notes.54
Section 2.17Transfer and Exchange of Notes.55
Section 2.18Computation of Interest.61
Section 2.19Additional Amounts.61
ARTICLE III.
REDEMPTION
Section 3.01Election To Redeem; Notices to Trustee.64
Section 3.02Selection by Trustee of Notes To Be Redeemed or
Purchased.64
Section 3.03Notice of Redemption.65
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Page
Section 3.04Effect of Notice of Redemption or Purchase.67
Section 3.05Deposit of Redemption or Purchase Price.67
Section 3.06Notes Redeemed or Purchased in Part.68
Section 3.07Mandatory Redemption; Open Market Purchases.68
ARTICLE IV.
COVENANTS
Section 4.01Payment of Notes.68
Section 4.02Maintenance of Office or Agency.69
Section 4.03Legal Existence.69
Section 4.04Waiver of Stay, Extension or Usury Laws.70
Section 4.05Compliance Certificate.70
Section 4.06Taxes.70
Section 4.07Repurchase at the Option of Holders upon Change of
Control.70
Section 4.08Limitation on Asset Disposition.73
Section 4.09Limitation on Indebtedness, Disqualified Stock and
Preferred Stock.77
Section 4.10Limitation on Restricted Payments.83
Section 4.11Limitation on Restrictions on Distributions from Restricted
Subsidiaries.88
Section 4.12Limitation on Affiliate Transactions.92
Section 4.13Limitation on Liens.93
Section 4.14Limitation on Activities of Parent and Holdings.100
Section 4.15Additional Note Guarantees.101
Section 4.16Reports to Holders.101
Section 4.17Suspension of Covenants.103
ARTICLE V.
SUCCESSOR COMPANY
Section 5.01Merger, Consolidation or Sale of Assets.104
Section 5.02Successor Person Substituted.106
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.01Events of Default.106
Section 6.02Acceleration of Maturity; Rescission.109
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Page
Section 6.03Other Remedies.111
Section 6.04Waiver of Existing Defaults and Events of Default.111
Section 6.05Control by Majority.112
Section 6.06Limitation on Suits.112
Section 6.07No Personal Liability of Directors, Officers, Employees and
Stockholders.113
Section 6.08Rights of Holders To Receive Payment.113
Section 6.09Collection Suit by Trustee.113
Section 6.10Trustee May File Proofs of Claim.113
Section 6.11Priorities.114
Section 6.12Undertaking for Costs.114
ARTICLE VII.
TRUSTEE AND COLLATERAL AGENT
Section 7.01Duties of Trustee and Collateral Agent.115
Section 7.02Rights of Trustee and Collateral Agent.117
Section 7.03Individual Rights of Trustee.119
Section 7.04Disclaimer.119
Section 7.05Notice of Defaults.119
Section 7.06[Reserved].119
Section 7.07Compensation and Indemnity.119
Section 7.08Replacement of Trustee or Collateral Agent.121
Section 7.09Successor by Consolidation, Merger, etc.122
Section 7.10Eligibility; Disqualification.122
Section 7.11[Reserved.]123
Section 7.12Paying Agents.123
ARTICLE VIII.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01Without Consent of Noteholders.123
Section 8.02With Consent of Noteholders.125
Section 8.03[Reserved].127
Section 8.04Revocation and Effect of Consents.127
Section 8.05Notation on or Exchange of Notes.127
Section 8.06Trustee and Collateral Agent to Sign Amendments, etc.127
ARTICLE IX.
DISCHARGE OF INDENTURE; DEFEASANCE
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Page
Section 9.01Discharge of Indenture.128
Section 9.02Legal Defeasance.129
Section 9.03Covenant Defeasance.130
Section 9.04Conditions to Defeasance or Covenant Defeasance.130
Section 9.05Deposited Money and U.S. Government Obligations To Be
Held in Trust.132
Section 9.06Reinstatement.132
Section 9.07Moneys Held by Paying Agent.132
Section 9.08Moneys Held by Trustee.133
ARTICLE X.
GUARANTEE OF SECURITIES
Section 10.01Guarantee.133
Section 10.02Execution and Delivery of Note Guarantee.134
Section 10.03Release of Guarantors.134
Section 10.04Waiver of Subrogation.136
Section 10.05[Reserved].137
Section 10.06Limitation on Guarantor’s Liability; Certain Foreign
Guarantor Considerations.137
ARTICLE XI.
COLLATERAL AND SECURITY
Section 11.01Collateral.137
Section 11.02Maintenance of Collateral.138
Section 11.03Further Assurances.138
Section 11.04After-Acquired Collateral.139
Section 11.05Real Estate Mortgages and Filings.140
Section 11.06Negative Pledge.141
Section 11.07Release of Liens on the Collateral.141
Section 11.08Authorization of Actions to be Taken by the Trustee or the
Collateral Agent under the First Lien Notes Security
Documents.142
Section 11.09Information Regarding Collateral.143
Section 11.10First Lien Notes Security Documents.144
Section 11.11Collateral Agent.144
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Page
ARTICLE XII.
MISCELLANEOUS
Section 12.01Currency Indemnity.144
Section 12.02Notices.145
Section 12.03Communications by Holders with Other Holders.147
Section 12.04Certificate and Opinion as to Conditions Precedent.147
Section 12.05Statements Required in Certificate and Opinion.147
Section 12.06Rules by Trustee and Agents.148
Section 12.07Business Days; Legal Holidays.148
Section 12.08Governing Law; Submission to Jurisdiction.148
Section 12.09No Adverse Interpretation of Other Agreements.148
Section 12.10Successors.148
Section 12.11Multiple Counterparts.148
Section 12.12Table of Contents, Headings, etc.149
Section 12.13Separability.149
Section 12.14Waiver of Jury Trial.149
Section 12.15Force Majeure.149
Section 12.16Trust Indenture Act.150
Section 12.17U.S.A. Patriot Act.150
SIGNATURESS-1
EXHIBITS
Exhibit A.Form of NoteA-1
Exhibit B.Form of Private Placement LegendB-1
Exhibit C.Form of Legend for Global NoteC-1
Exhibit D.Form of Regulation S LegendD-1
Exhibit E.Form of Certificate of TransferE-1
Exhibit F.Form of Certificate of ExchangeF-1
Exhibit G.Form of Supplemental Indenture to be Delivered by
Subsequent Guarantors G-1
INDENTURE, dated as of March 4, 2026 among Cooper-Standard Automotive Inc.,
an Ohio corporation (the “Issuer”), the Guarantors (as defined below) and U.S. Bank Trust
Company, National Association, as trustee (in such capacity, the “Trustee”) and collateral agent (in
such capacity, the “Collateral Agent”).
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01Definitions.
“ABL Collateral” means the following assets of the Issuer and the Guarantors (to the
extent such Guarantors also guarantee the ABL Credit Facility): (a) all accounts receivable (except
to the extent constituting proceeds of equipment, real property, or intellectual property); (b) all
inventory; (c) all instruments, chattel paper and other contracts, in each case, evidencing, or
substituted for, any accounts receivable; (d) all guarantees, letters of credit, security and other credit
enhancements in each case for the accounts receivable; (e) all documents of title for any inventory;
(f) all commercial tort claims and general intangibles (other than intellectual property and Capital
Stock) to the extent relating to any of the accounts receivable or inventory; (g) all bank accounts or
Securities Accounts into which any proceeds of accounts receivable or inventory are deposited
(including all cash and other funds on deposit therein, except to the extent constituting identifiable
proceeds of the Fixed Asset Collateral) but excluding Excluded Deposit Accounts (as defined in the
First Lien Security Agreement); (h) all tax refunds (except to the extent derived from an identifiable
sale of equipment, real property or intellectual property and not from any other ABL Collateral); (i)
all books and records relating to any of the foregoing; and (j) all substitutions, replacements,
accessions, products or proceeds (including, without limitation, insurance proceeds) of any of the
foregoing, in each case, other than Excluded Assets; provided further that the ABL Collateral
excludes all interests in the Issuer’s and the Guarantors’ real property, whether owned or leased.
“ABL Collateral Agent” means Bank of America, N.A. and its successors and
assigns in that capacity and any collateral agent under any agreement that constitutes the ABL
Credit Facility.
“ABL Credit Facility” means that certain third amended and restated loan agreement,
dated as of November 2, 2016, by and among Holdings, the Issuer, the other borrowers party
thereto, the guarantors party thereto, Bank of America, N.A., as agent, and the lenders and other
parties party thereto, and including any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and, in each case, as amended by amendment no.
1 to third amended and restated loan agreement and limited waiver, dated as of March 24, 2020,
amendment no. 2 to third amended and restated loan agreement, dated as of May 18, 2020,
amendment no. 3 to third amended and restated loan agreement, dated as of December 19, 2022,
amendment no. 4 to third amended and restated loan agreement, dated as of May 6, 2024, and
amendment no. 5 to third amended and restated loan agreement, dated as of the Issue Date, and as
further amended, restated, supplemented, waived, renewed or otherwise modified from time to time,
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and (if designated by the Issuer) as replaced (whether or not upon termination, and whether with the
original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from
time to time, including (if designated by the Issuer) any agreement or indenture or commercial
paper facilities or other facilities with banks or other institutional lenders or investors extending the
maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreements or indenture or indentures or any successor or
replacement agreement or agreements or indenture or indentures or increasing the amount loaned or
issued thereunder permitted under Section 4.09 or altering the maturity thereof or adding Restricted
Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other
agent, lender or group of lenders.
“ABL Debt” means:
(1)Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) and other obligations incurred by the ABL Loan Parties under or in respect
of the ABL Credit Facility and/or secured by the ABL Security Documents; and
(2)guarantees by any Restricted Subsidiary in respect of any of the obligations
described in the foregoing clause (1).
“ABL Documents” means, collectively, the ABL Credit Facility, the Intercreditor
Agreement and the credit agreement or other agreement governing other ABL Debt and the security
documents related to the foregoing.
“ABL Loan Parties” means, collectively, Holdings, the Issuer and the other
borrowers and guarantors under the ABL Credit Facility.
“ABL Obligations” means ABL Debt and all other Obligations in respect thereof,
including Cash Management Obligations and Hedging Obligations.
“ABL Security Documents” means all security agreements, pledge agreements,
control agreements, collateral assignments, mortgages, deeds of trust, security deeds, deeds to
secure debt, hypothecs, collateral agency agreements, debentures or other instruments, pledges,
grants or transfers for security or agreements related thereto executed and delivered by the Issuer or
any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon collateral
(including, without limitation, financing statements under the UCC) in favor of the ABL Collateral
Agent, for the benefit of any of the Holders of ABL Debt, in each case, as amended, modified,
restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its
terms and the applicable ABL Documents subject to the terms of the Intercreditor Agreement, as
applicable.
“Accounting Change” has the meaning set forth in the definition of “GAAP.”
“Additional Amounts” has the meaning set forth in Section 2.19.
“Additional Assets” means:
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(1)any property or assets (other than Indebtedness and Capital Stock) to be used
by the Issuer or a Restricted Subsidiary;
(2)the Capital Stock of a Person that becomes a Restricted Subsidiary as a result
of the acquisition of such Capital Stock by the Issuer or another Restricted Subsidiary; or
(3)Capital Stock constituting a non-controlling interest in any Person that at
such time is a Restricted Subsidiary.
“Additional Notes” has the meaning set forth in Section 2.01.
“Advance Offer” has the meaning set forth in Section 4.08.
“Advance Portion” has the meaning set forth in Section 4.08.
“Advisory Firm” means an accounting, appraisal, investment banking firm or
consultant of nationally recognized standing that is, in the good faith judgment of the Issuer,
qualified to perform the task for which it has been engaged.
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.
“Affiliate Transaction” has the meaning set forth in Section 4.12.
“Agent” means any Registrar, Paying Agent, Depository Custodian, or agent for
service or notices and demands.
“Agent Members” has the meaning set forth in Section 2.16.
“amend” means to amend, supplement, restate, amend and restate or otherwise
modify; and “amendment” shall have a correlative meaning.
“Applicable Treasury Rate” for any Make-Whole Redemption Date means the yield
to maturity at the time of computation of United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that
has become publicly available at least two Business Days prior to the Make-Whole 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 Make-Whole Redemption Date to March 1,
2028; provided, however, that if the period from the Make-Whole Redemption Date to March 1,
2028 is not equal to the constant maturity of a United States Treasury security for which a weekly
average yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given except that if the period from the Make-Whole
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Redemption Date to March 1, 2028 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
“asset” means any asset or property, whether real, personal or mixed, tangible or
intangible.
“Asset Disposition” means any sale, conveyance, transfer or other disposition (or
series of related sales, conveyances, transfers or dispositions) by the Issuer or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of:
(1)any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares or shares required by applicable law to be held by a Person other than the
Issuer or a Restricted Subsidiary);
(2)all or substantially all the assets of any division or line of business of the
Issuer or any Restricted Subsidiary; or
(3)any other assets or property of the Issuer or any Restricted Subsidiary outside
of the ordinary course of business of the Issuer or such Restricted Subsidiary.
Notwithstanding the foregoing, none of the following shall be deemed to be an Asset
Disposition:
(1)a disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a
Restricted Subsidiary to a Restricted Subsidiary;
(2)a disposition of all or substantially all the assets of the Issuer in compliance
with Section 5.01 or a disposition that constitutes a Change of Control pursuant to this
Indenture;
(3)a sale, contribution, conveyance or other transfer of accounts receivable, or
participation therein, and Receivables Assets (or a fractional undivided interest therein) in a
Permitted Receivables Financing;
(4)the license or sublicense of intellectual property or other intangibles;
(5)the lease, assignment or sublease of any real or personal property in the
ordinary course of business;
(6)any surrender or waiver of contract rights or settlement, release, recovery on
or surrender of contract, tort or other claims in the ordinary course of business;
(7)the granting of Liens not prohibited by Section 4.13;
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(8)the disposition by the Issuer or any of its Restricted Subsidiaries of (i) cash
and Cash Equivalents, (ii) inventory and other assets acquired and held for resale in the
ordinary course of business, (iii) damaged, uneconomical, negligible, worn out or obsolete
assets or other assets (including equipment and intellectual property) that, in the Issuer’s
reasonable judgment, are no longer used or useful in the business of the Issuer or its
Restricted Subsidiaries, or (iv) rights granted to others pursuant to leases or licenses, to the
extent not materially interfering with the operations of the Issuer or its Restricted
Subsidiaries;
(9)[reserved];
(10)any exchange of assets for assets (including a combination of assets (which
assets may include Equity Interests or any securities convertible into, or exercisable or
exchangeable for, Equity Interests, but which assets may not include any Indebtedness) and
Cash Equivalents) of comparable or greater market value or usefulness to the business of the
Issuer and its Restricted Subsidiaries, taken as a whole, as determined in good faith by the
Issuer;
(11)dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar proceedings
and exclusive of factoring or similar arrangements;
(12)the issuance by the Issuer or a Restricted Subsidiary of preferred stock or any
convertible securities;
(13)[reserved];
(14)any sale of assets received by the Issuer or any Restricted Subsidiary upon
foreclosure on a Lien;
(15)the unwinding of any Hedging Obligations (including sales under forward
contracts);
(16)any dispositions 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 agreements;
(17)the lease or sublease of office space;
(18)the abandonment, farm-out, lease, assignment, sublease, license or sublicense
of any real or personal property in the ordinary course of business;
(19)the sale, lease, assignment, license, sublease or discount of inventory,
equipment, accounts receivable, notes receivable or other current assets held for sale in the
ordinary course of business or the conversion of accounts receivable to notes receivable or
other dispositions of accounts receivable in connection with the collection or compromise
thereof;
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(20)dispositions of property pursuant to casualty events, foreclosures or any
similar action on assets;
(21)any financing transaction with respect to property constructed or acquired by
the Issuer or a Restricted Subsidiary after the Issue Date;
(22)the lapse or abandonment of intellectual property rights in the ordinary course
of business, which in the reasonable judgment of the Issuer are not material to the conduct of
the business of the Issuer and its Restricted Subsidiaries taken as a whole;
(23)a single transaction or series of related transactions that involve the
disposition of assets, or issuance or sale of Capital Stock of any Restricted Subsidiary, with
a Fair Market Value of less than $25.0 million; or
(24)a disposition of property, Equity Interests and/or other assets in connection
with any European Restructuring, with a fair market value of a reasonable amount in the
Issuer’s good faith determination, but in any event, no more than €50.0 million; provided
that fair market value for purposes of this clause (24) shall mean the value that would be
paid by a willing buyer to an unaffiliated willing seller, determined in good faith by the
Issuer.
Notwithstanding the foregoing, for purposes of determining the permissibility of any
sale, assignment, transfer, lease, conveyance or other disposition of any material Fixed Asset
Collateral (but excluding, for the avoidance of doubt, cash or Cash Equivalents), the Dutch
Guarantor shall be deemed to be a Restricted Subsidiary that is not a Guarantor (and, for the
avoidance of doubt, shall not be deemed to be a Guarantor).
“Authentication Order” has the meaning set forth in Section 2.01.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,”
as in effect on the Issue Date and as may be amended from time to time, or any successor statute.
“Bankruptcy Law” means the Bankruptcy Code or any similar federal, state, local or
foreign law for the relief of debtors.
“Board of Directors” means, with respect to any Person, the board of directors or
comparable governing body of such Person.
“Business Day” has the meaning set forth in Section 12.07.
“Canadian Borrowing Base” means, on any date of determination, an amount equal
to the “Canadian Borrowing Base” (as defined in the ABL Credit Facility, as in effect on the date
hereof).
“Capital Stock” means:
(1)in the case of a corporation, corporate stock;
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(2)in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3)in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4)any other interest or participation that confers on a Person the right to receive
a share of the profits and losses of, or distribution of assets of, the issuing Person.
“Capitalized Lease Obligations” of any Person means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease that would at such time
be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes
thereto) in accordance with GAAP; provided that any obligation in respect of operating leases of the
Issuer or its Restricted Subsidiaries, whether entered into before or after the Issue Date, that are (in
accordance with GAAP as in effect on December 31, 2019) or characterized as capital lease
obligations of the Issuer and its Restricted Subsidiaries on a consolidated basis under GAAP will be
deemed not to be treated as a Capitalized Lease Obligation or Indebtedness.
“Cash Consideration” has the meaning set forth in Section 4.08.
“Cash Equivalents” means:
(1)U.S. Dollars, Canadian dollars, Chinese yuan, Japanese yen, pounds sterling,
euros or the national currency of any participating member state of the European Union or
other currencies held by the Issuer or its Restricted Subsidiaries from time to time in the
ordinary course of business;
(2)securities issued or directly and fully guaranteed or insured by the
government of the United States, Canada or any country that is a member of the European
Union or any agency or instrumentality thereof, in each case, with maturities not exceeding
two years from the date of acquisition;
(3)certificates of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers’ acceptances, in each
case, with maturities not exceeding one year, and overnight bank deposits, in each case, with
any commercial bank having capital and surplus in excess of $500,000,000, or the foreign
currency equivalent thereof, and whose long-term debt is rated “A” or higher or the
equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another
internationally recognized Ratings Agency);
(4)repurchase obligations for underlying securities of the types described in
clauses (2) and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5)commercial paper issued by a corporation (other than an Affiliate of the
Issuer) rated at least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably
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equivalent ratings of another internationally recognized Ratings Agency) and, in each case,
maturing within one year after the date of acquisition;
(6)readily marketable direct obligations issued by any state of the United States
of America or any municipal or political subdivision thereof with a rating of “AA-” from
S&P or “Aa3” from Moody’s or guaranteed by a financial institution with a rating of “AA-”
from S&P or “Aa3” from Moody’s (or reasonably equivalent ratings of another
internationally recognized Ratings Agency), in each case, with maturities not exceeding two
years from the date of acquisition;
(7)Indebtedness issued by Persons with a rating of “A” or higher from S&P or
“A-2” or higher from Moody’s, in each case, with maturities not exceeding two years from
the date of acquisition; and
(8)investment funds investing at least 90% of their assets in securities of the
types described in clauses (1) through (6) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated
in currencies other than those set forth in clause (1) above; provided that such amounts are
converted into any currency listed in clause (1) as promptly as practicable and in any event within
ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this
definition will be deemed to be Cash Equivalents under this Indenture regardless of the treatment of
such items under GAAP.
“Cash Management Obligations” means (1) obligations of the Issuer or any of its
Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury,
depository, cash pooling arrangements and cash management or treasury services or any automated
clearing house transfers of funds, (2) other obligations in respect of netting services, employee
credit or purchase card programs and similar arrangements and (3) obligations in respect of any
other services related, ancillary or complementary to the foregoing (including any overdraft and
related liabilities arising from treasury, depository, cash pooling arrangements and cash
management services, corporate credit and purchasing cards and related programs or any automated
clearing house transfers of funds).
“Cash Pooling Arrangements” means deposit account and liquidity arrangements by
and among depository institutions and the Issuer and/or one or more Foreign Subsidiaries involving
the pooling of cash deposits in and overdrafts in respect of one or more deposit or similar accounts
for cash management purposes.
“Certain Other Indebtedness” has the meaning set forth in Section 4.15.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957
of the Code.
“Change of Control” means the occurrence of any of the following:
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(1)any Transfer (other than by way of merger or consolidation) of all or
substantially all of the assets of Parent and its Subsidiaries taken as a whole to any
“person” (as defined in Section 13(d) of the Exchange Act) or “group” (as defined in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than any Transfer to Holdings,
the Issuer or one or more Subsidiaries;
(2)a “person” (as defined above) or “group” (as defined above), becomes,
directly or indirectly, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of more than 50% of the voting power of the Voting Stock of Parent, other
than as a result of (i) any transaction where the voting power of the Voting Stock of Parent
immediately prior to such transaction constitutes or is converted into or exchanged for a
majority of the voting power of the Voting Stock of such beneficial owner or (ii) any merger
or consolidation of Parent with or into any “person” (as defined above) (a “Permitted
Person”) or a Subsidiary of a Permitted Person, in each case, if immediately after such
transaction no person (as defined above) is the beneficial owner (as defined above), directly
or indirectly, of more than 50% of the voting power of the Voting Stock of such Permitted
Person; or
(3)the Issuer ceases to be a Subsidiary of Parent.
Notwithstanding the preceding or any provision of Section 13d- 3 of the Exchange
Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or
asset purchase agreement, merger agreement, option agreement, warrant agreement or similar
agreement until the consummation of the acquisition of the Voting Stock in connection with the
transactions contemplated by such agreement and (ii) a Person or group will not be deemed to
beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or
other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns
50% or more of the total voting power of the Voting Stock of such Parent Entity.
“Change of Control Offer” has the meaning set forth in Section 4.07.
“Change of Control Payment” has the meaning set forth in Section 4.07.
“Change of Control Payment Date” has the meaning set forth in Section 4.07.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to
time.
“Collateral” means all of the assets and properties subject (or purported to be
subject) to the Liens, created by the First Lien Notes Security Documents.
“Commission” means the United States Securities and Exchange Commission.
“Consolidated EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication, to the extent the
same was deducted in calculating Consolidated Net Income:
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(1)Consolidated Taxes; plus
(2)Consolidated Interest Expense; plus
(3)Consolidated Non-cash Charges; plus
(4)any fees, expenses, charges or losses (other than Consolidated Non-cash
Charges) related to any issuance of Equity Interests, investment, acquisition, disposition,
recapitalization or the incurrence or repayment of Indebtedness (whether or not successful),
and any amendment or modification to the terms of any such transaction, including (i) such
fees, expenses or charges related to the Refinancing Transactions, (ii) any amendment or
other modification of other Indebtedness and (iii) commissions, discounts, yield and other
fees and charges (including any interest expense) related to any Permitted Receivables
Financing; plus
(5)the amount of loss or discount on sale of receivables and Receivables Assets
in connection with a Permitted Receivables Financing; plus
(6)the amount of any restructuring charges or reserves (which, for the avoidance
of doubt, shall include retention, severance, systems development and establishment costs,
conversion costs, excess pension charges, curtailments and modifications to pension and
post-retirement employee benefit plan costs or charges and contract termination costs,
including future lease commitments, costs related to the start-up, closure, relocation or
consolidation of facilities and costs to relocate employees and any one-time costs incurred in
connection with acquisitions after the Issue Date); plus
(7)(x) the amount of “run rate” net cost savings, synergies and operating
expense reductions projected by the Issuer in good faith to result from actions taken no later
than twelve (12) months after the date of determination to take such action (calculated on a
pro forma basis as though such cost savings, operating expense reductions and synergies had
been realized on the first day of the period for which Consolidated EBITDA is being
determined and if such cost savings, operating expense reductions and synergies were
realized during the entirety of such period), net of the amount of actual benefits realized
during such period from such actions and (y) the amount of “run rate” net cost savings,
synergies and operating expense reductions projected by the Issuer in good faith to result
from actions taken no later than twelve (12) months after the end of such period (calculated
on a pro forma basis as though such cost savings, operating expense reductions and
synergies had been realized on the first day of the period for which Consolidated EBITDA is
being determined and if such cost savings, operating expense reductions and synergies were
realized during the entirety of such period), net of the amount of actual benefits realized
during such period from such actions; provided, that such cost savings, operating expense
reductions and synergies are reasonably identifiable and factually supportable (it is
understood and agreed that “run-rate” means the full recurring benefit for a period that is
associated with any action taken); plus
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(8)costs of surety bonds incurred in such period in connection with financing
activities; plus
(9)any costs or expense incurred pursuant to any management equity plan or
stock option plan or other management or employee benefit plan or agreement or any stock
subscription or shareholder agreement, to the extent that such costs or expenses are funded
with cash proceeds contributed to the capital of the Issuer or any Restricted Subsidiary or the
net cash proceeds of an issuance of Equity Interests of the Issuer (other than Excluded
Equity) solely to the extent that such net cash proceeds are excluded from the calculation of
the amount available for Restricted Payments pursuant to the Restricted Payments Basket;
plus/minus
(10)gains or losses due solely to fluctuations in currency values and the related
tax effects; plus/minus
(11)any after-tax effect of extraordinary, non-recurring or unusual gains, losses or
charges (less all fees and expenses relating thereto) or expenses (including relating to the
issuance of the Notes), severance, relocation costs, curtailments or modifications to pension
and post-retirement employee benefit plans, start-up, facilities opening, transition,
integration and other restructuring costs, charges, reserves or expenses (including related to
acquisitions after the Issue Date and to the start-up, closure and/or consolidation of
facilities), new product introductions, one-time compensation charges and signing, retention
or completion bonuses;
provided the aggregate amount added pursuant to clauses (4), (5), (6), (7) and (11) and the
definition of “Pro Forma Cost Savings” shall not, in the aggregate, exceed 25.0% of Consolidated
EBITDA for such period (solely for purposes of clause (7), giving pro forma effect to the relevant
transaction, other than any cost savings, synergies, operating expense reductions or Pro Forma Cost
Savings) determined prior to giving effect to any adjustments pursuant to clauses (4), (5), (6), (7)
and (11) or the definition of “Pro Forma Cost Savings”;
less, without duplication, non-cash items increasing Consolidated Net Income for such period
(excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period).
“Consolidated Fixed Charge Coverage Ratio” means the ratio of (A) Consolidated
EBITDA of the Issuer and its Restricted Subsidiaries during the most recent four consecutive full
fiscal quarters for which financial statements are available (the “Four-Quarter Period”) ending on or
prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio (the “Transaction Date”) to (B) Consolidated Fixed Charges of the Issuer and its
Restricted Subsidiaries for the Four-Quarter Period.
For purposes of this definition, Consolidated EBITDA and Consolidated Fixed
Charges shall be calculated after giving effect on a pro forma basis for the period of such
calculation to the incurrence of any Indebtedness or the issuance of any Preferred Stock of the
Issuer or any Restricted Subsidiary (and the application of the proceeds thereof) and any repayment,
retirement or extinguishment of Indebtedness or redemption of other Preferred Stock (and the
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application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in
the ordinary course of business for working capital purposes pursuant to any revolving credit
arrangement unless such Indebtedness has been permanently repaid and has not been replaced)
occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-
Quarter Period and on or prior to the Transaction Date, as if such incurrence, repayment, retirement,
extinguishment, issuance or redemption, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four-Quarter Period. For the avoidance of doubt, any
Participating Financial Instruments issued pursuant to Section 4.09(b)(16) shall not be included for
purposes of calculating the Consolidated Fixed Charge Coverage Ratio.
For purposes of making the computation referred to above, investments, acquisitions,
dispositions, mergers, amalgamations, consolidations and disposed operations (as determined in
accordance with GAAP) and operational changes that have been made by the Issuer or any of its
Restricted Subsidiaries during the Four-Quarter Period or subsequent to such Four-Quarter Period
and on or prior to or simultaneously with the Transaction Date shall be calculated on a pro forma
basis assuming that all such investments, acquisitions, dispositions, mergers, amalgamations,
consolidations, disposed operations and operational changes (and the change in any associated fixed
charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on
the first day of the Four-Quarter Period. If since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Issuer
or any of its Restricted Subsidiaries since the beginning of such period shall have made any
investment, acquisition, disposition, merger, amalgamation, consolidation, disposed operation or
operational change that would have required adjustment pursuant to this definition, then the
Consolidated Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for
such Four-Quarter Period as if such investment, acquisition, disposition, merger, amalgamation,
consolidation, disposed operation or operational change had occurred at the beginning of the Four-
Quarter Period; provided that, notwithstanding any classification under GAAP of any Person or
business in respect of which a definitive agreement for the disposition thereof has been entered into
as discontinued operations, such transaction shall not be treated as a disposition or a discontinued
operation for purposes of the calculation of the Consolidated Fixed Charge Coverage Ratio until
such transaction shall have been consummated.
For purposes of this definition, whenever pro forma effect is to be given to a
transaction, the pro forma calculations shall be made in good faith by a responsible officer of the
Issuer (and may include, for the avoidance of doubt and without duplication, cost savings, operating
expense reductions and synergies resulting from any asset sale or other disposition or such
investment, acquisition, disposition, merger, amalgamation or consolidation or discontinued
operation which is being given pro forma effect that have been or are expected to be realized, in
each case any such adjustments may be incremental to (but not duplicative of) pro forma
adjustments made pursuant to clause (7) of the definition of “Consolidated EBITDA” and calculated
in accordance with and subject to the limitations set forth in clause (7) of the definition of
“Consolidated EBITDA”). In addition to such adjustments pro forma calculations may also include
Pro Forma Cost Savings.
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If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Transaction
Date had been the applicable rate for the entire period (taking into account any Hedging Obligations
applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case of
any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12
months, taking into account such Hedging Obligation to the extent of its remaining term). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by a responsible officer of the Issuer to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro
forma basis shall be computed based upon the average daily balance of such Indebtedness during
the applicable period or, if lower, the maximum commitments under such revolving Credit Facility
as of the Transaction Date. Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Issuer may designate.
“Consolidated Fixed Charges” for any period means the sum, without duplication, of
(a) Consolidated Interest Expense of the Issuer and the Restricted Subsidiaries for such period, plus
(b) all dividend payments on any series of Disqualified Stock of the Issuer or any Restricted
Subsidiary or any Preferred Stock of any Restricted Subsidiary (other than any such Disqualified
Stock or any Preferred Stock held by the Issuer or a Restricted Subsidiary or to the extent paid in
Qualified Equity Interests) for such period.
“Consolidated Interest Expense” means, with respect to any Person for any period,
the sum, without duplication, of:
(1)interest expense of such Person and its Restricted Subsidiaries for such
period, on a consolidated basis, to the extent such expense was deducted (and not added
back) in computing Consolidated Net Income (including (i) amortization of original issue
discount or premium resulting from the issuance of Indebtedness at less than or greater than
par, as applicable, (ii) the interest component of Capitalized Lease Obligations, (iii) net
payments and receipts (if any) pursuant to interest rate Hedging Obligations and (iv) all
commissions, discounts and other fees and charges owed with respect to letters of credit or
bankers acceptances, and excluding (q) amortization of deferred financing fees, debt
issuance costs, commissions, fees and expenses and original issue discount with respect to
Indebtedness issued in connection with the Refinancing Transactions or any intercompany
Indebtedness, (r) any expensing of bridge, commitment or other financing fees, (s) any
expense resulting from the discounting of Indebtedness in connection with the application of
recapitalization or purchase accounting, (t) penalties and interest relating to taxes, (u) non-
cash interest expense attributable to movement in mark-to-market valuation of Hedging
Obligations or other derivatives (in each case, permitted hereunder and under GAAP),
(v) accretion or accrual of discounted liabilities not constituting Indebtedness, (w) interest
expense attributable to a parent entity resulting from push-down accounting, and
(x) commissions, discounts, yield, make whole premium and other fees and charges
(including any interest expense) related to any Permitted Receivables Financing);
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(2)interest on Indebtedness, the proceeds of which have been contributed to such
Person (other than as Excluded Equity) and that has been guaranteed by, and is otherwise
considered Indebtedness of, such Person or any of its Subsidiaries (to the extent not already
included in clause (1) above); and
(3)consolidated capitalized interest of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued;
less interest income for such period; provided that, for purposes of calculating Consolidated Interest
Expense, no effect shall be given to the discount and/or premium resulting from the bifurcation of
derivatives under FASB ASC 815 and related interpretations as a result of the terms of the
Indebtedness to which such Consolidated Interest Expense relates.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated Net Income” means, with respect to any Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis; provided, however, that:
(1)[reserved];
(2)the cumulative effect of a change in accounting principles during such period,
shall be excluded;
(3)any net after-tax effect of gains or losses from disposed, abandoned,
transferred, closed or discontinued operations and any net after-tax gains or losses on
disposal of disposed, abandoned, transferred, closed or discontinued operations, shall be
excluded;
(4)any net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to business dispositions (including Capital Stock of any Person) or
Asset Dispositions or abandonments other than in the ordinary course of business (as
determined in good faith by the Issuer) shall be excluded;
(5)any net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of Indebtedness, Hedging Obligations and
other derivative instruments (including deferred financing costs written off and premiums
paid), shall be excluded;
(6)the Net Income for such period of any Person that is not a Subsidiary of such
Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting (other than a Guarantor), shall be excluded to the extent such Person or
Unrestricted Subsidiary is prohibited by contract (including its organizational
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documents) from making dividends or distributions to the Issuer or a Restricted Subsidiary;
provided that Consolidated Net Income of the Issuer shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or to the extent
converted into cash or Cash Equivalents) to the referent Person or a Restricted Subsidiary
thereof in respect of such period;
(7)solely for the purpose of determining the amount available for Restricted
Payments under the Restricted Payments Basket, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such Restricted Subsidiary of
its Net Income is not at the date of determination permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by
the operation of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends or similar
distributions has been legally waived; provided that the Consolidated Net Income of such
Person shall be increased by the amount of dividends or other distributions or other
payments actually paid in cash (or converted into cash) or Cash Equivalents by any such
Restricted Subsidiary to such Person, to the extent not already included therein;
(8)any non-cash compensation expense realized from employee benefit plans or
post-employment benefit plans, grants of stock appreciation or similar rights, phantom
equity, stock options, restricted stock, units or other rights to officers, directors and
employees of such Person or any of its Restricted Subsidiaries shall be excluded;
(9)(a) (i) the non-cash portion of “straight-line” rent expense shall be excluded
and (ii) the cash portion of “straight-line” rent expense that exceeds the amount expensed in
respect of such rent expense shall be included and (b) non-cash gains, losses, income and
expenses resulting from fair value accounting required by FASB ASC 815 shall be
excluded;
(10)unrealized gains and losses relating to hedging transactions and mark-to-
market of Indebtedness denominated in foreign currencies resulting from the application of
FASB ASC 830 shall be excluded;
(11)any (a) severance or relocation costs or expenses, (b) one-time non-cash
compensation charges, (c) the costs and expenses after the Issue Date related to employment
of terminated employees, or (d) costs or expenses realized in connection with or resulting
from stock appreciation or similar rights, phantom equity, stock options, restricted stock
units or other rights existing on the Issue Date of officers, directors and employees, in each
case, of such Person or any of its Restricted Subsidiaries, shall be excluded;
(12)accruals and reserves, contingent liabilities and any gains and losses on the
settlement of any pre-existing contractual or non-contractual relationships as a result of the
issuance of the Notes that are established or adjusted within 12 months after the Issue Date
and that are so required to be established or adjusted in accordance with GAAP or as a result
of adoption or modification of accounting policies shall be excluded;
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(13)the effect of any non-cash impairment charges or write-ups, write-downs or
write-offs of assets (including intangible assets, goodwill and deferred financing costs but
excluding accounts receivable) or liabilities resulting from the application of GAAP
(including in connection with the issuance of the Notes) and the amortization of intangibles
arising from the application of GAAP (excluding any non-cash item to the extent that it
represents an accrual of or reserve for cash expenditures in any future period except to the
extent such item is subsequently reversed) shall be excluded; and
(14)any fees, expenses or charges (such as capitalized manufacturing profit in
inventory) incurred during such period, or any amortization thereof for such period, in
connection with any acquisition, investment, recapitalization, disposition, issuance or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or
amendment or modification of any debt instrument (in each case, including any such
transaction consummated prior to the Issue Date and any such transaction undertaken but not
completed) and any charges or non-recurring merger costs incurred during such period as a
result of any such transaction shall be excluded.
In addition, to the extent not already included in the Consolidated Net Income of
such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the
foregoing, Consolidated Net Income shall include (i) the amount of proceeds actually received from
business interruption insurance, (ii) other than for purposes of calculating the amount available for
Restricted Payments under the Restricted Payments Basket, the amount of proceeds as to which the
Issuer has determined there is reasonable evidence it will be reimbursed by the insurer in respect of
such period from business interruption insurance (with a deduction for any amounts so added back
to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within
365 days) and (iii) reimbursements of any expenses and charges pursuant to indemnification or
other reimbursement provisions in connection with any investment or any sale, conveyance, transfer
or other disposition of assets, in each case, permitted under the terms hereof.
Notwithstanding the foregoing, for the purpose of Section 4.10, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or advances or other
transfers of assets from Unrestricted Subsidiaries of the Issuer or a Restricted Subsidiary of the
Issuer to the extent such dividends, repayments or transfers increase the amount of Restricted
Payments permitted under Section 4.10(a)(3)(E).
“Consolidated Non-cash Charges” means, with respect to any Person for any period,
the aggregate depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), impairment, compensation
and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person for such period on a consolidated basis and otherwise determined in
accordance with GAAP; provided that if any non-cash charges referred to in this definition
represent an accrual or reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future
period to such extent paid.
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“Consolidated Taxes” means, with respect to any Person and its Restricted
Subsidiaries on a consolidated basis for any period, provision for taxes based on income, profits or
capital, including, without limitation, state franchise and similar taxes, and including an amount
equal to the amount of tax distributions actually made to the holders of Capital Stock of such Person
or any direct or indirect parent of such Person in respect of such period which shall be included as
though such amounts had been paid as income taxes directly by such Person.
“Consolidated Total Assets” means, the consolidated total assets of the Issuer and its
Restricted Subsidiaries as set forth on the consolidated balance sheet of the Issuer as of the most
recent period for which financial statements were required to have been delivered pursuant to
Section 4.16(a)(1); provided that, for purposes of testing the covenants under this Indenture in
connection with any transaction, the Consolidated Total Assets of the Issuer and its Restricted
Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated
Fixed Charge Coverage Ratio.”
“Contingent Obligations” means, with respect to any Person, any obligation of such
Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent:
(1)to purchase any such primary obligation or any property constituting direct or
indirect security therefor;
(2)to advance or supply funds:
(a)for the purchase or payment of any such primary obligation; or
(b)to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor; or
(3)to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation against loss in respect thereof.
“Contractual Obligation” means as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
“Corporate Trust Office” means the office of the Trustee at which any time its
corporate trust business in relation to this Indenture shall be administered, which at the date hereof
is located at 100 Wall Street, Suite 600, New York, New York 10005, Attention.: Global Corporate
Trust Services, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Issuer, 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 Issuer).
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“Covenant Defeasance” has the meaning set forth in Section 9.03.
“Covenant Suspension Event” has the meaning set forth in Section 4.17.
“Credit Facilities” means one or more debt facilities (including, without limitation,
the ABL Credit Facility) or other financing arrangements (including, without limitation, commercial
paper facilities or indentures), providing for revolving credit loans, term loans or letters of credit or
other Indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements, refundings, replacements, exchanges or
refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement,
modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including,
without limitation, any such amended, supplemented, modified, extended, renewed, restated,
refunding, replacement, exchanged or refinancing financing arrangement that increases the amount
permitted to be borrowed or issued thereunder or alters the maturity thereof or adds the Issuer,
Restricted Subsidiaries or Parent Entities as additional borrowers or guarantors thereunder and
whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or
otherwise.
“Default” means any event, act or condition that, after notice or the passage of time
or both, would be an Event of Default.
“Depository” means, with respect to the Global Notes, The Depository Trust
Company or another Person designated as depository by the Issuer, which Person must be a clearing
agency registered under the Exchange Act.
“Depository Custodian” means the Trustee as custodian with respect to the Global
Notes or any successor entity thereto.
“Deposit Account” means “Deposit Account” as defined in the UCC.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash
Consideration received by Issuer or a Restricted Subsidiary in connection with an Asset Disposition
that is designated as “Designated Non-cash Consideration” pursuant to an Officer’s Certificate,
setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale, redemption or payment of, on or with respect to such Designated
Non-cash Consideration.
“Designated Preferred Stock” means Preferred Stock of the Issuer or Holdings or any
other Parent Entity, as applicable (other than Excluded Equity), that is issued after the Issue Date for
cash and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the
issuance date thereof, the cash proceeds of which are contributed to the capital of the Issuer (if
issued by Holdings or any Parent Entity) and excluded from the Restricted Payments Basket.
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“Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person that, by its terms (or by the terms of any security into which it is convertible or for which it
is redeemable or exchangeable), in each case, at the option of the holder thereof or upon the
happening of any event:
(1)matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise (other than as a result of a change of control or asset sale so long as any rights
of the holders thereof upon the occurrence of a change of control or asset sale event shall be
subject to the prior repayment in full of the Notes and all other Obligations that are accrued
and payable),
(2)is convertible or exchangeable for Indebtedness or Disqualified Stock, or
(3)is redeemable at the option of the holder thereof, in whole or in part,
in each case, prior to 91 days after the Maturity Date of the Notes; provided,
however, that only the portion of Capital Stock that so matures or is mandatorily redeemable, is so
convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date
shall be deemed to be Disqualified Stock; provided, further, however, that if such Capital Stock is
issued to any employee or to any plan for the benefit of employees of the Issuer or its Subsidiaries
or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock
solely because it may be required to be repurchased by the Issuer in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided, further, that any class of Capital Stock of such Person that by its terms authorizes such
Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified
Stock shall not be deemed to be Disqualified Stock.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Indenture; provided, however, that if
such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of
such determination, the redemption, repayment or repurchase price will be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such Person.
“Domestic Guarantor” means a Guarantor that is a Domestic Subsidiary.
“Domestic Subsidiary” means a Restricted Subsidiary that is not a Foreign
Subsidiary.
“DTC” means the Depository Trust Company.
“Dutch Guarantor” means Cooper-Standard Latin America B.V.
“Equity Interests” of any Person means (1) any and all shares or other equity
interests (including common stock, preferred stock, limited liability company interests and
partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or
not currently exercisable), participations or other equivalents of or interests in (however designated)
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such shares or other interests in such Person, but excluding any debt securities that are convertible
into such shares or other interests in such Person.
“Equity Offering” means a public or private sale or issuance of common stock of the
Issuer or any Parent Entity of the Issuer, other than (i) public offerings with respect to common
stock of the Issuer or any of its Parent Entities registered on Form S-4 or Form S-8 or (ii) any sale to
any Restricted Subsidiary of Parent.
“European Restructuring” means the restructuring and/or winding down of the
Issuer’s business in any county or region in Europe, including, but not limited to, (i) the possible
closure, sale, recapitalization, reindustrialization, distribution, transfer, conveyance, surrender and/
or other disposition of one or more industrial plants in such country or region in Europe and (ii)
sale, conveyance, transfer and/or other disposition (or series of sales, conveyances, transfers or
dispositions) of other assets owned by a Foreign Subsidiary (organized, existing or operating in
such country or region in Europe) and/or Equity Interests in such Foreign Subsidiary.
“Event of Default” has the meaning set forth in Section 6.01.
“Excess Proceeds” has the meaning set forth in Section 4.08.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Excluded Assets” means:
(1)any interest in leased real property;
(2)any fee interest in owned real property which is not a Material Real Property;
(3)any property or asset to the extent that the grant of a security interest in such
property or asset is prohibited by applicable law, rule or regulation or requires a consent not
obtained of any governmental authority pursuant to any Contractual Obligation, applicable
law, rule or regulation;
(4)Subject Property;
(5)any assets or property of the Issuer or any Restricted Subsidiary that is
subject to a Lien under clause (5) of Section 4.13(b) (solely as it relates to Indebtedness
Incurred pursuant to Section 4.09(b)(11)) or capital lease permitted under this Indenture to
the extent the documents relating to such Lien or capital lease would not permit such assets
or property to be subject to the Liens created under the First Lien Notes Security
Documents; provided that immediately upon the termination of any such restriction, such
assets or property shall cease to be “Excluded Assets”;
(6)any vehicles and any other assets subject to certificate of title;
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(7)any intellectual property, including any United States intent-to-use trademark
applications, to the extent and for so long as the creation of a security interest therein would
invalidate the Issuer’s or such Guarantor’s right, title or interest therein;
(8)assets (x) to the extent a security interest in such assets would result in costs
or consequences as reasonably determined by the Issuer with respect to the granting or
perfecting of a security interest that is excessive in view of the benefits to be obtained by the
Holders or (y) to the extent a security interest in such assets would result in adverse tax
consequences (including as a result of the operation of Section 956 of the Code or any
similar law or regulation in any applicable jurisdiction) as reasonably determined by the
Issuer (it being understood that none of the Issuer or its Subsidiaries shall be required to
enter into any security agreements or pledge agreements governed under foreign law);
(9)Excluded Capital Stock;
(10)Excluded Deposit Accounts;
(11)Letter-of-credit rights with a value not in excess of $7.5 million (except for
letter-of-credit rights that are perfected by filing UCC financing statements);
(12)Commercial tort claims with a value not in excess of $7.5 million; and
(13)proceeds and products from any and all of the foregoing excluded collateral
described in clauses (1) through (12), unless such proceeds or products would otherwise
constitute Fixed Asset Collateral;
provided, however, that Excluded Assets will not include any proceeds, substitutions or
replacements of any Excluded Assets referred to in clauses (1) through (13) (unless such proceeds,
substitutions or replacements would otherwise constitute Excluded Assets).
“Excluded Capital Stock” shall mean (a) any Capital Stock with respect to which the
Issuer reasonably determines that the costs (including any costs resulting from adverse tax
consequences) of pledging such Capital Stock shall be excessive in view of the benefits to be
obtained by the Holders therefrom and (b) (1) solely in the case of any pledge of Capital Stock of
any Subsidiary that either is a CFC or a FSHCO to secure the Obligations, any Capital Stock that is
Voting Stock of such Subsidiary in excess of 65% of the outstanding voting Capital Stock of such
class, (2) any Capital Stock to the extent the pledge thereof would be prohibited by any applicable
law, rule or regulation, (3) the Capital Stock of any Subsidiary that is not a Wholly Owned
Subsidiary of the Issuer and the Guarantors at the time such Subsidiary becomes a Subsidiary (for
so long as such Subsidiary remains a non-Wholly Owned Subsidiary) to the extent the pledge of
such Capital Stock by the Issuer or Guarantor is prohibited by the terms of such Subsidiary’s
organizational or joint venture documents, (4) the Capital Stock of any Subsidiary of (x) a CFC or
(y) a FSHCO and (5) the Capital Stock of any Unrestricted Subsidiary.
“Excluded Contributions” means cash and Cash Equivalents received by the Issuer
after the Issue Date from;
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(1)contributions to its common equity capital; and
(2)the sale of Qualified Equity Interests of the Issuer;
in each case, designated as Excluded Contributions pursuant to an Officer’s Certificate executed by
an officer of the Issuer, the cash proceeds of which are excluded from the calculation set forth in
Section 4.10(a)(3)(B).
“Excluded Deposit Accounts” means the following Deposit Accounts: (A) Deposit
Accounts of any of the Issuer or any Guarantor exclusively used for payroll, payroll taxes or
employee benefits and (B) cash accounts of any of the Issuer or any Guarantor the average daily
balance in any month which does not exceed more than the U.S. Dollar Equivalent of $100,000 at
any time for any single account, and not more than $500,000 for all accounts in the aggregate at any
time, except in the case of this clause (B) to the extent proceeds of Fixed Asset Collateral are
contained in any such account; provided that notwithstanding anything in the Notes Documents to
the contrary, no perfection steps shall be required to be taken with respect to any Deposit Account
that would otherwise be an Excluded Deposit Account but for the operation of the preceding
exception.
“Excluded Equity” means (i) Disqualified Stock, (ii) any Equity Interests sold to a
Restricted Subsidiary of the Issuer or any employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries (to the extent such employee stock ownership plan or trust has been
funded by the Issuer or any Restricted Subsidiary) and (iii) any Equity Interest that has already been
used or designated as (or the proceeds of which have been used or designated as) Excluded
Contributions or otherwise used to increase the amounts available under Sections 4.10(b)(2) and
4.10(b)(3) or clause (13) of the definition of “Permitted Investment.”
“Excluded Subsidiary” means any Subsidiary that is (a) a Foreign Subsidiary that is a
CFC or any Subsidiary of a CFC, (b) an Unrestricted Subsidiary, (c) not wholly owned directly by
the Issuer or one or more of its wholly owned Restricted Subsidiaries, (d) an Immaterial Subsidiary,
(e) a charitable Subsidiary, (f) any Subsidiary that is prohibited by applicable law, rule or regulation
or by any Contractual Obligation existing on the Issue Date and not entered into in contemplation
hereof from guaranteeing the Obligations under the Notes or which would require governmental
and/or regulatory consent, approval, license or authorization to provide such guarantee, unless such
consent, approval, license or authorization has been received, or with respect to which the guarantee
of the Notes would result in adverse tax consequences to the Issuer and/or any of its Subsidiaries as
reasonably determined by the Issuer, (g) any Receivables Subsidiary, (h) any Subsidiary that is
created solely for the purpose of consummating a transaction pursuant to an acquisition permitted
hereunder, if such new Subsidiary at no time holds any assets or liabilities other than any merger
consideration contributed to it contemporaneously with the closing of such transactions, provided
that such Subsidiary shall only be an Excluded Subsidiary for the period immediately prior to such
acquisition and (i) any Subsidiary that is a FSHCO or any Subsidiary of a FSHCO; provided that,
notwithstanding the foregoing, clauses (a), (f) (as applicable to adverse tax consequences), and (i)
shall not apply to result in the Dutch Guarantor becoming an Excluded Subsidiary.
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“Existing First Lien Notes” means the Issuer’s outstanding 13.50% Cash Pay / PIK
Toggle Senior Secured First Lien Notes due 2027 issued on January 27, 2023.
“Existing Junior Lien Notes” means the Issuer’s outstanding 5.625% Cash Pay /
10.625% PIK Toggle Senior Secured Third Lien Notes due 2027 issued on January 27, 2023.
“Existing Unsecured Notes” means the Issuer’s outstanding 5.625% Senior Notes
due 2026 issued on November 2, 2016.
“Fair Market Value” means the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or necessity of either party,
determined in good faith by the Issuer.
“First Lien Notes Documents” means, collectively, this Indenture, the Intercreditor
Agreement and the security documents related to the foregoing.
“First Lien Notes Security Documents” means the Intercreditor Agreement, each
joinder or amendment to the Intercreditor Agreement, any other intercreditor agreements, the First
Lien Security Agreement, the Mortgages, and all other security agreements, pledge agreements,
collateral assignments, mortgages, deeds of trust, security deeds, deeds to secure debt, hypothecs,
hypothecations, collateral agency agreements, debentures or other instruments or other pledges,
grants or transfers for security or agreements related thereto executed and delivered by the Issuer or
any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral
(including, without limitation, financing statements under the UCC) in favor of the Collateral Agent
on behalf of itself, the Trustee and the holders of the Notes to secure the Notes and the Note
Guarantees, in each case, as amended, modified, renewed, restated, supplemented or replaced, in
whole or in part, from time to time, in accordance with its terms and the First Lien Indenture.
“First Lien Security Agreement” means, collectively, that certain pledge and security
agreement dated as of the Issue Date and executed by the Issuer, the guarantors party thereto and the
Collateral Agent, together with each other security agreement and security agreement supplement
executed and delivered pursuant to the First Lien Security Agreement.
“First Lien Senior Secured Net Leverage Ratio” means, as of the date of
determination, the ratio of (a) the Total Debt of the Issuer and the Restricted Subsidiaries secured by
a Lien ranking pari passu in priority with the Liens on the Fixed Asset Collateral securing the First
Lien Notes (including, for the avoidance of doubt, the First Lien Notes) to (b) Consolidated
EBITDA of the Issuer and the Restricted Subsidiaries for the Four-Quarter Period ending
immediately prior to such date. In the event that the Issuer or any Restricted Subsidiary incurs,
redeems, retires, defeases or extinguishes any Total Debt (other than Indebtedness under a revolving
credit facility unless such Indebtedness has been permanently paid and not replaced) subsequent to
the commencement of the period for which the First Lien Senior Secured Net Leverage Ratio is
being calculated but prior to or simultaneously with the event for which the calculation of the First
Lien Senior Secured Net Leverage Ratio is made, then the First Lien Senior Secured Net Leverage
Ratio shall be calculated giving pro forma effect to such incurrence, redemption, retirement,
defeasance or extinguishment of Total Debt as if the same had occurred at the beginning of the
applicable Four-Quarter Period. Notwithstanding anything to the contrary set forth in the definition
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of “Consolidated EBITDA” (and all component definitions referenced in such definitions),
whenever pro forma effect is to be given to acquisition, disposition or incurrence, redemption,
retirement, defeasance or extinguishment of Total Debt, the pro forma calculations shall be
determined in good faith by a responsible officer of the Issuer.
“Fiscal Year” means the fiscal year of the Issuer, which at the date hereof ends on
December 31.
“Fixed Asset Collateral” means all equipment, real property, intellectual property,
Capital Stock of subsidiaries, in each case, of the Issuer or a Guarantor who is a Domestic
Subsidiary and all other Collateral other than ABL Collateral.
“Fixed Asset Debt” means:
(1)Indebtedness represented by the Notes initially issued by the Issuer under this
Indenture on the Issue Date;
(2)any other Indebtedness of the Issuer or any Guarantor (including Additional
Notes but, for the avoidance of doubt, excluding ABL Debt) that is intended by the Issuer to
be secured equally and ratably with the Fixed Asset Obligations by a Fixed Asset Lien that
is permitted to be incurred and secured by a Fixed Asset Lien under this Indenture; provided
that in the case of any Indebtedness referred to in this clause (2), the Fixed Asset
Representative of such Indebtedness becomes a party to the Intercreditor Agreement in
accordance with the terms thereof; and
(3)guarantees by any Restricted Subsidiary in respect of any of the Obligations
described in the foregoing clauses (1) through (2).
“Fixed Asset Documents” means, collectively, the First Lien Notes Security
Documents and any indenture, credit agreement or other agreement governing any other series of
Fixed Asset Debt.
“Fixed Asset Lien” means a Lien granted to the Fixed Asset Representative for the
benefit of the holders of Fixed Asset Obligations, at any time, upon the Collateral to secure Fixed
Asset Obligations.
“Fixed Asset Obligations” means Fixed Asset Debt and all other Obligations in
respect thereof.
“Fixed Asset Representative” means (1) the Collateral Agent, in the case of the
Notes and (2) in the case of any other series of Fixed Asset Debt, the trustee, agent or representative
of the holders of such series of Fixed Asset Debt who is appointed as a representative of such series
of Fixed Asset Debt (for purposes related to the administration of the applicable security documents
related thereto) pursuant to the indenture, credit agreement or other agreement governing such series
of Fixed Asset Debt.
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“Fixed Asset Security Documents” means the First Lien Notes Security Documents
and any security agreement or other similar agreement securing (or given with the intent to secure)
obligations with respect to any other series of Fixed Asset Debt.
“Foreign Subsidiary” means a Restricted Subsidiary not organized or existing under
the laws of the United States of America, any state thereof or the District of Columbia thereof and
any direct or indirect Restricted Subsidiary of such Restricted Subsidiary.
“Four-Quarter Period” has the meaning set forth in the definition of “Consolidated
Fixed Charge Coverage Ratio.”
“FSHCO” shall mean any Domestic Subsidiary that has no material assets other than
(i) Equity Interests (or Equity Interests and Indebtedness) in one or more Foreign Subsidiaries of the
Issuer that are CFCs or (ii) Equity Interests (or Equity Interests and Indebtedness) in one or more
Domestic Subsidiaries of the Issuer that hold no material assets other than the assets described in
clause (i) of this definition.
“GAAP” means generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, which are in effect from time to time.
If there occurs a change in generally accepted accounting principles occurring after
the Issue Date and such change would cause a change with respect to any term or measure used in
this Indenture (an “Accounting Change”), then the Issuer may elect, as evidenced by a written
notice of the Issuer to the Trustee, that such term or measure shall be calculated as if such
Accounting Change had not occurred.
“Global Note Legend” means the legend substantially in the form set forth in Exhibit
C.
“Global Notes” has the meaning set forth in Section 2.16.
“Guarantee” means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or indirect, in any manner
(including, without limitation, through letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness. “Guarantee” when used as a verb shall have a
corresponding meaning.
“Guarantor” means:
(1)Holdings;
(2)each Subsidiary that executes and delivers a Note Guarantee pursuant to
Section 4.15; and
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(3)each Subsidiary that otherwise executes and delivers a Note Guarantee
(whether required to or opts to become a Guarantor);
in each case, until such time as such Person is released from its Note Guarantee in accordance with
the provisions of this Indenture.
“Hedging Agreement” means, with respect to any Person, any:
(1)currency exchange, interest rate or commodity swap agreements, currency
exchange, interest rate or commodity cap agreements and currency exchange, interest rate or
commodity collar agreements; and
(2)other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices.
“Hedging Obligations” means, with respect to any Person, the Obligations of such
Person under any Hedging Agreement.
“Holder” or “Noteholder” means any registered holder, from time to time, of any
Notes.
“Holdings” means CS Intermediate HoldCo 1 LLC.
“Immaterial Subsidiary” means any Subsidiary of Holdings (other than the Issuer)
that, as of the date of the most recent financial statements required to be delivered pursuant to
Section 4.16, does not have assets (together with the assets of all other Immaterial Subsidiaries) in
excess of 1.5% of Consolidated Total Assets or annual revenues of Holdings and its consolidated
Subsidiaries.
“Incur” means issue, assume, Guarantee, incur, acquire or otherwise become liable
(contingently or otherwise) for; provided, however, that any Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted
Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning. Solely
for purposes of determining compliance with Section 4.09:
(1)amortization of debt discount or the accretion of principal with respect to a
non-interest bearing or other discount security;
(2)the payment of regularly scheduled interest in the form of additional
Indebtedness of the same instrument or the payment of regularly scheduled dividends on
Capital Stock in the form of additional Capital Stock of the same class and with the same
terms; and
(3)the obligation to pay a premium in respect of Indebtedness arising in
connection with the issuance of a notice of redemption or making of a mandatory offer to
purchase such Indebtedness;
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will not be deemed to be the Incurrence of Indebtedness.
“Indebtedness” of any Person at any date means, without duplication:
(1)the principal and premium (if any) of any indebtedness of such Person,
whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes,
debentures or similar instruments or reimbursement obligations in respect of letters of credit
or bankers’ acceptances, (c) representing the deferred and unpaid purchase price of any
property, except (i) any such balance that constitutes a trade payable, accrued expense or
similar obligation to a trade creditor, in each case, Incurred in the ordinary course of
business and (ii) any earn-out obligations until such obligations becomes a liability on the
balance sheet of such Person in accordance with GAAP, (d) in respect of Capitalized Lease
Obligations, (e) representing any Hedging Obligations or (f) under or in respect of Permitted
Receivables Financings, if and to the extent that any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(2)to the extent not otherwise included, any obligation of such Person to be
liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another
Person (other than by endorsement of negotiable instruments for collection in the ordinary
course of business); and
(3)to the extent not otherwise included, Indebtedness of another Person secured
by a Lien on any asset owned by such Person (whether or not such indebtedness is assumed
by such Person); provided, however, that the amount of such Indebtedness will be the lesser
of: (a) the Fair Market Value of such asset at such date of determination, and (b) the amount
of such Indebtedness of such other Person;
provided that Contingent Obligations incurred in the ordinary course of business shall not be
deemed to constitute Indebtedness and, for the avoidance of doubt, liabilities and obligations of the
Issuer and/or Foreign Subsidiaries under Cash Pooling Arrangements shall not be deemed to
constitute Indebtedness so long as they are incurred in the ordinary course of business and
consistent with past practice and the proceeds thereof are not used to finance restructuring activities.
“Indenture” means this Indenture as amended, restated or supplemented from time to
time.
“Intercreditor Agreement” means that certain intercreditor agreement, dated as of
January 27, 2023, by and between the ABL Collateral Agent, the collateral agent for the Existing
First Lien Notes, the collateral agent for the Existing Junior Lien Notes, Holdings, the Issuer and the
other grantors from time to time party thereto, as supplemented by that certain Intercreditor
Agreement Joinder, dated as of the Issue Date, and as may be amended, restated, supplemented or
replaced, in whole or in part, from time to time.
“Interest Payment Date” means the stated maturity of an installment of interest on
the Notes.
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“Investment” means any direct or indirect advance, loan (other than advances to
customers in the ordinary course of business that are recorded as accounts receivable on the balance
sheet of the lender) or other extensions of credit (including by way of Guarantee or similar
arrangement) or capital contribution (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 of Capital Stock, Indebtedness or other similar instruments by a Person in another
Person. Except as otherwise provided for herein, the amount of an Investment shall be its Fair
Market Value at the time the Investment is made and without giving effect to subsequent changes in
value.
For purposes of the definition of “Unrestricted Subsidiary,” the definition of
“Restricted Payment” and Section 4.10:
(1)“Investment” shall include the portion (proportionate to the Issuer’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of
the Issuer 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 Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (A) the Issuer’s “Investment” in such
Subsidiary at the time of such designation less (B) the portion (proportionate to the Issuer’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.
“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, in each case, with stable outlook, or
an equivalent rating by any other Rating Agency.
“Issue Date” means March 4, 2026, the date on which Notes were first issued under
this Indenture.
“Issuer Order” means a written request or order signed on behalf of the Issuer by an
Officer of the Issuer and delivered to the Trustee.
“Junior Indebtedness” means Indebtedness that is either (i) unsecured or (ii) secured
solely by Collateral with a Lien having Junior Lien Priority on the Collateral relative to the Fixed
Asset Obligations. For the avoidance of doubt, ABL Debt shall not constitute Junior Indebtedness.
“Junior Lien Priority” means relative to specified Indebtedness, having a junior Lien
priority on specified Collateral and either subject to the Intercreditor Agreement on a basis that is no
more favorable than the provisions applicable to the holders of ABL Debt (in the case of Fixed
Asset Collateral) or subject to intercreditor agreements providing holders of Indebtedness with
Junior Lien Priority at least the same rights and obligations as the holders of ABL Debt (in the case
of the Fixed Asset Collateral) have pursuant to the Intercreditor Agreement as to the specified
Collateral.
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“Legal Defeasance” has the meaning set forth in Section 9.02.
“Legal Holiday” has the meaning set forth in Section 12.07.
“Lien” means, with respect to any property or assets, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement
(other than any easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement of any kind or nature whatsoever on or with respect
to such property or assets (including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the foregoing); provided that in
no event shall an operating lease, in and of itself, be deemed to constitute a Lien.
“Losses” has the meaning set forth in Section 7.07.
“Make-Whole Premium” means, with respect to a Note at any Make-Whole
Redemption Date, an amount equal to the greater of (i) 1.0% of the principal amount of such Note
and (ii) the excess, if any, of (x) the present value at such Make-Whole Redemption Date of (A) the
redemption price of such Note on March 1, 2028 (such redemption price being set forth in the table
appearing in paragraph 5 of the Notes), plus (B) all required remaining interest payments due on
such Note through March 1, 2028 (excluding accrued and unpaid interest to such Make-Whole
Redemption Date), computed by the Issuer on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) using a discount rate equal to the Applicable Treasury Rate on
such Make-Whole Redemption Date plus 0.50%, over (y) the outstanding principal amount of such
Note. The Trustee shall have no duty to calculate or verify any Make-Whole Premium.
“Make-Whole Redemption” has the meaning set forth in paragraph 5 of the Notes.
“Make-Whole Redemption Date” with respect to a redemption at the Make-Whole
Premium, means the date such redemption is effectuated.
“Market Capitalization” means an amount equal to (i) the total number of issued and
outstanding shares of common Equity Interests of the Issuer (or its Parent Entity) on the date of the
declaration of a Restricted Payment permitted pursuant to Section 4.10(b)(7) multiplied by (ii) the
arithmetic mean of the closing prices per share of such common Equity Interests on the principal
securities exchange on which such common Equity Interests are traded for the 30 consecutive
trading days immediately preceding the date of declaration of such Restricted Payment.
“Material Intellectual Property” means all intellectual property that is material to the
business of the Issuer and its Subsidiaries, taken as a whole.
“Material Real Property” means any parcel of real property owned in fee by the
Issuer or any Domestic Guarantor and for which there is a mortgage on such real property in favor
of the Collateral Agent and any other parcel of real property (other than a parcel with a Fair Market
Value of less than (a) in the case of any such real property located in any state that levies a
mortgage recording or similar tax, $15 million and (b) in any other case, $7.5 million) owned in fee
by the Issuer or any Domestic Guarantor.
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“Material Restricted Subsidiary” means any Restricted Subsidiary of Holdings (other
than the Issuer) that, as of the date of the most recent financial statements required to be delivered
pursuant to Section 4.16, has either: (i) assets in excess of the greater of $50.0 million and 2.5% of
Consolidated Total Assets or (ii) annual revenues in excess of the greater of $50.0 million and 1.8%
of annual revenues of Holdings and its consolidated Subsidiaries.
“Maturity Date” when used with respect to any Note, means the date on which the
principal amount of such Note becomes due and payable as therein or herein provided.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating
agency business.
“Mortgage” means, collectively, the deeds of trust, trust deeds and mortgages, in
each case, as may be amended from time to time, made by the Issuer or any of the Guarantors in
favor or for the benefit of the Collateral Agent on behalf of itself, the Trustee and the Holders (with
such changes as may be customary to account for local law matters) in form and substance
reasonably satisfactory to the Collateral Agent and the Issuer.
“Net Available Cash” from an Asset Disposition means cash proceeds received by
the Issuer or a Restricted Subsidiary therefrom (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 noncash form), in each case, net of:
(1)all legal, accounting, investment banking, title and recording tax expenses,
commissions and other fees (including financial and other advisory fees) and expenses
incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP, and any relocation expenses incurred, relating to or as a
result of such Asset Disposition;
(2)all payments made on any Indebtedness which 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 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, or any costs associated with
unwinding any related Hedging Obligations;
(3)all distributions and other payments required to be made to non-controlling
interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and
(4)appropriate amounts provided by the seller as a reserve, in accordance with
GAAP, against any liabilities associated with the property or other assets disposed in such
Asset Disposition and retained by the Issuer or any Restricted Subsidiary after such Asset
Disposition, including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
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“Net Income” means, with respect to any Person, the net income (loss) attributable to
such Person, determined in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends.
“Non-Guarantor Subsidiary” means any Subsidiary of the Issuer that is not a
Guarantor.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obligations
under this Indenture and the Notes, pursuant to the provisions of this Indenture.
“Notes” means the 9.250% Senior Secured First Lien Notes due 2031 issued by the
Issuer pursuant to this Indenture. The Notes issued on the Issue Date and any Additional Notes
shall be treated as a single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Notes issued on the Issue Date and
any Additional Notes.
“Notes Documents” means, collectively, this Indenture, the Intercreditor Agreement
and the security documents related to the foregoing.
“Obligations” means all obligations of every nature from time to time owed to any
claimholder or any of their Affiliates, whether for principal, interest, fees, expenses, indemnification
or otherwise and all guarantees of any of the foregoing, including all post-petition interest accrued
or accruing (or which would, absent commencement of an insolvency or liquidation proceeding,
accrue) after commencement of an insolvency of liquidation proceeding in accordance with the rate
specified in the relevant instrument evidencing Indebtedness whether or not the claim for such post-
petition interest is allowed as a claim in such insolvency or liquidation proceeding.
“Offer” has the meaning set forth in Section 4.08.
“Offering Memorandum” means the Offering Memorandum of the Issuer, dated
February 20, 2026, relating to the offering of the Notes issued on the Issue Date.
“Officer” means the Chairman of the Board of Directors, the Chief Executive
Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice
President or Vice President, the Treasurer, the Secretary or the Assistant Secretary (or any person
serving the equivalent function of any of the foregoing) of a Person (or of any direct or indirect
parent, general partner, managing member or sole member of such Person) or any individual
designated as an “Officer” for purposes of this Indenture by the Board of Directors of such Person
(or the Board of Directors of any direct or indirect parent, general partner, managing member or
sole member of such Person) and, with respect to the Dutch Guarantor, any managing board
member or attorney authorized to represent the Dutch Guarantor.
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“Officer’s Certificate” means a certificate that meets the requirements set forth in
this Indenture signed on behalf of the Issuer or any Parent Entity by an Officer of the Issuer or such
Parent Entity and delivered to the Trustee or the Collateral Agent, as applicable; provided that, for
the avoidance of doubt, the Trustee and/or the Collateral Agent shall be entitled to rely upon any
such certificate without liability.
“Opinion of Counsel” means a written opinion from legal counsel, who may be an
employee of or counsel to the Issuer or any of its Restricted Subsidiaries or Parent Entities, or other
counsel who is reasonably acceptable to the Trustee (which opinion may be subject to customary
assumptions and exclusions); provided that, for the avoidance of doubt, the Trustee and/or the
Collateral Agent shall be entitled to rely upon any such opinion without liability.
“Parent” means Cooper-Standard Holdings Inc or any successor entity thereto.
“Parent Entity” means any Person that, with respect to another Person, owns 50% or
more of the total voting power of the Voting Stock of such other Person. Unless the context
otherwise requires, any references to Parent Entity refer to a Parent Entity of the Issuer.
“Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Guarantor
that ranks pari passu in right of payment with the Notes or the Note Guarantees, as applicable.
“Participating Financial Instrument” means participating financial instruments,
Equity Interests and/or similar instruments (which may be classified as Indebtedness or Equity
Interests) of a Foreign Subsidiary which may be issued by such Foreign Subsidiary to (i) a third-
party entity that has and continues to provide financial support to fund and/or implement the
European Restructuring and/or (ii) for purposes of providing back-to-back issuances, another
Foreign Subsidiary.
“Paying Agent” has the meaning set forth in Section 2.04.
“Payment Default” has the meaning set forth in Section 6.01.
“Permitted Asset Swap” means the substantially concurrent purchase and sale or
exchange, including as a deposit for future purchases, of Related Business Assets or a combination
of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its
Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be
applied in accordance with Section 4.08.
“Permitted Investment” means an Investment by the Issuer or any Restricted
Subsidiary in:
(1)the Issuer, a Restricted Subsidiary or a Person that will, upon the making of
such Investment, become a Restricted Subsidiary;
(2)another Person if, as a result of such Investment, such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all its assets to, the
Issuer or a Restricted Subsidiary; provided, however, that such Person’s primary business is
a Related Business;
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(3)cash and Cash Equivalents;
(4)receivables owing to, and recorded as accounts receivable on the balance
sheet of, the Issuer or any Restricted Subsidiary if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary trade terms as the
Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;
(5)payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting purposes and that
are made in the ordinary course of business;
(6)loans or advances to employees, directors and officers of the Issuer or any of
its Restricted Subsidiaries, in each case, in the ordinary course of business or to fund such
Person’s purchase of Capital Stock of the Issuer or any direct or indirect parent company
thereof, not in excess of $5.0 million outstanding at any one time in the aggregate;
(7)Investments received in satisfaction of judgments or in settlements of debt or
compromises of obligations incurred in the ordinary course of business;
(8)the licensing or contribution of intellectual property pursuant to joint
marketing arrangements with other Persons;
(9)any Person to the extent such Investment represents the non-cash portion of
the consideration received for (A) an Asset Disposition as permitted pursuant to Section 4.08
or (B) a disposition of assets not constituting an Asset Disposition;
(10)any Person where such Investment was acquired by the Issuer or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts receivable held
by the Issuer 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 or (B) as a result of a foreclosure by the Issuer 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;
(11)any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’ compensation,
performance and other similar deposits made in the ordinary course of business by the Issuer
or any Restricted Subsidiary;
(12)any Person to the extent such Investments consist of Hedging Obligations
otherwise permitted under Section 4.09;
(13)any Person to the extent such Investment exists on the Issue Date, and any
extension, modification or renewal of any such Investments existing on the Issue Date, but
only to the extent not involving additional advances, contributions or other Investments of
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cash or other assets or other increases thereof (other than as a result of the accrual or
accretion of interest or original issue discount or the issuance of pay in kind securities);
(14)Investments the payment for which consists of Capital Stock of the Issuer
(other than Disqualified Stock) or any direct or indirect parent company of the Issuer, as
applicable; provided, however, that such Capital Stock will not increase the amount
available for Restricted Payments under the Restricted Payments Basket;
(15)Investments in a Receivables Subsidiary or an Investment by a Receivables
Subsidiary in any other Person as required by or in connection with Permitted Receivables
Financing;
(16)Investments (including debt obligations and Capital Stock) received in
connection with the bankruptcy or reorganization of suppliers and customers or in settlement
of delinquent obligations of, or other disputes with, customers and suppliers arising in the
ordinary course of business;
(17)additional Investments by the Issuer or any of its Restricted Subsidiaries
(including, but not limited to, joint ventures) having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (17) that are at the time
outstanding, not to exceed the greater of (x) $210.0 million and (y) 100.0% of Consolidated
EBITDA (with the Fair Market Value of each Investment being measured at the time made
and without giving effect to subsequent changes in value);
(18)repurchases of Notes;
(19)Investments in Permitted Joint Ventures of the Issuer or any of its Restricted
Subsidiaries in an aggregate amount, taken together with all other Investments made
pursuant to this clause (19) that are at the time outstanding, not to exceed the greater of (x)
$105.0 million and (y) 50.0% of Consolidated EBITDA at the time of such Investment at
any one time outstanding, provided, that the Investments permitted pursuant to this clause
(19) may be increased by the amount of distributions from Permitted Joint Ventures, without
duplication of dividends or distributions increasing amounts available pursuant to Section
4.10(a)(3);
(20)deposits made, and intercompany current liabilities owed, by the Issuer and/
or one or more Foreign Subsidiaries or joint ventures in the ordinary course of business,
consistent with past practice, in connection with Cash Pooling Arrangements and Cash
Management Obligations of the Issuer and/or such Foreign Subsidiaries; and
(21)any Investment; provided that (x) no Default has occurred and is continuing
or would result from such Investment and (y) on a pro forma basis after giving effect to such
Investment, the Total Net Leverage Ratio would be equal to or less than 3.50:1.00.
Notwithstanding anything to the contrary, neither the Issuer nor any Restricted
Subsidiary may transfer, assign or exclusively license any Material Intellectual Property to Parent or
any Subsidiary that is not the Issuer or a Restricted Subsidiary; provided that this sentence shall not
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restrict a sale or transfer in the form of a non-exclusive license or an exclusive license entered into
for legitimate business purposes (other than in connection with a liability management transaction
or for the incurrence of Indebtedness) that is entered into to effect a bona fide transaction with a
third party that is not an Affiliate of the Issuer.
“Permitted Joint Venture” means, with respect to any specified Person, a joint
venture in any other Person engaged in a Similar Business in respect of which the Issuer or a
Restricted Subsidiary beneficially owns at least 10% of the shares of Equity Interests of such
Person.
“Permitted Receivables Financing” means any transaction or series of transactions
that may be entered into by the Issuer or any Restricted Subsidiary pursuant to which it may sell,
convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to capital
or transfer may include or be supported by the grant of a security interest) accounts receivable or
interests therein and all collateral securing such receivables, all contracts and contract rights,
purchase orders, security interests, financing statements or other documentation in respect of such
receivables, any guarantees, indemnities, warranties or other obligations in respect of such
receivables, any other assets that are customarily transferred or in respect of which security interests
are customarily granted in connection with asset securitization transactions involving receivables
similar to such receivables and any collections or proceeds of any of the foregoing (collectively, the
“Receivables Assets”) (i) to a trust, partnership, corporation or other Person (other than any Parent
Entity or any of its Restricted Subsidiaries, other than a Restricted Subsidiary formed solely for the
purpose of, and that engages only in, Permitted Receivables Financing, a “Receivables Subsidiary”),
which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by
the transferee or any successor transferee of Indebtedness, fractional undivided interests or other
securities that are to receive payments from, or that represent interests in, the cash flow derived
from such receivables and Receivables Assets or interests in such receivables and Receivables
Assets, or (ii) directly to one or more investors or other purchasers (other than any Parent Entity or
any of its Restricted Subsidiaries), it being understood that a Permitted Receivables Financing may
involve (A) one or more sequential transfers or pledges of the same receivables and Receivables
Assets, or interests therein (such as a sale, conveyance or other transfer to an Receivables
Subsidiary followed by a pledge of the transferred receivables and Receivables Assets to secure
Indebtedness incurred by the Receivables Subsidiary), and all such transfers, pledges and
Indebtedness incurrences shall be part of and constitute a single Permitted Receivables Financing,
and (B) periodic transfers or pledges of receivables and/or revolving transactions in which new
receivables and Receivables Assets, or interests therein, are transferred or pledged upon collection
of previously transferred or pledged receivables and Receivables Assets, or interests therein;
provided that any such transactions shall provide for recourse to such Restricted Subsidiary (other
than any Receivables Subsidiary) or the Issuer only in respect of the cash flows in respect of such
receivables and Receivables Assets and to the extent of other customary securitization undertakings
(as determined in good faith by the Board of Directors of the appropriate Receivables Subsidiary) in
the jurisdiction relevant to such transactions; provided that, for the avoidance of doubt, (1) no
portion of the Indebtedness or any other obligations (contingent or otherwise) of any Holdings or
any of its Subsidiaries or Receivables Subsidiary is guaranteed by the Issuer or a Guarantor, is
recourse to or obligates the Issuer or a Guarantor, or subjects any property or asset of the Issuer or a
Guarantor, directly or indirectly (other than with respect to its equity ownership interest in any
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Subsidiary), contingently or otherwise, to the satisfaction of obligations incurred in such
transactions; (2) neither the Issuer or any Guarantor has any obligation to maintain or preserve the
financial condition of a Receivables Subsidiary or cause such entity to achieve certain levels of
operating results and (3) (x) the aggregate “amount” or “principal amount” (as defined below) of all
Permitted Receivables Financings (other than those of one or more Foreign Subsidiaries) shall not
exceed $75.0 million at any time outstanding and (y) the aggregate “amount” or “principal amount”
of all Permitted Receivables Financings of one or more Foreign Subsidiaries shall not exceed
€125.0 million at any time outstanding.
The “amount” or “principal amount” of any Permitted Receivables Financing shall
be deemed at any time to be (1) the aggregate principal or stated amount of the Indebtedness,
fractional undivided interests (which stated amount may be described as a “net investment” or
similar term reflecting the amount invested in such undivided interest) or other securities incurred or
issued pursuant to such Permitted Receivables Financing, in each case outstanding at such time, or
(2) in the case of any Permitted Receivables Financing in respect of which no such Indebtedness,
fractional undivided interests or securities are incurred or issued, the cash purchase price paid by the
buyer in connection with its purchase of receivables less the amount of collections received in
respect of such receivables and paid to such buyer, excluding any amounts applied to purchase fees
or discount or in the nature of interest.
“Permitted Lien” has the meaning set forth in Section 4.13.
“Person” means an individual, partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
“Physical Notes” means certificated Notes in registered form that are not Global
Notes.
“Preferred Stock” means, with respect to any Person, any and all preferred or
preference stock or other Equity Interests (however designated) of such Person having a preference
or priority over other Equity Interests (however designated) of such Person, whether now
outstanding or issued after the Issue Date.
“premium” has the meaning set forth in Section 6.02.
“principal” of a Note means the principal of such Note plus the premium, if any,
payable on such Note which is due or overdue or is to become due at the relevant time.
“Premises” means owned real properties required to be subject to a mortgage lien
that forms a portion of the Collateral (including all after-acquired real property that is not an
Excluded Asset).
“Principal Facility” means the land, land improvements, buildings and fixtures (to
the extent they constitute real property interests) (including any leasehold interest therein),
constituting corporate office, any manufacturing plant or any manufacturing facility and the
machinery and equipment located thereon, which are owned, on the Issue Date or thereafter, by the
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Issuer or a Restricted Subsidiary and which have a net book value at the date as of which the
determination is being made of in excess of one percent of the Consolidated Total Assets (including,
for purposes of such calculation, the land, land improvements, buildings and such fixtures
comprising such office, plant or facilities, as the case may be), other than any such land, land
improvements, buildings and fixtures which, in the opinion of the Board of Directors of the Issuer
(evidenced by a board resolution), is not of material importance to the business conducted by the
Issuer and its Restricted Subsidiaries taken as a whole.
“Private Placement Legend” means the legend substantially in the form set forth in
Exhibit B.
“Pro Forma Cost Savings” means, without duplication of amounts added-back to
calculate Consolidated EBITDA or otherwise being given pro forma effect, with respect to any
period, the reductions in costs and other operating improvements or synergies that have been
realized or are reasonably anticipated to be realized in good faith with respect to a pro forma event
within twelve months of the date of such pro forma event and that are reasonably identifiable and
factually supportable, as if all such reductions in costs and other operating improvements or
synergies had been effected as of the beginning of such period, decreased by any recurring
incremental expenses incurred or to be incurred during such Four-Quarter Period in order to achieve
such reduction in costs; provided, that the aggregate amount of Pro Forma Cost Savings and the
aggregate amount of cost savings, operating expense reductions and synergies added pursuant to
clause (7) of the definition of “Consolidated EBITDA”, when taken together with clauses (4), (5),
(6) and (11) of the definition of “Consolidated EBITDA,” shall not exceed 25.0% of Consolidated
EBITDA for such period (for purposes of clause (7), giving pro forma effect to the relevant
transaction, other than any cost savings, synergies, operating expense reductions or Pro Forma Cost
Savings) determined prior to giving effect to any adjustments pursuant to this definition or clauses
(4), (5), (6), (7) and (11) of the definition of “Consolidated EBITDA”.
“Proceeds” means “Proceeds” as defined in the UCC.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act.
“Qualified Equity Interests” of any Person means Equity Interests of such Person
other than Disqualified Stock. Unless otherwise specified, Qualified Equity Interests refer to
Qualified Equity Interests of the Issuer.
“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 Issuer which shall be substituted for Moody’s or S&P
or both, as the case may be.
“Receivables Assets” has the meaning set forth in the definition of “Permitted
Receivables Financing.”
“Receivables Fees” means distributions or payments made directly or by means of
discounts with respect to any participation interest issued or sold in connection with, and other fees
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paid to a Person that is not a Restricted Subsidiary in connection with, any Permitted Receivables
Financing.
“Receivables Subsidiary” has the meaning set forth in the definition of “Permitted
Receivables Financing.”
“Redemption Date” when used with respect to any Note to be redeemed pursuant to
paragraph 5 of the Notes means the date fixed for such redemption by or pursuant to the terms of
this Indenture and the Notes.
“Redemption Premium” has the meaning set forth in Section 6.02.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew,
refund, repay, prepay, purchase, redeem, defease, replace, discharge or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing”
shall have correlative meanings.
“Refinancing Indebtedness” has the meaning set forth in Section 4.09(b)(6).
“Refinancing Transactions” means (i) the redemption on March 4, 2026 (as such date
may be extended to satisfy the conditions), of all the Issuer’s outstanding Existing First Lien Notes
at a price equal to 102.250% of the principal amount of such Existing First Lien Notes to be
redeemed, plus accrued and unpaid interest to, but not including, the date of the redemption, (ii) the
redemption on March 4, 2026 (as such date may be extended to satisfy the conditions), of all of the
Issuer’s outstanding Existing Junior Lien Notes at a price equal to 101.410% of the principal
amount of such Existing Junior Lien Notes to be redeemed, plus accrued and unpaid interest to, but
not including, the date of the redemption and (iii) the redemption on March 4, 2026 (as such date
may be extended to satisfy the conditions), of all of the Issuer’s outstanding Existing Unsecured
Notes at a price equal to 100.000% of the principal amount of such Existing Unsecured Notes to be
redeemed, plus accrued and unpaid interest to, but not including, the date of the redemption.
“Registrar” has the meaning set forth in Section 2.04.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” has the meaning set forth in Section 2.16.
“Regulation S Legend” means the legend substantially in the form set forth in
Exhibit D.
“Regulation S Notes” has the meaning set forth in Section 2.02.
“Related Business” means any business in which the Issuer or any of the Restricted
Subsidiaries was engaged on the Issue Date and any business related, ancillary or complementary to
such business.
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“Related Business Assets” means assets (other than cash or Cash Equivalents) used
or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted
Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary will not be
deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt
of the securities of such Person, such Person would become a Restricted Subsidiary.
“Required Currency” has the meaning set forth in Section 12.01.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer
in the Corporate Trust Department of the Trustee including any vice president, assistant vice
president or any other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, in each case, having
direct responsibility for the administration of this Indenture, and any other officer to whom any
corporate trust matter is referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Restricted Global Note” means a Global Note bearing the Private Placement
Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Payment” means any of the following:
(1)the declaration or payment of any dividend or the making of any distribution
on account of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including
any dividend, payment or distribution payable in connection with any merger or
consolidation involving the Issuer other than: (A) dividends, payments or distributions by
the Issuer payable solely in Qualified Equity Interests of the Issuer or in options, warrants or
other rights to purchase such Equity Interests or (B) dividends, payments or distributions by
a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution
payable on or in respect of any class or series of securities issued by a Restricted Subsidiary
other than a wholly owned Restricted Subsidiary, the Issuer or a Restricted Subsidiary
receives at least its pro rata share of such dividend, payment or distribution in accordance
with its Equity Interests in such class or series of securities;
(2)the purchase, redemption, defeasance or other acquisition or retirement for
value of any Equity Interests of the Issuer or Holdings or any other Parent Entity, including
in connection with any merger or consolidation, in each case, held by a Person other than the
Issuer or a Restricted Subsidiary;
(3)the making of any voluntary or optional payment on or with respect to, or
purchase, redemption, defeasance or other acquisition or retirement for value any
Indebtedness of the Issuer or any Guarantor that is unsecured, secured by Liens on the ABL
Collateral and the Fixed Asset Collateral that, in each case, are junior to the Liens securing
the Notes or contractually subordinated in right of payment to the Notes or to any Note
Guarantee, except any such payment on Indebtedness permitted under Section 4.09(b)(2)
and any payment of interest when due or principal at the Stated Maturity thereof or the
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purchase, redemption, repurchase, defeasance, acquisition or retirement for value of any
such Indebtedness within 365 days of the Stated Maturity thereof; or
(4)the making of any Restricted Investment.
“Restricted Payments Basket” has the meaning set forth in Section 4.10.
“Restricted Period” has the meaning set forth in Section 2.17.
“Restricted Physical Note” means a Physical Note bearing the Private Placement
Legend.
“Restricted Subsidiary” means any Subsidiary of the Issuer that is not an
Unrestricted Subsidiary.
“Reversion Date” has the meaning set forth in Section 4.17.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 144A Global Note” has the meaning set forth in Section 2.16.
“Rule 144A Notes” has the meaning set forth in Section 2.02.
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating
agency business.
“Sale and Leaseback Transaction” means any sale or transfer made by the Issuer or
one or more Restricted Subsidiaries (except a sale or transfer made to the Issuer or one or more
Restricted Subsidiaries) of any Principal Facility that (in the case of a Principal Facility which is a
building or equipment) has been in operation, use or commercial production (exclusive of test and
start-up periods) by the Issuer or any Restricted Subsidiary for more than 180 days prior to such sale
or transfer, or that (in the case of a Principal Facility that is a parcel of real property not containing a
building) has been owned by the Issuer or any Restricted Subsidiary for more than 180 days prior to
such sale or transfer, if such sale or transfer is made with the intention of leasing, or as part of an
arrangement involving the lease of such Principal Facility to the Issuer or a Restricted Subsidiary
(except a lease for a period not exceeding 36 months made with the intention that the use of the
leased Principal Facility by the Issuer or such Restricted Subsidiary will be discontinued on or
before the expiration of such period); provided, however, that the creation of any Secured Debt
permitted under Section 4.13 shall not be deemed to create or be considered a Sale and Leaseback
Transaction.
“Secured Debt” means outstanding Indebtedness of the Issuer or a Restricted
Subsidiary which is secured by (a) a Lien in any property or asset of the Issuer or any Restricted
Subsidiary, or (b) a Lien in any shares of stock owned directly or indirectly by the Issuer in a
Restricted Subsidiary. The securing in the foregoing manner of any previously unsecured
Indebtedness shall be deemed to be the creation of Secured Debt at the time such security is given.
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The amount of Secured Debt at any time outstanding shall be the aggregate principal amount then
owing thereon by the Issuer and the Restricted Subsidiaries.
“Securities Account” means “Securities Account” as defined in the UCC.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Senior Secured Net Leverage Ratio” means, as of the date of determination, the
ratio of (a) the Total Debt of the Issuer and the Restricted Subsidiaries secured by a Lien to (b)
Consolidated EBITDA of the Issuer and the Restricted Subsidiaries for the Four-Quarter Period
ending immediately prior to such date. In the event that the Issuer or any Restricted Subsidiary
incurs, redeems, retires, defeases or extinguishes any Total Debt (other than Indebtedness under a
revolving credit facility unless such Indebtedness has been permanently paid and not replaced)
subsequent to the commencement of the period for which the Senior Secured Net Leverage Ratio is
being calculated but prior to or simultaneously with the event for which the calculation of the Senior
Secured Net Leverage Ratio is made, then the Senior Secured Net Leverage Ratio shall be
calculated giving pro forma effect to such incurrence, redemption, retirement, defeasance or
extinguishment of Total Debt as if the same had occurred at the beginning of the applicable Four-
Quarter Period. Notwithstanding anything to the contrary set forth in the definition of “Consolidated
EBITDA” (and all component definitions referenced in such definitions), whenever pro forma effect
is to be given to acquisition, disposition or incurrence, redemption, retirement, defeasance or
extinguishment of Total Debt, the pro forma calculations shall be determined in good faith by a
responsible officer of the Issuer.
“Series” means, (a) with respect to the holders of Fixed Asset Debt, each of (1) the
Collateral Agent and the Holders (in their capacities as such), in the case of the Notes and (2) the
holders of any other series of Fixed Asset Debt that become party to a pari passu intercreditor
agreement and the trustee, agent or representative of the holders of such series of Fixed Asset Debt
who is appointed as a representative of such series of Fixed Asset Debt (for purposes related to the
administration of the applicable security documents related thereto) pursuant to the indenture, credit
agreement or other agreement governing such series of Fixed Asset Debt (in their capacities as
such) and (b) with respect to any Fixed Asset Obligations, each of (1) the Obligations in respect of
the Notes and (2) the Obligations in respect of other Fixed Asset Debt which are to be represented
under a pari passu intercreditor agreement by a common collateral agent (in its capacity as such for
such other Fixed Asset Debt).
“Significant Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such Regulation is in effect on the Issue Date.
“Similar Business” means any business conducted or proposed to be conducted by
the Issuer or any of its Restricted Subsidiaries on the Issue Date and any business or other activities
that are reasonably similar, ancillary, complementary or related thereto, or a reasonable extension,
development or expansion thereof.
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“Stated Maturity” means, with respect to any installment of interest or principal on
any series of Indebtedness, the date on which such payment of interest or principal was scheduled to
be paid in the documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
“Subject Property” means any contract, license, lease, agreement, instrument or other
document to the extent that such grant of a security interest therein is (1) prohibited by, or
constitutes a breach or default under, or results in the termination of, or requires any consent not
obtained under, such contract, license, lease, agreement, instrument or other document, or, in the
case of any Equity Interests or other securities, any applicable shareholder or similar agreement or
(2) otherwise constitutes or results in the abandonment, invalidation or unenforceability of any
right, title or interest of the Issuer or any Guarantor under such contract, license, lease, agreement,
instrument or other document, except, in each case, to the extent that applicable law or the term in
such contract, license, lease, agreement, instrument or other document or shareholder or similar
agreement providing for such prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law or purports to prohibit the granting of a security interest over all or
a material portion of assets of the Issuer or any Guarantor; provided, however, that the foregoing
exclusions shall not apply to the extent that any such prohibition, default or other term would be
rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant
jurisdiction or any other applicable law or principles of equity; provided, further, that the security
interest shall attach immediately to any portion of such Subject Property that does not result in any
of the consequences specified above including, without limitation, any proceeds of such Subject
Property.
“Subordinated Indebtedness” means Indebtedness of the Issuer or any Restricted
Subsidiary that is expressly subordinated in right of payment to the Notes or the Note Guarantees by
the Issuer or such Restricted Subsidiary, as the case may be.
“Subordinated Obligation” means, with respect to a Person, any Indebtedness of such
Person (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior
in right of payment to the Notes, or a Subsidiary Guarantee of such Person, as the case may be,
pursuant to a written agreement to that effect.
“Subsidiary” means a corporation, association, partnership, limited liability company
or other entity of which more than 50% of the outstanding Voting Stock is owned, directly or
indirectly, by a Person or by one or more other Subsidiaries of such Person, or by a Person and one
or more other Subsidiaries of such Person. Unless otherwise specified, a Subsidiary refers to a
Subsidiary of the Issuer.
“Subsidiary Guarantee” means a Guarantee by a Subsidiary Guarantor of the Issuer’s
obligations with respect to the Notes and, to the extent permitted under Section 4.09, the related
Additional Notes, if any.
“Subsidiary Guarantor” means, with respect to the Notes, a Guarantor that is a
Restricted Subsidiary of the Issuer.
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“Successor Company” has the meaning set forth in Section 5.01.
“Suspended Covenants” has the meaning set forth in Section 4.17.
“Suspension Date” has the meaning set forth in Section 4.17.
“Suspension Period” has the meaning set forth in Section 4.17.
“Tax Group” has the meaning set forth in Section 4.10.
“Tax Jurisdiction” has the meaning set forth in Section 2.19.
“Taxes” has the meaning set forth in Section 2.19.
“Third Party Claim” has the meaning set forth in Section 7.07.
“Total Debt” means, at any date of determination, the aggregate principal amount of
all outstanding Indebtedness of the Issuer and the Restricted Subsidiaries determined on a
consolidated basis, to the extent required to be recorded on a balance sheet in accordance with
GAAP, consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt
obligations evidenced by promissory notes or similar instruments (other than letters of credit to the
extent undrawn), minus the aggregate amount of unrestricted cash and Cash Equivalents held by the
Issuer and its Restricted Subsidiaries as of the end of the most recent fiscal period; provided that,
without duplication, cash or Cash Equivalents subject to Cash Pooling Arrangements or in bank
accounts of the Issuer and/or Foreign Subsidiaries maintained as part of the Cash Pooling
Arrangements shall be calculated net of liabilities for Obligations of the Issuer and/or Foreign
Subsidiaries participating in such Cash Pooling Arrangements.
“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Total Net Leverage Ratio” means, as of the date of determination, the ratio of (a)
the Total Debt of the Issuer and the Restricted Subsidiaries to (b) Consolidated EBITDA of the
Issuer and the Restricted Subsidiaries for the Four-Quarter Period ending immediately prior to such
date. In the event that the Issuer or any Restricted Subsidiary incurs, redeems, retires, defeases or
extinguishes any Total Debt (other than Indebtedness under a revolving credit facility unless such
Indebtedness has been permanently paid and not replaced) subsequent to the commencement of the
period for which the Total Net Leverage Ratio is being calculated but prior to or simultaneously
with the event for which the calculation of the Total Net Leverage Ratio is made, then the Total Net
Leverage Ratio shall be calculated giving pro forma effect to such incurrence, redemption,
retirement, defeasance or extinguishment of Total Debt as if the same had occurred at the beginning
of the applicable Four-Quarter Period. Notwithstanding anything to the contrary set forth in the
definition of “Consolidated EBITDA” (and all component definitions referenced in such
definitions), whenever pro forma effect is to be given to acquisition, disposition or incurrence,
redemption, retirement, defeasance or extinguishment of Total Debt, the pro forma calculations
shall be determined in good faith by a responsible officer of the Issuer. For the avoidance of doubt,
any Participating Financial Instruments issued pursuant to Section 4.09(b)(16) shall not be included
in Total Debt for purposes of calculating the First Lien Senior Secured Net Leverage Ratio.
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“Transfer” means to sell, assign, transfer, lease (other than pursuant to an operating
lease entered into in the ordinary course of business), convey or otherwise dispose of, including by
any Sale and Leaseback Transaction, consolidation, merger, liquidation, dissolution or otherwise, in
one transaction or a series of transactions.
“Treasury Management Arrangement” means any agreement or other arrangement
governing the provision of treasury or cash management services, including Deposit Accounts,
overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts,
returned check concentration, controlled disbursement, lockbox, account reconciliation and
reporting and trade finance services and other cash management services.
“Trustee” means the party named as such in this Indenture until a successor replaces
it pursuant to this Indenture and thereafter means the successor.
“U.S. Borrowing Base” means, on any date of determination, an amount equal to the
“U.S. Borrowing Base” (as defined in the ABL Credit Facility, as in effect on the date hereof).
“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency
other than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained
by converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall Street
Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.
“U.S. Government Obligations” means marketable direct obligations issued by, or
unconditionally guaranteed as to full and timely payment by, the United States Government or
issued by any agency or instrumentality thereof and backed by the full faith and credit of the United
States of America that, in each case, mature within one year from the date of acquisition thereof and
are not callable or redeemable at the option of the issuer thereof.
“U.S. Person” means a “U.S. person” as defined in Rule 902(k) under the Securities
Act.
“UCC” means the Uniform Commercial Code (or any successor statute) as in effect
from time to time in the relevant jurisdiction.
“Unrestricted Global Note” means a permanent Global Note, substantially in the
form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and
that has the “Schedule of Exchanges of Interests in Global Note” attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depository, representing the Notes
that do not bear the Private Placement Legend.
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“Unrestricted Notes” means Unrestricted Global Notes and Unrestricted Physical
Notes.
“Unrestricted Physical Note” means a Physical Note that does not bear and is not
required to bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(1)any Subsidiary of the Issuer that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors in the manner provided
below;
(2)any Subsidiary of an Unrestricted Subsidiary; and
(3)Liveline Technologies Inc.
The Board of Directors of the Issuer may designate any Subsidiary of the Issuer
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any
Lien on any property of, the Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of
the Subsidiary to be so designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000,
such designation would be permitted under Section 4.10. Any such designation by the Board of
Directors of the Issuer shall be evidenced to the Trustee by promptly filing with the Trustee a copy
of the resolution of the Board of Directors of the Issuer giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the foregoing provisions.
Any designation of a Subsidiary as an Unrestricted Subsidiary will be deemed to be a
designation of each of such entity’s Subsidiaries as Unrestricted Subsidiaries. If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all
outstanding Investments owned by the Issuer and its Restricted Subsidiaries in the Subsidiary
designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time
of the designation and will reduce the amount available for Restricted Payments under Section 4.10
or under one or more of the clauses of the definition of “Permitted Investment,” as determined by
the Issuer. That designation will only be permitted if the Investment would be permitted at that time
and if the Restricted Subsidiary otherwise meets this definition of an “Unrestricted Subsidiary.”
Notwithstanding the foregoing, no Material Restricted Subsidiary may be designated
as an Unrestricted Subsidiary at any time; provided, however, that the Board of Directors of the
Issuer may, in connection with an acquisition or similar transaction that constitutes a Permitted
Investment, designate (i) any newly acquired Person that becomes a Restricted Subsidiary upon
such acquisition or similar transaction or (ii) an existing Restricted Subsidiary that is a special
purpose acquisition entity (and otherwise has no assets or revenues) that such acquired Person is
merged or consolidated with or into, or transfers or conveys all or substantially all its assets to such
Subsidiary in connection with such acquisition or similar transaction as an Unrestricted Subsidiary
subject to compliance with the designation requirements set forth above.
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The Board of Directors of the Issuer may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation
(A) the Issuer could Incur $1.00 of additional Indebtedness under Section 4.09(a) and (B) no
Default or Event of Default shall have occurred and be continuing. Any such designation by the
Board of Directors of the Issuer shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officer’s Certificate certifying that such designation complied with the
foregoing provisions.
“Voting Stock” means any class or classes of Capital Stock pursuant to which the
holders thereof have power to vote in the election of directors, managers or trustees of any 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).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness or
Disqualified Stock, as the case may be, at any date, the quotient obtained by dividing (1) the sum of
the products of the number of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness or redemption or similar payment with respect to
such Disqualified Stock multiplied by the amount of such payment, by (2) the sum of all such
payments.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person all of
the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying
shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02Rules of Construction.
Unless the context otherwise requires:
(1)a term has the meaning assigned to it herein, whether defined expressly or by
reference;
(2)“or” is not exclusive;
(3)words in the singular include the plural, and in the plural include the singular;
(4)words used herein implying any gender shall apply to both genders;
(5)“herein,” “hereof” and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subsection;
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(6)unless otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance with GAAP;
(7)“$” and “U.S. Dollars” each refer to United States dollars, or such other
money of the United States of America that at the time of payment is legal tender for
payment of public and private debts;
(8)“will” shall be interpreted to express a command;
(9)“including” means including without limitation; and
(10)so long as a Parent Entity of the Issuer does not hold any material assets other
than, directly or indirectly, the Equity Interests of the Issuer (as determined in good faith by
the Board of Directors or senior management of such Parent Entity), any calculations or
measure that is determined with reference to the Issuer’s financial statements including,
without limitation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net
Income, Senior Secured Net Leverage Ratio, Total Net Leverage Ratio, Consolidated Fixed
Charge Coverage Ratio, Consolidated Fixed Charges, Permitted Receivables Financing,
Consolidated Total Assets and the Restricted Payments Basket may be determined with
reference to such Parent Entity’s financial statements instead.
ARTICLE II.
THE SECURITIES
Section 2.01Amount of Notes.
The Trustee shall initially authenticate $1,100,000,000 aggregate principal amount of
Notes for original issue on the Issue Date upon an Issuer Order, together with an Officer’s
Certificate; provided that an Opinion of Counsel shall not be required in connection with such
issuance, authentication and delivery of the Notes on the Issue Date. Subject to Sections 4.09, 4.13
and 8.02(c), the Trustee shall authenticate additional Notes (“Additional Notes”) thereafter for
original issue upon an Issuer Order (an “Authentication Order”) in aggregate principal amount as
specified in such Authentication Order. The Trustee shall also authenticate (i) replacement Notes as
provided in Section 2.08, (ii) temporary Notes as provided in Section 2.11, (iii) Notes issued in
connection with certain transfers and exchanges as provided in Sections 2.07, 2.16 and 2.17, (iv)
[reserved], (v) Notes issued in connection with a partial redemption of the Notes as provided in
Section 3.06 or a partial repurchase of a Note as provided in Sections 4.07 and 4.08 and (vi) Notes
exchanged as provided in Section 8.05, in each case, upon an Authentication Order in aggregate
principal amount as specified in such order. Each such written order shall specify the principal
amount of Notes to be authenticated and the date on which the Notes are to be authenticated. Unless
the context requires otherwise, references to “Notes” for all purposes of this Indenture include any
Additional Notes that are actually issued.
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Section 2.02Form and Dating; Legends.
The Notes and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibit A, each of which is incorporated in and forms a part of
this Indenture. Each Note shall be dated the date of its authentication.
The Notes may have notations, legends or endorsements required by law, rule or
usage to which the Issuer is subject. Without limiting the generality of the foregoing, Notes offered
and sold to Qualified Institutional Buyers in reliance on Rule 144A (“Rule 144A Notes”), Notes
offered and sold to Non-U.S. Persons in offshore transactions in reliance on Regulation S
(“Regulation S Notes”) and all other Restricted Global Notes shall bear the Private Placement
Legend. All Global Notes shall bear the Global Note Legend. Regulation S Notes shall bear the
Regulation S Legend. Notes issued with original issue discount shall bear the Original Issue
Discount Legend.
The terms and provisions contained in the Notes shall constitute, and are expressly
made, a part of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and agree to be bound thereby. If there is a conflict between the terms of the Notes and
this Indenture, the terms of this Indenture shall govern.
The Notes may be presented for registration of transfer and exchange at the offices of
the Registrar.
Section 2.03Execution and Authentication.
The Notes shall be executed on behalf of the Issuer by one Officer of the Issuer. The
signature of such Officer on the Notes may be manual, facsimile or electronic (including “.pdf”).
If an Officer whose signature is on a Note was an Officer at the time of such
execution but no longer holds that office at the time the Trustee authenticates the Note, the Note
shall be valid nevertheless.
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 executed by the Trustee by manual, facsimile or electronic (including
“.pdf”) signature, and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and
sold by the Issuer, and the Issuer shall deliver such Note to the Trustee for cancellation as provided
in Section 2.12, for all purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint one or more authenticating agents reasonably acceptable to
the Issuer to authenticate the Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate the Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such agent.
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An authenticating agent has the same rights as an Agent to deal with the Issuer and Affiliates of the
Issuer. Each Paying Agent is designated as an authenticating agent for purposes of this Indenture.
Notes shall be initially issuable only in registered form without coupons in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 2.04Registrar and Paying Agent.
The Issuer shall maintain (a) an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”), (b) an office or agency in the Borough of
Manhattan, The City of New York, the State of New York or in the city in the United States in
which the Trustee’s Corporate Trust Office is located, where Notes may be presented for payment
(the “Paying Agent”) and (c) an office or agency where notices and demands to or upon the Issuer,
if any, in respect of the Notes and this Indenture may be served. The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Registrar shall provide a copy of such register
from time to time upon request of the Issuer. The Issuer may appoint one or more co-registrars and
one or more additional Paying Agents. The term “Registrar” includes any co-registrars. The term
“Paying Agents” means the Paying Agent and any additional Paying Agents. The Issuer may
change any Paying Agent or Registrar without notice. The Issuer or any Restricted Subsidiaries may
act as Registrar or a Paying Agent.
The Issuer shall enter into an appropriate agency agreement with any Agent that is
not a party to this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuer shall notify the Trustee of the name and address of any such Agent.
If the Issuer fails to maintain a Registrar or any required co-registrar or Paying Agent, or fails to
give the foregoing notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.07.
The Issuer initially appoints the Trustee as Registrar, Paying Agent and Depository
Custodian.
The Issuer initially appoints The Depository Trust Company to act as Depository
with respect to the Global Notes. The Issuer may change the Depository at any time without notice
to any Holder, but the Issuer will notify the Trustee of the name and address of any new Depository.
The Issuer shall be responsible for making calculations called for under the Notes,
including but not limited to determination of redemption price, premium, if any, and any Additional
Amounts or other amounts payable on the Notes. The Issuer will make the calculations in good
faith and, absent manifest error, its calculations will be final and binding on the Holders. The Issuer
will provide a schedule of its calculations to the Trustee when reasonably requested by the Trustee,
and the Trustee is entitled to rely conclusively on the accuracy of the Issuer’s calculations without
independent verification. The Trustee shall forward the Issuer’s calculations referred to above in
this paragraph to any Holder upon the written request of such Holder.
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Section 2.05Paying Agent To Hold Money in Trust.
The Paying Agent shall hold in trust for the benefit of the Noteholders or the Trustee
all money held by the Paying Agent for the payment of principal of or premium or interest on the
Notes (whether such money has been paid to it by the Issuer, one or more of the Guarantors or any
other obligor on the Notes), and the Issuer and the Paying Agent shall notify the Trustee of any
default by the Issuer (or any other obligor on the Notes) in making any such payment. Money held
in trust by a Paying Agent need not be segregated except as required by law and in no event shall a
Paying Agent be liable for any interest on any money received by it hereunder. The Issuer at any
time may require a Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any Event of Default
specified in Section 6.01(1) or (2), upon written request to a Paying Agent, require such Paying
Agent to pay forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, such Paying Agent shall have no further liability for the
money delivered to the Trustee.
Section 2.06Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of the Noteholders. If the Trustee is not the
Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest
Payment Date, and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of the
Noteholders.
Section 2.07Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar with a
request from the Holder of such Notes to register a transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar shall register the
transfer as requested. Every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Registrar, duly executed by the Holder thereof or his attorneys duly authorized in
writing. To permit registrations of transfers and exchanges, the Issuer shall issue and execute and,
upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee shall
authenticate new Notes (and the Guarantors shall execute the Guarantees thereon) evidencing such
transfer or exchange at the Registrar’s request. No service charge shall be made to the Noteholder
for any registration of transfer or exchange. The Issuer or the Trustee may require from the
Noteholder payment of a sum sufficient to cover any transfer taxes or other governmental charge
that may be imposed in relation to a transfer or exchange, but this provision shall not apply to any
transfer or exchange pursuant to Section 2.11, 3.06, 4.07, 4.08 or 8.05 (in which events the Issuer
shall be responsible for the payment of such taxes or other charge). The Registrar shall not be
required to exchange or register a transfer of any Note for a period of 15 days immediately
preceding the mailing of notice of redemption of Notes to be redeemed or of any Note selected,
called or being called for redemption except the unredeemed portion of any Note being redeemed in
part.
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Any Holder of a Global Note shall, by acceptance of such Global Note, agree that
transfers of the beneficial interests in such Global Note may be effected only through a book entry
system maintained by the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Global Note shall be required to be reflected in a book entry. By its
acceptance of any Note bearing the Private Placement Legend, each Holder of such Note
acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.
Section 2.08Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee, or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute the Guarantees thereon) if the
Holder of such Note furnishes to the Issuer and the Trustee evidence reasonably acceptable to them
of the ownership and the destruction, loss or theft of such Note and if the requirements of Section
8-405 of the New York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Issuer, an indemnity bond shall be posted, sufficient in the
judgment of all to protect the Issuer, the Guarantors, the Trustee, the Registrar and any Paying
Agent from any loss that any of them may suffer if such Note is replaced. The Issuer may charge
such Holder for the Issuer’s reasonable out-of-pocket expenses in replacing such Note and the
Trustee may charge the Issuer for the Trustee’s reasonable out-of-pocket expenses (including,
without limitation, attorneys’ fees and disbursements) in replacing such Note and may require the
payment of a sum sufficient to cover any tax, assessment, fee or other charge that may be imposed
in relation thereto and any other expenses (including the reasonable out-of-pocket fees and expenses
of the Trustee) connected therewith. Every replacement Note shall constitute a contractual
obligation of the Issuer. The provisions of this Section 2.08 are exclusive and will preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or payment of lost,
destroyed, mutilated or wrongfully taken Notes.
Section 2.09Outstanding Notes.
The Notes outstanding at any time are all Notes that have been authenticated by the
Trustee except for (a) those canceled by or on behalf of the Trustee, (b) those accepted by the
Trustee for cancellation, (c) those reductions in the interest in a Global Note effected by the Trustee
in accordance with the provisions hereof, (d) to the extent set forth in Sections 9.01, 9.02 and 9.03,
on or after the date on which the conditions set forth in Section 9.01, 9.02 or 9.03 have been
satisfied, those Notes theretofore authenticated by the Trustee hereunder and (e) those described in
this Section 2.09 as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee receives proof satisfactory to the Trustee and the Issuer that the replaced Note is held by a
bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Issuer.
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If a Paying Agent holds, in its capacity as such, on any Maturity Date, Redemption
Date or purchase date, U.S. Dollars sufficient to pay all accrued and unpaid interest and principal
with respect to the Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes shall
cease to be outstanding and interest on them shall cease to accrue.
Section 2.10Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have
concurred in any declaration of acceleration or notice of default or direction, waiver or consent or
any amendment, modification or other change to this Indenture, Notes owned by the Issuer or any
other Affiliate of the Issuer shall be disregarded as though they were not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent or any amendment, modification or other change to this Indenture, only Notes as
to which a Responsible Officer of the Trustee has actually received an Officer’s Certificate stating
that such Notes are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee established 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 Issuer, a Guarantor,
any other obligor on the Notes or any of their respective Affiliates.
Section 2.11Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Issuer may prepare
and, upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and, upon receipt of an Authentication Order in
accordance with Section 2.01, the Trustee shall authenticate definitive Notes in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to the same rights,
benefits and privileges as definitive Notes.
Section 2.12Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such
canceled Notes in its customary manner. The Issuer may not reissue or resell or issue new Notes to
replace Notes that the Issuer has redeemed or paid, or that have been delivered to the Trustee for
cancellation.
Section 2.13Defaulted Interest.
If the Issuer defaults on a payment of interest on the Notes, the Issuer shall pay the
defaulted interest then borne by the Notes plus (to the extent permitted by law) any interest payable
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on the defaulted interest, in accordance with the terms hereof, to the Persons who are Holders
thereof on a subsequent special record date, which date shall be at least five Business Days prior to
the payment date. If such default continues for thirty (30) days, the Issuer shall fix such special
record date and payment date in a manner satisfactory to the Trustee. At least 10 days before such
special record date, the Issuer (or upon the written request of the Issuer, the Trustee, in the name
and at the expense of the Issuer) shall mail to each affected Noteholder a notice that states the
special record date, the payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Issuer may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of any securities
exchange on which the Notes may be listed and, upon such notice as may be required by such
exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by the Trustee. If
the Issuer elects for the Trustee to send such notice to the Holders then the Issuer shall provide such
notice to the Trustee at least five (5) days (or such shorter time as may be agreed by the Trustee in
its discretion) before such notice is required to be mailed to the Holders.
Notwithstanding the foregoing, any interest which is paid prior to the expiration of
the 30-day period set forth in Section 6.01(1) shall be paid to Holders as of the record date for the
Interest Payment Date for which interest has not been paid.
Section 2.14CUSIP and ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” and “ISIN” numbers, and if so
used, such CUSIP and ISIN numbers shall be included in notices as a convenience to Holders;
provided that the Trustee shall have no liability for any defect in the CUSIP numbers as they appear
on any Notes, notice or elsewhere and that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP or ISIN numbers printed in the notice or on the
Notes, that reliance may be placed only on the other identification numbers printed on the Notes,
and any such notice shall not be affected by any defect in or omission of such CUSIP or ISIN
numbers. The Issuer shall promptly notify the Trustee, in writing, of any such CUSIP or ISIN
number used by the Issuer in connection with the issuance of the Notes and of any change in any
such CUSIP or ISIN number. In the case of any Additional Notes that are not fungible with the
Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP
number and ISIN number from the Notes.
Section 2.15Deposit of Moneys.
Prior to noon, New York City time, on each Interest Payment Date and Maturity
Date, the Issuer shall have deposited with the Paying Agent in immediately available funds U.S.
Dollars sufficient to make cash payments, if any, due on such Interest Payment Date or Maturity
Date, as the case may be, in a timely manner which permits such Paying Agents to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as the case may be, as
the sole registered owner and the sole Holder of the Global Notes represented thereby. The
principal and interest on Physical Notes shall be payable, either in person, by wire transfer or by
mail, at the office of the Paying Agent. Final payment of principal on the Maturity Date will only
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be made by the Trustee upon surrender of the related Note to the Trustee at its Corporate Trust
Office.
Section 2.16Book-Entry Provisions for Global Notes.
(a)Rule 144A Notes initially shall be represented by one or more Notes in registered,
global form without interest coupons (collectively, the “Rule 144A Global Note”). Regulation S
Notes initially shall be represented by one or more Notes in registered, global form without interest
coupons (collectively, the “Regulation S Global Note”). The term “Global Notes” means the Rule
144A Global Note and the Regulation S Global Note. The Global Notes shall bear the Global Note
Legend. The Global Notes initially shall (i) be registered in the name of the Depository or the
nominee of such Depository, in each case, for credit to an account of an Agent Member, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear the Private Placement
Legend.
Members of, or direct or indirect participants in, the Depository (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Note held on their behalf by the
Depository or under the Global Notes. The Depository may be treated by the Issuer, the Trustee
and any agent of the Issuer or the Trustee as the absolute owner of the Global Notes for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or
any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the rights of a Holder of
any Note. None of the Issuer, the Trustee, the Paying Agent nor the Registrar shall have any
responsibility or liability for any acts or omissions of the Depository with respect to such Global
Note, for the records of the Depository, including records in respect of the beneficial owners of any
such Global Note, for any transactions between the Depository and any Agent Member or between
or among the Depository, any such Agent Member and/or any Holder or beneficial owner of such
Global Note, or for any transfers of beneficial interests in any such Global Note.
(b)Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the
Depository, its successors or their respective nominees. Interests of beneficial owners in the Global
Notes may be transferred or exchanged for Physical Notes only in accordance with the applicable
rules and procedures of the Depository and the provisions of Section 2.17. In addition, a Global
Note shall be exchangeable for Physical Notes (i) if requested by a holder of such interests upon
receipt by the Trustee of written instructions from the Depository or its nominee on behalf of any
beneficial owner and in accordance with the rules and procedures of the Depository and provisions
of this Section 2.16 or (ii) if the Depository notifies the Issuer that it is unwilling or unable to
continue as depository for such Global Note and the Issuer thereupon fail to appoint a successor
depository within 120 days or (iii) if the Depository has ceased to be a clearing agency registered
under the Exchange Act or (iv) if there shall have occurred and be continuing an Event of Default
with respect to such Global Note and the Depository has requested such exchange. In all cases,
Physical Notes delivered in exchange for any Global Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations, requested by or on behalf of the
Depository in accordance with its customary procedures.
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(c)In connection with the transfer of a Global Note as an entirety to beneficial owners
pursuant to subsection (b) of this Section 2.16, such Global Note shall be deemed to be surrendered
to the Trustee for cancellation, and the Issuer shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.01, the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial interest in such Global
Note, an equal aggregate principal amount of Physical Notes of authorized denominations.
(d)Any Restricted Physical Note delivered in exchange for an interest in a Global Note
pursuant to Section 2.17 shall, except as otherwise provided in Section 2.17, bear the Private
Placement Legend.
(e)The Holder of any Global Note may 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.
Section 2.17Transfer and Exchange of Notes.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred as a
whole except as set forth in Section 2.16(b). Global Notes will not be exchanged by the Issuer for
Physical Notes except under the circumstances described in Section in Section 2.16(b). Global
Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.11. Beneficial interests in a Global Note may be transferred and exchanged as provided in Section
2.17(b) or 2.17(f).
(b)Transfer and Exchange of Beneficial Interests in Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depository, in
accordance with the provisions of this Indenture and the applicable rules and procedures of the
Depository. Beneficial interests in Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the Securities Act. Beneficial
interests in Global Notes shall be transferred or exchanged only for beneficial interests in Global
Notes. Transfers and exchanges of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests
in any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that prior
to the 40th day after the later of the commencement of the offering of the Notes represented
by a Regulation S Global Note and the issue date of such Notes (such period through and
including such 40th day, the “Restricted Period”), transfers of beneficial interests in a
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person. A beneficial interest in an Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.17(b)(i).
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(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes.
In connection with all transfers and exchanges of beneficial interests in any Global Note that
is not subject to Section 2.17(b)(i), the transferor of such beneficial interest must deliver to
the Registrar (1) a written order from an Agent Member given to the Depository in
accordance with the applicable rules and procedures of the Depository directing the
Depository to credit or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the applicable rules and procedures of the Depository containing
information regarding the Agent Member account to be credited with such increase. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.17(f).
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in a Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.17(b)(ii) above and the Registrar
receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest
in a Rule 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit E, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest
in a Regulation S Global Note, then the transferor must deliver a certificate in the
form of Exhibit E, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in a Restricted
Global Note may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.17(b)(ii) above and the Registrar receives the following:
(A)if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of Exhibit F,
including the certifications in item (1)(a) thereof; or
(B)if the holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit F, including the certifications in
item (4) thereof,
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and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act. If any such transfer
or exchange is effected pursuant to this subparagraph (iv) at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.01, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred or exchanged pursuant to this
subparagraph (iv).
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note
for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted
Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests in Global Notes for Physical Notes. A
beneficial interest in a Global Note may not be exchanged for a Physical Note except under the
circumstances described in Section 2.16(b). A beneficial interest in a Global Note may not be
transferred to a Person who takes delivery thereof in the form of a Physical Note except under the
circumstances described in Section 2.16(b).
(d)Transfer and Exchange of Physical Notes for Beneficial Interests in Global Notes.
Transfers and exchanges of beneficial interests in the Global Notes also shall require compliance
with either subparagraph (i), (ii) or (ii) below, as applicable:
(i)Restricted Physical Notes to Beneficial Interests in Restricted Global Notes.
If any Holder of a Restricted Physical Note proposes to exchange such Restricted Physical
Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted
Physical Note to a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Physical Note proposes to exchange
such Restricted Physical Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit F, including the certifications in
item (2)(a) thereof;
(B)if such Restricted Physical Note is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit E, including the certifications in item (1)
thereof;
(C)if such Restricted Physical Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit E, including the
certifications in item (2) thereof;
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(D)if such Restricted Physical Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit
E, including the certifications in item (3)(a) thereof;
(E)[Reserved]; or
(F)if such Restricted Physical Note is being transferred to the Issuer or a
Subsidiary thereof, a certificate to the effect set forth in Exhibit E, including the
certifications in item (3)(b) thereof;
the Trustee shall cancel the Restricted Physical Note, and increase or cause to be increased
the aggregate principal amount of the appropriate Restricted Global Note.
(ii)Restricted Physical Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of a Restricted Physical Note may exchange such Restricted Physical Note
for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Physical
Note to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if the Registrar receives the following:
(A)if the Holder of such Restricted Physical Note proposes to exchange
such Restricted Physical Note for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit F, including the
certifications in item (1)(b) thereof; or
(B)if the Holder of such Restricted Physical Notes proposes to transfer
such Restricted Physical Note to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit E, including the certifications in item (4) thereof,
and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act. Upon satisfaction
of the conditions of this subparagraph (ii), the Trustee shall cancel the Restricted Physical
Notes and increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note. If any such transfer or exchange is effected pursuant to this
subparagraph (ii) at a time when an Unrestricted Global Note has not yet been issued, the
Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section
2.01, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of Restricted Physical Notes
transferred or exchanged pursuant to this subparagraph (ii).
(iii)Unrestricted Physical Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Physical Note may exchange such Unrestricted Physical
Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted
Physical Note to a Person who takes delivery thereof in the form of a beneficial interest in
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an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Physical Note and increase or
cause to be increased the aggregate principal amount of one of the Unrestricted Global
Notes. If any such transfer or exchange is effected pursuant to this subparagraph (iii) at a
time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal
to the aggregate principal amount of Unrestricted Physical Notes transferred or exchanged
pursuant to this subparagraph (iii).
(iv)Unrestricted Physical Notes to Beneficial Interests in Restricted Global
Notes. An Unrestricted Physical Note cannot be exchanged for, or transferred to a Person
who takes delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(e)Transfer and Exchange of Physical Notes for Physical Notes. Upon request by a
Holder of Physical Notes and such Holder’s compliance with the provisions of this Section 2.17(e),
the Registrar shall register the transfer or exchange of Physical Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Physical
Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition,
the requesting Holder shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.17(e).
(i)Restricted Physical Notes to Restricted Physical Notes. A Restricted
Physical Note may be transferred to and registered in the name of a Person who takes
delivery thereof in the form of a Restricted Physical Note if the Registrar receives the
following:
(A)if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form of Exhibit E,
including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904 under
the Securities Act, then the transferor must deliver a certificate in the form of Exhibit
E, including the certifications in item (2) thereof;
(C)if the transfer will be made pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit E, including the
certifications in item (3)(a) thereof;
(D)[Reserved]; and
(E)if such transfer will be made to the Issuer or a Subsidiary thereof, a
certificate to the effect set forth in Exhibit E, including the certifications in item
(3)(b) thereof.
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(ii)Restricted Physical Notes to Unrestricted Physical Notes. Any Restricted
Physical Note may be exchanged by the Holder thereof for an Unrestricted Physical Note or
transferred to a Person who takes delivery thereof in the form of an Unrestricted Physical
Note if the Registrar receives the following:
(1)if the Holder of such Restricted Physical Note proposes to exchange
such Restricted Physical Note for an Unrestricted Physical Note, a certificate from
such Holder in the form of Exhibit F, including the certifications in item (1)(c)
thereof; or
(2)if the Holder of such Restricted Physical Note proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of an Unrestricted
Physical Note, a certificate from such Holder in the form of Exhibit E, including the
certifications in item (4) thereof,
and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Issuer to
the effect that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Physical Notes to Unrestricted Physical Notes. A Holder of an
Unrestricted Physical Note may transfer such Unrestricted Physical Notes to a Person who
takes delivery thereof in the form of an Unrestricted Physical Note at any time. Upon
receipt of a request to register such a transfer, the Registrar shall register the Unrestricted
Physical Notes pursuant to the instructions from the Holder thereof.
(iv)Unrestricted Physical Notes to Restricted Physical Notes. An Unrestricted
Physical Note cannot be exchanged for, or transferred to a Person who takes delivery thereof
in the form of, a Restricted Physical Note.
(f)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Physical Notes or a particular Global
Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance with Section 2.12. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Physical Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depository at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the form
of a beneficial interest in another Global Note, such other Global Note shall be increased
accordingly and an endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(g)Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes
that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or
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replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Issuer and the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officer’s Certificate from the
Issuer to such effect.
(h)General. All Global Notes and Physical Notes issued upon any registration of
transfer or exchange of Global Notes or Physical Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes
or Physical Notes surrendered upon such registration of transfer or exchange.
The Registrar shall retain for a period of two years copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section 2.17. The Issuer
shall have the right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to the Registrar.
None of the Issuer, the Trustee, Paying Agent nor any Agent of the Issuer shall have
any responsibility or liability in any respect of the records relating to or payment made on account
of beneficial interests in a Global Note, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Neither the Trustee nor the Registrar shall have any 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 Agent Members or beneficial owners of interests 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, this Indenture,
and to examine the same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.18Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year, comprising
twelve 30-day months and, in the case of an incomplete month, the number of actual days elapsed.
Section 2.19Additional Amounts.
All payments made by or on behalf of the Dutch Guarantor under or with respect to
its Note Guarantee will be made free and clear of and without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental charges of whatever
nature imposed or levied (including any penalties and interest related thereto) (“Taxes”) unless the
withholding or deduction of such Taxes is then required by law or by the official interpretation or
administration thereof. If, with respect to the Dutch Guarantor, any withholding or deduction for, or
on account of, any Taxes imposed or levied by or on behalf of (i) any jurisdiction (other than the
United States) in which the Dutch Guarantor is then incorporated, organized, engaged in business or
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resident for tax purposes, or any political subdivision or governmental authority thereof or therein
having power to tax or (ii) any jurisdiction (other than the United States) from or through which
payment is made by or on behalf of the Dutch Guarantor (each, a “Tax Jurisdiction”), will at any
time be required to be made from any payments made by or on behalf of the Dutch Guarantor with
respect to its Note Guarantee, including, without limitation, payments of principal, redemption
price, purchase price, interest or premium, the Dutch Guarantor will pay such additional amounts
(the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of
such payments by each Holder (including payments of Additional Amounts) after such withholding
or deduction will equal the respective amounts that would have been received in respect of such
payments in the absence of such withholding or deduction; provided, however, that no Additional
Amounts will be payable with respect to:
(1)any Taxes that would not have been imposed but for the Holder or beneficial
owner of the Notes being a citizen, resident or national of, incorporated in or carrying on a
business in the relevant Tax Jurisdiction in which such Taxes are imposed, or having any
other present or former connection with the relevant Tax Jurisdiction in which such Taxes
are imposed other than by the mere acquisition or holding of any Note or the enforcement or
receipt of payment under or in respect of any Note or any Note Guarantee;
(2)any Taxes imposed or withheld as a result of the failure of the Holder or
beneficial owner of the Notes to comply with any written request, made to the Holder or
beneficial owner in writing at least 90 days before any such withholding or deduction would
be made, by the Issuer or the Dutch Guarantor to provide timely or accurate information
concerning the nationality, residence or identity of such Holder or beneficial owner or to
make any valid or timely declaration or similar claim or satisfy any certification information
or other reporting requirements (to the extent such Holder or beneficial owner is legally
eligible to do so), which is required or imposed by a statute, treaty, regulation or
administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from
all or part of such Taxes;
(3)any Taxes that are imposed or withheld as a result of the presentation of any
Note for payment (where Notes are in the form of definitive notes and presentation is
required) more than 30 days after the relevant payment is first made available for payment to
the Holder (except to the extent that the Holder would have been entitled to Additional
Amounts had the Note been presented on the last day of such 30 day period);
(4)any estate, inheritance, gift, sales, use, transfer, personal property or similar
Taxes;
(5)any Taxes which are payable otherwise than by deduction or withholding
from payments made under or with respect to the Note Guarantee of the Dutch Guarantor;
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(6)any Taxes that were imposed with respect to any payment under or with
respect to the Note Guarantee of the Dutch Guarantor to any Holder of a Note who is a
fiduciary or partnership or Person other than the sole beneficial owner of such payment to
the extent that a beneficiary or settlor with respect to such fiduciary or a partner of such
partnership or a beneficial owner would be required to include such payment in its income
under the laws of the relevant Tax Jurisdiction and would not have been entitled to receive
payment of the Additional Amounts had the beneficiary, settlor, partner or beneficial owner
been the Holder of such Note;
(7)any Taxes that are imposed or withheld pursuant to Sections 1471 through
1474 of the Code, as of the Issue Date (or any amended or successor version of such sections
that is substantively comparable and not materially more onerous to comply with), any
regulations promulgated thereunder, any official interpretations thereof, any
intergovernmental agreement between a non-U.S. jurisdiction and the United States with
respect to the foregoing or any law or regulation adopted pursuant to any such
intergovernmental agreement, or any agreements entered into pursuant to Section 1471(b)(1)
of the Code;
(8)any Taxes imposed or withheld pursuant to the Dutch Withholding Tax Act
2021 (Wet bronbelasting 2021); or
(9)any combination of items (1) through (8) above.
In addition to the foregoing, the Dutch Guarantor will pay and indemnify the Holders for
any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other
excise, property or similar taxes levied by any Tax Jurisdiction on or in connection with the
execution, delivery, registration or enforcement of the Note Guarantee provided by the Dutch
Guarantor or with respect to any payment to a Holder of Notes thereunder (limited, solely in the
case of taxes attributable to the receipt of any payments with respect thereto, to any such taxes that
are not excluded under clauses (1) through (4) and (6) through (8) or any combination thereof).
If the Issuer or the Dutch Guarantor becomes aware that the Dutch Guarantor will be
obligated to pay Additional Amounts with respect to any payment under or with respect to its Note
Guarantee, the Issuer or the Dutch Guarantor, as the case may be, will deliver to the Trustee on a
date at least 30 days prior to the date of payment (unless the obligation to pay Additional Amounts
arises after the 30th day prior to that payment date, in which case the Issuer or the Dutch Guarantor
shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional
Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must
also set forth any other information reasonably necessary to enable the Paying Agent to pay
Additional Amounts on the relevant payment date. The Trustee shall be entitled to rely solely on
such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer or the
Dutch Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee
evidencing the payment of Additional Amounts.
The Dutch Guarantor will make all deductions and withholding of Taxes required by law
and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with
applicable law. The Dutch Guarantor will use its reasonable efforts to obtain Tax receipts from
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each relevant Tax authority evidencing the payment of any Taxes so deducted or withheld. Upon
written request, the Dutch Guarantor will furnish to the Holders, within 60 days after the date the
payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing
payment by the Dutch Guarantor, or if, notwithstanding the Dutch Guarantor’s efforts to obtain
receipts, receipts are not obtained, other evidence of payments by the Dutch Guarantor.
Whenever this Indenture mentions the payment of amounts based on the principal amount,
interest or any other amount payable under, or with respect to, the Note Guarantee of the Dutch
Guarantor, such mention shall be deemed to include the payment of Additional Amounts to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The above obligations will survive any termination, defeasance or discharge of this
Indenture, any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis
mutandis, to any jurisdiction in which any successor Person to the Dutch Guarantor is then
incorporated, organized, engaged in business or resident for tax purposes, or any political
subdivision or governmental authority thereof or therein having power to tax or any jurisdiction
from or through which payment is made by or on behalf of the Dutch Guarantor.
ARTICLE III.
REDEMPTION
Section 3.01Election To Redeem; Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to paragraph 5 of the Notes, at least 2
Business Days (or such shorter time period as the Trustee may agree) before notice of redemption is
required to be sent or caused to be sent to Holders pursuant to Section 3.03 but not more than 65
days before the Redemption Date (except as set forth in the last paragraph of Section 3.03), the
Issuer shall furnish to the Trustee an Officer’s Certificate setting forth (a) the paragraph or
subparagraph of such Note pursuant to which the redemption shall occur, (b) the principal amount
of Notes to be redeemed, (c) the Redemption Date and (d) the redemption price(s) (or manner of
calculation if not then known); provided that no Opinion of Counsel pursuant to Section 12.04 or
otherwise shall be required in connection with the delivery of such notice of redemption or
redemption.
Section 3.02Selection by Trustee of Notes To Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased at any time, selection of
such Notes for redemption or purchase will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the Notes to be
redeemed or purchased are listed or, if the Notes are not so listed, on a pro rata basis (or, in the case
of Global Notes, the Notes will be selected for redemption or purchase based on the Depository’s
applicable procedures). Such Notes to be redeemed or purchased shall be selected, unless otherwise
provided herein, not less than 10 nor more than 60 days prior to the Redemption Date or the
purchase date from the outstanding Notes not previously called for redemption or purchase.
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The Trustee shall promptly notify the Issuer in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the
principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be
in amounts of $2,000 or whole multiples of $1,000 in excess thereof; provided that no Notes with a
principal amount of $1,000 or less shall be redeemed or purchased in part, except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such
series held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. For all
purposes of this Indenture unless the context otherwise requires and except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or purchase.
If any Note is to be redeemed or purchased in part only, the notice of redemption or
offer to purchase that relates to such Note shall state the portion of the principal amount thereof to
be redeemed or purchased. With respect to Physical Notes, a new Physical Note in principal amount
equal to the unredeemed or unpurchased portion of the original Physical Note will be issued in the
name of the Holder thereof upon cancellation of the original Note; provided that any new Notes will
be only issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. On
and after the Redemption Date or purchase date, interest will cease to accrue on such Notes or
portions thereof called for redemption or purchase. Redemption or purchase price shall only be paid
upon presentation and surrender of any such Notes to be redeemed or purchased.
Section 3.03Notice of Redemption.
At least 10 days but, except as set forth in the last paragraph of this Section 3.03, no
more than 60 days, before a Redemption Date or purchase date, the Issuer shall send, or cause to be
sent, a notice of redemption electronically or by first-class mail to each Holder to be redeemed at his
or her last address as the same appears on the registry books maintained by the Registrar pursuant to
Section 2.06 or otherwise in accordance with the procedures of the Depository, except that
redemption notices may be delivered or mailed more than 60 days prior to a Redemption Date if the
notice is issued in connection with Article IX. Notices of redemption may be conditional.
The notice shall identify the Notes to be redeemed (including the CUSIP and/or ISIN
numbers thereof) and shall state:
(1)the Redemption Date;
(2)the redemption price and the amount of premium (or manner of calculation if
not then known), if any, and accrued and unpaid interest to be paid;
(3)if any Note is being redeemed or purchased in part, the portion of the
principal amount of such Note to be redeemed or purchased and that, with
respect to Physical Notes, after the Redemption Date and upon surrender of
such Note, a new Note or Notes in principal amount equal to the unredeemed
or unpurchased portion of the original Note representing the same
indebtedness to the extent not redeemed or repurchased will be issued in the
name of the Holder of such Notes upon cancellation of the original Note;
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provided that the new Notes will initially be only issued in denominations of
$2,000 and any integral multiple of $1,000 in excess thereof;
(4)the name and address of the Paying Agent;
(5)that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(6)that unless the Issuer defaults in making the redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption
Date;
(7)that paragraph or subparagraph of the Notes pursuant to which the Notes
called for redemption are being redeemed;
(8)the aggregate principal amount of Notes that are being redeemed;
(9)any condition to such redemption; and
(10)that no representation is made as to the correctness or accuracy of the CUSIP
or ISIN numbers printed in the notice or on the Notes.
A notice of redemption need not set forth the exact redemption price but only the
manner of calculation thereof.
At the Issuer’s written request made at least 2 Business Days prior to the date on
which notice is to be given (unless a shorter notice shall be agreed to by the Trustee), together with
the notice of redemption to be given, the Trustee shall give the notice of redemption in the Issuer’s
name and at the Issuer’s sole expense.
Notice of any redemption of, or any offer to purchase, the Notes may, at the Issuer’s
discretion, be given subject to one or more conditions precedent. In addition, if such redemption or
purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe
each such condition, and if applicable, shall state that, in the Issuer’s discretion, the Redemption
Date or the purchase date may be delayed until such time (including more than 60 days after the
date the notice of redemption or offer to purchase was mailed or delivered, including by electronic
transmission) as any or all such conditions shall be satisfied, or such redemption or purchase 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 the purchase date or by the Redemption Date or the
purchase date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s
discretion if the Issuer reasonably believes that any or all of such conditions will not be satisfied. In
addition, the Issuer may provide in such notice that payment of the redemption or purchase price
and performance of the Issuer’s obligations with respect to such redemption or offer to purchase
may be performed by another Person.
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Section 3.04Effect of Notice of Redemption or Purchase.
Once a notice of redemption described in Section 3.03 is sent (including
electronically) and subject to the proviso to this sentence, Notes called for redemption or purchase
become due and payable on the Redemption Date or purchase date, as applicable, and at the
redemption price or purchase price, as applicable, including any premium, plus interest accrued and
unpaid to, but excluding, the Redemption Date or purchase date; provided, however, that any
redemption or purchase and notice or offer thereof pursuant to this Indenture may, in the Issuer’s
discretion, be subject to the satisfaction of one or more conditions precedent described in such
notice and in which case if and/or to the extent such condition(s) precedent is/are not satisfied the
Issuer shall have no obligation to redeem or purchase Notes on such Redemption Date or purchase
date. The notice, if sent in a manner herein provided (including electronically), shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In any case, failure to
give such notice or any defect in the notice to the Holder of any Note designated for redemption or
purchase in whole or in part shall not affect the validity of the proceedings for the redemption or
purchase of any other Note or portions thereof. Upon surrender to the Paying Agent, such Notes
shall be paid at the redemption price or the purchase price, as the case may be, including any
premium, plus interest accrued and unpaid to, but excluding, the Redemption Date or purchase date
and such Notes shall be cancelled by the Trustee; provided that if the Redemption Date or purchase
date is after a regular record date and on or prior to the relevant Interest Payment Date, the accrued
and unpaid interest shall be payable to the Holder registered on the relevant record date; and
provided, further, that if a Redemption Date or purchase date is a Legal Holiday, payment shall be
made on the next succeeding Business Day and no interest shall accrue for the period from such
Redemption Date or purchase date to such succeeding Business Day. Subject to Section 3.05, on
and after the Redemption Date or purchase date, as the case may be, interest shall cease to accrue on
Notes or portions thereof called for redemption or purchase.
Section 3.05Deposit of Redemption or Purchase Price.
On or prior to 1:00 p.m., New York City time (or such later time as the Trustee may
agree), on each Redemption Date or purchase date, the Issuer shall deposit with the Paying Agent
U.S. Dollars sufficient to pay the redemption price or purchase price of, including premium, if any,
and accrued and unpaid interest, if any, on any and all Notes to be redeemed or purchased on that
date (other than Notes or portions thereof called for redemption or purchase on that date which have
been delivered by the Issuer to the Trustee for cancellation). The Trustee or the Paying Agent shall
promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the
Issuer in excess of the amounts necessary to pay the redemption price or purchase price of,
including premium, if any, and accrued and unpaid interest, if any, on any and all Notes to be
redeemed or purchased.
On and after any Redemption Date or purchase date, as the case may be, if money
sufficient to pay the redemption price or purchase price of, including premium, if any, and accrued
and unpaid interest, if any, on all Notes called for redemption or purchase shall have been made
available in accordance with the immediately preceding paragraph, the Notes called for redemption
or purchase will cease to accrue interest and the only right of the Holders of such Notes will be to
receive payment of the redemption price or purchase price of and, subject to the right of Holders of
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record on the relevant record date to receive interest due on the relevant Interest Payment Date
falling on or after the Redemption Date or purchase date, as the case may be, accrued and unpaid
interest on such Notes to the Redemption Date or purchase date. If any Note surrendered for
redemption or purchase shall not be so paid, interest will be paid, from the Redemption Date or
purchase date, as the case may be, until such redemption or purchase payment is made, on the
unpaid principal of the Note and (to the extent permitted by applicable law) any interest not paid on
such unpaid principal, in each case, at the rate and in the manner provided in the Notes.
Section 3.06Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall
execute and, upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee
shall authenticate for the Holder thereof a new Note equal in principal amount to the unredeemed or
unpurchased portion of the Note surrendered representing the same indebtedness to the extent not
redeemed or purchased; provided each new Note will initially be only issued in denominations of
$2,000 and any integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding
anything in this Indenture to the contrary, only an Officer’s Certificate and not an Opinion of
Counsel is required for the Trustee to authenticate such new Note.
Section 3.07Mandatory Redemption; Open Market Purchases.
Subject to Sections 4.07 and 4.08, the Issuer shall not be required to make any
mandatory redemption or sinking fund payments with respect to the Notes. The Issuer and its
Affiliates may acquire Notes at any time and from time to time by means other than a redemption,
whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance
with applicable securities laws, so long as such acquisition does not otherwise violate the terms of
this Indenture.
ARTICLE IV.
COVENANTS
Section 4.01Payment of Notes.
The Issuer shall pay the principal of and interest on the Notes on the dates and in the
manner provided in the Notes and this Indenture; provided that all payments of principal and
interest with respect to the Notes represented by one or more Global Notes registered in the name of
or held by the Depository or its nominee will be made in accordance with the Depository’s
applicable procedures. An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or the Paying Agents hold by noon, New York City time, on that date U.S.
Dollars designated for and sufficient to pay such installment. If an Interest Payment Date is a Legal
Holiday at a place of payment, payment may be made at that place on the next succeeding Business
Day and no interest on such payment will accrue in respect of the delay.
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The Issuer shall pay interest on overdue principal (including post-petition interest in
a proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful, at the rate
specified in the Notes.
Section 4.02Maintenance of Office or Agency.
(a)The Issuer shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee or
Registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served.
The designated office of the Trustee shall be such office or agency of the Issuer in the City of New
York, unless the Issuer shall designate and maintain some other office or agency for one or more
purposes. The Issuer shall give prompt written notice to the Trustee of any change in the location of
such office or agency. If at any time the Issuer shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices
and demands; provided, however, that the Trustee shall not be deemed an agent of the Issuer for
service of legal process.
(b)The Issuer may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York. The Issuer shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.
(c)The Issuer hereby designates the Corporate Trust Office of the Trustee, or its
Agent, in the Borough of Manhattan, The City of New York, as such office or agency of the Issuer
in accordance with Section 2.04.
Section 4.03Legal Existence.
Except as permitted by Article V, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its legal existence, and the corporate,
partnership or other existence of each Wholly Owned Subsidiary that is a Domestic Subsidiary and
the Dutch Guarantor, in accordance with the respective organizational documents (as the same may
be amended from time to time) of the Issuer and each such Subsidiary and (ii) the material rights
(charter and statutory) and franchises of the Issuer and such Subsidiaries; provided that the Issuer
shall not be required to preserve any such right, franchise, or the corporate, partnership or other
existence of any of its Subsidiaries if the Board of Directors of the Issuer or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the
Issuer and its Subsidiaries, taken as a whole. For the avoidance of doubt, the Issuer and its
Subsidiaries shall be permitted to change their organizational form.
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Section 4.04Waiver of Stay, Extension or Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that it may lawfully do
so) that they shall not at any time insist upon, or plead (as a defense or otherwise) or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law
which would prohibit or forgive the Issuer and the Guarantors from paying all or any portion of the
principal of, premium, if any, and/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 they may lawfully do so) the Issuer and the
Guarantors hereby expressly waive all benefit or advantage of any such law, and covenants that they
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.
Section 4.05Compliance Certificate.
(a)The Issuer shall deliver to the Trustee, within 120 days after the end of each
Fiscal Year, an Officer’s Certificate stating that such Officer has conducted or supervised a review
of the activities of the Issuer and its Subsidiaries and the Issuer’s and its Subsidiaries’ performance
under this Indenture during such Fiscal Year, and further stating, as to such Officer signing such
certificate, that, to the best of such Officer’s knowledge, based upon such review, the Issuer has
fulfilled all obligations under this Indenture or, if there has been a Default under this Indenture that
is continuing, a description of such Default of which such Officer has knowledge and what action
the Issuer and its Subsidiaries are taking or propose to take with respect thereto.
(b)The Issuer shall deliver to the Trustee, within 30 Business Days after an
executive officer of the Issuer becomes aware of any Default or Event of Default, a statement
specifying such Default or Event of Default.
Section 4.06Taxes.
The Issuer shall, and shall cause each of its Subsidiaries to, pay prior to delinquency
all material Taxes which, if unpaid, might by law become a lien upon the property of the Issuer or
any of its Subsidiaries; provided, however, that, neither the Issuer nor any of its Subsidiaries shall
be required to pay or discharge or cause to be paid or discharged any such Taxes whose amount,
applicability or validity is being contested in good faith by appropriate proceedings and for which
adequate reserves with respect thereto are maintained in accordance with GAAP or where failure to
effect such payment is not adverse in any material respect to the Holders.
Section 4.07Repurchase at the Option of Holders upon Change of Control.
(a)Upon the occurrence of a Change of Control, each Holder shall have the right
to require the Issuer to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000
in excess thereof) of such Holder’s Notes pursuant to the offer described below (the “Change of
Control Offer”) at an offer price in cash (the “Change of Control Payment”) equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, thereon to but
excluding the purchase date, subject to the right of Holders of record on the relevant record date to
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receive interest due on the relevant Interest Payment Date falling on or prior to the Change of
Control Payment Date.
(b)Within 30 days following any Change of Control or, at the Issuer’s option,
prior to the consummation of such Change of Control, the Issuer will mail (or to the extent
permitted or required by applicable Depository procedures or regulations with respect to global
Notes, send electronically) a notice to each Holder and the Trustee. The notice shall describe the
transaction or transactions that constitute the Change of Control and offer to repurchase Notes on
the purchase date specified in such notice (which must be no earlier than 20 Business Days and
(unless delivered in advance of the occurrence of such Change of Control) not later than 60 days
from the date such notice is sent, other than as required by law) (the “Change of Control Payment
Date”) pursuant to the procedures required by this Indenture and described in such notice. Such
notice shall state:
(1)that the Change of Control Offer is being made pursuant to this Section 4.07
and that all Notes validly tendered and not validly withdrawn pursuant to such Change of
Control Offer will be accepted for payment;
(2)the Change of Control Payment and the Change of Control Payment Date
(which shall be no earlier than 20 Business Days and (unless delivered in advance of the
occurrence of such Change of Control) not later than 60 days from the date such notice is
sent, other than as may be required by law); provided that the Change of Control Payment
Date may be delayed, in the Issuer’s discretion, until such time (including more than 60 days
after the date such notice is sent) as any or all such conditions referred to in clause (8) below
shall be satisfied;
(3)that any Note not properly tendered will remain outstanding and continue to
accrue interest;
(4)that, unless the Issuer defaults in the payment of the Change of Control
Payment, any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest on the Change of Control Payment Date;
(5)that Holders electing to have a Note purchased pursuant to the Change of
Control Offer will be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent and
Registrar for the Note at the address specified in the notice prior to the close of business on
the third (3rd) Business Day prior to the Change of Control Payment Date;
(6)that Holders will be entitled to withdraw their tendered Notes and their
election to require the Issuer to purchase such Notes if the Paying Agent receives, not later
than the expiration time of the Change of Control Offer, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of the Notes
the Holder tendered for purchase and a statement that such Holder is withdrawing its
tendered Notes and its election to have such Note purchased;
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(7)that if the Issuer is redeeming less than all of the Notes, Holders whose Notes
are purchased only in part will be issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered; provided, however, each new Note issued
shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof;
(8)if such notice is sent 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
or such other conditions specified therein and shall describe each such condition, and, if
applicable, shall state that, in the Issuer’s discretion, the Change of Control Payment Date
may be delayed until such time as any or all such conditions shall be satisfied, or that such
purchase 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 Change of Control Payment Date, or by the
Change of Control Payment Date as so delayed; and
(9)the other instructions, as determined by the Issuer, consistent with this
Section 4.07 that a Holder must follow.
(c)On the Change of Control Payment Date, the Issuer shall, to the extent
permitted by law:
(1)accept for payment all Notes or portions thereof (in minimum amounts of
$2,000 or an integral multiple of $1,000 in excess thereof) properly tendered pursuant to the
Change of Control Offer;
(2)deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered; and
(3)deliver or cause to be delivered to the Trustee for cancellation all Notes so
accepted together with an Officer’s Certificate stating the aggregate principal amount of
Notes (or portions thereof) being purchased by the Issuer.
The Paying Agent will promptly remit to each Holder so tendered the Change of
Control Payment for such Notes, and the Issuer shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.01, the Trustee shall promptly authenticate and deliver (or cause
to be transferred by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in
a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuer shall
publicly announce the results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(d)If Holders of not less than 90% in aggregate principal amount of the then
outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and
the Issuer, or any other Person making a Change of Control Offer in lieu of the Issuer as described
below, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or
such other Person will have the right, upon not less than 10 nor more than 30 days’ prior notice,
given not more than 30 days following such purchase pursuant to the Change of Control Offer
described above, to redeem all Notes that remain outstanding following such purchase at a
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redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not
included in the Change of Control Payment, accrued and unpaid interest to but excluding the date of
redemption.
(e)Upon the payment of the Change of Control Payment, the Trustee shall,
subject to the provisions of Section 2.16, return the Notes purchased to the Issuer for cancellation.
The Trustee may act as the Paying Agent for purposes of any Change of Control Offer.
(f)The Issuer will not be required to make a Change of Control Offer upon a
Change of Control if (1) a third party approved in writing by the Issuer makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.07 with respect to a Change of Control Offer made by the Issuer and
purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (2)
notice of redemption has been given or will be given pursuant to this Indenture as described in
paragraph 5 of the Notes or as set forth in Section 9.01 prior to the date the Issuer is required to send
notice of the Change of Control Offer to the Holders, unless and until there is a default in payment
of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a
Change of Control Offer may be made in advance of a Change of Control, conditioned upon the
consummation of such Change of Control, or such other conditions specified therein, if a definitive
agreement is in place for the Change of Control at the time the Change of Control Offer is made and
such Change of Control Offer is otherwise made in compliance with the provisions of this Section
4.07. The Issuer’s obligation to make a Change of Control Offer shall not continue after a discharge
of the Issuer, satisfaction and discharge of this Indenture or defeasance from the Issuer’s obligations
with respect to the Notes.
(g)The Issuer shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a result of a Change of
Control. To the extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.07, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this Section 4.07 by
virtue thereof.
(h)Other than as specifically provided in this Section 4.07, any purchase
pursuant to this Section 4.07 shall be made pursuant to the provisions of Sections 3.02, 3.05 and
3.06.
(i)The provisions of this Section 4.07 relating to the Issuer’s obligation to make
a Change of Control Offer with respect to the Notes upon a Change of Control may be waived or
modified with the written consent of the Holders of a majority in principal amount of the Notes.
Section 4.08Limitation on Asset Disposition.
(a)The Issuer shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, consummate any Asset Disposition unless:
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(1)the Issuer or such Restricted Subsidiary receives consideration at least equal
to the Fair Market Value (such Fair Market Value to be determined in good faith by the
Issuer on the date of contractually agreeing to such Asset Disposition) of the equity and
assets subject to such Asset Disposition;
(2)except in the case of a Permitted Asset Swap, at least 50% of the
consideration for such Asset Disposition received by the Issuer or such Restricted Subsidiary
is in the form of cash or Cash Equivalents, Additional Assets or any combination thereof
(collectively, the “Cash Consideration”); and
(3)within 365 days from the later of the date of such Asset Disposition or the
receipt of the Net Available Cash from such Asset Disposition, an amount equal to 100% of
the Net Available Cash from such Asset Disposition is applied by the Issuer, at its option (or
such Restricted Subsidiary, as the case may be):
(A)(i) to the extent the property that is subject to such Asset Disposition
(x) constitutes ABL Collateral, to repay or prepay ABL Debt or (y) does not
constitute Collateral, to repay any Indebtedness of a Non-Guarantor Subsidiary
(other than Indebtedness owed to Holdings, the Issuer or another Restricted
Subsidiary of the Issuer) or (ii) repay Notes;
(B)to the extent the Issuer elects (or is required by the terms of any
applicable Indebtedness), to prepay, repay, redeem or purchase any Fixed Asset
Debt of the Issuer or any Guarantor, and, if the assets or property disposed of in the
Asset Disposition were not Collateral, Pari Passu Indebtedness of the Issuer or any
Guarantor (other than Indebtedness referred to in clause (A) above or owed to the
Issuer or another Restricted Subsidiary); provided such prepayment, repayment,
redemption or purchase permanently retires, or reduces the related loan commitment
(if any) (other than commitments in respect of any asset-based Credit Facility to the
extent the assets sold or otherwise disposed of in connection with such Asset
Disposition constituted “borrowing base assets” thereunder) for, such Fixed Asset
Debt in an amount equal to the principal amount so prepaid, repaid, redeemed or
purchased; provided, further, that the Issuer or such Restricted Subsidiary will
either (i) reduce the aggregate principal amount of the Notes on an equal or ratable
basis with any Fixed Asset Debt or Pari Passu Indebtedness repaid pursuant to this
clause (B) by, at its option, (x) redeeming Notes as provided under paragraph 5 of
the Notes and/or (y) purchasing Notes through open-market purchases or in
privately negotiated transactions and/or (ii) make an offer (in accordance with the
provisions set forth below for an Offer) to all Holders to purchase the Notes on an
equal or ratable basis with any Fixed Asset Debt or Pari Passu Indebtedness repaid
pursuant to this clause (B) (which offer shall be deemed to be an Offer for purposes
hereof);
(C)to the extent the Issuer elects to invest in the business of the Issuer
and its Restricted Subsidiaries, including acquiring Additional Assets or making any
other capital expenditures, and engaging in restructuring or reorganization activities
and initiatives with respect to the Issuer and its Restricted Subsidiaries’ business
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(provided such amount for restructuring or reorganizing activities and initiatives
shall not exceed, in the aggregate, $100.0 million); provided that (x) if such
investment is in the form of the acquisition of Capital Stock of a Person, such
acquisition is the acquisition of Capital Stock of a Restricted Subsidiary or such
acquisition results in such Person becoming a Restricted Subsidiary and (y) to the
extent the investment, assets or property are of the type that would constitute
Collateral, such investment, assets or property are added as Collateral pursuant to
the terms of this Indenture; provided further that this requirement shall be deemed
satisfied if the Issuer by the end of such 365-day period has entered into a binding
agreement under which it is contractually committed to acquire Additional Assets,
make any other capital expenditures or investments and such acquisition, capital
expenditure or investment is consummated within the later of the end of such 365-
day period and within 365 days from the date on which such binding agreement is
entered into; or
(D)any combination of the foregoing.
(b)For the purposes of this Section 4.08, the following are deemed to be Cash
Consideration:
(1)the greater of the principal amount and the carrying value of any liabilities (as
shown on the Issuer’s or any Restricted Subsidiary’s most recent balance sheet or in the
footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance
sheet, such liabilities that would have been reflected on the balance sheet of the Issuer or
such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase
had taken place on or prior to the date of such balance sheet, as determined in good faith by
the Issuer) (other than contingent liabilities) that are assumed by the transferee of any such
assets (or are otherwise extinguished in connection with the transactions relating to such
Asset Disposition) pursuant to a written agreement which releases or indemnifies the Issuer
or such Restricted Subsidiary from such liabilities;
(2)any securities, notes or other obligations or assets received by the Issuer or
any Restricted Subsidiary from such transferee that are converted by the Issuer or such
Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be
satisfied for cash or Cash Equivalents, in each case, within 365 days after such Asset
Disposition, to the extent of the cash and Cash Equivalents received in that conversion; and
(3)any Designated Non-cash Consideration received by the Issuer 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
clause that has at that time not been converted into cash or Cash Equivalents, not to exceed
10.0% of Consolidated Total Assets at the time of contractually agreeing to such Asset
Disposition (with the Fair Market Value of each item of Designated Non-cash Consideration
being measured at the time of contractually agreeing to the related Asset Disposition and
without giving effect to subsequent changes in value).
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(c)The amount of Net Available Cash not applied or invested as provided above
will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0
million, the Issuer shall make an offer to purchase Notes (an “Offer”), and, if required or permitted
by the terms of such Indebtedness, other Fixed Asset Debt and/or other Pari Passu Indebtedness
within sixty (60) Business Days thereof, and shall purchase the aggregate principal amount (or
accreted value, as applicable) of Notes tendered pursuant to an Offer, Fixed Asset Debt and/or other
Pari Passu Indebtedness that requires the purchase, prepayment or redemption of such Indebtedness
that is, in the case of the Notes only, equal to $1,000 or an integral multiple thereof, that may be
purchased out of the Excess Proceeds at a purchase price, in the case of the Notes only, of 100% of
their principal amount without premium, plus accrued but unpaid interest to but excluding, the
purchase date (or, in respect of such Fixed Asset Debt or other Pari Passu Indebtedness, such lesser
price, if any, as may be provided for by the terms of such Fixed Asset Debt or Pari Passu
Indebtedness) in accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture and the terms of such other Fixed Asset Debt or Pari
Passu Indebtedness. The Issuer may satisfy the foregoing obligation with respect to such Excess
Proceeds from an Asset Disposition by making an Offer in advance of being required to do so by
this Indenture (an “Advance Offer”) with respect to all or part of the available Excess Proceeds (the
“Advance Portion”).
(d)If any Excess Proceeds remain after consummation of an Offer and the
contemporaneous offer with respect to any other Fixed Asset Debt or Pari Passu Indebtedness
contemplated above, the Issuer may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of
Notes, Fixed Asset Debt and/or Pari Passu Indebtedness tendered pursuant to an Offer exceeds the
amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Issuer
shall allocate the Excess Proceeds between the Notes, such Fixed Asset Debt and/or such Pari Passu
Indebtedness on a pro rata basis of amount tendered but with such adjustments as necessary so that
no Notes, Fixed Asset Debt or Pari Passu Indebtedness, as the case may be, will be repurchased in
an unauthorized denomination and will select the Notes to be purchased on a pro rata basis of
amount tendered but in denominations of $1,000 principal amount or integral multiples thereof. The
remainder of the Excess Proceeds allocable to the other Fixed Asset Debt or Pari Passu
Indebtedness will be repurchased as provided pursuant to the terms of such Indebtedness. Upon
completion of such an Offer to purchase, Excess Proceeds will be deemed to be reset to zero
(regardless of whether there are any remaining Excess Proceeds upon such completion) and in the
case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of
Excess Proceeds.
(e)Pending application of an amount equal to the Net Available Cash pursuant to
this Section 4.08, such Net Available Cash may be applied to temporarily reduce revolving credit
Indebtedness (including under the ABL Credit Facility) or in any manner not prohibited by this
Indenture.
(f)Notwithstanding anything to the contrary, neither the Issuer nor any
Restricted Subsidiary may transfer, assign or exclusively license any Material Intellectual Property
to Parent or any Subsidiary that is not the Issuer or a Restricted Subsidiary; provided that this
sentence shall not restrict a sale or transfer in the form of a non-exclusive license or an exclusive
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license entered into for legitimate business purposes (other than in connection with a liability
management transaction or for the incurrence of Indebtedness) that is entered into to effect a bona
fide transaction with a third party that is not an Affiliate of the Issuer.
(g)The Issuer shall comply, to the extent applicable, with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant
to an Offer. To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.08, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this Section 4.08 by
virtue of its compliance with such securities laws or regulations.
(h)Other than as specifically provided in this Section 4.08, any purchase
pursuant to this Section 4.08 shall be made pursuant to the provisions of Sections 3.02, 3.05 and
3.06.
(i)The provision of this Section 4.08 relating to the Issuer’s obligation to make
an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with
the written consent of the Holders of a majority in principal amount of Notes.
Section 4.09Limitation on Indebtedness, Disqualified Stock and Preferred Stock.
(a)The Issuer will not, and will not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Indebtedness or issue any shares of Disqualified Stock and the Issuer will
not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided,
however, that the Issuer and its Restricted Subsidiaries will be entitled to Incur Indebtedness or
issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred
Stock if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the
Consolidated Fixed Charge Coverage Ratio equals or exceeds 2.00 to 1.00; provided, further, that
the aggregate amount of Indebtedness that may be Incurred and Disqualified Stock or Preferred
Stock that may be issued pursuant to the foregoing by Restricted Subsidiaries that are not
Guarantors shall not exceed the greater of (x) $105.0 million and (y) 50.0% of Consolidated
EBITDA at the time of Incurrence, at any one time outstanding.
(b)Notwithstanding Section 4.09(a), the Issuer and the Restricted Subsidiaries
will be entitled to Incur any or all of the following Indebtedness:
(1)Indebtedness incurred by the Issuer or its Restricted Subsidiaries pursuant to
Credit Facilities, the Guarantees thereof and the issuance and creation of letters of credit and
bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount hereof) consisting of ABL
Obligations or any other Indebtedness that is secured by Liens on the Fixed Asset Collateral
with a priority that is junior to the Liens on the Fixed Asset Collateral securing the Notes
(including any Indebtedness that is secured by Liens on the ABL Collateral with a priority
that is senior to the Liens on the ABL Collateral securing the Notes), up to an aggregate
principal amount or liquidation preference, if applicable, at any one time outstanding, not to
exceed the greater of (i) $300.0 million and (ii) the sum of the U.S. Borrowing Base and the
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Canadian Borrowing Base as of the date of such incurrence or issuance (any Indebtedness
under the ABL Credit Facility outstanding on the Issue Date (after the application of the net
proceeds from the sale of the Notes) and any Indebtedness Incurred under the ABL Credit
Facility after the Issue Date will be treated as Incurred under this clause (b)(1) and cannot be
reclassified pursuant to clause (1) or (2) of Section 4.09(d));
(2)Indebtedness owed to and held by the Issuer or a Restricted Subsidiary or
shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued to the
Issuer or another Restricted Subsidiary; provided, however, that (A) any subsequent issuance
or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of such Indebtedness or Preferred
Stock (other than to the Issuer or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the obligor thereon not permitted pursuant
to this clause (2), (B) if the Issuer is the obligor on such Indebtedness and a Subsidiary
Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all obligations with respect to the Notes and (C) if a
Subsidiary Guarantor is the obligor on such Indebtedness and the Issuer or a Subsidiary
Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all obligations of such Subsidiary Guarantor with respect to
its Subsidiary Guarantee related to the Notes;
(3)the Notes issued on the Issue Date and any Subsidiary Guarantee (but
excluding any Additional Notes);
(4)Indebtedness outstanding on the Issue Date (other than Indebtedness
described in clause (1), (2) or (3) of this Section 4.09(b));
(5)Indebtedness, Disqualified Stock or Preferred Stock of (i) the Issuer or any of
its Restricted Subsidiaries Incurred or issued to finance an acquisition or (ii) Persons that are
acquired by the Issuer or any of its Restricted Subsidiaries or merged into, amalgamated
with or consolidated with the Issuer or a Restricted Subsidiary in accordance with the terms
hereof (including designating an Unrestricted Subsidiary as a Restricted Subsidiary);
provided, however, that either (i) the aggregate principal amount or liquidation preference of
such Indebtedness, Disqualified Stock or Preferred Stock does not at any one time
outstanding exceed $125.0 million or (ii) after giving effect to such acquisition, merger,
amalgamation or consolidation and the Incurrence of such Indebtedness, Disqualified Stock
or Preferred Stock:
(A)the Issuer would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set
forth in Section 4.09(a); or
(B)the Consolidated Fixed Charge Coverage Ratio of the Issuer and its
Restricted Subsidiaries is equal to or greater than immediately prior to such
acquisition, merger, amalgamation or consolidation;
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(6)the Incurrence or issuance by the Issuer or any of its Restricted Subsidiaries
of Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the
Issuer that serves to Refinance any Indebtedness, Disqualified Stock or Preferred Stock
Incurred pursuant to Section 4.09(a) or clauses (3), (4), (5), this clause (6) or clause (12) of
this Section 4.09(b), or any Indebtedness, Disqualified Stock or Preferred Stock Incurred to
so Refinance such Indebtedness, Disqualified Stock or Preferred Stock, including any
additional Indebtedness, Disqualified Stock or Preferred Stock Incurred to pay accrued and
unpaid interest and dividends and premiums (including tender premiums), defeasance costs
and fees and expenses in connection with such Refinancing (subject to the following
proviso, “Refinancing Indebtedness”) on or prior to its respective maturity; provided,
however, that such Refinancing Indebtedness:
(A)has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is Incurred that is (x) not less than the remaining Weighted Average
Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being
Refinanced or (y) at least 91 days after the Weighted Average Life to Maturity of the
principal of the Notes;
(B)has a Stated Maturity which is (x) no earlier than the Stated Maturity
of the Indebtedness being Refinanced or (y) at least 91 days after the Stated Maturity
of the principal of the Notes;
(C)to the extent such Refinancing Indebtedness is secured, the Liens
securing such Refinancing Indebtedness have a Lien priority equal to or junior to the
Liens securing the Indebtedness being refinanced;
(D)to the extent such Refinancing Indebtedness refinances Subordinated
Indebtedness, such Refinancing Indebtedness is Subordinated Indebtedness, and is
subordinated to the Notes on terms at least as favorable to the Holders as those
contained in the documentation governing the Indebtedness being refinanced; and
(E)shall not include (x) Indebtedness, Disqualified Stock or Preferred
Stock of the Issuer or a Guarantor that Refinances Indebtedness of a Restricted
Subsidiary of the Issuer that is not a Guarantor or (y) Indebtedness, Disqualified
Stock or Preferred Stock of the Issuer or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary;
(7)(x) Hedging Obligations that are Incurred in the ordinary course of business
(and not for speculative purposes) and (y) Cash Management Obligations that are Incurred
in the ordinary course of business;
(8)Indebtedness Incurred by the Issuer or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit, bankers’
acceptances, bank guarantees, warehouse receipts or similar facilities entered into, or
relating to obligations or liabilities incurred, in the ordinary course of business, including
without limitation letters of credit in respect of workers’ compensation claims, performance,
completion or surety bonds, health, disability or other employee benefits (whether current or
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former) or property, casualty or liability insurance or self-insurance, or other Indebtedness
with respect to reimbursement-type obligations regarding workers’ compensation claims,
performance, completion or surety bonds, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance; provided, however, that upon the
drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;
(9)Indebtedness arising from 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;
(10)any Guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or
other obligations of the Issuer or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness or other obligations by the Issuer or such Restricted Subsidiary is
permitted by this Indenture; provided that if such Indebtedness is by its express terms
subordinated in right of payment to any Fixed Asset Obligations, any such Guarantee of
such Guarantor with respect to such Indebtedness shall be subordinated in right of payment
to such Guarantor’s Guarantee of the Notes substantially to the same extent as such
Indebtedness is subordinated to the Fixed Asset Obligations;
(11)Indebtedness (including, without limitation, Capitalized Lease Obligations
and mortgage financings as purchase money obligations), Incurred by the Issuer or any of its
Restricted Subsidiaries, Disqualified Stock issued by the Issuer or any of its Restricted
Subsidiaries and Preferred Stock issued by any Restricted Subsidiaries of the Issuer to
finance all or any part of the purchase, lease or cost of design, construction, installation,
replacement, repair or improvement of property (real or personal), plant or equipment or
other fixed or capital assets used or useful in the business of the Issuer or its Restricted
Subsidiaries or in a Similar Business (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate principal amount or
liquidation preference, including all Indebtedness Incurred and Disqualified Stock or
Preferred Stock issued to renew, refund, refinance, replace, defease or discharge any
Indebtedness Incurred and Disqualified Stock or Preferred Stock issued pursuant to this
clause (11), not to exceed at any one time outstanding the greater of (x) $105.0 million and
(y) 50.0% of Consolidated EBITDA;
(12)Indebtedness Incurred by Foreign Subsidiaries of the Issuer in an aggregate
principal amount (or accreted value, as applicable), at any time outstanding, not to exceed
the greater of (x) 105.0 million and (y) 50.0% of Consolidated EBITDA; provided that such
Indebtedness may only be Incurred in the ordinary course of business or for working capital
purposes (and, in each case, not in connection with a liability management transaction);
(13)Indebtedness Incurred in a Permitted Receivables Financing;
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(14)Indebtedness of the Issuer or any Restricted Subsidiary consisting of (x) the
financing of insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business, not to exceed $10.0 million at
any one time outstanding;
(15)obligations (including reimbursement obligations with respect to letters of
credit and bank guarantees) in respect of performance, bid, appeal and surety bonds,
bankers’ acceptance facilities and completion guarantees, customs, VAT or other tax
guarantees and similar obligations provided by the Issuer or any Restricted Subsidiary or
obligations in respect of letters of credit, bank guarantees or similar instruments related
thereto, in each case, in the ordinary course of business;
(16)the issuance of any Participating Financial Instruments in connection with
any European Restructuring, in an aggregate principal amount, liquidation preference,
subscription price, value or similar concept not to exceed at any one time outstanding €90.0
million;
(17)the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness
consisting of the Guarantees of Indebtedness incurred by Permitted Joint Ventures;
provided, that the aggregate principal amount of Indebtedness guaranteed pursuant to this
clause (17) does not at any one time outstanding exceed the greater of (x) $105.0 million and
(y) 50.0% of Consolidated EBITDA;
(18)Guarantees incurred in the ordinary course of business in respect of
obligations to suppliers, customers, franchisees, lessors and licensees that, in each case, are
non-Affiliates;
(19)Indebtedness consisting of Indebtedness issued by the Issuer or any
Restricted Subsidiary to future, current or former officers, directors, employees, managers,
service providers or consultants thereof or any direct or indirect parent thereof, their
respective estates, spouses or former spouses, in each case, to finance the purchase,
redemption, acquisition or retirement for value of Equity Interests of the Issuer or any direct
or indirect parent company of the Issuer to the extent permitted under Section 4.10(b)(3);
(20)Indebtedness representing deferred compensation to employees of the Issuer
(or any direct or indirect parent thereof) and of Restricted Subsidiaries incurred in the
ordinary course of business; and
(21)Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary
of the Issuer and Preferred Stock of any Restricted Subsidiary of the Issuer in an aggregate
principal amount or liquidation preference that, when aggregated with the principal amount
or liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock
then outstanding and Incurred pursuant to this clause (21), does not exceed at any one time
outstanding the greater of (x) $175.0 million and (y) 75.0% of Consolidated EBITDA.
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(c)Notwithstanding the foregoing, neither the Issuer nor any Subsidiary
Guarantor will Incur any Indebtedness pursuant to the foregoing paragraph (b) if the proceeds
thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Issuer or
any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Notes or the
Subsidiary Guarantee to at least the same extent as such Subordinated Obligations.
(d)For purposes of determining compliance with this Section 4.09:
(1)other than as set forth in Section 4.09(b)(1), in the event that an item of
Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the
criteria of more than one of the types of Indebtedness, Disqualified Stock or Preferred Stock
described in Section 4.09(a) and Section 4.09(b) above, the Issuer, in its sole discretion, will
classify such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion
thereof) at the time of Incurrence and will only be required to include the amount and type
of such Indebtedness in one of the above paragraphs; and
(2)other than as set forth in Section 4.09(b)(1), the Issuer will be entitled at the
time of Incurrence of Indebtedness, Disqualified Stock or Preferred Stock to divide and
classify an item of Indebtedness in more than one of the types of Indebtedness described
above, and with respect to any Indebtedness, Disqualified Stock or Preferred Stock Incurred
pursuant to any specific clause under Section 4.09(b) above, the Issuer may, after such
Indebtedness, Disqualified Stock or Preferred Stock is Incurred, reclassify all or a portion of
such Indebtedness, Disqualified Stock or Preferred Stock under a different clause of Section
4.09(b) or under Section 4.09(a) but only to the extent such Indebtedness could be so
Incurred under such clause of Section 4.09(b) or Section 4.09(a).
(e)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 shall 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 first Incurred (whichever yields the lower U.S. dollar-equivalent), in the case of
revolving credit debt; provided that if such Indebtedness is Incurred to Refinance other
Indebtedness denominated in a foreign currency, and such Refinancing 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 Refinancing, 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 (i) the principal amount of such Indebtedness being Refinanced plus
(ii) the aggregate amount of fees, defeasance costs, underwriting discounts, accrued and unpaid
interest, premiums and other costs and expenses incurred in connection with such Refinancing.
(f)Accrual of interest, the accretion of accreted value and the payment of
interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock,
as applicable, will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or
Preferred Stock for purposes of this Section 4.09.
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(g)This Indenture will not treat (1) unsecured Indebtedness as subordinated or
junior to Secured Debt merely because it is unsecured or (2) senior Indebtedness as subordinated or
junior to any other senior Indebtedness merely because it has a junior priority with respect to the
same collateral.
Section 4.10Limitation on Restricted Payments.
(a)The Issuer will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1)a Default or Event of Default shall have occurred and be continuing or shall
occur as a consequence thereof;
(2)after giving effect to such Restricted Payment (including, without limitation,
the incurrence of any Indebtedness to finance such Restricted Payment), the Total Net
Leverage Ratio would be greater than 4.25 to 1.00; or
(3)the amount of such Restricted Payment, when added to the aggregate amount
of all other Restricted Payments made since the Issue Date (including Restricted Payments
made pursuant to clauses (1) and (14) of Section 4.10(b) but excluding all other Restricted
Payments permitted by Section 4.10(b)), exceeds the sum (the “Restricted Payments
Basket”) of (without duplication):
(A)50.0% of Consolidated Net Income of the Issuer and its Subsidiaries
determined in accordance with GAAP for the period (taken as one accounting period)
commencing on the Issue Date to and including the last day of the fiscal quarter ended
immediately prior to the date of such calculation for which consolidated financial statements
are available (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such
aggregate deficit), plus
(B)100.0% of the aggregate net cash proceeds and the Fair Market Value,
as determined in good faith by the Issuer, of property and marketable securities received by
the Issuer from the issuance and sale of Qualified Equity Interests of the Issuer or any Parent
Entity (to the extent such net cash proceeds and Fair Market Value of property and
marketable securities are actually contributed to the Issuer) since the Issue Date or from the
issue or sale of convertible or exchangeable Disqualified Stock of the Issuer or any Parent
Entity (to the extent such net cash proceeds and Fair Market Value of property and
marketable securities are actually contributed to the Issuer) or convertible or exchangeable
debt securities of the Issuer or any Parent Entity (to the extent such net cash proceeds and
Fair Market Value of property and marketable securities are actually contributed to the
Issuer), in each case, that have been converted into or exchanged for Qualified Equity
Interests of the Issuer or any Parent Entity, other than (A) any such proceeds which are used
to redeem Notes in accordance with the first paragraph under paragraph 5 of the Notes or
(B) any such proceeds received from the sale of Excluded Equity, plus
(C)100.0% of the aggregate amount of cash and the Fair Market Value,
as determined in good faith by the Issuer, of property and marketable securities contributed
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to the capital of the Issuer, or that becomes part of the capital of the Issuer through
consolidation or merger following the Issue Date, plus
(D)100% of the aggregate amount received by the Issuer or any
Restricted Subsidiary in cash and the Fair Market Value of marketable securities or other
property received by the Issuer or any Restricted Subsidiary in each case after the Issue Date
from:
(i)the sale or other disposition (other than to the Parent, Holdings, the
Issuer or a Restricted Subsidiary of the Issuer) of Restricted Investments made by the
Issuer and its Restricted Subsidiaries and from repurchases and redemptions of, or
cash distributions or cash interest received in respect thereof, such Restricted
Investments from the Issuer and its Restricted Subsidiaries by any Person (other than
the Parent, Holdings, the Issuer or any of its Subsidiaries) and from repayments of
loans or advances, and releases of Guarantees, which constituted Restricted
Investments made by the Issuer or its Restricted Subsidiaries,
(ii)the sale (other than to the Parent, Holdings, the Issuer or a Restricted
Subsidiary or an employee stock ownership plan or trust established by the Issuer or
any Restricted Subsidiary (other than to the extent such employee stock ownership
plan or trust has been funded by the Issuer or any Restricted Subsidiary or to the
extent that such Investment constituted a Permitted Investment)) of the Capital Stock
of an Unrestricted Subsidiary, or
(iii)any distribution or dividend from an Unrestricted Subsidiary (to the
extent such distribution or dividend is not included in the calculation of Consolidated
Net Income), plus
(E)in the event any Unrestricted Subsidiary of the Issuer has been
redesignated as a Restricted Subsidiary or has been merged or consolidated with or into, or
transfers or conveys its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary of
the Issuer, in each case, after the Issue Date, the Fair Market Value of the Investment of the
Issuer in such Unrestricted Subsidiary at the time of such redesignation, combination or
transfer (or of the assets transferred or conveyed, as applicable) (other than, in each case to
the extent that the designation of such Subsidiary as an Unrestricted Subsidiary constituted a
Permitted Investment), plus
(F)the aggregate amount by which Indebtedness (other than any
Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary since the
Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other
than by a Restricted Subsidiary of the Issuer) into Qualified Equity Interests of the Issuer or
any Parent Entity (less the amount of any cash, or the fair value of assets, distributed by the
Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
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(G)in the event the Issuer or Restricted Subsidiary makes an Investment
(other than a Permitted Investment) in a Person that, as a result of or in connection with such
Investment, becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of
the existing Investment (other than a Permitted Investment) in such Person that was
previously treated as a Restricted Payment made in reliance on Section 4.10(a)(3) or Section
4.10(b)(8).
(b)The foregoing provisions will not prohibit:
(1)the payment by the Issuer of any dividend or distribution or the
consummation of any redemption within 60 days after the date of declaration thereof or the
giving of the redemption notice, as the case may be, if on the date of declaration or notice,
the dividend, distribution or redemption payment would have complied with the provisions
of this Indenture;
(2)the redemption of any Equity Interests of the Issuer in exchange for, or out of
the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3)payments by the Issuer to repurchase, redeem, retire or otherwise acquire
Equity Interests of the Issuer or any Parent Entity held by future, present or former officers,
directors, employees, managers or consultants (or their transferees, estates or beneficiaries
under their estates) of the Issuer or its Subsidiaries or any Parent Entity, upon their death,
disability, retirement, severance or termination of employment or service or other repurchase
event pursuant to any management, director and/or employee equity plan or stock option
plan, stock appreciation rights plan or any other management, director or employee benefit
plan or agreement or arrangement or equity subscription or equityholder agreement
(including, for the avoidance of doubt, any principal and interest payable on any
Indebtedness issued by the Issuer or any Parent Entity in connection with such repurchase,
retirement or other acquisition); provided that the aggregate cash consideration paid for all
such redemptions shall not exceed (A) $7.50 million during any calendar year (with unused
amounts being available to be used in the following calendar years up to a maximum of
$10.0 million in the aggregate in any calendar year) plus (B) the amount of any net cash
proceeds received by the Issuer from the issuance and sale after the Issue Date of Qualified
Equity Interests of the Issuer or any Parent Entity to future, present or former officers,
directors, employees, managers or consultants (or their transferees, estates or beneficiaries
under their estates) of the Issuer or the Subsidiaries or any Parent Entity that have not been
applied to the payment of Restricted Payments pursuant to this clause (c), plus (C) the net
cash proceeds of any “key-man” life insurance policies received after the Issue Date that
have not been applied to the payment of Restricted Payments pursuant to this clause (c);
provided, that cancellation of Indebtedness owing to the Issuer or its Subsidiaries or any
Parent Entity from any future, current or former officer, director, employee, manager or
consultant (or any permitted transferees thereof) of the Issuer or any of its Subsidiaries or
any Parent Entity, in connection with a repurchase of Equity Interests of the Issuer or any
Parent Entity from such Persons will be deemed to constitute a Restricted Payment for
purposes of this Section 4.10 or any other provisions of this Indenture;
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(4)repurchases, acquisitions or retirements for value of Equity Interests deemed
to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or
other convertible securities if the Equity Interests represents a portion of the exercise price
thereof, or in connection with the withholding of a portion of the Equity Interests granted or
awarded to a director, employee, manager or consultant (or their transferees, estates or
beneficiaries under their estates) to pay for the taxes payable by such director, employee,
manager or consultant upon such grant or award;
(5)Restricted Payments to allow the payment of cash in lieu of the issuance of
fractional shares upon (i) the exercise of options or warrants or (ii) the conversion or
exchange of Equity Interests of any Person (including in connection with a dividend,
distribution, share split, reverse share split, merger, consolidation, amalgamation or similar
transaction) and payments of cash to dissenting shareholders in connection with a merger,
consolidation, amalgamation, transfer of assets;
(6)the distribution, as a dividend or otherwise, or shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by, any Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or temporary
cash Investments);
(7)the declaration and payment of dividends on the Issuer’s common stock (or
the payment of dividends to any Parent Entity to fund a payment of dividends on such
entity’s common stock) of up to (A) 6.0% per annum of the net cash proceeds received by
the Issuer from any public offering of common stock or contributed to the Issuer by any
Parent Entity in or from any public offering of common stock (other than public offerings
with respect to common stock registered on Form S-8) and (B) an aggregate amount not to
exceed 7.0% of Market Capitalization;
(8)Restricted Payments in an amount not to exceed the greater of (x) $105.0
million and (y) 50.0% of Consolidated EBITDA;
(9)Restricted Payments that are made in an amount equal to the amount of
Excluded Contributions;
(10)the payment or distribution of Receivables Fees;
(11)the declaration and payment of dividends or distributions by the Issuer to, or
the making of loans to, any Parent Entity in amounts required for any Parent Entity to pay or
cause to be paid, in each case, without duplication,
(A)franchise, excise and similar taxes and other fees, taxes and expenses,
in each case, required to maintain their corporate or other legal existence;
(B)for any taxable period for which the Issuer and/or any of its Restricted
Subsidiaries are members of a consolidated, combined or unitary tax group for U.S.
federal and/or applicable state, local, provincial, territorial or foreign income or
similar tax purposes of which a Parent Entity is the common parent (a “Tax Group”),
the portion of any U.S. federal, state, local, provincial, territorial or foreign income
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or similar taxes (as applicable) of such Tax Group for such taxable period that are
attributable to the taxable income of the Issuer and/or its Subsidiaries; provided that
for each taxable period, (1) payments made pursuant to this subclause (B) shall not
exceed the amount of liability that the Issuer and/or its Subsidiaries (as applicable)
would have incurred were such taxes determined as if such entity(ies) were a stand-
alone taxpayer or a stand-alone group, which amount shall be reduced by any such
tax directly paid by the Issuer or any of its Subsidiaries and (2) the amount of such
payments made in respect of an Unrestricted Subsidiary will be permitted only to the
extent that cash distributions were made by such Unrestricted Subsidiary to the
Issuer or any Restricted Subsidiary for such purpose;
(C)customary salary, bonus, severance and other benefits payable to, and
indemnities provided on behalf of, future, current or former officers, employees,
directors, managers and consultants of any Parent Entity to the extent such salaries,
bonuses, severance and other benefits and indemnities are attributable to the
ownership or operation of the Issuer and its Subsidiaries, including the Issuer’s or its
Subsidiaries’ proportionate share of such amount relating to such Parent Entity being
a public company;
(D)general corporate, operating and other costs and expenses (including,
without limitation, expenses related to the maintenance of corporate or other
existence and auditing or other accounting or tax reporting matters) and listing fees
and other costs and expenses attributable to being a public company, of any Parent
Entity;
(E)amounts required for any Parent Entity to pay interest and/or principal
on Indebtedness, the proceeds of which have been contributed to the Issuer (other
than as Disqualified Stock) and that has been guaranteed by, and is otherwise
considered Indebtedness of, the Issuer or any Restricted Subsidiary;
(F)fees and expenses related to any equity or debt offering, financing
transaction, acquisitions, divestitures, investments or other non-ordinary course
transaction (whether or not successful) of such Parent Entity; provided that any such
acquisition or investment was intended to be for the benefit of the Issuer and its
Subsidiaries; and
(G)any Restricted Payment permitted by Section 4.10(b)(3);
(12)other Restricted Payments if, at the time of the making of such payments, and
after giving effect thereto (including, without limitation, the incurrence of any Indebtedness
to finance such payment), the Total Net Leverage Ratio would not exceed 3.25 to 1.00;
(13)the declaration and payment of dividends or distributions to holders of any
class or series of Designated Preferred Stock and the declaration and payment of dividends
to Holdings or any other Parent Entity, the proceeds of which will be used to fund the
payment of dividends to holders of any class or series of Designated Preferred Stock of
Holdings or any other Parent Entity issued after the Issue Date; provided, however, that (A)
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for the Four-Quarter Period immediately preceding the date of issuance of such Designated
Preferred Stock, after giving effect to such issuance (and the payment of dividends or
distributions) on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio of the
Issuer and its Restricted Subsidiaries would have been at least 2.00 to 1.00 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (m) does not exceed
the lesser of (x) the net cash proceeds actually received by the Issuer from the sale (or the
contribution of the net cash proceeds from the sale) of Designated Preferred Stock and (y)
$7.5 million during any calendar year; or
(14)Restricted Payments in connection with any European Restructuring in a
reasonable amount in the Issuer’s good faith determination, but in any event, not to exceed
an amount equal to the total outstanding amount incurred pursuant to Section 4.09(b)(16);
provided that (x) in the case of any Restricted Payment pursuant to clauses (8) and (12) of this
Section 4.10(b), no Default or Event of Default shall have occurred and be continuing or occur as a
consequence thereof and (y) no issuance and sale of Qualified Equity Interests that are used to make
a payment pursuant to clauses (2) or (3)(B) of this Section 4.10(b) shall increase the Restricted
Payments Basket.
(c)For purposes of determining compliance with this Section 4.10, in the event
that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the
categories of Restricted Payments described in the preceding clauses (1) through (14) of Section
4.10(b) and/or is entitled to be made pursuant to Section 4.10(a), the Issuer will be entitled to divide
or classify (or later divide, classify or reclassify in whole or in part in their sole discretion) such
Restricted Payment (or a portion thereof) among such clauses (1) through (14) of Section 4.10(b)
and/or Section 4.10(a), in a manner that otherwise complies with this Section 4.10.
(d)The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the assets or securities proposed to be
transferred or issued by the Issuer or any Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment.
(e)Notwithstanding anything to the contrary, neither the Issuer nor any
Restricted Subsidiary may transfer, assign or exclusively license any Material Intellectual Property
to Parent or any Subsidiary that is not the Issuer or a Restricted Subsidiary; provided that this
sentence shall not restrict a sale or transfer in the form of a non-exclusive license or an exclusive
license entered into for legitimate business purposes (other than in connection with a liability
management transaction or for the incurrence of Indebtedness) that is entered into to effect a bona
fide transaction with a third party that is not an Affiliate of the Issuer.
Section 4.11Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a)The Issuer will not, and will not permit any Restricted Subsidiary that is not
a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted Subsidiary that is not a
Guarantor (directly or indirectly) to (A) pay dividends or make any other distributions on its Capital
Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any of
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its Restricted Subsidiaries (it being understood that the priority of any Preferred Stock in receiving
dividends or liquidating distributions prior to dividends or liquidating distributions being paid on
common stock shall not be deemed a restriction on the ability to make distributions on Capital
Stock), (B) make any loans or advances to the Issuer (it being understood that the subordination of
loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness Incurred by
the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans
or advances) or (C) sell, lease or transfer any of its property or assets to the Issuer or any of its
Restricted Subsidiaries, except:
(1)with respect to clauses (a)(A), (a)(B) and (a)(C):
(A)(x) any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the Issue Date, including pursuant to the ABL Credit Facility and the
related documentation and related Hedging Obligations and Cash Management Obligations
and (y) this Indenture, the Notes, the Guarantees and the First Lien Notes Security
Documents;
(B)any encumbrance or restriction with respect to a Restricted Subsidiary
or the property or assets acquired by the Issuer or any of its Restricted Subsidiaries existing
on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other
than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Issuer) and outstanding on such date and any amendments, modification,
restatements, renewals, extensions, increases, supplements, refunding, replacements or
refinancing thereof; provided that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions, increases, supplements,
refunding, replacements or refinancing are entered into in the ordinary course of business or
not materially more restrictive, taken as a whole, than those contained in the ABL Credit
Facility, this Indenture, existing Indebtedness or such other agreements as in effect on the
date of the acquisition;
(C)any encumbrance or restriction pursuant to an agreement effecting a
Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or
(B) of clause (1) of this Section 4.11 or this clause (C) or contained in any amendment,
modification, restatement, renewal, extension, increase, supplement, refunding, or
replacement of an agreement referred to in clause (A) or (B) of clause (1) of this Section
4.11 or this clause (C); provided, however, that the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in any such refinancing agreement or
amendment, modification, restatement, renewal, extension, increase, supplement, refunding,
or replacement are not materially more restrictive on the whole to the Holders than
encumbrances and restrictions with respect to such Restricted Subsidiary contained in such
predecessor agreements on the Issue Date;
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(D)existing under, by reason of or with respect to Refinancing
Indebtedness; provided, that the encumbrances and restrictions contained in the agreements
governing such Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness being refinanced;
(E)provisions restricting cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(F)existing under, by reason of or with respect to customary provisions
contained in leases or licenses of intellectual property and other agreements, in each case,
entered into in the ordinary course of business;
(G)agreements entered into between a Foreign Subsidiary and another
Foreign Subsidiary which second Foreign Subsidiary is not a Subsidiary of the first Foreign
Subsidiary to the extent such agreements relate solely to such Foreign Subsidiaries and do
not affect in any material respect the Issuer’s or any Subsidiary Guarantor’s ability to make
principal and interest payments on the Notes, as determined in good faith by the Issuer;
(H)any encumbrance or restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or disposition of some or all of
the Capital Stock or any property and assets of such Restricted Subsidiary pending the
closing of such sale or disposition;
(I)with respect to any Foreign Subsidiary, any encumbrance or
restriction contained in the terms of any Indebtedness permitted to be Incurred under this
Indenture, or any agreement pursuant to which such Indebtedness was issued;
(J)restrictions or conditions governing any Indebtedness Incurred in
connection with Permitted Receivables Financing if such restrictions or conditions apply
only to the Receivables Assets that are the subject of the Permitted Receivables Financing,
and restrictions or conditions imposed on any Receivables Subsidiary in connection with any
Permitted Receivables Financing;
(K)provisions limiting the disposition or distribution of assets or property
or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-
leaseback agreements, stock sale agreements, limited liability company organizational
documents, and other similar agreements entered into in the ordinary course of business,
consistent with past practice or with the approval of the Board of Directors of the Issuer (or
the Board of Directors of any Parent Entity), which limitation is applicable only to the
assets, property or Capital Stock that are the subject of such agreements;
(L)restrictions on cash, Cash Equivalents or other deposits or net worth
imposed by customers or lessors under contracts or leases entered into in the ordinary course
of business;
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(M)customary provisions in joint venture agreements, operating or similar
agreements, asset sale agreements and stock sale agreements arising in connection with the
entering into of such transactions;
(N)any restriction arising under applicable law, rule, regulation or
administrative or court order;
(O)any encumbrance or restriction existing under or by reason of the
ABL Credit Facility;
(P)any encumbrance or restriction existing under any other Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary that is
incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09; provided
that either (x) the provisions relating to such encumbrance or restriction contained in such
Indebtedness are no less favorable to the Issuer, taken as a whole, as determined by the
Issuer in good faith, than the provisions contained in the ABL Credit Facility, in each case,
as in effect on the Issue Date or (y) any encumbrance or restriction contained in such
indebtedness that does not (except upon a default or event of default thereunder) materially
impair the Issuer’s or any Subsidiary Guarantor’s ability, as determined by the Issuer in
good faith, to make payments of interest and principal on the Notes when due;
(Q)any encumbrance or restriction with respect to a Subsidiary which
was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that
such Subsidiary is a party to or entered into before the date on which such Subsidiary
became a Restricted Subsidiary; provided that such agreement was not entered into in
anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such
encumbrance or restriction does not extend to any assets or property of the Issuer or any
other Restricted Subsidiary other than the assets and property of such Subsidiary; and
(R)any encumbrance or restriction contained in security agreements or
mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such security agreements or
mortgages;
(2)with respect to clause (a)(C) above:
(A)any encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the extent such
provisions restrict the transfer of the lease or the property leased thereunder;
(B)any encumbrance or restriction existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any property or assets of
the Issuer or any Restricted Subsidiary thereof not otherwise prohibited by this Indenture;
(C)any encumbrance or restriction existing under, by reason of or with
respect to (i) purchase money obligations for property acquired in the ordinary course of
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business or (ii) capital leases or operating leases that impose encumbrances or restrictions on
the property so acquired or covered thereby;
(D)any encumbrance or restriction arising or agreed to in the ordinary
course of business, not relating to any Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of the Issuer or any Restricted
Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(E)non-assignment provisions or subletting restrictions in contracts,
leases and licenses entered into in the ordinary course of business;
(F)encumbrances on property that exist at the time the property was
acquired by the Issuer or a Restricted Subsidiary, provided such encumbrances were not put
in place in anticipation of such acquisition;
(G)customary provisions in asset sale agreements and stock sale
agreements arising in connection with the entering into of such transactions; and
(3)any encumbrances or restrictions of the type referred to in clauses (a)(A),
(a)(B) and (a)(C) above imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the contracts, instruments or
obligations referred to in Sections 4.11(a)(1) and 4.11(a)(2); provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings (other than with respect to the ABL Credit Facility) are, in the good faith judgment of
the Issuer, no more restrictive on the whole 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.
Section 4.12Limitation on Affiliate Transactions.
(a)The Issuer will not, and will not permit any Restricted Subsidiary to, enter
into or permit to exist any transaction or series of related transactions (including the purchase, sale,
lease or exchange of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Parent (an “Affiliate Transaction”) involving aggregate
consideration in excess of $10.0 million, either directly or indirectly, unless:
(1)the terms of the Affiliate Transaction are no less favorable to the Issuer or
such Restricted Subsidiary, taken as a whole, than those that could be obtained at the time of
the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate; and
(2)if such Affiliate Transaction involves an amount in excess of $25.0 million,
the terms of the Affiliate Transaction are set forth in writing and a majority of the non-
employee directors of the Issuer disinterested with respect to such Affiliate Transaction have
determined in good faith that the criteria set forth in clause (1) of this Section 4.12 are
satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution
of the Board of Directors of the Issuer.
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(b)The provisions of Section 4.12(a) will not prohibit:
(1)any Permitted Investment or Restricted Payment permitted to be made
pursuant to the covenant described under Section 4.10;
(2)any payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment arrangements, employee benefit plans, stock options and
stock ownership plans in the ordinary course of business or consistent with past practice;
(3)loans or advances to employees in the ordinary course of business in
accordance with the past practices of the Issuer or its Restricted Subsidiaries;
(4)the payment of reasonable fees to, and indemnity provided on behalf of,
directors, officers, employees and consultants of the Issuer and its Restricted Subsidiaries
who are not employees of the Issuer or its Restricted Subsidiaries in the ordinary course of
business;
(5)any transaction with the Issuer, a Restricted Subsidiary or joint venture or
similar entity which would constitute an Affiliate Transaction solely because the Issuer or a
Restricted Subsidiary owns an Equity Interest in or otherwise controls such Restricted
Subsidiary, joint venture or similar entity;
(6)the issuance or sale of any Capital Stock (other than Disqualified Stock) of
the Issuer and the granting and performance of registration rights;
(7)pledges of Capital Stock of Unrestricted Subsidiaries for the benefit of
lenders of Unrestricted Subsidiaries;
(8)any agreement as in effect on the Issue Date and described in the Offering
Memorandum or any renewals or extensions of any such agreement (so long as such
renewals or extensions, taken as a whole, are not less favorable to the Issuer or the
Restricted Subsidiaries) and the transactions evidenced thereby; and
(9)any transaction for which the Issuer has received a written opinion from an
Advisory Firm the effect that such transaction is fair, from a financial standpoint, to the
Issuer and its Restricted Subsidiaries or is not less favorable to the Issuer and its Restricted
Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s length
transaction with a Person who was not an Affiliate.
Section 4.13Limitation on Liens.
(a)The Issuer will not at any time create, incur or assume, and will not cause or
permit a Restricted Subsidiary that is a Guarantor to, directly or indirectly Incur any Lien securing
Indebtedness of the Issuer or such Guarantor upon any of its property, assets or revenue, whether
owned on the Issue Date or thereafter acquired (except Permitted Liens). If the Issuer or a
Guarantor creates any Lien upon any property or assets that are not at such time Collateral in order
to secure any ABL Obligations or Fixed Asset Obligations (other than customary Liens on cash
collateral in connection with the ABL Credit Facility and other revolving facilities), it must
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concurrently grant a first-priority Lien upon such property or assets that would constitute Fixed
Asset Collateral or a second-priority Lien upon such property or assets that would constitute ABL
Collateral, respectively, in each case, as security for the Notes or the Note Guarantee, such that the
property or assets subject to such Lien will constitute Collateral under this Indenture and the First
Lien Notes Security Documents, subject, in each case, to local law limitations and Permitted Liens.
(b)The following shall constitute “Permitted Liens”:
(1)Liens on property or assets acquired, constructed, developed or improved
after the Issue Date by the Issuer or a Restricted Subsidiary and created prior to or
contemporaneously with, or within 180 days after, the acquisition of property which is a
parcel of real property, a building, machinery or equipment, and extensions, renewals and
replacements of any such Liens so long as such Liens are not extended to any other property
of the Issuer or any of its Restricted Subsidiaries;
(2)Liens on property or assets at the time of acquisition which secure obligations
assumed by the Issuer or a Restricted Subsidiary, or on the property, assets or on the Equity
Interests or indebtedness of a Person at the time it becomes a Restricted Subsidiary or is
merged into or consolidated with the Issuer or a Restricted Subsidiary, or on properties of a
Person acquired by the Issuer or a Restricted Subsidiary as an entirety or substantially as an
entirety; provided that the Liens may not extend to any other property of the Issuer or
Restricted Subsidiary other than proceeds and products of such property, shares or
indebtedness and accessions thereto, and extensions, renewals and replacements of any such
Liens so long as such Liens are not extended to any other property of the Issuer or any of its
Restricted Subsidiaries;
(3)Liens arising from conditional sale, title retention, consignment or similar
agreements or arrangements for the sale of goods entered into in the ordinary course of
business;
(4)Liens in favor of the Issuer or any Guarantor;
(5)Liens Incurred to secure obligations in respect of Indebtedness permitted to
be Incurred pursuant to Section 4.09(b)(1), Section 4.09(b)(11) and Section 4.09(b)(12);
provided that, (x) in the case of Section 4.09(b)(11), such Lien extends only to the assets
and/or Capital Stock, the acquisition, lease, construction, repair, replacement or
improvement of which is financed thereby and any income or profits thereof; and (y) in the
case of Section 4.09(b)(12), such Lien does not extend to the property or assets (or income
or profits therefrom) of any Restricted Subsidiary other than a Foreign Subsidiary;
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(6)Liens existing on the Issue Date (other than Liens to secure obligations in
respect of the ABL Credit Facility) and extensions, renewals and replacements of any such
Liens so long as such Liens are not extended to any other property of the Issuer or any of its
Restricted Subsidiaries;
(7)any Lien arising by reason of deposits with, or the giving of any form of
security to, any governmental agency or any body created or approved by law or
governmental regulations, which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise of any privilege, franchise or
license;
(8)Liens of carriers’, warehousemen’s, mechanics, suppliers’ materialmen,
repairmen and other Liens imposed by law arising in the ordinary course of business
(including construction of facilities) in respect of obligations that are not due, that are not yet
delinquent for a period of more than 60 days or that are being contested in good faith;
(9)Liens for taxes, assessments or governmental charges or claims (a) that are
not yet delinquent for a period of more than 30 days, (b) not yet payable or subject to
penalties for non-payment or (c) that are being contested in good faith;
(10)Liens (including judgment Liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith or, in the case of
judgment Liens, execution thereon is stayed or not giving rise to an Event of Default;
(11)landlords’ Liens on fixtures on premises leased in the ordinary course of
business;
(12)Liens to secure the performance of statutory obligations, insurance, surety or
appeal bonds, performance bonds, or other obligations of a like nature incurred in the
ordinary course of business (including Liens to secure letters of credit issued to assure
payment of such obligations);
(13)Liens on assets of the Issuer or any of its Restricted Subsidiaries securing
Indebtedness consisting of Hedging Obligations or Treasury Management Arrangements;
(14)minor survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, minor defects or irregularities in title, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to
the use of, charges or encumbrances in respect of, real property that do not materially impair
the use of said properties in the operation of the business of the Issuer and its Restricted
Subsidiaries;
(15)Liens on insurance policies and proceeds thereof, or other deposits, to secure
insurance premium financings;
(16)filing of UCC financing statements as a precautionary measure in connection
with operating leases or consignments;
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(17)bankers’ Liens and rights of setoff or Liens that are contractual rights of set-
off relating to purchase orders and other agreements entered into with customers of the
Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(18)Liens in cash, Cash Equivalents or other property arising in connection with
the defeasance, discharge or redemption of Indebtedness;
(19)Liens on specific items of inventory or other goods (and the proceeds thereof)
of the Issuer or a Restricted Subsidiary securing such Person’s obligations in respect of
bankers’ acceptances or trade-related letters of credit issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(20)grants of intellectual property licenses (including software and other
technology licenses) in the ordinary course of business;
(21)Liens incurred or pledges or deposits made in the ordinary course of business
in connection with workers’ compensation, unemployment and other insurance and other
types of social security and employee health and disability benefits or similar obligations
(including Liens to secure letters of credit issued to assure payment of such obligations and
also including pledges or deposits securing liability to insurance carriers under insurance or
self-insurance arrangements) or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and return-of-
money bonds and other similar obligations;
(22)deposits made in the ordinary course of business to secure liability to
insurance carriers;
(23)Liens to secure partial, progress, advance or other payments or any
indebtedness incurred for the purpose of financing all or any part of the purchase price or the
cost of construction, development, or substantial repair, alteration or improvement of the
property subject to such Liens if the commitment for the financing is obtained not later than
180 days after the later of the completion of or the placing into operation (exclusive of test
and start-up periods) of such property;
(24)Liens in cash proceeds (or securities purchased therewith) from Indebtedness
which are set aside at the time of such incurrence in order to secure an escrow arrangement
pursuant to which such cash proceeds (or securities purchased therewith) are contemplated
to ultimately be released to the Issuer or a Restricted Subsidiary or returned to the lenders of
such Indebtedness; provided that such Liens are automatically released concurrently with the
release of such cash proceeds (or securities purchased therewith) from such escrow
arrangement;
(25)any interest or title of a lessor under any lease, whether or not characterized
as capital or operating; provided that such Liens do not extend to any property or assets
which is not leased property subject to such lease;
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(26)Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the Issuer or a Restricted
Subsidiary, including rights of offset and set-off;
(27)leases or subleases granted to others not interfering in any material respect
with the business of the Issuer or a Restricted Subsidiary;
(28)Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of custom duties in connection with importation of goods;
(29)Liens encumbering initial deposits and margin deposits, and other Liens
incurred in the ordinary course of business and that are within the general parameters
customary in the industry;
(30)any encumbrance or restriction (including put and call arrangements) with
respect to Equity Interests of any joint venture or similar arrangement;
(31)Liens solely on any cash earnest money deposits made by the Issuer or a
Restricted Subsidiary in connection with any letter of intent or purchase agreement;
(32)Liens in respect of cash-pooling arrangement outside of the United States
covering assets of Restricted Subsidiaries;
(33)Liens on account receivables and Receivables Assets incurred in connection
with a Permitted Receivables Financing;
(34)Liens on equipment of the Issuer or any Restricted Subsidiary of the Issuer
granted in the ordinary course of business to Issuer’s or such Restricted Subsidiary’s client
at which such equipment is located;
(35)Liens (a) of a collection bank arising under Section 4-210 of the UCC or any
comparable or successor provision on items in the course of collection, (b) attaching to
pooling, commodity trading accounts or other commodity brokerage accounts incurred in the
ordinary course of business or consistent with past practice and (c) in favor of a banking or
other financial institution or electronic payment service providers arising as a matter of law
or under general terms and conditions encumbering deposits (including the right of setoff)
and that are within the general parameters customary in the banking or finance industry;
(36)(a) Liens in favor of the Trustee or Collateral Agent or (b) Liens securing the
Notes issued on the Issue Date (including any Guarantee thereof);
(37) Liens to secure any refinancing, refunding, extension, renewal, replacement,
repaying, prepaying, purchasing, redeeming, defeasing or retiring (or successive
refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien (other than clause (5)); provided, however, that (x) such
new Lien shall be limited to all or part of the same property that secured the original Lien
(plus improvements on such property), and (y) the Indebtedness secured by such Lien at
such time is not increased to any amount greater than the sum of (A) the outstanding
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principal amount or, if greater, committed amount of the Indebtedness described under
Section 4.09(b)(5) and Section 4.09(b)(13) at the time the original Lien became a Permitted
Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal or
replacement;
(38)Liens on property or assets of a Non-Guarantor Subsidiary in existence at the
time it becomes a Guarantor; provided such Liens were not incurred in contemplation of
Guaranteeing the Obligations under the Notes;
(39)Liens (if any) on cash deposits of the Issuer and/or Foreign Subsidiaries
subject to Cash Pooling Arrangements or otherwise over bank accounts of the Issuer and/or
Foreign Subsidiaries maintained as part of any Cash Pooling Arrangements, in each case
securing liabilities for Cash Management Obligations and/or obligations under agreements
relating to Cash Pooling Arrangements of the Issuer and/or Foreign Subsidiaries
participating in such Cash Pooling Arrangements, incurred in the ordinary course of
business, consistent with past practice; provided proceeds of such Cash Management
Obligations or other obligations under agreements relating to Cash Pooling Arrangements
may not be used to finance restructuring activities;
(40)other Liens securing Indebtedness Incurred, (i) in an aggregate principal
amount for the Issuer and its Restricted Subsidiaries not exceeding at the time such Lien is
created or assumed the greater of (x) $125.0 million and (y) 62.5% of Consolidated
EBITDA and (ii) pursuant to Section 4.09(b)(5) in an aggregate principal amount not
exceeding $125.0 million; or
(41)Liens (i) in respect of Indebtedness specified in clause (ii) of the definition of
“Junior Indebtedness” of the Issuer or any Guarantor; provided that the Senior Secured Net
Leverage Ratio, on a pro forma basis after giving effect thereto, does not exceed 5.00 to 1.00
and (ii) in respect of Indebtedness secured (x) on a pari passu basis on the Fixed Asset
Collateral or (y) on a pari passu basis or senior basis on the ABL Collateral; provided that
the First Lien Senior Secured Net Leverage Ratio, on a pro forma basis after giving effect
thereto, does not exceed 4.40 to 1.00;
provided that (i) any Liens on the Collateral incurred pursuant to clauses (40) and (41)(ii) of this
Section 4.13(b) shall be pari passu or junior to the Liens on the Fixed Asset Collateral securing the
Notes, and (x) if such Liens are pari passu with the Liens on the Collateral securing the Notes, the
representative of the obligations secured thereby shall execute the Intercreditor Agreement, as Fixed
Asset Debt, and a customary first lien intercreditor agreement that is substantially similar to the
Intercreditor Agreement (except for the priority of Liens), (y) if such Liens are secured on the
Collateral on a junior basis to the Liens on the Collateral securing the Notes, the representative of
the obligations secured thereby shall enter into a customary junior lien intercreditor agreement that
is substantially similar to the Intercreditor Agreement (except for the priority of Liens), and (z) in
the case of any Liens on Collateral incurred pursuant to clauses (40) and (41)(ii) of this Section
4.13(b) that is secured on a senior basis to the Liens on the ABL Collateral securing the Notes, such
Liens shall be junior to the Liens on the Fixed Asset Collateral securing the Notes and shall be
subject to the Intercreditor Agreement, with the same priority as the ABL Debt, or another
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intercreditor agreement that is substantially similar thereto; (ii) any Liens on the Collateral incurred
pursuant to clause (41)(i) above shall be junior to the Liens on the Fixed Asset Collateral securing
the First Lien Notes, and the representative of the obligations secured thereby shall enter into a
customary junior lien intercreditor agreement that is substantially similar to the Intercreditor
Agreement (except for the priority of Liens); and (iii) in the case of any Liens described in
clause (5) of this Section 4.13(b) that secure Indebtedness incurred pursuant to Section 4.09(b)(1),
such Liens shall be junior to the Liens on the Fixed Asset Collateral securing the Notes and shall be
subject to the Intercreditor Agreement, with the same priority as the ABL Debt, or another
intercreditor agreement that is substantially similar thereto.
(c)Additionally, such permitted Secured Debt includes any extension, renewal
or refunding, in whole or in part, of any Secured Debt permitted at the time of the original
incurrence thereof; provided that the Lien securing the extended, renewed or refunded Secured Debt
is limited to all or part of the same property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original Lien (plus improvements,
additions and accessions to such property or proceeds, distributions or products thereof).
(d)Any Lien created for the benefit of the Holders pursuant to this Section 4.13
shall provide by its terms that such Lien shall be unconditionally and automatically released and
discharged upon (i) the release and discharge of the initial Lien that gave rise to the obligation to
secure the Notes, (ii) in the case of any such Lien in favor of any Note Guarantee, the termination
and discharge of such Note Guarantee in accordance with the terms of this Indenture or (iii) any
sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of
the assets of the Issuer that is governed by the provisions of Article V) to any Person not an
Affiliate of the Issuer of the property or assets secured by such Lien, or of all of the Capital Stock
held by the Issuer or any of its Restricted Subsidiaries in, or all or substantially all of the assets of,
any Restricted Subsidiary creating such Lien.
(e)For purposes of determining compliance with this Section 4.13, a Lien
securing an item of Indebtedness need not be permitted solely by one category of Permitted Lien but
may be permitted in part under any combination thereof and of any other available exemption, and
if a Permitted Lien meets the criteria or more than one of the exceptions described in clauses (1)
through (41) of Section 4.13(b), the Issuer may, in its sole discretion, classify or reclassify the
Permitted Lien (or any portion thereof) in any manner that complies with this Section 4.13. In
addition, in the event that a portion of Indebtedness secured by a Lien that is incurred after the Issue
Date could be classified as secured in part pursuant to clause (41) of Section 4.13(b) (after giving
effect to the Incurrence of such portion of Indebtedness), the Issuer, in its sole discretion, may
classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been
secured pursuant to clause (41) of Section 4.13(b) above and thereafter the remainder of the
Indebtedness as having been secured pursuant to one or more of the other clauses of Section 4.13(b)
above; provided, however, that any Liens Incurred to secure obligations in respect of the ABL
Credit Facility Incurred pursuant to Section 4.09(b)(1) shall be deemed secured under clause (5) of
Section 4.13(b) and cannot be reclassified.
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Section 4.14Limitation on Activities of Parent and Holdings.
(a)Holdings shall not, and the Issuer shall direct Parent not to, conduct, transact
or otherwise engage in any material business or operations; provided that the following shall be
permitted in any event:
(1)its ownership of the Capital Stock of Holdings, the Issuer and the Restricted
Subsidiaries, as applicable;
(2)the performance of its obligations with respect to this Indenture, the Notes,
the Notes Security Documents, the ABL Credit Facility, any documentation relating to any
permitted Refinancing of the foregoing or documentation relating to the Indebtedness
otherwise permitted by this Section 4.14 and the Guarantees permitted by clause (5) of this
Section 4.14(a);
(3)the consummation of the Refinancing Transactions;
(4)the performing of activities (including, without limitation, cash management
activities) and the entry into documentation with respect thereto, in each case, permitted by
this Indenture for Parent or Holdings, as applicable, to enter into and perform;
(5)the payment of dividends and distributions (and other activities in lieu thereof
permitted by this Indenture), the making of contributions to the capital of its Subsidiaries
and Guarantees of Indebtedness permitted to be incurred hereunder by Parent, the Issuer or
any of the Restricted Subsidiaries and the Guarantees of other obligations not constituting
Indebtedness;
(6)the maintenance of its legal existence (including the ability to incur fees,
costs and expenses relating to such maintenance and performance of activities relating to its
officers, directors, managers and employees and those of its Subsidiaries);
(7)the performing of activities in preparation for and consummating any public
offering of its common stock or any other issuance or sale of its Capital Stock (other than
Disqualified Stock);
(8)the participation in tax, accounting and other administrative matters,
including compliance with applicable laws and legal, tax and accounting matters related
thereto and activities relating to its officers, directors, managers and employees;
(9)the holding of any cash and Cash Equivalents (but not operating any
property);
(10)the entry into and performance of its obligations with respect to contracts and
other arrangements, including the providing of indemnification to officers, managers,
directors and employees; and
(11)any activities incidental to the foregoing.
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(b)Holdings shall not, and the Issuer shall direct Parent not to, create, incur,
assume or suffer to exist any Lien on any Capital Stock of Holdings, the Issuer or any Restricted
Subsidiary, as applicable, (other than Liens pursuant to any Notes Document or ABL Document,
non-consensual Liens arising solely by operation of law and Liens pursuant to documentation
relating to other secured Indebtedness permitted to be incurred and secured hereunder and any
Permitted Liens) and shall not incur any Indebtedness (other than Guarantees permitted above and
liabilities imposed by law, including tax liabilities).
Section 4.15Additional Note Guarantees.
(a)If, on or after the Issue Date, any of the Issuer’s Wholly Owned Subsidiaries
that is a Domestic Subsidiary Incurs or guarantees (x) any ABL Debt or (y) any loans or capital
markets Indebtedness in excess of $50.0 million (collectively, clauses (x) and (y), “Certain Other
Indebtedness”), then such Subsidiary (other than a Subsidiary Guarantor) shall become a Guarantor
and execute a supplemental indenture substantially in the form of Exhibit G hereto within 20
Business Days of such Incurrence or guarantee; provided that Excluded Subsidiaries shall not be
Guarantors that provide Note Guarantees.
(b)Each Person that is a Domestic Subsidiary that becomes a Guarantor after the
Issue Date shall also become party to the applicable First Lien Notes Security Documents pursuant
to the terms of this Indenture and shall as promptly as practicable, but in any event, within 90 days
of the acquisition or formation of such entity, execute and deliver such security instruments,
financing statements, mortgages, deeds of trust (in substantially the same form as those executed
and delivered with respect to the Collateral on the Issue Date as may be necessary to vest in the
Collateral Agent a perfected first-priority security interest (subject to Permitted Liens and priority
Liens with respect to the ABL Collateral in favor of the ABL Collateral Agent)) in properties and
assets that constitute Collateral, as security for such Guarantor’s Note Guarantee and as may be
necessary to have such property or asset added to the Collateral as required under the First Lien
Notes Security Documents and this Indenture, and thereupon all provision of this Indenture relating
to the Collateral shall be deemed to relate to such properties and assets to the same extent and with
the same force and effect.
Section 4.16Reports to Holders.
(a)Whether or not the Issuer is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, so long as any Notes are outstanding hereunder, the Issuer shall
furnish to the Trustee and Holders thereof the following:
(1)all quarterly and annual financial statements of the Issuer that would be
required to be filed with the Commission on Forms 10-Q and 10-K, including a
“Management’s Discussion and Analysis of Financial Condition and Results of Operations”
that describes the financial condition and results of operations of the Issuer and its
consolidated Subsidiaries and, with respect to the annual information only, a report thereon
by the Issuer’s certified independent accountants; and
(2)all current reports required to be filed with the Commission on Form 8-K
under Items 1.01, 1.02, 1.03, 2.01, 2.02, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02 (other than
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with respect to information otherwise required or contemplated by Item 402 of Regulation S-
K) as in effect on the Issue Date if the Issuer were required to file such reports; provided,
however, that no such current report will be required to include as an exhibit, or to include a
summary of the terms of, any employment or compensatory arrangement agreement, plan or
understanding between the Issuer (or any of its Subsidiaries) and any director, manager or
executive officer, of the Issuer (or any of its Subsidiaries);
in each case, within the time periods specified in the Commission’s rules and regulations (and,
during any period in which the Issuer is not required to file reports with the Commission, within the
time periods specified in the Commission’s rules and regulations applicable to a “non-accelerated
filer”); provided, however, that (i) in no event shall such reports be required to comply with
Rule 3-10 of Regulation S-X promulgated by the Commission or contain separate financial
statements for the Issuer, the Guarantors or other Subsidiaries the shares of which are pledged to
secure the Notes or any Guarantee that would be required under(a) Section 3-09 of Regulation S-X,
(b) Section 3-10 of Regulation S-X or (c) Section 3-16 of Regulation S-X, respectively,
promulgated by the Commission.
(b)The Issuer shall make all such information available to the Trustee and the
Holders, in each case, by posting such information on its website, on Intralinks or any comparable
password-protected online data system which will require a confidentiality acknowledgment. In
addition, the Issuer shall, for so long as any Notes remain outstanding, furnish to the Holders of
such Notes and to securities analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes
are not freely transferable under the Securities Act.
(c)Notwithstanding the foregoing, Issuer may satisfy its obligations in this
Section 4.16 with respect to financial information relating to the Issuer by furnishing financial
information relating to any Parent Entity; provided that if such Parent Entity has any material assets
other than its direct or indirect Equity Interests of the Issuer, the same is accompanied by selected
financial metrics, which may be unaudited, that show the differences (in the Issuer’s sole discretion)
between the information relating to such Parent Entity, on the one hand, and the information
relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(d)The Issuer will be deemed to have furnished the reports referred to in clauses
(1) and (2) of Section 4.16(a) if the Issuer or any Parent Entity has filed reports containing such
information (or any such information of a Parent Entity in accordance with the immediately
preceding paragraph) with the Commission. The terms of this Indenture shall not impose any duty
on the Issuer under the Sarbanes-Oxley Act of 2002 and the related Commission rules that would
not otherwise be applicable to it.
(e)At any time that any of the Issuer’s Subsidiaries are Unrestricted
Subsidiaries, then the quarterly and annual financial information required by clauses (1) and (2) of
Section 4.16(a) will include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, or in “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” of the financial condition and results of operations of the
Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations
of the Unrestricted Subsidiaries of the Issuer.
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(f)The Trustee shall have no duty to review or analyze reports delivered to it.
Delivery of such reports and information to the Trustee shall be for informational purposes only,
and the Trustee’s receipt of them shall not constitute actual or constructive notice or knowledge of
any information contained therein or determinable from information contained therein (including
the Issuer’s compliance with any of its covenants under this Indenture as to which the Trustee is
entitled to rely exclusively on an Officer’s Certificate). The Trustee shall not be obliged to monitor
or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with
respect to any reports or other documents filed with the SEC or any website under this Indenture.
(g)Notwithstanding anything herein to the contrary, the Issuer will not be
deemed to have failed to comply with any of its obligations under this Section 4.16 for purposes of
Section 6.01(4) until 180 days after the date any report hereunder is due.
Section 4.17Suspension of Covenants.
(a)If on any date following the Issue Date (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 described in the foregoing clauses (i) and (ii) being
collectively referred to as a “Covenant Suspension Event”), then beginning on such date, the Issuer
and its Restricted Subsidiaries will not be subject to Sections 4.08 (but only to the extent related to
properties or assets of the Issuer, its Restricted Subsidiaries and Holdings that do not constitute
Collateral), 4.09, 4.10, 4.11, 4.12, 4.15 and 5.01(a)(3) hereof (collectively, the “Suspended
Covenants”).
(b)Upon the occurrence of a Covenant Suspension Event (the date of such
occurrence, the “Suspension Date”), the amount of Excess Proceeds from any Asset Disposition
shall be reset at zero. In the event that the Issuer and its Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the foregoing, 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
Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants
with respect to future events. The period of time between (and including) the Suspension Date and
the Reversion Date (but excluding the Reversion Date) is referred to in this description as the
“Suspension Period.”
(c)In the event of any such reinstatement, no action taken or omitted to be taken
by the Issuer or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a
Default or Event of Default with respect to Notes. On the Reversion Date, all Indebtedness Incurred
during the Suspension Period will be classified to have been Incurred pursuant to Section
4.09(b)(4). With respect to Restricted Payments made on or after the Reversion Date, the amount of
Restricted Payments made will be calculated as though Section 4.10 had been in effect prior to, but
not during, the Suspension Period. In addition, for purposes of Section 4.12, all agreements and
arrangements entered into by the Issuer or any Restricted Subsidiary with an Affiliate of Holdings
during the Suspension Period prior to such Reversion Date will be deemed to have been entered
pursuant to Section 4.12(b)(8), and for purposes of Section 4.11, all contracts entered into during
the Suspension Period prior to such Reversion Date that contain any of the restrictions contemplated
by such covenant will be deemed to have been entered pursuant to clause (1)(A) of the first
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paragraph of Section 4.11. During any Suspension Period, the Board of Directors may not
designate any of the Issuer’s Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture.
(d)In addition, notwithstanding the foregoing, the continued existence after any
reinstitution of the foregoing covenants of facts and circumstances or obligations arising from
transactions that occurred during the Suspension Period shall not constitute a breach of any
covenant set forth in this Indenture or cause a Default or an Event of Default thereunder. Following
a Reversion Date, the Issuer and its Subsidiaries will be permitted, without causing a Default or
Event of Default, to honor, comply with or otherwise perform any contractual commitments or
obligations arising during the Suspension Period and to consummate the transactions thereby;
provided that such contractual commitments or obligations were entered into during the Suspension
Period and not in contemplation of a reversion of the Suspended Covenants; provided further that,
to the extent any such commitment or obligation results in the making of a Restricted Payment, such
Restricted Payment shall be made under the Restricted Payments Basket or under Section 4.10(b)
and, if not permitted by any such provisions, such Restricted Payment shall be deemed permitted
under the Restricted Payments Basket and shall be deducted for purposes of calculating the amount
pursuant to the Restricted Payments Basket (which may not be less than zero).
(e)Upon the Reversion Date, the obligations to grant Note Guarantees pursuant
to Section 4.15 will be reinstated (and the Reversion Date will be deemed to be the date on which
any Subsidiary was acquired or created during the Suspension Period).
(f)The Issuer, in an Officer’s Certificate, shall provide the Trustee notice of any
Suspension Date or Reversion Date. The Trustee will have no obligation to (i) independently
determine or verify if such events have occurred, (ii) make any determination regarding the impact
of actions taken during the Suspension Period on the Issuer’s future compliance with their
covenants or (iii) notify the Holders of a Suspension Date or Reversion Date. The Trustee may
deliver a copy of any such Officer’s Certificate to the Holders upon request.
ARTICLE V.
SUCCESSOR COMPANY
Section 5.01Merger, Consolidation or Sale of Assets.
(a)(i) The Issuer shall not consolidate or merge with or into any other Person or
Transfer all or substantially all of the properties or assets of the Issuer and its Restricted
Subsidiaries, taken as a whole, and (ii) the Issuer shall not permit any of its Restricted Subsidiaries
to, in a single transaction or a series of related transactions, Transfer all or substantially all of the
properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in each case, to,
another Person unless:
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(1)the Issuer shall be the continuing corporation, or the successor shall be a
corporation, limited liability company or partnership organized and existing under the laws
of the United States or a state thereof, the District of Columbia, or any territory thereof (the
“Successor Company”), and the Successor Company expressly assumes by a supplemental
indenture or amendment of the relevant documents the Issuer’s obligations under the Notes
and this Indenture;
(2)after giving effect to the transaction, no Default or Event of Default shall
have occurred or be continuing;
(3)immediately after giving pro forma effect to such transaction, (a) Issuer or the
Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to
the first proviso in Section 4.09(a), or (b) the Consolidated Fixed Charge Coverage Ratio for
the Issuer or the Successor Company would not be less than immediately prior to such
transaction;
(4)each Subsidiary Guarantor, if any, shall have by supplemental indenture
confirmed that its Guarantee shall apply to each such Person’s Obligation under this
Indenture and the Notes;
(5)to the extent any property or assets of the Successor Company are property or
assets of the type that would constitute Collateral under the First Lien Notes Security
Documents, the Successor Company will take such action as may be reasonably necessary or
required to cause such property and assets to be made subject to a Lien securing the Notes
pursuant to this Indenture and the First Lien Notes Security Documents in the manner and to
the extent required by this Indenture or any of the First Lien Notes Security Documents and
shall take all reasonably necessary action so that such Lien is perfected, preserved and
protected to the extent required by this Indenture and the First Lien Notes Security
Documents;
(6)the Collateral owned by or sold, assigned, conveyed, leased, transferred or
otherwise disposed of to the Successor Company shall (a) continue to constitute Collateral
under this Indenture and the First Lien Notes Security Documents, (b) be subject to the Lien
in favor of the Collateral Agent for the benefit of the Trustee and the Holders and (c) not be
subject to any Lien other than Permitted Liens or other Liens as permitted under Section
4.13;
(7)the Successor Company shall become a party to the First Lien Notes Security
Documents; and
(8)the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
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(b)This Section 5.01 shall not apply to any Transfer of assets (i) between or
among the Issuer and any one or more of its Restricted Subsidiaries that are Guarantors, (ii)
between or among any one or more of the Issuer’s Restricted Subsidiaries that are Guarantors or
(iii) between or among any one or more of the Issuer’s Restricted Subsidiaries that are not
Guarantors. Clause (2) of Section 5.01(a) (and the requirement to deliver an Officer’s Certificate
and an Opinion of Counsel) shall not apply to (1) any merger or consolidation of the Issuer with or
into, or Transfer of all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken
as a whole, to one of its Restricted Subsidiaries that is a Guarantor for any purpose or (2) any
merger or consolidation of the Issuer or a Restricted Subsidiary solely for the purpose of
reincorporating the Issuer or a Restricted Subsidiary into another state of the United States, the
District of Columbia or any territory of the United States.
Section 5.02Successor Person Substituted.
Upon any consolidation, combination or merger of the Issuer, or any Transfer of all
or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in
accordance with the foregoing provisions of Section 5.01, in which the Issuer is not the continuing
obligor under the Notes, the surviving entity formed by such consolidation or into which the Issuer
is merged or to which such Transfer of all or substantially all of the assets of the Issuer and its
Restricted Subsidiaries, taken as a whole, is made will succeed to, and be substituted for, and may
exercise every right and power of the Issuer under this Indenture, the Notes and the First Lien Notes
Security Documents with the same effect as if such surviving entity had been named therein as the
Issuer and, the Issuer and all of the Guarantors will be released from the obligation to pay the
principal of and interest on such Notes or in respect of its related Note Guarantee, as the case may
be, and all of the Issuer’s or such Guarantor’s other obligations and covenants under such Notes,
this Indenture and its related Note Guarantee, if applicable.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.01Events of Default.
Each of the following constitutes an “Event of Default” with respect to the Notes:
(1)default for 30 consecutive days in the payment when due of interest with
respect to the Notes;
(2)default in payment when due of principal or premium, if any, on the Notes on
the Maturity Date, upon redemption or otherwise;
(3)failure by the Issuer or any Restricted Subsidiary after receipt of notice from
the Trustee or Holders of at least 25% in aggregate principal amount of the Notes then
outstanding under this Indenture (with a copy to the Trustee) to comply with any of the
provisions under Section 4.07 or Section 5.01;
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(4)failure by the Issuer or any Restricted Subsidiary of the Issuer for 60
consecutive days after receipt of notice from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding under this Indenture (with a copy
to the Trustee) to comply with any covenant or agreement contained in this Indenture (other
than the covenants and agreements specified in clauses (1) through (3) of this Section 6.01);
(5)default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money
borrowed of the Issuer or any of its Restricted Subsidiaries or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries (other than Indebtedness owed
to the Issuer or a Restricted Subsidiary), whether such Indebtedness or Guarantee now exists
or is created after the Issue Date, which default (a) is caused by a failure to pay when due at
final Stated Maturity (giving effect to any grace period related thereto) principal of such
Indebtedness (a “Payment Default”) or (b) results in the acceleration of such Indebtedness
prior to its Stated Maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any such Indebtedness under which
there has been a Payment Default or the maturity of which has been so accelerated,
aggregates $100.0 million or more;
(6)failure by the Issuer or any Restricted Subsidiary that is a Significant
Subsidiary or group of Subsidiaries of the Issuer that, together, would constitute a
Significant Subsidiary to pay final and non-appealable judgments (net of any amounts
covered by insurance and as to which such insurer has not denied responsibility or coverage
in writing) aggregating $100.0 million or more, which judgments are not paid, discharged,
bonded, stayed or waived within 60 days after such judgment becomes final, and in the
event such judgment is covered in full by insurance, an enforcement proceeding has been
commenced by any creditor upon such judgment or decree which is not promptly stayed;
(7)(A) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (i) is for relief against the Issuer, a Guarantor that is a Significant
Subsidiary or any Restricted Subsidiary that is a Significant Subsidiary or group of
Guarantors and Restricted Subsidiaries of the Issuer that, taken together, would constitute a
Significant Subsidiary in an involuntary case or proceeding in which the Issuer, a Guarantor
that is a Significant Subsidiary or any Restricted Subsidiary that is a Significant Subsidiary
or group of Guarantors and Restricted Subsidiaries of the Issuer that, taken together, would
constitute a Significant Subsidiary is to be adjudicated bankrupt or insolvent, (ii) appoints a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Issuer, a Guarantor that is a Significant Subsidiary or any Restricted Subsidiary that is a
Significant Subsidiary or group of Guarantors and Restricted Subsidiaries of the Issuer that,
taken together, would constitute a Significant Subsidiary, or for all or substantially all of the
property of the Issuer, a Guarantor that is a Significant Subsidiary or any Restricted
Subsidiary that is a Significant Subsidiary or group of Guarantors and Subsidiaries of the
Issuer that, taken together, would constitute a Significant Subsidiary, or (iii) orders the
winding up or liquidation of the Issuer, a Guarantor that is a Significant Subsidiary or any
Restricted Subsidiary that is a Significant Subsidiary or group of Guarantors and Restricted
Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary, and
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in each of clauses (A)(i), (A)(ii) and (A)(iii), such order or decree remains unstayed and in
effect for a period of 60 consecutive days; or (B) the Issuer, a Guarantor that is a Significant
Subsidiary or any Restricted Subsidiary that is a Significant Subsidiary or group of
Guarantors and Restricted Subsidiaries of the Issuer that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law (i)
commences a voluntary case to be adjudicated bankrupt or insolvent or consents to the entry
of an order for relief against it in an involuntary case, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer, such Guarantor or any such Restricted Subsidiary or such group
of Guarantors and Restricted Subsidiaries or for all or substantially all of its property, (iii)
effects any general assignment for the benefit of its creditors or (iv) generally is not paying
its debts as they become due;
(8)any Note Guarantee of any Guarantor that is a Significant Subsidiary (or any
group of Guarantors that together would constitute a Significant Subsidiary) ceases to be in
full force and effect in all material respects (other than in accordance with the terms of such
Note Guarantee and this Indenture) or is declared null and void and unenforceable or found
to be invalid or any such Guarantor denies its liability under its Note Guarantee (other than
by reason of the satisfaction and discharge of this Indenture or the release of such Guarantor
from its Note Guarantee in accordance with the terms of this Indenture and such Note
Guarantee); and
(9)other than by reason of the satisfaction in full of all obligations under this
Indenture and discharge of this Indenture with respect to the Notes or the release of such
Collateral with respect to the Notes in accordance with the terms of this Indenture and the
First Lien Notes Security Documents,
(a)in the case of any security interest with respect to a material portion of the
Collateral, such security interest under the First Lien Notes Security Documents
shall, at any time, cease to be a valid and perfected security interest or shall be
declared invalid or unenforceable, default by the Issuer or any Guarantor in the
performance of the First Lien Notes Security Documents that adversely affects in any
material respect the enforceability, validity, perfection or priority of such Liens on a
material portion of the Collateral, or the determination in a judicial proceeding that
the First Lien Notes Security Documents are unenforceable or invalid against the
Issuer or any Guarantor party thereto for any reason with respect to a material
portion of the Collateral, and any such default continues for 30 days after notice of
such default shall have been given to the Issuer by the Trustee or the Holders of at
least 25% of the principal amount of the then outstanding Notes issued under this
Indenture, except to the extent that any such default (A) results from the failure of
the Collateral Agent to maintain possession of certificates, promissory notes or other
instruments actually delivered to it representing securities pledged under the First
Lien Notes Security Documents or (B) to the extent relating to Collateral consisting
of real property, is covered by a title insurance policy with respect to such real
property and such insurer has not denied or failed to acknowledge coverage; or
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(b)the Issuer or any Guarantor shall assert in writing that any security interest
under any First Lien Notes Security Document is invalid or unenforceable.
Section 6.02Acceleration of Maturity; Rescission.
If any Event of Default under this Indenture occurs and is continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding,
may declare the principal of, premium, if any, and accrued but unpaid interest, on all of the
outstanding Notes to be due and payable by notice in writing to the Issuer and the Trustee, in the
case of notice by Holders, specifying the respective Event of Default and that it is a “notice of
acceleration” and the same shall become immediately due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising under Section 6.01(7) with respect to the Issuer,
the principal of, premium, if any, and accrued but unpaid interest, on all of the outstanding Notes
shall become due and payable without further action or notice.
If the Notes are accelerated or otherwise become due prior to the Maturity Date, in
each case, as a result of an Event of Default (including, but not limited to, an Event of Default
specified in Section 6.01(7) (including the acceleration of any claims by operation of law)), the
amount that shall then be due and payable in respect of the Notes shall equal the amount which
would be due on an optional redemption of the Notes, in each case, determined as of the date of
such acceleration, as if the Notes had been optionally redeemed as of the date of such acceleration
(i.e., principal plus the Make-Whole Premium if prior to March 1, 2028, and thereafter principal at
the redemption price specified under paragraph 5 of the Notes as of such date) and, in each case,
accrued and unpaid interest to, but excluding, the date of redemption of such Notes (or payment in
the case of a bankruptcy or insolvency event). The amount in excess of par represented by such
redemption price, the “Redemption Premium” and, together with any Make-Whole Premium, the
“premium”.
Without limiting the generality of the foregoing, it is understood and agreed that if
the Notes are accelerated or otherwise become due prior to the Maturity Date, in each case, as a
result of an Event of Default (including, but not limited to, an Event of Default specified in Section
6.01(7) (including the acceleration of any claims by operation of law)), the Make-Whole Premium
or the Redemption Premium, as applicable, shall also be due and payable as though the Notes had
been optionally redeemed on the date of such acceleration and shall constitute part of the
Obligations with respect to the Notes in view of the impracticability and extreme difficulty of
ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of
each Holder’s lost profits as a result thereof. If the Make-Whole Premium or the Redemption
Premium, as applicable, becomes due and payable, it shall be deemed to be principal of the Notes
and interest shall accrue on the full principal amount of the Notes (including the Make-Whole
Premium or the Redemption Premium, as applicable) from and after the applicable triggering event,
including in connection with an Event of Default specified in Section 6.01(7). Any premium
payable pursuant to this paragraph and the immediately preceding paragraph shall be presumed to
be equal to the liquidated damages sustained by each Holder as the result of the early acceleration or
redemption of the Notes and the Issuer and each Guarantor agrees that it is a reasonable estimate
under the circumstances currently existing of such Holder’s actual damages. The premium shall also
be payable in the event the Notes and/or this Indenture are satisfied, released or discharged through
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foreclosure, whether by power of judicial proceeding, deed in lieu of foreclosure or by any other
means and/or upon the satisfaction, release, payment, restructuring, reorganization, replacement,
reinstatement or compromise of the Notes in any insolvency or liquidation proceeding. THE
ISSUER AND EACH GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT
THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE
STATUTE OR LAW, RULE OR REGULATION THAT PROHIBITS OR MAY PROHIBIT THE
COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH
ACCELERATION. The Issuer and each Guarantor expressly agrees (to the fullest extent they may
lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s length transaction
between sophisticated business entities ably represented by counsel; (B) the premium shall be
payable notwithstanding the then prevailing market rates at the time of any acceleration or such
payment is made; (C) there has been a course of conduct between the Holders, on the one hand, and
the Issuer and the Guarantors, on the other hand, giving specific consideration in this transaction for
such agreement to pay the premium; and (D) the Issuer and each Guarantor shall be estopped
hereafter from claiming differently than as agreed to in this paragraph. The Issuer and each
Guarantor expressly acknowledges that its agreement to pay the premium to the Holders as herein
described is a material inducement to the Holders to purchase the Notes.
In the event of any Event of Default specified in Section 6.01(5), such Event of
Default and all consequences thereof (excluding any resulting Payment Default, other than as a
result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders, if within 30 days after such Event of Default
arose:
(1)the Indebtedness or Guarantee that is the basis for such Event of Default has
been discharged; or
(2)Holders thereof have rescinded or waived the acceleration, notice or action
(as the case may be) giving rise to such Event of Default; or
(3)the Payment Default that is the basis for such Event of Default has been
cured.
In the event of a declaration of acceleration with respect to the Notes, the Holders of
a majority in aggregate principal amount of the then outstanding Notes may, by written notice to the
Issuer and the Trustee, on behalf of all of the Holders, rescind and annul such acceleration and its
consequences, so long as such rescission and annulment would not conflict with any judgment of a
court of competent jurisdiction if:
(1)all Events of Default, other than nonpayment of principal, premium, if any, or
interest that has become due solely because of the acceleration, have been cured or waived;
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(2)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
(3) the Issuer has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its reasonable expenses, disbursements, indemnities and advances.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 6.03Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any,
and interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture and may take any necessary action requested by the Holders of a majority of the principal
amount outstanding of the Notes to settle, compromise, adjust or otherwise conclude any
proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Noteholder in exercising any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of Default. Except as
otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in Section 2.08, no remedy herein conferred upon or reserved to the Trustee or to the
Holders is exclusive of any other remedy. All available remedies are cumulative to the extent
permitted by law.
Section 6.04Waiver of Existing Defaults and Events of Default.
(a)Subject to Sections 2.10 and 6.08 and the terms of the First Lien Notes
Security Documents, the Holders of a majority in principal amount of the Notes then outstanding
shall have the right to waive any past and existing Default or Event of Default and its consequences
under this Indenture, except a Default in the payment of the principal of, or interest or premium, if
any, on any Note held by a non-consenting Holder as specified in clauses (1) and (2) of Section 6.01
or in respect of a covenant or a provision which cannot be modified or amended without the consent
of each Holder as provided for in Section 8.02 (which shall require the consent of all Holders);
provided that, subject to Section 6.02, the Holders of a majority in aggregate principal amount of
the then outstanding Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. In case of any such waiver, the Issuer, the
Trustee and the Holders shall be restored to their former positions and rights hereunder and under
the Notes, respectively.
(b)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 Event of Default or impair
any right consequent thereto.
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Section 6.05Control by Majority.
Subject to Sections 2.10, 6.06 and 7.01 of this Indenture and the Intercreditor
Agreement, the Holders of a majority in aggregate principal amount of the outstanding Notes have
the right to direct the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee or the Collateral Agent or exercising any trust or power conferred
on the Trustee or the Collateral Agent by this Indenture or the First Lien Notes Security Documents.
The Trustee or the Collateral Agent, however, may refuse to follow any direction that conflicts with
law or this Indenture or the First Lien Notes Security Documents or that the Trustee or the
Collateral Agent determines may be unduly prejudicial to the rights of another Holder not taking
part in such direction, and the Trustee or the Collateral Agent shall have the right to decline to
follow any such direction (it being understood that the Trustee or the Collateral Agent does not have
an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such
Holders) if the Trustee or the Collateral Agent, being advised by counsel, determines that the action
so directed may not lawfully be taken or if the Trustee or the Collateral Agent in good faith shall, by
a Responsible Officer, determine that the proceedings so directed may involve it in personal
liability; provided that the Trustee or the Collateral Agent may take any other action deemed proper
by the Trustee or the Collateral Agent which is not inconsistent with such direction. In the event the
Trustee or the Collateral Agent takes any action or follows any direction pursuant to this Indenture
or the First Lien Notes Security Documents, the Trustee or the Collateral Agent shall be entitled to
indemnification reasonably satisfactory to it against any cost, liability or expense that might be
caused by taking such action or following such direction.
Without such direction and indemnification as described above, neither the Trustee
nor the Collateral Agent will be obligated to act upon directions purported to be delivered to it such
Holders of a majority in aggregate principal amount of the outstanding Notes, to foreclose upon or
otherwise enforce any Lien or to take any other action whatsoever with regard to any or all of the
First Lien Notes Security Documents, the Liens created thereby or the Collateral.
Section 6.06Limitation on Suits.
Subject to Section 6.08, no Holder shall have any right to institute any proceeding
with respect to this Indenture, the First Lien Notes Security Documents or the Notes or for any
remedy hereunder or thereunder, unless:
(1)such Holder has previously given the Trustee or the Collateral Agent written
notice of a continuing Event of Default;
(2)the Holders of at least 25% in principal amount of the Notes then outstanding
have made a written request to the Trustee or the Collateral Agent to pursue the remedy;
(3)such Holder or Holders have offered the Trustee or Collateral Agent security
or indemnity satisfactory to the Trustee or the Collateral Agent against any costs, liability or
expense;
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(4)the Trustee or the Collateral Agent has not complied with the request within
60 days after receipt of the request and the offer of security or indemnity against any cost,
liability or expense that might be caused by complying with such request; and
(5)during such 60-day period, the Holders of a majority in aggregate principal
amount of the outstanding Notes have not given the Trustee or the Collateral Agent a
direction that is inconsistent with the request.
A Noteholder may not use any provision of this Indenture to disturb or prejudice the
rights of another Noteholder or to obtain a preference or priority over another Noteholder.
Section 6.07No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, manager, member, partner,
incorporator or stockholder of the Issuer or of any Restricted Subsidiary of the Issuer or any Parent
Entity of the Issuer (other than the Issuer in respect of the Notes and each Guarantor in respect of its
Guarantee), as such, shall have any liability for any obligations of the Issuer or the Guarantors under
the Notes, this Indenture, the Note Guarantees, the First Lien Notes Security Documents, the
Intercreditor Agreement or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver
may not be effective to waive liabilities under the federal securities laws.
Section 6.08Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the contractual right of any
Holder to bring suit to enforce the payment, of principal, premium, if any, and interest, if any, on its
Note on or after the respective due dates expressed or provided for in such Note shall not be
amended without the consent of such Holder.
Section 6.09Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express trust against the
Issuer or any Guarantor (or any other obligor on the Notes) for the whole amount of unpaid
principal and accrued interest remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue installments of interest, in
each case, at the rate set forth in the Notes, and such further amounts 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.
Section 6.10Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and 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 any other amounts due the Trustee under Section 7.07) and the Noteholders allowed in
any judicial proceedings relative to the Issuer or any Guarantor (or any other obligor upon the
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Notes), its creditors or its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and expenses are not paid
out of the estate in any such proceedings and any custodian in any such judicial proceeding is
hereby authorized by each Noteholder 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 Noteholders, 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 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan or reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any such proceedings.
Section 6.11Priorities.
If the Trustee collects any money or property pursuant to this Article VI, subject to
the terms of the Intercreditor Agreement, such money or property shall be paid out or distributed in
the following order:
FIRST: to the Trustee, the Collateral Agent and any predecessor Trustee or
Collateral Agent for amounts due under Section 7.07;
SECOND: to Noteholders for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if any, and interest,
respectively; and
THIRD: to the Issuer or, to the extent the Trustee collects any amount from any
Guarantor, to such Guarantor or as a court of competent jurisdiction may direct in writing.
The Trustee may fix a record date and payment date for any payment to Noteholders
pursuant to this Section 6.11.
Section 6.12Undertaking for Costs.
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, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by the
Trustee, a suit by a Noteholder pursuant to Section 6.08 or a suit by Noteholders of more than 10%
in principal amount of the Notes then outstanding.
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ARTICLE VII.
TRUSTEE AND COLLATERAL AGENT
Section 7.01Duties of Trustee and Collateral Agent.
(a)Subject to the terms and protections of this Indenture and the First Lien Notes
Security Documents for the benefit of the Trustee and the Collateral Agent, (including but not
limited as to the provision of indemnity or security) if a Default or Event of Default actually known
to a Responsible Officer of the Trustee has occurred and is continuing, subject to the protections of
this Article VII (including, but not limited to, the provision of reasonable indemnity) the Trustee or
the Collateral Agent 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 under the circumstances
would exercise or use under the same circumstances in the conduct of his or her own affairs.
Except for an Event of Default pursuant to Section 6.01(1) or 6.01(2) (upon the
occurrence of which the Trustee if then acting as Paying Agent will be deemed to have knowledge
thereof), neither the Trustee nor the Collateral Agent shall be deemed to have notice or be charged
with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee or
the Collateral Agent, as applicable, has received written notice of any event which is in fact such a
Default or Event of Default by the Issuer or by the Holders of at least 25% of the aggregate
principal amount of the Notes by written notice of such event sent to the Trustee or the Collateral
Agent in accordance with Section 12.02 at the Corporate Trust Office of the Trustee or the
Collateral Agent, and such notice references the Notes and this Indenture and states that it is a
notice of Default or Event of Default.
(b)The Trustee, except during the continuance of a Default or Event of Default
of which a Responsible Officer of the Trustee has actual knowledge and subject to clause (a) above,
and, at all times, the Collateral Agent:
(1)need perform only those duties that are specifically set forth in this Indenture
and the First Lien Notes Security Documents and no others, and no implied covenants or
obligations shall be read into this Indenture or the First Lien Notes Security Documents
against the Trustee and the Collateral Agent; and
(2)in the absence of gross negligence or bad faith on its part, 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 the Collateral Agent under this
Indenture and/or the First Lien Notes Security Documents and conforming to the
requirements of this Indenture and the First Lien Notes Security Documents but, in the case
of any such certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee or the Collateral Agent, as applicable, the Trustee or the
Collateral Agent, as applicable, shall be under a duty to examine the same to determine
whether or not they conform on their face to the requirements of this Indenture and the First
Lien Notes Security Documents as the case may be (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). Whenever in the
administration of this Indenture the Trustee or the Collateral Agent shall deem it desirable
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that a matter be proved or established prior to taking, suffering or omitting any action
hereunder, the Trustee or the Collateral Agent, as applicable (unless other evidence be
herein specifically prescribed), may require and, in the absence of bad faith on its part,
conclusively rely upon an Officer’s Certificate and/or an Opinion of Counsel (if this
Indenture permits or provides for such Opinion of Counsel), subject to the requirement in
the preceding sentence, if applicable.
(c)Neither the Trustee nor the Collateral Agent may be relieved from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct, except
that:
(1)This paragraph does not limit the effect of subsection (b) of this Section 7.01.
(2)Neither the Trustee nor the Collateral Agent shall be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee or
the Collateral Agent was negligent in ascertaining the pertinent facts.
(3)Neither the Trustee nor the Collateral Agent shall be liable with respect to
any action it takes or omits to take in good faith in accordance with a direction received by it
from a majority in aggregate principal amount of the Notes outstanding pursuant to the terms
of this Indenture.
(d)Whether or not therein expressly so provided, Section 7.01 and Section 7.02
shall govern every provision of this Indenture that in any way relates to the Trustee or the Collateral
Agent, as applicable.
(e)The Trustee and the Collateral Agent will be under no obligation to exercise
any of its rights and powers under this Indenture or the First Lien Notes Security Documents unless
the Trustee has been offered security or indemnity reasonably satisfactory to it against any
expenses, loss, liability or exposure. The Trustee’s and the Collateral Agent’s fees, expenses and
indemnities (including, but in no way limited to, the fees and disbursements of agents and attorneys)
are included in the amounts guaranteed by the Note Guarantees.
(f)Neither the Trustee nor the Collateral Agent shall be liable for interest on any
money received by it except as the Trustee or the Collateral Agent, as applicable, may agree in
writing with the Issuer or any Guarantor. Money held in trust by the Trustee or the Collateral Agent
need not be segregated from other funds except to the extent required by the law.
(g)No provision of this Indenture or the First Lien Notes Security Documents
shall require the Trustee or the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its rights, powers or duties. Neither the Trustee
nor the Collateral Agent shall be required to give any bond or surety in respect of the performance
of its powers or duties hereunder.
(h)The Collateral Agent and the Trustee shall have no duty or obligation to (x) give,
execute, deliver, record, authorize, obtain or make any filings, including but not limited to any
UCC-1 or UCC continuation filings, notices, instruments, documents, agreements consents or other
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papers (y) create, grant, preserve, perfect, validate or ensure a perfected lien with the requisite
priority is granted over the applicable Collateral, including any after acquired Collateral, or (z)
ensure that any documentation delivered from time to time to create, grant, preserve, protect and
perfect the validity and priority of the security interests and Liens (including but not limited to any
real estate documentation) is in customary and/or legally satisfactory form to accomplish the
applicable documents’ intended purpose and shall have no responsibility or liability in connection
with the acts or omissions of the Company or the Guarantors in respect of the foregoing or for or
with respect to the legality, validity and enforceability of any security interest created in the
Collateral or the perfection or priority of such security interest.
(i)For the avoidance of doubt, the Collateral Agent and the Trustee shall have
no obligation to enter into any such documentation to the extent the Collateral Agent or the Trustee
shall determine, in its sole discretion, among other matters, such documentation (i) is prohibited by
applicable law, (ii) will violate the terms of any intercreditor agreement to which the Collateral
Agent or the Trustee is party, (iii) to the extent relating to any foreign Collateral will have the result
of requiring the Collateral Agent or the Trustee to register with, make filings and/or disclosures to
any foreign governmental authority or otherwise result in additional burdens to the Collateral Agent
vis a vis such foreign jurisdiction, (iv) such documentation imposes new duties or obligations on the
part of the Collateral Agent or makes the existing duties or obligations of the Collateral Agent or the
Trustee more burdensome or (v) such documentation imposes additional fees, costs, expenses or
potential liabilities on the Collateral Agent or the Trustee without appropriate indemnification
therefor being provided by the applicable Holders.
Section 7.02Rights of Trustee and Collateral Agent.
Subject to Section 7.01:
(1)The Trustee and the Collateral Agent may conclusively rely on any document
(whether in its original, facsimile or electronic (including .pdf) form) reasonably believed by
it to be genuine and to have been signed or presented by the proper person. The Trustee and
the Collateral Agent need not investigate any fact or matter stated in the document.
(2)Before the Trustee or the Collateral Agent acts or refrains from acting, it may
require and shall be entitled to receive an Officer’s Certificate or an Opinion of Counsel, or
both, which shall conform to the provisions of Section 12.05. The Trustee and the Collateral
Agent shall be protected and shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.
(3)Each of the Trustee and the Collateral Agent may act through its attorneys
and agents and shall not be responsible for the misconduct or negligence of any attorney or
agent appointed by it with due care.
(4)Neither the Trustee nor the Collateral Agent shall be liable for any action it
takes or omits to take in good faith which it reasonably believes to be authorized or within
its rights or powers; provided that the Trustee’s or the Collateral Agent’s conduct does not
constitute negligence or willful misconduct.
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(5)Each of the Trustee and the Collateral Agent may consult with counsel of its
selection, and the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(6)Notwithstanding any of the other provisions of this Indenture, the rights,
privileges, protections, immunities and benefits given to the Trustee and/or the Collateral
Agent, including, without limitation, its right to be compensated, reimbursed and
indemnified, are extended to, and shall be enforceable by, the Trustee and the Collateral
Agent in each of its capacities hereunder (including but not limited to as Registrar, Paying
Agent and Depository Custodian), and each agent, custodian and other person employed to
act hereunder.
(7)The right of the Trustee or the Collateral Agent to perform any discretionary
act enumerated in this Indenture or the First Lien Notes Security Documents shall not be
construed as a duty, and the Trustee and the Collateral Agent shall not be answerable for
other than its own negligence or willful misconduct in the performance of such act.
(8)The Trustee and the Collateral Agent may from time to time request that the
Issuer 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 and the
First Lien Notes Security Documents, which Officer’s Certificate may be signed by any
persons authorized to sign an Officer’s Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
(9)In no event shall the Trustee or the Collateral Agent 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) irrespective of whether the Trustee or the
Collateral Agent has been advised of the likelihood of such loss or damage and regardless of
the form of action.
(10)The Trustee and the Collateral Agent will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness, or other paper or document, or inquire as to the performance
by the Issuer or the Guarantors of any of their covenants in this Indenture or any of the First
Lien Notes Security Documents but the Trustee or the Collateral Agent, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit.
(11)Any request or direction of the Issuer mentioned herein shall be sufficiently
evidenced by an Issuer Order or an Officer’s Certificate, as applicable.
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Section 7.03Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may make loans to, accept deposits from, perform services for or otherwise deal with
either the Issuer or any Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. However, in the event that the Trustee acquires any conflicting interest within the
meaning of Section 310(b) of the TIA, it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may do the same with like
rights. The Trustee shall also be subject to Sections 7.10 and 7.11.
Section 7.04Disclaimer.
The recitals contained herein and in the Notes, except for the Trustee’s certificate of
authentication, shall be taken as the statements of the Issuer or the Guarantors, as the case may be,
and neither the Trustee nor the Collateral Agent assumes responsibility for their correctness. The
Trustee and the Collateral Agent shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Notes, any Note Guarantee or the First Lien Notes
Security Documents, they shall not be accountable for the Issuer’s or any Guarantor’s use of the
proceeds from the sale of Notes, they will not be responsible for the use or application of any
money received by any Paying Agent (other than itself as Paying Agent) or any money paid to the
Issuer or any Guarantor pursuant to the terms of this Indenture and they shall not be responsible for
any statement in the Notes, the Note Guarantees, this Indenture or the First Lien Notes Security
Documents other than the Trustee’s certificate of authentication. Neither the Trustee nor the
Collateral Agent shall be responsible for any statement in the Offering Memorandum or any other
document utilized by the Issuer in connection with the sale of the Notes, and shall not be
responsible for any rating on the Notes or any action or omission of any Rating Agency.
Section 7.05Notice of Defaults.
If a Default or Event of Default occurs and is continuing (which shall not be cured or
waived) and if it is known to the Trustee (pursuant to Section 7.01(a) hereof), the Trustee shall give
to each Holder a notice of the Default or Event of Default within 90 days of having received such
notice as provided in this Indenture. Except in the case of a Default or Event of Default relating to
the payment of the principal, premium, if any, or interest on any Note (including payments pursuant
to a redemption or repurchase of the Notes pursuant to the provisions of this Indenture), the Trustee
may withhold the notice if and so long as the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in good faith determines that
withholding the notice is in the interests of Holders.
Section 7.06[Reserved].
Section 7.07Compensation and Indemnity.
The Issuer and the Guarantors shall pay to the Trustee and the Collateral Agent from
time to time compensation as agreed upon for its services hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust).
The Issuer and the Guarantors shall reimburse the Trustee and the Collateral Agent upon request for
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all reasonable disbursements, expenses and advances incurred or made by it in connection with the
Trustee’s and the Collateral Agent’s duties under this Indenture, the Notes Guarantees, the First
Lien Notes Security Documents and/or any other related documents including the reasonable
compensation, disbursements and expenses of the Trustee’s and the Collateral Agent’s agents and
counsel.
The Issuer and the Guarantors, jointly and severally, shall indemnify each of the
Trustee and the Collateral Agent and its respective agents, employees, stockholders, attorneys,
directors and officers and any predecessor Trustee or Collateral Agent for, and hold each of them
harmless against, any and all loss, damage, claim, liability or expense, including without limitation
taxes (other than taxes based on the income of any such Person) and reasonable attorneys’ fees and
expenses (collectively, “Losses”) incurred by each of them in connection with the acceptance or
administration of this Indenture, the Notes Guarantees, the First Lien Notes Security Documents
and/or any other related documents or the performance of their respective duties under this
Indenture, the Notes, the Notes Guarantees, the First Lien Notes Security Documents and/or any
other related documents or the exercise of the respective rights and powers under this Indenture, the
Notes, the Note Guarantees, the First Lien Notes Security Documents and/or any other related
documents, including the reasonable costs and expenses of enforcing this Indenture (including this
Section 7.07), the Notes, the Note Guarantees, the First Lien Notes Security Documents, or any
related documents or otherwise arising under such documents and including the reasonable costs
and expenses of defending itself against any claim (whether asserted by any Holder, the Issuer, any
Guarantor or otherwise) or liability in connection with the exercise or performance of any of its
rights, powers or duties hereunder (including, without limitation, settlement costs). The Trustee or
the Collateral Agent, as applicable, shall notify the Issuer and the Guarantors in writing promptly of
any third party claim of which a Responsible Officer of the Trustee or the Collateral Agent, as
applicable has actual knowledge asserted against the Trustee or the Collateral Agent, as applicable,
for which it may seek indemnity (each, a “Third Party Claim”); provided that the failure by the
Trustee or the Collateral Agent, as applicable to so notify the Issuer and the Guarantors shall not
relieve the Issuer and Guarantors of their obligations hereunder except to the extent the Issuer and
the Guarantors are actually prejudiced thereby. Neither the Issuer nor any Guarantor need pay for
any settlement or provide any indemnification for any other Losses associated therewith to the
extent such settlement is made in connection with any Third Party Claim without its consent, which
consent shall not be unreasonably withheld or delayed. The Trustee and the Collateral Agent shall
have the right to its own counsel and the Issuer shall pay the reasonable fees and expenses of such
counsel in connection with any Third Party Claim to the extent the Trustee or the Collateral Agent,
as applicable, reasonably determines that a conflict of interest exists or is required in connection
with the performance of its duties under this Indenture.
Notwithstanding the foregoing, the Issuer and the Guarantors need not reimburse the
Trustee or the Collateral Agent for any expense or indemnify it against any loss or liability to have
been incurred by the Trustee or the Collateral Agent through its own negligence, bad faith or willful
misconduct.
To secure the payment obligations of the Issuer and the Guarantors in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected
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by the Trustee except for such money or property held in trust to pay principal of and interest on
particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture.
The obligations of the Issuer and the Guarantors under this Section 7.07 to
compensate and indemnify the Trustee, the Collateral Agent, each predecessor Trustee and
predecessor Collateral Agent and to pay or reimburse the Trustee, the Collateral Agent, each
predecessor Trustee and each predecessor Collateral Agent for expenses, disbursements and
advances shall be joint and several liabilities of the Issuer and each of the Guarantors and shall
survive the resignation or removal of the Trustee or the Collateral Agent and the satisfaction,
discharge or other termination of this Indenture, including any termination or rejection hereof under
any Bankruptcy Law.
When the Trustee or the Collateral Agent incurs expenses or renders services after an
Event of Default specified in Section 6.01 (7) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any applicable Bankruptcy
Law.
For purposes of this Section 7.07, the term “Trustee” shall include any trustee
appointed pursuant to this Article VII; provided, however, that the negligence, willful misconduct or
bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder. The
provisions of this Section 7.07 shall apply to the Collateral Agent and the Trustee in its capacity as
Paying Agent, Registrar and any other Agent under this Indenture and/or the Notes Security
Documents and shall survive the termination of this Indenture and the resignation or removal of the
Trustee and/or the Collateral Agent in any capacity.
Section 7.08Replacement of Trustee or Collateral Agent.
The Trustee or the Collateral Agent may resign at any time by so notifying the Issuer
and the Guarantors in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee or the Collateral Agent by notifying the Issuer and the removed
Trustee or Collateral Agent, as applicable, in writing and may appoint a successor Trustee or
successor Collateral Agent, as applicable, with the Issuer’s written consent, which consent shall not
be unreasonably withheld. The Issuer may remove the Trustee or the Collateral Agent at its election
if:
(1)in the case of the Trustee, the Trustee fails to comply with Section 7.10;
(2)the Trustee or the Collateral Agent, as applicable, is adjudged a bankrupt or
an insolvent or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3)a receiver or other public officer takes charge of the Trustee or its property or
the Collateral Agent or its property, as applicable; or
(4)the Trustee or the Collateral Agent, as applicable, otherwise becomes
incapable of acting.
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If the Trustee or the Collateral Agent resigns or is removed or if a vacancy exists in
the office of Trustee or the Collateral Agent for any reason, the Issuer shall promptly appoint
a successor Trustee or a successor Collateral Agent, as applicable.
If a successor Trustee or successor Collateral Agent does not take office within 30
days after the retiring Trustee or retiring Collateral Agent, as applicable, resigns or is removed, the
retiring Trustee or retiring Collateral Agent, as applicable, the Issuer or the Holders of a majority in
principal amount of the outstanding Notes may petition at the expense of the Issuer any court of
competent jurisdiction for the appointment of a successor Trustee or successor Collateral Agent, as
applicable.
If the Trustee fails to comply with Section 7.10, Noteholders holding at least 10% in
principal amount of the Notes may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee or successor Collateral Agent shall deliver a written acceptance
of its appointment to the retiring Trustee or retiring Collateral Agent, as applicable, and to the
Issuer. Immediately following such delivery, the retiring Trustee or retiring Collateral Agent, as
applicable, shall, subject to its rights under Section 7.07, transfer all property held by it as Trustee
or Collateral Agent to the successor Trustee or successor Collateral Agent, as applicable, the
resignation or removal of the retiring Trustee or the retiring Collateral Agent, as applicable, shall
become effective, and the successor Trustee or the successor Collateral Agent, as applicable, shall
have all the rights, powers and duties of the Trustee or the Collateral Agent, as applicable, under
this Indenture. A successor Trustee or successor Collateral Agent, as applicable, shall mail notice
of its succession to each Noteholder. Notwithstanding replacement of the Trustee or the Collateral
Agent pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07
shall continue for the benefit of the retiring Trustee or retiring Collateral Agent.
Section 7.09Successor by Consolidation, Merger, etc.
If the Trustee or the Collateral Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another corporation, subject to
Section 7.10, the successor corporation without any further act shall be the successor Trustee or
successor Collateral Agent, as applicable; provided that such entity shall be otherwise qualified and
eligible under this Article VII.
Section 7.10Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation or national banking
association organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has a combined capital and
surplus of at least $100.0 million as set forth in its most recent published annual report of condition.
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Section 7.11[Reserved.]
Section 7.12Paying Agents.
The Issuer shall cause each Paying Agent other than the Trustee to execute and
deliver to it and the Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 7.12:
(A)that it will hold all sums held by it as agent for the payment of principal of, or
premium, if any, or interest on, the Notes (whether such sums have been paid to it by the
Issuer or by any obligor on the Notes) in trust for the benefit of Holders or the Trustee;
(B)that it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in trust by it together
with a full accounting thereof; and
(C)that it will give the Trustee written notice within three Business Days of any
failure of the Issuer (or by any obligor on the Notes) in the payment of any installment of the
principal of, premium, if any, or interest on, the Notes when the same shall be due and
payable.
ARTICLE VIII.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01Without Consent of Noteholders.
Notwithstanding Section 8.02, the Issuer, the Guarantors and the Trustee and the
Collateral Agent may modify and amend or supplement this Indenture, the Notes, the Note
Guarantees or the First Lien Notes Security Documents without the consent of any Holder for any
of the following purposes:
(1)to cure any ambiguity, omission, defect or inconsistency;
(2)to provide for uncertificated Notes in addition to or in place of Physical Notes
(provided that such Notes are in registered form for purposes of Section 163(f) of the Code);
(3)to provide for the assumption of the Issuer’s or any Guarantor’s obligations to
the Holders in the case of a merger or consolidation or sale of all or substantially all of the
Issuer’s or such Guarantor’s assets;
(4)to make, complete or confirm any grant of Collateral permitted or required by
this Indenture or any of the First Lien Notes Security Documents or provide for any release
of Collateral pursuant to the terms of this Indenture or any of the First Lien Notes Security
Documents;
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(5)to add any Guarantor or release any Guarantor from its Note Guarantee if
such release is permitted by the terms of this Indenture;
(6)to conform the text of this Indenture, the Notes, the Note Guarantees or the
First Lien Notes Security Documents to any provision of the “Description of New Notes”
section of the Offering Memorandum;
(7)to provide for the issuance of Additional Notes in accordance with the terms
of this Indenture;
(8)to make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the rights under this Indenture of any Holder in
any material respect;
(9)to comply with the rules of any applicable securities depositary;
(10)to evidence and provide for the acceptance of appointment by a successor or
separate Trustee or Collateral Agent with respect to the Notes;
(11)to make any amendment to the provisions of this Indenture relating to the
transfer and legending of Notes; provided, however, that (a) compliance with this Indenture
as so amended would not result in Notes being transferred in violation of the Securities Act
or any other applicable securities law and (b) such amendment does not adversely affect the
rights of Holders to transfer Notes;
(12)to enter into any intercreditor agreement pursuant to this Indenture having
substantially similar terms with respect to the Holders as those set forth in the Intercreditor
Agreement, take as a whole, or any joinder thereto;
(13)in the case of any First Lien Notes Security Document, to include therein any
legend required to be set forth therein pursuant to the Intercreditor Agreement or to modify
any such legend as required by the Intercreditor Agreement;
(14)to provide for the succession of any parties to the First Lien Notes Security
Documents (and other amendments that are administrative or ministerial in nature) in
connection with an amendment, renewal, extension, substitution, refinancing, restructuring,
replacement, supplementing or other modification from time to time of the ABL Credit
Facility or any other agreement that is not prohibited by this Indenture;
(15)secure additional extensions of credit and add additional secured creditors
holding other Fixed Asset Debt so long as such Fixed Asset Debt is not prohibited by the
provisions of this Indenture; or
(16)to add Additional Assets as Collateral.
After an amendment or supplement under this Section 8.01 becomes effective, the
Issuer shall send to the Holders a notice briefly describing the amendment or supplement. Any
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failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment or supplement.
Section 8.02With Consent of Noteholders.
(a)Except to the extent provided in Section 8.01 and subsections (b) and (c) of this
Section 8.02, this Indenture, the Notes, any Note Guarantee or the First Lien Notes Security
Documents may be amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, tender offer or exchange
offer for, Notes), and any existing Default or Event of Default or compliance with any provision of
this Indenture, the Notes, any Note Guarantee or the First Lien Notes Security Documents may be
waived with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes voting as a single class (including, without limitation, consents obtained in
connection with a purchase of, tender offer or exchange offer for, Notes).
(b)Notwithstanding subsection (a) of this Section 8.02, without the consent of each
Holder affected thereby, an amendment or waiver may not (with respect to any Note held by a non-
consenting Holder):
(1)reduce the principal amount of Notes issued under this Indenture whose
Holders must consent to an amendment, supplement or waiver;
(2)reduce the principal amount of or change the Maturity Date of any Notes, or
alter the provisions with respect to the redemption of any such Notes other than the
provisions of Sections 4.07 and 4.08 of this Indenture;
(3)reduce the rate of or change the time for payment of interest on any such
Notes (or extend the grace period for the payment of interest under Section 6.01(1));
(4)waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on any such Notes (except a rescission of acceleration of Notes
by the Holders of at least a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the Payment Default that resulted from such acceleration);
(5)make any such Note payable in currency other than that stated in such Note;
(6)modify any of the provisions in this Indenture regarding the waiver of past
Defaults;
(7)amend the contractual right expressly set forth in this Indenture or any Note
of any Holder to institute suit for the enforcement of any payment of principal of, premium,
if any, or interest on such Note on or after the Stated Maturity or Redemption Date of any
such Note;
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(8)release the Issuer or any Guarantor that is a Significant Subsidiary from any
of its obligations under its Note Guarantee or this Indenture otherwise than in accordance
with the terms of this Indenture; or
(9)modify or change any provision of this Indenture affecting the ranking of the
Notes or Note Guarantees in a manner adverse to the Holders.
(c)In addition, without the consent of the Holders of at least 80% in aggregate
principal amount of the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the Notes), no amendment,
supplement or waiver may (1) have the effect of releasing all or substantially all of the Collateral
from the Liens created pursuant to the First Lien Notes Security Documents (except as permitted by
the terms of this Indenture or the First Lien Notes Security Documents) or changing or altering the
priority of the security interests of the Holders in the Collateral under the Intercreditor Agreement,
(2) make any change in the First Lien Notes Security Documents or the provisions in this Indenture
dealing with the application of proceeds of the Collateral that would adversely affect the Holders in
any material respect, or (3) modify the First Lien Notes Security Documents or the provisions of
this Indenture dealing with Collateral in any manner adverse to the Holders in any material respect
other than in accordance with the terms of this Indenture or the First Lien Notes Security
Documents; provided that (x) if any such amendment, supplement or waiver will only affect one
series of Notes (or less than all series of the Notes) then outstanding under this Indenture, then only
the consent of the Holders of at least 80% in aggregate principal amount of the Notes of such series
then outstanding (including, without limitation, consents obtained in connection with a purchase of,
or tender offer or exchange offer for, such series of the Notes) shall be required.
(d)[Reserved]
(e)It shall not be necessary for the consent of the Holders under this Section
8.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
(f)No amendment of, or supplement or waiver to, this Indenture, the Notes, any
Note Guarantee or the First Lien Notes Security Documents shall be permitted to be effected if such
amendment, supplement or waiver is in violation of or inconsistent with the terms of the
Intercreditor Agreement. No amendment of, or supplement or waiver to the Intercreditor
Agreement shall be permitted to be effected without the consent of the Collateral Agent, the ABL
Collateral Agent and any other Fixed Asset Representative then party thereto, other than pursuant to
the terms thereof.
(g)After an amendment, supplement or waiver under this Section 8.02 becomes
effective, the Issuer shall send to the Holders a notice briefly describing the amendment, supplement
or waiver. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or waiver.
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Section 8.03[Reserved].
Section 8.04Revocation and Effect of Consents.
(a)Until an amendment, supplement, waiver or other action becomes effective, a
consent to it by a Holder is a continuing consent, conclusive and binding upon such Holder and
every subsequent Holder of the same Note or portion thereof, and of any Note issued upon the
transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b)The Issuer may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Noteholders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Noteholders after such record date. No such consent
shall be valid or effective for more than 120 days after such record date unless the consent of the
requisite number of Noteholders has been obtained.
(c)After an amendment, supplement, waiver or other action under Section 8.01
or Section 8.02 becomes effective, it shall bind every Noteholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.02(b). In that case the amendment,
supplement, waiver or other action shall bind each Noteholder who has consented to it and every
subsequent Holder of the same Note or portion thereof, and of any Note issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on
any such Note.
Section 8.05Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the Trustee (in
accordance with the specific written direction of the Issuer) shall request the Holder of the Note to
deliver it to the Trustee. In such case, the Trustee shall place an appropriate notation on the Note
about the changed terms and return it to the Noteholder. Alternatively, if the Issuer or the Trustee
so determines, the Issuer in exchange for the Note shall issue, the Guarantors shall endorse and,
upon receipt of an Authentication Order in accordance with Section 2.01, the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 8.06Trustee and Collateral Agent to Sign Amendments, etc.
The Trustee and, as applicable, the Collateral Agent, shall sign any amendment,
supplement or waiver authorized pursuant to this Article VIII if the amendment, supplement or
waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee and, as
applicable, the Collateral Agent. If it does adversely affect the rights, duties, liabilities or
immunities of the Trustee or the Collateral Agent, if applicable, the Trustee or the Collateral Agent,
as applicable, may, but need not, sign such amendment, supplement or waiver. The Issuer or the
Guarantors may not sign an amendment, supplement or waiver until its Board of Directors approve
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it. Notwithstanding anything herein to the contrary, in signing an amendment, supplement or
waiver, the Trustee and, as applicable, the Collateral Agent shall be entitled to receive and, subject
to Section 7.01, shall be fully protected in relying upon an Officer’s Certificate and (other than in
the case of an amendment or supplement for the purpose of adding a Guarantor under this Indenture
in accordance with Section 8.01(5) or to add Additional Assets as Collateral under this Indenture in
accordance with Section 8.01(16)) an Opinion of Counsel stating, in addition to the matters required
by Section 12.04, that the execution of such amendment, supplement or waiver is authorized or
permitted by this Indenture and that such amendment, supplement or waiver is a legal, valid and
binding obligation of the Issuer and the Guarantors party thereto, enforceable against the Issuer and
the Guarantors party thereto in accordance with its terms (subject to customary exceptions).
Guarantors may, but shall not be required to, execute supplemental indentures that do not modify
such Guarantor’s Note Guarantee.
ARTICLE IX.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01Discharge of Indenture.
This Indenture and the First Lien Notes Security Documents will be discharged and
will cease to be of further effect as to the Notes and Note Guarantees, and the Trustee and the
Collateral Agent, at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, the First Lien Notes Security Documents, the Notes and
the Note Guarantees, when either:
(1)the Issuer delivers to the Trustee all outstanding Notes issued under this
Indenture (other than (i) Notes which have been mutilated, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.08 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust) for cancellation; or
(2)(a) all Notes outstanding under this Indenture not theretofore delivered to the
Trustee for cancellation (I) have become due and payable, whether on the Maturity Date or
as a result of the sending of a notice of redemption, or otherwise (II) will become due and
payable within one year, or (III) are to be called for redemption within one year, under
arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor
irrevocably deposits or cause to be deposited with the Trustee as funds in trust solely for the
benefit of the Holders, cash in U.S. Dollars, U.S. Government Obligations or a combination
thereof in an amount sufficient to pay the principal of, premium, if any, and accrued and
unpaid interest on the Notes outstanding under this Indenture not theretofore delivered to the
Trustee for cancellation on the Maturity Date or on the applicable Redemption Date, as the
case may be; (b) no Default or Event of Default (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the granting of Liens
in connection therewith) shall have occurred and be continuing on the date of such deposit
or shall occur as a result of such deposit and such deposit shall not result in a breach or
violation of, or constitute a default under, any material instrument to which the Issuer or any
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Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that
resulting from the borrowing of funds to be applied to such deposit and the granting of Liens
in connection therewith); (c) the Issuer or any Guarantor has paid or caused to be paid all
sums payable by the Issuer or any Guarantor under this Indenture; and (d) the Issuer have
delivered (I) irrevocable instructions to the Trustee to apply the deposited money toward the
payment of the Notes on the Maturity Date or the applicable Redemption Date, as the case
may be, and (II) an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided relating to the satisfaction and discharge of this
Indenture have been complied with.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of and at the expense of the Issuer.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of
the Issuer and the Guarantors, as applicable, under Sections 4.01, 4.02, 7.07 and, if money shall
have been deposited with the Trustee pursuant to Section 9.01(2), 9.05 and the obligations of the
Trustee under Sections 9.05, 9.07 and 9.08 shall survive such satisfaction and discharge.
Section 9.02Legal Defeasance.
The Issuer may, at its option and at any time, elect to have all of its obligations and
the obligations of the Guarantors discharged with respect to all outstanding Notes on the date the
conditions set forth in Section 9.04 are satisfied (hereinafter, “Legal Defeasance”). For this
purpose, such Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes (including the
Note Guarantees), to have cured all then existing Events of Default and to have satisfied all of its
other obligations under such Notes, the Note Guarantees, this Indenture and the First Lien Notes
Security Documents, and to have Liens on the Collateral securing the Notes released (and the
Trustee, on demand of and at the expense of the Issuer, shall, subject to Section 9.06, execute proper
instruments acknowledging the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:
(1)the rights of the Holders of the outstanding Notes to receive solely from the
trust described in Section 9.04 and as more fully set forth in Section 9.04, payments in
respect of the principal amount of, premium, if any, and interest on such Notes when such
payments are due;
(2)the Issuer’s obligations with respect to such Notes under Sections 2.07, 2.08,
2.11, 4.02 and 9.05;
(3)the rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder (including claims of, or payments to, the Trustee under or pursuant to Section
7.07) and the Issuer’s and the Guarantors’ obligations in connection therewith; and
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(4)this Section 9.02.
Concurrently with any Legal Defeasance, the Issuer may, at its further option, cause
to be terminated, as of the date on which such Legal Defeasance occurs, all of the obligations under
any or all of the Note Guarantees, if any, then existing and obtain the release of the Note Guarantees
of any or all Guarantors.
Subject to compliance with this Article IX (other than Section 9.01), the Issuer may
exercise its option under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 with respect to the Notes.
Section 9.03Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have all of its obligations and
the obligations of the Guarantors under Sections 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 11.03, 11.04, 11.05 and 11.06 and clauses (2) through (7) of Section 5.01(a),
released with respect to the Notes on the date the conditions set forth in Section 9.04 are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not to be
“outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed “outstanding” for all other purposes hereunder (it being understood that Notes shall not be
deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the Notes, the Issuer and its Restricted Subsidiaries may omit or fail to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01, but, except as specified above, the remainder of this Indenture, the Notes and
the Note Guarantees shall be unaffected thereby. In addition, upon the Issuer’s exercise of the
option in this Section 9.03, subject to the satisfaction of the conditions set forth in Section 9.04,
Sections 6.01(3), (4), (5), (6), (7) (solely with respect to a Restricted Subsidiary that is a Significant
Subsidiary and any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary), (8) and (9) shall not constitute Events of Default.
Notwithstanding any discharge or release of any obligations under this Indenture
pursuant to Section 9.02 or this Section 9.03, the obligations of the Issuer and the Guarantors, as
applicable, under Sections 7.07, 9.05 and 9.06 and, the obligations of the Trustee under Sections
9.05, 9.07 and 9.08 shall survive such discharge or release.
Section 9.04Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02 or Section 9.03
to the outstanding Notes:
(1)the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders issued under this Indenture, cash in U.S. Dollars, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient, in the opinion
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of an Advisory Firm (such opinion shall be delivered to the Trustee, and upon which the
Trustee shall have no liability in relying), to pay the principal, premium, if any, and interest
on the Notes outstanding under this Indenture on the Maturity Date or on the applicable
Redemption Date, as the case may be, and the Issuer must specify whether such Notes are
being defeased to maturity or to a particular Redemption Date;
(2)in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel in the United States (upon which the Trustee shall have no liability in
relying) confirming that (a) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the beneficial owners of the Notes outstanding under
this Indenture will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(3)in the case of Covenant Defeasance, the Issuer shall have delivered to the
Trustee an Opinion of Counsel in the United States (upon which the Trustee shall have no
liability in relying) confirming that the beneficial owners of the Notes outstanding under this
Indenture will not recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4)no Default or Event of Default shall have occurred and be continuing on the
date of such deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit and the granting of Liens in connection therewith) 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;
(5)such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument (other than
this Indenture) to which the Issuer or any of the Guarantors is a party or by which the Issuer
or any of the Guarantors is bound (other than that resulting from the borrowing of funds to
be applied to such deposit and the granting of Liens in connection therewith);
(6)the Issuer must deliver to the Trustee an Officer’s Certificate (upon which the
Trustee shall have no liability in relying) stating that the deposit was not made by the Issuer
with the intent of preferring the Holders of Notes issued under this Indenture over the other
creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuer or others; and
(7)the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion
of Counsel upon which the Trustee shall have the right to rely, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
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Section 9.05Deposited Money and U.S. Government Obligations To Be Held in Trust.
Subject to Section 9.08, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.01 or Section 9.04, as the case
may be, in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agents (including the Issuer or a Guarantor acting as Paying Agent), to the
Holders of such Notes, of all sums due and to become due thereon in respect of principal, premium,
if any, and accrued interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuer and the Guarantors shall (on a joint and several basis) pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.01 or Section 9.04, as the case may be, or the principal,
premium, if any, 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 the outstanding Notes.
Anything in this Article IX to the contrary notwithstanding, the Trustee shall deliver
or pay to the Issuer from time to time upon a request of the Issuer any money or U.S. Government
Obligations held by it as provided in Section 9.01 or Section 9.04, as the case may be, which, in the
opinion of an Advisory Firm expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance or satisfaction and discharge of this Indenture.
Section 9.06Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03, as the case may be, by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer’s and each Guarantor’s obligations under this
Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit
had occurred pursuant to this Article IX until such time as the Trustee or such Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.01,
9.02 or 9.03, as the case may be; provided that if the Issuer or the Guarantors have made any
payment of principal of, premium, if any, or accrued interest on any Notes because of the
reinstatement of their obligations, the Issuer or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or any Paying Agent.
Section 9.07Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture, all moneys and
U.S. Government Obligations then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Issuer, be paid or delivered to the Trustee, or if sufficient moneys
and U.S. Government Obligations have been deposited pursuant to Section 9.04, to the Issuer upon
a request of the Issuer (or, if such moneys and U.S. Government Obligations had been deposited by
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the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Section 9.08Moneys Held by Trustee.
Subject to applicable escheat laws, any moneys and U.S. Government Obligations
deposited with the Trustee or any Paying Agent or then held by the Issuer or the Guarantors in trust
for the payment of the principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have respectively become due and
payable shall be repaid or returned to the Issuer (or, if appropriate, the Guarantors) upon a request
of the Issuer, or if such moneys and U.S. Government Obligations are then held by the Issuer or the
Guarantors in trust, such moneys and U.S. Government Obligations shall be released from such
trust; and the Holder of such Note entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Issuer and the Guarantors for the payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust moneys and U.S. Government
Obligations shall thereupon cease.
ARTICLE X.
GUARANTEE OF SECURITIES
Section 10.01Guarantee.
Subject to this Article X, the Guarantors, by execution of this Indenture, jointly and
severally, guarantee to each Holder, the Collateral Agent and to the Trustee (i) the due and punctual
payment of the principal of, premium, if any, and interest on each Note, when and as the same shall
become due and payable, whether on the Maturity Date, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of and interest on the Notes, to the extent
lawful, and the due and punctual payment of all other obligations and due and punctual performance
of all obligations of the Issuer to the Holders, the Collateral Agent or the Trustee all in accordance
with the terms of such Note and this Indenture and the First Lien Notes Security Documents
together with all other Obligations and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, at stated maturity,
by acceleration or otherwise, in each case, to the limitations set forth in Section 10.06. Each
Guarantor, by execution of this Indenture, agrees that, subject only to the applicable provisions, if
any, of Section 10.06, its obligations hereunder shall be absolute and unconditional, irrespective of
the validity, regularity or enforceability of any such Note or this Indenture, any failure to enforce
the provisions of any such Note or this Indenture, any waiver or consent with respect thereto by the
Holder of such Note, or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor. Each Guarantor further agrees that its Note Guarantee
herein constitutes a Guarantee of payment when due (and not a Guarantee of collection).
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Each Guarantor hereby waives (to the extent permitted by law) diligence,
presentment, demand for payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice
with respect to any such Note or the Indebtedness evidenced thereby and all demands whatsoever,
and covenants that this Guarantee will not be discharged as to any such Note except by payment in
full of the principal thereof and interest thereon. Each Guarantor hereby agrees that, as between
such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the
purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such obligations as provided in Article VI, such obligations (whether
or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose
of this Guarantee.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Trustee or any
Holder under the Note Guarantees. Each Guarantor that makes a payment under its Note Guarantee
shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of such
payment determined in accordance with GAAP.
Section 10.02Execution and Delivery of Note Guarantee.
To evidence the Note Guarantee set forth in Section 10.01, each Guarantor hereby
agrees this Indenture (or supplemental indenture in the form of Exhibit G hereto) shall be executed
by either manual, facsimile or electronic (including “.pdf”) signature of an Officer of such
Guarantor.
Each of the Guarantors hereby agrees that its Note Guarantee set forth in Section
10.01 shall be in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.
If an Officer of a Guarantor whose signature is on this Indenture (or a supplemental
indenture in the form of Exhibit G hereto) no longer holds that office at the time the Trustee
authenticates the Note, such Guarantor’s Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of any Note Guarantee set forth in this Indenture on behalf of the
Guarantor.
Section 10.03Release of Guarantors.
(a)A Note Guarantee of a Subsidiary Guarantor will be unconditionally and
automatically released and discharged upon any of the following:
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(1)any Transfer (including, without limitation, by way of consolidation, merger,
dividend, distribution or otherwise) by such Subsidiary Guarantor to any Person that is not a
Guarantor or the Issuer of all or substantially all of the properties and assets of such
Subsidiary Guarantor, so long as such Transfer is made in accordance with the applicable
provisions of this Indenture and such Subsidiary Guarantor is also released from its
Guarantee and all pledges and security interests granted in connection with Certain Other
Indebtedness;
(2)the designation by the Issuer of such Subsidiary Guarantor as an Unrestricted
Subsidiary in accordance with the applicable provisions of this Indenture;
(3)any Transfer directly or indirectly (including, without limitation, by way of
consolidation, merger, dividend, distribution or otherwise) to any Person that is not a
Guarantor or the Issuer of Equity Interests of such Subsidiary Guarantor or any issuance by
such Subsidiary Guarantor of its Equity Interests, such that such Subsidiary Guarantor
ceases to be a Subsidiary of the Issuer, so long as such Transfer is made for valid business
purposes (other than to release the Note Guarantee) and in accordance with the applicable
provisions of this Indenture and such Subsidiary Guarantor is also released from its
Guarantee and all pledges and security interests granted in connection with Certain Other
Indebtedness;
(4)the merger or consolidation of any Subsidiary Guarantor with and into the
Issuer or another Subsidiary Guarantor that is the surviving Person in such merger or
consolidation, or, subject to compliance with Article V, upon the liquidation of a Subsidiary
Guarantor;
(5)the release or discharge of the Guarantee by, or direct obligation of, such
Subsidiary Guarantor in respect of the Certain Other Indebtedness or any other Indebtedness
that gave rise to such Subsidiary Guarantor’s obligation to provide such Note Guarantee,
except in each case, a release or discharge by, or as a result of, payment under such
Obligation or Guarantee, but only if the Liens on Collateral of such Subsidiary Guarantor
are also substantially concurrently released pursuant to the terms of any other ABL
Obligations and Fixed Asset Obligations;
(6)upon payment in full of the principal of, accrued and unpaid interest and
premium (if any) on the Notes; or
(7)upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge
of this Indenture in accordance with Article IX.
(b)A Note Guarantee of a Subsidiary Guarantor also will be automatically released upon
the applicable Subsidiary ceasing to be a Subsidiary as a result of any foreclosure of any pledge or
security interest securing the Notes or other exercise of remedies in respect thereof in accordance
with the Intercreditor Agreement.
(c)The Note Guarantees of Holdings will be released (i) if the Issuer exercises its Legal
Defeasance option or Covenant Defeasance option as described under Article IX, (ii) if the Issuer’s
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Obligations under this Indenture are discharged (including pursuant to a satisfaction and discharge
of this Indenture as described in Article IX; through redemption or repurchase of all the Notes;
through repayment in full of the Notes; or otherwise) in accordance with the terms of this Indenture
or (iii) if there is a release or discharge of such Guarantee by, or direct obligation of, Holdings of
the obligations under Certain Other Indebtedness, except a discharge or release by or as a result of
payment in connection with the enforcement of remedies under such Guarantee or direct obligation.
(d)No such release or discharge of a Note Guarantee of a Guarantor shall be effective
against the Trustee or the Holders to which such Note Guarantee relates until the Issuer shall have
delivered to the Trustee an Officer’s Certificate, upon which the Trustee shall have the right to rely,
stating that all conditions precedent provided for in this Indenture relating to such transactions have
been complied with. At the request of the Issuer, and upon being provided an Officer’s Certificate,
the Trustee shall execute and deliver an instrument evidencing such release.
(e)If the Note Guarantee of any Guarantor is deemed to be released or is automatically
released, the Issuer shall deliver to the Trustee an Officer’s Certificate stating the identity of the
released Guarantor, the basis for release in reasonable detail, and that such release complies with
this Indenture. At the request of the Issuer, and upon delivery to the Trustee of an Officer’s
Certificate that a Guarantor has been released and that execution by the Trustee of an appropriate
instrument evidencing the release of such Guarantor from its Guarantee complies with this
Indenture, the Trustee shall execute any documents reasonably requested by either the Issuer or a
Guarantor in order to evidence the release of such Guarantor from its obligations under its
Guarantee endorsed on the Notes and under this Article X (it being understood that the failure to
obtain any such instrument shall not impair any automatic release pursuant to this Section 10.03).
Section 10.04Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other rights which it may
now or hereafter acquire against the Issuer that arise from the existence, payment, performance or
enforcement of such Guarantor’s obligations under its Note Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any Holder against the Issuer, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or Note on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and the
Notes shall not have been paid in full, such amount shall have been deemed to have been paid to
such Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this Indenture. Each
Guarantor acknowledges that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in this Section 10.04 is
knowingly made in contemplation of such benefits.
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Section 10.05[Reserved].
Section 10.06Limitation on Guarantor’s Liability; Certain Foreign Guarantor
Considerations.
(a)Each Guarantor, and by its acceptance hereof, each Holder and the Trustee, hereby
confirm that it is the intention of all such parties that the Guarantee of a Guarantor does not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal or
state or other applicable law. To effectuate the foregoing intention, the Trustee, each Holder and
each Guarantor hereby irrevocably agree that the obligations of a Guarantor under its Note
Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent
and fixed liabilities of such Guarantor, result in the obligations of such Guarantor not constituting
such a fraudulent transfer or conveyance.
ARTICLE XI.
COLLATERAL AND SECURITY
Section 11.01Collateral.
(a)The due and punctual payment of the principal of, premium, if any, and interest on
the Notes, when and as the same shall become due and payable, whether on the Maturity Date, by
acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and
interest on the Notes, to the extent lawful, and the due and punctual performance of all Obligations
of the Issuer and the Guarantors to the Holders, the Trustee and/or the Collateral Agent, in
accordance with the terms of the Notes, this Indenture, the Note Guarantees and the First Lien Notes
Security Documents, shall be secured, according to the terms hereunder or thereunder, by a Lien on
the Collateral on an equal and ratable basis with any other Fixed Asset Obligations, subject to
Permitted Liens and the terms of the Intercreditor Agreement, as provided in this Indenture and the
First Lien Notes Security Documents, and will be secured by all of the Collateral pledged pursuant
to the First Lien Notes Security Documents hereafter delivered as required or permitted by this
Indenture and the First Lien Notes Security Documents, and subject to the terms thereof. The Issuer
and the Guarantors, for the benefit of the Holders, hereby appoints U.S. Bank Trust Company,
National Association as the initial Collateral Agent, and the Collateral Agent and the Trustee are
hereby authorized and directed to execute and deliver the First Lien Notes Security Documents to
which it is a party. Each Holder by its acceptance of any Notes and the Note Guarantees thereof,
irrevocably consents and agrees to such appointment. The Collateral Agent shall have the
privileges, powers and immunities set forth in this Indenture and the First Lien Notes Security
Documents. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or
the First Lien Notes Security Documents, the duties of the Collateral Agent shall be ministerial and
administrative in nature and the Collateral Agent shall not be deemed to have any trust or other
fiduciary relationship with the Trustee, any Holder, the Issuer or any Guarantor. Without limiting
the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference
to the Collateral Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such term is used merely
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as a matter of market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b)Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and
agrees to the terms of the First Lien Notes Security Documents (including, without limitation, the
provisions providing for foreclosure and release of Collateral and the automatic amendments,
supplements, consents, waivers and other modifications thereto without the consent of the Holders)
as the same may be in effect or may be amended from time to time in accordance with their terms
and this Indenture and authorizes and directs the Collateral Agent and the Trustee, as applicable, to
enter into the First Lien Notes Security Documents on the Issue Date, and, at any time after the
Issue Date, if applicable, any intercreditor agreement in respect of Junior Indebtedness (any such
agreement, in customary market form (as reasonably determined by the Issuer as set forth in an
Officer’s Certificate delivered to the Trustee and the Collateral Agent) that neither contravenes nor
is prohibited by this Indenture and other Indebtedness secured by any Collateral or the Intercreditor
Agreement and otherwise in form and substance reasonably acceptable to the Collateral Agent), and
any joinders to the foregoing, to which it is a party, at any time after the Issue Date, if applicable, to
perform its obligations and exercise its rights thereunder in accordance therewith.
(c)The Trustee and each Holder, by accepting the Notes and the Note Guarantees,
acknowledges that, as more fully set forth in the First Lien Notes Security Documents, the
Collateral as hereafter constituted shall be held for the benefit of all the Holders and the Trustee and
the Collateral Agent, and that the Lien of this Indenture and the First Lien Notes Security
Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified
and limited in all respects by the First Lien Notes Security Documents and actions that may be
taken thereunder.
Section 11.02Maintenance of Collateral.
The Issuer and the Domestic Guarantors shall maintain and preserve the Collateral;
provided that the Issuer and the Domestic Guarantors may dispose of Collateral to the extent not
otherwise prohibited by this Indenture. Except as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on (a) the ability of the Issuer and the
Domestic Guarantors (taken as a whole) to perform their respective obligations hereunder or under
the First Lien Notes Security Documents, to the extent party thereof, or (b) on the rights and
remedies of the Holders under this Indenture or the First Lien Notes Security Documents, the Issuer
and the Domestic Guarantors shall pay all real estate and other taxes (except such as are being
contested in good faith by appropriate negotiations or proceedings), and use commercially
reasonable efforts to maintain in full force and effect insurance in amounts (after giving effect to
self-insurance), and that insures against such losses and risks, as are reasonable for the type and size
of the business conducted by the Issuer and the Domestic Guarantors.
Section 11.03Further Assurances.
(a)On or following the Issue Date and subject to the limitations and exceptions set forth
in the First Lien Notes Security Documents and this Indenture (including with respect to Excluded
Assets), the Issuer and the Domestic Guarantors shall execute, deliver and file, as appropriate any
and all further documents, financing statements (including continuation statements and amendments
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to financing statements), agreements and instruments, and take all further actions that may be
required under applicable law, in order to grant, preserve, protect and perfect the validity and
priority of the security interests and Liens created or intended to be created by the First Lien Notes
Security Documents in the Collateral subject to the exceptions set forth in this Indenture and First
Lien Notes Security Documents; provided that for so long as there are any other outstanding Fixed
Asset Obligations, no actions shall be required to be taken with respect to the perfection of the
security interest in the Collateral to the extent such actions are not required to be taken, and have
not been taken, with respect to the Fixed Asset Documents for such other Fixed Asset Obligations.
In addition, to the extent required under this Indenture or any of the First Lien Notes Security
Documents, from time to time, the Issuer and the Domestic Guarantors will reasonably promptly
secure the obligations under this Indenture and First Lien Notes Security Documents by pledging or
creating, or causing to be pledged or created, perfected security interests and Liens with respect to
the Collateral to the extent required by this Indenture and/or the First Lien Notes Security
Documents; provided that for so long as there any outstanding Fixed Asset Obligations, no actions
shall be required to be taken with respect to the pledging of Collateral or creation of security
interests in the Collateral to the extent such actions are not required to be taken, and have not been
taken, with respect to the Fixed Asset Documents for such other Fixed Asset Obligations.
(b)Neither the Collateral Agent nor the Trustee undertakes any responsibility
whatsoever to determine whether any of the foregoing covenants have been satisfied, and neither
shall have any liability whatsoever arising out of the failure of the Issuer or any of the Guarantors to
satisfy such requirements.
Section 11.04After-Acquired Collateral.
From and after the Issue Date, and subject to the limitations and exceptions set forth
in the First Lien Notes Security Documents and this Indenture (including with respect to Excluded
Assets), upon the acquisition by any of the Issuer or the Domestic Guarantors of any assets (other
than Excluded Assets), including, but not limited to, any Material Real Property, that qualifies as
Collateral, that, in any such case, form part of the Collateral, the Issuer or such Domestic Guarantor
shall execute and deliver and file, as applicable (i) with regard to real property that qualifies as
Collateral, the items described under Section 11.05 within 90 days of the date of acquisition of the
applicable asset or as soon as practicable thereafter using commercially reasonable efforts and
(ii) with regard to any other after-acquired property that qualifies as Collateral, the Issuer or such
Domestic Guarantor shall execute, file and deliver, to the extent required by this Indenture and/or
the First Lien Notes Security Documents, any information, documentation, financing statements or
other certificates and opinions of counsel as may be necessary to vest in the Collateral Agent a
perfected security interest, with the priority required by this Indenture and the First Lien Notes
Security Documents, subject only to Permitted Liens and the perfection exceptions (as provided in
the First Lien Notes Security Documents), in such after-acquired property and to have such after-
acquired property added to the Collateral, and thereupon all provisions of this Indenture and the
First Lien Notes Security Documents relating to the Collateral shall be deemed to relate to such
after-acquired property to the same extent and with the same force and effect.
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Neither the Collateral Agent nor the Trustee undertakes any responsibility
whatsoever to determine whether any of the foregoing covenants have been satisfied, and neither
shall have any liability whatsoever arising out of the failure of the Issuer or any of the Guarantors to
satisfy such requirements.
Section 11.05Real Estate Mortgages and Filings.
With respect to any fee interest in any Premises owned by the Issuer or a Guarantor
organized in a U.S. jurisdiction on the Issue Date or acquired by the Issuer or a Guarantor organized
in a U.S. jurisdiction after the Issue Date that forms a part of the Collateral (but specifically
excluding Excluded Assets), the Issuer shall, subject to the terms of the Intercreditor Agreement:
(1)within 90 days of the Issue Date (or as soon as practicable thereafter using
commercially reasonable efforts) or within 90 days of the date of acquisition (or as soon as
practicable thereafter) using commercially reasonable efforts, deliver, or cause to be delivered,
Mortgages (and other documentation and instruments referred to in clause (5) of this Section 11.05)
(with respect to Material Real Properties only), pledge supplements, security agreement
supplements and other security agreements, as necessary or as specified by and in form reasonably
satisfactory to the Collateral Agent (consistent with the First Lien Notes Security Documents),
securing payment of all the Obligations of the Issuer or applicable Guarantor, as the case may be,
under this Indenture and constituting Liens on all such properties;
(2)within 90 days of the Issue Date (or as soon as practicable thereafter using
commercially reasonable efforts) or within 90 days of the date of acquisition (or as soon as
practicable thereafter using commercially reasonable efforts), take, and cause such Subsidiary that is
not an Excluded Subsidiary to take, whatever action (including, without limitation, the delivery of
Mortgages (with respect to Material Real Properties only), the filing of UCC financing statements,
the giving of notices and delivery of stock and membership interest certificates) may be necessary
(or reasonably requested by the Collateral Agent) to vest in the Collateral Agent to grant a valid and
subsisting Liens on the properties purported to be subject to the Mortgages, pledge supplements and
security agreements delivered pursuant to this Indenture and/or First Lien Notes Security
Documents, in each case, to the extent required under this Indenture and/or First Lien Notes
Security Documents and subject to the perfection exceptions (as provided in the First Lien Notes
Security Documents), enforceable against all third parties in accordance with their terms;
(3)within 90 days after the request of Holders of at least a majority in principal
amount of First Lien Notes (or as soon as practicable thereafter using commercially reasonable
efforts), deliver to the Trustee and the Collateral Agent, a signed copy of one or more opinions,
addressed to such party, of counsel for the Issuer reasonably acceptable to such party as is
customary, covering the enforceability and other customary matters related to the Mortgages and
opinions of counsel in the jurisdiction within which the applicable Premises is situated;
(4)within 90 days of the Issue Date (or as soon as practicable thereafter using
commercially reasonable efforts) or within 90 days of the date of acquisition (or as soon as
practicable thereafter using commercially reasonable efforts), deliver to the Trustee and Collateral
Agent with respect to each Material Real Property owned in fee by a Subsidiary that is the subject
of such request, title reports in commercially reasonable scope and form, fully paid American Land
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Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other
form available in the applicable jurisdiction in form, with endorsements and in amounts, as are
commercially reasonable (not to exceed the value of the Material Real Properties covered thereby)
and surveys that are in the possession of the Issuer or Guarantor as applicable, as of the Issue Date
or applicable acquisition date; and
(5)at any time and from time to time, promptly execute and deliver any and all
further instruments and documents and take all such other action as are necessary or as the
Collateral Agent in its reasonable judgment may request in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guarantees, Mortgages, pledge supplements and
security agreements.
Neither the Collateral Agent nor the Trustee undertakes any responsibility
whatsoever to determine whether any of the foregoing covenants have been satisfied, and neither
shall have any liability whatsoever arising out of the failure of the Issuer or any of the Guarantors to
satisfy such post-closing requirements.
Section 11.06Negative Pledge.
The Issuer and each Domestic Guarantor will not, and the Issuer will not permit any of its
Restricted Subsidiaries to, further pledge the Collateral as security or otherwise, subject to
Permitted Liens. The Issuer, however, subject to compliance by the Issuer with the Section 4.09 and
Section 4.13, has the ability under this Indenture to issue Additional Notes, which may be secured
by the Collateral.
Section 11.07Release of Liens on the Collateral.
(a)The Issuer and the Guarantors are entitled to the releases of property and other assets
included in the Collateral from the Liens securing the Notes and the related Note Guarantees, as
applicable, under any one or more of the following circumstances:
(1)in whole, upon payment in full of the principal of, together with accrued and
unpaid interest and premium, if any, on, such series of Notes and all other related
Obligations under this Indenture, the Note Guarantees and the First Lien Notes Security
Documents that are due and payable at or prior to the time such principal, together with
accrued and unpaid interest and premium, if any, are paid;
(2)in whole, upon satisfaction and discharge of this Indenture in accordance with
Article IX;
(3)in whole, upon a legal defeasance or covenant defeasance with respect to
such series as set forth under Article IX;
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(4)in whole or in part, as to any asset constituting Collateral, in accordance with,
and as expressly provided for under, the First Lien Notes Security Documents and this
Indenture;
(5)with the consent of Holders of at least 662⁄3% in aggregate principal amount
of such series of Notes, including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, such series of Notes as provided under
Section 8.02;
(6)as to the property and assets of a Subsidiary Guarantor that is released from
its Note Guarantee in accordance with Section 10.03;
(7)in part, as to any property or assets constituting Collateral, to enable the
Issuer and/or Guarantors to consummate the disposition of such property or other assets to a
Person that is not the Issuer or a Guarantor to the extent not prohibited by Section 4.08;
(8)as to any property or assets that are Excluded Assets;
(9)in connection with any enforcement action taken by the Collateral Agents (as
defined in the Intercreditor Agreement) in accordance with the terms of the Intercreditor
Agreement; and
(10)as described under Article VIII hereof.
(b)[Reserved].
(c)If required by this Indenture, upon delivery by the Issuer or such Guarantor to the
Trustee of a form of release accompanied by an Officer’s Certificate that such release is permitted
under the terms of the Indenture and the First Lien Notes Security Documents, as applicable, the
Trustee and the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense)
such instruments or releases to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the First Lien Notes Security Documents and shall do or cause to be
done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as
is reasonably practicable. Neither the Trustee nor the Collateral Agent shall be liable for any such
release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term
hereof or in any First Lien Notes Security Document to the contrary, the Trustee and the Collateral
Agent shall not be under any obligation to release any such Lien and security interest, or execute
and deliver any such instrument of release, satisfaction or termination, unless and until it receives
such Officer’s Certificate.
Section 11.08Authorization of Actions to be Taken by the Trustee or the Collateral Agent
under the First Lien Notes Security Documents.
(a)Subject to the provisions of Article VII of this Indenture and the provisions of the
First Lien Notes Security Documents, each of the Trustee or the Collateral Agent may (but shall in
no event be required to), in its sole discretion and without the consent of the Holders, on behalf of
the Holders, take all actions it deems necessary or appropriate in order to (i) enforce any of its rights
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or any of the rights of the Holders under the First Lien Notes Security Documents and (ii) collect
and receive any and all amounts payable in respect of the Collateral in respect of the obligations of
the Issuer and the Domestic Guarantors hereunder and thereunder. Subject to the provisions of the
First Lien Notes Security Documents, the Trustee or the Collateral Agent shall have the power, but
not the obligation, to institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the
First Lien Notes Security Documents or this Indenture, and such suits and proceedings as the
Trustee or the Collateral Agent may deem expedient to preserve or protect its interest and the
interests of the Holders in the Collateral.
(b)None of the Collateral Agent, Trustee, Paying Agent, Registrar, such other agent nor
any of their respective officers, directors, employees, attorneys or agents will be responsible or
liable for the existence, genuineness, value or protection of any Collateral (except the custody of
Collateral in its possession using the same care it provides for its own possessory collateral and the
accounting for monies actually received), for the legality, enforceability, effectiveness or
sufficiency of the First Lien Notes Security Documents, or for the creation, perfection, priority,
sufficiency or protection of any Liens or any defect or deficiency. Neither the Trustee nor the
Collateral Agent shall be liable or responsible for any loss or diminution in value of any of the
Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding
agency or other agent or bailee selected by the Trustee or the Collateral Agent, as applicable, in
good faith. The Trustee and the Collateral Agent shall be permitted to use overnight carriers to
transmit possessory collateral and shall not be liable for any items lost or damaged in transit. In
addition, none of the foregoing will have any duties or responsibilities or obligations other than
those expressly assumed by it in this Indenture and the First Lien Notes Security Documents and
will not be required to take any action that is contrary to applicable law or any provision of this
Indenture or any of the First Lien Notes Security Documents.
Section 11.09Information Regarding Collateral.
(a)The Issuer will furnish to the Collateral Agent, with respect to the Issuer or any
Domestic Guarantor, prompt written notice following any change in such Person’s (1) legal name,
(2) jurisdiction of organization or formation or (3) identity or corporate structure, in each case,
within 30 days of such change. Promptly upon the occurrence of any of the foregoing, the Issuer
and the Domestic Guarantors will make all filings under the UCC and any other applicable laws that
are required by this Indenture and/or the First Lien Notes Security Documents in order for the
Collateral to be perfected subject to the Lien of the Collateral Agent under this Indenture and/or the
First Lien Notes Security Documents in the manner and to the extent required by this Indenture or
any of the First Lien Notes Security Documents, and shall take all necessary action so that such
Lien is perfected with the same priority as immediately prior to such change to the extent required
by this Indenture and/or the First Lien Notes Security Documents.
(b)The Issuer shall deliver to the Trustee and the Collateral Agent an Officer’s
Certificate attaching supplemental schedules required under the First Lien Notes Security
Documents.
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Section 11.10First Lien Notes Security Documents.
The provisions in this Indenture relating to Collateral are subject to the provisions of
the First Lien Notes Security Documents. The Issuer, the Domestic Guarantors, the Trustee and the
Collateral Agent acknowledge and agree to be bound by the provisions of the Notes First Lien
Security Documents.
Section 11.11Collateral Agent.
Notwithstanding anything else to the contrary herein, whenever reference is made in
this Indenture or the First Lien Notes Security Documents to any discretionary action by, consent,
designation, specification, requirement or approval of, notice, request or other communication from,
or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the
Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of
satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made (or
not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall
be fully justified in failing or refusing to take any such action under this Indenture or the First Lien
Notes Security Documents if it shall not have received such written instruction, advice or
concurrence of the Holders of a majority of an aggregate principal amount of the applicable series
of Notes.
ARTICLE XII.
MISCELLANEOUS
Section 12.01Currency Indemnity.
The U.S. Dollar is the sole currency (the “Required Currency”) of account and
payment for all sums payable by the Issuer or any Guarantor under or in connection with the Notes,
this Indenture and the Guarantees, including damages. Any amount with respect to the Notes, this
Indenture or the Guarantees received or recovered in a currency other than the Required Currency,
whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in
the winding-up or dissolution of the Issuer or any Guarantor or otherwise by any Holder or by the
Trustee, Collateral Agent or Paying Agent, in respect of any sum expressed to be due to it from the
Issuer or any Guarantor will only constitute a discharge to the Issuer or such Guarantor to the extent
of the Required Currency amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is practicable to do so).
If that Required Currency amount is less than the Required Currency amount
expressed to be due to the recipient or the Trustee, Collateral Agent or Paying Agent under the
Notes, the Issuer and each Guarantor will indemnify such recipient and/or the Trustee, Collateral
Agent or Paying Agent against any loss sustained by it as a result. In any event, the Issuer and each
Guarantor will indemnify the recipient against the cost of making any such purchase. For the
purposes of this currency indemnity provision, it will be prima facie evidence of the matter stated
therein, for the Holder of a Note or the Trustee, Collateral Agent or Paying Agent to certify in a
manner satisfactory to the Issuer (indicating the sources of information used) the loss it incurred in
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making any such purchase. These indemnities constitute a separate and independent obligation from
the Issuer’s and each Guarantor’s other obligations, will give rise to a separate and independent
cause of action, will apply irrespective of any waiver granted by any Holder of a Note or the
Trustee, Collateral Agent or Paying Agent (other than a waiver of the indemnities set out herein)
and will continue in full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under any Note or to the Trustee or Collateral Agent.
For the purposes of determining the amount in a currency other than the Required Currency, such
amount shall be determined using the relevant currency exchange rate then in effect.
Section 12.02Notices.
Except for notice or communications to Holders, any notice or communication shall
be given if in writing and delivered in person or mailed by first class mail (registered or certified,
return receipt requested), fax or overnight air courier guaranteeing next day delivery, addressed as
follows, or given electronically:
If to the Issuer or any Guarantor:
Cooper-Standard Automotive Inc.
40300 Traditions Drive
Northville, Michigan 48168
Attention: Chief Legal Officer
Email: maryann.kanary@CooperStandard.com
With copies to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Facsimile: (212) 455-2502
Attention: Kenneth B. Wallach, Sunny Cheong and Catherine Ciriello
E-mail: kwallach@stblaw.com; scheong@stblaw.com;
catherine.ciriello@stblaw.com
If to the Trustee or the Collateral Agent:
U.S. Bank Trust Company, National Association
100 Wall Street, Suite 600
New York, New York 10005
Attention: Global Corporate Trust Services
E-mail: shannon.matthews@usbank.com
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The Issuer, the Guarantors, the Trustee or the Collateral Agent by written notice to
the others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be deemed
to have been duly given at the time delivered by hand, if personally delivered; five (5) calendar days
after mailing if sent by first class mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the addressee); when receipt
acknowledged, if faxed; on the first date on which the publication is made, if given by publication;
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery; and at the time sent, if given electronically. Notice otherwise given
in accordance with the procedures of the Depository will be deemed given on the date sent to the
Depository.
Each of the Trustee and the Collateral Agent shall accept and act upon instructions,
directions, reports, notices and other communications or information pursuant to this Indenture sent
by unsecured electronic transmissions (including email and .pdf attachments); provided that (i)
neither the Trustee nor the Collateral Agent shall have any duty or obligation to verify or confirm
that the Person sending instructions, directions, reports, notices or other communications or
information by electronic transmission is, in fact, a Person authorized to give such instructions,
directions, reports, notices or other communications or information on behalf of the party purporting
to send such electronic transmission; and neither the Trustee nor the Collateral Agent shall have any
liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of
such reliance upon or compliance with such instructions, directions, reports, notices or other
communications or information and (ii) each other party agrees to assume all risks arising out of the
use of electronic methods to submit instructions, directions, reports, notices or other
communications or information to the Trustee and the Collateral Agent, including the risk of the
Trustee or the Collateral Agent acting on unauthorized instructions, notices, reports or other
communications or information, and the risk of interception and misuse by third parties.
Any notice or communication to a Holder shall be mailed by first class mail, certified
or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person to the extent required by the rules of any applicable securities depositary.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Where this Indenture or any Note provides for notice of
any event (including any notice of redemption or repurchase) to a Holder of a Global Note (whether
by mail or otherwise), such notice shall be sufficiently given if given to the Depository (or its
designee) pursuant to the standing instructions from the Depository or its designee, including by
electronic mail in accordance with applicable Depository procedures.
If a notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason of any other
cause, it shall be impossible to mail any notice as required by this Indenture, then such method of
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notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of
such notice.
Notwithstanding anything herein to the contrary, any notice to the Trustee shall be
deemed given when actually received.
Section 12.03Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect
to their rights under this Indenture or the Notes. The Issuer, the Guarantors, the Trustee, the
Registrar, each Agent and anyone else shall have the protection of TIA § 312(c).
Section 12.04Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any Guarantor to the Trustee or the
Collateral Agent to take any action under this Indenture and/or the First Lien Notes Security
Documents, as applicable, such Issuer or such Guarantor, as the case may be, shall furnish to the
Trustee or the Collateral Agent, as applicable (except in the case of any such application or request
as to which the furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or request, no additional certificate or opinion need
be furnished):
(1)an Officer’s Certificate (which shall include the statements set forth in
Section 12.05 below) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2)an Opinion of Counsel (which shall include the statements set forth in Section
12.05 below) stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
Section 12.05Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance by or on behalf of the Issuer
or any Guarantor with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to Section 4.05) and/or the First Lien Notes Security Documents, as applicable
shall include:
(1)a statement that the Person making such certificate or opinion has read such
covenant or condition;
(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 such Person, it or he has made such
examination or investigation as is necessary to enable it or him to express an informed
opinion as to whether or not such covenant or condition has been complied with (and, in the
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case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to
matters of fact); and
(4)a statement as to whether or not, in the opinion of such Person, such covenant
or condition has been complied with.
Section 12.06Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of Noteholders.
The Registrar and Paying Agent may make reasonable rules for their functions.
Section 12.07Business Days; Legal Holidays.
A “Business Day” is a day that is not a Legal Holiday. A “Legal Holiday” is a
Saturday, a Sunday or other day on which commercial banks in The City of New York, the State of
New York or at the place of payment in respect of the Notes are not required to be open. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 12.08Governing Law; Submission to Jurisdiction.
This Indenture, the Notes and the Note Guarantees shall be governed by and
construed in accordance with the laws of the State of New York. Each of the parties hereto
hereby irrevocably submits to the jurisdiction of any New York State court sitting in the
Borough of Manhattan in the City of New York or any federal court sitting in the Borough of
Manhattan in the City of New York in respect of any suit, action or proceeding arising out of
or relating to this Indenture, any Note Guarantee and the Notes, and irrevocably accepts for
itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid
courts.
Section 12.09No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan, security or debt
agreement of Holdings, the Issuer or any Subsidiary thereof. No such indenture, loan, security or
debt agreement may be used to interpret this Indenture.
Section 12.10Successors.
All agreements of the Issuer and the Guarantors in this Indenture and the Notes shall
bind their respective successors. All agreements of the Trustee, any additional trustee and any
Agents in this Indenture shall bind its successor.
Section 12.11Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent one and the same
agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF
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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 hereto transmitted by
facsimile or PDF shall be deemed to be their original signatures for all purposes. The words
“execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this
Indenture or any document to be signed in connection with this Indenture shall be deemed to
include electronic signatures and/or DocuSign, deliveries or 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, physical delivery thereof or the use of a paper-based recordkeeping system, as
the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder
by electronic means.
Section 12.12Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.13Separability.
Each provision of this Indenture shall be considered separable and if for any reason
any provision which is not essential to the effectuation of the basic purpose of this Indenture or 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 12.14Waiver of Jury Trial.
THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL
AGENT, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF,
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES
OR ANY TRANSACTION CONTEMPLATED HEREBY.
Section 12.15Force Majeure.
In no event shall the Trustee or the Collateral Agent be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee or the Collateral Agent shall
use reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
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Section 12.16Trust Indenture Act.
The Issuer and the Guarantors shall not be required to qualify this Indenture under
the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act term used in this Indenture has the following
meaning:
“obligor” on the Notes of any series and the Note Guarantees means the Issuer and
the Guarantors, respectively, and any successor obligor upon the Notes of such series and
the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or defined by the Commission rule under
the Trust Indenture Act have the meanings so assigned to them.
Section 12.17U.S.A. Patriot Act.
The Issuer and the Guarantors acknowledge that in accordance with Section 326 of
the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information
as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
[Signature Pages Follow]
[Signature Page to First Lien Notes Indenture]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
COOPER-STANDARD AUTOMOTIVE INC.,
as Issuer
By: /s/ Jonathan P. Banas
Name:Jonathan P. Banas
Title:Executive Vice President and
Chief Financial Officer
[Signature Page to First Lien Notes Indenture]
GUARANTORS:
CSA SERVICES INC.
COOPER-STANDARD FHS LLC
COOPER-STANDARD CANADA HOLDINGS LLC
CS INTERMEDIATE HOLDCO 1 LLC
COOPER-STANDARD AUTOMOTIVE FLUID
SYSTEMS MEXICO HOLDING LLC
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: President
NISCO HOLDING COMPANY
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: Vice President
COOPER-STANDARD LATIN AMERICA B.V.
By: /s/ James C. Zabriskie
Name: James C. Zabriskie
Title: Attorney
COOPER-STANDARD INDUSTRIAL AND
SPECIALTY GROUP, LLC
By: /s/ James C. Zabriskie
Name: James C. Zabriskie
Title: Treasurer
[Signature Page to First Lien Notes Indenture]
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee and as Collateral Agent
By: /s/ Shannon Matthews
Name: Shannon Matthews
Title: Assistant Vice President
1 Rule 144A Note CUSIP/ISIN: 216762 AK0/ US216762AK06
Regulation S Note CUSIP/ISIN: U20608 AH5/ USU20608AH57
A-1-1
EXHIBIT A
[FORM OF NOTE]
COOPER-STANDARD AUTOMOTIVE INC.
9.250% SENIOR SECURED FIRST LIEN NOTES DUE 2031
[Insert Global Note Legend, if applicable]
[Insert Private Placement Legend, if applicable]
No. [ ]CUSIP No. [ ]1
ISIN No. [ ]
$[ ]
[as revised by the Schedule of Exchanges
of Interests in Global Note attached hereto]
COOPER-STANDARD AUTOMOTIVE INC., an Ohio corporation (the
“Issuer”), for value received promises to pay to [ ][CEDE & CO.] or registered
assigns the principal sum [of $[ ]][set forth in the Schedule of Exchanges of
Interests in Global Note attached hereto] on March 1, 2031.
| Interest Payment Dates: | May 15 and November 15, commencing on November 15, 2026. | |
|---|---|---|
| R<br><br>ecord Dates: | May 1 and November 1 (whether or not a Business Day). |
Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually, by facsimile or electronically (including “.pdf”) by its duly authorized officer.
COOPER-STANDARD AUTOMOTIVE INC.
By:
Name:
Title:
Dated:
A-1-3
Certificate of Authentication
This is one of the 9.250% Senior Secured First Lien Notes due 2031 referred to
in the within-mentioned Indenture.
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
Dated:
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[FORM OF REVERSE OF NOTE]
COOPER-STANDARD AUTOMOTIVE INC.
9.250% SENIOR SECURED FIRST LIEN NOTES DUE 2031
1.Interest. Cooper-Standard Automotive Inc., an Ohio corporation (the
“Issuer”), promises to pay interest on the principal amount set forth on the face hereof at a rate
of 9.250% per annum in cash (“Interest”). Interest hereon will accrue from and including the
most recent date to which interest has been paid or, if no interest has been paid, from and
including March 4, 2026 to but excluding the date on which interest is paid. Interest shall be
payable in arrears on each May 15 and November 15, commencing on November 15, 2026, or
if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”) and no interest on such payment will accrue in respect of the delay.
Interest will be computed on the basis of a 360-day year comprising twelve 30-day months,
and in the case of an incomplete month, the number of actual days elapsed. The Issuer shall
pay interest on overdue principal and on overdue interest (to the extent lawful) at the rate
borne by the Notes.
2.Method of Payment. The Issuer will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of business on May 1
or November 1, as the case may be, immediately preceding the Interest Payment Date
(whether or not a Business Day). Interest may be paid by check mailed to the Holder entitled
thereto at the address indicated on the register maintained by the Registrar for the Notes;
provided that all payments of principal and interest and premium, if any, with respect to the
Notes represented by one or more Global Notes will be made in accordance with the
Depository’s applicable procedures. The Issuer will pay principal and Interest in U.S. Dollars.
Holders must surrender Notes to a Paying Agent to collect principal payments.
3.Paying Agent and Registrar. Initially, U.S. Bank Trust Company,
National Association (the “Trustee”) will act as a Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice. The Issuer or any of the Restricted
Subsidiaries may act as Paying Agent or Registrar.
4.Indenture. The Issuer issued the Notes under an Indenture, dated as of
March 4, 2026 (the “Indenture”), among the Issuer, the Guarantors, the Trustee and the
Collateral Agent. This is one of an issue of Notes of the Issuer issued, or to be issued, under
the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are
subject to all such terms, and Holders are referred to the Indenture for a statement of them.
Capitalized and certain other terms used herein and not otherwise defined have the meanings
set forth in the Indenture. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
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5.Optional Redemption.
At any time prior to March 1, 2028, the Issuer may, at its option, on any one or
more occasions redeem up to 35% of the aggregate principal amount of Notes issued under
the Indenture, including any Additional Notes issued after the Issue Date, upon not less than
10 nor more than 60 days’ notice, at a redemption price equal to 109.250% of the principal
amount of the Notes redeemed, with an amount of cash no greater than the cash proceeds (net
of underwriting discounts and commissions) of all Equity Offerings to the extent such cash
proceeds are received by or contributed to the Issuer since the Issue Date, plus accrued and
unpaid interest, if any, to but excluding the applicable Redemption Date; provided that:
(1)at least 65% (calculated without giving effect to any issuance of
Additional Notes) of the original aggregate principal amount of Notes issued under the
Indenture (excluding Notes held by the Issuer and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and
(2)each such redemption occurs within 120 days of the date of the closing
of each such Equity Offering.
In addition, prior to March 1, 2028, the Issuer may, at its option, redeem the
Notes on any one or more occasions, in whole or in part, at a redemption price equal to 100%
of the principal amount thereof, plus accrued and unpaid interest, if any, to but excluding the
Make-Whole Redemption Date, plus the applicable Make-Whole Premium (a “Make-Whole
Redemption”). The Issuer shall notify the Trustee of the Make-Whole Premium on or before
the applicable Redemption Date, and the Trustee shall have no responsibility for verifying or
otherwise for such calculation.
In addition, at any time and from time to time prior to March 1, 2028, the
Issuer may at its option redeem during each 12-month period commencing with the Issue Date
up to 10.0% of the aggregate principal amount of the Notes including any Additional Notes
issued after the Issue Date, at a redemption price equal to 103.000% of the aggregate principal
amount of the Notes redeemed, plus accrued and unpaid interest, if any, on the Notes
redeemed to, but excluding, the applicable Redemption Date.
On or after March 1, 2028, the Issuer may, at its option, redeem the Notes on
any one or more occasions, in whole or in part, upon not less than 10 nor more than 60 days’
notice, at the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest, if any, on the Notes redeemed to but excluding the
applicable Redemption Date, if redeemed during the periods indicated below:
| Period | Percentage |
|---|---|
| March 1, 2028 to February 28, 2029 | 104.625% |
| March 1, 2029 to February 28, 2030 | 102.313% |
| March 1, 2030 and thereafter | 100.000% |
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Unless the Issuer defaults in the payment of the redemption price, interest will
cease to accrue on the Notes or portions thereof called for redemption on the applicable
Redemption Date. The Issuer may provide in such notice that payment of the redemption
price and performance of the Issuer’s obligations with respect to such redemption may be
performed by another Person.
Notwithstanding the foregoing, in connection with any tender offer, if Holders
of not less than 90% in aggregate principal amount of the outstanding Notes validly tender
and do not withdraw such Notes in such tender offer and the Issuer, or any third party making
such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not
withdrawn by such Holders, the Issuer or such third party will have the right upon not less
than 10 nor more than 60 days’ prior notice, given not more than 60 days following the
effective date of such tender offer, to redeem (with respect to the Issuer) or purchase (with
respect to a third party) all Notes that remain outstanding following such purchase at a price
equal to the price offered to each other Holder in such tender offer (which may be less than
par and shall exclude any early tender premium and any accrued and unpaid interest paid to
any Holder in such tender offer payment) plus, to the extent not included in the tender offer
payment, accrued and unpaid interest, if any, thereon, to but excluding the Redemption Date
or purchase date, subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date falling on or prior to the
Redemption Date or purchase date. In determining whether the Holders of at least 90% of the
aggregate principal amount of the then outstanding Notes have validly tendered and not
validly withdrawn Notes in a tender offer, Change of Control Offer, Offer or Advance Offer,
as applicable, Notes owned by an Affiliate of the Issuer or by funds controlled or managed by
an Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the
purposes of such tender offer, Change of Control Offer, Offer or Advance Offer, as
applicable.
In addition, the Issuer and its Affiliates may acquire Notes at any time and
from time to time by means other than a redemption, whether by tender offer, open market
purchases, negotiated transactions or otherwise, in accordance with applicable securities laws,
so long as such acquisition does not otherwise violate the terms of the Indenture.
Notwithstanding the foregoing, the payment of accrued but unpaid interest in
connection with any redemption of Notes is subject to the rights of a Holder on a record date
for the payment of interest whose Notes are to be redeemed on or after such record date but on
or prior to the related Interest Payment Date to receive interest on such Interest Payment Date.
6.Offers To Purchase. The Indenture provides that upon the occurrence
of a Change of Control or an Asset Disposition and subject to further limitations and
exceptions contained therein, the Issuer may be required to make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture. Except as set
forth in Sections 4.07 and 4.08 of the Indenture, the Issuer is not required to make any
mandatory redemption or sinking fund payments with respect to the Notes.
A-1-7
7.Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess
thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuer or the Trustee may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture. The Registrar or the
Issuer need not register the transfer of or exchange any Notes or portion of a Note selected for
redemption, or register the transfer of or exchange any Notes for a period of 15 days before a
selection of Notes to be redeemed.
8.Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
9.Unclaimed Money. Subject to applicable escheat laws, if money for
the payment of principal or interest remains unclaimed for two years, the Trustee will pay the
money back to the Issuer at its written request. After that, Holders entitled to the money must
look to the Issuer and the Guarantors for payment as general unsecured creditors unless an
“abandoned property” law designates another Person.
10.Amendment, Supplement, Waiver, Etc. The Indenture, the Notes or the
Note Guarantees may be amended or supplemented as provided in the Indenture.
11.Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other things, consummate
Asset Dispositions, Incur Indebtedness or issue shares of Disqualified Stock or Preferred
Stock, create or Incur Liens, make certain Investments and other Restricted Payments, enter
into consensual restrictions upon the payment of certain dividends and distributions by the
Restricted Subsidiaries that are not Guarantors, enter into or permit certain transactions with
Affiliates or consolidate, merge or sell all or substantially all of the assets of the Issuer and its
Restricted Subsidiaries. The Indenture also limits the activities of Parent and Holdings. Such
limitations are subject to a number of important qualifications and exceptions. Pursuant to
Section 4.05 of the Indenture, the Issuer must annually report to the Trustee on compliance
with such limitations.
13.Defaults and Remedies. The Events of Default relating to the Notes are
defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default relating
to the Notes, the rights and obligations of the Issuer, the Guarantors, the Trustee, the
Collateral Agent and the Holders shall be as set forth in the applicable provisions of the
Indenture.
14.No Recourse Against Others. No past, present or future director,
officer, employee, manager, member, partner, incorporator or stockholder of the Issuer or of
any Subsidiary or any Parent Entity (other than the Issuer in respect of the Notes and each
Guarantor in respect of its Note Guarantee), as such, shall have any liability for any
A-1-8
obligations of the Issuer or the Guarantors under the Notes, the Indenture, the First Lien Notes
Security Documents or the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability.
15.Guarantees. The Notes will be entitled to the benefits of certain Note
Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and obligations thereunder
of the Guarantors, the Trustee, the Collateral Agent and the Holders.
17.Security. The Notes shall be secured by Liens on the Collateral on an
equal and ratable basis with any Fixed Asset Obligations, subject to Permitted Liens, on the
terms and conditions set forth in the Indenture and the First Lien Notes Security Documents.
The Collateral Agent holds a Lien in the Collateral for the benefit of the Trustee and the
Holders, in each case, pursuant to the First Lien Notes Security Documents.
18.Maturity Date. The Notes will mature on March 1, 2031 (the “Maturity
Date”).
19.Authentication. This Note shall not be valid until the Trustee manually,
by facsimile or electronically (including “.pdf”) signs the certificate of authentication on the
other side of this Note.
20.Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
21.Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22.CUSIP and ISIN numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP and ISIN numbers and/or similar numbers to be printed on the Notes and the Trustee
may use CUSIP and ISIN numbers and/or similar numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request and without charge
a copy of the Indenture. Requests may be made to:
Cooper-Standard Automotive Inc.
40300 Traditions Drive
Northville, Michigan 48168
Attention: Chief Legal Officer
A-1-9
Email: maryann.kanary@CooperStandard.com
A-1-10
ASSIGNMENT
I or we assign and transfer this Note to:
| (Insert assignee’s social security or tax I.D. number) | | --- || (Print or type name, address and zip code of assignee) | | --- |
and irrevocably appoint
Agent to transfer this Note on the books of the Issuer. The Agent may substitute another to
act for him.
Date:Your Signature:
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:______________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting
the requirements of the Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the Issuer
pursuant to Section 4.07 or Section 4.08 of the Indenture, check the appropriate box:
Section 4.07Section 4.08
If you want to have only part of the Note purchased by the Issuer pursuant to
Section 4.07 or Section 4.08 of the Indenture, state the amount you elect to have purchased:
$
($2,000 or any integral multiple
thereof; provided that the part not
purchased must be at least $1,000)
Date:
Your Signature:___________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting
the requirements of the Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
* Insert in Global Securities only.
A-1-12
Schedule of Exchanges of Interests in Global Note2
The initial outstanding principal amount of this Global Note is $[ ]. The
following exchanges of a part of this Global Note for an interest in another Global Note or for
a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest
in this Global Note, have been made:
| Date of<br><br>Exchange | Amount of<br><br>decrease in<br><br>Principal<br><br>Amount of this<br><br>Global Note | Amount of<br><br>increase in<br><br>Principal<br><br>Amount of this<br><br>Global Note | Principal<br><br>Amount of this<br><br>Global Note<br><br>following such<br><br>decrease (or<br><br>increase) | Signature of<br><br>authorized<br><br>signatory of<br><br>Trustee |
|---|
B-1
EXHIBIT B
[FORM OF PRIVATE PLACEMENT LEGEND]
Any Restricted Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a Global Note or a
Note issued with original issue discount) in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (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 OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, 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 [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE
OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40
DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED
IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO
THE ISSUER OR ANY SUBSIDIARY THEREOF, (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 (“RULE 144A”),
TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A 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, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING 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 ISSUER’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
B-2
INFORMATION SATISFACTORY TO EACH OF THEM. [IN THE CASE OF
REGULATION S NOTES: 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.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) THE
HOLDER IS NOT ACQUIRING OR HOLDING THIS SECURITY FOR OR ON BEHALF
OF, AND NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR
HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO
SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL,
NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR OF
AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE
“PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE
ACQUISITION, HOLDING AND SUBSEQUENT DISPOSITION OF THIS SECURITY
BY THE HOLDER WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
C-1
EXHIBIT C
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a Restricted Note or a
Note issued with original issue discount) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
D-1
Exhibit D
[FORM OF LEGEND FOR REGULATION S NOTE]
Any Regulation S Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of a Restricted
Note) in substantially the following form:
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 NOTE IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
E-1
Exhibit E
FORM OF CERTIFICATE OF TRANSFER
Cooper-Standard Automotive Inc.
40300 Traditions Drive
Northville, Michigan 48168
U.S. Bank Trust Company, National Association
60 Livingston Avenue, 2nd Floor
St. Paul, MN 55107
Facsimile: (651) 495-8146
Attention: Corporate Trust, DWAC UNIT
Re: Cooper-Standard Automotive Inc.
Re:9.250% Senior Secured First Lien Notes due 2031
(CUSIP _____________)
(ISIN _______________)
Reference is hereby made to the Indenture, dated as of March 4, 2026 (as amended or
supplemented from time to time with respect to the Notes, the “Indenture”), by and among
Cooper-Standard Automotive Inc. (the “Issuer”), the Guarantors and U.S. Bank Trust
Company, National Association, as trustee and collateral agent. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
______________ (the “Transferor”) owns and proposes to transfer the Note[s]
or interest in such Note[s] specified in Annex A hereto, in the principal amount of
___________ in such Note[s] or interests (the “Transfer”), to __________ (the “Transferee”),
as further specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in a Rule 144A
Global Note or a Physical Note pursuant to Rule 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Physical Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or Physical Note for its
E-2
own account, or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A and such Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Physical Note will be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the Rule
144A Global Note and/or the Physical Note and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in a Regulation S
Global Note or a Physical Note pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act and (iv) if the proposed transfer is
being made prior to the expiration of the Restricted Period, the transfer is not being made to a
U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Physical Note will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Note and/or the Physical Note
and in the Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial interest in
the Global Note or a Physical Note pursuant to any provision of the Securities Act other
than Rule 144A or Regulation S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Physical Notes and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the Transferor
hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Issuer or a Subsidiary thereof;
E-3
or
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;
or
(d) such Transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Physical Notes and the requirements of the
exemption claimed, which certification is supported by, if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Physical Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Global Note and/or the Physical Notes and in the
Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or an Unrestricted Physical Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial interest or Physical
Note will no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted Physical Notes and in
the Indenture.
(b) Check if Transfer is pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon consummation of the
E-4
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Physical Note will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on Restricted Physical
Notes and in the Indenture.
(c) Check if Transfer is pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and
in compliance with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial interest or Physical
Note will not be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Physical Notes and in the
Indenture.
(d) Check if Transfer is pursuant to an Effective Registration
Statement. (i) The Transfer is being effected pursuant to and in compliance with an
effective registration statement under the Securities Act and any applicable blue sky securities
laws of any State of the United States and in compliance with the prospectus delivery
requirements of the Securities Act and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Physical Note will not be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Physical Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
E-5
ANNEX A TO CERTIFICATE OF TRANSFER
1.The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) a beneficial interest in a:
(i) Rule 144A Global Note (CUSIP ______) (ISIN ______), or
(ii) Regulation S Global Note (CUSIP ______) (ISIN ______), or
(b) a Restricted Physical Note.
2.After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) Rule 144A Global Note (CUSIP _______) (ISIN ______), or
(ii) Regulation S Global Note (CUSIP ______)(ISIN ______), or
(iii) Unrestricted Global Note (CUSIP ______) (ISIN ______), or
(b) a Restricted Physical Note; or
(c) an Unrestricted Physical Note,
in accordance with the terms of the Indenture.
F-1
EXHIBIT F
FORM OF CERTIFICATE OF EXCHANGE
Cooper-Standard Automotive Inc.
40300 Traditions Drive
Northville, Michigan 48168
U.S. Bank Trust Company, National Association
60 Livingston Avenue, 2nd Floor
St. Paul, MN 55107
Facsimile: (651) 495-8146
Attention: Corporate Trust, DWAC UNIT
re: Cooper-Standard Automotive Inc.
Re:9.250% Senior Secured First Lien Notes due 2031
(CUSIP______________)
(ISIN _______________)
Reference is hereby made to the Indenture, dated as of March 4, 2026 (as amended or
supplemented from time to time with respect to the Notes, the “Indenture”), by and among
Cooper-Standard Automotive Inc. (the “Issuer”), the Guarantors and U.S. Bank Trust
Company, National Association, as trustee and collateral agent. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
____________ (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of ____________ in such
Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby
certifies that:
1.Exchange of Restricted Physical Notes or Beneficial Interests in a Restricted
Global Note for Unrestricted Physical Notes or Beneficial Interests in an Unrestricted
Global Note
(a)Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own account without
F-2
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(b)Check if Exchange is from Restricted Physical Note to
beneficial interest in an Unrestricted Global Note. In connection with the Owner’s
Exchange of a Restricted Physical Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Physical Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(c)Check if Exchange is from Restricted Physical Note to
Unrestricted Physical Note. In connection with the Owner’s Exchange of a Restricted
Physical Note for an Unrestricted Physical Note, the Owner hereby certifies (i) the
Unrestricted Physical Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer restrictions applicable to
Restricted Physical Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Unrestricted
Physical Note is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
2.Exchange of Restricted Physical Notes for Restricted Physical Notes or Beneficial
Interests in Restricted Global Notes.
(a)Check if Exchange is from Restricted Physical Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange of the
Owner’s Restricted Physical Note for a beneficial interest in the [CHECK ONE] __ Rule
144A Global Note, __Regulation S Global Note with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account
without transfer and (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the restrictions on
F-3
transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global
Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer.
[Insert Name of Owner]
By:
Name:
Title:
Dated: ________________
G-1
EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
, among (the “Guaranteeing Subsidiary”), a subsidiary of Cooper-
Standard Automotive Inc. (or its permitted successor), an Ohio corporation (the “Issuer”) and
U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and as collateral
agent (the “Collateral Agent”) under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Issuer, the Guarantors party thereto, the Trustee and the
Collateral Agent are parties to an indenture, dated as of March 4, 2026 (the “Indenture”),
providing for the issuance of the Issuer’s 9.250% Senior Secured First Lien Notes due 2031
(the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the
Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth
herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 8.01 of the Indenture, the Trustee and
Collateral Agent are authorized to execute and deliver this Supplemental Indenture to amend
or supplement the Indenture without the consent of any Holder.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders as follows:
1.CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2.AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Indenture including but not limited to Article X thereof.
3.EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees
that the Note Guarantee shall remain in full force and effect notwithstanding the absence of
the endorsement of any notation of such Note Guarantee on the Notes.
G-2
4.THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
5.COUNTERPARTS. The parties 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 words “execution,” “signed,” “signature,” “delivery,” and
words of like import in or relating to this Supplemental Indenture or any document to be
signed in connection with this Supplemental Indenture shall be deemed to include electronic
signatures, deliveries or 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, physical
delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the
parties hereto consent to conduct the transactions contemplated hereunder by electronic
means.
6.EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
7.THE TRUSTEE AND THE COLLATERAL AGENT. Neither the
Trustee nor the Collateral Agent shall 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 Guaranteeing Subsidiary
and the Issuer.
G-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above written.
Dated: ___________
[GUARANTEEING SUBSIDIARY]
By:
Name:
Title:
COOPER-STANDARD AUTOMOTIVE INC.
By:
Name:
Title:
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee and as Collateral Agent
By:
Name:
Title:
Ex. 4.2 - Fifth Amendment - Redlined Loan Agreement Exhibit 4.2
EXECUTION VERSION
AMENDMENT NO. 5 TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
This AMENDMENT NO. 5 TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT (this “Agreement”) is entered into as of March 4, 2026, by and among CS
INTERMEDIATE HOLDCO 1 LLC, a Delaware limited liability company (“Holdings”), COOPER-
STANDARD AUTOMOTIVE INC., an Ohio corporation (the “U.S. Borrower”), COOPER-
STANDARD AUTOMOTIVE CANADA LIMITED, an Ontario corporation (the “Canadian Borrower”
and, together with the U.S. Borrower, the “Borrowers”), the other Loan Parties party hereto, BANK OF
AMERICA, N.A., individually and as agent (“Agent”), and the Lenders signatory hereto.
RECITALS
A. Holdings, the Borrowers, the other Loan Parties party thereto, Agent and the Lenders are
party to that certain Third Amended and Restated Loan Agreement dated as of November 2, 2016, as
amended by Amendment No. 1 to Third Amended and Restated Loan Agreement and Limited Waiver
dated as of March 24, 2020, Amendment No. 2 to Third Amended and Restated Loan Agreement dated as
of May 18, 2020, Amendment No. 3 to Third Amended and Restated Loan Agreement dated as of
December 19, 2022, and Amendment No. 4 to Third Amended and Restated Loan Agreement dated as of
May 6, 2024 (as in effect immediately prior to this Agreement, the “Existing Loan Agreement”, and as
amended by this Agreement and as further amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Loan Agreement”), pursuant to which the Lenders make
certain revolving loans and other financial accommodations to the Borrowers. Unless otherwise specified
herein, capitalized terms used in this Agreement shall have the meanings ascribed to them by the Loan
Agreement.
B. Cooper-Standard Holdings Inc. and certain of its direct or indirect subsidiaries, including
the U.S. Borrower and Holdings, wish to enter into a notes offering (the “Offering”) of up to $1.1 billion
aggregate principal amount of a series of new senior secured notes, consisting of new senior secured first
lien notes in the aggregate principal amount of $1.1 billion (the “New 1L Notes”) to be issued by the U.S.
Borrower, and the use of the proceeds from the Offering (which may be used together with cash on hand)
to refinance, through a redemption, tender offer, repurchase or otherwise, all or any portion of the
outstanding (i) First Lien Notes (as defined in the Existing Loan Agreement), (ii) the Senior Secured
Notes (as defined in the Existing Loan Agreement) and (iii) the Senior Unsecured Notes (as defined in the
Existing Loan Agreement) (including to pay any prepayment, repurchase or redemption premium in
connection therewith) and pay fees and expenses related to the foregoing (the transactions described in
this clause (B) relating to the New 1L Notes, the “Notes Transactions”).
C. Holdings, the Borrowers, the other Loan Parties, Agent and the undersigned Lenders wish
to amend the Existing Loan Agreement on the terms and conditions set forth below pursuant to Section
14.1.1 of the Existing Loan Agreement, to among other things, remove each Specified Jurisdiction
Guarantor identified on Annex B attached hereto (the “Released Guarantors”), but for the avoidance of
doubt expressly not releasing Cooper-Standard Latin America B.V. (“CS Latin America”), as a Guarantor.
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Now, therefore, in consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1. Amendments. Upon the Fifth Amendment Effective Date (as defined below), the
Existing Loan Agreement is hereby amended to delete the stricken text (indicated textually in substantially
the same manner as the following example: stricken text) and to add the double-underlined text (indicated
textually in substantially the same manner as the following example: double-underlined text) as set forth
in the Loan Agreement attached as Annex A hereto
2. Fifth Amendment Effective Date. The amendments set forth in Section 1 of this
Agreement shall become effective upon satisfaction of the following conditions (the “Fifth Amendment
Effective Date”):
(a) the execution and delivery of this Amendment by the undersigned Loan
Parties, Agent and each Lender as of the date hereof;
(b) Agent shall have received a certificate of a duly authorized officer of or
other person authorized to represent each applicable Loan Party (excluding, for the avoidance of doubt,
each Released Guarantor), certifying (i) except as attached thereto, there have been no changes to the
Organization Documents of each applicable Loan Party previously delivered to Agent, and such
Organization Documents are in full force and effect, without amendment except as shown; (ii) that an
attached copy of resolutions authorizing execution and delivery of the Loan Documents to which such
Loan Party is a party is true and complete, and that such resolutions are in full force and effect, were duly
adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect
to this credit facility; (iii) all governmental and other third party approvals and consents, if any, with
respect to this Agreement have been obtained and are in effect; and (iv) to the title, name and signature of
each Person authorized to sign the Loan Documents to which such Loan Party is a party. Agent may
conclusively rely on this certificate until it is otherwise notified by the applicable Loan Party in writing;
(c) Agent shall have received a certificate, in form and substance reasonably
satisfactory to it, from a Responsible Officer of each Borrower certifying that, after giving effect to this
Amendment and the transactions hereunder, (i) the Canadian Borrower and its consolidated Restricted
Subsidiaries, taken as a whole, and the U.S. Borrower and its consolidated Restricted Subsidiaries, taken
as a whole, are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and
warranties set forth in Section 9 of the Loan Agreement are true and correct in all material respects as of
the Fifth Amendment Effective Date (or, with respect to representations and warranties qualified by
materiality, in all respects) (except for representations and warranties that expressly relate to an earlier
date, in which case such representations and warranties shall be true and correct in all material respects
(or, with respect to representations and warranties qualified by materiality, in all respects) as of such
earlier date);
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(d) Agent shall have received UCC, PPSA, and Lien searches and other
evidence satisfactory to Agent that its Liens are the only Liens upon the Collateral, except Permitted
Liens;
(e) all accrued fees and expenses of Agent (including the fees and expenses of
counsel (including any local counsel) for Agent) due from the Loan Parties on or prior to the Fifth
Amendment Effective Date pursuant to the Loan Documents shall have been paid in full in cash;
(f) the Notes Transactions shall be consummated substantially simultaneously
with the Fifth Amendment Effective Date; and
(g) to the extent reasonably requested by Agent or any Lender at least 10
Business Days prior to the Fifth Amendment Effective Date, each Borrower shall have provided all
documentation and other information as Agent or any Lender shall have reasonably requested in
connection with applicable “know your customer” and anti-money-laundering rules and regulations,
including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership
Certification to Agent and Lenders in relation to such Borrower.
3. Release of Specified Jurisdiction Guarantors. With respect to each Released
Guarantor. Upon the effectiveness of this Agreement, the Released Guarantors shall no longer constitute
Guarantors or Loan Parties for purposes of the Loan Documents. Pursuant to Section 12.1 of the
Agreement, Agent shall release any guarantee provided by the Released Guarantors as if such Released
Guarantors were subject of a disposition, merger, amalgamation or other combination or transaction not
prohibited thereunder (mutatis mutandis). Notwithstanding the foregoing or anything else contained
herein, it is understood and agreed that (a) the release of the Released Guarantors shall in no manner
release, affect or impair any Guarantee provided by any other guarantor under the Loan Documents other
than with respect to the Released Guarantors and (b) the Loan Documents shall continue to be in full force
and effect against all of the Loan Parties other than the Released Guarantors.
4. Acknowledgment and Reaffirmation. Each of the undersigned Loan Parties hereby
(a) unconditionally consents to the terms of this Agreement, including the amendments in Section 1
hereof, and fully ratifies and affirms its respective obligations under the Loan Agreement and the other
Loan Documents taking into account this Agreement and giving effect to the Fifth Amendment Effective
Date, (b) to the extent such Loan Party guaranteed the Obligations pursuant to a Guarantee, ratifies and
reaffirms its obligations under such Guarantee and (c) acknowledges and agrees that the execution,
delivery and performance of this Agreement and the other documents shall not impair the validity,
effectiveness or priority of the Liens granting pursuant to the Security Documents, and such Liens are
ratified and reaffirmed and shall continue unimpaired with the same priority to serve the applicable
Obligations.
5. Reference to and Effect Upon the Loan Agreement.
(a) Except as specifically amended above, the Loan Agreement and the other
Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. This
Agreement and the amendments set forth in Section 1 hereof do not constitute a novation under the
Existing Loan Agreement.
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(b) The execution, delivery and effectiveness of this Agreement and the
amendments in Section 1 hereof shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Loan Agreement or any Loan Document, nor constitute a waiver of any provision of
the Loan Agreement or any Loan Document. Upon the Fifth Amendment Effective Date, each reference in
the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall
mean and be a reference to the Loan Agreement as amended hereby.
(c) This Agreement shall constitute a Loan Document for purposes of the Loan
Agreement and the other Loan Documents.
6. Costs and Expenses. Each Borrower hereby affirms its obligation under Section 3.4
of the Loan Agreement to reimburse Agent for all reasonable out-of-pocket expenses incurred by Agent in
connection with the negotiation and preparation of this Agreement, including but not limited to the
reasonable fees, charges and disbursements of attorneys for Agent with respect thereto.
7. Governing Law. This Agreement shall be governed by the laws of the State of New
York.
8. Consent to Forum. EACH LOAN PARTY PARTY HERETO HEREBY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT
SITTING IN OR WITH JURISDICTION OVER THE STATE OF NEW YORK, IN ANY
PROCEEDING OR DISPUTE RELATING IN ANY WAY TO THIS AGREEMENT, AND AGREES
THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT.
EACH LOAN PARTY PARTY HERETO IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS
AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT
MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 14.3.1 OF THE LOAN AGREEMENT.
9. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
10. Counterparts; Electronic Execution. Section 14.8 of the Loan Agreement is hereby
incorporated by reference herein mutatis mutandis.
[signature pages follow]
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
| CS INTERMEDIATE HOLDCO 1 LLC, as a<br><br>U.S. Facility Guarantor and a Canadian Facility<br><br>Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: President |
|---|
| COOPER-STANDARD AUTOMOTIVE<br><br>INC., as a U.S. Borrower, a U.S. Facility<br><br>Guarantor and a Canadian Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: Executive Vice President and Chief<br><br>Financial Officer |
| COOPER-STANDARD INDUSTRIAL AND<br><br>SPECIALTY GROUP, LLC (f/k/a Lauren<br><br>Manufacturing, LLC), as a U.S. Guarantor and<br><br>a U.S. Guarantor and Canadian Facility<br><br>Guarantor<br><br>By: /s/ James Zabriskie<br><br>Name: James Zabriskie<br><br>Title: Treasurer |
| COOPER-STANDARD AUTOMOTIVE<br><br>CANADA LIMITED, as the Canadian<br><br>Borrower and a Canadian Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: Vice President |
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| COOPER-STANDARD AUTOMOTIVE<br><br>FLUID SYSTEMS MEXICO HOLDING<br><br>LLC, as a U.S. Facility Guarantor and Canadian<br><br>Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: Vice President | | --- || CSA SERVICES INC., as a U.S. Facility<br><br>Guarantor and Canadian Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: Vice President | | --- | | NISCO HOLDING COMPANY, as a U.S.<br><br>Facility Guarantor and Canadian Facility<br><br>Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: Vice President |
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| COOPER-STANDARD FHS LLC (f/k/a<br><br>COOPER-STANDARD AUTOMOTIVE<br><br>FHS INC.), as a U.S. Facility Guarantor and<br><br>Canadian Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: President<br><br>COOPER-STANDARD CANADA<br><br>HOLDINGS LLC, as a U.S. Facility Guarantor<br><br>and Canadian Facility Guarantor<br><br>By: /s/ Jonathan P. Banas<br><br>Name: Jonathan P. Banas<br><br>Title: President |
|---|
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| COOPER-STANDARD LATIN AMERICA B.V.,<br><br>having its registered office in Amsterdam, the<br><br>Netherlands and registered with the trade register of<br><br>the Chamber of Commerce under number 63256118,<br><br>as Specified Jurisdiction Guarantor<br><br>By: /s/ James C. Zabriskie<br><br>Name: James C. Zabriskie<br><br>Title: Attorney |
|---|
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| AGENT AND LENDERS:<br><br>BANK OF AMERICA, N.A.,<br><br>as Agent and U.S. Lender<br><br>By: /s/ Karla M. Ruppert<br><br>Name: Karla M. Ruppert<br><br>Title: Senior Vice President |
|---|
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| BANK OF AMERICA, N.A., (acting through its<br><br>Canada branch), as a Canadian Lender<br><br>By: /s/ Davood Ashrafi<br><br>Name: Davood Ashrafi<br><br>Title: Assistant Vice President |
|---|
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| MUFG BANK, LTD., as a Lender<br><br>By: /s/ Erick Moore<br><br>Name: Erick Moore<br><br>Title: Vice President |
|---|
[Signature Page to Amendment No. 5 to Third Amended and Restated Loan Agreement]
| GOLDMAN SACHS BANK USA, as a Lender<br><br>By: /s/ Roopa Chandra<br><br>Name: Roopa Chandra<br><br>Title: Authorized Signatory |
|---|
ANNEX A
[See Attached]
AmericasActive:19663285.13
Annex A
Conformed Through Amendment No. 45
AmericasActive:22235532.9
______________________________________________________________________________
$180,000,000
THIRD AMENDED AND RESTATED LOAN AGREEMENT
among
CS INTERMEDIATE HOLDCO 1 LLC,
as a U.S. Facility Guarantor and a Canadian Facility Guarantor
COOPER-STANDARD AUTOMOTIVE INC.,
as the U.S. Borrower, a U.S. Facility Guarantor and a Canadian Facility Guarantor
COOPER-STANDARD AUTOMOTIVE CANADA LIMITED,
as the Canadian Borrower and a Canadian Facility Guarantor
THE OTHER GUARANTORS PARTY HERETO,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders
and
BANK OF AMERICA, N.A.,
as Agent
Dated as of November 2, 2016,
as amended by Amendment No. 1, dated as of March 24, 2020,
as amended by Amendment No. 2, dated as of May 18, 2020,
as amended by Amendment No. 3, dated as of December 19, 2022,
and as amended by Amendment No. 4, dated as of May 6, 2024,
as amended by Amendment No. 5, dated as of March 4, 2026
BOFA SECURITIES, INC.
as Syndication Agent
BOFA SECURITIES, INC.
and
GOLDMAN SACHS BANK USA,
as Joint Lead Arrangers and Bookrunners
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TABLE OF CONTENTS
Page
_____________________________________________________________________________
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION2
1.1Definitions2
1.2Accounting Terms7473
1.3Uniform Commercial Code/PPSA74
1.4Certain Matters of Construction74
1.5Interpretation (Quebec)75
1.6Term SOFR Successor Rate75
1.7Term CORRA Successor Rate7776
1.8Divisions78
1.9Interest Rates78
SECTION 2. CREDIT FACILITIES78
2.1Commitment78
2.1.1Revolver Loans78
2.1.2Revolver Notes79
2.1.3Use of Proceeds8079
2.1.4Reduction or Termination of Commitments; Increase of
Commitments8079
2.1.5Overadvances82
2.1.6Protective Advances8382
2.1.7Prepayments83
2.2U.S. Letter of Credit Facility83
2.2.1Issuance of Letters of Credit83
2.2.2U.S85
2.2.3Cash Collateral8786
2.2.4Resignation of U.S8786
2.3Canadian Letter of Credit Facility87
2.3.1Issuance of Letters of Credit87
2.3.2Canadian Letters of Credit: Reimbursement and Participations
8988
2.3.3Cash Collateral90
2.3.4Resignation of Canadian Issuing Bank90
2.4FILO Credit Facility9190
SECTION 3. INTEREST, FEES AND CHARGES93
3.1Interest93
3.1.1Rates and Payment of Interest93
3.1.2Application of Term SOFR to Outstanding Loans94
3.1.3Application of Term CORRA to Outstanding Loans9594
3.1.4Interest Periods95
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3.1.5Interest Rate Not Ascertainable9695
3.2Fees9695
3.2.1Unused Line Fee9695
3.2.2US.S. LC Facility Fees96
3.2.3[Reserved]96
3.2.4Canadian LC Facility Fees96
3.2.5Other Fees9796
3.3Computation of Interest, Fees, Yield Protection9796
3.4Reimbursement Obligations97
3.5Illegality9897
3.6Inability to Determine Rates98
3.7Increased Costs; Capital Adequacy98
3.7.1Change in Law98
3.7.2Capital Adequacy9998
3.7.3Compensation99
3.7.4Term SOFR Loan Reserves99
3.8Mitigation10099
3.9Funding Losses10099
3.10Maximum Interest100
SECTION 4. LOAN ADMINISTRATION101
4.1Manner of Borrowing and Funding Loans101
4.1.1Notice of Borrowing101
4.1.2Fundings by Lenders102
4.1.3Swingline Loans; Settlement; Rescindable Amounts103102
4.1.4Notices104
4.2Defaulting Lender104
4.2.1Reallocation of Pro Rata Share; Amendments104
4.2.2Payments; Fees105104
4.2.3Status; Cure105104
4.3Number and Amount of Interest Period Loans; Determination of Rate105
4.4Loan Party Agent106105
4.5One Obligation107105
4.6Effect of Termination107106
SECTION 5. PAYMENTS107106
5.1General Payment Provisions107106
5.2Repayment of Obligations108106
5.3Payment of Other Obligations108107
5.4Marshaling; Payments Set Aside108107
5.5Post-Default Allocation of Payments108107
5.5.1Allocation108107
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5.5.2Erroneous Application111109
5.6Application of Payments111109
5.7Loan Account; Account Stated111110
5.7.1Loan Account111110
5.7.2Entries Binding111110
5.8Taxes111110
5.8.1Payments Free of Taxes112110
5.8.2Other Taxes112110
5.8.3Indemnification by Loan Parties112111
5.8.4Indemnification by Lenders112111
5.8.5Evidence of Payment112111
5.8.6Treatment of Certain Refunds113111
5.8.7Survival113112
5.8.8Defined Terms113112
5.9Lender Tax Information113112
5.9.1Generally113112
5.9.2U.S114112
5.9.3Lender Obligations114113
5.10Guarantee Loan Parties114113
5.10.1Joint and Several Liability115113
5.10.2Waivers115114
5.10.3Extent of Liability; Contribution117115
5.10.4Joint Enterprise118116
5.10.5Subordination118116
5.10.6French Guarantors118
5.11Currency Matters120116
5.11.3Each payment of fees by the U.S120116
5.12Currency Fluctuations121117
SECTION 6. CONDITIONS PRECEDENT121118
6.1Conditions Precedent to Initial Loans121118
6.2Conditions Precedent to All Credit Extensions124120
SECTION 7. CASH COLLATERAL124120
7.1Cash Collateral124120
SECTION 8. COLLATERAL ADMINISTRATION125121
8.1Borrowing Base Certificates125121
8.2Administration of Accounts125121
8.2.1Records and Schedules of Accounts125121
8.2.2Taxes126122
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8.2.3Account Verification126122
8.2.4Maintenance of DACA Deposit Accounts and Dominion
Accounts126122
8.2.5Proceeds of Collateral; Payment Items Received127123
8.3Administration of Inventory127123
8.3.1Records and Reports of Inventory127123
8.3.2Returns of Inventory127123
8.3.3Acquisition, Sale and Maintenance127123
8.4[Intentionally Omitted]127124
8.5Administration of Deposit Accounts128124
8.6General Provisions128124
8.6.1Location of Collateral128124
8.6.2Insurance of Collateral; Condemnation Proceeds128125
8.6.3Protection of Collateral129125
8.6.4Defense of Title to Collateral129126
8.7Power of Attorney130126
SECTION 9. REPRESENTATIONS AND WARRANTIES130126
9.1General Representations and Warranties130126
9.1.1Organization and Qualification130126
9.1.2Power and Authority131126
9.1.3Enforceability131127
9.1.4Corporate Names; Capital Structure131127
9.1.5Locations131127
9.1.6Title to Properties; Priority of Liens131127
9.1.7Accounts and Inventory131127
9.1.8Financial Statements; Solvency; Material Adverse Effect
132128
9.1.9Taxes133129
9.1.10[Intentionally Omitted]133129
9.1.11Intellectual Property133129
9.1.12Governmental Approvals134129
9.1.13Compliance with Laws134129
9.1.14Compliance with Environmental Laws134130
9.1.15Burdensome Contracts134130
9.1.16Litigation135130
9.1.17No Defaults135130
9.1.18ERISA135131
9.1.19Trade Relations136132
9.1.20Labor Relations137132
9.1.21Payable Practices137132
9.1.22Not a Regulated Entity137132
9.1.23Margin Stock137133
9.1.24Perfection, Etc137133
9.1.25OFAC; Sanctions138134
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9.1.26Affected Financial Institution138134
9.1.27Anti-Corruption Laws138134
9.2Complete Disclosure138134
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS139134
10.1Affirmative Covenants139134
10.1.1Financial and Other Information139134
10.1.2Notices143139
10.1.3Landlord and Storage Agreements144140
10.1.4Compliance with Laws144140
10.1.5Taxes144140
10.1.6Preservation of Existence, Etc145140
10.1.7Maintenance of Properties145140
10.1.8Insurance145140
10.1.9Inspections; Appraisals145141
10.1.10Use of Proceeds146141
10.1.11Covenant to Guarantee Obligations and Give Security146141
10.1.12Licenses150144
10.1.13Post-Closing Matters150144
10.2Negative Covenants150144
10.2.1Permitted Liens150144
10.2.2Permitted Indebtedness150145
10.2.3Restricted Payments159153
10.2.4Holdings Activities166160
10.2.5[Intentionally Omitted]166160
10.2.6[Intentionally Omitted]166160
10.2.7Fundamental Changes166160
10.2.8[Intentionally Omitted]169163
10.2.9Organization Documents169163
10.2.10Tax Consolidation169163
10.2.11Accounting Changes169163
10.2.12Dividend and Other Payment Restrictions Affecting
Subsidiaries169163
10.2.13Hedging Agreements172166
10.2.14Conduct of Business172166
10.2.15Affiliate Transactions172166
10.2.16Plans175169
10.2.17Certain Amendments175169
10.3Financial Covenant175169
10.3.1Fixed Charge Coverage Ratio175169
SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT176170
11.1Events of Default176170
11.2Remedies upon Default178172
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11.3License178172
11.4Setoff179173
11.5Remedies Cumulative; No Waiver179173
11.5.1Cumulative Rights179173
11.5.2Waivers179173
11.6Judgment Currency179173
SECTION 12. AGENT180174
12.1Appointment, Authority and Duties of Agent180174
12.1.1Appointment and Authority180174
12.1.2Duties181175
12.1.3Agent Professionals181175
12.1.4Instructions of Required Lenders181175
12.2Agreements Regarding Collateral, Borrower Materials and Intercreditor
Matters182176
12.2.1Lien Releases; Care of Collateral; Intercreditor Matters182176
12.2.2Possession of Collateral183177
12.2.3Reports184178
12.3Reliance By Agent184178
12.4Action Upon Default184178
12.5Ratable Sharing184178
12.6Indemnification185179
12.7Limitation on Responsibilities of Agent185179
12.8Successor Agent and Co-Agents186180
12.8.1Resignation; Successor Agent186180
12.8.2Co-Collateral Agent186180
12.9Due Diligence and Non-Reliance186180
12.10Replacement of Certain Lenders187181
12.11Remittance of Payments and Collections187181
12.11.1Remittances Generally187181
12.11.2Failure to Pay187181
12.11.3Recovery of Erroneous Payments187181
12.12Individual Capacity188182
12.13Titles188182
12.14Bank Product Providers188182
12.15No Third Party Beneficiaries188182
12.16Certain ERISA Matters188182
12.16.1Lender Representations188183
12.16.2Further Lender Representations189183
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND
PARTICIPATIONS189183
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13.1Successors and Assigns189183
13.2Participations189184
13.2.1Permitted Participants; Effect189184
13.2.2Voting Rights190184
13.2.3Benefit of Set-Off190184
13.3Assignments190185
13.3.1Permitted Assignments190185
13.3.2Register191185
13.3.3Effect; Effective Date191185
13.3.4Certain Assignees191186
SECTION 14. MISCELLANEOUS192186
14.1Consents, Amendments and Waivers192186
14.1.1Amendment192186
14.1.2Limitations193187
14.1.3Payment for Consents193187
14.2Indemnity193188
14.3Notices and Communications194188
14.3.1Notice Address194188
14.3.2Electronic Communications194188
14.3.3Platform194188
14.3.4Non-Conforming Communications195189
14.4Performance of the Loan Parties’ Obligations195189
14.5Credit Inquiries195189
14.6Severability195189
14.7Cumulative Effect; Conflict of Terms195190
14.8Execution; Electronic Records196190
14.9Entire Agreement196190
14.10Relationship with Lenders196190
14.11No Advisory or Fiduciary Responsibility196190
14.12Confidentiality197191
14.13Acknowledgment Regarding QFCs197191
14.13.1Covered Party198192
14.13.2Definitions198192
14.14GOVERNING LAW198192
14.15Consent to Forum198192
14.15.1Forum198192
14.16Waivers by the Loan Parties199193
14.17Patriot Act Notice199193
14.18Canadian Anti-Money Laundering Legislation199194
14.19Reinstatement200194
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14.20Nonliability of Lenders200194
14.21INTERCREDITOR AGREEMENT200195
14.22Amendment and Restatement201195
14.23Acknowledgement and Consent to Bail-In of Affected Financial
Institutions202196
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LIST OF EXHIBITS AND SCHEDULES
| Exhibit A-1 | Form of Canadian Revolver Note |
|---|---|
| Exhibit A-2 | Form of U.S. Revolver Note |
| Exhibit B | Notice of Borrowing |
| Exhibit C | Notice of Conversion/Continuation |
| Exhibit D | Assignment and Acceptance |
| Exhibit E | Assignment Notice |
| Exhibit F | [Reserved] |
| Exhibit G | Form of Borrowing Base Certificate |
| Exhibit H | Form of Landlord Waiver |
| Exhibit I | Form of Bailee Letter |
| Exhibit J | [Reserved] |
| Exhibit K | Pledge and Security Agreement |
| Exhibit L | Intercompany Subordination Agreement |
| Schedule 1.1(a) | Commitments of Lenders |
| Schedule 1.1(b) | Contingent Obligations |
| Schedule 1.1(c) | Existing Letters of Credit |
| Schedule 1.1(d) | Investments |
| Schedule 6.1 | List of Closing Documents |
| Schedule 8.5 | Deposit Accounts |
| Schedule 8.6.1 | Business Locations |
| Schedule 9.1.4 | Corporate Names and Capital Structure |
| Schedule 9.1.6(b) | Owned Real Property |
| Schedule 9.1.11 | Intellectual Property |
| Schedule 9.1.14 | Environmental Matters |
| Schedule 9.1.16 | Litigation |
| Schedule 9.1.18(e) | Canadian Pension Plan |
| Schedule 9.1.20 | Labor Contracts |
| Schedule 9.1.24 | Filing Offices |
| Schedule 10.1.13 | Post-Closing Matters |
| Schedule 10.2.1 | Liens |
| Schedule 10.2.2 | Existing Indebtedness |
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is
dated as of November 2, 2016, as amended by Amendment No. 1, dated as of March 24, 2020, amended
by Amendment No. 2, dated as of May 18, 2020, amended by Amendment No. 3, dated as of December
19, 2022, and as amended by Amendment No. 4, dated as of May 6, 2024, and as amended by
Amendment No. 5, dated as of March 4, 2026 among CS INTERMEDIATE HOLDCO 1 LLC, a
Delaware limited liability company (“Holdings”) as a U.S. Facility Guarantor and a Canadian Facility
Guarantor (each as defined herein), COOPER-STANDARD AUTOMOTIVE INC., an Ohio
corporation (the “U.S. Borrower”), COOPER-STANDARD AUTOMOTIVE CANADA LIMITED,
an Ontario corporation (together with its permitted successors, the “Canadian Borrower” and together
with the U.S. Borrower, the “Borrowers”), the other U.S. Subsidiaries (as defined herein) of Holdings
which are and may hereafter become party to this Agreement as U.S. Facility Guarantors, the Canadian
Facility Guarantors, the other Canadian Subsidiaries (as defined herein) of Holdings which are or may
hereafter become party to this Agreement as Canadian Facility Guarantors, the Specified Jurisdiction
Guarantors and other Subsidiaries of Holdings which are or may hereafter become party to this
Agreement as Specified Jurisdiction Guarantors, the financial institutions party to this Agreement from
time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking
association, in its capacity as collateral agent and administrative agent for itself and the Secured Parties
(as defined herein) (together with any successor agent appointed pursuant to Section 12.8, “Agent”).
R E C I T A L S:
A.Holdings, the U.S. Borrower, the Canadian Borrower, the other Loan Parties party
thereto, Agent and the financial institutions party thereto are party to that certain Second Amended and
Restated Loan Agreement, dated as of April 4, 2014 (as amended up to but not including the date hereof,
the “Existing Loan Agreement”).
B.Holdings, the Borrowers, the other Loan Parties, Agent and the Lenders party hereto wish
to amend and restate the Existing Loan Agreement upon and subject to the terms and conditions
hereinafter set forth.
C.Each Subsidiary of Holdings which is or hereafter becomes a party hereto as a U.S.
Facility Guarantor is or will be affiliated, is or will be engaged in interrelated businesses, and is or will
derive substantial direct and indirect benefit from extensions of credit to the U.S. Borrower.
D.Each Subsidiary of Holdings which is or hereafter becomes a party hereto as a Canadian
Facility Guarantor is or will be affiliated, is or will be engaged in interrelated businesses, and is or will
derive substantial direct and indirect benefit from extensions of credit to the Canadian Borrower.
E.Each Subsidiary of Holdings which is or hereafter becomes a party hereto as a Specified
Jurisdiction Guarantor is or will be affiliated, is or will be engaged in interrelated businesses, and is or
will derive substantial direct and indirect benefit from extensions of credit hereunder, which corporate
benefit shall be expressly acknowledged by the competent corporate body or bodies, as applicable, of
any Romanian Guarantor.
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NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as
follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1Definitions. As used herein, the following terms have the meanings set forth below:
“ABL Priority Collateral”: as defined in the Intercreditor Agreement.
“Account”: as defined in the UCC and the PPSA, as applicable, including all rights to payment
for goods sold or leased, or for services rendered.
“Account Debtor”: a Person who is obligated under an Account, Chattel Paper or General
Intangible.
“Acquired Indebtedness”: with respect to any specified Person:
(1)Indebtedness of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of such specified Person, and
(2)Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Adjustment Date”: as defined in the definition of Applicable Margin.
“Adverse Proceeding”: any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings
or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims) pending against or affecting Holdings or any
of its Restricted Subsidiaries or any property of Holdings or any of its Restricted Subsidiaries.
“Affected Financial Institution”: (a) any EEA Financial Institution, or (b) any UK Financial
Institution.
“Affiliate”: of any specified Person means any other Person directly or indirectly Controlling or
Controlled by or under direct or indirect common Control with such specified Person. For purposes of
this definition, “Control” (including, with correlative meanings, the terms “Controlling,” “Controlled
by” and “under common Control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or otherwise.
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“Agent”: as defined in the preamble to this Agreement.
“Agent Fee Letter”: the agent fee letter agreement among Agent, Bank of America Securities,
Inc. and Loan Party Agent dated March 11, 2020.
“Agent Indemnitees”: Agent and its officers, directors, employees, Affiliates, agents and
attorneys.
“Agent Professionals”: attorneys, accountants, appraisers, auditors, business valuation experts,
environmental engineers or consultants, turnaround consultants, and other professionals and experts
retained by Agent.
“Allocable Amount”: as defined in Section 5.10.3(b).
“Anti-Terrorism Laws”: any laws relating to terrorism or money laundering, including the Patriot
Act and the Proceeds of Crime Act.
“Applicable Lenders”: (i) with respect to the U.S. Borrower, the U.S. Lenders, and (ii) with
respect to the Canadian Borrower, the Canadian Lenders.
“Applicable Loan Party Group”: (i) with respect to the U.S. Borrower, the U.S. Facility Loan
Parties and (ii) with respect to the Canadian Borrower, the Canadian Facility Loan Parties that are
domiciled in Canada.
“Applicable Margin”: with respect to any Type of Loan and such other Obligations specified
below, (x) for any day prior to the Fourth Amendment Effective Date, such margin set forth in this
Agreement as in effect on such day and (y) as of the Fourth Amendment Effective Date and each day
thereafter, the respective margin set forth below, as determined by reference to the Average Quarterly
Availability and the Consolidated Total Debt Ratio:
(A) Pricing Table A: to the extent a Pricing/Fee Reduction Period is not then effect
| Level | Average Quarterly Availability | Term SOFR Loans,<br><br>Term CORRA Rate<br><br>Loans, Letter of Credit<br><br>Fees | U.S. Base Rate Loans,<br><br>Canadian Base Rate<br><br>Loans and Canadian<br><br>Prime Rate Loans |
|---|---|---|---|
| I | Greater than or equal to 45% of<br><br>the Borrowing Base | 2.00% | 1.00% |
| II | Greater than or equal to 20% of<br><br>the Borrowing Base but less<br><br>than 45% of the Borrowing<br><br>Base | 2.25% | 1.25% |
| III | Less than 20% of the<br><br>Borrowing Base | 2.50% | 1.50% |
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(B)Pricing Table B: to the extent a Pricing/Fee Reduction Period is then effect:
| Level | Average Quarterly Availability | Term SOFR Loans,<br><br>Term CORRA Rate<br><br>Loans, Letter of Credit<br><br>Fees | U.S. Base Rate Loans,<br><br>Canadian Base Rate<br><br>Loans and Canadian<br><br>Prime Rate Loans |
|---|---|---|---|
| I | Greater than or equal to 45% of<br><br>the Borrowing Base | 1.75% | 0.75% |
| II | Greater than or equal to 20% of<br><br>the Borrowing Base but less<br><br>than 45% of the Borrowing<br><br>Base | 2.00% | 1.00% |
| III | Less than 20% of the<br><br>Borrowing Base | 2.25% | 1.25% |
The Applicable Margin shall be adjusted quarterly as of the first (1st) day of each calendar quarter (each
such date, an “Adjustment Date”), based upon the Average Quarterly Availability for the immediately
preceding calendar quarter and with respect to the then in effect foregoing Pricing Table (i.e., if a
Pricing/Fee Reduction Period is then in effect, pricing will be determined based on Pricing Table B,
otherwise pricing will be determined based on Pricing Table A). In addition, (x) if a Pricing/Fee
Reduction Period commences after any Adjustment Date, then the Applicable Margin shall be further
adjusted as of the first (1st) day of the next calendar month to move from Pricing Table A to Pricing
Table B based on the then in effect pricing Level and (y) if a Pricing/Fee Reduction Period terminates
after any Adjustment Date, then the Applicable Margin shall be further adjusted as of the first (1st) day
of the next calendar month to move from Pricing Table B to Pricing Table A based on the then in effect
pricing Level. As of the Fourth Amendment Effective Date and until June 1, 2024, the Applicable
Margin shall be the rates corresponding to Level I in the foregoing Pricing Table A.
“Approved Fund”: any Person (other than a natural person) that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in its
ordinary course of activities, has the capacity to fund Revolver Loans hereunder and is administered or
managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either.
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“Asset Review and Approval Conditions”: with respect to any acquisition, amalgamation or
merger in respect of which the Accounts or Inventory acquired therein or thereby are requested to be
included in the Canadian Borrowing Base or U.S. Borrowing Base, Agent shall have completed its
review of such assets, including, without limitation, field examinations, audits, appraisals and other due
diligence as Agent shall in its Permitted Discretion require; it being acknowledged and agreed that, (1)
such additional assets, if any, to be included in the Canadian Borrowing Base or U.S. Borrowing Base
may be subject to different advance rates or eligibility criteria or may require the imposition of
additional reserves with respect thereto and (2) prior to the inclusion of any additional assets in the
Canadian Borrowing Base or U.S. Borrowing Base, all actions shall have been taken to ensure that
Agent has a perfected and continuing first priority security interest in and Lien on such assets (to the
extent otherwise required herein).
“Asset Sale”: as defined in the term loan credit agreement, an indenture or another document
governing the Fixed Asset Facility as such agreement is in effect on the date hereof, or if entered into
after the date hereof, on the date such agreement is entered into in accordance with the terms hereof.
Notwithstanding the foregoing, the sale or other disposition of property, Equity Interests and/or other
assets in connection with any European Restructuring with a fair market value of a reasonable amount in
Holdings’ good faith determination, but in any event, no more than €50.0 million, shall not constitute an
Asset Sale; provided that fair market value for purposes of this sentence shall mean the value that would
be paid by a willing buyer to an unaffiliated willing seller, determined in good faith by Holdings.
“Assignment and Acceptance”: an assignment agreement between a Lender and Eligible
Assignee, in the form of Exhibit D.
“Assignment of Claims Act”: Assignment of Claims Act of 1940, 31 U.S.C. § 3727, 41 U.S.C. §
15, as amended.
“Audit Trigger Period”: the period (a) commencing on the day that an Event of Default occurs,
or Average Period Availability (for a one-day period) is less than the greater of (i) $25,000,000 and (ii)
17.5% of the Borrowing Base at such time; and (b) continuing until, during the preceding thirty (30)
consecutive days, no Event of Default has existed and Average Period Availability has been greater than
the greater of (i) $25,000,000 and (ii) 17.5% of the Borrowing Base at such time.
“Availability”: at any time, the sum of the Canadian Availability and the U.S. Availability, in
each case, at such time.
“Average Availability Test Trigger”: with respect to the Specified Transaction Conditions, any
time that Average Period Availability is (for a one-day period) less than the greater of (i) $45,000,000
and (ii) 30% of the Commitments on the date of such action or proposed action.
“Average Period Availability”: for any period, an amount equal to the sum of the Availability for
each day of such period (determined as of the close of business of each such day) divided by the actual
number of days in such period, as determined by Agent, which determination shall be conclusive absent
manifest error.
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“Average Quarterly Availability”: for any calendar quarter, an amount equal to the sum of the
Availability for each day of such calendar quarter (determined as of the close of business of each such
day) divided by the actual number of days in such calendar quarter, as determined by Agent, which
determination shall be conclusive absent manifest error.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: means, (a) with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time
to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United
Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any
other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or
failing banks, investment firms or other financial institutions or their affiliates (other than through
liquidation, administration or other insolvency proceedings).
“Bank of America”: Bank of America, N.A., a national banking association, and its successors
and assigns.
“Bank of America (Canada)”: Bank of America, N.A. (acting through its Canada branch).
“Bank of America Indemnitees”: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.
“Bank Product”: any of the following products, services or facilities extended to any Loan Party
or Restricted Subsidiary (or any other Affiliate thereof requested by a Borrower and approved by Agent)
by a Lender or any of its Affiliates: (a) Cash Management Services; (b) products under Hedging
Agreements; and (c) commercial credit card and merchant card services; provided, however, that for any
of the foregoing to be included as an “Obligation” for purposes of a distribution under Section 5.5.1, the
Lender or Affiliate providing such Bank Product and Loan Party Agent must have previously provided
written notice to Agent of (i) the existence of such Bank Product, (ii) the maximum dollar amount of
obligations arising thereunder to be included as a Canadian Bank Product Reserve or U.S. Bank Product
Reserve, as applicable (“Bank Product Amount”), (iii) the methodology to be used by such parties in
determining the Secured Bank Product Obligations owing from time to time and if Agent has received
no such notice with respect to any such Bank Product, then Agent shall be permitted to assume that no
such Bank Product is outstanding in connection with making distributions under Section 5.5.1 and (iv)
its agreement to be bound by Section 12.14; provided, however, that no such notice from Loan Party
Agent shall be required with respect to any Bank Products provided by Bank of America or its
Affiliates. The Bank Product Amount may be changed from time to time by Agent (with respect to
Bank Products provided by Bank of America or its Affiliates) in its Permitted Discretion or upon written
notice to Agent by the Lender or Affiliate providing the related Bank Product and Loan Party Agent. No
additional Bank Product Amount may be voluntarily established or increased by the Loan Parties at any
time that a Default or Event of Default exists, or if a reserve in such amount would cause an
Overadvance.
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“Bank Product Amount”: as defined in the definition of Bank Product.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership as required
by the Beneficial Ownership Regulation, in form and substance satisfactory to Agent.
“Beneficial Ownership Regulation”: 31 C.F.R. §1010.230.
“Benefit Plan”: any (a) employee benefit plan (as defined in ERISA) subject to Title I of ERISA,
(b) plan (as defined in and subject to Section 4975 of the Code), or (c) Person whose assets include (for
purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the
Code) the assets of any such employee benefit plan or plan.
“Board of Directors”: as to any Person, the board of directors or managers, sole member or
managing member, as applicable, of such Person (or, if such Person is a partnership, the board of
directors or other governing body of the general partner of such Person) or any duly authorized
committee thereof.
“Borrowed Money”: with respect to any Person, any (a) obligation that (i) arises from the
borrowing of money by such Person (including, for the avoidance of doubt, arising from any Permitted
Receivables Financing of such Person), (ii) is evidenced by notes, drafts, bonds, debentures, credit
documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are
customarily paid (excluding trade payables or administrative or general expenses owing in the ordinary
course of business) or (iv) was issued or assumed as full or partial payment for property (excluding trade
payables owing in the ordinary course of business); (b) capitalized amount in respect of Capitalized
Leases Obligations of such Person; (c) reimbursement obligations by such Person with respect to letters
of credit issued for the account of such Person; and (d) guarantees by such Person of any of the
foregoing owing by another Person.
“Borrower Materials”: Borrowing Base Certificates, Compliance Certificates and other
information, reports, financial statements and other materials delivered by Borrowers hereunder, as well
as the Reports provided by Agent to Lenders.
“Borrowers”: as defined in the preamble to this Agreement. For the avoidance of doubt, as of
the Third Amendment Effective Date, “Borrower” or “Borrowers” shall not include the European
Borrower (as defined in this Agreement immediately prior to the Third Amendment Effective Date) for
any purposes under the Loan Documents. For the avoidance of doubt, as of the Third Amendment
Effective Date, the European Borrower shall not be a Guarantor under the Loan Documents.
“Borrowing”: a group of Loans of one Type that are made on the same day or are converted into
Loans of one Type on the same day.
“Borrowing Base”: the Canadian Borrowing Base and/or the U.S. Borrowing Base, as the
context requires.
“Borrowing Base Certificate”: a certificate, substantially in the form attached as Exhibit G or
otherwise in form and substance satisfactory to Agent, by which Loan Party Agent certifies calculation
of any Borrowing Base.
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“Business Day”: any day excluding Saturday, Sunday and any other day that is a legal holiday
under the laws of the State of North Carolina or the State of New York or is a day on which banking
institutions located in such States are closed; and when used with reference to (i) a Term SOFR Loan,
the term shall also exclude any day that is not a U.S. Government Securities Business Day, and (ii) a
Canadian Revolver Loan, the term shall also exclude a day on which banks in Toronto, Ontario, Canada
are not open for the transaction of banking business.
“Canadian Auto-Extension Letter of Credit”: as defined in Section 2.3.1(e).
“Canadian Availability”: as of any date of determination, the Canadian Borrowing Base as of
such date of determination plus solely for purposes of calculating “Availability” in connection with the
satisfaction of any Specified Transaction Conditions, the Canadian Suppressed Amount on such date of
determination plus the Canadian Designated Cash Amount on such date of determination minus the
Canadian Revolver Exposure (calculated without duplication of any amounts reserved under the
Canadian LC Reserve) on such date of determination.
“Canadian Availability Reserve”: the sum (without duplication) of (a) the Inventory Reserve
with respect to the Canadian Domiciled Loan Parties’ Inventory; (b) the Canadian Rent and Charges
Reserve; (c) the Canadian LC Reserve; (d) the Canadian Bank Product Reserve; (e) the aggregate
amount of liabilities secured by Liens upon any Canadian Facility Collateral that are senior to Agent’s
Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (f) the
Canadian Priority Payables Reserve; (g) the Wage Earner Protection Act Reserve; (h) the Canadian
Designated Foreign Guaranty Reserve; (i) the Canadian Tooling Vendor Reserve and (j) such additional
reserves (including, without limitation, dilution reserves), in such amounts and with respect to such
matters, as Agent in its Permitted Discretion may establish.
“Canadian Bank Product Reserve”: the aggregate amount of reserves, as established by Agent
from time to time in its Permitted Discretion to reflect the reasonably anticipated liabilities in respect of
the then outstanding Secured Bank Product Obligations of the Canadian Domiciled Loan Parties and
their Subsidiaries (or any other Affiliate thereof requested by the Canadian Borrower and approved by
Agent).
“Canadian Base Rate”: for any day, a fluctuating rate of interest per annum equal to the higher
of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of
America (Canada) as its “base rate”, (b) the Federal Funds Rate plus 0.50%, and (c) Term SOFR for a
one month interest period as of such day, plus 1.0%; provided that if the Canadian Base Rate shall be
less than zero, such rate shall be deemed zero for purposes of this Agreement. The “base rate” being a
rate set by Bank of America (Canada) based on various factors including costs and desired return of
Bank of America (Canada), general economic conditions and other factors, and used as a reference point
for pricing loans in Dollars made at its “base rate”, which may be priced at, above or below such
announced rate). Any change in the “base rate” announced by Bank of America (Canada) shall take
effect at the opening of business on the day specified in the public announcement of such change. Each
interest rate based upon the Canadian Base Rate shall be adjusted simultaneously with any change in the
“base rate”. In the event that Bank of America (Canada) (including any successor or assignee) does not
at any time publicly announce a “base rate”, then “Canadian Base Rate” shall mean the “base rate”
publicly announced by a Schedule 1 chartered bank in Canada selected by Agent.
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“Canadian Base Rate Loan”: a Canadian Revolver Loan, or portion thereof, funded in Dollars
and bearing interest calculated by reference to the Canadian Base Rate.
“Canadian Borrower”: as defined in the preamble to this Agreement.
“Canadian Borrowing Base”: on any date of determination, an amount equal to the lesser of (a)
the Maximum Canadian Facility Amount minus (x) the Canadian Priority Payables Reserve minus (y)
the Wage Earner Protection Act Reserve minus (z) the Canadian LC Reserve; and (b) (1) the sum of (x)
85% of the Value of Eligible Accounts of the Canadian Domiciled Loan Parties; plus (y) the lesser of (i)
70% of the Value of Eligible Inventory of the Canadian Domiciled Loan Parties; and (ii) 85% of the
NOLV Percentage of the Value of Eligible Inventory of the Canadian Domiciled Loan Parties; plus (z)
85% of the Value of Eligible Tooling Accounts of the Canadian Domiciled Loan Parties minus (2) the
Canadian Availability Reserve. Notwithstanding the foregoing, in no event may the maximum amount
of availability under the Canadian Borrowing Base and the U.S. Borrowing Base resulting from the
inclusion of Eligible Tooling Accounts exceed $30,000,000 in the aggregate.
“Canadian Cash Collateral Account”: a demand deposit, money market or other account
established by Agent at Bank of America (Canada) or such other financial institution as Agent may
select in its discretion, which account shall be for the benefit of the Canadian Facility Secured Parties
and shall be subject to Agent’s Liens securing the Canadian Facility Obligations.
“Canadian Designated Cash Amount”: the aggregate amount of cash of the Canadian Domiciled
Loan Parties deposited in segregated DACA Deposit Accounts with Agent.
“Canadian Designated Foreign Guaranty Reserve”: the aggregate amount of reserves established
by Agent from time to time in its Permitted Discretion in respect of any Designated Foreign Guaranty
established in favor of a Canadian Lender and/or an Affiliate of a Canadian Lender.
“Canadian Dollars” or “Cdn$”: the lawful currency of Canada.
“Canadian Domiciled Loan Party”: each Canadian Subsidiary of Holdings now or hereafter party
hereto as a Loan Party, and “Canadian Domiciled Loan Parties” means all such Persons, collectively.
“Canadian Dominion Account”: a special account established by the Canadian Domiciled Loan
Parties at Bank of America (Canada) or another bank reasonably acceptable to Agent, over which Agent
has exclusive control for withdrawal purposes.
“Canadian Facility Collateral”: Collateral that now or hereafter secures (or is intended to secure)
any of the Canadian Facility Obligations, including property of the U.S. Domiciled Loan Parties pledged
to secure their Obligations under their guarantee of the Canadian Facility Obligations.
“Canadian Facility Guarantee”: each guarantee agreement (including this Agreement) at any time
executed by a Canadian Facility Guarantor in favor of Agent guaranteeing all or any portion of the
Canadian Facility Obligations.
“Canadian Facility Guarantor”: Holdings, each Canadian Subsidiary of Holdings, each other U.S.
Subsidiary of Holdings, and each other Person (if any) who guarantees payment and performance of any
Canadian Facility Obligations.
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“Canadian Facility Loan Party”: the Canadian Borrower or a Canadian Facility Guarantor.
“Canadian Facility Obligations”: all applicable Obligations of the Canadian Facility Loan Parties
(excluding, for the avoidance of doubt, all U.S. Facility Obligations).
“Canadian Facility Secured Parties”: Agent, Canadian Issuing Bank, Canadian Lenders, Secured
Bank Product Providers of Bank Products to Canadian Facility Loan Parties, and the Lead Arrangers.
“Canadian Issuing Bank”: (a) Bank of America (Canada) or an Affiliate of Bank of America
(Canada), as an issuer of Letters of Credit under this Agreement and (b) Deutsche Bank AG Canada
Branch or an Affiliate of Deutsche Bank AG Canada Branch, as an issuer of Letters of Credit under this
Agreement.
“Canadian LC Obligations”: the sum (without duplication) of (a) all amounts owing by the
Canadian Borrower for any drawings under Letters of Credit; (b) the stated amount of all outstanding
Letters of Credit issued for the account of the Canadian Borrower; and (c) all fees and other amounts
owing with respect to Letters of Credit issued for the account of the Canadian Borrower.
“Canadian LC Reserve”: the aggregate of all Canadian LC Obligations, other than (a) those that
have been Cash Collateralized; and (b) if no Default or Event of Default exists, amounts specified in
clause (c) of the definition of Canadian LC Obligations.
“Canadian Lenders”: Bank of America (Canada) and each other Lender that has issued a
Canadian Revolver Commitment (provided that such Person or an Affiliate of such Person also has a
U.S. Revolver Commitment), including Bank of America (Canada) in its capacity as a provider of
Canadian Swingline Loans. Each Canadian Lender shall be a Canadian Qualified Lender.
“Canadian Letter of Credit Sublimit”: $1,000,000.
“Canadian Letters of Credit”: as defined in Section 2.3.1 hereof.
“Canadian Multi-Employer Plan”: each multi-employer plan, within the meaning of the
Regulations under the Income Tax Act (Canada), but excluding, for greater certainty, any Multi-
Employer Plan.
“Canadian Non-Extension Notice Date”: as defined in Section 2.3.1(e).
“Canadian Overadvance”: as defined in Section 2.1.5 hereof.
“Canadian Overadvance Loan”: a Loan made to the Canadian Borrower when a Canadian
Overadvance exists or is caused by the funding thereof.
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“Canadian Overadvance Loan Balance”: on any date, the amount by which the aggregate
Canadian Revolver Exposure exceeds the amount of the Canadian Borrowing Base on such date.
“Canadian Pension Plan”: a “registered pension plan” as defined in the Income Tax Act
(Canada), and any other pension plan maintained or contributed to by, or to which there is or may be an
obligation to contribute by, any Loan Party in respect of its Canadian employees or former Canadian
employees, excluding, for greater certainty, a Canadian Multi-Employer Plan.
“Canadian Prime Rate”: on any date, a fluctuating rate of interest per annum equal to the higher
of (a) the per annum rate of interest quoted or established as the “prime rate” of the Agent which it
quotes or establishes for such day as its reference rate of interest in order to determine interest rates for
commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (b) Term CORRA for a
one (1) month term that is two (2) Business Days prior to such date plus the Term CORRA Adjustment
plus 1% per annum, adjusted automatically with each quoted or established change in such rate, all
without the necessity of any notice to any Borrower or any other Person; provided that if any of the
above rates shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Such
Canadian Prime Rate is based upon various factors including costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the Canadian Prime Rate shall take
effect at the opening of business on the day specified in the public announcement of such change.
“Canadian Prime Rate Loan”: a Canadian Revolver Loan, or portion thereof, funded in Canadian
Dollars and bearing interest calculated by reference to the Canadian Prime Rate.
“Canadian Priority Payables Reserve”: on any date of determination, a reserve in such amount as
Agent may reasonably determine in its Permitted Discretion, which reflects the unpaid (when due) or
un-remitted (when due) payroll tax deductions, employment insurance premiums, amounts deducted for
vacation pay, wages, workers’ compensation and other unpaid (when due) or unremitted (when due)
amounts by any Canadian Domiciled Loan Party which would give rise to a Lien with priority under
applicable Law over the Lien of Agent and if any Loan Party issues a notice of intended wind up of the
Canadian Pension Plan, the Superintendent, FSCO or other Governmental Authority issues a notice of
the intended decision to wind up a Canadian Pension Plan or Agent reasonably determines in its
Permitted Discretion that it is probable that a Canadian Pension Plan will be wound up and there is
Canadian Unfunded Pension Liability at such time, a reserve, which Agent may assess and apply, in its
Permitted Discretion, up to an amount that reflects the Canadian Unfunded Pension Liability of such
Canadian Pension Plan.
“Canadian Qualified Lender”: a financial institution that is listed on Schedule I, II, or III of the
Bank Act (Canada) or is not a foreign bank for purposes of the Bank Act (Canada), or if such financial
institution is not resident in Canada and is not deemed to be resident in Canada with respect to any
amounts received pursuant to this Agreement for purposes of Part XIII of the Income Tax Act (Canada),
that financial institution deals at arm’s length with the Canadian Borrower for purposes of the Income
Tax Act (Canada).
“Canadian Reimbursement Date”: as defined in Section 2.3.2(a).
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“Canadian Rent and Charges Reserve”: the aggregate of (a) all past due rent and other past due
amounts owing by any Canadian Domiciled Loan Party to any landlord, warehouseman, processor,
repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Canadian
Facility Collateral of any Canadian Domiciled Loan Party or could assert a Lien on such Canadian
Facility Collateral under applicable Law; plus (b) a reserve at least equal to three (3) months (or such
shorter period as Agent determines in its Permitted Discretion as it will take to liquidate the ABL
Priority Collateral at such location) rent and other charges that could reasonably be expected to be
payable to any such Person who possesses any Canadian Facility Collateral of any Canadian Domiciled
Loan Party and could reasonably be expected to assert a Lien on such Canadian Facility Collateral under
applicable Law, unless, in any such case, such Person has executed a Collateral Access Agreement.
“Canadian Revolver Commitment”: for any Canadian Lender, its obligation to make Canadian
Revolver Loans and to issue Canadian Letters of Credit, in the case of Canadian Issuing Bank, or
participate in Canadian LC Obligations (excluding amounts specified in clause (c) of such definition), in
the case of the other Canadian Lenders, to the Canadian Borrower up to the maximum principal amount
shown on Schedule 1.1(a), or as hereafter determined pursuant to each Assignment and Acceptance to
which it is a party, as such Canadian Revolver Commitment may be adjusted from time to time in
accordance with the provisions of Sections 2.1.4 or 11.2. “Canadian Revolver Commitments” means
the aggregate amount of such commitments of all Canadian Lenders.
“Canadian Revolver Commitment Termination Date”: the earliest of (a) the U.S. Revolver
Commitment Termination Date (without regard to the reason therefor), (b) the date on which Loan Party
Agent terminates or reduces to zero (0) all of the Canadian Revolver Commitments pursuant to Section
2.1.4, and (c) the date on which the Canadian Revolver Commitments are terminated pursuant to
Section 11.2.
“Canadian Revolver Exposure”: on any date, an amount equal to the sum of the Dollar
Equivalent of the Canadian Revolver Loans outstanding on such date plus the Canadian LC Obligations
(excluding amounts specified in clause (c) of such definition) on such date.
“Canadian Revolver Loan”: a Revolver Loan made by Canadian Lenders to the Canadian
Borrower pursuant to Section 2.1.1(b), and any Canadian Swingline Loan, which Revolver Loan shall,
if denominated in Canadian Dollars, be either a Term CORRA Rate Loan or a Canadian Prime Rate
Loan and, if denominated in Dollars, shall be either a Canadian Base Rate Loan or a Term SOFR Loan,
in each case as selected by the Canadian Borrower or Loan Party Agent.
“Canadian Revolver Notes”: collectively, each promissory note, if any, executed by the
Canadian Borrower in favor of a Canadian Lender to evidence the Canadian Revolver Loans funded
from time to time by such Canadian Lender, which shall be in the form of Exhibit A-1 to this
Agreement, together with any replacement or successor notes therefor.
“Canadian Security Agreement”: each general security agreement or deed of hypothec among
any Canadian Domiciled Loan Party and Agent and each Section 427 Bank Act (Canada) security
document among the Canadian Borrower and any Canadian Lender, as may be amended and/or restated
from time to time.
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“Canadian Subsidiary”: a Subsidiary of Holdings incorporated or organized under the laws of
Canada or any province or territory of Canada.
“Canadian Successor Rate”: as defined in Section 1.7.2.
“Canadian Successor Rate Conforming Changes”: with respect to any proposed Canadian
Successor Rate, any conforming changes to this Agreement, including changes to Canadian Prime Rate,
CORRA, Term CORRA, Interest Period, timing and frequency of determining rates and payments of
interest and other administrative matters as may be appropriate, in Agent’s discretion (in consultation
with Loan Party Agent), to reflect the adoption of such Canadian Successor Rate and to permit its
administration by Agent in a manner substantially consistent with market practice (or, if Agent
determines that adoption of any portion of such market practice is not administratively feasible or that
no market practice for the administration of such Canadian Successor Rate exists, in such other manner
of administration as Agent determines in consultation with Loan Party Agent). Such changes shall
provide that the Canadian Successor Rate cannot be less than zero percent (0.00%) for purposes of this
Agreement.
“Canadian Suppressed Amount”: to the extent that the amount calculated pursuant to clause (b)
of the Canadian Borrowing Base definition exceeds the then-current Canadian Revolver Commitment as
of any date of determination, the amount of any such excess designated in writing by Loan Party Agent
to Agent as “Canadian Suppressed Amount” under this Agreement; provided, that in no event shall the
Canadian Suppressed Amount exceed $5,000,000 less the U.S. Suppressed Amount as of such date of
determination.
“Canadian Swingline Loan”: any Borrowing of Canadian Prime Rate Loans made pursuant to
Section 4.1.3(c).
“Canadian Tooling Vendor Reserve”: the aggregate amount of reserves, as established by Agent
from time to time in its Permitted Discretion to reflect the reasonably anticipated liabilities in respect of
the then outstanding amounts owing to all tooling vendors with respect to the tooling giving rise to
Eligible Tooling Accounts of the Canadian Domiciled Loan Parties.
“Canadian Unfunded Pension Liability”: any unfunded wind up deficiency as identified in (a)
the most recent actuarial valuation report for the purposes of the PBA, or (b) any wind up report for the
purposes of the PBA, and filed or required to be filed with any applicable Governmental Authority in
respect of any Canadian Pension Plan.
“Canadian Unused Line Fee Rate”: at any date of determination, (x) for any day prior to the
Fourth Amendment Effective Date, such rate set forth in this Agreement as in effect on such day and (y)
as of the Fourth Amendment Effective Date and each day thereafter, a rate per annum equal to 0.50%;
provided that, notwithstanding the foregoing, with respect to any day occurring during the existence of a
Pricing/Fee Reduction Period (commencing as of the first (1st) day of the next calendar month after the
date the Pricing/Fee Reduction Period first went into effect and continuing so long as such Pricing/Fee
Reduction Period remains in effect), the Canadian Unused Line Fee Rate shall equal a rate per annum
equal to 0.375%.
“Capital Expenditures”: all liabilities incurred or expenditures made by a Loan Party or
Restricted Subsidiary for the acquisition of any fixed assets, or any improvements, replacements,
substitutions or additions thereto with a useful life of more than one (1) year that would, in any case, in
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accordance with GAAP, be included as additions to property, plant and equipment, but excluding (to the
extent that they would otherwise be included): including, for the avoidance of doubt, any amount
included in the calculation of the Fixed Charge Coverage Ratio (i) any expenditures during such period
made for the replacement or restoration of assets with assets of the same or similar type to the extent
paid for by any identifiable proceeds of casualty insurance or condemnation awards; (ii) the purchase
price of assets purchased during such period to the extent the consideration therefor consists of the
proceeds of a substantially concurrent sale of assets; (iii) any expenditures for the purchase price of
assets acquired in an acquisition during such period; (iv) liabilities incurred or expenditures made to the
extent such Loan Party or Restricted Subsidiary has received reimbursement in cash from a third party
during such period; (v) the non-cash book value of any asset owned by any Loan Party or Restricted
Subsidiary which is included as an addition to property, plant and equipment as a result of the reuse of
such asset during such period without a corresponding expenditure actually having been made or
liability incurred in such period; (vi) the non-cash purchase price of equipment purchased during such
period to the extent the consideration therefor consists of used or surplus equipment traded in at the time
of such purchase; (vii) the non-cash purchase price of equipment that is purchased during such period
and substantially contemporaneously with the trade-in of existing equipment to the extent that the gross
amount of such purchase price is reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time; and (viii) any expenditures during such period made with the
proceeds of an issuance of Equity Interests by Holdings with respect to which: (a) such proceeds shall
have been received by Holdings within one-hundred eighty days (180) of such expenditure, and (b)
Agent shall have received a certificate of a Responsible Officer of Loan Party Agent certifying in
reasonable detail as to compliance with preceding clause (a).
“Capital Stock”:
(1)in the case of a corporation, corporate stock;
(2)in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3)in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4)any other interest or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Lease Obligation”: at the time any determination thereof is to be made, the amount
of the liability in respect of a capital lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP;
provided that any obligation in respect of operating leases of Holdings or its Restricted Subsidiaries,
whether entered into before or after the Third Restatement Date, that are subsequently recharacterized as
capital lease obligations of Holdings and its Restricted Subsidiaries on a consolidated basis due to the
effects of Accounting Standards Codification 842 or a change in accounting treatment or otherwise after
the Third Restatement Date will be deemed not to be treated as a Capitalized Lease Obligation or
Indebtedness.
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“Cash Collateral”: cash or Cash Equivalents, and any interest or other income earned thereon,
that is delivered to Agent to Cash Collateralize any Obligations.
“Cash Collateralize”: the delivery of cash to Agent, as security for the payment of Obligations, in
an amount equal to (a) with respect to LC Obligations, 105% of the aggregate amount of such LC
Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including Secured
Bank Product Obligations), Agent’s good faith estimate of the amount due or to become due, including
all fees and other amounts relating to such Obligations.
“Cash Collateralization” and “Cash Collateralized” have correlative meanings. For the
avoidance of doubt, it is understood and agreed that the Loan Parties shall not Cash Collateralize
Obligations hereunder with Cash Equivalents issued or guaranteed by the government of any
Participating Member State.
“Cash Collateral Account”: the Canadian Cash Collateral Account and/or the U.S. Cash
Collateral Account, as the context may require.
“Cash Contribution Amount”: the aggregate amount of cash contributions made to the capital of
any U.S. Domiciled Loan Party.
“Cash Dominion Trigger Period”: the period (a) commencing on the day that an Event of Default
occurs, or Average Period Availability is for a five (5) consecutive Business Day period, less than the
greater of (i) $15,000,000 and (ii) 10% of the Borrowing Base at such time; and (b) continuing until,
during the preceding thirty (30) consecutive day period, no Event of Default has existed and Average
Period Availability has been greater than the greater of (i) $15,000,000 and (ii) 10% of the Borrowing
Base at such time.
“Cash Equivalents”: (1) U.S. Dollars, Canadian dollars, pounds sterling, euros or the national
currency of any participating member state of the European Union or the national currency of anythe
Specified Jurisdiction Guarantor;
(2)securities issued or directly and fully guaranteed or insured by the government of the
United States, Canada or any country that is a member of the European Union or any agency or
instrumentality thereof in each case with maturities not exceeding two years from the date of acquisition;
(3)certificates of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances, in each case with maturities not
exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital
and surplus in excess of $500,000,000, or the foreign currency equivalent thereof, and whose long-term
debt is rated “A” or higher or the equivalent thereof by Moody’s or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency);
(4)repurchase obligations for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the qualifications specified in clause
(3) above;
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(5)commercial paper issued by a corporation (other than an Affiliate of Holdings) rated at
least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency) and in each case maturing within one year after the date of
acquisition;
(6)readily marketable direct obligations issued by any state of the United States of America
or any municipal or political subdivision thereof with a rating of
“AA-” from S&P or “Aa3” from Moody’s or guaranteed by a financial institution with a rating of “AA-”
from S&P or “Aa3” from Moody’s (or reasonably equivalent ratings of another internationally
recognized ratings agency) in each case with maturities not exceeding two years from the date of
acquisition;
(7)Indebtedness issued by Persons with a rating of “A” or higher from S&P or “A-2” or
higher from Moody’s in each case with maturities not exceeding two years from the date of acquisition;
(8)investment funds investing at least 90% of their assets in securities of the types described
in clauses (1) through (7) above; and
(9)in the case of Investments by any Restricted Subsidiary that is a Foreign Subsidiary,
(x) such local currencies in those countries in which such Foreign Subsidiary transacts business from
time to time in the ordinary course of business and (y) Investments of comparable tenor and credit
quality to those described in the foregoing clauses (1) through (8) customarily utilized in countries in
which such Foreign Subsidiary operates for short-term cash management purposes.
“Cash Management Services”: any services provided from time to time by any Lender or any of
its Affiliates to any Loan Party or Subsidiary in connection with operating, collections, payroll, trust, or
other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic
funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting,
lockbox and stop payment services.
“Casualty Event”: any involuntary loss of title, any involuntary loss of, damage to or any
destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any
property of any Loan Party or any of its Restricted Subsidiaries. “Casualty Event” shall include but not
be limited to any taking of all or any part of any real property of any Person or any part thereof, in or by
condemnation or other eminent domain proceedings, or by reason of the temporary requisition of the use
or occupancy of all or any part of any real property of any Person or any part thereof by any
Governmental Authority, civil or military, or any settlement in lieu thereof.
“CCAA”: Canada’s Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36.
“CFC”: a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in Law”: the occurrence, after the First Amendment Effective Date, of (a) the adoption,
taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application thereof; or (c) the making,
issuance or application of any request, guideline, requirement or directive (whether or not having the
force of law) by any Governmental Authority; provided, however, that “Change in Law” shall include,
regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or
directives (i) under or relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act, or
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(ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any similar authority) or any other Governmental Authority.
“Change of Control”: means at any time, Holdings becomes aware of (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, or written notice) 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, or any
successor provision), other than a Permitted Holder, in a single transaction or in a related series of
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) of
35% or more of the total voting power of the Voting Stock of Holdings or any Parent Entity unless (i)
the Permitted Holders have, at such time, the right or the ability, directly or indirectly, by voting power,
contract or otherwise, to elect or designate for election at least a majority of the Board of Directors of
Holdings or (ii) during any period of twelve (12) consecutive months, a majority of the seats (other than
vacant seats) on the Board of Directors of Holdings shall be occupied by persons who were (x) members
of the Board of Directors of Holdings nominated, or whose nomination or election was approved, by one
or more Permitted Holders or (y) appointed by directors so approved or nominated; provided that so
long as Holdings is a Subsidiary of a Parent Entity, no Person shall be deemed to be or become a
beneficial owner of more than 50% of the total voting power of the Voting Stock of Holdings unless
such Person shall be or become a beneficial owner of more than 50% of the total voting power of the
Voting Stock of such Parent Entity.
“Claims”: all liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest,
costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and
Extraordinary Expenses) at any time (including after Full Payment of the Obligations, resignation or
replacement of Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in
any way relating to (a) any Loans, Letters of Credit, Loan Documents, Borrower Materials or the use
thereof or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in
connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon
any Collateral, (d) exercise of any rights or remedies under any Loan Documents or applicable Law, (e)
failure by any Loan Party to perform or observe any terms of any Loan Document, or (f) any actual or
alleged presence or Release or threatened Release of Hazardous Materials on, at, under or from any real
property owned, leased or operated by any Loan Party or Restricted Subsidiary of any Loan Party at any
time (other than any such presence, Release or threatened Release resulting solely from acts or
omissions by Persons other than Holdings or any of its Restricted Subsidiaries after Agent sells the
applicable Real Estate pursuant to a foreclosure or has accepted a deed in lieu of foreclosure), or any
Environmental Claim related in any way to any Loan Party or Restricted Subsidiary, in each case,
including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding
(including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee
is a party thereto.
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“CME”: CME Group Benchmark Administration Limited.
“Code”: the Internal Revenue Code of 1986.
“Collateral”: all of each Loan Party’s right, title and interest in all property of such Loan Party,
subject to a Lien under, or purported to be subject to a Lien under, the Security Documents, that, in each
case, now or hereafter secures (or is intended to secure) any of the Obligations.
“Collateral Access Agreement”: an agreement, in form and substance satisfactory to Agent, by
which (a) for any Collateral located on premises leased by a Loan Party, the lessor waives or
subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the
premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for
any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such
Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in
its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent
upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges
Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the
Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property
rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with
respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property,
whether or not a default exists under any applicable License; it being understood that any “Landlord
Waiver” in substantially the form of Exhibit H and any “Bailee Letter” in substantially the form of
Exhibit I, in any case obtained by or on behalf of any Loan Party, shall be satisfactory to Agent as a
Collateral Access Agreement.
“Commitment”: for any Lender, the aggregate amount of such Lender’s Facility Commitments.
“Commitments” means the aggregate amount of all Facility Commitments, which amount shall be
$180,000,000 on the First Amendment Effective Date.
“Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Communication”: any notice, request, election, representation, certificate, report, disclosure,
statement, authorization, approval, consent, waiver, document, amendment or transmittal of information
of any kind in connection with a Loan Document, including any Borrower Materials.
“Compliance Certificate”: a certificate of Loan Party Agent, in form and substance consistent
with past practices (and which shall, for the avoidance of doubt, list all outstanding Designated Foreign
Guaranties), given at the times specified in Section 10.1.1(d).
“Conforming Changes”: with respect to use, administration of or conventions associated with
SOFR, Term SOFR or any proposed Term SOFR Successor Rate, as applicable, any conforming
changes to the definitions of U.S. Base Rate, Canadian Base Rate, SOFR, Term SOFR and Interest
Period, timing and frequency of determining rates and making payments of interest and other technical,
administrative or operational matters (including, for the avoidance of doubt, the definitions of Business
Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment,
conversion or continuation notices, and length of lookback periods) as may be appropriate, in Agent’s
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discretion (in consultation with Loan Party Agent), to reflect the adoption and implementation of such
applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent
with market practice (or, if Agent determines that adoption of any portion of such market practice is not
administratively feasible or that no market practice for the administration of such rate exists, in such
other manner of administration as Agent determines (in consultation with Loan Party Agent) is
reasonably necessary in connection with administration of any Loan Document.
“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net
income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Net Income”: as defined in the term loan credit agreement, an indenture or another
document governing the Fixed Asset Facility as such agreement is in effect on the date hereof, or if
entered into after the date hereof, on the date such agreement is entered into in accordance with the
terms hereof.
“Consolidated Senior Secured Net Debt Ratio”: as defined in the term loan credit agreement, an
indenture or another document governing the Fixed Asset Facility as such agreement is in effect on the
date hereof, or if entered into after the date hereof, on the date such agreement is entered into in
accordance with the terms hereof.
“Consolidated Total Assets”: the consolidated total assets of Parent and its Restricted
Subsidiaries as set forth on the consolidated balance sheet of Parent as of the most recent period for
which financial statements were required to have been delivered pursuant to Sections 10.1.1(a) and (b).
“Consolidated Total Debt Ratio”: as of any date of determination, the ratio of (a) (i) consolidated
Indebtedness of Parent and its Restricted Subsidiaries as of such date minus (ii) the lesser of (x) the
aggregate amount of unrestricted cash and Cash Equivalents of Parent and its Restricted Subsidiaries as
of such date and (y) $25,000,000, to (b) EBITDA of Parent and its Restricted Subsidiaries calculated on
a consolidated basis for the most recently completed four fiscal quarter period for which financial
statements are available.
“Consolidated Total Net Debt Ratio”: as defined in the term loan credit agreement, an indenture
or another document governing the Fixed Asset Facility as such agreement is in effect on the date
hereof, or if entered into after the date hereof, on the date such agreement is entered into in accordance
with the terms hereof.
“Contingent Obligations”: with respect to any Person, any obligation of such Person
Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary
obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not contingent:
(1)to purchase any such primary obligation or any property constituting direct or indirect
security therefor,
(2)to advance or supply funds:
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(a)for the purchase or payment of any such primary obligation; or
(b)to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor; or
(3)to purchase property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person
or of any agreement, instrument or other undertaking to which such Person is a party or by which it or
any of its property is bound.
“CORRA”: the Canadian Overnight Repo Rate Average administered and published by the Bank
of Canada (or any successor administrator).
“Covenant Party”: each Loan Party other than Holdings.
“Covered Entity”: (a) a “covered entity,” as defined and interpreted in accordance with 12 C.F.R.
§252.82(b); (b) a “covered bank,” as defined in and interpreted in accordance with 12 C.F.R. §47.3(b);
or (c) a “covered FSI,” as defined in and interpreted in accordance with 12 C.F.R. §382.2(b).
“Creditor Representative”: under any applicable Law, a receiver, interim receiver, receiver and
manager, trustee (including any trustee in bankruptcy), custodian, conservator, administrator, examiner,
sheriff, monitor, assignee, liquidator, provisional liquidator, sequestrator or similar officer or fiduciary.
“CRR”: the Council Regulation (EU) No 575/2013 of the European Parliament and of the
Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and
amending Regulation (EU) No 648/2012.
“DACA Deposit Account”: a Deposit Account subject to a Deposit Account Control Agreement.
“Daily Simple SOFR”: with respect to any applicable determination date, the secured overnight
financing rate published on the FRBNY website (or any successor source reasonably satisfactory to
Agent).
“Declined Amounts”: as defined in the term loan credit agreement, an indenture or another
document governing the Fixed Asset Facility as such agreement is in effect on the date hereof, or if
entered into after the date hereof, on the date such agreement is entered into in accordance with the
terms hereof.
“Default”: an event or condition that, with the lapse of time or giving of notice, would constitute
an Event of Default.
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“Default Rate”: for any Obligation (including, to the extent permitted by law, interest not paid
when due), 2.00% per annum plus the interest rate otherwise applicable thereto or if such Obligation
does not bear interest, a rate equal to the U.S. Base Rate, plus 2.00% per annum.
“Defaulting Lender”: any Lender that, as determined by Agent, (a) has failed to comply with its
funding obligations hereunder, and such failure is not cured within two Business Days unless such
Lender notifies Agent and Loan Party Agent in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such writing) has not been
satisfied; (b) has notified Agent or Loan Party Agent that such Lender does not intend to comply with its
funding obligations hereunder or under any other credit facility, or has made a public statement to that
effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable default, shall be
specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within
three Business Days following request by Agent or Loan Party Agent, to confirm in a manner
satisfactory to Agent and Loan Party Agent that such Lender will comply with its funding obligations
hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by Agent and Loan Party Agent); or (d) has, or has a direct or
indirect parent company that has, (i) become the subject of an Insolvency Proceeding (including
reorganization, liquidation, or appointment of a receiver, custodian, administrator or similar Person by
the Federal Deposit Insurance Corporation or any other regulatory authority) or (ii) become the subject
of a Bail-In Action; provided, however, that a Lender shall not be a Defaulting Lender solely by virtue
of a Governmental Authority’s ownership of an equity interest in such Lender or parent company unless
the ownership provides immunity for such Lender from jurisdiction of courts within the United States or
from enforcement of judgments or writs of attachment on its assets, or permits such Lender or
Governmental Authority to repudiate or otherwise to reject such Lender’s agreements.
“Deposit Account”: as defined in the UCC (and/or with respect to any Deposit Account located
in Canada, any bank account with a deposit function).
“Deposit Account Control Agreements”: the deposit account control agreements in form and
substance satisfactory to Agent executed by each lockbox servicer and financial institution maintaining a
lockbox and/or Deposit Account (other than an Excluded Deposit Account) for a Loan Party, in favor of
Agent and meeting the requirements set forth in Section 8.2.4.
“Designated Foreign Guaranty”: a guaranty established by a Borrower in favor of any Lender
and/or Affiliate of a Lender with respect to a monetary or financial obligation of a Foreign Subsidiary of
Holdings (other than a Canadian Facility Loan Party); provided that (x) the aggregate outstanding
amount of Indebtedness of the Foreign Subsidiaries secured by the ABL Priority Collateral shall not
exceed $30,000,000 in the aggregate at any time and (y) for any of the foregoing to be included as an
“Obligation” for purposes of a distribution under Section 5.5.1, the Lender or Affiliate providing such
Designated Foreign Guaranty and Loan Party Agent must have previously provided written notice to
Agent of (i) the existence of such Designated Foreign Guaranty, (ii) the maximum dollar amount of
obligations arising thereunder which may be included as a Canadian Designated Foreign Guaranty
Reserve or U.S. Designated Foreign Guaranty Reserve, as applicable (“Designated Foreign Guaranty
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Amount”), in Agent’s Permitted Discretion, and (iii) the methodology to be used by such parties in
determining the Designated Foreign Guaranty Amount owing from time to time and if Agent has
received no such notice with respect to any such Designated Foreign Guaranty Reserve, then Agent shall
be permitted to assume that no such Designated Foreign Guaranty Reserve is outstanding in connection
with making distributions under Section 5.5.1; provided, however, that no such notice from Loan Party
Agent shall be required with respect to any Designated Foreign Guaranty Reserve provided by Bank of
America or its Affiliates. The Designated Foreign Guaranty Amount may be changed from time to time
by Agent (with respect to Designated Foreign Guaranties provided by Bank of America or its Affiliates)
in its Permitted Discretion or upon written notice to Agent by the Lender or Affiliate that is the
beneficiary of the related Designated Foreign Guaranty and Loan Party Agent. No additional
Designated Foreign Guaranty Amount may be voluntarily established or increased by the Loan Parties at
any time that a Default or Event of Default exists, or if a reserve in such amount would cause an
Overadvance.
“Designated Jurisdiction”: any country or territory that is the subject of any Sanction.
“Designated Preferred Stock”: Preferred Stock of Holdings or any other Parent Entity, as
applicable (other than Excluded Equity), that is issued after April 4, 2014 for cash and is so designated
as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance date thereof, the cash
proceeds of which are contributed to the capital of Holdings (if issued by Holdings or any Parent Entity)
and excluded from the calculation set forth in Section 10.2.3(a)(3).
“Designation Date”: the first (1st) date after the Third Restatement Date on which there shall
occur (a) any event described in Section 11.1(i) with respect to any Borrower, or (b) an acceleration of
Loans and termination of the Commitments pursuant to Section 11.2.
“Disqualified Stock”: with respect to any Person, any Capital Stock of such Person that, by its
terms (or by the terms of any security into which it is convertible or for which it is redeemable or
exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:
(1)matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than as a result of a change of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in
full of the Fixed Asset Facility and all other Obligations that are accrued and payable and the
termination of any Commitments),
(2)is convertible or exchangeable for Indebtedness or Disqualified Stock, or
(3)is redeemable at the option of the holder thereof, in whole or in part,
in each case prior to 91 days after the Facility Termination Date; provided, however, that only the
portion of Capital Stock that so matures or is mandatorily redeemable, is so convertible or exchangeable
or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; provided, further, however, that if such Capital Stock is issued to any employee or to
any plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by Holdings in order to satisfy applicable statutory or regulatory obligations or as a
result of such employee’s termination, death or disability; provided, further, that any class of Capital
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Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by
delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Distribution”: any declaration or payment of a distribution, interest or dividend on any Equity
Interest (other than payment-in-kind); any distribution, advance or repayment of Indebtedness to a
holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for value of
any Equity Interest (other than by issuance of Equity Interests which are not Disqualified Stock).
“Document”: as defined in the UCC (and/or with respect to any Document of a Canadian
Domiciled Loan Party, a “document of title” as defined in the PPSA).
“Dollar Equivalent”: on any date, with respect to any amount denominated in Dollars, such
amount in Dollars, and with respect to any stated amount in a currency other than Dollars, the amount of
Dollars that Agent determines using the Exchange Rate (which determination shall be conclusive and
binding absent manifest error) would be necessary to be sold on such date at the applicable Exchange
Rate to obtain the stated amount of the other currency.
“Dollars” or “$”: lawful money of the United States.
“Dominion Account”: with respect to the Canadian Domiciled Loan Parties, the Canadian
Dominion Account, and with respect to the U.S. Facility Loan Parties, the U.S. Dominion Account.
“EBITDA”: determined on a consolidated basis for Parent and its Restricted Subsidiaries, net
income plus (a) without duplication and to the extent deducted in determining net income, the sum of (i)
interest expense, (ii) Receivables Fees, (iii) provision for income taxes, (iv) depreciation and
amortization expense, (v) non-cash charges, fees, losses or expenses (but excluding any non-cash
charge, fee, loss or expense that was included in net income in a prior period and any non-cash charge,
fee, loss or expense that relates to the write-down or write-off of Inventory, other than any write-down
or write-off of Inventory as a result of purchase accounting adjustments in respect of any acquisition),
(vi) cash and non-cash expenses in connection with facility closures, severance, relocation, restructuring,
integration and other similar adjustments (“Facility Closings and Severance Expenses”) in any period,
(vii) any losses on the sale of discontinued operations, (viii) any losses on business dispositions or asset
dispositions, (ix) any extraordinary charges or losses during such period (calculated on an “after-tax”
basis and in accordance with GAAP), (x) earnings of Joint Ventures to the extent received in cash in any
period, (xi) non-recurring fees, expenses and charges made or incurred in respect of professional or
financial advisory, investment banking, underwriting and similar services (including legal, accounting
and consulting costs) to the extent relating to any offering of debt, Equity Interests, Investments,
acquisitions, divestitures or discontinuations, in each case permitted hereunder (including, for the
avoidance of doubt, fees, expenses and charges in connection with the Transactions), in each case,
whether or not consummated and (xii) intellectual property royalties to the extent received in cash,
minus (b) without duplication and to the extent included in determining net income, the sum of (i) any
cash payments for Facility Closings and Severance Expenses paid after April 4, 2014 in excess of 20%
of EBITDA (calculated without giving effect to this clause (b)(i) for such period) for the most recent
twelve (12) calendar month period then ended on such date of determination, (ii) any extraordinary gains
and non-cash items of income during such period (calculated on an “after-tax” basis and in accordance
with GAAP), (iii) any gains for the sale of discontinued operations, (iv) any gains on business
dispositions or asset dispositions (other than sales of inventory in the ordinary course of business) and
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(v) any cash payments made in respect of non-cash charges described in clause (a)(v) taken in a prior
period; in each case of clauses (a) and (b), determined on a consolidated basis in accordance with
GAAP. For purposes of the computation of the Fixed Charge Coverage Ratio, EBITDA for any period
shall be calculated on a Pro Forma Basis to give effect to (i) any Person or business acquired during such
period pursuant to an acquisition permitted hereby and not subsequently sold or otherwise disposed of
by Holdings or any of its Restricted Subsidiaries during such period and (ii) any Subsidiary or business
disposed of during such period by Holdings or any of its Restricted Subsidiaries.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA
Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with
public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Electronic Copy”: as defined in Section 14.8.
“Electronic Record” and “Electronic Signature”: as defined in 15 U.S.C. §7006.
“Eligible Account”: as determined separately for (x) the Canadian Borrower and (y) the U.S.
Borrower, an Account owing to the U.S. Borrower or the Canadian Borrower (or a member of its
respective Applicable Loan Party Group) that arises in the ordinary course of business of such Borrower
(or a member of its respective Applicable Loan Party Group) from the sale of goods or rendition of
services, is payable in Dollars, Canadian Dollars or Mexican Pesos, and that is deemed by Agent in its
Permitted Discretion to be an Eligible Account. Without limiting the foregoing, no Account shall be an
Eligible Account if:
(a)it is unpaid for more than sixty (60) days after the original due date, or more than ninety
(90) days after the original invoice date;
(b)fifty percent (50%) or more of the Dollar Equivalent amount of all Accounts owing to
such Borrower (or a member of its Applicable Loan Party Group) by the Account Debtor are not
Eligible Accounts under the foregoing clause (a);
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(c)except as set forth in clause (d) below, when aggregated with other Accounts owing to
such Borrower (or a member of its Applicable Loan Party Group) by the Account Debtor, it exceeds ten
percent (10%) of the aggregate Eligible Accounts (or such higher percentage as Agent may establish for
the Account Debtor from time to time) of each such Borrower (or a member of its Applicable Loan
Party Group);
(d)when aggregated with other Accounts owing to the Loan Parties by the relevant Account
Debtor or any of its respective Affiliates, it exceeds (i) twenty percent (20%) in the case of Chrysler
Group, LLCStellantis N.V., (ii) forty percent (40%) in the case of General Motors Corporation and (iii)
fortyfifty percent (4050%) in the case of Ford Motor Company, in each case, of the aggregate Eligible
Accounts (or such higher percentage as the Required Lenders may establish for the Account Debtor
from time to time) of the Loan Parties;
(e)it does not conform in any material respect with a covenant or representation herein;
(f)it is owing by a creditor or supplier who has not entered into an agreement reasonably
satisfactory to Agent waiving applicable rights of set-off, or is otherwise reasonably determined to be
subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense,
chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof), including,
without limitation, liabilities related to the “Ford Electronic Raw Material Acquisition Program” and
allowances for long term agreements;
(g)an Insolvency Proceeding has been commenced by or against the Account Debtor; or the
Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding
up its affairs, is not Solvent, or is subject to Sanctions or any specially designated nationals list
maintained by OFAC; or such Borrower (or a member of its Applicable Loan Party Group) is not able to
bring suit or enforce remedies against the Account Debtor through judicial process (unless such Account
is guaranteed or supported by a guarantor or support provider reasonably acceptable to Agent, on such
terms as are reasonably acceptable to Agent);
(h)the Account Debtor is organized or has its principal offices outside the United States or
Canada, unless (i) such Account is contracted with the United States or Canada (as applicable)
operations of such entity or (ii) the United States or Canada (as applicable) operations of such entity are
responsible for payment thereof;
(i)it is owing by a Governmental Authority, unless in the case of the Accounts of the U.S.
Borrower or any other U.S. Facility Loan Party, the Account Debtor is the United States or any
department, agency or instrumentality thereof and the Account has been assigned to Agent in
compliance with the Assignment of Claims Act or, in the case of any Canadian Domiciled Loan Party,
the Account Debtor is the federal government of Canada or any Crown corporation, department, agency
or instrumentality of Canada and the applicable Canadian Domiciled Loan Party has complied, to the
satisfaction of Agent, with the Financial Administration Act;
(j)it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to
any other Lien except a Permitted Collateral Lien;
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(k)the goods giving rise to it have not been delivered to and accepted by the Account
Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does
not represent a final sale;
(l)it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to
judgment;
(m)its payment has been extended beyond the periods specified in clause (a) above, the
Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis;
(n)it arises from a sale to an Affiliate, from a sale on a bill-and-hold, guaranteed sale, sale-
or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person
for personal, family or household purposes;
(o)(A) the agreements evidencing such Accounts, in the case of Accounts of the U.S.
Borrower or any other U.S. Facility Loan Party, are not governed by the laws of any state of the United
States or the District of Columbia or Canada or any province or territory of Canada and (B) the
agreements evidencing such Accounts, in the case of Accounts of any Canadian Domiciled Loan Party,
are not governed by the laws of Canada or any province or territory of Canada, any state of the United
States or the District of Columbia, or the laws of such other jurisdictions acceptable to Agent;
(p)it represents a progress billing or retainage, or relates to services for which a
performance, surety or completion bond or similar assurance has been issued;
(q)it includes a billing for interest, fees or late charges, but ineligibility shall be limited to
the extent thereof. In calculating delinquent portions of Accounts under clauses (a) and (b), credit
balances more than ninety (90) days old will be excluded;
(r)it arises from sales of tooling (other than Eligible Tooling Accounts);
(s)it is owing by NISCO or Nishikawa Rubber Company and the aggregate amount of all
such Eligible Accounts do not exceed $5,000,000; or
(t)it is otherwise unacceptable to Agent in its Permitted Discretion.
“Eligible Assignee”: a Person that is (i) a Lender or a U.S. based Affiliate of a U.S. Lender, (ii) if
such Person is to hold U.S. Facility Obligations, an Approved Fund; (iii) if such Person is to hold
Canadian Facility Obligations, a Canadian Qualified Lender and a U.S. Lender or an Affiliate of a U.S.
Lender; (iv) a financial institution approved by (x) Agent and Issuing Bank in their reasonable discretion
and (y) Loan Party Agent (which approval by Loan Party Agent shall not be unreasonably withheld or
delayed, and shall be deemed given if no objection is made within five (5) Business Days after notice of
the proposed assignment), that has total assets in excess of $5,000,000,000 and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other
applicable Law; and (v) during the continuance of an Event of Default, any Person acceptable to Agent
in its discretion (excluding any Loan Party or Affiliate thereof).
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“Eligible Inventory”: as determined separately for (x) the Canadian Borrower and (y) the U.S.
Borrower, Inventory owned by the U.S. Borrower or the Canadian Borrower (or a member of its
respective Applicable Loan Party Group) that Agent, in its Permitted Discretion deems to be Eligible
Inventory. Without limiting the foregoing, no Inventory shall be Eligible Inventory unless it:
(a)is not packaging or shipping materials, labels, samples, display items, bags, replacement
parts or manufacturing supplies;
(b)is not held on consignment, nor subject to any deposit or downpayment;
(c)is in new and saleable condition and is not damaged, defective, shopworn or otherwise
unfit for sale;
(d)is not slow-moving, obsolete or unmerchantable, and does not constitute returned or
repossessed goods;
(e)meets all standards imposed by any Governmental Authority in all material respects and
has not been acquired from an entity subject to Sanctions or any specifically designated nationals list
maintained by OFAC;
(f)conforms in all material respects with the covenants and representations herein;
(g)is subject to Agent’s duly perfected, first priority Lien, and no other Lien except a
Permitted Collateral Lien;
(h)is located within the continental United States, in the case of Inventory of the U.S.
Borrower or any other U.S. Facility Loan Party, or within Canada, in the case of Inventory of any
Canadian Domiciled Loan Party, and is not consigned to any Person;
(i)is not in transit (other than, in the case of Inventory of the U.S. Borrower or any other
U.S. Facility Loan Party, in transit between facilities of the U.S. Facility Loan Parties or from facilities
of the Canadian Domiciled Loan Parties or, in the case of Inventory of any Canadian Domiciled Loan
Party in transit between facilities of the Canadian Domiciled Loan Parties or from facilities of U.S.
Facility Loan Parties);
(j)is not subject to any (i) warehouse receipt unless the warehouseman has delivered a
Collateral Access Agreement or with respect to which an appropriate U.S. Rent and Charges Reserve or
Canadian Rent and Charges Reserve has been established or (ii) negotiable Document;
(k)is not subject to any License or other arrangement that restricts such Borrower’s or
Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Collateral Access
Agreement;
(l)is not located on leased premises or in the possession of a warehouseman, repairman,
mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a
Collateral Access Agreement or with respect to which an appropriate U.S. Rent and Charges Reserve or
Canadian Rent and Charges Reserve has been established;
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(m)is not located on leased premises (unless a Collateral Access Agreement has been
obtained with respect to such premises) or in the possession of a processor;
(n)is reflected in the details of a current perpetual inventory report;
(o)does not constitute the portion of the cost of such Inventory which is attributable to
intercompany profit; and
(p)does not constitute lower cost, market adjustment or reserves.
“Eligible Tooling Account”: as determined separately for (x) the Canadian Borrower and (y) the
U.S. Borrower, an Account (a) that would qualify as an Eligible Account but for the fact that it arose
from the sale of tooling; (b) that has been billed for fully completed tooling in accordance with the
underlying purchase order for the tooling and consistent with the applicable Borrower’s customary
billing practices; (c) for which all tooling related to those Accounts has met all Production Part Approval
Process requirements and all other required approvals, in each case in all material respects; (d) for which
there are no conditions to payment of the Accounts; (e) that has not been sold pursuant to a Permitted
Receivables Financing, and (f) for which there are no Liens on any of the tooling to which the Accounts
relate (other than (x) in Agent’s favor and (y) second priority Liens in Fixed Asset Facility Collateral
Agent’s favor or other Permitted Collateral Liens).
“EMU Legislation”: the legislative measures of the European Union for the introduction of,
changeover to or operation of the Euro in one or more member states of the European Union.
“Enforcement Action”: any action to enforce any Obligations (other than Secured Bank Product
Obligations) or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help,
notification of Account Debtors, exercise of setoff or recoupment, or otherwise).
“Environment”: ambient air, indoor air, surface water, groundwater, drinking water, land surface
and subsurface strata and natural resources such as wetlands, flora and fauna.
“Environmental Claim”: any investigation, notice, notice of violation or of potential
responsibility, claim, action, suit, proceeding, demand, abatement order or other order or directive
(conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or
in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material; or (iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
“Environmental Laws”: any and all applicable current or future federal, state, provincial,
territorial, local and foreign statutes, laws, including common law, regulations or ordinances, rules,
judgments, orders, decrees, permits licenses or restrictions imposed by a Governmental Authority
relating to pollution, the protection of the Environment and the protection of human health (to the extent
relating to exposure to Hazardous Materials), including those relating to the generation, use, handling,
storage, transportation, treatment or Release or threat of Release of Hazardous Materials.
“Environmental Liability”: any liability, contingent or otherwise (including any liability for
damages, costs of investigation or remediation, fines, penalties or indemnities), of Holdings, any other
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Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or other binding
consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
“Environmental Permit”: any permit, approval, identification number, license or other
authorization required under any Environmental Law.
“Equity Interests”: Capital Stock and all warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering”: any public or private sale after April 4, 2014 of capital stock or Preferred
Stock of Holdings or any Parent Entity or any direct or indirect parent of Holdings, as applicable (other
than Disqualified Stock), other than:
(1)public offerings with respect to Holdings’ or such Parent Entity’s common stock
registered on Form S-8; and
(2)any such public or private sale that constitutes an Excluded Contribution or Refunding
Capital Stock.
“ERISA”: the Employee Retirement Income Security Act of 1974, and the rules and regulations
thereunder, each as amended or modified from time to time.
“ERISA Affiliate”: as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person
is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c) of the Code of which
that Person is a member; and (iii) any member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or
any trade or business described in clause (ii) above is a member.
“ERISA Event”: (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
Holdings, any Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or
a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by Holdings, any Subsidiary or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Title
IV of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or
Section 305 of ERISA); (d) the filing of a notice of intent to terminate, or the commencement of
proceedings by the PBGC to terminate, a Pension Plan or Multiemployer Plan; (e) an event or condition
which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; (f) with respect to a Pension Plan, the
failure to satisfy the minimum funding standard of Section 412 of the Code or Section 302 of ERISA,
whether or not waived; (g) the failure to make by its due date a required contribution under Section
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430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent, upon Holdings, any Subsidiary or any ERISA Affiliate or (i) the
occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could result in liability to Holdings or any Subsidiary.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan
Market Association (or any successor person), as in effect from time to time.
“Euro” or “€”: the single lawful currency of the European Union as constituted by the treaty
establishing the European Community being the Treaty of Rome, as amended from time to time and as
referred to in the EMU Legislation.
“European Restructuring”: the restructuring and/or winding down of the Borrowers’ business in
any country or region in Europe, including, but not limited to, (i) the possible closure, sale,
recapitalization, reindustrialization, distribution, transfer, conveyance, surrender and/or other disposition
of one or more industrial plants in such country or region in Europe and (ii) sale, conveyance, transfer
and/or other disposition (or series of sales, conveyances, transfers or dispositions) of other assets owned
by a Foreign Subsidiary (organized, existing or operating in such country or region in Europe) and/or
Equity Interests in such Foreign Subsidiary; provided that, for the avoidance of doubt, the European
Restructuring shall not include the sale, conveyance, transfer and/or other disposition of any ABL
Priority Collateral.
“Event of Default”: as defined in Section 1111.1.
“Excess Amount”: as defined in Section 5.12.
“Exchange Rate”: on any date, (i) with respect to Canadian Dollars in relation to Dollars, the
spot rate as quoted by Bank of America as its noon spot rate at which Dollars are offered on such date
for Canadian Dollars, (ii) with respect to Dollars in relation to Canadian Dollars, the spot rate as quoted
by Bank of America as its noon spot rate at which Canadian Dollars are offered on such date for Dollars,
(iii) with respect to Euros in relation to Dollars, the spot rate as quoted by Bank of America as its noon
spot rate at which Dollars are offered on such date for Euros, (iv) with respect to Dollars in relation to
Euros, the spot rate as quoted by Bank of America as its noon spot rate at which Euros are offered on
such date for Dollars, (v) with respect to Sterling in relation to Dollars, the spot rate as quoted by Bank
of America as its noon spot rate at which Dollars are offered on such date for Sterling and (vi) with
respect to Dollars in relation to Sterling, the spot rate as quoted by Bank of America as its noon spot rate
at which Sterling are offered on such date for Dollars.
“Excluded Contributions”: means the net cash proceeds and Cash Equivalents received by
Holdings after April 4, 2014 from:
(1)contributions to its common equity capital, and
(2)the sale of Capital Stock (other than Excluded Equity) of Holdings,
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in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by an
Officer of Holdings, the proceeds of which are excluded from the calculation set forth in
Section 10.2.3(a)(3).
“Excluded Deposit Accounts”: as defined in the Pledge and Security Agreement and the
Canadian Security Agreement.
“Excluded Equity”: (i) Disqualified Stock, (ii) any Equity Interests issued or sold to a Restricted
Subsidiary of Holdings or any employee stock ownership plan or trust established by Holdings or any of
its Subsidiaries (to the extent such employee stock ownership plan or trust has been funded by Holdings
or any Restricted Subsidiary) and (iii) any Equity Interest that has already been used or designated as (or
the proceeds of which have been used or designated as) Cash Contribution Amount, Designated
Preferred Stock, Excluded Contribution or Refunding Capital Stock, to increase the amount available
under Section 10.2.3(b)(vi)(A) or clause (14) of the definition of “Permitted Investments.”
“Excluded Subsidiary”: any Subsidiary that is (a) a Foreign Subsidiary, other than a Canadian
Subsidiary (with respect to any Guarantee of Obligations of the Canadian Borrower) or athe Specified
Jurisdiction Guarantor, that is a CFC or any Subsidiary of a CFC, (b) an Unrestricted Subsidiary, (c) not
wholly owned directly by Holdings or one or more of its wholly owned Restricted Subsidiaries, (d) an
Immaterial Subsidiary, (e) a charitable Subsidiary, (f) any Subsidiary that is prohibited by applicable
law, rule or regulation or by any Contractual Obligation existing on the First Amendment Effective Date
and not entered into in contemplation hereof from guaranteeing the Obligations or which would require
governmental and/or regulatory consent, approval, license or authorization to provide such guarantee,
unless such consent, approval, license or authorization has been received, or which would result in
adverse tax consequences to Holdings and/or any of its Subsidiaries as reasonably determined by
Holdings, (g) any Receivables Subsidiary, (h) any Subsidiary that is created solely for the purpose of
consummating a transaction pursuant to an acquisition permitted hereunder, if such new Subsidiary at no
time holds any assets or liabilities other than any merger consideration contributed to it
contemporaneously with the closing of such transactions, provided that such Subsidiary shall only be an
Excluded Subsidiary for the period immediately prior to such acquisition and (i) any Subsidiary that has
no material assets other than the Capital Stock of CFCs. Notwithstanding anything to the contrary
herein, no Subsidiary shall be an Excluded Subsidiary if such Subsidiary provides a guaranty or security
interest as credit support for the First Lien Notes, Senior Secured Notes or any other Fixed Asset
Facility.
“Excluded Swap Obligation”: with respect to any Loan Party, each Swap Obligation as to which,
and only to the extent that, a Loan Party’s guaranty of or grant of a Lien as security for such Swap
Obligation is or becomes illegal under the Commodity Exchange Act because such Loan Party does not
constitute an “eligible contract participant” as defined in the act (determined after giving effect to
Section 5.10 and any other keepwell, support or other agreement for the benefit of such Loan Party, and
all guarantees of Swap Obligations by other Loan Parties) when such guaranty or grant of Lien becomes
effective with respect to the Swap Obligation. If a Hedging Agreement governs more than one Swap
Obligation, only the Swap Obligation(s) or portions thereof described in the foregoing sentence shall be
Excluded Swap Obligation(s).
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“Excluded Tax”: any of the following Taxes imposed on or with respect to a Recipient or
required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured
by net income or net profits (however denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing
such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of
a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the
date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to
an assignment request by the Borrowers under Section 12.10) or (ii) such Lender changes its lending
office, except in each case to the extent that, pursuant to Section 5.8, amounts with respect to such
Taxes were payable either to such Lender’s assignor immediately before such Lender became a party
hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such
Recipient’s failure to comply with Section 5.9, (d) any U.S. federal withholding Taxes imposed under
FATCA and (e) any Tax that is imposed pursuant to Dutch Withholding Tax Act 2021 (Wet
bronbelasting 2021) as in effect on the date hereof. Notwithstanding the foregoing, United States
withholding Taxes shall not be “Excluded Taxes” if such withholding Taxes arise on or after the
implementation of the transactions contemplated by the Reallocation Agreement.
“Existing Letters of Credit”: means the letters of credit set forth on Schedule 1.1(c).
“Existing Loan Agreement”: as defined in the Recitals to this Agreement.
“Extraordinary Expenses”: all costs, expenses or advances that Agent may incur during a Default
or Event of Default, or during the pendency of an Insolvency Proceeding of a Loan Party, including
those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance,
manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization
upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against
Agent, any Lender, any Loan Party, any representative of creditors of a Loan Party or any other Person)
in any way relating to any Collateral (including the validity, perfection, priority or avoidability of
Agent’s Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations,
including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or
remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of
any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation
and documentation of any modification, waiver, workout, restructuring or forbearance with respect to
any Loan Documents or Obligations; and (g) Protective Advances. Such costs, expenses and advances
include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and
standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and
commissions, accountants’ fees, environmental consultants’ fees, wages and salaries paid to employees
of any Loan Party or independent contractors in liquidating any Collateral, and travel expenses.
“Facility Commitment”: with respect to the commitment of a U.S. Lender, its U.S. Revolver
Commitment and, with respect to a Canadian Lender, its Canadian Revolver Commitment; and the term
“Facility Commitments” means, collectively, the Facility Commitments of U.S. Lenders and the Facility
Commitments of Canadian Lenders. To the extent any Lender has both a U.S. Revolver Commitment
and a Canadian Revolver Commitment, such Commitments shall be considered as separate
Commitments for purposes of this definition.
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“Facility Commitment Increase Effective Date”: as defined in Section 2.1.4(f).
“Facility Termination Date”: (a) solely with respect to the Non-Extending Lender, the earlier of
(i) March 24, 2025 and (ii) the date 91 days prior to the maturity date of the Fixed Asset Facility and (b)
with respect to each Lender other than the Non-Extending Lender (but, for the avoidance of doubt, this
clause (b) shall include any Lender that is assigned the Commitments of such Non-Extending Lender in
accordance with the terms hereof, including without limitation pursuant to Section 12.10), the earlier of
(i) May 6, 2029 and (ii) the date 91 days prior to the maturity date of the Fixed Asset Facility.
“Fair Market Value”: with respect to any asset or property, the price which could be negotiated
in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as
determined in good faith by the Loan Party Agent).
“FATCA”: Sections 1471 through 1474 of the Code (including any agreements entered into
pursuant to Section 1474(b)(1) of the Code), as of the date of this Agreement (or any amended or
successor version that is substantively comparable and not materially more onerous to comply with), any
current or future regulations or official interpretations thereof, any current or future regulations or
official interpretations thereof, any intergovernmental agreements between a non-U.S. jurisdiction and
the United States with respect to the foregoing, and any related laws, rules or regulations adopted
pursuant to or to implement any of the foregoing.
“Federal Funds Rate”: for any day, the per annum rate calculated by FRBNY based on such
day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY
shall set forth on its public website from time to time) and published on the next Business Day by
FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Rate be
less than zero.
“Fifth Amendment”: that certain Amendment No. 5 to Third Amended and Restated Loan
Agreement dated as of March 4, 2026, by and among the Loan Parties party thereto, Agent and the
Lenders party thereto.
“Fifth Amendment Effective Date”: as defined in the Fifth Amendment.
“FILO Credit Facility”: as defined in Section 2.4(a).
“FILO Credit Facility Amendment”: as defined in Section 2.4(c).
“FILO Credit Facility Loan”: as defined in Section 2.4(a).
“FILO Lenders”: as defined in Section 2.4(a).
“Financial Administration Act”: Financial Administration Act (Canada) and all regulations and
schedules thereunder.
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“Financial Covenant Trigger Period”: the period (a) commencing on the day that an Event of
Default occurs, or Average Period Availability (for a one-day period) is less than the greater of (i)
$15,000,000 and (ii) 10% of the Borrowing Base; and (b) continuing until, during the preceding thirty
(30) consecutive days, no Event of Default has existed and Average Period Availability has been greater
than the greater of (i) $15,000,000 and (ii) 10% of the Borrowing Base.
“First Amendment”: that certain Amendment No. 1 to Third Amended and Restated Loan
Agreement dated as of the First Amendment Effective Date by and among the Loan Parties party
thereto, Agent and the Lenders party thereto.
“First Amendment Effective Date”: March 24, 2020.
“First Lien Senior Secured Net Leverage Ratio”: as of the date of determination, the ratio of (a)
the consolidated Indebtedness of Parent and its Restricted Subsidiaries secured by a Lien ranking pari
passu in priority with the Liens on the Collateral securing the First Lien Notes (including, for the
avoidance of doubt, the First Lien Notes) to (b) LTM EBITDA for the most recently ended four fiscal
quarter period ending immediately prior to such date for which internal financial statements are
available. In the event that Parent or any Restricted Subsidiary incurs, redeems, retires, defeases or
extinguishes any applicable Indebtedness (other than Indebtedness under a revolving credit facility
unless such Indebtedness has been permanently paid and not replaced) subsequent to the commencement
of the period for which the First Lien Senior Secured Net Leverage Ratio is being calculated but prior to
or simultaneously with the event for which the calculation of the First Lien Senior Secured Net Leverage
Ratio is made, then the First Lien Senior Secured Net Leverage Ratio shall be calculated giving pro
forma effect to such incurrence, redemption, retirement, defeasance or extinguishment of Indebtedness
as if the same had occurred at the beginning of the applicable four-quarter period. Notwithstanding
anything to the contrary set forth in the definition of “LTM EBITDA” (and all component definitions
referenced in such definitions), whenever pro forma effect is to be given to acquisition, disposition or
incurrence, redemption, retirement, defeasance or extinguishment of Indebtedness, the pro forma
calculations shall be determined in good faith by a responsible officer of Parent.
“First Lien Notes”: the 13.50% Cash Pay / PIK Toggle9.250% Senior Secured First Lien Notes
due 20272031, to be issued on the ThirdFifth Amendment Effective Date in an initial aggregate
principal amount of $580,000,0001,100,000,000 pursuant to the First Lien Notes Indenture.
“First Lien Notes Indenture”: that certain indenture, dated as of the ThirdFifth Amendment
Effective Date, by and among the U.S. Borrower, as issuer, the guarantors party thereto and U.S. Bank
Trust Company, National Association, as trustee and collateral agent, with respect to the First Lien
Notes.
“Fixed Asset Fixed Charge Coverage Ratio”: the “Fixed Charge Coverage Ratio” as defined in
the agreement governing the Fixed Asset Facility as such agreement is in effect on the date hereof, or if
entered into after the date hereof, on the date such agreement is entered into in accordance with the
terms hereof.
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“Fixed Asset Facility”: (i) the First Lien Notes issued under the First Lien Notes Indenture, as
amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with
the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from
time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing
or otherwise restructuring all or any portion of the Indebtedness thereunder or agreements or indenture
or indentures or any successor or replacement facility or indenture or indentures or increasing the
amount loaned or issued thereunder or altering the maturity thereof, and (ii) whether or not the First Lien
Notes referred to in clause (i) remain outstanding, if designated by Holdings to be included in the
definition of “Fixed Asset Facility,” one or more (A) debt facilities, indentures or commercial paper
facilities providing for revolving credit loans, term loans, notes, debentures, receivables financing
(including through the sale of receivables to lenders or to special purpose entities formed to borrow from
lenders against such receivables) or letters of credit, (B) debt securities, 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 issuers or borrowers and, in each case, as amended, supplemented, modified, extended,
restructured, renewed, refinanced, restated, increased, replaced or refunded in whole or in part from time
to time; provided, that any Fixed Asset Facility shall be subject to the Intercreditor Agreement, and any
amendment, supplement, modification, extension, restructuring, renewal, refinancing, restatement,
increase, replacement or refunding thereto shall be permitted by the Intercreditor Agreement.
“Fixed Asset Facility Collateral Agent”: the collateral agent (or the administrative agent in
similar capacity) with respect to the Fixed Asset Facility.
“Fixed Asset Facility Pro Forma Basis”: with respect to the incurrence of any applicable
Indebtedness under this Agreement, the incurrence of such Indebtedness on a “pro forma basis” as
described in the applicable agreement governing the Fixed Asset Facility as such agreement is in effect
on the date hereof, or if entered into after the date hereof, on the date such agreement is entered into in
accordance with the terms hereof.
“Fixed Asset Priority Collateral”: as defined in the Intercreditor Agreement.
“Fixed Charge Coverage Ratio”: for Parent and its Restricted Subsidiaries on any date of
determination, the ratio, determined on a consolidated basis for the most recent twelve (12) calendar
month period then ended on such date of determination, of (a) EBITDA minus Capital Expenditures
(except those financed with Borrowed Money other than Revolver Loans), and cash taxes paid (net of
cash tax refunds received during such period), in each case during such period to (b) Fixed Charges
during such period.
“Fixed Charge Coverage Ratio Test Period”: with respect to each calendar month, the
immediately preceding twelve (12) calendar month period ending on the last day of the prior calendar
month.
“Fixed Charges”: for any period and for Parent and its Restricted Subsidiaries on a consolidated
basis included in any applicable calculation of Fixed Charge Coverage Ratio, the sum of (calculated on a
consolidated basis solely with respect to those Persons specified to be included in such calculation),
without duplication:
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(a)cash interest expense (net of any interest income);
(b)Receivables Fees;
(c)scheduled principal payments in respect of Borrowed Money, as determined on the first
day of the applicable period (or if such Indebtedness was incurred on a subsequent date, on such date);
but excluding, for the avoidance of doubt, (i) payments made on Revolver Loans and Swingline Loans
during such period and (ii) voluntary and mandatory prepayments of other Indebtedness permitted by
this Agreement;
(d)all regularly scheduled Distributions made by Holdings in cash (including without
limitation any regularly scheduled Distributions to a Parent Entity to meet the debt service obligations of
such Parent Entity); and
(e)mandatory cash contributions made to any Pension Plan less (without duplication) the
profit and loss statement charge (or benefit with respect to such pension funding obligations for such
period).
“Floating Rate Loan”: a U.S. Base Rate Loan, a Canadian Prime Rate Loan or a Canadian Base
Rate Loan, as the context requires.
“FLSA”: the Fair Labor Standards Act of 1938.
“Foreign Collateral”: the ABL Priority Collateral of any Loan Party that is a Foreign Subsidiary.
“Foreign Government Scheme or Arrangement”: as defined in Section 9.1.18(d).
“Foreign Plan”: as defined in Section 9.1.18(d).
“Foreign Plan Event”: (i) the failure of Holdings or any of its Restricted Subsidiaries to make its
required contributions in respect of any Foreign Plan; (ii) the failure of Holdings or any of its Restricted
Subsidiaries to administer any Foreign Plan in accordance with its terms and all applicable laws; (iii) the
occurrence of an act or omission in respect of any Foreign Plan which could give rise to the imposition
on Holdings or any of its Restricted Subsidiaries of fines, penalties or related charges under applicable
laws; (iv) the assertion of a material claim (other than a routine claim for benefits) against Holdings or
any of its Restricted Subsidiaries in respect of a Foreign Plan; (v) the imposition of a Lien in respect of
any Foreign Plan; or (vi) any event or condition which might constitute grounds for termination, in
whole or in part, of any Foreign Plan or the appointment of a trustee to administer any Foreign Plan.
“Foreign Subsidiary”: a Restricted Subsidiary not organized or existing under the laws of the
United States of America, any state thereof or the District of Columbia thereof and any direct or indirect
Subsidiary of such Restricted Subsidiary.
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“Fourth Amendment”: that certain Amendment No. 4 to Third Amended and Restated Loan
Agreement dated as of May 6, 2024, by and among the Loan Parties party thereto, Agent and the
Lenders party thereto.
“Fourth Amendment Effective Date”: as defined in the Fourth Amendment.
“FRB”: the Board of Governors of the Federal Reserve System of the United States.
“FRBNY”: the Federal Reserve Bank of New York.
“Fronting Exposure”: a Defaulting Lender’s interest in LC Obligations, Swingline Loans and
Protective Advances, except to the extent allocated to other Lenders under Section 4.2 or, in the case of
LC Obligations, Cash Collateralized by the Defaulting Lender.
“FSCO”: The Financial Services Commission of Ontario or like body in any other province of
Canada with whom a Canadian Pension Plan is registered in accordance with applicable Law and any
other Governmental Authority succeeding to the functions thereof.
“Full Payment”: with respect to any Obligations (other than indemnity obligations that are not
currently due and payable): (a) the full and indefeasible cash payment thereof in the applicable currency
required hereunder, including any interest, fees and other charges accruing during an Insolvency
Proceeding (whether or not allowed in the proceeding) and (b) if such Obligations are LC Obligations
consisting of undrawn Letters of Credit, Cash Collateralization thereof (or delivery of a standby letter of
credit acceptable to Agent in its discretion, in the amount of required Cash Collateral). No Loans shall
be deemed to have been paid in full until all Commitments related to such Loans have expired or been
terminated.
“GAAP”: generally accepted accounting principles in effect in the United States, from time to
time, applied consistently. Notwithstanding any other provision contained herein, the amount of any
Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in
accordance with the definition of Capitalized Lease Obligations.
“General Intangibles”: as defined in the UCC (and/or with respect to any General Intangible of a
Canadian Facility Loan Party, an “intangible” as defined in the PPSA).
“Governmental Approvals”: all authorizations, consents, approvals, licenses and exemptions of,
registrations and filings with, all Governmental Authorities.
“Governmental Authority”: any federal, state, providence, local, foreign or other agency,
authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or
officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including
the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies
such as the European Union or European Central Bank), in each case whether it is or is not associated
with the United States, a state, district or territory thereof, Canada, a province or territory thereof, or the
Netherlands.
“Government Scheme or Arrangement”: as defined in Section 9.1.18(d).
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“Guarantee”: each guarantee agreement (including this Agreement and the Canadian Facility
Guarantee) executed by a Guarantor in favor of Agent guaranteeing all or any portion of any Canadian
Facility Obligation or U.S. Facility Obligation. Unless otherwise indicated in the Loan Documents, the
Guarantee with respect to any Guarantor will commence upon the execution date of such Person of a
guaranty, guaranty supplement or similar joinder agreement providing for its guaranteeing of the
Obligations.
“Guarantor Payment”: as defined in Section 5.10.3(b).
“Guarantors”: Canadian Facility Guarantors, U.S. Facility Guarantors, the Specified Jurisdiction
Guarantors, and each other Person (if any) who guarantees payment or performance of any Obligations.
“Hazardous Materials”: petroleum or petroleum distillates, asbestos or asbestos-containing
materials or any other chemical, material, substance, waste, pollutant or contaminant or compound
which is regulated pursuant to any Environmental Law.
“Hedging Agreement”: an agreement relating to any swap, cap, floor, collar, option, forward
(excluding contracts for the acquisition of raw materials in the ordinary course of business), cross right
or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign
exchange, currency, commodity, credit or equity risk.
“Hedging Obligations”: with respect to any Person, the obligations of such Person under any
Hedging Agreement.
“Holdings”: as defined in the Recitals to this Agreement.
“Hypothecary Representative”: as defined in Section 12.1.1(c).
“Immaterial Subsidiary”: any Subsidiary of Holdings that, as of the date of the most recent
financial statements required to be delivered pursuant to Section 10.1.1(a) and (c), does not have assets
(together with the assets of all other Immaterial Subsidiaries) in excess of 1.5% of Consolidated Total
Assets or annual revenues of Holdings and its consolidated Subsidiaries.
“Incremental Equivalent Debt”: has the meaning set forth in Section 10.2.2(b)(xxxi).
“Incur”: with respect to any Indebtedness or Capital Stock, issue, assume, Guarantee, incur or
otherwise become liable for such Indebtedness or Capital Stock, as applicable; 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 Incurred by such
Person at the time it becomes a Subsidiary.
“Indebtedness”: with respect to any Person:
(1)the principal and premium (if any) of any Indebtedness of such Person, whether or not
contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement
agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property,
except (i) any such balance that constitutes a trade payable, accrued expense or similar obligation to a
trade creditor, in each case Incurred in the ordinary course of business and (ii) any earn-out obligations
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until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP,
(d) in respect of Capitalized Lease Obligations, (e) representing any Hedging Obligations or (f) under or
in respect of Permitted Receivables Financings, if and to the extent that any of the foregoing
Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a
balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(2)to the extent not otherwise included, any obligation of such Person to be liable for, or to
pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by
endorsement of negotiable instruments for collection in the ordinary course of business); and
(3)to the extent not otherwise included, Indebtedness of another Person secured by a Lien on
any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value
of such asset at such date of determination, and (b) the amount of such Indebtedness of such other
Person;
provided that (i) Contingent Obligations Incurred in the ordinary course of business and (ii) cash pooling
arrangements in the ordinary course of business consistent with past practice shall not be deemed to
constitute Indebtedness.
“Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any Obligation of any Loan Party under any Loan Document and (b)
to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees”: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of
America Indemnitees.
“Insolvency Proceeding”: any case or proceeding or proposal commenced by or against a Person
under any state, provincial, federal or foreign law for, or any agreement of such Person to, (a) the entry
of an order for relief under the U.S. Bankruptcy Code, or any other insolvency, debtor relief,
bankruptcy, receivership, debt adjustment law or other similar law (whether state, provincial, federal or
foreign), including the Bankruptcy and Insolvency Act (Canada) and the CCAA; (b) the appointment of
a Creditor Representative or other custodian for such Person or any part of (i) the ABL Priority
Collateral or (ii) any material potion of its property not constituting ABL Priority Collateral; or (c) an
assignment or trust mortgage for the benefit of creditors.
“Insurance Assignment”: each collateral assignment of insurance pursuant to which a Loan Party
assigns to Agent such Loan Party’s rights under any insurance policies as Agent deems appropriate, as
security for the Obligations.
“Intellectual Property”: all intellectual property rights and similar property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, trade names, domain names, trade
secrets, confidential or proprietary information, customer lists, know-how, software and databases, all
embodiments or fixations of any of the foregoing; all related documentation; all applications and
registrations thereof; and all licenses or other rights to use, or otherwise relating to, any of the foregoing;
and all books and records relating to any of the foregoing.
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“Intellectual Property Claim”: any claim or assertion (whether in writing, by suit or otherwise)
that (i) a Loan Party’s or Restricted Subsidiary’s ownership, use, marketing, sale or distribution of any
Intellectual Property or other property infringes, misappropriates, dilutes or otherwise violates another
Person’s Intellectual Property or (ii) any Intellectual Property owned by a Loan Party or a Restricted
Subsidiary is invalid or unenforceable, in whole or in part.
“Intellectual Property Security Agreement”: collectively, the patent security agreement,
substantially in the form of Exhibit C to the Pledge and Security Agreement, the copyright security
agreement, substantially in the form of Exhibit D to the Pledge and Security Agreement and the
trademark security agreement, substantially in the form of Exhibit E to the Pledge and Security
Agreement, in each case dated as of the Third Restatement Date, together with each intellectual property
security agreement supplement executed and delivered pursuant to Section 4.8(x) of the Pledge and
Security Agreement.
“Intercompany Subordination Agreement”: means an intercompany subordination agreement, in
substantially the form of Exhibit L hereto, or otherwise in form and substance reasonably satisfactory to
Agent.
“Intercreditor Agreement”: means that certain intercreditor agreement, dated as of the Third
Amendment Effective Date, by and between the Agent, the Fixed Asset Facility Collateral Agent, the
collateral agent under the Senior Secured Notes Indenture, Holdings, the U.S. Borrower, and the other
grantors and parties from time to time party thereto, providing the relative priority of the Liens in favor
of the Agent and the Fixed Asset Facility Collateral Agent in respect of ABL Priority Collateral and
Fixed Asset Priority Collateral, respectively, and that the Liens securing the Senior Secured Notes shall
be secured on a junior priority basis to the Liens securing the Obligations and the First Lien Notes, as
may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Interest Period”: as defined in Section 3.1.4.
“Interest Period Loan”: a Term SOFR Loan or a Term CORRA Rate Loan.
“Inventory”: as defined in the UCC and the PPSA, as applicable, including all goods intended for
sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and
supplies of any kind that are or could be used in connection with the manufacture, printing, packing,
shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a
Borrower’s business (but excluding equipment).
“Inventory Reserve”: reserves established by Agent in its Permitted Discretion, to reflect factors
that may negatively impact the Value of Inventory, including change in salability, obsolescence,
seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor
chargebacks.
“Investment Grade Securities”:
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(1)securities issued or directly and fully guaranteed or insured by the U.S. or Canadian
government or any agency or instrumentality thereof (other than Cash Equivalents) and in each case
with maturities not exceeding two years from the date of acquisition,
(2)securities that have a rating equal to or higher than Baa3 (or the equivalent) by Moody’s
or BBB (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized rating
agency,
(3)investments in any fund that invests at least 95% of its assets in investments of the type
described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending
investment and/or distribution, and
(4)corresponding instruments in countries other than the United States or Canada
customarily utilized for high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.
“Investments”: with respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the form of loans (including Guarantees), advances or capital contributions
(excluding accounts receivable, trade credit and advances to customers and commission, travel and
similar advances to officers, employees and consultants made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities
issued by any other Person and investments that are required by GAAP to be classified on the balance
sheet of Holdings in the same manner as the other investments included in this definition to the extent
such transactions involve the transfer of cash or other property. If Holdings or any Restricted Subsidiary
sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted
Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of Holdings shall be deemed to have made an
Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity
Interests of and all other Investments in such Person retained. In no event shall (i) a Guarantee of an
operating lease of Holdings or any Restricted Subsidiary or (ii) draws from any cash pooling
arrangements in the ordinary course of business consistent with past practice be deemed an Investment.
For purposes of the definition of “Unrestricted Subsidiary” and Section 10.2.3:
(1)“Investments” shall include the portion (proportionate to Holdings’ equity interest in such
Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of Holdings at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent
“Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(a)Holdings’ “Investment” in such Subsidiary at the time of such redesignation less
(b)the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such redesignation; and
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(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 of Holdings.
The amount of an Investment will be determined at the time the Investment is made and without
giving effect to subsequent changes in value (determined, in the case of any Investment made with assets
of Holdings or any Restricted Subsidiary, based on the Fair Market Value of the assets invested).
“Investors”: any funds or accounts managed by Silver Point Capital, L.P.
“IRS”: the United States Internal Revenue Service.
“Issuing Bank Indemnitees”: Issuing Banks and their officers, directors, employees, Affiliates,
agents and attorneys.
“Issuing Banks”: U.S. Issuing Bank and Canadian Issuing Bank.
“Joint Venture”: (a) any Person which would constitute an “equity method investee” of Holdings
or any of its Subsidiaries, and (b) any Person in whom Holdings or any of its Subsidiaries beneficially
owns any Equity Interest that is not a Subsidiary.
“Junior Indebtedness”: Indebtedness that is either (i) unsecured and expressly subordinated to the
Obligations or (ii) secured solely by Collateral with a Lien having Junior Lien Priority on the Collateral
relative to the Obligations. For the avoidance of doubt, Permitted Secured Debt shall not constitute
Junior Indebtedness.
“Junior Lien Priority”: relative to specified Indebtedness, having a junior Lien priority on
specified Collateral and either subject to the Intercreditor Agreement on a basis that is no more favorable
than the provisions applicable to the holders of Permitted Secured Debt (in the case of ABL Priority
Collateral) or subject to intercreditor agreements providing holders of Indebtedness with Junior Lien
Priority at least the same rights and obligations as the holders of Permitted Secured Debt (in the case of
the ABL Priority Collateral) have pursuant to the Intercreditor Agreement as to the specified Collateral.
“Laws”: collectively, all applicable international, foreign, federal, state, provincial, territorial and
local statutes, statutory instruments, acts, treaties, rules, guidelines, regulations, directives, ordinances,
codes and administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority.
“LC Application”: an application by Loan Party Agent on behalf of a Borrower to an Issuing
Bank for issuance of a Letter of Credit, in form and substance satisfactory to such Issuing Bank.
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“LC Conditions”: the following conditions necessary for the issuance of a Letter of Credit: (a)
each of the conditions set forth in Section 6.2 (or with respect to Letters of Credit issued on the Third
Restatement Date, in Section 6.1); (b) after giving effect to the issuance of a Letter of Credit for the
account of the U.S. Borrower, (x) total U.S. LC Obligations (excluding amounts specified in clause (c)
of each such definition) do not exceed the U.S. Letter of Credit Sublimit and no U.S. Overadvance exists
or would result therefrom and (y) the outstanding U.S. Revolver Loans and U.S. LC Obligations of each
Lender do not exceed such Lender’s U.S. Revolver Commitments; (c) after giving effect to the issuance
of a Letter of Credit for the account of the Canadian Borrower, (x) total Canadian LC Obligations
(excluding amounts specified in clause (c) of such definition) do not exceed the Canadian Letter of
Credit Sublimit and no Canadian Overadvance exists or would result therefrom and (y) the outstanding
Canadian Revolver Loans and Canadian LC Obligations of each Lender do not exceed such Lender’s
Canadian Revolver Commitment; (d) the expiration date of such Letter of Credit is (i) no more than
three hundred sixty five (365) days from issuance, in the case of standby Letters of Credit; provided that
such Letters of Credit may contain automatic extension provisions in accordance with Section 2.2.1(e)
or Section 2.3.1(e), as applicable, (ii) no more than one hundred twenty (120) days from issuance, in the
case of documentary Letters of Credit, and (iii) at least fifteen (15) Business Days prior to the Facility
Termination Date; (e) with respect the issuance of Letters of Credit for the account of the U.S.
Borrower, the Letter of Credit and payments thereunder are denominated in Dollars, Euros or Sterling;
(f) [reserved]; (g) with respect to the issuance of Letters of Credit for the account of the Canadian
Borrower, the Letter of Credit and payments thereunder are denominated in Dollars or Canadian Dollars;
(h) [reserved], and (i) the form of the proposed Letter of Credit is reasonably satisfactory to Agent and
the applicable Issuing Bank in their discretion.
“LC Documents”: all documents, instruments and agreements (including LC Requests and LC
Applications) delivered by Loan Party Agent on behalf of a Borrower or by any other Person to an
Issuing Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any
Letter of Credit.
“LC Obligations”: U.S. LC Obligations and Canadian LC Obligations.
“LC Request”: a request for issuance of a Letter of Credit, to be provided by Loan Party Agent
on behalf of a Borrower to an Issuing Bank, in form satisfactory to Agent and such Issuing Bank.
“Lead Arrangers”: BofA Securities, Inc. (or any other registered broker-dealer wholly-owned by
Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any
of its subsidiaries’ investment banking, commercial lending services or related businesses may be
transferred following the date of this Agreement) and Goldman Sachs Bank USA.
“Lender Indemnitees”: Lenders and their officers, directors, employees, Affiliates, agents and
attorneys (for the avoidance of doubt, such definition includes any such Person acting in its capacity as
“arranger”, “bookrunner” and/or “syndication agent”).
“Lenders”: as defined in the preamble to this Agreement and shall include Agent in its capacity
as a provider of Swingline Loans, U.S. Lenders and Canadian Lenders and their respective permitted
successors and assigns and, where applicable, Issuing Banks, and any other Person who hereafter
becomes a “Lender” pursuant to an Assignment and Acceptance or a joinder agreement entered into
pursuant to Section 2.1.4.
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“Lending Office”: the office (including any domestic or foreign Affiliate or branch) designated
as such by the applicable Lender at the time it becomes party to this Agreement or thereafter by notice to
Agent and Loan Party Agent.
“Letter of Credit”: any U.S. Letters of Credit or Canadian Letters of Credit; and each Existing
Letter of Credit shall be deemed to be a “Letter of Credit” for all purposes of this Agreement.
“License”: any license or agreement under which a Loan Party or Restricted Subsidiary is
authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or
disposition of Collateral, any use of property or any other conduct of its business.
“Licensor”: any Person from whom a Loan Party or Restricted Subsidiary obtains the right to use
any Intellectual Property.
“Lien”: any Person’s interest in property securing an obligation owed to, or a claim by, such
Person, whether such interest is based on common law, statute or contract, including liens, security
interests, pledges, security transfers, security assignments, hypothecations, secured claims, statutory
trusts, deemed trusts, reservations of title, exceptions, encroachments, easements, servitudes, rights-of-
way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting
property, but excluding for the avoidance of doubt, any licenses granted with respect to Intellectual
Property.
“List of Closing Documents”: the List of Closing Documents attached hereto as Schedule 6.1.
“Loan”: a Revolver Loan or a FILO Credit Facility Loan.
“Loan Account”: the loan account established by each Lender on its books pursuant to Section
5.7.
“Loan Documents”: this Agreement, the Other Agreements and the Security Documents.
“Loan Parties”: the Canadian Facility Loan Parties, the U.S. Facility Loan Parties and the
Specified Jurisdiction Guarantors, collectively and “Loan Party” means any of the Loan Parties,
individually.
“Loan Party Agent”: as defined in Section 4.4.
“Loan Party Group”: a group consisting of (i) Canadian Facility Loan Parties or (ii) U.S. Facility
Loan Parties and the Specified Jurisdiction Guarantors.
“Loan Party Group Obligations”: (i) with respect to the Canadian Borrower and the other
Canadian Facility Loan Parties, the Canadian Facility Obligations and (ii) with respect to the U.S.
Borrower, the other U.S. Facility Loan Parties and the Specified Jurisdiction Guarantors, the U.S.
Facility Obligations.
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“Loan Year”: each twelve (12) month period commencing on the Third Restatement Date and on
each anniversary of the Third Restatement Date.
“LTM EBITDA”: EBITDA for the most recently ended period of four consecutive fiscal quarters
ended prior to the date of determination for which financial statements are internally available,
calculated on a Pro Forma Basis.
“Margin Stock”: as defined in Regulation U of the FRB.
“Market Capitalization”: an amount equal to (i) the total number of issued and outstanding
shares of common Equity Interests of the U.S. Borrower (or its Parent Entity) on the date of the
declaration of a Restricted Payment permitted pursuant to Section 10.2.3(b) multiplied by (ii) the
arithmetic mean of the closing prices per share of such common Equity Interests on the principal
securities exchange on which such common Equity Interests are traded for the 30 consecutive trading
days immediately preceding the date of declaration of such Restricted Payment.
“Material Adverse Effect”: (a) a material adverse effect on the business, assets, liabilities (actual
or contingent), financial condition, or results of operations of Holdings and its Restricted Subsidiaries,
taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to
perform their respective obligations under the Loan Documents to which Holdings or any of the Loan
Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders under the
Loan Documents.
“Material Contract”: any agreement or arrangement to which a Loan Party or Restricted
Subsidiary is party (other than the Loan Documents) (a) that is deemed to be a material contract in
respect of Holdings and its Restricted Subsidiaries, taken as a whole, under any securities law applicable
to such Loan Party or Restricted Subsidiary, including the Securities Act of 1933; or (b) for which
breach, termination, nonperformance or failure to renew could reasonably be expected to have a
Material Adverse Effect.
“Maximum Canadian Facility Amount”: on any date of determination, the lesser of (i) the
Canadian Revolver Commitments on such date and (ii) $20,000,000 (or such greater or lesser amount
after giving effect to any increases or reductions in the Commitments pursuant to Section 2.1.4); it being
acknowledged and agreed that at no time can the sum of the Maximum Canadian Facility Amount plus
the Maximum U.S. Facility Amount exceed the Maximum Facility Amount in effect at such time.
“Maximum Facility Amount”: $180,000,000, or such greater or lesser amount as shall then be in
effect after giving effect to any increase or reduction in the Commitments pursuant to Section 2.1.4.
“Maximum Incremental Amount”: as defined in Section 10.2.2(b)(i).
“Maximum U.S. Facility Amount”: on any date of determination, the lesser of (i) the U.S.
Revolver Commitments on such date and (ii) $160,000,000 (or such greater or lesser amount after giving
effect to any increases or reductions in the Commitments pursuant to Section 2.1.4); it being
acknowledged and agreed that at no time can the sum of the Maximum U.S. Facility Amount plus the
Maximum Canadian Facility Amount exceed the Maximum Facility Amount in effect at such time.
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“Mexican Guarantor” as defined in Section 4.4.
“Mexico” means the United Mexican States.
“Moody’s”: Moody’s Investors Service, Inc. or any successor acceptable to Agent.
“Multiemployer Plan”: any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA and subject to Title IV of ERISA, to which a Loan Party or ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has made or been obligated to
make contributions, but excluding, for greater certainty, any Canadian Multiemployer Plan.
“Net Proceeds”: with respect to an Asset Sale, proceeds (including, when received, any deferred
or escrowed payments) received by a Loan Party or Restricted Subsidiary in cash from such disposition,
net of (a) reasonable and customary costs and expenses actually incurred in connection therewith,
including legal fees and sales commissions; (b) amounts applied to repayment of Indebtedness secured
by a Permitted Lien senior to Agent’s Liens on Collateral sold; (c) transfer or similar taxes; and (d)
reserves and escrows for indemnities and any other contingent liabilities, until such reserves are no
longer needed (after which, any such amounts previously held as reserves or escrows shall become Net
Proceeds when received).
“New Revolving Facility”: a “New Revolving Facility” as defined in the term loan credit
agreement, an indenture or another document governing the Fixed Asset Facility as such agreement is in
effect on the date hereof, or if entered into after the date hereof, on the date such agreement is entered
into in accordance with the terms hereof.
“New Term Facility”: a “New Term Facility” as defined in the term loan credit agreement, an
indenture or another document governing the Fixed Asset Facility as such agreement is in effect on the
date hereof, or if entered into after the date hereof, on the date such agreement is entered into in
accordance with the terms hereof.
“New Term Loan”: a “New Term Loan” as defined in the term loan credit agreement, an
indenture or another document governing the Fixed Asset Facility as such agreement is in effect on the
date hereof, or if entered into after the date hereof, on the date such agreement is entered into in
accordance with the terms hereof.
“NOLV Percentage”: the net orderly liquidation value of Inventory, expressed as a percentage of
the Value of Inventory expected to be realized at an orderly, negotiated sale held within a reasonable
period of time, net of all liquidation expenses, as determined from the most recent appraisal of the Loan
Parties’ Inventory performed by an appraiser and on terms reasonably satisfactory to Agent; it being
acknowledged that there may be different NOLV Percentages for different segments of Inventory (e.g.,
raw materials, intermediate goods, finished goods).
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“Non-Extending Lender”: Deutsche Bank AG New York Branch and Deutsche Bank AG,
Canada Branch (but, for the avoidance of doubt, shall not include any Lender that is assigned the
Commitments of such Non-Extending Lender in accordance with the terms hereof, including without
limitation pursuant to Section 12.10).
“Notes”: each Revolver Note or other promissory note executed by a Borrower to evidence any
Obligations.
“Notice of Borrowing”: a Notice of Borrowing to be provided by Loan Party Agent to request a
Borrowing of Loans, in the form attached hereto as Exhibit B or otherwise in form satisfactory to
Agent.
“Notice of Conversion/Continuation”: a Notice of Conversion/Continuation to be provided by
Loan Party Agent to request a conversion or continuation of any Loans as Term SOFR Loans or Term
CORRA Rate Loans, in the form attached hereto as Exhibit C or otherwise in form satisfactory to
Agent.
“Obligations”: all (a) principal of and premium, if any, on the Loans, (b) U.S. LC Obligations
and other obligations of the U.S. Facility Loan Parties with respect to Letters of Credit issued for the
account of the U.S. Borrower, (c) [reserved], (d) Canadian LC Obligations and other obligations of the
Canadian Facility Loan Parties with respect to Letters of Credit issued for the account of the Canadian
Borrower, (e) interest, expenses, fees (including post-petition interest, expenses, and fees) and other
sums payable by the Loan Parties under the Loan Documents and whether allowed in any Insolvency
Proceeding, (f) obligations of the Loan Parties under any indemnity for Claims, (g) Extraordinary
Expenses, (h) Secured Bank Product Obligations, (i) Indebtedness, obligations and liabilities of any kind
owing by the Loan Parties with respect to any Designated Foreign Guaranty and (j) other Indebtedness,
obligations and liabilities of any kind owing by the Loan Parties pursuant to the Loan Documents,
whether now existing or hereafter arising, whether evidenced by a note or other writing, whether
allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter
of credit, acceptance, loan, guarantee, indemnification or otherwise, and whether direct or indirect,
absolute or contingent, due or to become due, primary or secondary, or joint or several; provided, that
Obligations of a Loan Party shall not include its Excluded Swap Obligations.
“OFAC”: Office of Foreign Assets Control of the U.S. Treasury Department.
“Officer’s Certificate”: a certificate signed on behalf of Holdings by an Officer of Holdings.
“Organization Documents”: (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any partnership, joint
venture, trust, unlimited liability company or other form of business entity, the partnership, joint venture
or other applicable agreement of formation or organization and any agreement, memorandum of
association, instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such entity.
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“OSHA”: the Occupational Safety and Hazard Act of 1970.
“Other Agreements”: each: Note; LC Document; Agent Fee Letter; Collateral Access
Agreement; the Intercreditor Agreement; the Intercompany Subordination Agreement; Borrowing Base
Certificate, Compliance Certificate; or other document or agreement (other than this Agreement or a
Security Document) now or hereafter delivered by or on behalf of a Loan Party or other Person to Agent
or a Lender in connection with any transactions relating hereto.
“Other Connection Taxes”: with respect to any Recipient, Taxes imposed as a result of a present
or former connection between such Recipient and the jurisdiction imposing such Tax (other than
connections arising from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a Lien under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or
Loan Document).
“Other Pari Passu Lien Obligations”: any Indebtedness or other obligations (including Hedging
Obligations) having Pari Passu Lien Priority relative to the applicable Loans with respect to the
applicable Collateral and not secured by any other assets and, in the case of Indebtedness for borrowed
money, having a stated maturity that is not prior to the Facility Termination Date; provided that an
authorized representative of the holders of such Indebtedness shall have entered into an intercreditor
agreement in a form customary for intercreditor agreements or collateral trust agreements in light of then
prevailing market conditions.
“Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under, from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise
with respect to, any Loan Document, except any Taxes that are Other Connection Taxes imposed with
respect to an assignment (other than an assignment made pursuant to Section 12.10).
“Overadvance”: a Canadian Overadvance or U.S. Overadvance, as the context requires.
“Overadvance Loan”: a Canadian Overadvance Loan and/or a U.S. Overadvance Loan, as the
context requires.
“Parent”: Cooper Standard Holdings, Inc.
“Parent Entity”: means the meaning specified in the definition of Permitted Parent.
“Pari Passu Lien Priority”: means, relative to specified Indebtedness, having equal Lien priority
on specified Collateral and either subject to the Intercreditor Agreement on a substantially identical basis
as the holders of such specified Indebtedness or subject to intercreditor agreements providing holders of
the Indebtedness intended to have Pari Passu Lien Priority with substantially the same rights and
obligations that the holders of such specified Indebtedness have pursuant to the Intercreditor Agreement
as to the specified Collateral.
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“Participant”: as defined in Section 13.2.1.
“Participating Financial Instrument”: participating financial instruments, Equity Interests and/or
similar instruments (which may be classified as Indebtedness or Equity Interests) of a Foreign
Subsidiary which may be issued by such Foreign Subsidiary to (a) a third-party entity that has and
continues to provide financial support to fund and implement the European Restructuring and/or (ii) for
purposes of providing back-to-back issuances, another Foreign Subsidiary.
“Participating Member State”: each state so described in any EMU Legislation.
“Patriot Act”: the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as amended.
“Payment Item”: each check, draft or other item of payment payable to a Loan Party, including
those constituting proceeds of any Collateral.
“PBA”: the Pensions Benefits Act (Ontario) or any other Canadian federal or provincial pension
benefit standards legislation pursuant to which any Canadian Pension Plan is registered.
“PBGC”: the Pension Benefit Guaranty Corporation.
“Pension Plan”: any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the
Code and is sponsored or maintained by Holdings, any Subsidiary or any ERISA Affiliate or to which
Holdings, any Subsidiary or any ERISA Affiliate contributes or has an obligation to contribute (or in the
case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years), and, for greater certainty,
excludes any Canadian Pension Plan or any Canadian Multi-Employer Plan.
“Permitted Collateral Lien”: the Liens described in clause (1), (2), (3), (6), (13), (14), (20), (23),
(28), (30), (31), (32) and (33) of the definition of Permitted Liens.
“Permitted Discretion”: a determination made in good faith and in the exercise of reasonable
(from the perspective of a secured asset-based lender) business judgment, following either (x)
consultation with the Loan Party Agent or (y) two (2) Business Days’ advance notice to the Loan Party
Agent.
“Permitted Holders”: means each of (i)(a)(x) the Investors and (y) members of management of
Holdings (or any Parent Entity) who are holders of Equity Interests of Holdings (or any Parent Entity)
on the Third Restatement Date representing not more than 10% of the total voting power of the Voting
Stock of Holdings and (b) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act or any successor provision) of which any of the foregoing are members; provided that in
the case of such group, without giving effect to such group, Persons specified in clause (i)(a) must
collectively beneficially own a greater amount of the total voting power of the Voting Stock of the
Parent than the amount of the total voting power of the Voting Stock of the Parent beneficially owned by
any other member of such group and (ii) any Permitted Parent.
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“Permitted Investments”:
(1)any Investment in cash, Cash Equivalents or Investment Grade Securities;
(2)any Investment in Holdings or any Restricted Subsidiary (including guarantees of
obligations of Restricted Subsidiaries), so long as, in the case of any such Investment made by a
Guarantor in a Restricted Subsidiary that is not a Guarantor, Holdings shall be able to Incur at least
$1.00 of additional Indebtedness pursuant to Section 10.2.2(a) after giving effect to such Investment;;
(3)any Investment by Subsidiaries of Holdings that are not Restricted Subsidiaries in other
Subsidiaries of Holdings that are not Restricted Subsidiaries;
(4)(i) any Investment by Holdings or any Restricted Subsidiary of Holdings in a Person that
is engaged in a Similar Business if as a result of such Investment (a) such Person becomes a Restricted
Subsidiary of Holdings, or (b) such Person, in one transaction or a series of related transactions, is
merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, Holdings or a Restricted Subsidiary of Holdings, so long as, in the case of
any such acquisition by a Guarantor of a Restricted Subsidiary that is not a Guarantor or any merger,
consolidation or amalgamation of any such Person into a Restricted Subsidiary that is not a Guarantor,
Holdings shall be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 10.2.3(a)
after giving effect to such Investment, and (ii) in each case, any Investment held by such Person;
provided, that such Investment was not acquired by such Person in contemplation of such acquisition,
merger, consolidation or transfer;
(5)any Investment in securities or other assets not constituting cash, Cash Equivalents or
Investment Grade Securities and received in connection with a disposition of assets;
(6)any Investment (x) existing on the First Amendment Effective Date and listed on
Schedule 1.1(d) hereto, (y) made pursuant to binding commitments in effect on the First Amendment
Effective Date and (z) that replaces, modifies, refinances, refunds, renews or extends any Investment
described under either of the immediately preceding clauses (x) or (y); provided that the amount of any
such Investment may be increased in such replacement, modification, refinancing, refunding, renewal,
reinvestment or extension only (A) as required by the terms of such Investment or binding commitment
as in existence on the First Amendment Effective Date (including as a result of the accrual or accretion
of interest or original issue discount or the issuance of pay-in-kind securities) or (B) as otherwise
permitted hereunder;
(7)advances to, or guarantees of Indebtedness of, employees not in excess of $5,000,000
outstanding at any one time in the aggregate;
(8)loans and advances to officers, directors, managers and employees for business-related
travel expenses, moving and relocation expenses, payroll advances and other similar expenses, in each
case Incurred in the ordinary course of business or consistent with past practices or to fund such
Person’s purchase of Equity Interests of Holdings or any Parent Entity;
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(9)any Investment (including debt obligations and Capital Stock) (x) acquired by Holdings
or any Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable held by
Holdings 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,
including trade creditors, customers and suppliers or (b) as a result of a foreclosure by Holdings or any
Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to
any secured Investment in default and (y) received in compromise or resolution of (a) obligations of
trade creditors, customers or suppliers that were incurred in the ordinary course of business of Holdings
or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor, customer or supplier, or (b) litigation,
arbitration or other disputes;
(10)Hedging Obligations permitted under Section 10.2.13;
(11)any Investment by Holdings or any Restricted Subsidiaries in a Similar Business having
an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause
(11) that are at the time outstanding, not to exceed (when aggregated with the principal amount of
Investments pursuant to clause (12) below) the greater of (x) $65,000,000105,000,000 and (y) 2.550%
of Consolidated Total AssetsLTM EBITDA at the time of such Investment (with the Fair Market Value
of each Investment being measured at the time made and without giving effect to subsequent changes in
value) at any one time outstanding; provided, however, that if any Investment pursuant to this clause
(11) is made in any Person that is not a Restricted Subsidiary of Holdings at the date of the making of
such Investment and such Person becomes a Restricted Subsidiary of Holdings after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (2) above and shall cease to
have been made pursuant to this clause (11) for so long as such Person continues to be a Restricted
Subsidiary;
(12)[Intentionally Omitted];any Investment by Holdings or any Restricted Subsidiaries in a
Joint Venture having an aggregate Fair Market Value, taken together with all other Investments made
pursuant to this clause (12) that are at the time outstanding, not to exceed (when aggregated with the
principal amount of Investments pursuant to clause (11) above) the greater of (x) $105,000,000 and (y)
50% of LTM EBITDA at the time of such Investment (with the Fair Market Value of each Investment
being measured at the time made and without giving effect to subsequent changes in value); provided,
that the Investments permitted pursuant to this clause (12) may be increased by the amount of
distributions from Permitted Joint Ventures, without duplications of dividends or distributions increasing
amounts available pursuant to Section 10.2.3(a)(3);
(13)additional Investments by Holdings or any Restricted Subsidiaries having an aggregate
Fair Market Value, taken together with all other Investments made pursuant to this clause (13) that are
at the time outstanding, not to exceed the greater of (x) $155,000,000210,000,000 and (y) 6.25100% of
Consolidated Total AssetsLTM EBITDA, at the time of such Investment (with the Fair Market Value of
each Investment being measured at the time made and without giving effect to subsequent changes in
value), at any one time outstanding; provided, however, that if any Investment pursuant to this clause
(13) is made in any Person that is not a Restricted Subsidiary of Holdings at the date of the making of
such Investment and such Person becomes a Restricted Subsidiary of Holdings after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (2) above and shall cease to
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have been made pursuant to this clause (13) for so long as such Person continues to be a Restricted
Subsidiary; provided, further, however, that if any Investment pursuant to this clause (13) is made in any
Person that is not a Guarantor at the date of the making of such Investment and such Person becomes a
Guarantor after such date, such Investment shall thereafter be deemed to have been made pursuant to
clause (2) above and shall cease to have been made pursuant to this clause (13);
(14)[Intentionally Omitted]Investments (other than Investments constituting ABL Priority
Collateral) in connection with the European Restructuring;
(15)Investments the payment for which consists of Equity Interests (other than Excluded
Equity) of Holdings or any Parent Entity, as applicable; provided, however, that such Equity Interests
will not increase the amount available for Restricted Payments under Section 10.2.3(a)(3);
(16)Investments consisting of the licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons;
(17)Investments consisting of purchases and acquisitions of inventory, supplies, materials,
equipment or other similar assets or purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business;
(18)any Investment in a Receivables Subsidiary or any Investment in any other Person in
connection with a Permitted Receivables Financing or any repurchases in connection therewith,
including Investments of funds held in accounts permitted or required by the arrangements governing
such Permitted Receivables Financing or any related Indebtedness;
(19)Investments of a Restricted Subsidiary of Holdings acquired after April 4, 2014 or of an
entity merged into or consolidated with a Restricted Subsidiary of Holdings in a transaction that is not
prohibited by Section 10.2.7 after April 4, 2014 to the extent that such Investments were not made in
contemplation of such acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;
(20)Guarantees of Indebtedness permitted to be incurred under Section 10.2.2 and
performance Guarantees in the ordinary course of business;
(21)[Intentionally Omitted];
(22)any transaction to the extent it constitutes an Investment that is permitted and made in
accordance with Section 10.2.15(b) (except transactions described in clauses (i), (ii), (iv), (v), (vi),
(viii), (ix), (xi), (xiii), (xiv), (xv), (xxi) and (xxiii) thereof);
(23)advances, loans or extensions of trade credit in the ordinary course of business by
Holdings or any of the Restricted Subsidiaries;
(24)intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures
incurred in the ordinary course of business in connection with the cash management operations of
Holdings and its Subsidiaries;
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(25)Investments consisting of purchases and acquisitions of assets or services in the ordinary
course of business;
(26)Investments in the ordinary course of business consisting of Article 3 endorsements for
collection or deposit and Article 4 customary trade arrangements with customers consistent with past
practices;
(27)[Reserved]; and
(28)Any Investment; provided that (x) no Default or Event of Default has occurred and is
continuing or would result from such Investment and (y) on a pro forma basis after giving effect to such
Investment, the Consolidated Total Net Debt Ratio would be equal to or less than 2.503.50:1.00.
Notwithstanding the foregoing provisions of this definition, if assets acquired in any acquisition
are intended to be included in the U.S. Borrowing Base or the Canadian Borrowing Base, prior to any
such inclusion, (1) Agent and the Applicable Lenders shall be provided with such information as they
shall reasonably request to complete their evaluation of any such Collateral and (2) the Asset Review
and Approval Conditions shall have been satisfied.
“Permitted Joint Venture”: with respect to any specified Person, a joint venture in any other
Person engaged in a Similar Business in respect of which Holdings or a Restricted Subsidiary
beneficially owns at least 10% of the shares of Equity Interests of such Person.
“Permitted Liens”: with respect to any Person:
(1)pledges or deposits by such Person under workers’ 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 of cash or U.S. 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, in each case incurred in the ordinary course of business;
(2)Liens imposed by law constituting carriers’, warehousemen’s and mechanics’ Liens, in
each case for sums that are not overdue by more than 60 days or are being Properly Contested;
(3)Liens for taxes, assessments or other governmental charges (i) which are not yet due or
payable or (ii) which are being Properly Contested;
(4)Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to
other regulatory requirements or letters of credit issued pursuant to the request of and for the account of
such Person in the ordinary course of its business;
(5)minor survey exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not materially impair their use in the operation of the
business of such Person;
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(6)Liens Incurred to secure obligations in respect of Indebtedness permitted to be Incurred
pursuant to clause (b)(i), (iv), (xvii), (xx), or (xxx) or (xxxi) of Section 10.2.2; provided that, (i) in the
case of clause (b)(i), such Lien is subject to the Intercreditor Agreement; (ii) in the case of clause
(b)(iv), such Lien extends only to the assets and/or Capital Stock, the acquisition, lease, construction,
repair, replacement or improvement of which is financed thereby and any income or profits thereof;
(iii) in the case of clause (b)(xx), such Lien does not extend to the property or assets (or income or
profits therefrom) of any Restricted Subsidiary other than assets of a Foreign Subsidiary not constituting
ABL Priority Collateral, and (iv) in the case of clause (b)(xxxi), such Lien is subject to the applicable
intercreditor agreement and (v) in the case of clause (b)(xxx) such Lien is subject to the Intercreditor
Agreement;
(7)Liens existing on the First Amendment Effective Date and listed on Schedule 10.2.1;
(8)Liens on assets of, or Equity Interest in, a Person at the time such Person becomes a
Subsidiary; provided, however, that such Liens are not created or Incurred in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such
Liens may not extend to any other assets of Holdings or any Restricted Subsidiary of Holdings;
(9)Liens on assets at the time Holdings or a Restricted Subsidiary of Holdings acquired the
assets, including any acquisition by means of a merger or consolidation with or into Holdings or any
Restricted Subsidiary of Holdings; provided, however, that such Liens are not created or Incurred in
connection with, or in contemplation of, such acquisition; provided, further, however, that the Liens may
not extend to any other assets owned by Holdings or any Restricted Subsidiary of Holdings;
(10)Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to
Holdings or another Restricted Subsidiary of Holdings permitted to be Incurred in accordance with
Section 10.2.2;
(11)Liens securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Agreement, secured by a Lien on the same property securing such Hedging
Obligations;
(12)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;
(13)leases and subleases of real property which do not materially interfere with the ordinary
conduct of the business of Holdings or any of its Restricted Subsidiaries;
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(14)Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by Holdings and its Restricted Subsidiaries in the ordinary course of
business;
(15)Liens in favor of Holdings or any Guarantor;
(16)Liens on accounts receivable and Receivables Assets Incurred in connection with a
Permitted Receivables Financing;
(17)deposits made in the ordinary course of business to secure liability to insurance carriers;
(18)Liens on the Equity Interests of Unrestricted Subsidiaries;
(19)grants of software and other technology licenses in the ordinary course of business;
(20)judgment and attachment Liens not giving rise to an Event of Default and notices of lis
pendens and associated rights related to litigation being Properly Contested;
(21)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;
(22)Liens Incurred to secure Bank Products owed to a Lender or an Affiliate thereof in the
ordinary course of business;
(23)Liens to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7), (8), (9), (10) and (11);
provided, however, that (x) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by
such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7),
(8), (9), (10) and (11) at the time the original Lien became a Permitted Lien under this Agreement, and
(B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement;
(24)Liens in respect of (i) Other Pari Passu Lien Obligations of Holdings or any Guarantor,
subject to the applicable intercreditor agreement; provided that the First Lien Senior Secured Net
Leverage Ratio, on a pro forma basis after giving effect thereto, does not exceed 4.40 to 1.00; provided
further that, any Lien on ABL Priority Collateral securing any such other Pari Passu Lien Obligations
shall be junior in right to the Liens securing the Obligations hereunder and be subject to an applicable
intercreditor agreement and (ii) Junior Indebtedness of Holdings or any Guarantor, subject to the
applicable intercreditor agreement; provided that the Consolidated Senior Secured Net Debt Ratio, on a
pro forma basis after giving effect thereto, does not exceed 3.505.00 to 1.00;
(25)other Liens on assets (other than ABL Priority Collateral) securing obligations Incurred
in the ordinary course of business(i) that do not exceed the greater of (x) $100,000,000125,000,000 and
(y) 3.7562.5% of Consolidated Total AssetsLTM EBITDA at the time of Incurrence of such obligation,
at any one time outstanding and (ii) pursuant to Section 10.2.2(b)(xv) in an aggregate principal amount
not exceeding $125,000,000;
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(26)Liens on the assets of a Joint Venture to secure Indebtedness of such Joint Venture
Incurred pursuant to clause (xxi) of Section 10.2.2(b);
(27)Liens on equipment of Holdings or any Restricted Subsidiary of Holdings granted in the
ordinary course of business to Holdings’ or such Restricted Subsidiary’s client at which such equipment
is located;
(28)Liens created solely for the benefit of (or to secure) all of the Obligations;
(29)Liens on property or assets used to defease or to satisfy and discharge Indebtedness;
provided that such defeasance or satisfaction and discharge is not prohibited hereby;
(30)Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation and exportation of goods in the ordinary
course of business;
(31)Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection; (ii) attaching to commodity trading accounts or other
commodity brokerage accounts incurred in the ordinary course of business; and (iii) in favor of banking
institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are
within the general parameters customary in the banking industry;
(32)Liens that are contractual rights of set-off (i) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness; (ii) relating to pooled
deposit or sweep accounts of Holdings or any Restricted Subsidiary to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of Holdings and its Restricted
Subsidiaries; or (iii) relating to purchase orders and other agreements entered into with customers of
Holdings or any of its Restricted Subsidiaries in the ordinary course of business; and
(33)statutory Liens arising under the PBA, other than statutory liens that could reasonably be
expected to result in a Material Adverse Effect.
“Permitted Parent”: (a) any Person (other than a Person formed in connection with, or in
contemplation of, a Change of Control transaction that results in a modification of the beneficial
ownership of Holdings) that beneficially owns, directly or indirectly, 100% of the issued and
outstanding Voting Stock of Holdings; provided that the ultimate beneficial ownership of Holdings has
not been modified by the transaction by which such Person became the beneficial owner of, directly or
indirectly, 100% of the Voting Stock of the U.S. Borrower (such Person, a “Parent Entity”) and (b) the
Parent (or direct Wholly-Owned Subsidiary of the Parent that owns no material assets other than the
Equity Interest of Holdings) to the extent and until such time as any Person or group is deemed to be or
become a beneficial owner of Voting Stock of the Parent representing 50% or more of the total voting
power of the Voting Stock of the Parent.
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“Permitted Receivables Financing”: any transaction or series of transactions that may be entered
into by Holdings or any of its Subsidiaries pursuant to which it may sell, convey, contribute to capital or
otherwise transfer (which sale, conveyance, contribution to capital or transfer may include or be
supported by the grant of a security interest) accounts receivable or interests therein and all collateral
securing such receivables, all contracts and contract rights, purchase orders, security interests, financing
statements or other documentation in respect of such receivables, any guarantees, indemnities,
warranties or other obligations in respect of such receivables, any other assets that are customarily
transferred or in respect of which security interests are customarily granted in connection with asset
securitization transactions involving receivables similar to such receivables and any collections or
proceeds of any of the foregoing (collectively, the “Receivables Assets”); and including for the
avoidance of doubt, receivables arising from the sale of equipment, tooling and related services) (i) to a
trust, partnership, corporation or other Person (other than Holdings or any of its Subsidiary, other than a
Subsidiary formed solely for the purpose of, and that engages only in, Permitted Receivables Financing,
a “Receivables Subsidiary”), which transfer is funded in whole or in part, directly or indirectly, by the
incurrence or issuance by the transferee or any successor transferee of Indebtedness, fractional
undivided interests or other securities that are to receive payments from, or that represent interests in, the
cash flow derived from such receivables and Receivables Assets or interests in such receivables and
Receivables Assets, or (ii) directly to one or more investors or other purchasers (other than Holdings or
any of its Subsidiary), it being understood that a Permitted Receivables Financing may involve (A) one
or more sequential transfers or pledges of the same receivables and Receivables Assets, or interests
therein (such as a sale, conveyance or other transfer to an Receivables Subsidiary followed by a pledge
of the transferred receivables and Receivables Assets to secure Indebtedness incurred by the Receivables
Subsidiary), and all such transfers, pledges and Indebtedness incurrences shall be part of and constitute a
single Permitted Receivables Financing, and (B) periodic transfers or pledges of receivables and/or
revolving transactions in which new receivables and Receivables Assets, or interests therein, are
transferred or pledged upon collection of previously transferred or pledged receivables and Receivables
Assets, or interests therein; provided that any such transactions shall provide for recourse to Holdings or
any of its Subsidiaries (other than any Receivables Subsidiary) only in respect of the cash flows in
respect of such receivables and Receivables Assets and to the extent of other customary securitization
undertakings (as determined in good faith by the Board of Directors of the appropriate Receivables
Subsidiary) in the jurisdiction relevant to such transactions (such undertakings, “Standard Securitization
Undertakings”); provided that, for the avoidance of doubt, (1) no portion of the Indebtedness or any
other obligations (contingent or otherwise) of Holdings or any of its Subsidiaries or Receivables
Subsidiary is guaranteed by any Loan Party, is recourse to or obligates any Loan Party, or subjects any
property or asset of any Loan Party, directly or indirectly (other than with respect to its equity ownership
interest in any Subsidiary), contingently or otherwise, to the satisfaction of obligations incurred in such
transactions; (2) no Loan Party has any obligation to maintain or preserve the financial condition of a
Receivables Subsidiary or cause such entity to achieve certain levels of operating results, and (3) the
aggregate “amount” or “principal amount” (as defined below) of all Permitted Receivables Financings
(other than those of one or more Foreign Subsidiaries) shall not exceed $50,000,000 at any time
outstanding. The “amount” or “principal amount” of any Permitted Receivables Financing shall be
deemed at any time to be (1) the aggregate principal or stated amount of the Indebtedness, fractional
undivided interests (which stated amount may be described as a “net investment” or similar term
reflecting the amount invested in such undivided interest) or other securities incurred or issued pursuant
to such Permitted Receivables Financing, in each case outstanding at such time, or (2) in the case of any
Permitted Receivables Financing in respect of which no such Indebtedness, fractional undivided
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interests or securities are incurred or issued, the cash purchase price paid by the buyer in connection
with its purchase of receivables less the amount of collections received in respect of such receivables
and paid to such buyer, excluding any amounts applied to purchase fees or discount or in the nature of
interest.
“Permitted Secured Debt”: the Indebtedness and other obligations under any Fixed Asset
Facility.
“Permitted Secured Debt Collateral Agent”: (i) with respect to the Fixed Asset Facility, the Fixed
Asset Facility Collateral Agent and (ii) with respect to any other Permitted Secured Debt, any collateral
agent, collateral trustee, or similar representative of holders of Permitted Secured Debt under and
pursuant to the applicable Permitted Secured Debt Document.
“Permitted Secured Debt Documents”: all agreements and documents entered into and
evidencing Permitted Secured Debt.
“Person”: any individual, corporation, partnership, limited liability company, unlimited liability
company, joint venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
“Plan”: any material “employee benefit plan” (as defined in Section 3(3) of ERISA), and any
material payroll practice and other material employee benefit plan, policy, program, agreement or
arrangement, including retirement, pension, profit sharing, employment, individual consulting or other
compensation agreement, collective bargaining agreement, bonus or other incentive compensation,
retention, stock purchase, equity or equity-based compensation, deferred compensation, change of
control, severance, sick leave, vacation, loans, salary continuation, hospitalization, health, life insurance,
educational assistance, or other fringe benefit or perquisite plan, policy, agreement which is or was
sponsored, maintained or contributed to by, or required to be contributed to by, any Loan Party or
Affiliate thereof or with respect to which a Loan Party or ERISA Affiliate has or could have any
obligation or liability, contingent or otherwise, in any case, that is subject to U.S. law (and not other
foreign jurisdictions) and excluding, for greater certainty, Canadian Pension Plans and Foreign Plans.
“Platform”: as defined in Section 14.3.3.
“Pledge and Security Agreement”: collectively, Revolving Credit Facility Pledge and Security
Agreement dated as of the Third Restatement Date and executed by Holdings, the U.S. Borrower and
each U.S. Facility Guarantor, substantially in the form of Exhibit K, together with any security
agreement and security agreement supplement executed and delivered pursuant to the Pledge and
Security Agreement.
“Pledge and Security Agreement Collateral”: collectively, all property pledged or granted (or
purported to be pledged or granted) as collateral pursuant to the Pledge and Security Agreement (a) on
the Third Restatement Date or (b) thereafter pursuant to the terms thereof.
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“Pledge Supplement”: has the meaning specified in the Pledge and Security Agreement.
“Pledged Debt”: has the meaning specified in the Pledge and Security Agreement.
“Pledged Equity Interests”: has the meaning specified in the Pledge and Security Agreement.
“PPSA”: the Personal Property Security Act (Ontario) and the regulations thereunder; provided,
however, if validity, perfection and effect of perfection and non-perfection of Agent’s security interest in
and Lien on any Collateral of any Canadian Domiciled Loan Party are governed by the personal
property security laws of any jurisdiction other than Ontario, PPSA shall mean those personal property
security laws (including the Civil Code of Quebec) in such other jurisdiction for the purposes of the
provisions hereof relating to such validity, perfection, and effect of perfection and non-perfection and
for the definitions related to such provisions, as from time to time in effect.
“Preferred Stock”: any Equity Interest with preferential right of payment of dividends or upon
liquidation, dissolution or winding up.
“Pricing/Fee Reduction Period”: any period occurring from time to time after the FourthFifth
Amendment Effective Date, (a) commencing on the date, if any, that no Event of Default exists and
Agent receives a certificate delivered pursuant to, and in accordance, with Section 10.1.1 evidencing, in
reasonable detail, a Consolidated Total Debt Ratio equal to or less than 3.50 to 1.00 for the most recently
ended four fiscal quarter period and (b) continuing until the earliest to occur of the date (i) Agent
receives a Compliance Certificate delivered pursuant to, and in accordance with, Section 10.1.1 stating
that the Consolidated Total Debt Ratio is greater than 3.50 to 1.00 for the most recently ended four fiscal
quarter period, (ii) Agent fails to receive a Compliance Certificate pursuant to and in accordance with
Section 10.1.1(d) or (iii) an Event of Default occurs. For the avoidance of doubt, it is understood and
agreed that (i) no “Pricing/Fee Reduction Period” shall exist during the occurrence and continuance of
an Event of Default and (ii) if a “Pricing/Fee Reduction Period” would exist but for the occurrence and
continuance of an Event of Default, a “Pricing/Fee Reduction Period” shall exist immediately upon any
such Event of Default no longer continuing; provided that any corresponding adjustment to the (x)
Applicable Margin or (y) fees due pursuant to Section 3.2.1, in each case, due to the Pricing/Fee
Reduction Period being then in effect shall not occur until the first (1st) day of the next calendar month
as set forth in the definitions of Applicable Margin, Canadian Unused Line Fee Rate and U.S. Unused
Line Fee Rate, as applicable.
“Pro Forma Basis”: in connection with any calculation of compliance with any financial
covenant or financial term under this Agreement, (a) such compliance with the Fixed Charge Coverage
Ratio shall be calculated giving effect to any acquisition, investment or other pro forma event as if such
transaction (and all other such transactions consummated or made since the first (1st) day of the Fixed
Charge Coverage Ratio Test Period most recently ended) happened on the first (1st) day of the Fixed
Charge Coverage Ratio Test Period most recently ended, including (i) the incurrence of any
Indebtedness by any Loan Party or any of their Restricted Subsidiaries in connection with any such
transaction, (ii) any repayment or redemption of other Indebtedness of any Loan Party or any of their
Restricted Subsidiaries in connection with any such transaction and (iii) the making of any Distribution
by any Loan Party or any of their Restricted Subsidiaries in connection with any such transaction, (b)
determinations of EBITDA shall be made giving pro forma effect to any acquisition consummated since
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the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended, with such
EBITDA to be determined as if such acquisition was consummated on the first (1st) day of the Fixed
Charge Coverage Ratio Test Period most recently ended, and (c) maintenance of Availability shall be
calculated giving effect to such transaction, including (i) any disposition of Collateral in any such
transaction and (ii) the acquisition of any additional Collateral in any such transaction which is approved
by Agent for inclusion in the calculation of the Canadian Borrowing Base or the U.S. Borrowing Base,
to the extent applicable. In calculating interest expense on Indebtedness incurred under clause (a) (i) of
the immediately preceding sentence, such Indebtedness shall be deemed to have borne interest (a) in the
case of fixed rate Indebtedness, at the rate applicable thereto or (b) in the case of floating rate
Indebtedness, at the rates which were or would have been applicable thereto during the period when
such Indebtedness was or was deemed to be outstanding, in each case as reasonably calculated by Loan
Party Agent.
“Pro Rata”: (a) when used with reference to a Lender’s (i) share on any date of (A) the total
Facility Commitments to a Borrower or (B) Loans to be made to a Borrower, (ii) participating interests
in LC Obligations (excluding amounts specified in clause (c) of suchthe definitions of U.S. LC
Obligations and Canadian LC Obligations) to such Borrower, (iii) share of payments made by such
Borrower with respect to such Borrower’s Obligations, (iv) increases or reductions to the Canadian
Revolver Commitments or the U.S. Revolver Commitments pursuant to Section 2.1.4, and (v) obligation
to pay or reimburse Agent for Extraordinary Expenses owed by or in respect of such Borrower or to
indemnify any Indemnitees for Claims relating to such Borrower, a percentage (expressed as a decimal,
rounded to the ninth decimal place) derived by dividing the amount of the Facility Commitment of such
Lender to such Borrower on such date by the aggregate amount of the Facility Commitments of all
Lenders to such Borrower on such date (or if such Facility Commitments have been terminated, by
reference to the respective Facility Commitments as in effect immediately prior to the termination
thereof) or (b) when used for any other reason, a percentage (expressed as a decimal, rounded to the
ninth (9th) decimal place) derived by dividing the aggregate amount of Lender’s Commitments on such
date by the aggregate amount of the Commitments of all Lenders on such date (or if any such
Commitments have been terminated, such Commitments as in effect immediately prior to the
termination thereof).
“Proceeds of Crime Act”: the Proceeds of Crime (Money Laundering) and Terrorist Financing
Act (Canada) (or any successor statute), as amended from time to time, and includes all regulations
thereunder.
“Production Part Approval Process”: all customer engineering design record and specification
requirements that have been agreed between the applicable Borrower and customer related to the subject
tooling design and/or manufacture.
“Properly Contested”: with respect to any obligation of any Person, (a) the obligation is subject
to a bona fide dispute regarding amount or such Person’s liability to pay; (b) the obligation is being
properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued;
(c) appropriate reserves have been established in accordance with GAAP; and (d) if the obligation
results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other
judicial review or covered by insurance.
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“Protective Advances”: as defined in Section 2.1.6.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as
amended from time to time.
“Qualified ECP”: a Loan Party with total assets exceeding $10,000,000, or that constitutes an
“eligible contract participant” under the Commodity Exchange Act and can cause another Person to
qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act.
“RCRA”: the Resource Conservation and Recovery Act, as amended, (42 U.S.C. §§
6991-6991i).
“RDPRM”: Quebec Register of Personal and Movable Real Rights or Registre des droits
personnels et reels mobiliers du Quebec.
“Reaffirmed Agreement or Reaffirmed Agreements”: each Loan Document executed in
connection with the Existing Loan Agreement that has not been amended and restated in connection
with this Agreement.
“Real Estate”: all right, title and interest (whether as owner, lessor or lessee) in any real property
or any buildings, structures, parking areas or other improvements thereon.
“Reallocation Agreement”: the Second Amended and Restated Reallocation Agreement dated as
the Third Restatement Date, among Agent, the Lenders and each Issuing Bank transferring ownership of
debt among the Lenders after a Designation Date, as amended, modified or supplemented from time to
time.
“Receivables Assets”: has the meaning set forth in the definition of “Permitted Receivables
Financing”.
“Receivables Fees”: distributions or payments made directly or by means of discounts with
respect to any participation interest issued or sold in connection with, and other fees paid to a Person that
is not a Restricted Subsidiary in connection with, any Permitted Receivables Financing.
“Receivables Subsidiary”: has the meaning set forth in the definition of “Permitted Receivables
Financing”.
“Recipient”: means (a) Agent, (b) any Lender, (c) any Issuing Bank and (d) any other recipient
of any payment made by or on account of any Loan Party under any Loan Document.
“Refinance”: in respect of any Indebtedness, Disqualified Stock or Preferred Stock, to refinance,
extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness,
Disqualified Stock or Preferred Stock in exchange or replacement for, such Indebtedness, Disqualified
Stock or Preferred Stock, in whole or in part. “Refinanced” and “Refinancing” shall have correlative
meanings.
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“Regulation S-X”: Regulation S-X under the Securities Act of 1933, as amended.
“Release”: any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material (including the
abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous
Material) into, onto, under, from or through the Environment or into, onto, under, from or through any
building or structure subject to human occupation.
“Report”: as defined in Section 12.2.3.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30-day notice period has been waived.
“Required Facility Lenders”: at any date of determination thereof, unless there are only two (2)
Lenders that are not Affiliates of one another, Lenders having Facility Commitments to a Borrower
representing more than 50% of the aggregate Facility Commitments to such Borrower at such time;
provided, however, that if and for so long as any such Lender shall be a Defaulting Lender, the term
“Required Facility Lenders” shall mean Lenders (excluding each Defaulting Lender) having Facility
Commitments to such Borrower representing more than 50% of the aggregate Facility Commitments to
such Borrower (excluding the Facility Commitments of each Defaulting Lender) at such time; provided
further, however, that if all of the Facility Commitments to such Borrower have been terminated, the
term “Required Facility Lenders” shall mean Lenders to such Borrower holding Revolver Loans to, and
participating interest in LC Obligations (excluding amounts specified in clause (c) of such definition)
owing by, such Borrower representing more than 50% of the aggregate outstanding principal amount of
Revolver Loans and LC Obligations (excluding amounts specified in clause (c) of such definition)
owing by such Borrower at such time. Notwithstanding anything to the contrary set forth herein, (x) if
there are only two (2) Lenders that are not Affiliates of one another, “Required Facility Lenders” shall
be both Lenders and (y) at any time there are two (2) or more Lenders that are not Affiliates of one
another, “Required Facility Lenders” shall consist of not less than two (2) Lenders who are not Affiliates
of one another. Notwithstanding the foregoing, for purposes of this definition, any Fronting Exposure
related to a Defaulting Lender shall be deemed held as a Loan or LC Commitment by the Lender that
funded or issued the applicable Loan or Letter of Credit.
“Required Lenders”: at any date of determination thereof, unless there are only two (2) Lenders
that are not Affiliates of one another, Lenders having Facility Commitments representing more than 50%
of the aggregate Facility Commitments at such time; provided, however, that for so long as any Lender
shall be a Defaulting Lender, the term “Required Lenders” shall mean Lenders (excluding such
Defaulting Lender) having Commitments representing more than 50% of the aggregate Commitments
(excluding the Commitments of each Defaulting Lender) at such time; provided further, however, that if
any of the Facility Commitments have been terminated, the term “Required Lenders” shall be calculated
using (x) in lieu of such Lender’s terminated Facility Commitment, the outstanding principal amount of
the Revolver Loans by such Lender to, and participation interests in LC Obligations (excluding amounts
specified in clause (c) of such definition) owing by, such Borrower and (y) in lieu of the aggregate
Commitments under such terminated Facility Commitment, the aggregate outstanding Revolver Loans
to, and LC Obligations (excluding amounts specified in clause (c) of such definition) owing by such
Borrower. Notwithstanding anything to the contrary set forth herein, (x) if there are only two (2)
Lenders that are not Affiliates of one another, “Required Lenders” shall be both Lenders and (y) at any
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time there are two (2) or more Lenders that are not Affiliates of one another, “Required Lenders” shall
consist of not less than two (2) Lenders who are not Affiliates of one another. Notwithstanding the
foregoing, for purposes of this definition, any Fronting Exposure related to a Defaulting Lender shall be
deemed held as a Loan or LC Commitment by the Lender that funded or issued the applicable Loan or
Letter of Credit.
“Rescindable Amount”: as defined in Section 4.1.3(e).
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
“Responsible Officer”: the chief executive officer, president, any vice president, chief financial
officer, treasurer or assistant treasurer, secretary or assistant secretary or other similar officer of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall
be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Loan Party.
“Restricted Investment”: an Investment other than a Permitted Investment.
“Restricted Subsidiary”: any Subsidiary of a Person other than an Unrestricted Subsidiary of
such Person. Unless otherwise indicated, all references to Restricted Subsidiaries shall mean Restricted
Subsidiaries of Holdings.
“Restrictive Agreement”: an agreement that conditions or restricts the right of any Loan Party or
Restricted Subsidiary to grant Liens on any assets securing the Obligations or to declare or make
dividends or similar distributions.
“Revolver Loan”: a loan made pursuant to Section 2.1, and any Swingline Loan, Overadvance
Loan or Protective Advance.
“Revolver Notes”: collectively, the U.S. Revolver Notes and the Canadian Revolver Notes.
“Romanian Civil Code” means the Romanian Civil Code as republished in the Official Gazette
of Romania No. 505 of 15 July 2011, approved by Law No. 287 of 17 July 2009 regarding the Civil
Code and Law No. 71 of 3 June 2011 regarding the application of the Civil Code, as such may be
amended from time to time.
“Romanian Guarantee” as defined in Section 10.1.11(d).
“Romanian Guarantor” as defined in Section 10.1.11(c).
“Romanian Suretyship” as defined in Section 10.1.11(c).
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“Royalties”: all royalties, fees, expense reimbursement and other amounts payable by a Loan
Party or a Restricted Subsidiary under a License.
“S&P”: Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc., or any successor acceptable to Agent.
“Sanction”: any country wide international economic sanction administered or enforced by the
United States Government (including OFAC), the Canadian Federal Government, the United Nations
Security Council, the European Union, His Majesty’s Treasury or other applicable sanctions authority.
“Scheduled Unavailability Date”: as defined in Section 1.6.2.
“SEC”: the Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“Secured Bank Product Obligations”: Indebtedness, obligations and other liabilities with respect
to Bank Products owing by a Borrower or Affiliate of a Borrower to a Secured Bank Product Provider;
provided, that Secured Bank Product Obligations of a Loan Party shall not include its Excluded Swap
Obligations.
“Secured Bank Product Provider”: (a) Bank of America or any of its Affiliates; and (b) any other
Lender or Affiliate of a Lender that is providing a Bank Product.
“Secured Incremental Equivalent Debt”: Incremental Equivalent Debt that is secured.
“Secured Incremental Equivalent Debt Documents”: any agreements and documents entered into
and evidencing Secured Incremental Equivalent Debt.
“Secured Parties”: Canadian Facility Secured Parties and/or U.S. Facility Secured Parties, as the
context requires.
“Security Documents”: this Agreement, the Pledge and Security Agreement, the Guarantees,
Insurance Assignments, Canadian Security Agreements, Deposit Account Control Agreements, the
Intellectual Property Security Agreements, the Pledge Supplements, security agreements, pledge
agreements or other similar agreements delivered to Agent pursuant to the Pledge and Security
Agreement and all other documents, instruments and agreements now or hereafter securing (or given
with the intent to secure) any Obligations.
“Senior Secured Notes”: the 5.625% cash pay/10.625% PIK toggle senior secured notes due
2027, issued on the Third Amendment Effective Date in an initial aggregate principal amount not to
exceed $400,000,000 pursuant to the Senior Secured Notes Indenture.
“Senior Secured Notes Indenture”: that certain indenture dated as of the Third Amendment
Effective Date, by and among the U.S. Borrower, as issuer, the guarantors party thereto and U.S. Bank
Trust Company, National Association, as trustee and collateral agent, with respect to the Senior Secured
Notes.
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“Senior Unsecured Notes”: Cooper-Standard Auto’s 5.625% Senior Notes due 2026 in the initial
principal amount of $400,000,000.
“Senior Unsecured Notes Issuance”: the issuance by the U.S. Borrower of the Senior Unsecured
Notes.
“Settlement Report”: a report delivered by Agent to the Applicable Lenders summarizing the
Loans and, if applicable, participations in U.S. LC Obligations (excluding amounts specified in clause
(c) of such definition) of the U.S. Borrower and Canadian LC Obligations (excluding amounts specified
in clause (c) of such definition) of the Canadian Borrower outstanding as of a given settlement date,
allocated to the Applicable Lenders on a Pro Rata basis in accordance with their Commitments.
“Similar Business”: any business engaged in by Holdings or any Restricted Subsidiaries on April
4, 2014 and any business or other activities that are reasonably similar, ancillary, complementary or
related to, or a reasonable extension, development or expansion of, the businesses in which Holdings
and its Restricted Subsidiaries are engaged on April 4, 2014.
“SOFR”: the secured overnight financing rate as administered by the FRBNY (or a successor
administrator).
“SOFR Adjustment”: (a) with respect to Daily Simple SOFR and Term SOFR for a one-month
Interest Period, 0.11448%; and (b) with respect to Term SOFR for a three-month Interest Period,
0.26161%.
“Solvent”: as to any Person, such Person (a) owns property whose fair salable value is greater
than the amount required to pay all of its debts (including contingent, subordinated, unmatured and
unliquidated liabilities); (b) owns property whose present fair salable value (as defined below) is greater
than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they
mature; (d) has capital that is not unreasonably small for the business in which it is engaged or about to
engage; (e) is not “insolvent” within the meaning of Section 101(32) of the U.S. Bankruptcy Code; (f)
has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or
otherwise) or made any conveyance in connection therewith, with actual intent to hinder, delay or
defraud either present or future creditors of such Person or any of its Affiliates; and (g) as to any Person
incorporated or organized under the laws of Canada or any province or territory of Canada, is not an
“insolvent person” as defined in the Bankruptcy and Insolvency Act (Canada). “Fair salable value”
means the amount that could be obtained for assets within a reasonable time, either through collection or
through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who
is willing (but under no compulsion) to purchase; and (h) with respect to the Mexican Guarantor, that
such Person is not insolvent pursuant to Article 2166 of the Mexican Federal Civil Code (Código Civil
Federal) or its correlative provisions of the Civil Codes of the States that comprise Mexico or that of the
Federal District of Mexico or Articles 9, 10 and 11 of the Mexican Bankruptcy Law (Ley de Concursos
Mercantiles) (or any successor provision)..
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“Specified Jurisdictions”: Costa Rica, France, Mexico, the Netherlands, Romania and any other
country, territory or political jurisdiction specified by a Borrower to the Agent from time to time.
“Specified Jurisdiction Guarantors”: each Subsidiary of Holdings organized in a Specified
Jurisdiction who guarantees the payment and performance of the Obligations.Cooper-Standard Latin
America B.V., a corporation under the laws of the Netherlands (besloten vennootschap met beperkte
aansprakelijkheid).
“Specified Loan Party”: a Loan Party that is not then an “eligible contract participant” under the
Commodity Exchange Act (determined prior to giving effect to Section 5.10).
“Specified Transaction”: any Restricted Payment described in Section 10.2.3(a)(i), (a)(ii),
(b)(vi) or, (b)(x) or (b)(xi).
“Specified Transaction Conditions”: with respect to the permissibility hereunder of any Specified
Transaction, the satisfaction of the following conditions (except as indicated): (a) no Default or Event of
Default exists at the time of or would result from the making of such Specified Transaction, (b)
immediately after giving effect to such Specified Transaction, Parent and its Restricted Subsidiaries
shall, on a consolidated basis, have a Fixed Charge Coverage Ratio of not less than 1.00:1.00 as
calculated on a Pro Forma Basis for the Fixed Charge Coverage Ratio Test Period then most recently
ended and (c) immediately after giving effect to such Specified Transaction, Availability (on the date of
such action or proposed action) and, if an Average Availability Test Trigger exists at the time of such
Specified Transaction, Average Period Availability (for the 30-day period ending on the date of such
action or proposed action) as calculated on a Pro Forma Basis, shall not be less than the greater of (i)
$27,000,000 and (ii) 15% of the Commitments at such time; provided, further, that such Specified
Transaction shall be permitted irrespective of clause (b) of this definition so long as Availability (on the
date of such action or proposed action) and, if an Average Availability Test Trigger exists at the time of
such Specified Transaction, Average Period Availability (for the 30-day period ending on the date of
such action or proposed action) as calculated on a Pro Forma Basis, shall not be less than the greater of
(i) $36,000,000 and (ii) 20% of the Commitments at such time.
“Standard Securitization Undertakings”: has the meaning set forth in the definition of “Permitted
Receivables Financing”.
“Stated Maturity”: with respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the
documentation governing such Indebtedness, and shall not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally scheduled for the
payment thereof.
“Sterling” or “£”: the lawful currency of the United Kingdom of Great Britain and Northern
Ireland.
“Subsidiary”: any entity more than 50% of whose voting securities or Equity Interests is owned
by any Loan Party or any combination of the Loan Parties (including indirect ownership by any Loan
Party through other entities in which any Loan Party directly or indirectly owns 50% of the voting
securities or Equity Interests). Unless the context otherwise requires, each reference to Subsidiaries
herein shall be a reference to Subsidiaries of Holdings.
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“Superintendent”: as defined in the PBA.
“Supermajority Required Facility Lenders”: at any date of determination thereof, Lenders
having Facility Commitments to a Borrower representing more than 66 2/3% of the aggregate Facility
Commitments to such Borrower at such time; provided, however, that if and for so long as any such
Lender shall be a Defaulting Lender, the term “Supermajority Required Facility Lenders” shall mean
Lenders (excluding each Defaulting Lender) having Facility Commitments to such Borrower
representing more than 66 2/3% of the aggregate Facility Commitments to such Borrower (excluding the
Facility Commitments of each Defaulting Lender) at such time; provided further, however, that if all of
the Facility Commitments to such Borrower have been terminated, the term “Supermajority Required
Facility Lenders” shall mean Lenders to such Borrower holding Revolver Loans to, and participating
interest in LC Obligations (excluding amounts specified in clause (c) of such definition) owing by, such
Borrower representing at least 66 2/3% of the aggregate outstanding principal amount of Revolver
Loans and LC Obligations (excluding amounts specified in clause (c) of such definition) owing by such
Borrower at such time. Notwithstanding the foregoing, for purposes of this definition, any Fronting
Exposure related to a Defaulting Lender shall be deemed held as a Loan or LC Commitment by the
Lender that funded or issued the applicable Loan or Letter of Credit.
“Swap Obligations”: with respect to any Loan party, its obligations under a Hedging Agreement
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Loan”: a U.S. Swingline Loan or a Canadian Swingline Loan, as applicable.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including
backup withholding), assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.
“Termination Event”: (a) the wind up, or the filing of a notice of intended wind up with the
Superintendent, of a Canadian Pension Plan by a Canadian Facility Loan Party; (b) the wind up of a
Canadian Pension Plan by the Superintendent, FSCO or other Governmental Authority; or (c) the
institution of proceedings by any Governmental Authority to terminate in whole or in part or have a
trustee or an administrator appointed to administer a Canadian Pension Plan.
“Term CORRA”: for any Interest Period relating to a Loan denominated in Canadian dollars, (a)
the rate per annum equal to the forward-looking term rate based on CORRA, as published on the
applicable Reuters screen page (or other commercially available source providing such quotations as
may be designated by the Agent from time to time) on the day that is two (2) Business Days prior to the
first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding
Business Day) with a term equivalent to such Interest Period, plus (b) the Term CORRA Adjustment for
such Interest Period; provided, that, if Term CORRA shall be less than zero, such rate shall be deemed
zero for purposes of this Agreement.
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“Term CORRA Adjustment”: (a) 0.29547% (29.547 basis points) for an Interest Period of one-
month’s duration and (b) 0.32138% (32.138 basis points) for an Interest Period of three-months’
duration.
“Term CORRA Rate Loan”: a Canadian Revolver Loan that bears interest based on Term
CORRA.
“Term CORRA Scheduled Unavailability Date”: as defined in Section 1.7.2.
“Term SOFR”: (a) for any Interest Period relating to a Term SOFR Loan, the rate per annum
equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the
commencement of such Interest Period with a term equivalent to such Interest Period, provided that if
such rate is not published prior to 11:00 a.m. on such determination date, then the Term SOFR means
the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior
thereto, in each case, plus the SOFR Adjustment for such Interest Period; and (b) for any interest
calculation relating to a U.S. Base Rate Loan on any day, the rate per annum equal to the Term SOFR
Screen Rate two U.S. Government Securities Business Days prior to such date with a term of one month
commencing that day, provided that if the rate is not published prior to 11:00 a.m. on such determination
date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities
Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such term;
provided, that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b)
would otherwise be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan”: a Loan that bears interest based on clause (a) of the definition of Term
SOFR.
“Term SOFR Replacement Date”: as defined in Section 1.61.6.2.
“Term SOFR Screen Rate”: the forward-looking SOFR term rate administered by CME (or any
successor administrator reasonably satisfactory to Agent) and published on the applicable Reuters screen
page (or such other commercially available source providing such quotations as may be designated by
Agent from time to time).
“Term SOFR Successor Rate”: as defined in Section 1.61.6.2.
“Third Amendment”: that certain Amendment No. 3 to Third Amended and Restated Loan
Agreement dated as of December 19, 2022, by and among the Loan Parties party thereto, Agent and the
Lenders party thereto.
“Third Amendment Effective Date”: as defined in the Third Amendment.
“Third Restatement Date”: November 2, 2016.
“Tooling A/R”: as defined in Section 12.2.1(e).
“Tooling A/R Removal Notice”: as defined in Section 12.2.1(e).
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“Total Revolver Exposure”: as of any date of determination the sum of the Canadian Revolver
Exposure and the U.S. Revolver Exposure on such date of determination.
“Transactions”: collectively, (a) the entering into by the Loan Parties of the Loan Documents to
which they are or are intended to be a party, and the borrowings hereunder and thereunder on the Third
Restatement Date and application of the proceeds as contemplated hereby and thereby, (b) the closing of
the Fixed Asset Facility (as defined prior to the Third Amendment Effective Date) and the issuance of
the Term B-1 Loans thereunder (c) the Senior Unsecured Notes Issuance[reserved] and (d) the payment
of the fees and expenses incurred in connection with the consummation of the foregoing that are
required to be paid on or around the Third Restatement Date.
“Transferee”: any actual or potential Eligible Assignee, Participant or other Person acquiring an
interest in any Obligations.
“Type”: any type of a Loan (i.e., U.S. Base Rate Loan, Term SOFR Loan, Term CORRA Rate
Loan, Canadian Base Rate Loan, or Canadian Prime Rate Loan).
“UK Financial Institution”: any BRRD Undertaking (as defined under the PRA Rulebook (as
amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or
any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: means the Bank of England or any other public administrative
authority having responsibility for the resolution of any UK Financial Institution.
“Unfunded Pension Liability”: means the excess of the present value of a Pension Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA or a Canadian Pension Plan’s benefit liability under the
PBA (or other equivalent pension legislation), over the current value of the assets of that Pension Plan or
Canadian Pension Plan, as applicable, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code or the Canadian Pension Plan pursuant to the PBA
(or other equivalent pension legislation) for the applicable plan year and an ‘Unfunded Pension
Liability’ also includes any unfunded going concern deficit or solvency deficiency as identified in the
valuations prepared in respect of a Pension Plan or Canadian Pension Plan, as applicable.
“Uniform Commercial Code” or “UCC”: the Uniform Commercial Code as the same may from
time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply to any item or items of
Collateral.
“Unrestricted Subsidiary”: (a) any Subsidiary of Holdings that at the time of determination shall
be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner
provided below; and (b) any Subsidiary of an Unrestricted Subsidiary and (c) Liveline Technologies Inc.
(unless redesignated as a Restricted Subsidiary). The Board of Directors of Holdings may designate any
Subsidiary of Holdings (including any newly acquired or newly formed Subsidiary of Holdings but
excluding any Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of,
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Holdings or any other Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so
designated; provided that the Subsidiary to be so designated and its Subsidiaries do not at the time of
designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has recourse
to any of the assets of Holdings or any of its Restricted Subsidiaries; provided further that either:
(i)the Subsidiary to be so designated has total consolidated assets of $1,000 or less;
or
(ii)if such Subsidiary has consolidated assets greater than $1,000, then such
designation would be permitted under Section 10.2.3(a)(iv).
The Board of Directors of Holdings may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation:
(x)(1) Holdings could Incur $1.00 of additional Indebtedness pursuant to
Section 10.2.2, or
(2)the Fixed Asset Fixed Charge Coverage Ratio for Parent and its
Restricted Subsidiaries on a consolidated basis would be equal to or
greater than the Fixed Asset Fixed Charge Coverage Ratio for Parent and
its Restricted Subsidiaries on a consolidated basis immediately prior to
such designation, and
(y)no Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors of Holdings shall be evidenced to Agent by
promptly delivering to Agent a copy of the resolution of the Board of Directors of Holdings giving effect
to such designation and an Officer’s Certificate certifying that such designation complied with the
foregoing provisions.
“U.S. Auto-Extension Letter of Credit”: as defined in Section 2.2.1(e).
“U.S. Availability”: as of any date of determination, the U.S. Borrowing Base as of such date of
determination plus solely for purposes of calculating “Availability” in connection with the satisfaction of
any Specified Transaction Conditions, the U.S. Suppressed Amount on such date of determination plus
the U.S. Designated Cash Amount on such date of determination minus the U.S. Revolver Exposure
(calculated without duplication of any amounts reserved under the U.S. LC Reserve) on such date of
determination.
“U.S. Availability Reserve”: the sum (without duplication) of (a) the Inventory Reserve with
respect to the U.S. Borrower’s Inventory; (b) the U.S. Rent and Charges Reserve; (c) the U.S. LC
Reserve; (d) the U.S. Bank Product Reserve; (e) the aggregate amount of liabilities secured by Liens
upon the U.S. Facility Collateral that are senior to Agent’s Liens (but imposition of any such reserve
shall not waive an Event of Default arising therefrom); (f) the Canadian Overadvance Loan Balance, if
any, outstanding on such date; (g) the U.S. Designated Foreign Guaranty Reserve; (h) [reserved]; (i) the
U.S. Tooling Vendor Reserve, (j) the U.S. Non-Extending Lender [Rreserved] and (k) such additional
reserves (including, without limitation, dilution reserves), in such amounts and with respect to such
matters, as Agent in its Permitted Discretion may establish.
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“U.S. Bank Product Reserve”: the aggregate amount of reserves, as established by Agent from
time to time in its Permitted Discretion to reflect the reasonably anticipated liabilities in respect of the
then outstanding Secured Bank Product Obligations of the U.S. Facility Loan Parties and their Restricted
Subsidiaries (or any other Affiliate thereof requested by the U.S. Borrower and approved by Agent).
“U.S. Bankruptcy Code”: Chapter 11 of the United States Bankruptcy Code (11 U.S.C.
§§101-1532, as amended.
“U.S. Base Rate”: for any day, a per annum rate equal to the greater of (a) the U.S. Prime Rate
for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month
interest period as of such day, plus 1.0%; provided that if the U.S. Base Rate shall be less than zero, such
rate shall be deemed zero for purposes of this Agreement.
“U.S. Base Rate Loan”: any Loan that bears interest based on the U.S. Base Rate.
“U.S. Borrower”: as defined in the preamble to this Agreement.
“U.S. Borrowing Base”: on any date of determination, an amount equal to the lesser of (a) the
Maximum U.S. Facility Amount minus (x) the Canadian Overadvance Loan Balance, if any, outstanding
on such date minus (y) the U.S. LC Reserve; and (b) (1) the sum of (x) 85% of the Value of Eligible
Accounts of the U.S. Borrower; plus (y) the lesser of (i) 70% of the Value of Eligible Inventory of the
U.S. Borrower; and (ii) 85% of the NOLV Percentage of the Value of Eligible Inventory of the U.S.
Borrower; plus (z) 85% of the Value of Eligible Tooling Accounts of the U.S. Borrower, minus (2) the
U.S. Availability Reserve. Notwithstanding the foregoing, in no event may the maximum amount of
availability under the U.S. Borrowing Base and the Canadian Borrowing Base resulting from the
inclusion of Eligible Tooling Accounts exceed $30,000,000 in the aggregate.
“U.S. Collateral”: all of the Collateral other than the Foreign Collateral.
“U.S. Cash Collateral Account”: a demand deposit, money market or other account established
by Agent at Bank of America or such other financial institution as Agent may select in its discretion,
which account shall be for the benefit of the Secured Parties and shall be subject to Agent’s Liens
securing the Obligations.
“U.S. Designated Cash Amount”: the aggregate amount of cash of the U.S. Domiciled Loan
Parties deposited in segregated DACA Deposit Accounts with Agent (excluding any portion thereof
which is subject to a Lien in favor of a Person other than Agent or is otherwise restricted).
“U.S. Designated Foreign Guaranty Reserve”: the aggregate amount of reserves established by
Agent from time to time in its Permitted Discretion in respect of any Designated Foreign Guaranty
established in favor of a U.S. Lender and/or an Affiliate of a U.S. Lender.
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“U.S. Domiciled Loan Party”: Holdings and each U.S. Subsidiary of Holdings (other than the
Excluded Subsidiaries), in each case, now or hereafter party hereto as a Loan Party; and “U.S.
Domiciled Loan Parties” means all such Persons, collectively.
“U.S. Dominion Account”: a special account established by the U.S. Facility Loan Parties at
Bank of America or another bank reasonably acceptable to Agent, over which Agent has exclusive
control for withdrawal purposes.
“U.S. Facility Collateral”: Collateral that now or hereafter secures (or is intended to secure) any
of the U.S. Facility Obligations.
“U.S. Facility Guarantee”: each guarantee agreement (including this Agreement) at any time
executed by a U.S. Facility Guarantor in favor of Agent guaranteeing all or any portion of the U.S.
Facility Obligations.
“U.S. Facility Guarantor”: each U.S. Domiciled Loan Party and each other Person (if any) who
guarantees payment and performance of any U.S. Facility Obligations.
“U.S. Facility Loan Party”: the U.S. Borrower and each U.S. Facility Guarantor.
“U.S. Facility Obligations”: all applicable Obligations of the U.S. Facility Loan Parties
(including, for the avoidance of doubt, the Obligations of the U.S. Domiciled Loan Parties as guarantors
of the Canadian Facility Obligations).
“U.S. Facility Secured Parties”: Agent, U.S. Issuing Bank, U.S. Lenders and Secured Bank
Product Providers of Bank Products to U.S. Facility Loan Parties and the Lead Arrangers.
“U.S. Government Securities Business Day”: any day except for (a) a Saturday, (b) a Sunday or
(c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed
income departments of its members be closed for the entire day for purposes of trading in United States
government securities.
“U.S. Issuing Bank”: (a) Bank of America or an Affiliate of Bank of America, as an issuer of
Letters of Credit under this Agreement and (b) Deutsche Bank AG New York Branch or an Affiliate of
Deutsche Bank AG New York Branch, as an issuer of Letters of Credit under this Agreement. With
respect to any Letter of Credit, “U.S. Issuing Bank” shall mean the issuer thereof.
“U.S. LC Obligations”: the sum (without duplication) of (a) all amounts owing by the U.S.
Borrower for any drawings under Letters of Credit; (b) the stated amount of all outstanding Letters of
Credit issued for the account of the U.S. Borrower; and (c) all fees and other amounts owing with
respect to Letters of Credit issued for the account of the U.S. Borrower.
“U.S. LC Reserve”: the aggregate of all U.S. LC Obligations, other than (a) those that have been
Cash Collateralized; and (b) if no Default or Event of Default exists, amounts specified in clause (c) of
the definition of U.S. LC Obligations.
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“U.S. Lenders”: Bank of America and each other Lender (other than the Canadian Lenders)
party hereto, including Agent in its capacity as a provider of U.S. Swingline Loans.
“U.S. Letter of Credit Sublimit”: $99,000,000.
“U.S. Letters of Credit”: as defined in Section 2.2.1 hereof.
“U.S. Non-Extension Notice Date”: as defined in Section 2.2.1(e).
“U.S. Non-Extending Lender Reserve”: the aggregate amount of reserves, as established by
Agent from time to time in its Permitted Discretion at any time after the date that is 91 days prior to the
Facility Termination Date set forth in clause (a) of the definition thereof, in an amount not to exceed the
aggregate Commitments then held by the Non-Extending Lender as of such date of determination (it
being understood and agreed that to the extent any such reserve is implemented it shall be reduced on a
dollar-for-dollar basis by the amount of any such Commitments that are either terminated or assigned in
accordance with the terms hereof).
“U.S. Overadvance”: as defined in Section 2.1.5 hereof.
“U.S. Overadvance Loan”: a U.S. Base Rate Loan made to the U.S. Borrower when a U.S.
Overadvance exists or is caused by the funding thereof.
“U.S. Prime Rate”: the rate of interest announced by Bank of America from time to time as its
U.S. prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs
and desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly
announced by Bank of America shall take effect at the opening of business on the day specified in the
announcement.
“U.S. Reimbursement Date”: as defined in Section 2.2.2(a).
“U.S. Rent and Charges Reserve”: the aggregate of (a) all past due rent and other past due
amounts owing by any U.S. Facility Loan Party to any landlord, warehouseman, processor, repairman,
mechanic, shipper, freight forwarder, broker or other Person who possesses any U.S. Facility Collateral
or could assert a Lien on any such U.S. Facility Collateral; plus (b) a reserve at least equal to three (3)
months (or such shorter period as Agent determines in its Permitted Discretion as it will take to liquidate
the ABL Priority Collateral at such location) rent and other charges that could reasonably be expected to
be payable to any such Person who possesses any U.S. Facility Collateral or could reasonably be
expected to assert a Lien thereon under applicable Law, unless, in any such case, such Person has
executed a Collateral Access Agreement.
“U.S. Revolver Commitment”: for any U.S. Lender, its obligation to make U.S. Revolver Loans
and to issue U.S. Letters of Credit, in the case of U.S. Issuing Bank, or participate in U.S. LC
Obligations (excluding amounts specified in clause (c) of such definition), in the case of the other U.S.
Lenders, to the U.S. Borrower up to the maximum principal amount, in each case, shown on Schedule
1.1(a), or as hereafter determined pursuant to each Assignment and Acceptance to which it is a party, as
such U.S. Revolver Commitment may be adjusted from time to time in accordance with the provisions
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of Section 2.1.4, or 11.2. “U.S. Revolver Commitments” means the aggregate amount of such
commitments of all U.S. Lenders.
“U.S. Revolver Commitment Termination Date”: the earliest of (a) the Facility Termination
Date, (b) the date on which Loan Party Agent terminates or reduces to zero (0) the U.S. Revolver
Commitments pursuant to Section 2.1.4, and (c) the date on which the U.S. Revolver Commitments are
terminated pursuant to Section 11.2.
“U.S. Revolver Exposure”: on any date, an amount equal to the sum of the Dollar Equivalent of
the U.S. Revolver Loans outstanding on such date plus the U.S. LC Obligations (excluding amounts
specified in clause (c) of such definition) on such date.
“U.S. Revolver Loan”: a Revolver Loan made by a U.S. Lender to the U.S. Borrower pursuant to
Section 2.1.1(a), and any U.S. Swingline Loan, which Loan shall be denominated in Dollars and shall
be either a U.S. Base Rate Loan or a Term SOFR Loan, in each case as selected by Agent or Loan Party
Agent.
“U.S. Revolver Notes”: collectively, each promissory note, if any, executed by the U.S.
Borrower in favor of a U.S. Lender to evidence the U.S. Revolver Loans funded from time to time by
such U.S. Lender, which shall be in the form of Exhibit A-2 to this Agreement, together with any
replacement or successor notes therefor.
“U.S. Subsidiary”: a Subsidiary of Holdings that is organized under the laws of a state of the
United States or the District of Columbia.
“U.S. Suppressed Amount”: to the extent that the amount calculated pursuant to clause (b) of the
U.S. Borrowing Base definition exceeds the then-current U.S. Revolver Commitment as of any date of
determination, the amount of any such excess designated in writing by Loan Party Agent to Agent as
“U.S. Suppressed Amount” under this Agreement; provided, that in no event shall the U.S. Suppressed
Amount exceed $5,000,000 less the Canadian Suppressed Amount as of such date of determination.
“U.S. Swingline Loan”: any Borrowing of Base Rate U.S. Revolver Loans made to the U.S.
Borrower pursuant to Section 4.1.3(a).
“U.S. Tooling Vendor Reserve”: the aggregate amount of reserves, as established by Agent from
time to time in its Permitted Discretion to reflect the reasonably anticipated liabilities in respect of the
then outstanding amounts owing to all tooling vendors with respect to the tooling giving rise to Eligible
Tooling Accounts of the U.S. Facility Loan Parties.
“U.S. Unused Line Fee Rate”: at any date of determination, (x) for any day prior to the Fourth
Amendment Effective Date, such rate set forth in this Agreement as in effect on such day and (y) as of
the Fourth Amendment Effective Date and each day thereafter, a rate per annum equal to 0.50%;
provided that, notwithstanding the foregoing, with respect to any day occurring during the existence of a
Pricing/Fee Reduction Period, the U.S. Unused Line Fee Rate shall equal a rate per annum equal to
0.375%.
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“Value”: without duplication of any item enumerated in the definition of Eligible Inventory or
Eligible Account: (a) for Inventory, its Dollar Equivalent value determined on the basis of the lower of
cost or market, calculated on a first-in, first-out basis, and excluding any portion of cost attributable to
intercompany profit among the Borrowers, the other Loan Parties and their Affiliates; and (b) for an
Account, its Dollar Equivalent face amount, net of any returns, rebates, discounts (calculated on the
shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or
could be claimed by the Account Debtor or any other Person.
“Voting Stock”: of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote (without regard to the occurrence of any contingency) in the election of the
Board of Directors of such Person.
“Wage Earner Protection Act Reserve”: on any date of determination, a reserve established from
time to time by Agent in its Permitted Discretion in such amount as Agent determines reflects the
amounts that may become due under the Wage Earner Protection Program Act with respect to the
employees of any Loan Party employed in Canada which would give rise to a Lien with priority under
applicable Law over the Lien of Agent.
“Weighted Average Life to Maturity”: when applied to any Indebtedness or Disqualified Stock,
as the case may be, at any date, the quotient obtained by dividing (1) the sum of the products of the
number of years from the date of determination to the date of each successive scheduled principal
payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock
multiplied by the amount of such payment, by (2) the sum of all such payments.
“Wholly-Owned Restricted Subsidiary”: any Wholly Owned Subsidiary that is a Restricted
Subsidiary.
“Wholly Owned Subsidiary”: of any Person means a Subsidiary of such Person 100% of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares
or shares or interests required to be held by foreign nationals or other third parties to the extent required
by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such Person.
“Withholding Agent”: means Agent and any Loan Party.
“Write-Down and Conversion Powers”: means, (a) with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the
United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to
cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract
or instrument under which that liability arises, to convert all or part of that liability into shares, securities
or obligations of that Person or any other Person, to provide that any such contract or instrument is to
have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers.
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1.2Accounting Terms. Under the Loan Documents (except as otherwise specified herein),
all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial
statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most
recent audited financial statements of the Loan Parties delivered to Agent before the Third Restatement
Date and using the same inventory valuation method as used in such financial statements, except for any
change required or permitted by GAAP if the Loan Parties’ certified public accountants concur in such
change and the change is disclosed to Agent. The Loan Party Agent, Lenders and Agent shall negotiate
in good faith to amend Section 10.3 to preserve the original intent in light of such change in GAAP;
provided, that until so amended Section 10.3 shall continue to be computed in accordance with GAAP
prior to such change therein.
1.3Uniform Commercial Code/PPSA. As used herein, the following terms are defined in
accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,”
“Commercial Tort Claim,” “Equipment,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-
Credit Right” and “Supporting Obligation” and, as such terms relate to any such property of any
Canadian Domiciled Loan Party, such terms shall refer to such property as defined in the PPSA. In
addition, other terms relating to Collateral used and not otherwise defined herein that are defined in the
UCC and/or the PPSA shall have the meanings set forth in the UCC and/or the PPSA, as applicable.
1.4Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any particular section, paragraph
or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods
of time from a specified date to a later specified date, “from” means “from and including,” and “to” and
“until” each mean “to but excluding.” The terms “including” and “include” shall mean “including,
without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem
generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience
only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes
include, unless otherwise specified, all related rules, regulations, interpretations, amendments and
successor provisions; (b) any document, instrument or agreement includes any amendments, waivers and
other modifications, extensions or renewals (to the extent not prohibited by the Loan Documents); (c)
any section means, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or
schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are
hereby incorporated by reference; (e) any Person includes its successors and assigns; (f) time of day
means time of day at Agent’s notice address under Section 14.3.1; or (g) except as expressly provided,
discretion of Agent, Issuing Bank or any Lender means the sole and absolute discretion of such Person.
All calculations of Value, fundings of Loans, issuances of Letters of Credit and payments of Obligations
shall be in Dollars (except as otherwise expressly provided herein) and, unless the context otherwise
requires, all determinations (including calculations of Borrowing Base and financial covenants) made
from time to time under the Loan Documents shall be made in light of the circumstances existing at such
time. Borrowing Base calculations shall be consistent with historical methods of valuation and
calculation, and otherwise satisfactory to Agent (and not necessarily calculated in accordance with
GAAP). The Loan Parties shall have the burden of establishing any alleged negligence, misconduct or
lack of good faith by Agent, any Issuing Bank or any Lender under any Loan Documents. No provision
of any Loan Documents shall be construed against any party by reason of such party having, or being
deemed to have, drafted the provision. Whenever the phrase “to the best of a Loan Parties’ knowledge”
or words of similar import are used in any Loan Documents, it means actual knowledge of a Responsible
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Officer of a Loan Party. Whenever any payment, certificate, notice or other delivery shall be stated to
be due on a day other than a Business Day, the due date for such payment or delivery shall be extended
to the next succeeding Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be; provided, however, that if such extension would
cause payment of interest on or principal of any Term SOFR Loan or Term CORRA Rate Loan to be
made in the next calendar month, such payment shall be made on the immediately preceding Business
Day.
1.5Interpretation (Quebec). For purposes of any Collateral located in the Province of
Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes
pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of
the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Québec, (1)
“personal property” shall be deemed to include “movable property”, (2) “real property” shall be deemed
to include “immovable property”, (3) “tangible property” shall be deemed to include “corporeal
property”, (4) “intangible property” shall be deemed to include “incorporeal property”, (5) “security
interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim” and a
“resolutory clause”, (6) all references to filing, registering or recording under the UCC or the PPSA shall
be deemed to include publication under the Civil Code of Québec, (7) all references to “perfection” of or
“perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third
parties, (8) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a
“right of compensation”, (9) “goods” shall be deemed to include “corporeal movable property” other
than chattel paper, documents of title, instruments, money and securities, (10) an “agent” shall be
deemed to include a “mandatary”, (11) “construction liens” shall be deemed to include “legal
hypothecs”, (12) “joint and several” shall be deemed to include “solidary”, (13) “gross negligence or
willful misconduct” shall be deemed to be “intentional or gross fault”, (14) “beneficial ownership” shall
be deemed to include “ownership on behalf of another as mandatary”, (15) “servitude” shall be deemed
to include “easement”, (16) “priority” shall be deemed to include “prior claim”, (17) “survey” shall be
deemed to include “certificate of location and plan”, (18) “fee simple title” shall be deemed to include
“absolute ownership”, and (19) “foreclosure” shall be deemed to include the “exercise of a hypothecary
right”.
1.6Term SOFR Successor Rate. Notwithstanding anything to the contrary in this
Agreement or any other Loan Documents, if Agent determines (which determination shall be conclusive
absent manifest error), or Loan Party Agent or Required Lenders notify Agent (with, in the case of the
Required Lenders, a copy to Loan Party Agent) that Loan Party Agent or Required Lenders (as
applicable) have determined, that:
1.6.1adequate and reasonable means do not exist for ascertaining one or three month
interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or
published on a current basis, and such circumstances are unlikely to be temporary; or
1.6.2CME or any successor administrator of the Term SOFR Screen Rate or a
Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its
publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying
a specific date after which Term SOFR or the Term SOFR Screen Rate shall or will no longer be made
available or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated
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loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor
administrator satisfactory to Agent that will continue to provide Term SOFR after such specific date (the
latest date on which Term SOFR or the Term SOFR Screen Rate are no longer available permanently or
indefinitely, “Scheduled Unavailability Date”);
then, on a date and time determined by Agent (any such date, “Term SOFR Replacement Date”), which
date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for
interest calculated and, solely with respect to subsectionSection 1.6.2 above, no later than the Scheduled
Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan
Document with Daily Simple SOFR plus the SOFR Adjustment, for any payment period for interest
calculated that can be determined by Agent, in each case, without any amendment to, or further action or
consent of any other party to, any Loan Document (“Term SOFR Successor Rate”). If the Term SOFR
Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest will be payable on a
monthly basis.
Notwithstanding anything to the contrary herein, (x) if Agent determines that Daily Simple
SOFR is not available on or prior to the Term SOFR Replacement Date or (y) if the events or
circumstances of the type described in clauses (a) or (b) above have occurred with respect to the Term
SOFR Successor Rate then in effect, then in each case, Agent and Loan Party Agent may amend this
Agreement solely for the purpose of replacing Term SOFR or any then current Term SOFR Successor
Rate in accordance with this Section 1.6 at the end of any Interest Period, relevant interest payment date
or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due
consideration to any evolving or then existing convention for such alternative benchmarks in similar
U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States and, in
each case, including any mathematical or other adjustments to such benchmark giving due consideration
to any evolving or then existing convention for such benchmarks in similar U.S. dollar denominated
credit facilities syndicated and agented in the United States. For the avoidance of doubt, any such
proposed rate and adjustments shall constitute a Term SOFR Successor Rate. Any such amendment shall
become effective at 5:00 p.m. on the fifth Business Day after Agent posts such proposed amendment to
all Lenders and Loan Party Agent unless, prior to such time, Required Lenders deliver to Agent written
notice that Required Lenders object to the amendment.
Agent will promptly (in one or more notices) notify Loan Party Agent and Lenders of
implementation of any Term SOFR Successor Rate. A Term SOFR Successor Rate shall be applied in a
manner consistent with market practice; provided, that to the extent market practice is not
administratively feasible for Agent, the Term SOFR Successor Rate shall be applied in a manner as
otherwise reasonably determined by Agent. Notwithstanding anything else herein, if at any time any
Term SOFR Successor Rate as so determined would otherwise be less than zero, the Term SOFR
Successor Rate will be deemed to be zero for all purposes of the Loan Documents.
In connection with the implementation of a Term SOFR Successor Rate, the Agent may make
Conforming Changes from time to time with respect to SOFR, Term SOFR, Canadian Base Rate or any
Term SOFR Successor Rate. Notwithstanding anything to the contrary in any Loan Document, any
amendment implementing such changes shall be effective without further action or consent of any party
to any Loan Document. The Agent shall post or provide each such amendment to Lenders and the Loan
Party Agent reasonably promptly after it becomes effective.
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1.7Term CORRA Successor Rate. Notwithstanding anything to the contrary in this
Agreement or any other Loan Documents, if Agent determines (which determination shall be conclusive
absent manifest error), or Loan Party Agent or Required Lenders notify Agent (with, in the case of the
Required Lenders, a copy to Loan Party Agent) that Loan Party Agent or Required Lenders (as
applicable) have determined, that:
1.7.1adequate and reasonable means do not exist for ascertaining Term CORRA for any
applicable one or three month interest period, because the applicable screen rate is not available or
published on a current basis and such circumstances are unlikely to be temporary; or
1.7.2the administrator of CORRA or Term CORRA, or a Governmental Authority
having jurisdiction over the Agent or such administrator has made a public statement identifying a
specific date after which one and three month interest periods of Term CORRA shall or will no longer be
made available or permitted to be used for determining the interest rate of syndicated loans denominated
in Canadian Dollars, or shall or will otherwise cease, provided, that at the time of such statement, there is
no successor administrator satisfactory to Agent that will continue to provide such interest periods of
Term CORRA (the latest date on which one and three month interests periods of Term CORRA are no
longer available permanently or indefinitely, the “Term CORRA Scheduled Unavailability Date”);
then, reasonably promptly after such determination or receipt of notice by Agent, on a date and time
determined by Agent, which date shall be at the end of an Interest Period or on the relevant interest
payment date, as applicable, for interest calculated and, solely with respect to subsectionSection 1.7.2
above, no later than the Term CORRA Scheduled Unavailability Date, Agent and the Loan Party Agent
may amend this Agreement to replace Term CORRA or any then current Canadian Successor Rate (if
necessary) in accordance with this Section at the end of any Interest Period, relevant interest payment
date or payment period for interest calculated, as applicable, with an alternate benchmark rate (including
any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due
consideration to any evolving or then existing convention for similar syndicated credit facilities
providing for Canadian Dollar-denominated loans which are syndicated and agented in the United States
for such alternative benchmarks (“Canadian Successor Rate”). For the avoidance of doubt, any such
proposed rate and adjustments shall constitute a Canadian Successor Rate. Any such amendment shall
become effective at 5:00 p.m. on the fifth Business Day after Agent posts such proposed amendment to
all Lenders and Loan Party Agent unless, prior to such time, Required Lenders deliver to Agent written
notice that Required Lenders object to the amendment.
Agent will promptly (in one or more notices) notify Loan Party Agent and Lenders of implementation of
any Canadian Successor Rate. A Canadian Successor Rate shall be applied in a manner consistent with
market practice; provided, that to the extent market practice is not administratively feasible for Agent,
the Canadian Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent.
Notwithstanding anything else herein, if at any time any Canadian Successor Rate as so determined
would otherwise be less than zero, the Canadian Successor Rate will be deemed to be zero for all
purposes of the Loan Documents.
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In connection with the implementation of a Canadian Successor Rate, the Agent may make Canadian
Successor Rate Conforming Changes from time to time with respect to CORRA, Term CORRA,
Canadian Prime Rate or any Canadian Successor Rate. Notwithstanding anything to the contrary in any
Loan Document, any amendment implementing such changes shall be effective without further action or
consent of any party to any Loan Document. The Agent shall post or provide each such amendment to
Lenders and the Loan Party Agent reasonably promptly after it becomes effective.
1.8Divisions. For all purposes under the Loan Documents, in connection with any division
or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):
(a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability
of a different Person, then it shall be deemed to have been transferred from the original Person to the
subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to
have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.9Interest Rates. The Agent does not warrant, nor accept responsibility, nor shall the
Agent have any liability with respect to the administration, submission or any other matter related to the
rates in the definition of “Term SOFR”, “Term CORRA”, “Canadian Base Rate” or “Canadian Prime
Rate” or with respect to any rate that is an alternative or replacement or successor to any of such rate
(including, without limitation, any Term SOFR Successor Rate or any Canadian Successor Rate) or the
effect of any of the foregoing, or of any Conforming Changes or Canadian Successor Rate Conforming
Changes.
SECTION 2.CREDIT FACILITIES
2.1Commitment.
2.1.1Revolver Loans.
(a)U.S. Revolver Loans to the U.S. Borrower. Each U.S. Lender agrees, severally and not
jointly with the other U.S. Lenders, upon the terms and subject to the conditions set forth herein, to
make U.S. Revolver Loans in Dollars to the U.S. Borrower on any Business Day during the period from
the Third Restatement Date to the U.S. Revolver Commitment Termination Date, not to exceed in
aggregate principal amount outstanding at any time, such U.S. Lender’s U.S. Revolver Commitment at
such time, which U.S. Revolver Loans may be repaid and reborrowed in accordance with the provisions
of this Agreement; provided, however, that such U.S. Lenders shall have no obligation to the U.S.
Borrower whatsoever to honor any request for a U.S. Revolver Loan (x) on or after the U.S. Revolver
Commitment Termination Date or (y) if the amount of the proposed U.S. Revolver Loan exceeds U.S.
Availability on the proposed funding date for such U.S. Revolver Loan. Each Borrowing of U.S.
Revolver Loans shall be funded by U.S. Lenders on a Pro Rata basis. The U.S. Revolver Loans shall
bear interest as set forth in Section 3.1. Each U.S. Revolver Loan shall, at the option of the U.S.
Borrower, be made or continued as, or converted into, part of one or more Borrowings that, unless
specifically provided herein, shall consist entirely of U.S. Base Rate Loans or Term SOFR Loans. The
U.S. Revolver Loans shall be repaid in accordance with the terms of this Agreement and shall be secured
by all of the U.S. Facility Collateral. Each U.S. Revolver Loan shall be funded in Dollars.
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(b)Canadian Revolver Loans to Canadian Borrower. Each Canadian Lender agrees,
severally and not jointly with the other Canadian Lenders, upon the terms and subject to the conditions
set forth herein, to make Canadian Revolver Loans to the Canadian Borrower on any Business Day
during the period from the Third Restatement Date to the Canadian Revolver Commitment Termination
Date, not to exceed in aggregate principal amount outstanding at any time, such Canadian Lender’s
Canadian Revolver Commitment at such time, which Canadian Revolver Loans may be repaid and
reborrowed in accordance with the provisions of this Agreement; provided, however, that Canadian
Lenders shall have no obligation to the Canadian Borrower whatsoever to honor any request for a
Canadian Revolver Loan on or after the Canadian Revolver Commitment Termination Date or if the
amount of the proposed Canadian Revolver Loan exceeds Canadian Availability on the proposed
funding date for such Canadian Revolver Loan. Each Borrowing of Canadian Revolver Loans shall be
funded by Canadian Lenders on a Pro Rata basis. The Canadian Revolver Loans shall bear interest as
set forth in Section 3.1. Each Canadian Revolver Loan shall, at the option of the Canadian Borrower, be
made or continued as, or converted into, part of one or more Borrowings that, unless specifically
provided herein, shall consist entirely of Canadian Prime Rate Loans or Term CORRA Rate Loans if
denominated in Canadian Dollars or Canadian Base Rate Loans or Term SOFR Loans if denominated in
Dollars. The Canadian Revolver Loans shall be repaid in accordance with the terms of this Agreement
and shall be secured by all of the Canadian Facility Collateral. Each Canadian Revolver Loan shall be
funded in Canadian Dollars or, at the option of the Canadian Borrower, Dollars and repaid in the same
currency as the underlying Canadian Revolver Loan was made.
(c)Cap on Total Revolver Exposure. Notwithstanding anything to the contrary contained in
this Section 2.1.1, in no event shall any Borrower be entitled to receive a Revolver Loan if at the time of
the proposed funding of such Loan (and after giving effect thereto and the application of the proceeds
thereof and all pending requests for Loans), the Total Revolver Exposure exceeds (or would exceed) the
lesser of the Maximum Facility Amount and the Commitments.
2.1.2Revolver Notes. The Revolver Loans made by each Lender and interest accruing
thereon shall be evidenced by the records of Agent and such Lender. At the request of any Lender, the
Borrower to which such Lender has extended Commitments shall deliver a Revolver Note to such Lender
in the amount of such Lender’s aggregate U.S. Revolver Commitment or Canadian Revolver
Commitment, as applicable.
2.1.3Use of Proceeds. The proceeds of Revolver Loans shall be used by the Borrowers
solely (a) to issue standby or commercial letters of credit, and (b) to finance ongoing working capital
needs and other lawful general corporate purposes of the Borrowers and their Restricted Subsidiaries. No
part of the proceeds of any Loan shall, nor shall any Letter of Credit, in any case, be used directly or
indirectly in violation of any Anti-Terrorism Laws or Sanctions.
2.1.4Reduction or Termination of Commitments; Increase of Commitments.
(a)The Canadian Revolver Commitments shall terminate on the Canadian Revolver
Commitment Termination Date and the U.S. Revolver Commitments shall terminate on the U.S.
Revolver Commitment Termination Date, in each case, unless sooner terminated in accordance with this
Agreement. Upon at least three (3) Business Days’ prior written notice to Agent from Loan Party
Agent, (i) the U.S. Borrower may, at its option, terminate the U.S. Revolver Commitments and this
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credit facility, and/or (ii) the Canadian Borrower may, at its option, terminate the Canadian Revolver
Commitment and/or (iii) the Borrowers may, at their option, terminate the Commitments of the Non-
Extending Lender on a non-ratable basis at any time after the Fourth Amendment Effective Date, in each
case, without premium or penalty (other than funding losses payable pursuant to Section 3.9). If the
U.S. Borrower elects to reduce to zero (0) or terminate the U.S. Revolver Commitments pursuant to the
previous sentence, the Canadian Revolver Commitments shall automatically terminate concurrently with
the termination of the U.S. Revolver Commitments. Any notice of termination given by the Loan Party
Agent pursuant to this Section 2.1.4 shall be irrevocable; provided, however, that notice may be
contingent on the occurrence of a refinancing or the consummation of a sale, transfer, lease or other
disposition of assets and may be revoked or the termination date deferred if the refinancing or sale,
transfer, lease or other disposition of assets does not occur. On the Canadian Revolver Commitment
Termination Date, the Canadian Borrower (and other Canadian Facility Loan Parties, if applicable) shall
make Full Payment of all Canadian Facility Obligations. On the U.S. Revolver Commitment
Termination Date, the U.S. Borrower (and other U.S. Facility Loan Parties, if applicable) shall make
Full Payment of all U.S. Facility Obligations.
(b)So long as (i) no Default or Event of Default then exists or would result therefrom, (ii) no
U.S. Overadvance or Canadian Overadvance then exists or would result therefrom, and (iii) after giving
effect thereto, U.S. Availability would exceed $10,000,000, Loan Party Agent may permanently and
irrevocably reduce the Maximum Facility Amount by giving Agent at least three (3) Business Days’
prior irrevocable written notice thereof from a Responsible Officer of Loan Party Agent, which notice
shall (1) specify the date (which shall be a Business Day) and amount of such reduction (which shall be
in a minimum amount of $5,000,000 and increments of $1,000,000 in excess thereof), (2) specify the
allocation of such reduction to, and the corresponding reductions of, each of the Maximum Canadian
Facility Amount and/or the Maximum U.S. Facility Amount (and the respective Canadian Revolver
Commitments and the U.S. Revolver Commitments in respect thereof, each of which shall be allocated
to Lenders among the Borrowers on a Pro Rata basis at the time of such reduction) and (3) certify the
satisfaction of the conditions specified in the foregoing clauses (i) and (ii) and this clause (iii) (including
calculations thereof in reasonable detail) as of the effective date of any such proposed reduction;
provided, however, that such notice may be contingent on the occurrence of a refinancing or incurrence
of Indebtedness permitted under Section 10.2.2 or consummation of a sale, transfer, lease or other
disposition of assets and may be revoked or the reduction date deferred if the refinancing, incurrence or
sale, transfer, lease or other disposition of assets does not occur. Without limiting the foregoing, (A)
each reduction in the Maximum Canadian Facility Amount and the Canadian Revolver Commitments
shall in no event exceed Canadian Availability and be in a minimum amount of $5,000,000, and (B)
each reduction in the Maximum U.S. Facility Amount and the U.S. Revolver Commitments shall in no
event exceed U.S. Availability and be in a minimum amount of $5,000,000.
(c)Provided no Default or Event of Default then exists or would result therefrom after the
Third Restatement Date, upon notice to Agent (which shall promptly notify all Applicable Lenders), the
Loan Party Agent may from time to time, request an increase in the U.S. Revolver Commitments or the
Canadian Revolver Commitments, as applicable, by an amount not exceeding $100,000,000 (less the
amount of any FILO Credit Facility) in the aggregate (resulting in maximum total Facility Commitments
of $280,000,000) during the term of this Agreement; provided that (i) any such request for an increase
shall be in a minimum amount of $5,000,000 and (ii) the Loan Party Agent may make a maximum of
two (2) such requests in the aggregate (resulting in a maximum of two (2) total increases) during the
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term of this Agreement. At the time of sending such notice, a requesting Borrower (in consultation with
Agent) shall specify the time period within which the Applicable Lenders are requested to respond
(which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to
such Lenders (or such lesser period as is acceptable to such Lenders)).
(d)Each Applicable Lender shall notify Agent within such time period whether or not it
agrees to increase its Facility Commitment to the Loan Party Agent and, if so, whether by an amount
equal to, greater than, or less than its Pro Rata share of such requested increase. Any Applicable Lender
not responding within such time period shall be deemed to have declined to increase its Facility
Commitment.
(e)Agent shall notify the Loan Party Agent and each Applicable Lender of such Applicable
Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase,
and subject to the approval of Agent and the applicable Issuing Bank (which approvals, so long as no
Event of Default shall have occurred and be continuing, shall not be unreasonably withheld), the Loan
Party Agent may also invite additional Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance reasonably satisfactory to Agent and its counsel.
(f)If the U.S. Revolver Commitments or the Canadian Revolver Commitments are increased
in accordance with this Section, Agent and the Loan Party Agent shall determine the effective date (the
“Facility Commitment Increase Effective Date”) and the final allocation of such increase. Agent shall
promptly notify the Loan Party Agent and the Applicable Lenders (and any additional Lender added
pursuant to Section 2.1.4(e)) of the final allocation of such increase and the Facility Commitment
Increase Effective Date.
(g)As a condition precedent to such increase, the Loan Party Agent shall deliver to Agent a
certificate of each Loan Party dated as of the Facility Commitment Increase Effective Date (in sufficient
copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case
of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations
and warranties contained in Section 9 and the other Loan Documents are true and correct in all material
respects (or, with respect to representations and warranties qualified by materiality, in all respects) on
and as of the Facility Commitment Increase Effective Date (except for representations and warranties
that expressly relate to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects (or, with respect to representations and warranties qualified by
materiality, in all respects) as of such earlier date), and except that for purposes of this Section 2.1.4, the
representations and warranties contained in Section 9.1.8(a) shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (c) of Section 10.1.1, and (B) no Default exists. The
requesting Borrower shall prepay any Revolver Loans of such Borrower outstanding on the Facility
Commitment Increase Effective Date (and pay any additional amounts required pursuant to Section 3.9)
to the extent necessary to keep the outstanding Revolver Loans of such Borrower ratable with any
revised Pro Rata share arising from any nonratable increase in the Facility Commitments under this
Section.
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(h)No consent shall be required of any Lender not increasing its Facility Commitments in
connection with an increase of the Facility Commitments in accordance with this Section 2.1.4, and the
Borrowers, Agent and each Lender shall enter into such amendments to the Loan Documents as may be
reasonably requested by the Loan Party Agent and Agent to make conforming changes consistent with
this Section 2.1.4.
(i)This Section shall supersede any provisions in Section 14.1 to the contrary.
2.1.5Overadvances.
(a)If at any time (a) the Canadian Revolver Exposure exceeds the Canadian Borrowing Base
(a “Canadian Overadvance”) or (b) the sum of the U.S. Revolver Exposure exceeds the U.S. Borrowing
Base (a “U.S. Overadvance”), the excess amount shall, subject to Section 5.2 and this Section 2.1.5, be
immediately due and payable by the Canadian Borrower or the U.S. Borrower, as applicable on demand
by Agent. Agent may require the Applicable Lenders to honor requests for Overadvance Loans and to
forbear from requiring the applicable Borrower to cure an Overadvance, (a) when no Event of Default is
known to Agent, as long as (i) the Overadvance does not continue for more than thirty (30) consecutive
days (and no Overadvance may exist for at least five (5) consecutive days thereafter before further
Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed
$2,500,000, with respect to the Canadian Borrower, or $5,000,000 in the aggregate, with respect to the
U.S. Borrower; and (b) regardless of whether an Event of Default exists, if Agent discovers an
Overadvance not previously known by it to exist, as long as from the date of such discovery the
Overadvance (i) is not increased by more than $2,500,000, with respect to the Canadian Borrower or
$5,000,000 in the aggregate, with respect to the U.S. Borrower, and (ii) does not continue for more than
thirty (30) consecutive days. In no event shall Overadvance Loans be required that would cause (i) the
Canadian Revolver Exposure to exceed the aggregate Canadian Revolver Commitments or (ii) the U.S.
Revolver Exposure to exceed the aggregate U.S. Revolver Commitments. All Canadian Overadvance
Loans shall constitute Canadian Facility Obligations secured by the Canadian Facility Collateral and
shall be entitled to all benefits of the Loan Documents. All U.S. Overadvance Loans shall constitute
U.S. Facility Obligations secured by the U.S. Facility Collateral and shall be entitled to all benefits of
the Loan Documents. No Overadvance shall result in an Event of Default due to a Borrower’s failure to
comply with Section 2.1.1 for so long as such Overadvance remains outstanding in accordance with the
terms of this paragraph, but solely with respect to the amount of such Overadvance. In no event shall
any Borrower or other Loan Party be deemed a beneficiary of this Section nor authorized to enforce any
of its terms. Agent agrees to use its commercially reasonable best efforts to promptly notify the Lenders
of the issuance of an Overadvance Loan; provided, that Agent shall have no liability for any failure to
provide any such notice.
2.1.6Protective Advances. Agent shall be authorized, in its discretion, at any time that
any conditions in Section 6 are not satisfied, to make U.S. Base Rate Loans and Canadian Prime Rate
Loans, as applicable (each a “Protective Advance”) (a) up to an aggregate amount of $2,500,000, with
respect to the Canadian Borrower, or $5,000,000, with respect to the U.S. Borrower, outstanding at any
time, if Agent deems such Loans necessary or desirable to preserve or protect Collateral, or to enhance
the collectability or repayment of Obligations; or (b) to pay any other amounts chargeable to the Loan
Parties under any Loan Documents, including costs, fees and expenses. Each Applicable Lender shall
participate in each Protective Advance on a Pro Rata basis. In no event shall Protective Advances be
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required that would cause (x) the outstanding U.S. Revolver Loans and U.S. LC Obligations to exceed
the aggregate U.S. Revolver Commitments or (y) the outstanding Canadian Revolver Loans and
Canadian LC Obligations to exceed the aggregate Canadian Revolver Commitments. Required Facility
Lenders may at any time revoke Agent’s authority to make further Protective Advances to the applicable
Borrower by written notice to Agent. Absent such revocation, Agent’s determination that funding of a
Protective Advance is appropriate shall be conclusive. All Protective Advances made by Agent with
respect to U.S. Facility Loan Parties shall be U.S. Facility Obligations, secured by the U.S. Facility
Collateral and shall be treated for all purposes as Extraordinary Expenses and all Protective Advances
made by Agent with respect to Canadian Facility Loan Parties shall be Canadian Facility Obligations,
secured by the Canadian Facility Collateral and shall be treated for all purposes as Extraordinary
Expenses. Agent agrees to use its commercially reasonable best efforts to promptly notify the Lenders
of the extension of a Protective Advance; provided, that Agent shall have no liability for any failure to
provide any such notice.
2.1.7Prepayments. If Holdings or any Restricted Subsidiary consummates one or more
Asset Sales of Fixed Asset Priority Collateral which result in realization or receipt by Holdings or such
Restricted Subsidiary of aggregate Net Proceeds in excess of $20,000,00025,000,000 in any fiscal year,
Holdings shall (1) give written notice to Agent thereof promptly after the date of the realization or receipt
of such Net Proceeds and (2) except to the extent Holdings is required to repay the Fixed Asset Facility
with such Net Proceeds or is permitted under the Fixed Asset Facility to reinvest such Net Proceeds in
assets used or useful in the business, prepay an aggregate principal amount of Loans in an amount equal
to 100% of all Net Proceeds received from such Asset Sale within five (5) Business Days of receipt
thereof by Holdings or such Restricted Subsidiary or the end of such reinvestment period, whichever is
later.
2.2U.S. Letter of Credit Facility.
2.2.1Issuance of Letters of Credit. U.S. Issuing Bank agrees to issue Letters of Credit
for the account of the U.S. Borrower or any of its Subsidiaries (“U.S. Letters of Credit”) (provided that if
the applicant is a Person other than the U.S. Borrower, the U.S. Borrower shall be a co-applicant) from
time to time until fifteen (15) days prior to the Facility Termination Date (or until the U.S. Revolver
Commitment Termination Date, if earlier), on the terms set forth herein, including the following:
(a)The U.S. Borrower acknowledges that U.S. Issuing Bank’s willingness to issue any U.S.
Letter of Credit is conditioned upon U.S. Issuing Bank’s receipt of an LC Application with respect to the
requested U.S. Letter of Credit, as well as such other instruments and agreements as U.S. Issuing Bank
may customarily require for issuance of a letter of credit of similar type and amount. U.S. Issuing Bank
shall have no obligation to issue any U.S. Letter of Credit unless (i) U.S. Issuing Bank receives an LC
Request and LC Application at least three (3) Business Days prior to the requested date of issuance; (ii)
each LC Condition is satisfied; and (iii) if a Defaulting Lender that is a U.S. Lender exists, such
Defaulting Lender or the U.S. Borrower, as applicable, have entered into arrangements satisfactory to
Agent and U.S. Issuing Bank to eliminate any Fronting Exposure associated with such Lender (it being
understood that Cash Collateralization of a Defaulting Lender’s Pro Rata share of the requested U.S.
Letter of Credit is satisfactory to Agent and U.S. Issuing Bank). If, in sufficient time to act, U.S. Issuing
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Bank receives written notice from the Required Facility Lenders that a LC Condition has not been
satisfied, U.S. Issuing Bank shall not issue the requested U.S. Letter of Credit. Prior to receipt of any
such notice, U.S. Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions.
(b)Letters of Credit may be requested by the U.S. Borrower to support obligations of any
Loan Party or any Subsidiary incurred in the ordinary course of business, or as otherwise approved by
Agent. The renewal or extension of any U.S. Letter of Credit shall be treated as the issuance of a new
U.S. Letter of Credit, except that delivery of a new LC Application may be required at the discretion of
U.S. Issuing Bank.
(c)The U.S. Borrower assumes all risks of the acts, omissions or misuses by the beneficiary
of any U.S. Letter of Credit. In connection with issuance of any U.S. Letter of Credit, none of Agent,
U.S. Issuing Bank or any U.S. Lender shall be responsible for the existence, character, quality, quantity,
condition, packing, value or delivery of any goods purported to be represented by any Documents; any
differences or variation in the character, quality, quantity, condition, packing, value or delivery of any
goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which
shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in
a U.S. Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any
shipper or other Person in connection with any goods, shipment or delivery; any breach of contract
between a shipper or vendor and the U.S. Borrower; errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or
otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any U.S.
Letter of Credit, or the proceeds thereof; or any consequences arising from causes beyond the control of
U.S. Issuing Bank, Agent or any U.S. Lender, including any act or omission of a Governmental
Authority. The rights and remedies of U.S. Issuing Bank under the Loan Documents shall be
cumulative. U.S. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary
whose claims against the U.S. Borrower are discharged with proceeds of any U.S. Letter of Credit issued
for the account of the U.S. Borrower.
(d)In connection with its administration of and enforcement of rights or remedies under any
Letters of Credit or LC Documents, U.S. Issuing Bank shall be entitled to act, and shall be fully
protected in acting, upon any certification, documentation or communication in whatever form believed
by U.S. Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by
a proper Person. U.S. Issuing Bank may consult with and employ legal counsel, accountants and other
experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and
shall be fully protected in any action taken in good faith reliance upon, any advice given by such
experts. U.S. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter
relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct
of agents and attorneys-in-fact selected with reasonable care.
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(e)If the U.S. Borrower so requests in any applicable Letter of Credit application, U.S.
Issuing Bank may, in its discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, a “U.S. Auto-Extension Letter of Credit”); provided that any such U.S. Auto-
Extension Letter of Credit must permit U.S. Issuing Bank to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving
prior notice to the beneficiary thereof not later than a day (the “U.S. Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by U.S. Issuing Bank, the U.S. Borrower shall not be required to make a specific
request to the Issuing Bank for any such extension. Once a U.S. Auto-Extension Letter of Credit has
been issued, the U.S. Lenders shall be deemed to have authorized (but may not require) U.S. Issuing
Bank to permit the extension of such Letter of Credit at any time to an expiry date at least 15 Business
Days prior to the Facility Termination Date; provided, however, that U.S. Issuing Bank shall not permit
any such extension if (A) U.S. Issuing Bank has determined that it would not be permitted, or would
have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof, or (B) it has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the U.S. Non-Extension Notice Date (1) from Agent that the
Required Lenders have elected not to permit such extension or (2) from Agent, any Lender or the U.S.
Borrower, as applicable, that one or more of the applicable conditions specified in Section 6.2 is not
then satisfied, and in each such case directing U.S. Issuing Bank not to permit such extension.
(f)By their execution of this Agreement, the parties hereto agree that on the Third
Restatement Date (without any further action by any Person), the Existing Letters of Credit as listed on
Schedule 1.1(c) shall be deemed to have been issued by U.S. Issuing Bank under this Agreement and
the rights and obligations of U.S. Issuing Bank and the account party thereunder shall be subject to the
terms hereof.
2.2.2U.S. Letters of Credit: Reimbursement and Participations.
(a)If U.S. Issuing Bank honors any request for payment under a U.S. Letter of Credit, the
U.S. Borrower shall pay to U.S. Issuing Bank, on the same day (“U.S. Reimbursement Date”), the
amount paid by U.S. Issuing Bank under such U.S. Letter of Credit, together with interest at the interest
rate for U.S. Base Rate Loans, in each case, from the U.S. Reimbursement Date until payment by the
U.S. Borrower. The obligation of the U.S. Borrower to reimburse U.S. Issuing Bank for any payment
made under a U.S. Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid
without regard to any lack of validity or enforceability of any such U.S. Letter of Credit or the existence
of any claim, setoff, defense or other right that the U.S. Borrower or any other U.S. Domiciled Loan
Parties may have at any time against the beneficiary, as applicable. Whether or not Loan Party Agent
submits a Notice of Borrowing, the U.S. Borrower shall be deemed to have requested a Borrowing of
U.S. Base Rate Loans, in each case, in an amount necessary to pay all amounts due U.S. Issuing Bank on
any U.S. Reimbursement Date and each U.S. Lender agrees to fund its Pro Rata share of such Borrowing
whether or not the U.S. Revolver Commitments have terminated, any U.S. Overadvance exists or is
created thereby, or the conditions in Section 6 are satisfied.
(b)Upon issuance of a U.S. Letter of Credit, or in the case of the Existing Letters of Credit,
on the Third Restatement Date, each U.S. Lender shall be deemed to have irrevocably and
unconditionally purchased from U.S. Issuing Bank, without recourse or warranty, an undivided Pro Rata
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interest and participation in all U.S. LC Obligations, as applicable, (in each case, excluding amounts
specified in clause (c) of such definition) relating to such U.S. Letter of Credit. If U.S. Issuing Bank
makes any payment under a U.S. Letter of Credit for the account of the U.S. Borrower, and the U.S.
Borrower does not reimburse such payment on the U.S. Reimbursement Date, Agent shall promptly
notify U.S. Lenders and each U.S. Lender shall promptly (within one (1) Business Day) and
unconditionally pay to Agent, for the benefit of U.S. Issuing Bank, such U.S. Lender’s Pro Rata share of
such payment. Upon request by a U.S. Lender, U.S. Issuing Bank shall furnish copies of any Letters of
Credit and LC Documents in its possession at such time.
(c)The obligation of each U.S. Lender to make payments to Agent for the account of U.S.
Issuing Bank in connection with U.S. Issuing Bank’s payment under a U.S. Letter of Credit shall be
absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or
exception whatsoever, and shall be made in accordance with this Agreement under all circumstances,
irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or
other document presented under a U.S. Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
or the existence of any setoff or defense that any Loan Party may have with respect to any Obligations.
U.S. Issuing Bank does not assume any responsibility for any failure or delay in performance or any
breach by the U.S. Borrower or any other Person of any obligations under any LC Documents. U.S.
Issuing Bank does not make to U.S. Lenders any express or implied warranty, representation or
guarantee with respect to the U.S. Facility Collateral, LC Documents or any U.S. Facility Loan Party.
U.S. Issuing Bank shall not be responsible to any U.S. Lender for any recitals, statements, information,
representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or
enforceability of any LC Documents; the validity, genuineness, enforceability, collectability, value or
sufficiency of any U.S. Facility Collateral or the perfection of any Lien therein; or the assets, liabilities,
financial condition, results of operations, business, creditworthiness or legal status of any U.S. Facility
Loan Party.
(d)No Issuing Bank Indemnitee shall be liable to any Loan Party or other Person for any
action taken or omitted to be taken in connection with any U.S. Letter of Credit or LC Document except
as a result of U.S. Issuing Bank’s gross negligence or willful misconduct, as determined by a final, non-
appealable judgment of a court of competent jurisdiction. U.S. Issuing Bank may refrain from taking
any action with respect to a U.S. Letter of Credit until it receives written instructions from Required
Facility Lenders of the U.S. Borrower.
2.2.3Cash Collateral. If any U.S. LC Obligations, whether or not then due or payable,
shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that a U.S.
Overadvance exists, (c) after the U.S. Revolver Commitment Termination Date, or (d) within twenty (20)
Business Days prior to the Facility Termination Date, then the U.S. Borrower shall, at U.S. Issuing
Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding Letters of Credit
issued for the account of the U.S. Borrower, and pay to U.S. Issuing Bank the amount of all other U.S.
LC Obligations. The U.S. Borrower shall, on demand by U.S. Issuing Bank or Agent from time to time,
Cash Collateralize the Fronting Exposure of any Defaulting Lender that is a U.S. Lender. If the U.S.
Borrower fails to provide any Cash Collateral as required hereunder, U.S. Lenders may (and shall upon
direction of Agent) advance, as U.S. Revolver Loans, the amount of the Cash Collateral required
(whether or not the U.S. Revolver Commitments have terminated, any U.S. Overadvance exists or is
created thereby or the conditions in Section 6 are satisfied).
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2.2.4Resignation of U.S. Issuing Bank. U.S. Issuing Bank may resign at any time upon
notice to Agent and Loan Party Agent. On and after the effective date of such resignation, U.S. Issuing
Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any U.S. Letter of
Credit, but shall continue to have all rights and other obligations of an U.S. Issuing Bank hereunder
relating to any U.S. Letter of Credit issued by it prior to such date. Agent shall promptly appoint a
replacement U.S. Issuing Bank, which, as long as no Default or Event of Default exists, shall be
reasonably acceptable to Loan Party Agent.
2.3Canadian Letter of Credit Facility.
2.3.1Issuance of Letters of Credit. Canadian Issuing Bank agrees to issue Letters of
Credit for the account of the Canadian Borrower (“Canadian Letters of Credit”) from time to time until
fifteen (15) days prior to the Facility Termination Date (or until the Canadian Revolver Commitment
Termination Date, if earlier), on the terms set forth herein, including the following:
(a)The Canadian Borrower acknowledges that Canadian Issuing Bank’s willingness to issue
any Canadian Letter of Credit is conditioned upon Canadian Issuing Bank’s receipt of an LC
Application with respect to the requested Canadian Letter of Credit, as well as such other instruments
and agreements as Canadian Issuing Bank may customarily require for issuance of a letter of credit of
similar type and amount. Canadian Issuing Bank shall have no obligation to issue any Canadian Letter
of Credit unless (i) Canadian Issuing Bank receives an LC Request and LC Application at least three (3)
Business Days prior to the requested date of issuance; (ii) each LC Condition is satisfied; and (iii) if a
Defaulting Lender that is a Canadian Lender exists, such Defaulting Lender or the Canadian Borrower
have entered into arrangements satisfactory to Agent and Canadian Issuing Bank to eliminate any
Fronting Exposure associated with such Lender (it being understood that Cash Collateralization of a
Defaulting Lender’s Pro Rata share of the requested Canadian Letter of Credit is satisfactory to Agent
and Canadian Issuing Bank). If, in sufficient time to act, Canadian Issuing Bank receives written notice
from Required Facility Lenders that a LC Condition has not been satisfied, Canadian Issuing Bank shall
not issue the requested Canadian Letter of Credit. Prior to receipt of any such notice, Canadian Issuing
Bank shall not be deemed to have knowledge of any failure of LC Conditions.
(b)Letters of Credit may be requested by Loan Party Agent for the account of Canadian
Borrower to support obligations incurred in the ordinary course of business, or as otherwise approved by
Agent. The renewal or extension of any Canadian Letter of Credit shall be treated as the issuance of a
new Canadian Letter of Credit, except that delivery of a new LC Application may be required at the
discretion of Canadian Issuing Bank.
(c)The Canadian Borrower assumes all risks of the acts, omissions or misuses by the
beneficiary of any Canadian Letter of Credit. In connection with issuance of any Canadian Letter of
Credit, none of Agent, Canadian Issuing Bank or any Canadian Lender shall be responsible for the
existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be
represented by any Documents; any differences or variation in the character, quality, quantity, condition,
packing, value or delivery of any goods from that expressed in any Documents; the form, validity,
sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the
time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or
failure to ship, any goods referred to in a Canadian Letter of Credit or Documents; any deviation from
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instructions, delay, default or fraud by any shipper or other Person in connection with any goods,
shipment or delivery; any breach of contract between a shipper or vendor and the Canadian Borrower;
errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the
misapplication by a beneficiary of any Canadian Letter of Credit or the proceeds thereof; or any
consequences arising from causes beyond the control of Canadian Issuing Bank, Agent or any Canadian
Lender, including any act or omission of a Governmental Authority. The rights and remedies of
Canadian Issuing Bank under the Loan Documents shall be cumulative. Canadian Issuing Bank shall be
fully subrogated to the rights and remedies of each beneficiary whose claims against the Canadian
Borrower are discharged with proceeds of any Canadian Letter of Credit issued for the account of the
Canadian Borrower.
(d)In connection with its administration of and enforcement of rights or remedies under any
Letters of Credit or LC Documents, Canadian Issuing Bank shall be entitled to act, and shall be fully
protected in acting, upon any certification, documentation or communication in whatever form believed
by Canadian Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or
made by a proper Person. Canadian Issuing Bank may consult with and employ legal counsel,
accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be
entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any
advice given by such experts. Canadian Issuing Bank may employ agents and attorneys-in-fact in
connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the
negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(e)If the Canadian Borrower so requests in any applicable Letter of Credit application,
Canadian Issuing Bank may, in its discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, a “Canadian Auto-Extension Letter of Credit”); provided that any such
Canadian Auto-Extension Letter of Credit must permit Canadian Issuing Bank to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Canadian
Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by Canadian Issuing Bank, the Canadian Borrower
shall not be required to make a specific request to the Issuing Bank for any such extension. Once a
Canadian Auto-Extension Letter of Credit has been issued, the Canadian Lenders shall be deemed to
have authorized (but may not require) Canadian Issuing Bank to permit the extension of such Letter of
Credit at any time to an expiry date at least 15 Business Days prior to the Facility Termination Date;
provided, however, that Canadian Issuing Bank shall not permit any such extension if (A) Canadian
Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to
issue such Letter of Credit in its revised form (as extended) under the terms hereof, or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is seven Business Days before
the Canadian Non-Extension Notice Date (1) from Agent that the Required Lenders have elected not to
permit such extension or (2) from Agent, any Lender or the Canadian Borrower that one or more of the
applicable conditions specified in Section 6.2 is not then satisfied, and in each such case directing
Canadian Issuing Bank not to permit such extension.
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2.3.2Canadian Letters of Credit: Reimbursement and Participations.
(a)If Canadian Issuing Bank honors any request for payment under a Canadian Letter of
Credit, the Canadian Borrower shall pay to Canadian Issuing Bank, on the same day (“Canadian
Reimbursement Date”), the amount paid by Canadian Issuing Bank under such Canadian Letter of
Credit, together with interest at the interest rate for Canadian Base Rate Loans from the Canadian
Reimbursement Date until payment by the Canadian Borrower. The obligation of the Canadian
Borrower to reimburse Canadian Issuing Bank for any payment made under a Canadian Letter of Credit
shall be absolute, unconditional and irrevocable, and shall be paid without regard to any lack of validity
or enforceability of any Canadian Letter of Credit or the existence of any claim, setoff, defense or other
right that the Canadian Borrower or the Canadian Domiciled Loan Parties may have at any time against
the beneficiary. Whether or not Loan Party Agent submits a Notice of Borrowing, the Canadian
Borrower shall be deemed to have requested a Borrowing of Canadian Base Rate Loans in an amount
necessary to pay all amounts due Canadian Issuing Bank on any Canadian Reimbursement Date and
each Canadian Lender agrees to fund its Pro Rata share of such Borrowing whether or not the Canadian
Revolver Commitments have terminated, any Canadian Overadvance exists or is created thereby, or the
conditions in Section 6 are satisfied.
(b)Upon issuance of a Canadian Letter of Credit, each Canadian Lender shall be deemed to
have irrevocably and unconditionally purchased from Canadian Issuing Bank, without recourse or
warranty, an undivided Pro Rata interest and participation in all Canadian LC Obligations (excluding
amounts specified in clause (c) of such definition) relating to such Canadian Letter of Credit. If
Canadian Issuing Bank makes any payment under a Canadian Letter of Credit for the account of the
Canadian Borrower and the Canadian Borrower does not reimburse such payment on the Canadian
Reimbursement Date, Agent shall promptly notify Canadian Lenders and each Canadian Lender shall
promptly (within one (1) Business Day) and unconditionally pay to Agent, for the benefit of Canadian
Issuing Bank, such Canadian Lender’s Pro Rata share of such payment. Upon request by a Canadian
Lender, Canadian Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its
possession at such time.
(c)The obligation of each Canadian Lender to make payments to Agent for the account of
Canadian Issuing Bank in connection with Canadian Issuing Bank’s payment under a Canadian Letter of
Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff,
qualification or exception whatsoever, and shall be made in accordance with this Agreement under all
circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any
draft, certificate or other document presented under a Canadian Letter of Credit having been determined
to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or the existence of any setoff or defense that any Loan Party may have with
respect to any Obligations. Canadian Issuing Bank does not assume any responsibility for any failure or
delay in performance or any breach by the Canadian Borrower or any other Person of any obligations
under any LC Documents. Canadian Issuing Bank does not make to Canadian Lenders any express or
implied warranty, representation or guarantee with respect to the Canadian Facility Collateral, LC
Documents or any Canadian Facility Loan Party. Canadian Issuing Bank shall not be responsible to any
Canadian Lender for any recitals, statements, information, representations or warranties contained in, or
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for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the
validity, genuineness, enforceability, collectability, value or sufficiency of any Canadian Facility
Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Canadian Facility Loan Party.
(d)No Issuing Bank Indemnitee shall be liable to any Loan Party or other Person for any
action taken or omitted to be taken in connection with any Canadian Letter of Credit or LC Documents
except as a result of Canadian Issuing Bank’s gross negligence or willful misconduct, as determined by a
final, non-appealable judgment of a court of competent jurisdiction. Canadian Issuing Bank may refrain
from taking any action with respect to a Canadian Letter of Credit until it receives written instructions
from Required Facility Lenders of the Canadian Borrower.
2.3.3Cash Collateral. If any Canadian LC Obligations, whether or not then due or
payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that a
Canadian Overadvance exists, (c) after the Canadian Revolver Commitment Termination Date, or (d)
within 20 Business Days prior to the Facility Termination Date, then the Canadian Borrower shall, at
Canadian Issuing Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding
Letters of Credit issued for the account of Canadian Borrower and pay to Canadian Issuing Bank the
amount of all other Canadian LC Obligations. The Canadian Borrower shall, on demand by Canadian
Issuing Bank or Agent from time to time, Cash Collateralize the Fronting Exposure of any Defaulting
Lender that is a Canadian Lender. If the Canadian Borrower fails to provide any Cash Collateral as
required hereunder, Canadian Lenders may (and shall upon direction of Agent) advance, as Canadian
Revolver Loans, the amount of the Cash Collateral required (whether or not the Canadian Revolver
Commitments have terminated, any Canadian Overadvance exists or is created thereby or the conditions
in Section 6 are satisfied).
2.3.4Resignation of Canadian Issuing Bank. Canadian Issuing Bank may resign at any
time upon notice to Agent and Loan Party Agent. On and after the effective date of such resignation,
Canadian Issuing Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any
Canadian Letter of Credit, but shall continue to have all rights and other obligations of a Canadian
Issuing Bank hereunder relating to any Canadian Letter of Credit issued by it prior to such date. Agent
shall promptly appoint a replacement Canadian Issuing Bank, which, as long as no Default or Event of
Default exists, shall be reasonably acceptable to Loan Party Agent.
2.4FILO Credit Facility
(a)Notwithstanding anything to the contrary contained in this Agreement, so long as no
Default or Event of Default exists or would immediately result therefrom, at any time after the Third
Restatement Date, the Loan Party Agent may request a separate “first-in, last out” credit facility
provided by one or more Lenders or other Eligible Assignees as agree to hold “first-in, last out”
commitments (the “FILO Lenders”) that are subject to a separate “first-in, last out” incremental
borrowing base (collectively, the “FILO Credit Facility” and any loans made pursuant to such FILO
Credit Facility, the “FILO Credit Facility Loans”), which FILO Credit Facility, subject to Section 5.5
(as amended in accordance with Section 2.4(b)(i)), shall constitute U.S. Facility Obligations (and
Obligations) for all purposes under the Loan Documents (including for the purposes of being secured
by the applicable Collateral and being guaranteed by the U.S. Facility Loan Parties). The Agent shall
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promptly notify the Lenders of each such request and the Lenders shall respond thereto in the same
manner specified for any Commitment increase requests in Section 2.1.4. The Agent shall notify
Lenders and Loan Party Agent of the responses to such request and any actions to arrange for other
Eligible Assignees to serve as FILO Lenders in the same manner specified for commitment increases
in Section 2.1.4. Any FILO Lender participating in the FILO Credit Facility which is not then a
Lender (or an Affiliate of such Lender engaged in the ordinary course of its business in extending
commercial loans) shall be subject to the prior approval of the Agent and the Loan Party Agent (such
consent not to be unreasonably withheld or delayed).
(b)Notwithstanding anything herein to the contrary, the FILO Credit Facility shall be
established in accordance with the following terms and conditions:
(i)the establishment thereof shall result in an amendment of the payment waterfall
in Section 5.5.1(a) (without the requirement of the consent of the Lenders under Section 14.1.1)
to include payment of accrued and unpaid interest of U.S. Facility Obligations under the FILO
Credit Facility as a new clause “seventh” and unpaid payment of principal of U.S. Facility
Obligations under the FILO Credit Facility as a new clause “eighth”, and renumbering the
existing clauses “seventh”, “eighth”, “ninth”, “tenth” and “eleventh” as clauses “ninth”, “tenth”,
“eleventh”, “twelfth” and “thirteenth”, respectively;
(ii)subject to other express limitations set forth in this Section 2.4 the
establishment of the FILO Credit Facility shall be subject to the Agent’s prior written consent in
its sole discretion, and shall otherwise be on terms and conditions as determined by the Loan
Party Agent, the Agent and the FILO Lenders, it being understood and agreed that such terms
and conditions may include, without limitation, FILO Credit Facility-specific borrowing base,
advance rate (including seasonal or fluctuating advance rates), eligibility criteria, availability
reserves (including reserves implemented against the Borrowing Base with respect to
obligations owing to the FILO Lenders), representations, warranties, covenants and Events of
Default, interest rates, fees, final maturity date, amortization, mandatory and voluntary
prepayment and commitment termination provision as to the FILO Credit Facility and Section
8.2 or any other provision of the Loan Documents related to cash dominion, and amendment
and waiver provisions (including modifications to Section 14.1.1 to provide for customary or
market provisions in favor of the FILO Lenders, which may include voting rights in favor of the
FILO Lenders relating to modifications of the Borrowing Base that would affect the FILO
Credit Facility or the FILO Lenders) in respect of or relating to the FILO Credit Facility and
other customary or market terms and conditions for asset-based “first in, last out” credit facilities
of this nature. Further, if the Loan Party Agent requests that some or all of the FILO Credit
Facility constitute Canadian Facility Obligations supported by Canadian Borrowing Base assets,
the Agent agrees to consult with the Loan Party Agent as to whether such structure could be
documented and arranged without unreasonable cost or delay, and in such case, the parties agree
that the Agent, Loan Party Agent and Canadian Borrower may agree to any necessary
implementing amendment or other modification to the applicable Loan Documents as may be
necessary for such structure including without limitation, amendments to the payment waterfall
set forth in Section 5.5.1(b) consistent with those contemplated by clause (i) above;
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(iii)the advance rates in respect of the incremental borrowing base under the
FILO Credit Facility shall not exceed (a) five percent (5.0%) on Eligible Accounts; (b) ten
percent (10%) on Eligible Inventory; and (c) zero percent (0%) on Eligible Tooling Accounts;
(iv)the arrangement of the FILO Credit Facility, and any upfront, underwriting,
arrangement or similar fees in respect of the FILO Credit Facility, shall be agreed to by Loan
Party Agent, Agent, and the FILO Lenders;
(v)the FILO Credit Facility shall be subject to terms and closing conditions as may
be determined by the Agent and the Collateral Agent, the FILO Lenders and the Loan Party
Agent, which in any event shall include a post-closing covenant requiring delivery of an
Inventory appraisal within twelve (12) months of the closing date of the FILO Credit Facility to
the extent that Eligible Inventory is to be included in the borrowing base under such FILO Credit
Facility;
(vi)the FILO Credit Facility shall be subject to the condition precedent that (i) no
Event of Default shall have occurred and be continuing immediately before or after giving effect
thereto and (ii) the FILO Lenders not party to the Reallocation Agreement as of the Third
Restatement Date shall have executed a joinder to the Reallocation Agreement in form and
substance acceptable to Agent;
(vii)the aggregate amount of the FILO Credit Facility commitments under the FILO
Credit Facility (x) shall not exceed $20,000,000 and (y) (i) the aggregate amount of the FILO
Credit Facility commitments under the FILO Credit Facility, plus (ii) the aggregate amount of
increased commitments provided from time to time in accordance with Section 2.1.4, shall not
exceed, at any time outstanding, $100,000,000;
(viii)all documentation in respect of the FILO Credit Facility shall be consistent with
the foregoing and in form and substance reasonably satisfactory to the Agent and the FILO
Credit Facility Lenders, and the FILO Credit Facility Amendment shall have been approved by
the Agent; and
(ix)Borrowers shall not be required to offer any Lender an opportunity to join the
FILO Credit Facility as a FILO Lender.
(c)Notwithstanding anything in Section 14.1.1 or any other provision of the Loan
Documents to the contrary, the Lenders hereby irrevocably authorize the Agent and Collateral Agent to
enter into amendments, restatements or other supplements or modifications to this Agreement and the
other Loan Documents with the U.S. Facility Loan Parties and the FILO Lenders as may be necessary
or desirable in order to establish the FILO Credit Facility, in each case on terms consistent with this
Section 2.4 (“FILO Credit Facility Amendment”) without the consent or approval of any Lenders
(other than the Lenders participating in the FILO Credit Facility). The Lenders hereby consent to
the FILO Credit Facility and other transactions contemplated by this Section 2.4 (including, for the
avoidance of doubt, the terms and condition illustrated in clause (b) above) and hereby waive the
requirements of any provision of this Agreement (including, without limitation, any pro rata
payment section or amendment or waiver section) or any other Loan Document that may otherwise
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prohibit or restrict the FILO Credit Facility, the FILO Credit Facility Amendment or any other
transaction contemplated by this Section 2.4. Each of the Agent and the Collateral Agent shall have the
right (but not the obligation) to consult with the Required Lenders with respect to the FILO Credit
Facility and any matter contemplated by this Section 2.4; provided, however, that whether or not there
has been any consultation with the Required Lenders by the Agent or the Collateral Agent with respect
to a FILO Credit Facility, any such FILO Credit Facility Amendment entered into by the Agent and/or
the Collateral Agent pursuant to this Section 2.4 shall be binding and conclusive on the Lenders in all
respects.
SECTION 3. INTEREST, FEES AND CHARGES
3.1Interest.
3.1.1Rates and Payment of Interest.
(a)The Obligations (excluding Obligations of the type specified in clause (g) of such
definition) shall bear interest (i) if a U.S. Base Rate Loan, at the U.S. Base Rate in effect from time to
time, plus the Applicable Margin; (ii) if a Term SOFR Loan, at Term SOFR for the applicable Interest
Period, plus the Applicable Margin; (iii) if a Canadian Prime Rate Loan, at the Canadian Prime Rate in
effect from time to time, plus the Applicable Margin, (iv) if a Canadian Base Rate Loan, at the Canadian
Base Rate in effect from time to time, plus the Applicable Margin, (v) if a Term CORRA Rate Loan, at
Term CORRA for the applicable Interest Period, plus the Applicable Margin, (vi) if any other U.S.
Facility Obligation that is then due and payable (including, to the extent permitted by law, interest not
paid when due), at the U.S. Base Rate in effect from time to time, plus the Applicable Margin for U.S.
Base Rate Loans; and (vii) if any other Canadian Facility Obligation that is then due and payable
(including, to the extent permitted by law, interest not paid when due), at the Canadian Prime Rate in
effect from time to time, plus the Applicable Margin for Canadian Prime Rate Loans. Interest shall
accrue from the date the Loan is advanced or the Obligation is incurred or payable, until paid by the
applicable Borrower. If a Loan is repaid on the same day made, one (1) day’s interest shall accrue.
(b)Interest on the Revolver Loans shall be payable in the currency (i.e., Dollars or Canadian
Dollars, as the case may be) of the underlying Revolver Loan.
(c)Overdue principal, interest and other amounts not paid when due shall bear interest at the
Default Rate; provided, however, that during the continuation of any Event of Default, if Required
Lenders in their discretion so elect, all Obligations shall bear interest at the Default Rate (whether before
or after any judgment); provided further, however, that upon the occurrence and during the continuance
of an Event of Default under Section 11.1(a) or 11.1(i), the Default Rate shall become immediately
applicable to all Obligations without any election of the Required Lenders. Each Loan Party
acknowledges that the cost and expense to Agent and Lenders due to an Event of Default are difficult to
ascertain and that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders
therefor.
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(d)Interest accrued on the Loans shall be due and payable in arrears, (i) for any U.S. Base
Rate Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan, on the first (1st) day of each month;
(ii) for any Term SOFR Loan or Term CORRA Rate Loan, on the last day of its Interest Period and
(iii) on any date of prepayment, with respect to the principal amount of Loans being prepaid. In
addition, interest accrued on the Canadian Revolver Loans shall be due and payable in arrears on the
Canadian Revolver Commitment Termination Date and interest accrued on the U.S. Revolver Loans
shall be due and payable in arrears on the U.S. Revolver Commitment Termination Date. Interest
accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no
payment date is specified, shall be due and payable on demand. Notwithstanding the foregoing, interest
accrued at the Default Rate shall be due and payable on demand.
3.1.2Application of Term SOFR to Outstanding Loans.
(a)Each Borrower may on any Business Day, subject to delivery of a Notice of Conversion/
Continuation and the other terms hereof, elect to convert any portion of the U.S. Base Rate Loans or the
Canadian Base Rate Loans, as applicable to, or to continue any Term SOFR Loan at the end of its
Interest Period as, a Term SOFR Loan. During the continuance of any Event of Default, Agent may
(and shall at the direction of Required Facility Lenders of the applicable Borrower) declare that no Loan
may be made, converted or continued as a Term SOFR Loan.
(b)Whenever a Borrower shall desire to convert or continue Loans as Term SOFR Loans,
Loan Party Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least
three (3) Business Days prior to the requested conversion or continuation date. Promptly after receiving
any such notice, Agent shall notify each Applicable Lender thereof. Each Notice of Conversion/
Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued,
the conversion or continuation date (which shall be a Business Day), and the duration of the Interest
Period (which shall be deemed to be one (1) month if not specified). If, upon the expiration of any
Interest Period in respect of any Term SOFR Loans, Loan Party Agent shall have failed to deliver a
Notice of Conversion/Continuation with respect thereto as required above, the applicable Borrower shall
be deemed to have elected to convert such Loans into U.S. Base Rate Loans (if owing by the U.S.
Borrower) or Canadian Base Rate Loans (if owing by the Canadian Borrower).
3.1.3Application of Term CORRA to Outstanding Loans.
(a)The Canadian Borrower may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation and the other terms hereof, elect to convert any portion of the Canadian Prime
Rate Loans, or to continue any Term CORRA Rate Loan at the end of its Interest Period as a Term
CORRA Rate Loan; provided, however that such Term CORRA Rate Loans may only be so converted
at the end of the Interest Period applicable thereto. During the continuance of any Default or Event of
Default, Agent may (and shall at the direction of Required Facility Lenders of the Canadian Borrower)
declare that no Loan may be made, converted or continued as a Term CORRA Rate Loan.
(b)Whenever the Canadian Borrower desires to convert or continue Loans as Term CORRA
Rate Loans, Loan Party Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00
a.m. at least three (3) Business Days prior to the requested conversion or continuation date. Promptly
after receiving any such notice, Agent shall notify each Canadian Lender thereof. Each Notice of
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Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or
continued, the conversion or continuation date (which shall be a Business Day), and the duration of the
Interest Period (which shall be deemed to be one (1) month if not specified). If, upon the expiration of
any Interest Period in respect of any Term CORRA Rate Loans, Loan Party Agent shall have failed to
deliver a Notice of Conversion/Continuation with respect thereto as required above, the Canadian
Borrower shall be deemed to have elected to convert such Loans into Canadian Prime Rate Loans.
3.1.4Interest Periods. In connection with the making, conversion or continuation of any
Term SOFR Loans or Term CORRA Rate Loans, Loan Party Agent, on behalf of the applicable
Borrower, shall select an interest period to apply (the “Interest Period”), which interest period shall be
one or three months; provided, however, that:
(a)the Interest Period shall commence on the date the Loan is made or continued as, or
converted into, a Term SOFR Loan or Term CORRA Rate Loan, and shall expire one or three months
thereafter, as applicable;
(b)if any Interest Period commences on a day for which there is no corresponding day in the
calendar month at its end or if such corresponding day falls after the last Business Day of such month,
then the Interest Period shall expire on the last Business Day of such month;
(c)if any Interest Period would expire on a day that is not a Business Day, the period shall
expire on the next Business Day; and
(d)no Interest Period shall extend beyond the Facility Termination Date (or, in the case of
any Loan owing by the Canadian Borrower, the Canadian Revolver Commitment Termination Date, if
earlier).
3.1.5Interest Rate Not Ascertainable. If Agent shall determine that on any date for
determining Term SOFR or Term CORRA, due to any circumstance affecting any applicable interbank
market, adequate and fair means do not exist for ascertaining such rate on the basis provided herein, then
Agent shall immediately notify Borrower of such determination. Until Agent notifies Borrower that such
circumstance no longer exists, the obligation of Lenders to make Term SOFR Loans or Term CORRA
Rate Loans shall be suspended, and no further Loans may be converted into or continued as Term SOFR
Loans or Term CORRA Rate Loans.
3.2Fees.
3.2.1Unused Line Fee.
(a)The Canadian Borrower shall pay to Agent, for the Pro Rata benefit of Canadian Lenders,
a fee equal to the Canadian Unused Line Fee Rate times the average daily amount by which the
Canadian Revolver Commitments exceed the Canadian Revolver Exposure during any month. Such fee
shall be payable in arrears, on the first (1st) day of each month and on the Canadian Revolver
Commitment Termination Date.
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(b)The U.S. Borrower shall pay to Agent, for the Pro Rata benefit of U.S. Lenders, an
aggregate fee equal to the U.S. Unused Line Fee Rate times the average daily amount by which the U.S.
Revolver Commitments exceed the U.S. Revolver Exposure during any month. Such fee shall be
payable in arrears, on the first (1st) day of each month and on the U.S. Revolver Commitment
Termination Date.
3.2.2U.S. LC Facility Fees. The U.S. Borrower shall pay (a) to Agent, for the Pro Rata
benefit of U.S. Lenders, a fee equal to the per annum rate of the Applicable Margin in effect for Term
SOFR Loans times the average daily outstanding amount of U.S. Letters of Credit, which fee shall be
payable monthly in arrears, on the first (1st) day of each month; (b) to the applicable U.S. Issuing Bank,
for its own account, a fronting fee equal to .125% per annum on the outstanding amount of each U.S.
Letter of Credit issued by such U.S. Issuing Bank, which fee shall be payable monthly in arrears, on the
first (1st) day of each month; and (c) to the applicable U.S. Issuing Bank, for its own account, all
customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and
administration of U.S. Letters of Credit, which charges shall be paid as and when incurred; provided that,
for the avoidance of doubt, all amounts payable pursuant to this clause (c) with respect to the Existing
Letters of Credit shall be determined in accordance with the applicable documentation thereto. During an
Event of Default, if the Required Lenders so elect (pursuant to Section 3.1.1(c)) the fee payable under
clause (a) shall be increased by 2% per annum.
3.2.3[Reserved].
3.2.4Canadian LC Facility Fees. The Canadian Borrower shall pay (a) to Agent, for the
Pro Rata benefit of Canadian Lenders, a fee equal to the per annum rate of the Applicable Margin in
effect for Term SOFR Loans times the average daily outstanding amount of Canadian Letters of Credit,
which fee shall be payable monthly in arrears, on the first (1st) day of each month; (b) to the applicable
Canadian Issuing Bank, for its own account, a fronting fee equal to 0.125% per annum on the outstanding
amount of each Canadian Letter of Credit issued by such Canadian Issuing Bank, which fee shall be
payable monthly in arrears, on the first (1st) day of each month; and (c) to the applicable Canadian
Issuing Bank, for its own account, all customary charges associated with the issuance, amending,
negotiating, payment, processing, transfer and administration of Canadian Letters of Credit, which
charges shall be paid as and when incurred. During an Event of Default if the Required Lenders so elect
(pursuant to Section 3.1.1(c)), the fee payable under clause (a) shall be increased by 2% per annum.
3.2.5Other Fees. The Borrowers shall pay such other fees as described in the Agent Fee
Letter.
3.3Computation of Interest, Fees, Yield Protection. All interest, as well as fees and other
charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year
of three hundred sixty (360) days, other than (i) interest based on Term CORRA which shall be based on
a three hundred sixty-five (365) day year, and (ii) interest based on the Canadian Prime Rate and
Canadian Base Rate which shall be based on a three hundred sixty-five (365) or three hundred and sixty-
six (366) day year, as applicable. Each determination by Agent of any interest, fees or interest rate
hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be
fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under
Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any
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other charge for the use, forbearance or detention of money. A certificate setting forth in reasonable
detail amounts payable by any Borrower under Section 3.4, 3.7, 3.9, 5.8.2, 5.8.3 or 10.1.9(b), submitted
to Loan Party Agent by Agent or the affected Lender or affected Issuing Bank, as applicable, shall be
final, conclusive and binding for all purposes, absent manifest error, and the applicable Borrower shall
pay such amounts to the appropriate party within ten (10) days following receipt of the certificate. For
the purposes of the Interest Act (Canada), the yearly rate of interest to which any rate calculated on the
basis of a period of time different from the actual number of days in the year (three hundred sixty (360)
days, for example) is equivalent is the stated rate multiplied by the actual number of days in the year
(three hundred sixty five (365) or three hundred sixty six (366), as applicable) and divided by the
number of days in the shorter period (three hundred sixty (360) days, in the example), and the parties
hereto acknowledge that there is a material distinction between the nominal and effective rates of
interest and that they are capable of making the calculations necessary to compare such rates and that the
calculations herein are to be made using the nominal rate method and not on any basis that gives effect
to the principle of deemed reinvestment of interest.
3.4Reimbursement Obligations. Each Borrower shall reimburse Agent for all
Extraordinary Expenses incurred by Agent in reference to such Borrower or its related Loan Party Group
Obligations or Collateral of its related Loan Party Group. In addition to such Extraordinary Expenses,
each Borrower shall also reimburse Agent for all invoiced out-of-pocket legal, accounting, appraisal,
consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation and
preparation of any Loan Documents, including any amendment or other modification thereof;
(b) administration of and actions relating to any Collateral for its Obligations, Loan Documents and
transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s
Liens on any such Collateral, to maintain any insurance required hereunder or to verify such Collateral;
and (c) each inspection, audit or appraisal with respect to any Loan Party within such Borrower’s related
Loan Party Group or Collateral securing such Loan Party Group’s Obligations, whether prepared by
Agent’s personnel or a third party (subject to Section 10.1.9(b)). If, for any reason (including inaccurate
reporting on financial statements, a Borrowing Base Certificate or a Compliance Certificate), it is
determined that a higher Applicable Margin should have applied to a period than was actually applied,
then the proper margin shall be applied retroactively and the Borrowers shall pay to Agent, for the Pro
Rata benefit of Lenders, an amount equal to the difference between the amount of interest and fees that
would have accrued using the proper margin and the amount actually paid. All amounts payable by the
Borrowers under this Section 3.4 shall be due and payable promptly upon demand, or to the extent
applicable to interest and fees, in accordance with Section 3.3.
3.5Illegality. If any Lender determines that any applicable Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Interest Period Loans, or to determine or charge interest rates
based upon Term SOFR or Term CORRA, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the
applicable interbank market, or Canadian Dollars through bankers’ acceptances then, on notice thereof
by such Lender to Agent, any obligation of such Lender to make or continue Interest Period Loans or to
convert Floating Rate Loans to Interest Period Loans shall be suspended until such Lender notifies
Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such
notice, the affected Borrower shall prepay or, if applicable, convert all Interest Period Loans of such
Lender to Floating Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
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lawfully continue to maintain such Interest Period Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Interest Period Loans. Upon any such prepayment or
conversion, the affected Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.6Inability to Determine Rates. If Required Lenders notify Agent for any reason in
connection with a request for a Borrowing of, or conversion to or continuation of, an Interest Period
Loan that (a) Dollar deposits or bankers’ acceptances are not being offered to, as regards Term SOFR,
banks in the applicable interbank market or, as regards Term CORRA, Persons in Canada, for the
applicable amount and Interest Period of such Loan, (b) adequate and reasonable means do not exist for
determining Term SOFR or Term CORRA for the requested Interest Period, or (c) Term SOFR or Term
CORRA for the requested Interest Period does not adequately and fairly reflect the cost to such Lenders
of funding such Loan, then Agent will promptly so notify Loan Party Agent and each Applicable
Lender. Thereafter, the obligation of the Applicable Lenders to make or maintain affected Interest
Period Loans, shall be suspended until Agent (upon instruction by Required Lenders) revokes such
notice. Upon receipt of such notice, Loan Party Agent may revoke any pending request for a Borrowing
of, conversion to or continuation of an Interest Period Loan or, failing that, will be deemed to have
submitted a request for a Floating Rate Loan.
3.7Increased Costs; Capital Adequacy.
3.7.1Change in Law. If any Change in Law shall:
(a)impose modify or deem applicable any reserve, liquidity, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or
credit extended or participated in by, any Lender (except any reserve requirement reflected in Term
SOFR or Term CORRA) or any Issuing Bank;
(b)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in the definition of Excluded Taxes and (C) Connection Income Taxes) with respect to or on
its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto; or
(c)impose on any Lender, any Issuing Bank or interbank market any other condition, cost or
expense affecting any Loan, Loan Document, Letter of Credit, participation in LC Obligations, or
Commitment;
and the result thereof shall be to increase the cost to such Lender of making or maintaining any Loan or
Commitment, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or
maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or such Issuing Bank, the Borrower to which such Lenders or such Issuing Bank
has a Commitment shall pay to such Lender or such Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or such Issuing Bank, as applicable, for such additional
costs incurred or reduction suffered, in each case, in accordance with Section 3.3.
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3.7.2Capital Adequacy. If any Lender or any Issuing Bank determines that any Change
in Law affecting such Lender or such Issuing Bank or any Lending Office of such Lender or such
Lender’s or such Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has
or would have the effect of reducing the rate of return on such Lender’s, such Issuing Bank’s or holding
company’s capital as a consequence of this Agreement, or such Lender’s or such Issuing Bank’s
Commitments, Loans, Letters of Credit or participations in LC Obligations, to a level below that which
such Lender, such Issuing Bank or holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s, such Issuing Bank’s and holding company’s policies with
respect to capital adequacy or liquidity), then from time to time the Borrower to which such Lenders or
such Issuing Bank has a Commitment will pay to such Lender or such Issuing Bank, as the case may be,
such additional amount or amounts as will compensate it or its holding company for any such reduction
suffered, in each case, in accordance with Section 3.3.
3.7.3Compensation. Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section 3.7 shall not constitute a waiver of its right to demand
such compensation, but a Borrower shall not be required to compensate a Lender to such Borrower or
Issuing Bank to such Borrower for any increased costs incurred or reductions suffered more than nine (9)
months prior to the date that such Lender or Issuing Bank notifies Loan Party Agent of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s
intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.7.4Term SOFR Loan Reserves. If any Lender is required by rules or regulations from
any applicable Governmental Authority to maintain reserve requirements for Term SOFR liabilities or
deposits, Borrowers shall pay additional interest to such Lender on each Term SOFR Loan equal to the
costs of such reserves allocated to the Loan by the Lender (as determined by it in good faith, which
determination shall be conclusive). At the request of the Borrowers, a certificate of such Lender setting
forth the amount or amounts necessary to compensate such Lender for such reserves shall be delivered to
the Borrower, which certificate shall be conclusive and binding on all parties, absent manifest error. The
additional interest shall be due and payable on each interest payment date for the Loan; provided, that if
the Lender notifies Borrowers (with a copy to Agent) of the additional interest less than 10 days prior to
the interest payment date, then such interest shall be payable 10 days after Borrowers’ receipt of the
notice.
3.8Mitigation. If any Lender gives a notice under Section 3.5 or requests compensation
under Section 3.7, or if a Borrower is required to pay additional amounts or make indemnity payments
with respect to a Lender under Section 5.8, then such Lender shall use reasonable efforts to designate a
different Lending Office or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would
eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as
applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be materially disadvantageous to such Lender or unlawful. The affected Borrower
shall pay all reasonable costs and expenses (including all Indemnified Taxes and Other Taxes) incurred
by any Lender that has issued a Commitment to such Borrower in connection with any such designation
or assignment.
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3.9Funding Losses. If for any reason (other than default by a Lender) (a) any Borrowing of,
or conversion to or continuation of, an Interest Period Loan does not occur on the date specified therefor
in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any
repayment or conversion of an Interest Period Loan occurs on a day other than the end of its Interest
Period, (c) any Borrower fails to repay an Interest Period Loan when required hereunder, or (d) a Lender
(other than a Defaulting Lender) is required to assign an Interest Period Loan prior to the end of its
Interest Period pursuant to Section 13.4, then such Borrower shall pay to Agent its customary
administrative charge and to each Lender all resulting losses and expenses, including loss of anticipated
profits and any loss or expense arising from liquidation or redeployment of funds or from fees payable to
terminate deposits of matching funds. All amounts payable by the Borrowers under this Section 3.9
shall be due and payable in accordance with Section 3.3.
3.10Maximum Interest. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (“maximum rate”). If Agent or any
Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be
applied to the principal of the Obligations of the Borrower to which such excess interest relates or, if it
exceeds such unpaid principal, refunded to such Borrower. In determining whether the interest
contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an
expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof;
and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder. Without limiting the generality of the
foregoing provisions of this Section 3.10, if any provision of any of the Loan Documents would obligate
any Canadian Domiciled Loan Party to make any payment of interest with respect to the Canadian
Facility Obligations in an amount or calculated at a rate which would be prohibited by applicable Law or
would result in the receipt of interest with respect to the Canadian Facility Obligations at a criminal rate
(as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision,
such amount or rates shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a
receipt by the applicable recipient of interest with respect to the Canadian Facility Obligations at a
criminal rate, such adjustment to be effected, to the extent necessary, as follows: (i) first, by reducing
the amount or rates of interest required to be paid by the Canadian Facility Loan Parties to the applicable
recipient under the Loan Documents; and (ii) thereafter, by reducing any fees, commissions, premiums
and other amounts required to be paid by the Canadian Facility Loan Parties to the applicable recipient
which would constitute interest with respect to the Canadian Facility Obligations for purposes of
Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to
all adjustments contemplated thereby, if the applicable recipient shall have received an amount in excess
of the maximum permitted by that section of the Criminal Code (Canada), then Canadian Facility Loan
Parties shall be entitled, by notice in writing to Agent, to obtain reimbursement from the applicable
recipient in an amount equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by the applicable recipient to the applicable Canadian Facility Loan
Party. Any amount or rate of interest with respect to the Canadian Facility Obligations referred to in this
Section 3.10 shall be determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that any Canadian Revolver Loans to the
Canadian Borrower remains outstanding on the assumption that any charges, fees or expenses that fall
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within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a
specific period of time, be pro rated over that period of time and otherwise be pro rated over the period
from the Third Restatement Date to the date of Full Payment of the Canadian Facility Obligations, and,
in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by
Agent shall be conclusive for the purposes of such determination.
SECTION 4. LOAN ADMINISTRATION
4.1Manner of Borrowing and Funding Loans.
4.1.1Notice of Borrowing.
(a)Whenever a Borrower desires funding of a Borrowing of Revolver Loans, Loan Party
Agent shall give Agent a Notice of Borrowing. Such notice must be received by Agent (i) on the
Business Day of the requested funding date, in the case of Floating Rate Loans to the U.S. Borrower, (ii)
at least one (1) Business Day prior to the requested funding date, in the case of Floating Rate Loans to
the Canadian Borrower, (iii) at least three (3) Business Days prior to the requested funding date, in the
case of Term SOFR Loans, and (iv) at least three (3) Business Days prior to the requested funding date,
in the case of Term CORRA Rate Loans. Notices received after 11:00 a.m. shall be deemed received on
the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the
Borrower, and the amount of the Borrowing, (B) the requested funding date (which must be a Business
Day), (C) whether the Borrowing is to be made as (x) a U.S. Base Rate Loan or a Term SOFR Loan, in
the case of the U.S. Borrower and (y) a Canadian Base Rate Loan, Term SOFR Loan, Canadian Prime
Rate Loan, Term CORRA Rate Loan, in the case of the Canadian Borrower, (D) in the case of Interest
Period Loans, the duration of the applicable Interest Period (which shall be deemed to be one month if
not specified), (E) [reserved] and (F) if such Borrowing is requested for the Canadian Borrower, whether
such Loan is to be denominated in Dollars or Canadian Dollars.
(b)Unless payment is otherwise timely made by a Borrower, the becoming due of any
amount required to be paid with respect to any of the Obligations of the Loan Party Group to which such
Borrower belongs (whether principal, interest, fees or other charges, including Extraordinary Expenses,
LC Obligations, Cash Collateral and Secured Bank Product Obligations) shall be deemed to be a request
for Revolver Loans by such Borrower on the due date, in the amount of such Obligations and shall bear
interest at the per annum rate applicable hereunder (i) to U.S. Base Rate Loans, in the case of such
Obligations owing by any U.S. Facility Loan Party or (ii) to Canadian Prime Rate Loans, in the case of
such Obligations owing by a Canadian Domiciled Loan Party. The proceeds of such Revolver Loans
shall be disbursed as direct payment of the relevant Obligation. In addition, Agent may, at its option,
charge such Obligations of a Loan Party Group against any operating, investment or other account of a
Loan Party within such Loan Party Group maintained with Agent or any of its Affiliates.
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(c)If a Borrower establishes a controlled disbursement account with Bank of America or any
branch or Affiliate of Bank of America, then the presentation for payment of any check or other item of
payment drawn on such account at a time when there are insufficient funds to cover it shall be deemed to
be a request for Revolver Loans by such Borrower on the date of such presentation, in the amount of the
check and items presented for payment, and shall bear interest at the per annum rate applicable
hereunder (i) to U.S. Base Rate Loans, in the case of insufficient funds owing by any U.S. Facility Loan
Party or (ii) to Canadian Prime Rate Loans, in the case of insufficient funds owing by a Canadian
Facility Loan Party. The proceeds of such Revolver Loans may be disbursed directly to the controlled
disbursement account or other appropriate account.
4.1.2Fundings by Lenders. Each Applicable Lender shall timely honor its Facility
Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans under such Facility
Commitment that is properly requested hereunder; provided, however that, except as set forth in Section
2.1.5, no Lender shall be required to honor its Facility Commitment by funding its Pro Rata share of any
Borrowing that would cause the U.S. Revolver Exposure to exceed the U.S. Borrowing Base or the
Canadian Revolver Exposure to exceed the Canadian Borrowing Base, as applicable,. Except for
Borrowings to be made as Swingline Loans, Agent shall use its commercially reasonable best efforts to
notify the Applicable Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by
12:00 noon on the proposed funding date for Floating Rate Loans or by 11:00 a.m. at least two (2)
Business Days before any proposed funding of Interest Period Loans. Each Applicable Lender shall fund
to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in
immediately available funds not later than 2:00 p.m. on the requested funding date, unless Agent’s notice
is received after the times provided above, in which event each Applicable Lender shall fund its Pro Rata
share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from the Applicable
Lenders, Agent shall disburse the proceeds of the Revolver Loans as directed by Loan Party Agent.
Unless Agent shall have received (in sufficient time to act) written notice from an Applicable Lender that
it does not intend to fund its Pro Rata share of a Borrowing or of any settlement pursuant to Section
4.1.3(b), Agent may assume that such Applicable Lender has deposited or promptly will deposit its share
with Agent, and Agent may disburse a corresponding amount to such Borrower. If an Applicable
Lender’s share of any Borrowing is not received by Agent, then such Borrower agrees to repay to Agent
on demand the amount of such share, together with interest thereon from the date disbursed until repaid,
at the rate applicable to such Borrowing.
4.1.3Swingline Loans; Settlement; Rescindable Amounts.
(a)Agent may, but shall not be obligated to, advance U.S. Swingline Loans to the U.S.
Borrower up to an aggregate outstanding amount of $21,875,000, unless the funding is specifically
required to be made by all U.S. Lenders hereunder. Each U.S. Swingline Loan shall constitute a U.S.
Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own
account. The obligation of the U.S. Borrower to repay U.S. Swingline Loans shall be evidenced by the
records of Agent and need not be evidenced by any promissory note. All U.S. Swingline Loans shall be
denominated in Dollars and shall be U.S. Base Rate Loans.
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(b)Settlement of U.S. Swingline Loans and other U.S. Revolver Loans among the U.S.
Lenders and Agent shall take place on a date determined from time to time by Agent (but at least
weekly). On each settlement date, settlement shall be made with each U.S. Lender in accordance with
the Settlement Report delivered by Agent to U.S. Lenders. Between settlement dates, Agent may in its
discretion apply payments on U.S. Revolver Loans to U.S. Swingline Loans regardless of any
designation by the U.S. Borrower or any provision herein to the contrary. Each U.S. Lender’s obligation
to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other
defense, and whether or not the U.S. Revolver Commitments have terminated, a U.S. Overadvance
exists or the conditions in Section 6 are satisfied. If, due to an Insolvency Proceeding with respect to the
U.S. Borrower or otherwise, any U.S. Swingline Loan may not be settled among U.S. Lenders
hereunder, then each U.S. Lender shall be deemed to have purchased from Agent a Pro Rata
participation in each unpaid U.S. Swingline Loan and shall transfer the amount of such participation to
Agent, in immediately available funds, within one (1) Business Day after Agent’s request therefor.
(c)Agent may, but shall not be obligated to, request that Bank of America (Canada) advance
Canadian Swingline Loans to the Canadian Borrower, up to an aggregate outstanding amount of the
Dollar Equivalent of $3,125,000, unless the funding is specifically required to be made by all Canadian
Lenders hereunder. Each Canadian Swingline Loan shall constitute a Canadian Revolver Loan for all
purposes, except that payments thereon shall be made to Agent for Bank of America (Canada)’s account.
The obligation of the Canadian Borrower to repay Canadian Swingline Loans shall be evidenced by the
records of Agent and need not be evidenced by any promissory note. All Canadian Swingline Loans
shall be denominated in Canadian Dollars and shall be a Canadian Prime Rate Loan.
(d)Settlement of Canadian Swingline Loans and other Canadian Revolver Loans among the
Canadian Lenders and Agent, on behalf of Bank of America (Canada) shall take place on a date
determined from time to time by Agent (but at least weekly). On each settlement date, settlement shall
be made with each Canadian Lender in accordance with the Settlement Report delivered by Agent to
Canadian Lenders. Between settlement dates, Agent may in its discretion apply payments on Canadian
Revolver Loans to Canadian Swingline Loans, regardless of any designation by the Canadian Borrower
or any provision herein to the contrary. Each Canadian Lender’s obligation to make settlements with
Agent, on behalf of Bank of America (Canada), is absolute and unconditional, without offset,
counterclaim or other defense, and whether or not the Canadian Revolver Commitments have
terminated, a Canadian Overadvance exists or the conditions in Section 6 are satisfied. If, due to an
Insolvency Proceeding with respect to the Canadian Borrower or otherwise, any Canadian Swingline
Loan may not be settled among Canadian Lenders hereunder, then each Canadian Lender shall be
deemed to have purchased from Agent a Pro Rata participation in each unpaid Canadian Swingline Loan
and shall transfer the amount of such participation to Agent, in immediately available funds, within one
(1) Business Day after Agent’s request therefor.
(e)Unless Agent receives notice from Borrowers or Loan Party Agent prior to the date on
which a payment is due to Agent for the account of Lenders or Issuing Bank hereunder that Borrowers
will not make such payment, Agent may assume that Borrowers have made such payment on such date
in accordance herewith and may, in reliance on such assumption, distribute to Lenders or Issuing Bank,
as applicable, the amount due. With respect to any payment that Agent makes for the account of
Lenders or Issuing Bank hereunder as to which Agent determines (which determination shall be
conclusive absent manifest error) that any of the following applies (such payment, a “Rescindable
Amount”): (1) Borrowers have not in fact made such payment, (2) Agent has made a payment in excess
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of the amount so paid by Borrowers (whether or not then owed), or (3) Agent has for any reason
otherwise erroneously made such payment, then each Lender or Issuing Bank, as applicable, severally
agrees to repay to Agent forthwith on demand the Rescindable Amount so distributed to or otherwise
made for the account of such Lender or Issuing Bank, in immediately available funds with interest
thereon for each day from and including the date such amount is distributed to it to but excluding the
date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in
accordance with banking industry rules on interbank compensation. A notice by Agent to Issuing Bank
or any Lender with respect to any amount owing under this clause (c) shall be conclusive, absent
manifest error.
4.1.4Notices. Each Borrower authorizes Agent and Lenders to extend, convert or
continue Loans, effect selections of interest rates, and transfer funds to or on behalf of applicable
Borrowers based on telephonic or e-mailed instructions by Loan Party Agent to Agent. Loan Party Agent
shall confirm each such request by prompt delivery to Agent of a Notice of Borrowing or Notice of
Conversion/Continuation, if applicable, but if it differs in any material respect from the action taken by
Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall
have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its
understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or
any Lender to be a person authorized to give such instructions on Loan Party Agent’s behalf.
4.2Defaulting Lender.
Notwithstanding anything herein to the contrary:
4.2.1Reallocation of Pro Rata Share; Amendments. For purposes of determining
Lenders’ obligations or rights to fund, participate in or receive collections with respect to Loans and
Letters of Credit (including existing Swingline Loans, Protective Advances and LC Obligations), Agent
may in its discretion reallocate Pro Rata shares by excluding the Commitments and Loans of a Defaulting
Lender from the calculation of Pro Rata shares. A Defaulting Lender shall have no right to vote on any
amendment, waiver or other modification of a Loan Document, except as provided in Section 14.1.1(c).
4.2.2Payments; Fees. Agent may, in its discretion, receive and retain any amounts
payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to
have assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and
other Secured Parties have been paid in full. Agent may use such amounts to cover the Defaulting
Lender’s defaulted obligations, to Cash Collateralize such Lender’s Fronting Exposure, to readvance the
amounts to Borrowers or to repay other Obligations. A Lender shall not be entitled to receive any fees
accruing hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its
Commitment shall be disregarded for purposes of calculating the unused line fee under Section 3.2.1 and
Section 3.2.2. If any LC Obligations owing to a Defaulted Lender are reallocated to other Lenders, fees
attributable to such LC Obligations under Section 3.2.3 and Section 3.2.4 shall be paid to such Lenders.
Agent shall be paid all fees attributable to LC Obligations that are not reallocated.
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4.2.3Status; Cure. Agent may determine in its discretion that a Lender constitutes a
Defaulting Lender and the effective date of such status shall be conclusive and binding on all parties,
absent manifest error. Borrowers, Agent and Issuing Bank may agree in writing that a Lender has ceased
to be a Defaulting Lender, whereupon Pro Rata shares shall be reallocated without exclusion of the
reinstated Lender’s Commitments and Loans, and all outstanding Revolver Loans, LC Obligations and
other exposures under the Facility Commitments shall be reallocated among Lenders and settled by
Agent (with appropriate payments by the reinstated Lender, including its payment of breakage costs for
reallocated Term SOFR Loans or Term CORRA Rate Loans) in accordance with the readjusted Pro Rata
shares. Unless expressly agreed by Borrowers, Agent and Issuing Bank or as expressly provided herein
with respect to Bail-In Actions and related matters, no reallocation of Commitments and Loans to non-
Defaulting Lenders or reinstatement of a Defaulting Lender shall constitute a waiver or release of claims
against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC
Obligations or otherwise to perform obligations hereunder shall not relieve any other Lender of its
obligations under any Loan Document, and no Lender shall be responsible for default by another Lender.
4.3Number and Amount of Interest Period Loans; Determination of Rate. For ease of
administration, all Interest Period Loans of the same Type to a Borrower having the same length and
beginning date of their Interest Periods and the same currency shall be aggregated together, and such
Loans shall be allocated among the Applicable Lenders on a Pro Rata basis. With respect to the U.S.
Borrower, no more than six (6) Borrowings of Term SOFR Loans may be outstanding at any time, and
each Borrowing of Term SOFR Loans when made, continued or converted shall be in a minimum
amount of the Dollar Equivalent of $1,000,000 or an increment of the Dollar Equivalent of $500,000, in
excess thereof. With respect to the Canadian Borrower, no more than four (4) Borrowings of Interest
Period Loans may be outstanding at any time, and each Borrowing of Interest Period Loans when made,
continued or converted shall be in a minimum amount of $1,000,000 (or, in the case of Term CORRA
Rate Loans, Cdn$1,000,000) or an increment of $500,000 (or, in the case of Term CORRA Rate Loans,
Cdn$500,000), in excess thereof. Upon determining Term SOFR or Term CORRA for any Interest
Period requested by a Borrower, Agent shall promptly notify Loan Party Agent thereof by telephone or
electronically and, if requested by Loan Party Agent, shall confirm any telephonic notice in writing.
4.4Loan Party Agent. Each Loan Party hereby designates Cooper-Standard Automotive
Inc. (“Loan Party Agent”) as its representative and agent for all purposes under the Loan Documents,
including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of
communications, preparation and delivery of Borrower Materials, receipt and payment of Obligations,
requests for waivers, amendments or other accommodations, actions under the Loan Documents
(including in respect of compliance with covenants), and all other dealings with Agent, any Issuing Bank
or any Lender. Loan Party Agent hereby accepts such appointment. Agent and Lenders shall be entitled
to rely upon, and shall be fully protected in relying upon, any notice or communication (including any
Notice of Borrowing) delivered by Loan Party Agent on behalf of any Loan Party. Agent and Lenders
may give any notice or communication with a Loan Party hereunder to Loan Party Agent on behalf of
such Loan Party. Each of Agent, Issuing Banks and Lenders shall have the right, in its discretion, to
deal exclusively with Loan Party Agent for any or all purposes under the Loan Documents. Each Loan
Party agrees that any notice, election, communication, representation, agreement or undertaking made
on its behalf by Loan Party Agent shall be binding upon and enforceable against it.
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With respect to each Specified Jurisdiction Guarantor that is organized under the laws of Mexico
(a “Mexican Guarantor”), hereby irrevocably designates and appoints the Loan Party Agent (also
referred to as the “Process Agent”), with an office at 40300 Traditions Drive Northville, Michigan
48168, United States of America as its agent and true and lawful attorney-in-fact in its name, place and
stead (i) to accept on its behalf service of copies of the summons and complaint and any other process
that may be served in any such suit, action or proceeding brought in any court, (ii) as its conventional
address the address of the Loan Party Agent referred above or any other address notified in writing in
the future by the Loan Party Agent to such Mexican Guarantor, to receive on its behalf service of all
process in any proceedings brought pursuant to the Loan Documents in any court, such service being
hereby acknowledged by such Mexican Guarantor to be effective and binding service in every respect,
and agrees that the failure of the Loan Party Agent to give any notice of any such service of process to it
shall not impair or affect the validity of such service or, to the extent permitted by applicable law, the
enforcement of any judgment based thereon, and (iii) conduct each of the actions referred to in the first
paragraph of this Section 4.4. Each Mexican Guarantor shall maintain such appointment and faculties
until the satisfaction in full of all Obligations, except that if for any reason the Loan Party Agent
appointed hereby ceases to be able to act as such, then each Mexican Guarantor shall, by an instrument
reasonably satisfactory to the Agent, appoint another Person as such Loan Party Agent subject to the
reasonable approval of the Agent. Each Mexican Guarantor covenants and agrees that it shall take any
and all reasonable action, including the execution and filing of any and all documents that may be
necessary to continue the designation and faculties of the Loan Party Agent as Process Agent and true
and lawful attorney-in-fact pursuant to this paragraph in full force and effect and to cause the Loan Party
Agent to act as such.
The Mexican Guarantor, no later than twenty (20) Business Days after the date on which the
Mexican Guarantor becomes a Guarantor under this Agreement (or such later date as the Agent may
agree to in its reasonable discretion), shall deliver (A) evidence of the acceptance by the Loan Party
Agent to act as agent for the service of process for such Person in accordance with the terms of this
Agreement, and as its true and lawful attorney-in-fact and (B) copy of the irrevocable special power of
attorney for lawsuits and collections (poder para pleitos y cobranzas) and acts of administration (poder
para actos de administración) in terms of the first, second and fourth paragraphs of Article 2554 and
Article 2596 of the Federal Civil Code and their correlative articles in the Civil Codes of the Federal
entities of Mexico, in each case before a Mexican notary public, appointing the Loan Party Agent, as its
agent for service of process in relation to any action or proceeding arising out of or relating to this
Agreement and any other Loan Document (or the transactions contemplated hereby or thereby), as its
true and lawful attorney-in-fact, and designating the Loan Party Agent’s domicile as the Mexican
Guarantor’s contractual domicile (domicilio convencional) for writs, processes and summonses (avisos,
notificaciones, emplazamientos, resoluciones y comunicaciones).
4.5One Obligation. Without in any way limiting the Obligations of any U.S. Facility Loan
Party with respect to its Guarantee of the Obligations of the Canadian Facility Loan Parties, the Loan
Party Group Obligations owing by each Loan Party Group shall constitute one (1) general obligation of
the Loan Parties within such Loan Party Group and (unless otherwise expressly provided in any Loan
Document) shall be secured by Agent’s Lien upon all Collateral of each member of such Loan Party
Group; provided, however, that each Secured Party shall be deemed to be a creditor of, and the holder of
a separate claim against, each Loan Party to the extent of any Obligations owed by such Loan Party to
such Secured Party.
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4.6Effect of Termination. On the effective date of the termination of all Commitments, the
Obligations shall be immediately due and payable. Until Full Payment of the Obligations, all
undertakings of Borrowers contained in the Loan Documents shall continue, and Agent shall retain its
Liens in the Collateral and all of its rights and remedies under the Loan Documents. Sections 2.2, 2.3,
3.4, 3.6, 3.7, 3.9, 5.4, 5.8, 5.9, 12, 14.2 and this Section 4.6, and the obligation of each Loan Party and
Lender with respect to each indemnity given by it in any Loan Document, shall survive Full Payment of
the Obligations and any release relating to this credit facility.
SECTION 5. PAYMENTS
5.1General Payment Provisions. All payments of Obligations shall be made without
offset, counterclaim or defense of any kind, and in immediately available funds, not later than
12:00 noon on the due date. Any payment after such time shall be deemed made on the next Business
Day. If any payment under the Loan Documents shall be stated to be due on a day other than a Business
Day, the due date shall be extended to the next Business Day and such extension of time shall be
included in any computation of interest and fees. Any payment of an Interest Period Loan prior to the
end of its Interest Period shall be accompanied by all amounts due under Section 3.9. Any prepayment
of Loans by a Borrower shall be applied first to Floating Rate Loans of such Borrower and then to
Interest Period Loans of such Borrower. All payments with respect to any U.S. Facility Obligations
shall be made in Dollars or, if any portion of such U.S. Facility Obligations is denominated in Euros,
then in Euros or, if any portion of such U.S. Facility Obligations is denominated in Sterling, then in
Sterling. All payments with respect to any Canadian Facility Obligations shall be made in Canadian
Dollars or, if any portion of such Canadian Facility Obligations is denominated in Dollars, then in
Dollars.
5.2Repayment of Obligations. All Canadian Facility Obligations shall be immediately due
and payable in full on the Canadian Revolver Commitment Termination Date and all U.S. Facility
Obligations shall be immediately due and payable in full on the U.S. Revolver Commitment
Termination Date, in each case, unless payment of such Obligations is sooner required hereunder.
Revolver Loans may be prepaid from time to time, without penalty or premium, subject to, in the case of
Interest Period Loans, the payment of costs set forth in Section 3.9. If any Asset Sale (other than sales
of Inventory in the ordinary course of business) by any Loan Party constitutes the disposition of ABL
Priority Collateral resulting in Net Proceeds received in any single transaction of greater than
$10,000,000, then Net Proceeds equal to the greater of (a) the net book value of the applicable Accounts
and Inventory, or (b) the reduction in the Borrowing Base of the applicable Borrower upon giving effect
to such Asset Sale, shall be applied to the Revolver Loans of such Borrower; provided, that, at the
election of the applicable Loan Party (as notified by the Loan Party Agent to Agent on or prior to the
date of the receipt of such Net Proceeds), and so long as no Default shall have occurred and be
continuing, the applicable Loan Party may reinvest all or any portion of such Net Proceeds in operating
assets so long as within 360 days after the receipt of such Net Proceeds, such purchase shall have been
consummated (as certified by the Loan Party Agent in writing to Agent); and provided further, however,
that any Net Proceeds not so reinvested shall be immediately applied as otherwise set forth in this
Section 5.2. Notwithstanding anything herein to the contrary, if an Overadvance exists (including as the
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result of any Asset Sale as specified in the preceding sentence), the Borrower owing such Overadvance
shall, on the sooner of Agent’s demand or the first (1st) Business Day after such Borrower has
knowledge thereof, repay the outstanding Loans in an amount sufficient to reduce the principal balance
of the related Overadvance Loan to zero.
5.3Payment of Other Obligations. Obligations shall be paid by the Borrowers as provided
in the Loan Documents or, if no payment date or time for payment is specified, on demand.
5.4Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of any Loan Party or against any Obligations. If any payment
by or on behalf of the Borrowers is made to Agent, any Issuing Bank or any Lender, or Agent, any
Issuing Bank or any Lender exercises a right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by Agent, such Issuing Bank or such Lender
in its discretion) to be repaid to a Creditor Representative or any other Person, then to the extent of such
recovery, the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating
thereto, shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.
5.5Post-Default Allocation of Payments.
5.5.1Allocation. Notwithstanding anything herein to the contrary, during the
continuance of an Event of Default, Agent shall apply and allocate monies to the Obligations, whether
arising from payments by or on behalf of any Loan Party, realization on Collateral, setoff or otherwise, as
follows:
(a)with respect to monies, payments, property or Collateral of or from any U.S. Facility
Loan Parties, and subject to Section 2.4:
(i)first, to all U.S. Facility Obligations consisting of costs and expenses, including
Extraordinary Expenses, owing to Agent;
(ii)second, to all amounts owing to Agent on U.S. Swingline Loans;
(iii)third, to all amounts (excluding the undrawn stated amount of all U.S. Letters of
Credit) owing to U.S. Issuing Bank on U.S. LC Obligations;
(iv)fourth, to all U.S. Facility Obligations constituting fees (excluding amounts
relating to Secured Bank Product Obligations) owing by the U.S. Facility Loan Parties (exclusive
of any amounts guaranteed by the U.S. Domiciled Loan Parties in respect of Canadian Facility
Obligations);
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(v)fifth, to all U.S. Facility Obligations constituting interest (excluding amounts
relating to Secured Bank Product Obligations) owing by the U.S. Facility Loan Parties (exclusive
of any amounts guaranteed by the U.S. Domiciled Loan Parties in respect of Canadian Facility
Obligations);
(vi)sixth, to provide Cash Collateral for outstanding U.S. Letters of Credit;
(vii)seventh, to all other U.S. Facility Obligations (exclusive of any amounts
guaranteed by the U.S. Domiciled Loan Parties in respect of Canadian Facility Obligations),
including Secured Bank Product Obligations; provided, that amounts constituting Secured Bank
Product Obligations shall only be repayeid to the extent (x) if applicable, proper notice of such
amounts has been provided pursuant to the definition of Bank Product and (y) an appropriate
U.S. Availability Reserve shall have been established with respect thereto;
(viii)eighth, to all other Secured Bank Product Obligations not included in clause (vii)
above;
(ix)ninth, to be applied in accordance with clause (b) below, to the extent there are
insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled
Loan Parties;
(x)tenth, to amounts outstanding under Designated Foreign Guaranties on a pro rata
basis; provided, that such amounts shall only be repayeid to the extent (x) proper notice of such
amounts has been provided pursuant to clause (y) of the definition of Designated Foreign
Guaranty and (y) an appropriate U.S. Availability Reserve shall have been established with
respect thereto; and
(xi)eleventh, after Full Payment of all Obligations, the remainder to Loan Party Agent
for the benefit of the U.S. Domiciled Loan Parties or such other Person(s) as shall be legally
entitled thereto.
(b)with respect to monies, payments, property or Collateral of or from any Canadian
Domiciled Loan Parties, together with any allocations pursuant to subclause (viii) of clause (a) above
and subject to Section 2.4:
(i)first, to all Canadian Facility Obligations consisting of costs and expenses,
including Extraordinary Expenses, owing to Agent, to the extent owing by any Canadian
Domiciled Loan Party;
(ii)second, to all amounts owing to Agent on Canadian Swingline Loans;
(iii)third, to all amounts (excluding the undrawn stated amount of all Canadian Letters
of Credit) owing to Canadian Issuing Bank on Canadian LC Obligations;
(iv)fourth, to all Canadian Facility Obligations constituting fees (excluding amounts
relating to Secured Bank Product Obligations);
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(v)fifth, to all Canadian Facility Obligations constituting interest (excluding amounts
relating to Secured Bank Product Obligations);
(vi)sixth, to provide Cash Collateral for outstanding Canadian Letters of Credit;
(vii)seventh, to all other Canadian Facility Obligations, including Secured Bank
Product Obligations; provided, that amounts constituting Secured Bank Product Obligations shall
only be repaid to the extent (x) proper notice of such amounts has been provided pursuant to the
definition of Bank Product and (y) an appropriate Canadian Availability Reserve shall have been
established with respect thereto;
(viii)eighth, to amounts outstanding under Designated Foreign Guaranties on a pro rata
basis; provided, that such amounts shall only be repaid to the extent (x) proper notice of such
amounts has been provided pursuant to clause (y) of the definition of Designated Foreign
Guaranty and (y) an appropriate Canadian Availability Reserve shall have been established with
respect thereto; and
(ix)ninth, after Full Payment of all Canadian Facility Obligations, the remainder to
Loan Party Agent for the benefit of the Canadian Domiciled Loan Parties or such other Person(s)
as shall be legally entitled thereto.
Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof and
then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a pro
rata basis among the Obligations in the category. Monies and proceeds obtained from a Loan Party shall
not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect
to amounts obtained from other Loan Parties to preserve the allocation specified above. Amounts
distributed with respect to any Secured Bank Product Obligations shall be the actual Secured Bank
Product Obligations as calculated using the methodology reported to Agent for such Obligation (but no
greater than the maximum amount reported to Agent). Agent shall have no obligation to calculate the
amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation
thereof from the applicable Secured Bank Product Provider. If the provider fails to deliver the
calculation within five days following request, Agent may assume the amount is zero. The allocations
set forth in this Section 5.5.1 are solely to determine the rights and priorities of Agent and Lenders as
among themselves, and may be changed by agreement among them without the consent of any Loan
Party. This Section is not for the benefit of or enforceable by any Borrower.
5.5.2Erroneous Application. Agent shall not be liable for any application of amounts
made by it in good faith and, if any such application is subsequently determined to have been made in
error, the sole recourse of any Lender or other Person to which such amount should have been made shall
be to recover the amount from the Person that actually received it (and, if such amount was received by
any Lender, such Lender hereby agrees to return it).
5.6Application of Payments. The ledger balance in the main Dominion Account of each
applicable Borrower as of the end of a Business Day shall be applied to the Loan Party Group
Obligations of such Borrower at the beginning of the next Business Day during any Cash Dominion
Trigger Period. If, as a result of such application, a credit balance exists, the balance shall not accrue
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interest in favor of the applicable Borrower and shall be made available to such Borrower as long as no
Event of Default exists. Each Borrower irrevocably waives the right to direct the application of any
payments or Collateral proceeds made pursuant to Section 5.5, and agrees that Agent shall have the
continuing, exclusive right to apply and reapply same against the Obligations, in such manner as Agent
deems advisable. The amounts in the U.S. Dominion Account will go to the U.S. Facility Obligations as
determined by Agent. Notwithstanding anything to the contrary in any of the Loan Documents, no
monies, payments, property or Collateral of or from any Canadian Domiciled Loan Parties shall be used
to satisfy, or support, directly or indirectly, any Obligations owing by any U.S. Domiciled Loan Party
(other than monies, payments, property or Collateral that is not Cash Collateral which is used to satisfy
amounts outstanding under Designated Foreign Guaranties pursuant to Section 5.5.1(b)(viii)).
5.7Loan Account; Account Stated.
5.7.1Loan Account. Agent shall maintain in accordance with its usual and customary
practices an account or accounts (“Loan Account”) evidencing the obligations of each Borrower resulting
from each Loan made to such Borrower or issuance of a Letter of Credit for the account of such Borrower
from time to time. Any failure of Agent to record anything in the Loan Account, or any error in doing so,
shall not limit or otherwise affect the obligation of the Borrowers to pay any amount owing hereunder.
Agent may maintain a single Loan Account in the name of Loan Party Agent, and each Borrower
confirms that such arrangement shall have no effect on the joint and several character of its liability for
the Obligations of its Loan Party Group or, in the case of the U.S. Borrower, its guarantee of the
Obligations of the Canadian Borrower.
5.7.2Entries Binding. Entries made in the Loan Account shall constitute presumptive
evidence of the information contained therein. If any information contained in the Loan Account is
provided to or inspected by any Person, then such information shall be conclusive and binding on such
Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing
within thirty (30) days after receipt or inspection that specific information is subject to dispute.
5.8Taxes.
5.8.1Payments Free of Taxes. Any and all payments by or on account of any Obligation
of any Loan Party under any Loan Document shall be made without deduction or withholding for any
Taxes, except as required by applicable law. If any applicable law (as determined in the good faith
discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from
any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount deducted or withheld to the
relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified
Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such
deduction or withholding has been made (including such deductions and withholdings applicable to
additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum
it would have received had no such deduction or withholding been made.
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5.8.2Other Taxes. The Loan Parties shall timely pay to the relevant Governmental
Authority in accordance with applicable law, or at the option of Agent timely reimburse it for the
payment of, any Other Taxes.
5.8.3Indemnification by Loan Parties. The Loan Parties shall indemnify each
Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable
or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Loan Party Agent by a Lender (with a copy to
Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
5.8.4Indemnification by Lenders. Each Lender shall severally indemnify Agent, within
10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the
extent that any Loan Party has not already indemnified Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to
comply with the provisions of Section 13.2.1 relating to the maintenance of a participant register and (iii)
any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in
connection with any Loan Document, and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to any
Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set
off and apply any and all amounts at any time owing to such Lender under any Loan Document or
otherwise payable by Agent to the Lender from any other source against any amount due to Agent under
this Section 5.8.4.
5.8.5Evidence of Payment. As soon as practicable after any payment of Taxes by any
Loan Party to a Governmental Authority pursuant to this Section 5.8, such Loan Party shall deliver to
Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to Agent.
5.8.6Treatment of Certain Refunds. If a Loan Party makes a payment of Indemnified
Taxes to a Recipient and either (i) the applicable Loan Party determines that there is a reasonable basis
for asserting that such Indemnified Taxes were not correctly or legally imposed or asserted by the
relevant Governmental Authority, unless the relevant Recipient reasonably disagrees with such
determination or (ii) the applicable Recipient has actual knowledge that such Indemnified Taxes are
refundable to such Recipient by the relevant Governmental Authority (in which case such Recipient shall
within a reasonable period of time provide written notice to the applicable Loan Party of such refundable
Indemnified Taxes) then, in each case, at the applicable Loan Party’s written request and at the applicable
Loan Party’s cost and expense, such Recipient shall make a claim for refund of such Indemnified Taxes
(and any interest and penalties arising therefrom or with respect thereto) to such Governmental Authority
in the manner prescribed by applicable Law and shall take such other reasonable necessary actions as
required by the applicable Loan Party in pursuit of such refund claim. To the extent a Recipient actually
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realizes a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.8
(including by the payment of additional amounts pursuant to this Section 5.8), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made
under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the
request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant
to this Section 5.8.6 (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this Section 5.8.6, in no event
will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 5.8.6 the payment of which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to indemnification and giving
rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not
be construed to require any indemnified party to make available its Tax returns (or any other information
relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
5.8.7Survival. Each party’s obligations under this Section 5.8 shall survive the
resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any
Loan Document.
5.8.8Defined Terms. For purposes of this Section 5.8 and Section 5.9, the term
“Lender” includes any Issuing Bank and the term “applicable Law” includes FATCA.
5.9Lender Tax Information.
5.9.1Generally. Any Lender that is entitled to an exemption from or reduction of
withholding from Tax with respect to payments made under any Loan Document shall deliver to the Loan
Party Agent and Agent, at the time or times reasonably requested by the Loan Party Agent or Agent, such
properly completed and executed documentation reasonably requested by the Loan Party Agent or Agent
as will permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if reasonably requested by the Loan Party Agent or Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Loan Party Agent or Agent as
will enable the Loan Party Agent or Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Notwithstanding anything to the contrary in the
preceding two sentences, the completion, execution and submission of such documentation (other than
such documentation set forth in Section 5.9.2(i), (ii)(a), (ii)(b), (ii)(c), (ii)(d) and (iii) below) shall not be
required if in the Lender’s reasonable judgment such completion, execution or submission would subject
such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
5.9.2U.S. Borrower. Without limiting the generality of the foregoing, if a Borrower is
resident for tax purposes in the United States, (i) any Recipient that is a “United States person” within the
meaning of section 7701(a)(30) of the Code shall deliver to Agent and Loan Party Agent IRS Form W-9
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or such other documentation or information prescribed by applicable Law or reasonably requested by
Agent or Loan Party Agent certifying that such Recipient is exempt from United States backup
withholding and information reporting requirements, (ii) any Recipient that is not a “United States
person” within the meaning of section 7701(a)(30) of the Code, shall deliver to Agent and Loan Party
Agent, on or prior to the date on which it becomes a party hereunder (and from time to time thereafter
upon reasonable request by Agent or Loan Party Agent, but only if such Lender is entitled to do so under
applicable Law), (a) IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, claiming eligibility for
benefits of an income tax treaty to which the United States is a party; (b) IRS Form W-8ECI; (c) IRS
Form W-8IMY and all required supporting documentation; or (d) in the case of a Lender claiming the
benefits of the exemption for portfolio interest under section 881(c) of the Code, IRS Form W-8BEN or
IRS Form W-8BEN-E, as applicable, and a certificate showing such Lender is not (x) a “bank” within
the meaning of section 881(c)(3)(A) of the Code, (y) a “10 percent shareholder” of any Loan Party
within the meaning of section 881(c)(3)(B) of the Code, or (z) a “controlled foreign corporation”
described in section 881(c)(3)(C) of the Code; and (iii) if a payment made to a Recipient under any Loan
Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the U.S.
Borrower and Agent at the time or times prescribed by law and at such time or times reasonably
requested by the U.S. Borrower or Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the U.S. Borrower or Agent as may be necessary for the U.S. Borrower and Agent to
comply with their obligations under FATCA and to determine that such Recipient has complied with
such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such
payment. Solely for purposes of the foregoing clause (iii), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement.
5.9.3Lender Obligations. Each Lender agrees that if any form or certification it
previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form
or certification or promptly notify the Loan Party Agent and Agent in writing of its legal inability to do
so.
5.10Guarantee Loan Parties.
5.10.1Joint and Several Liability. Each U.S. Domiciled Loan Party and eachthe
Specified Jurisdiction Guarantor agrees that it is jointly and severally liable for, and absolutely and
unconditionally guarantees to Agent and Lenders the prompt payment and performance of, all
Obligations and all agreements of each other Loan Party under the Loan Documents. Each U.S.
Domiciled Loan Party which is a U.S. Facility Guarantor agrees that its guarantee obligations as a U.S.
Facility Guarantor and as a Canadian Facility Guarantor hereunder, and eachthe Specified Jurisdiction
Guarantor agrees that its guarantee of the Obligations, in each case constitute a continuing guarantee of
payment and not of collection, that such guarantee obligations shall not be discharged until Full Payment
of the Obligations, and that such guarantee obligations are absolute and unconditional, in each case
irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future
modification of, or change in, any Obligations or Loan Document, or any other document, instrument or
agreement to which any Loan Party is or may become a party or be bound; (b) the absence of any action
to enforce this Agreement (including this Section 5.10) or any other Loan Document, or any waiver,
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consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value
or condition of, or failure to perfect a Lien or to preserve rights against, any security or guarantee for the
Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof
(including the release of any security or guarantee); (d) the insolvency of any Loan Party; (e) any
election by Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2)
of the U.S. Bankruptcy Code, or the applicable legislation of eachthe Specified Jurisdiction Guarantor;
(f) any borrowing or grant of a Lien by any other Loan Party, as debtor-in-possession under Section 364
of the U.S. Bankruptcy Code or otherwise, or the applicable legislation of eachthe Specified Jurisdiction
Guarantor; (g) the disallowance of any claims of Agent or any Lender against any Loan Party for the
repayment of any Obligations under Section 502 of the U.S. Bankruptcy Code or otherwise; or (h) any
other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of
a surety or guarantor, except Full Payment of all Obligations.
5.10.2Waivers.
(a)Each U.S. Domiciled Loan Party and eachthe Specified Jurisdiction Guarantor hereby
expressly waives all rights (including under the principles of Romanian law, the right of “beneficiul de
diviziune și discuțiune”) that it may have now or in the future under any statute, at common law, in
equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Loan Party,
other Person or security for the payment or performance of any Obligations before, or as a condition to,
proceeding against such Loan Party. Each U.S. Domiciled Loan Party and eachthe Specified
Jurisdiction Guarantor, in all matters permitted by law, waives all defenses available to a surety,
guarantor or accommodation co-obligor other than Full Payment of all Obligations. It is agreed among
each U.S. Domiciled Loan Party, eachthe Specified Jurisdiction Guarantor, Agent and Lenders that the
provisions of this Section 5.10 are of the essence of the transaction contemplated by the Loan
Documents and that, but for such provisions, Agent and Lenders would decline to make Loans and issue
Letters of Credit. Each U.S. Domiciled Loan Party and eachthe Specified Jurisdiction Guarantor
acknowledges that its guarantee pursuant to this Section is necessary to the conduct and promotion of its
business, and can be expected to benefit such business.
(b)Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem
appropriate, prior to judicial process if applicable, including realization upon the Collateral by judicial
foreclosure or non-judicial sale or enforcement without affecting any rights and remedies under this
Section 5.10. If, in taking any action in connection with the exercise of any rights or remedies, Agent or
any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment
against any U.S. Domiciled Loan Party or other Person, whether because of any applicable Laws
pertaining to “election of remedies” or otherwise, each U.S. Domiciled Loan Party and eachthe
Specified Jurisdiction Guarantor consents to such action and waives any claim based upon it, even if the
action may result in loss of any rights of subrogation that any U.S. Domiciled Loan Party or anythe
Specified Jurisdiction Guarantor might otherwise have had. Any election of remedies that results in
denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any U.S.
Domiciled Loan Party or anythe Specified Jurisdiction Guarantor shall not impair any other U.S.
Domiciled Loan Party’s or anythe Specified Jurisdiction Guarantor’s obligation to pay the full amount
of the Obligations. Each U.S. Domiciled Loan Party waives to the maximum extent permitted by the
law all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with
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respect to any security for the Obligations, even though that election of remedies destroys such U.S.
Domiciled Loan Party’s rights of subrogation against any other Person. Agent may bid all or a portion
of the Obligations at any foreclosure or trustee’s sale or at any private sale, and the amount of such bid
need not be paid by Agent but shall be credited against the Obligations. The amount of the successful
bid at any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively
deemed to be the fair market value of the Collateral, and the difference between such bid amount and the
remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations
guaranteed under this Section 5.10, notwithstanding that any present or future law or court decision may
have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might
otherwise be entitled but for such bidding at any such sale.
(c)The Mexican Guarantor hereby irrevocably and unconditionally waives, to the fullest
extent permitted by applicable law: (i) notice of acceptance of the guaranty contained herein and notice
of any liability to which the guaranty contained herein may apply, (ii) all notices that may be required by
applicable law or otherwise to preserve intact any rights of the Agent or any Lender against the Mexican
Guarantor or any Loan Party, including, without limitation, any demand, presentment, protest, notice of
default or non-payment or dishonor, the filing of claims with a court in the event of a bankruptcy or
similar event with respect to the Mexican Guarantor or any Loan Party, notice of any failure on the part
of the Mexican Guarantor or any Loan Party to perform or comply with any covenant, agreement, term,
condition or provision of the Mexican Guarantor or any Loan Document or any other agreement, and
any other notice to any other party that may be liable in respect of the obligations guaranteed hereby
(including any Loan Party), (iii) any right to require the enforcement, assertion or exercise by the Agent
or any Lender of any right, power, privilege or remedy conferred upon such Person, including, without
limitation, any such rights, powers, privileges and remedies under the Loan Documents or otherwise,
(iv) any requirement for diligence on the part of the Agent or any Lender, (v) to the fullest extent
permitted by law, any right and/or privilege to which it may be entitled (A) to the extent applicable, and
with respect solely to any party to this Agreement organized, existing and/or incorporated under the laws
of Mexico, any benefit of orden, excusiόn, divisiόn, quita, novaciόn, espera and/or modificaciόn that it
might otherwise have pursuant to Articles 2813, 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822,
2823, 2824, 2826, 2827, 2832, 2836, 2837, 2838, 2839, 2840, 2842, 2844, 2845, 2846, 2847, 2848 and
2849 of the Federal Civil Code (Código Civil Federal) and other related Articles of the Federal Civil
Code, and the corresponding provisions of the Civil Codes of the states of Mexico and the Federal
District (currently Mexico City), which are not reproduced herein because the Mexican Guarantor is
organized, existing and/or incorporated under the laws of Mexico, hereby expressly acknowledges that it
is familiar with, and fully understands, such provisions and that these waivers do not imply that the
guaranty contained herein shall be deemed to be governed by Mexican law; and (B) to require that any
Borrower be sued and all claims against such Borrower be completed prior to an action or proceeding
being initiated against the Mexican Guarantor, (vi) any requirement that the Agent or any Lender
exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under
any Loan Document, or proceed to take any action against any collateral security or against any Loan
Party or any other Person under or in respect of any Loan Document or otherwise, and (vii) any other act
or omission or thing or delay in doing any other act or thing which might in any manner or to any extent
vary the risk of such Mexican Guarantor or otherwise operate as a discharge of such Mexican Guarantor
or in any manner lessen the obligations of such Mexican Guarantor hereunder. The Mexican Guarantor
hereby expressly and irrevocably represents that it has full knowledge about the content of such Articles
described above, and therefore, such Articles are not required to be transcribed herein.
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Furthermore, and only with respect to the Mexican Guarantor organized, existing and/or incorporated
under the laws of Mexico, hereby expressly waives all rights of subrogation provided in Article 2830 of
the Federal Civil Code (Código Civil Federal) and the correlative articles of the civil code of each
political subdivision of Mexico (including Mexico City).
5.10.3Extent of Liability; Contribution.
(a)Notwithstanding anything herein to the contrary (other than as specified in Section
5.10.6), each U.S. Domiciled Loan Party’s liability under this Section 5.10 shall be limited to the greater
of (i) all amounts for which such U.S. Domiciled Loan Party is primarily liable, as described below, and
(ii) such U.S. Domiciled Loan Party’s Allocable Amount.
(b)If any U.S. Domiciled Loan Party makes a payment under this Section 5.10 of any
Obligations (other than amounts for which such U.S. Domiciled Loan Party is primarily liable) (a
“Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently
made by any other U.S. Domiciled Loan Party, exceeds the amount that such U.S. Domiciled Loan Party
would otherwise have paid if each U.S. Domiciled Loan Party had paid the aggregate Obligations
satisfied by such Guarantor Payments in the same proportion that such U.S. Domiciled Loan Party’s
Allocable Amount bore to the total Allocable Amounts of all U.S. Domiciled Loan Parties, then such
U.S. Domiciled Loan Party shall be entitled to receive contribution and indemnification payments from,
and to be reimbursed by, each other U.S. Domiciled Loan Party for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
The “Allocable Amount” for any U.S. Domiciled Loan Party shall be the maximum amount that could
then be recovered from such U.S. Domiciled Loan Party under this Section 5.10 without rendering such
payment voidable under Section 548 of the U.S. Bankruptcy Code or under any applicable state
fraudulent transfer or conveyance act, or similar statute or common law.
(c)Nothing contained in this Section 5.10 (other than as specified in Section 5.10.6) shall
limit the liability of any Loan Party to pay Loans made directly or indirectly to that Loan Party
(including Loans advanced to any other Loan Party and then re-loaned or otherwise transferred to, or for
the benefit of, such Loan Party), LC Obligations relating to Letters of Credit issued to support such Loan
Party’s business, and all accrued interest, fees, expenses and other related Obligations with respect
thereto, for which such Loan Party shall be primarily liable for all purposes hereunder.
(d)Each U.S. Domiciled Loan Party that is a Qualified ECP when its guaranty of or grant of
a Lien as security for a Swap Obligation becomes effective hereby jointly and severally, absolutely,
unconditionally and irrevocably undertakes to provide such funds or other support to each Specified
Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from
time to time to honor all of its obligations under the Loan Documents in respect of such Swap
Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby
incurred without rendering such Qualified ECP’s obligations and undertakings under this Section 5.10
voidable under any applicable fraudulent transfer or conveyance act). The obligations and undertakings
of each Qualified ECP under this Section shall remain in full force and effect until Full Payment of the
Obligations. Each Loan Party intends this Section to constitute, and this Section shall be deemed to
constitute, a guarantee of the obligations of, and a “keepwell, support or other agreement” for the benefit
of, each Loan Party for all purposes of the Commodity Exchange Act.
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5.10.4Joint Enterprise. Each Borrower has requested that Agent and Lenders make this
credit facility available to the Borrowers in order to finance the Borrowers’ business most efficiently and
economically. The Borrowers and Guarantors make up a related organization of various entities
constituting a single economic and business enterprise so that the Borrowers and Guarantors share an
identity of interests such that any benefit received by any one of them benefits the others. The
Borrowers and Guarantors render services to or for the benefit of the other Borrowers and/or Guarantors,
as the case may be, purchase or sell and supply goods to or from or for the benefit of the others, make
loans, advances and provide other financial accommodations to or for the benefit of the other Borrowers
and Guarantors (including inter alia, the payment by the Borrowers and Guarantors of creditors of the
other Borrowers or Guarantors and guarantees by the Borrowers and Guarantors of indebtedness of the
other Borrowers and Guarantors and provide administrative, marketing, payroll and management
services to or for the benefit of the other Borrowers and Guarantors). The Borrowers and Guarantors
have centralized accounting and legal services and certain common officers and directors. The
Borrowers acknowledge and agree that Agent’s and Lenders’ willingness to extend credit to the
Borrowers and to administer the Collateral, as set forth herein, is done solely as an accommodation to
the Borrowers and at the Borrowers’ request.
5.10.5Subordination. Each Loan Party hereby subordinates any claims, including any
rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution,
indemnification or set off, that it may have at any time against any other Loan Party, howsoever arising,
to the Full Payment of all Obligations.
5.10.6French Guarantors.
(a)For the purposes of this Section 5.10.
(i)“French Guarantor” shall mean any Specified Jurisdiction Guarantor incorporated
in France;
(ii)“Guarantee Obligations” means the obligations and liabilities of the relevant
French Guarantor under the Guarantee;
(iii)a reference to “Indirect Borrowings” of a French Guarantor means the amount of
Loan drawn by a particular Borrower under a Loan Document to the extent of the aggregate
amounts on-lent or otherwise made available to the relevant French Guarantor (or, without
double counting, any of its Subsidiaries), plus any accrued and unpaid interest (including any
default interest), compounded interest costs and fees in respect of or attributable to that on-
lending, outstanding as at the Guarantee Demand Date;
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(iv)“Guarantee Demand Date” means the first date upon which a Secured Party
makes written demand upon the relevant French Guarantor to make payment in respect of its
Guarantee Obligations; and
(v)in relation to a French Guarantor, “Subsidiary” means a Group Company
controlled by that French Guarantor within the meaning of article L.233-3 of the French
Commercial Code
(b)A French Guarantor shall not incur Guarantee Obligations other than in respect of:
(i)that French Guarantor’s Subsidiaries’ obligations and liabilities under the Loans;
and
(ii)that French Guarantor’s Indirect Borrowings under the Loans as at the Guarantee
Demand Date.
(c)Notwithstanding any provision (other than in this Section 5.10.6) to the contrary, to the
extent that any provision of this Agreement or any certificate, notice or other document delivered under
or in connection with this Agreement is a guarantee by a French Guarantor of the obligations of any
other person, or an undertaking, covenant, obligation, representation or warranty for any other person,
then that French Guarantor shall not be bound by any such guarantee, undertaking, covenant, obligation,
representation or warranty, unless made in respect of a Subsidiary of it.
(d)Without limiting the generality of the foregoing:
(i)the representations made in Section 9 (Representations and Warranties) of this
Agreement and in any other Loan Document by each French Guarantor shall be made for itself
and, if relevant, for each of its Subsidiaries only;
(ii)the covenants made in Section 10.1 (Affirmative Covenants) and in Section 10.2
(Negative Covenants) of this Agreement and in any other Loan Document by each French
Guarantor shall be made for itself and, if relevant, for each of its Subsidiaries only;
(iii)the obligations of any French Guarantor under the Loan Documents will not
extend beyond a point where they would infringe article L. 225-216 of the French Commercial
Code and/or would constitute a misuse of corporate assets within the meaning of article L. 242-6
of the French Commercial Code (or any other law or regulation having the same effect as
interpreted by French courts); and
(iv)the obligations of any French Guarantor under the Credit Documents will not
extend beyond a point where they would infringe article L. 511-7 3° of the French Monetary and
Financial Code.
Any repayment of any inter-company loans due by a French Guarantor under the on-
lending referred to in the definition of “Indirect Borrowings” above shall reduce pro tanto the
amount payable under the Guarantee.
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Notwithstanding any provision (other than in this Section 5.10.6) to the contrary, no
French Guarantor is acting as a “co-débiteur solidaire” within the meaning of article 1318 of the
French Civil Code as to its obligations towards the Borrowers or the other Guarantors pursuant to
the Guarantee.
In the event of any conflict between the provisions of this Section 5.10.6 and any other
provisions of this Agreement or any other Loan Document, this Section 5.10.6 shall prevail and
govern.
5.11Currency Matters. Dollars are the currency of account and payment for each and every
sum at any time due from the Borrowers hereunder unless otherwise specifically provided in this
Agreement, any other Loan Document or otherwise agreed to by Agent.
5.11.1Each repayment of a Revolver Loan or LC Obligation or a part thereof shall be
made in the currency in which such Revolver Loan or LC Obligation is denominated at the time of that
repayment;
5.11.2Each payment of interest shall be made in the currency in which the principal or
other sum in respect of which such interest is denominated;
5.11.3Each payment of fees by the U.S. Borrower pursuant to Section 3.2 shall be in
Dollars;
5.11.4Each payment of fees by the Canadian Borrower pursuant to Section 3.2 shall be
in Dollars;
5.11.5[Reserved];
5.11.6Each payment in respect of Extraordinary Expenses and any other costs, expenses
and indemnities shall be made in the currency in which the same were incurred by the party to whom
payment is to be made;
5.11.7Any amount expressed to be payable in Canadian Dollars shall be paid in
Canadian Dollars;
5.11.8Any amount expressed to be payable in Euros shall be paid in Euros; and
5.11.9Any amount expressed to be payable in Sterling shall be paid in Sterling.
No payment to any Secured Party (whether under any judgment or court order or otherwise) shall
discharge the obligation or liability of the Loan Party in respect of which it was made unless and until
such Secured Party shall have received Full Payment in the currency in which such obligation or liability
is payable pursuant to the above provisions of this Section 5.11. To the extent that the amount of any
such payment shall, on actual conversion into such currency, fall short of such obligation or liability
actual or contingent expressed in that currency, such Loan Party (together with the other Loan Parties
within its Loan Party Group or other obligors pursuant to any Guarantee of the Obligations of such Loan
Party Group) agrees to indemnify and hold harmless such Secured Party, with respect to the amount of
the shortfall with respect to amounts payable by such Loan Party hereunder, with such indemnity
surviving the termination of this Agreement and any legal proceeding, judgment or court order pursuant
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to which the original payment was made which resulted in the shortfall. To the extent that the amount of
any such payment to a Secured Party shall, upon an actual conversion into such currency, exceed such
obligation or liability, actual or contingent, expressed in that currency, such Secured Party shall return
such excess to the affected Loan Party.
5.12Currency Fluctuations. On each Business Day or such other date determined by Agent,
Agent shall determine the Exchange Rate as of such date. The Exchange Rate so determined shall
become effective on the first (1st) Business Day immediately following such determination (a “Reset
Date”) and shall remain effective until the next succeeding Reset Date. On each Reset Date, Agent shall
determine the Dollar Equivalent of the Canadian Revolver Exposure and the U.S. Revolver Exposure,
including in respect of the stated amount of any outstanding Letters of Credit issued in Euros or Sterling.
If, on any Reset Date, (w) the Total Revolver Exposure exceeds the total amount of the Commitments on
such date or (x) the Canadian Revolver Exposure on such date exceeds the Canadian Borrowing Base on
such date or (y) the U.S. Revolver Exposure on such date exceeds the U.S. Borrowing Base on such date
(the amount of any such excess referred to herein as the “Excess Amount”) then (i) Agent shall give
notice thereof to the applicable Borrower and Applicable Lenders and (ii) within two (2) Business Days
thereafter, the applicable Borrower shall cause such excess to be eliminated, either by repayment of
Revolver Loans or depositing of Cash Collateral with Agent with respect to LC Obligations and until
such Excess Amount is repaid, the Applicable Lenders shall not have any obligation to make any Loans.
SECTION 6. CONDITIONS PRECEDENT
6.1Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section
6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise
extend credit to the Borrowers hereunder, until the date (“Third Restatement Date”) that each of the
following conditions has been satisfied (and with respect to deliveries of Loan Documents, each such
delivery shall be fully-executed (where applicable) and in form and substance satisfactory to Agent and
its counsel) (subject to Section 10.1.13):
(a)Notes shall have been executed by each Borrower and delivered to each Applicable
Lender that requests issuance of a Note. Each other Loan Document set forth on the List of Closing
Documents shall have been duly executed (where applicable) by each of the signatories thereto and
delivered to Agent, and each Loan Party shall be in compliance with all terms thereof. Each other
instrument, document or agreement set forth on the List of Closing Documents shall have been executed
(where applicable) and delivered to Agent.
(b)Agent shall have received satisfactory evidence that Agent shall have a valid and
perfected security interest in the Collateral (including delivery to Agent of all instruments needed for
filings or recordations necessary to perfect its Liens in the Collateral).
(c)Agent shall have received UCC, PPSA, and Lien searches and other evidence satisfactory
to Agent that its Liens are the only Liens upon the ABL Priority Collateral, except Permitted Liens.
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(d)All filing and recording fees and taxes shall have been duly paid or arrangements
satisfactory to Agent shall have been made for the payment thereof.
(e)Agent shall have received certificates, in form and substance satisfactory to it, from a
Responsible Officer of each Loan Party certifying that, after giving effect to the Transactions and the
initial Loans and transactions hereunder, (i) the Canadian Borrower and its consolidated Restricted
Subsidiaries, taken as a whole, and the U.S. Borrower and its consolidated Restricted Subsidiaries, taken
as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties
set forth in Section 9 with respect to such Loan Party are true and correct in all material respects (or,
with respect to representations and warranties qualified by materiality, in all respects) (except for
representations and warranties that expressly relate to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects (or, with respect to representations and
warranties qualified by materiality, in all respects) as of such earlier date); and (iv) such Loan Party has
complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(f)Agent shall have received a certificate of a duly authorized officer of or other person
authorized to represent each Loan Party, certifying (i) that attached copies of such Loan Party’s
Organization Documents are true and complete, and in full force and effect, without amendment except
as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan
Documents to which such Loan Party is a party is true and complete, and that such resolutions are in full
force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all
resolutions adopted with respect to this credit facility; (iii) all governmental and other third party
approvals and consents, if any, with respect to this Agreement, the other Transactions and each other
Loan Document have been obtained and are in effect; and (iv) to the title, name and signature of each
Person authorized to sign the Loan Documents to which such Loan Party is a party. Agent may
conclusively rely on this certificate until it is otherwise notified by the applicable Loan Party in writing.
(g)Agent shall have received satisfactory opinions of counsel to the Loan Parties, in each
case, customary for transactions of this type (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability of the Loan Documents) and of appropriate local counsel
(including Ontario and Netherlands counsel).
(h)Agent shall have received copies of the charter documents of each Loan Party, certified
by the Secretary of State or other appropriate official of such Loan Party’s jurisdiction of organization.
(i)Agent shall have received good standing certificates for each Loan Party, issued by the
Secretary of State or other appropriate official of such Loan Party’s jurisdiction of organization.
(j)Since December 31, 2015 no change, occurrence or development shall have occurred or
become known to the Lead Arrangers that could reasonably be expected to have a Material Adverse
Effect.
(k)Agent shall be satisfied with the amount, types and terms and conditions of all insurance
maintained by the Loan Parties and their Restricted Subsidiaries; and Agent shall have received short
form (if available) (i) certificates of insurance with respect to each Loan Parties’ property and liability
insurance, and (ii) endorsements naming Agent as lender’s loss payee or mortgagee, as the case may be
and as its interests may appear, under all casualty and business interruption insurance policies to be
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maintained with respect to the properties of the Loan Parties forming part of the Collateral, in each case,
in form and substance reasonably satisfactory to Agent.
(l)No action, suit, investigation, litigation or proceeding pending or threatened in any court
or before any arbitrator or Governmental Authority that in the Lenders’ judgment (a) could reasonably
be expected to have a Material Adverse Effect or (b) could reasonably be expected to materially and
adversely affect the credit facilities or transactions contemplated hereby.
(m)All accrued fees and expenses of the Secured Parties and Lead Arrangers (including the
fees and expenses of counsel (including any local counsel) for such Secured Parties and Lead Arrangers)
due from the Loan Parties on or prior to the Third Restatement Date, including all fees payable to Agent
under the Agent Fee Letter, shall have been paid in full in cash.
(n)All conditions precedent to the closing of the Fixed Asset Facility shall have been
satisfied in accordance with the Permitted Secured Debt Documents to be executed on the Third
Restatement Date. Agent shall have received a certificate of a Responsible Officer of Loan Party Agent
certifying copies of the material Permitted Secured Debt Documents to be executed on the Third
Restatement Date attached thereto to be true, correct and complete copies thereof.
(o)The Senior Unsecured Notes Issuance shall have been consummated substantially
concurrently with the Third Restatement Date[Reserved].
(p)Each Lender shall have received all Patriot Act, anti-money laundering and “know your
client” documentation required in connection with this Agreement from the Loan Parties.
(q)Agent shall have received executed releases with respect to all outstanding mortgages in
favor of the Agent under the Existing Credit Agreement.
(r)Each of the Lenders shall have entered the Reallocation Agreement.
6.2Conditions Precedent to All Credit Extensions. Agent, Issuing Banks and Lenders
shall not be required to fund any Loans or arrange for issuance of any Letters of Credit to or for the
benefit of the Borrowers (including the initial Loans and Letters of Credit on the Third Restatement
Date), unless the following conditions are satisfied:
(a)No Default or Event of Default shall exist at the time of, or result from, such funding or
issuance;
(b)The representations and warranties of each Loan Party in the Loan Documents shall be
true and correct in all material respects (or, with respect to representations and warranties qualified by
materiality, in all respects) on the date of, and upon giving effect to, such funding, issuance or grant
(except for representations and warranties that expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects (or, with respect to
representations and warranties qualified by materiality, in all respects) as of such earlier date);
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(c)Both immediately before and immediately after giving effect thereto, no Canadian
Overadvance or U.S. Overadvance shall exist or would result therefrom and the Total Revolver
Exposure would not exceed the Maximum Facility Amount; and
(d)With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.
Each request (or deemed request, except a deemed request in connection with an Overadvance or a
Protective Advance or pursuant to Section 2.2.2(a) or Section 2.3.2(a)) by Loan Party Agent or any
Borrower for funding of a Loan or issuance of a Letter of Credit shall constitute a representation by all
Borrowers that the foregoing conditions are satisfied on the date of such request and on the date of such
funding or issuance.
SECTION 7. CASH COLLATERAL
7.1Cash Collateral. Any Cash Collateral may be invested, at Agent’s discretion, in Cash
Equivalents, but Agent shall have no duty to do so, regardless of any agreement or course of dealing
with any Loan Party, and shall have no responsibility for any investment or loss. To further secure the
prompt payment and performance of all of its Obligations (including, without limitation, all Obligations
of the Guarantors), each U.S. Domiciled Loan Party hereby grants to Agent, for the benefit of the
Secured Parties, and to further secure the prompt payment and performance of all Canadian Facility
Obligations, each Canadian Domiciled Loan Party hereby grants to Agent, for the benefit of the
Canadian Facility Secured Parties, in each case, a continuing security interest in and Lien on all Cash
Collateral held by such Loan Party from time to time and all proceeds thereof, whether such Cash
Collateral is held in a Cash Collateral Account or elsewhere. Subject to Section 5.6, Agent may apply
Cash Collateral of a U.S. Domiciled Loan Party to the payment of any Obligations, and may apply Cash
Collateral of a Canadian Domiciled Loan Party to the payment of any Canadian Facility Obligations, in
each case, in such order as Agent may elect, as they become due and payable. Each Cash Collateral
Account and all Cash Collateral shall be under the sole dominion and control of Agent. No U.S.
Domiciled Loan Party or other Person claiming through or on behalf of any U.S. Domiciled Loan Party
shall have any right to any Cash Collateral, until Full Payment of all Obligations, unless if the condition
for establishing Cash Collateral hereunder or under any other Loan Document is in any manner satisfied
or the amount of required Cash Collateral reduced, the applicable Cash Collateral (or portion thereof)
relating to such condition shall at such time be paid by Agent to the Loan Party Agent. No Canadian
Domiciled Loan Party or other Person claiming through or on behalf of any Canadian Domiciled Loan
Party shall have any right to any Cash Collateral, until Full Payment of all Canadian Facility
Obligations, unless if the condition for establishing Cash Collateral hereunder or under any other Loan
Document is in any manner satisfied or the amount of required Cash Collateral reduced, the applicable
Cash Collateral (or portion thereof) relating to such condition shall at such time be paid by Agent to the
Loan Party Agent.
SECTION 8. COLLATERAL ADMINISTRATION
8.1Borrowing Base Certificates. By the twentieth (20th) day of each month (or, during the
Cash Dominion Trigger Period, by Wednesday of each week), or in any such case if such day is not a
Business Day, on the next succeeding Business Day, Loan Party Agent shall deliver to Agent (and
Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate with respect to the U.S.
Borrower and Canadian Borrower, in each case, prepared as of the close of business of the previous
month (or, if applicable, previous week), and, if a Default or an Event of Default has occurred and is
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continuing, at more frequent times as Agent may request. All calculations of the applicable Borrowing
Base in any Borrowing Base Certificate shall originally be made by Loan Party Agent and certified by a
Responsible Officer of Loan Party Agent, provided that Agent may from time to time in its Permitted
Discretion, review and adjust any such calculation (a) to reflect its reasonable estimate of declines in
value of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust
advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (c) to
the extent the calculation is not made in accordance with this Agreement or does not accurately reflect
the U.S. Availability Reserve and/or the Canadian Availability Reserve. Each Borrowing Base
Certificate shall set forth the calculation of the U.S. Borrowing Base in Dollars and of the Canadian
Borrowing Base in the Dollar Equivalent.
8.2Administration of Accounts.
8.2.1Records and Schedules of Accounts. Each Loan Party shall keep accurate and
complete records, in all material respects, of its Accounts, including all payments and collections thereon,
and shall submit to Agent sales, collection, reconciliation and other reports in form satisfactory to Agent,
on such periodic basis as Agent may reasonably request. Loan Party Agent shall also provide to Agent,
on or before the twentieth (20th) day of each month and, if a Default or an Event of Default has occurred
and is continuing, at more frequent times as Agent may request, a detailed aged trial balance of all
Accounts of each Borrower as of the end of the preceding month (or shorter applicable period),
specifying, to the extent requested by Agent, each Account’s Account Debtor name and address, amount,
invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and
including such proof of delivery, copies of invoices and invoice registers, copies of related documents,
repayment histories, status reports and other information as Agent may reasonably request. If, during an
Audit Trigger Period, Accounts of the U.S. Borrower or the Canadian Borrower in an aggregate face
amount of $6,000,000 or more cease to be Eligible Accounts (other than as a result of the payment
thereof), Loan Party Agent shall notify Agent of such occurrence promptly after any Loan Party has
knowledge thereof.
8.2.2Taxes. If an Account of any Loan Party includes a charge for any Taxes, Agent is
authorized, in its discretion, after a Default or an Event of Default has occurred and is continuing, to pay
the amount thereof to the proper Governmental Authority for the account of such Loan Party and to
charge the Loan Party Agent therefor; provided, however, that neither Agent nor Lenders shall be liable
for any Taxes that may be due from the Loan Parties or with respect to any Collateral.
8.2.3Account Verification. Agent shall have the right during normal business hours and
with reasonable frequency, in coordination and together with the Loan Party Agent to verify the validity,
amount or any other matter relating to any material Accounts of the Loan Parties by mail, telephone or
otherwise, and the Loan Party Agent shall cooperate fully with Agent in an effort to facilitate and
promptly conclude any such verification process. If a Default or Event of Default has occurred and is
continuing, Agent shall have the right at any time to conduct such verifications, in the name of Agent,
Loan Party Agent or any Loan Party.
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8.2.4Maintenance of DACA Deposit Accounts and Dominion Accounts. The Canadian
Domiciled Loan Parties shall establish a Canadian Dominion Account (including by designating an
existing Deposit Account as a “Canadian Dominion Account”). The U.S. Facility Loan Parties shall
establish the U.S. Dominion Account (including by designating an existing Deposit Account as a “U.S.
Dominion Account”). The Loan Parties shall (i) require each lockbox servicer of each of any Loan
Party’s lockboxes (if any) in the United States or Canada to deposit all Payment Items received therein
directly to a Deposit Account (other than an Excluded Deposit Account) at the related financial
institution, and (ii) maintain each such Deposit Account, together with all other Deposit Accounts of the
Loan Parties (other than Excluded Deposit Accounts) as DACA Deposit Accounts by obtaining an
executed Deposit Account Control Agreement from each such lockbox servicer and each financial
institution which maintains Deposit Accounts (other than any Excluded Deposit Accounts) for any Loan
Party, which Deposit Account Control Agreement (a) establishes Agent’s dominion and control over the
subject lockbox(es), if any, and/or DACA Deposit Account(s) of the Loan Parties maintained with such
servicer or institution, which may be exercised by Agent during any Cash Dominion Trigger Period, (b)
requires daily application of amounts on deposit in the subject DACA Deposit Account to a Dominion
Account at Bank of America as directed by Agent during any Cash Dominion Trigger Period, and (c)
waives offset rights of such servicer or bank, except for customary administrative charges; it being
understood that, with respect to any Deposit Account which does not at any time comply with the
foregoing requirements specified in this sentence (other than those required to be delivered on the Third
Restatement Date), no funds contained therein shall be treated as either Canadian Designated Cash
Amount or U.S. Designated Cash Amount for purposes of this Agreement and the Loan Party Agent
shall, at Agent’s request, within thirty (30) days, in coordination with Agent, cause replacement
arrangements to be implemented with respect to the applicable accounts which are reasonably satisfactory
to Agent. Neither Agent nor Lenders assume any responsibility to the Loan Parties for any lockbox
arrangement, DACA Deposit Account or Dominion Account, including any claim of accord and
satisfaction or release with respect to any Payment Items accepted by any bank.
8.2.5Proceeds of Collateral; Payment Items Received. Loan Party Agent shall take all
commercially reasonable steps to ensure that all payments on Accounts included in the ABL Priority
Collateral or otherwise relating to ABL Priority Collateral are made directly to a DACA Deposit Account
(or a lockbox relating to a DACA Deposit Account) or, during a Cash Dominion Trigger Period, a
Dominion Account. If any Loan Party or Restricted Subsidiary receives cash or Payment Items with
respect to any ABL Priority Collateral or any Payment Item not properly deposited by a lockbox servicer
in accordance with the requirements set forth in Section 8.2.4, it shall hold same in trust for Agent and
promptly deposit same into a DACA Deposit Account or, during a Cash Dominion Trigger Period, a
Dominion Account for application to the Obligations in accordance with Section 5.5 or 5.6, as
applicable.
8.3Administration of Inventory.
8.3.1Records and Reports of Inventory. Each Loan Party shall keep accurate and
complete records of its Inventory in the United States and Canada consistent in all material respects with
historical practices, and shall submit to Agent inventory and reconciliation reports (which reports shall set
forth the Inventory information by location) in form reasonably satisfactory to Agent, on such periodic
basis as Agent may reasonably request. Subject to Section 10.1.9, Loan Party Agent shall conduct (or
shall cause to be conducted) a physical inventory in the United States and Canada at least once per
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calendar year (and on a more frequent basis if requested by Agent when an Event of Default exists) and
periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on
each such inventory and count promptly upon completion thereof, together with such supporting
information as Agent may reasonably request. Agent may participate in and observe each physical
count.
8.3.2Returns of Inventory. No Loan Party shall return any Inventory to a supplier,
vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the ordinary
course of business; (b) no Default, Event of Default or Overadvance exists or would result therefrom; (c)
Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds
$10,000,000, in aggregate; and (d) any payment received by a Loan Party for a return is promptly
deposited to a DACA Deposit Account or a Dominion Account.
8.3.3Acquisition, Sale and Maintenance. With respect to Inventory that has been
included in the calculation of the U.S. Borrowing Base or Canadian Borrowing Base, no Loan Party
shall acquire or accept any such Inventory on consignment or approval and the Loan Parties shall take
all commercially reasonable steps to assure that all Inventory is produced in accordance with applicable
Law, including the FLSA; except in any such case where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect. The Loan Parties shall use, store and maintain all
Inventory with reasonable care and caution, in accordance with historical practices and in conformity in
all material respects with all applicable Law, and shall make current rent payments (within applicable
grace periods provided for in leases) at all locations where any ABL Priority Collateral is located; except
in any such case where the failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
8.4[Intentionally Omitted].
8.5Administration of Deposit Accounts. Schedule 8.5 sets forth all lockbox arrangements
and Deposit Accounts (including Dominion Accounts) maintained by the Loan Parties in the United
States and Canada as of the First Amendment Effective Date. Each Loan Party shall take all
commercially reasonable actions necessary to establish Agent’s control of each such Deposit Account
(other than Excluded Deposit Accounts) by causing the related deposit account bank to enter into a
Deposit Account Control Agreement; it being understood that, with respect to any Deposit Account
which does not at any time comply with the foregoing requirements specified in this sentence (other than
those required to be delivered on the First Amendment Effective Date), the applicable Borrower shall
provide notice of the same to Agent, and no funds contained therein shall be treated as either Canadian
Designated Cash Amount or U.S. Designated Cash Amount for purposes of this Agreement and the
Loan Party Agent shall within thirty (30) days, at Agent’s request and in coordination with Agent, cause
replacement arrangements to be implemented with respect to the applicable accounts which are
reasonably satisfactory to Agent. The sole account holder of each Deposit Account shall be a single
Loan Party and the Loan Parties shall not allow any other Person (other than Agent and, subject to the
Intercreditor Agreement, the agent specified therein) to have control (as contemplated by the UCC and
the PPSA) over a DACA Deposit Account or any property deposited therein. Each Loan Party shall
promptly notify Agent of any opening or closing of a Deposit Account in the United States or Canada, as
applicable, and, concurrently with the opening thereof, shall ensure such account (other than accounts
excluded from the operation of this paragraph above) is subject to a fully executed Deposit Account
Control Agreement, an original copy of which has been delivered to Agent.
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8.6General Provisions.
8.6.1Location of Collateral. All material amounts of tangible items of ABL Priority
Collateral, other than Inventory in transit, shall at all times be kept by the Loan Parties at the Borrowers’
business locations set forth in Schedule 8.6.1, except that the Loan Parties may (a) make sales or other
dispositions of Collateral in the ordinary course of business; (b) in the case of any U.S. Facility Loan
Party, move Collateral to another location in the continental United States (so long as notice of such
move is provided to Agent concurrently with delivery of the applicable financial information required
pursuant to Sections 10.1.2(a), (b) or (c), as applicable) or Canada (upon thirty (30) days’ (or such lesser
time as Agent shall agree in writing) prior written notice to Agent), so long as all actions shall have been
taken prior to such move to ensure that Agent has a perfected first priority Lien upon all the ABL Priority
Collateral and (c) in the case of a Canadian Domiciled Loan Party, move Collateral to another location in
Canada (upon thirty (30) days’ (or such lesser time as Agent shall agree in writing) prior written notice to
Agent) or the United States (so long as notice of such move is provided to Agent concurrently with
delivery of the applicable financial information required pursuant to Sections 10.1.2(a), (b) or (c), as
applicable), so long as all actions shall have been taken prior to such move to ensure that Agent has a
perfected first priority security interest in and Lien upon all the ABL Priority Collateral, provided,
however, that with respect to the foregoing clauses (b) and (c), if such Collateral is to be in the possession
of a third party at a location not set forth on Schedule 8.6.1, the applicable Loan Party having rights in
such Collateral shall use commercially reasonable efforts to obtain a Collateral Access Agreement with
respect thereto.
8.6.2Insurance of Collateral; Condemnation Proceeds.
(a)(1) Each Loan Party shall maintain insurance with respect to the Collateral, covering
casualty, hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and
with insurers (with a Best’s Financial Strength Rating of at least A+, unless otherwise approved by
Agent) consistent with past practices. Proceeds under each policy in excess of $10,000,000 per claim, to
the extent arising out of the ABL Priority Collateral, shall be payable to Agent (for application by Agent
(i) in accordance with Section 5.5 or 5.6, if applicable, (ii) if a Default has occurred and is continuing, to
payment of the Revolver Loans of the applicable Borrower or (iii) so long as no Default or Event of
Default has occurred and is continuing, for payment to Loan Party Agent). (2) From time to time upon
request, Loan Party Agent shall deliver to Agent the originals or certified copies of its insurance
policies. Unless Agent shall agree otherwise, each policy shall include satisfactory endorsements (i)
showing Agent and its successors as lender’s loss payee, as its interests may appear; (ii) requiring at
least thirty (30) days prior written notice to Agent in the event of cancellation of the policy for any
reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by
any act or neglect of any Loan Party or the owner of the property, nor by the occupation of the premises
for purposes more hazardous than are permitted by the policy. If any Loan Party fails to provide and
pay for any insurance, Agent may in consultation with the Loan Party Agent, but shall not be required
to, procure the insurance and charge the Loan Parties therefor. Loan Party Agent agrees to deliver to
Agent, promptly as rendered, copies of all material reports made to insurance companies. While no
Event of Default exists, the Loan Parties may settle, adjust or compromise any insurance claim relating
to the ABL Priority Collateral, as long as the proceeds in excess of $10,000,000 per claim are delivered
to Agent (for application by Agent as specified in the first sentence of this clause (a)(1)). If an Event of
Default exists, only Agent shall be authorized to settle, adjust and compromise claims in excess of
$500,000 in the aggregate related to the ABL Priority Collateral.
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(b)Any proceeds of insurance (other than proceeds from workers’ compensation or D&O
insurance) and any awards arising from condemnation of, in each case, any ABL Priority Collateral, or
any proceeds or awards that relate to Inventory included in the ABL Priority Collateral, in any such case
in excess of $10,000,000 per claim, to the extent received by any Loan Party, shall be paid to Agent (for
application by Agent as specified in the first sentence of the foregoing clause (a)(1)).
8.6.3Protection of Collateral. All expenses of protecting, storing, warehousing,
insuring, handling, maintaining and shipping any Collateral of a Loan Party Group, all Taxes payable
with respect to any Collateral of a Loan Party Group (including any sale thereof), and all other payments
required to be made by Agent to any Person to realize upon any Collateral of a Loan Party Group, shall
be borne and paid by the Loan Parties of such Loan Party Group. Agent shall not be liable or responsible
in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable
care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value
thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person
whatsoever, but the same shall be at the Loan Parties’ sole risk.
8.6.4Defense of Title to Collateral. Each Loan Party shall at all times defend in a
manner consistent with past practices its title to any material Collateral and Agent’s Liens therein against
all Persons, claims and demands whatsoever, except Permitted Liens.
8.7Power of Attorney. Each Loan Party hereby irrevocably constitutes and appoints Agent
(and all Persons designated by Agent) as such Loan Party’s true and lawful attorney (and agent-in-fact),
coupled with an interest, for the purposes and during the times provided in this Section. Upon Agent’s
reasonable request, each Mexican Guarantor shall execute and deliver any instrument, document or
agreement that Agent may reasonably request to effect such appointment. Agent, or Agent’s designee,
may, without notice and in either its or a Loan Party’s name, but at the cost and expense of the Loan
Parties within such Loan Party’s Loan Party Group:
(a)Endorse a Loan Party’s name on any Payment Item or other proceeds of Collateral
(including proceeds of insurance) that come into Agent’s possession or control; and
(b)After an Event of Default has occurred and is continuing, (i) notify any Account Debtors
of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or
otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust,
modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings
brought to collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon
such terms, for such amounts and at such times as Agent deems advisable; (iv) collect, liquidate and
receive balances in DACA Deposit Accounts or investment accounts, and take control, in any manner,
of proceeds of Collateral; (v) prepare, file and sign a Loan Party’s name to a proof of claim or other
document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or
similar document; (vi) receive, open and dispose of mail addressed to a Loan Party, and notify postal
authorities to deliver any such mail to an address designated by Agent; (vii) endorse any Chattel Paper,
Document, Instrument, bill of lading, or other document or agreement relating to any Accounts,
Inventory or other Collateral; (viii) use a Loan Party’s stationery and sign its name to verifications of
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Accounts and notices to Account Debtors; (ix) use information contained in any data processing,
electronic or information systems relating to Collateral; (x) make and adjust claims under insurance
policies; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of
credit, banker’s acceptance or other instrument constituting Collateral for which a Loan Party is a
beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill any Loan Party’s
obligations under the Loan Documents.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1General Representations and Warranties. To induce Agent and Lenders to enter into
this Agreement and to make available the Commitments, Loans and Letters of Credit, each Loan Party
hereby jointly and severally with the other Loan Parties represents and warrants that:
9.1.1Organization and Qualification. Each Loan Party and each of the Restricted
Subsidiaries is duly organized, validly existing and in good standing (or equivalent) under the laws of the
jurisdiction of its organization, except, other than Holdings or any Borrower, where failure to be so could
not reasonably be expected to result in a Material Adverse Effect. Each Loan Party and each of the
Restricted Subsidiaries is duly qualified, authorized to do business and in good standing as a foreign or
extra provincial, as the case may be, corporation, limited liability company, exempted company or other
entity in each jurisdiction, except where failure to be so qualified, authorized or in good standing could
not reasonably be expected to result in a Material Adverse Effect. The information included in the
Beneficial Ownership Certification most recently provided to Agent and each Lender is true and
complete in all respects.
9.1.2Power and Authority. Each Loan Party is duly authorized to execute, deliver and
perform the Loan Documents to which it is a party. The execution, delivery and performance by each
Loan Party of the Loan Documents to which it is a party have been duly authorized by all necessary
corporate (or equivalent) action of such Loan Party, and do not (a) require any consent or approval of any
holders of Equity Interests of such Loan Party or any Governmental Authority, in each case, other than
those already obtained; (b) contravene the Organization Documents of such Loan Party; (c) violate or
cause a default under any material applicable Law binding on such Loan Party or Material Contract of
such Loan Party, except, with respect to Material Contracts, which could not reasonably be expected to
result in a Material Adverse Effect; (d) require any registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are in full force and effect,
(ii) filings necessary to perfect Liens created by the Loan Documents and (iii) consents, approvals,
registrations, filings, permits or actions the failure to obtain or perform which could not reasonably be
expected to result in a Material Adverse Effect; or (e) result in or require the imposition of any Lien
(other than Permitted Liens) on any asset or property of any Loan Party or Restricted Subsidiary.
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9.1.3Enforceability. Each Loan Document is a legal, valid and binding obligation of
each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and
general principles of equity, regardless of whether considered in a proceeding in law or in equity.
9.1.4Corporate Names; Capital Structure. Schedule 9.1.4 shows, for Holdings and each
Restricted Subsidiary, its name, its jurisdiction of organization, its issued Equity Interests, the holders of
its Equity Interests, in each case, as of the First Amendment Effective Date.
9.1.5Locations. As of the First Amendment Effective Date, the chief executive offices
and other places of business of the Loan Parties are shown on Schedule 8.6.1.
9.1.6Title to Properties; Priority of Liens.
(a)Each Loan Party and each of the Restricted Subsidiaries has good and marketable title to
(or valid leasehold interests in) all of its Real Estate, and good title to, or rights in, all of its personal
tangible property, in each case with respect to such Real Estate and personal property which is material
to its business, including all property reflected in any financial statements delivered to Agent or the
Lenders, in each case free of Liens except Permitted Liens.
(b)[Reserved].
9.1.7Accounts and Inventory. (a) Agent may rely, in determining which Accounts are
Eligible Accounts, on all statements and representations made by or on behalf of the Borrowers with
respect thereto. All Accounts included in the calculation of Eligible Accounts in any Borrowing Base
Certificate are Eligible Accounts as of the date of such Borrowing Base Certificate. Borrowers warrant,
with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base
Certificate, that:
(i)it is genuine and in all respects what it purports to be, and is not evidenced by a
judgment;
(ii)it arises out of a completed, bona fide sale and delivery of goods or rendition of
services in the ordinary course of business, and substantially in accordance with any purchase
order, contract or other document relating thereto;
(iii)it is for a sum certain, maturing as stated in the invoice covering such sale or
rendition of services, a copy of which has been furnished or is available to Agent on request;
(iv)it is not subject to any offset, Lien (other than Permitted Liens), deduction,
ongoing defense, dispute or counterclaim, except as arising in the ordinary course of business or
otherwise disclosed to Agent; and it is absolutely owing by the Account Debtor, without
contingency in any respect;
(v)no purchase order, agreement, document or applicable Law restricts assignment of
the Account to Agent (regardless of whether, under the UCC or the PPSA, the restriction is
ineffective), and the applicable Borrower is the sole payee or remittance party shown on the
invoice;
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(vi)no extension, compromise, settlement, modification, credit, deduction or return
has been authorized with respect to the Account, except (i) discounts or allowances granted in
the ordinary course of business for prompt payment that are reflected on the face of the invoice
related thereto and in the reports submitted to Agent hereunder or (ii) other discounts or
allowances reflected in the Value of such Account; and
(vii)to the best of the applicable Borrower’s knowledge, (A) there are no facts or
circumstances that are reasonably likely to impair the enforceability or collectability of such
Account, (B) the Account Debtor had the capacity to contract when the Account arose, continues
to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or
subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business;
and (C) there are no proceedings or actions threatened or pending against any Account Debtor
that could reasonably be expected to have a material adverse effect on the Account Debtor’s
financial condition.
(b)Agent may rely, in determining which Inventory is Eligible Inventory, on all statements
and representations made by or on behalf of the Borrowers with respect thereto. All Inventory included
in the calculation of Eligible Inventory in any Borrowing Base Certificate is Eligible Inventory as of the
date of such Borrowing Base Certificate.
9.1.8Financial Statements; Solvency; Material Adverse Effect.
(a)The consolidated balance sheets, and related statements of income, cash flow and
shareholder’s equity, of Parent and its Subsidiaries that have been and are hereafter delivered to Agent
and Lenders, in each case, are and will be prepared in accordance with GAAP, and fairly present the
financial positions and results of operations of such Persons at the dates and for the periods indicated,
subject to year-end audit adjustments and the absence of footnotes in the case of statements prepared
other than at year-end. All projections delivered from time to time to Agent and Lenders by or on behalf
of the Loan Parties and Restricted Subsidiaries have been prepared in good faith, based on assumptions
believed by Holdings to be reasonable at the time delivered to Agent, in light of the circumstances at
such time.
(b)Since December 31, 2015, there has been no change in the condition, financial or
otherwise, of Holdings and its Restricted Subsidiaries, taken as a whole, that could reasonably be
expected to have a Material Adverse Effect.
(c)No financial statement delivered to Agent or Lenders by or on behalf of any of the Loan
Parties and the Restricted Subsidiaries at any time contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as of the time when made or
delivered.
(d)After giving effect to the Transactions, on the Third Restatement Date, the Canadian
Borrower and its consolidated Restricted Subsidiaries and the U.S. Borrower and its consolidated
Restricted Subsidiaries, in each case taken as a whole, are Solvent.
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9.1.9Taxes. Except to the extent it could reasonably be expected to not have a Material
Adverse Effect, Holdings and each Restricted Subsidiary has timely filed all federal and state income tax
returns, and all local and provincial income tax returns and other reports that it is required by law to file,
and has timely paid, or made provision for the payment of, all federal and state Taxes upon it and all local
and provincial and other Taxes upon it, and its income and its Properties that are due and payable, except
to the extent being Properly Contested.
9.1.10[Intentionally Omitted]
9.1.11Intellectual Property. Except as could not reasonably be expected to have a
Material Adverse Effect, each Loan Party and each of the Restricted Subsidiaries owns or has the lawful
right to use all Intellectual Property used, held for use or otherwise necessary in the conduct of its
business, without conflict with any rights of others. No Intellectual Property owned or used by a Loan
Party or any Restricted Subsidiary that is material to the operations or business of any Loan Party has
been adjudged invalid or unenforceable by a court of competent jurisdiction or applicable intellectual
property registry or been cancelled, in whole or in part, except where such judgment, decree, ruling or
cancellation could not reasonably be expected to have a Material Adverse Effect. There is no pending or,
to any Loan Party’s knowledge, threatened Intellectual Property Claim with respect to any Loan Party,
any Restricted Subsidiary or any of their property (including any Intellectual Property), and the operation
of the businesses of each Loan Party and Restricted Subsidiary does not infringe upon, misappropriate,
dilute or otherwise violate the proprietary rights of any third party, except as could not reasonably be
expected to have a Material Adverse Effect. All material U.S. Intellectual Property owned, used, held for
use or licensed by, or otherwise subject to any interests of, any Loan Party or Restricted Subsidiary on the
First Amendment Effective Date is shown on Schedule 9.1.11.
9.1.12Governmental Approvals. Each Loan Party and each of the Restricted Subsidiaries
has, is in compliance with, and is in good standing with respect to, all Governmental Approvals necessary
to conduct its business and to own, lease and operate its Properties, except as could not reasonably be
expected to have a Material Adverse Effect. All necessary import, export or other licenses, permits or
certificates for the import or handling of any goods or other Collateral have been procured and are in
effect, and the Loan Parties and Restricted Subsidiaries have complied with all foreign and domestic laws
with respect to the shipment and importation of any goods or Collateral, except where such
noncompliance could not reasonably be expected to have a Material Adverse Effect.
9.1.13Compliance with Laws. Each Loan Party and each of the Restricted Subsidiaries
has duly complied, and its properties and business operations are in compliance, in each case in all
respects, with all applicable Laws (including Environmental Laws and with respect to Environmental
Permits), except where noncompliance could not reasonably be expected to have a Material Adverse
Effect. There have been no citations, notices or orders relating to noncompliance issued to any Loan
Party or Restricted Subsidiary under any applicable Law, except where such noncompliance would not
reasonably be expected to have a Material Adverse Effect. No Inventory has been produced in violation
of the FLSA, except where such violation could not reasonably be expected to have a Material Adverse
Effect.
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9.1.14Compliance with Environmental Laws. Except as disclosed on Schedule 9.1.14 or
would not reasonably be expected to have a Material Adverse Effect, (i) no Loan Party’s or Restricted
Subsidiary’s present or, to its knowledge, former operations, Real Estate or other properties are subject to
any federal, state, provincial, territorial or local investigation to determine whether any remedial action is
required under Environmental Law to address any environmental pollution, Hazardous Material or
environmental clean-up, (ii) no Hazardous Materials are present and there has been no Release or threat
of Release of Hazardous Materials at any current facility, or to the knowledge of any Loan Party or
Restricted Subsidiary, at any former facility, in a manner or condition that would reasonably be expected
to result in Environmental Liability, (iii) no Loan Party or Restricted Subsidiary has received any
Environmental Claim and (iv) no Loan Party or Restricted Subsidiary knows of any facts, conditions or
circumstances which would reasonably be expected to give rise to any Environmental Liability.
9.1.15Burdensome Contracts. No Loan Party or Restricted Subsidiary is a party or
subject to any contract, agreement or charter restriction that has resulted in or could reasonably be
expected to have a Material Adverse Effect. No Loan Party or Restricted Subsidiary is party or subject to
any Restrictive Agreement other than, (v) the Loan Documents, (w) the Permitted Secured Debt
Documents, (x) customary non-assignment provisions with respect to leases or licensing agreements
entered into by the Loan Parties or any of their Restricted Subsidiaries in the ordinary course of business,
(y) any restriction or encumbrance with respect to any asset of the Loan Parties or any of their Restricted
Subsidiaries imposed pursuant to an agreement which has been entered into for the sale or disposition of
such assets otherwise permitted under this Agreement, (z) customary provisions in joint venture
agreements and other similar agreements entered into in the ordinary course of business, (aa) customary
restrictions in connection with a Permitted Receivables Financing, if any, (bb) Restrictive Agreements
relating to Incremental Equivalent Debt otherwise permitted hereunder, (cc) agreements to which a
Foreign Subsidiary that is not a Loan Party is party to the extent that the restrictions or conditions therein
are imposed only on such Foreign Subsidiary and other Subsidiaries that are not Loan Parties and (dd)
Restrictive Agreements relating to Refinancing Indebtedness otherwise permitted hereunder. No
Restrictive Agreement prohibits the execution, delivery or performance of any Loan Document by a Loan
Party or Restricted Subsidiary.
9.1.16Litigation. Except as shown on Schedule 9.1.16, there are no proceedings or
investigations pending or, to any Loan Party’s knowledge, threatened against any Loan Party or
Restricted Subsidiary, or any of their businesses, operations, properties or conditions, that (a) relate to
any Loan Document or the Transactions; or (b) have resulted in or could reasonably be expected to have
a Material Adverse Effect. Except as shown on Schedule 9.1.16, no Loan Party has a commercial tort
claim (other than commercial tort claims for less than $10,000,000). No Loan Party or Restricted
Subsidiary is in default with respect to any order, injunction or judgment of any Governmental Authority
that could reasonably be expected to have a Material Adverse Effect.
9.1.17No Defaults. No event or circumstance has occurred or exists that constitutes a
Default or Event of Default. No Loan Party or Restricted Subsidiary is in default, and no event or
circumstance has occurred or exists that with the passage of time or giving of notice would constitute a
default by any Loan Party or Restricted Subsidiary, under any Material Contract that could reasonably be
expected to have a Material Adverse Effect.
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9.1.18ERISA.
(a)Except as could not reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect, each Pension Plan is in compliance with the applicable provisions of ERISA,
the Code and other federal or state Laws.
(b)There are no pending or, to the knowledge of any Loan Party, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan that could
reasonably be expected to have a Material Adverse Effect.
(c)(i) No ERISA Event has occurred and no Loan Party is aware of any fact, event or
circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to
any Pension Plan or Multiemployer Plan; (ii) no Pension Plan has any Unfunded Pension Liability as of
the Pension Plan’s most recent valuation date; (iii) neither any Loan Party nor any ERISA Affiliate has
incurred, or reasonably expects to incur any liability (and no event has occurred which, with the giving
of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; (iv) neither any Loan Party nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except with respect
to each of the foregoing clauses of this Section 9.1.18(c), as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(d)With respect to each scheme or arrangement related to retirement or pension obligations
mandated by a government other than the United States or Canada (a “Foreign Government Scheme or
Arrangement”) and with respect to each retirement or pension plan maintained or contributed to by
Holdings or any of its Restricted Subsidiaries that is not subject to United States or Canadian law (a
“Foreign Plan”):
(i)any employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices, except for any failure that
could not reasonably be expected to have a Material Adverse Effect;
(ii)the fair market value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the book reserve established for
any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for
the accrued benefit obligations, as of the Third Restatement Date, with respect to all current and
former participants in such Foreign Plan according to the actuarial assumptions and valuations
most recently used to account for such obligations in accordance with applicable generally
accepted accounting principles except for any underfunding that could not reasonably be
expected to have a Material Adverse Effect; and
(iii)each Foreign Plan required to be registered has been registered and has been
maintained in compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where required, in good
standing with applicable regulatory authorities, except as could not reasonably be expected to
have a Material Adverse Effect.
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(e)Except as could not reasonably be expected to result in a Material Adverse Effect in the
case of clauses (i), (ii) or (v), (i) the Canadian Domiciled Loan Parties are in compliance with the
requirements of the PBA with respect to each Canadian Pension Plan and in compliance with any FSCO
order directed specifically at a Canadian Pension Plan; (ii) except as disclosed on Schedule 9.1.18(e), no
Canadian Pension Plan has any Unfunded Pension Liability as of the First Amendment Effective Date
with respect to the Retirement Benefit Agreement between Cooper-Standard Automotive Canada Limited
and the National Automobile, Aerospace, Transportation and General Workers Union of Canada
(C.A.W.) Local 876 and as of the First Amendment Effective Date with respect to the Pension Plan for
Salaried Employees of Cooper-Standard Automotive Canada Limited; (iii) no fact or situation that may
reasonably be expected to result in a Material Adverse Effect exists in connection with any Canadian
Pension Plan; (iv) no Termination Event has occurred, except where prior written notice of such
Termination Event has been given to Agent in accordance with Section 10.2.16; (v) all contributions
required to be made by any Canadian Domiciled Loan Party or Subsidiary to any Canadian Pension Plan
have been made in a timely fashion in accordance with the terms of such Canadian Pension Plan and the
PBA; (vi) no Lien has arisen, choate or inchoate, in respect of any Canadian Domiciled Loan Party or
their property in connection with any Canadian Pension Plan (save for contribution amounts not yet due),
other than Permitted Liens and (vii) as of the First Amendment Effective Date the FSCO or the
Superintendent has not issued any notices of wind up in respect of any Canadian Pension Plan.
9.1.19Trade Relations. There exists no actual or, to the knowledge of any Loan Party,
threatened termination, limitation or modification of any business relationship between any Loan Party or
Restricted Subsidiary, on the one hand, and any customer or supplier, or any group of customers or
suppliers, on the other hand, which individually or in the aggregate could reasonably be expected to result
in a Material Adverse Effect. There exists no condition or circumstance that has materially impaired or
could reasonably be expected to materially impair the ability of any Loan Party or Restricted Subsidiary
to conduct its business at any time hereafter in substantially the same manner as conducted on the First
Amendment Effective Date.
9.1.20Labor Relations. Except as described on Schedule 9.1.20, on the First
Amendment Effective Date no Loan Party or Restricted Subsidiary is party to or bound by any collective
bargaining agreement, management agreement, consulting agreement or Multiemployer Plan. Except as
could not reasonably be expected to have a Material Adverse Effect, there are no material grievances,
unfair labor practices complaints or other disputes with any union or other organization of any Loan
Party’s or Restricted Subsidiary’s employees or consultants, or, to any Loan Party’s knowledge, any
asserted or to the knowledge of any Loan Party, threatened strikes, walkouts or work stoppages.
9.1.21Payable Practices. No Loan Party or Restricted Subsidiary has made any material
change in its historical accounts payable practices from those in effect on the First Amendment Effective
Date.
9.1.22Not a Regulated Entity. No Loan Party or Restricted Subsidiary is (a) an
“investment company” within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Federal Power Act, any public utilities code or any other applicable Law regarding
its authority to incur Indebtedness.
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9.1.23Margin Stock. No Loan Party or Restricted Subsidiary is engaged, principally or
as one of its important activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the FRB). No Loan proceeds or Letters of
Credit will be used to purchase or carry, or to reduce or refinance any Indebtedness incurred to purchase
or carry, any margin stock or for any related purpose governed by Regulations T, U or X of the FRB.
9.1.24Perfection, Etc.
(a)The Pledge and Security Agreement and the Canadian Security Agreements are effective
to create in favor of Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and security interest in, the Pledge and Security Agreement Collateral and Collateral, as applicable, and,
(i) when financing statements and other filings in appropriate form are filed in the offices specified on
Schedule 9.1.24, and (ii) upon the taking of possession or control by Agent of the Pledge and Security
Agreement Collateral and Collateral, as applicable, with respect to which a security interest may be
perfected only by possession or control (which possession or control shall be given to Agent to the
extent possession or control by Agent is required by the Pledge and Security Agreement or the Canadian
Security Agreements), the Liens created by the Pledge and Security Agreement and the Canadian
Security Agreements shall constitute fully perfected Liens on, and security interests in, all right, title and
interest of the grantors in the Pledge and Security Agreement Collateral and the Collateral to the extent
perfection is required in accordance with the terms of the Pledge and Security Agreement or the
Canadian Security Agreement (other than such Pledge and Security Agreement Collateral or Collateral
in which a security interest cannot be perfected under the UCC or the PPSA as in effect at the relevant
time in the relevant jurisdiction by the filing of a financing statement or possession or control by the
secured party), in each case subject to (i) no Liens other than Liens permitted under the Loan Documents
and (ii) the terms of the Intercreditor Agreement.
(b)The Liens created by each Intellectual Property Security Agreement constitute fully
perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in such
of the Intellectual Property as consists of Patents and Trademarks (each as defined in the Pledge and
Security Agreement) registered or applied for with the United States Patent and Trademark Office or
Copyrights (as defined in the Pledge and Security Agreement) registered or applied for with the United
States Copyright Office, as the case may be, in each case to the extent perfection is required in
accordance with the terms of the Pledge and Security Agreement and in each case subject to no Liens
other than Liens permitted under the Loan Documents.
(c)[Reserved].
(d)Each Security Document delivered pursuant to Section 10.1.11 creates, when delivered in
favor of Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security
interests in, all of the Loan Parties’ right, title and interest in and to the Collateral described thereunder,
and such Security Document constitutes fully perfected Liens on, and security interests in, all right, title
and interest of the Loan Parties in such Collateral (to the extent intended to be created thereby and
required to be perfected under the Loan Documents), in each case subject to no Liens other than the
Liens permitted under the Loan Documents.
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9.1.25OFAC; Sanctions. No Borrower or Subsidiary, nor to the knowledge of any
Borrower or Subsidiary, any director, officer, employee, agent, affiliate or representative thereof, is an
individual or entity currently the subject of any Sanctions. No Borrower or Subsidiary is located,
organized or resident in a Designated Jurisdiction. No part of the proceeds of any Loan shall, nor shall
any Letter of Credit, in any case, be used directly or indirectly in violation of any Anti-Terrorism Laws or
Sanctions.
9.1.26Affected Financial Institution. No Loan Party is an Affected Financial Institution
or Covered Entity.
9.1.27Anti-Corruption Laws. No Borrower or Subsidiary, nor to the knowledge of the
Borrower or any Subsidiary, any director, officer, employee, agent, controlled affiliate or representative
thereof has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any
provision of the Bribery Act 2010 of the United Kingdom; or (v) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment. Each Borrower and its Subsidiaries have
instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures
designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
9.2Complete Disclosure. None of the representations or warranties made by any Loan
Party in the Loan Documents as of the date such representations and warranties are made or deemed
made, and none of the statements contained in each exhibit, report, statement or certificate furnished by
or on behalf of any Loan Party in connection with the Loan Documents, contains any untrue statement
of a material fact or omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are made, taken as a whole, not
materially misleading in any material respect as of the time when made or delivered. There is no fact or
circumstance that any Loan Party has failed to disclose to Agent in writing that has resulted in or could
reasonably be expected to have a Material Adverse Effect.
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS
10.1Affirmative Covenants. As long as any Commitments or Obligations (other than
indemnity obligations that are not currently due and payable) are outstanding, each Loan Party, jointly
and severally with the other Loan Parties, agrees that it shall, and shall cause each Subsidiary to:
10.1.1Financial and Other Information. Keep adequate records and books of account
with respect to its business activities, in which proper entries are made in accordance with GAAP
reflecting all financial transactions; and to furnish to Agent (on behalf of the Lenders):
(a)as soon as available, but in any event within ninety (90) days after the end of each fiscal
year of Parent, a consolidated balance sheet of Parent and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, in each case with all consolidating information regarding Parent and its
Restricted Subsidiaries required to reflect the adjustments necessary to eliminate the accounts of any
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Unrestricted Subsidiaries from such consolidated financial statements (it being understood and agreed
that such requirement with respect to Unrestricted Subsidiaries may be satisfied in the form of a
reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto,
or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the
financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries of Parent), setting forth in
each case in comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and opinion of Ernst & Young
LLP or any other independent certified public accountant of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification, exception or explanatory paragraph or any
qualification, exception or explanatory paragraph as to the scope of such audit;
(b)for each month ending during any Financial Covenant Trigger Period or on the date of
occurrence of the trigger for any Financial Covenant Trigger Period, as soon as available, and in any
event within thirty (30) days after the end of any such month and within five (5) days after the
occurrence of the trigger for any Financial Covenant Trigger Period, unaudited balance sheets as of the
end of such month and the related statements of income for such month and for the portion of the fiscal
year then elapsed, on a consolidated basis (for Holdings and its Restricted Subsidiaries), in an internal
management reporting format, consistent with past practices, setting forth in comparative form
corresponding figures for the preceding fiscal year and certified by a Responsible Officer of Loan Party
Agent as being prepared in accordance with GAAP and fairly presenting the financial position and
results of operations for such month and period, subject to normal year-end adjustments and the absence
of footnotes;
(c)as soon as available, but in any event within forty-five (45) days after the end of each of
the first three (3) fiscal quarters of each fiscal year of Holdings, a consolidated balance sheet of Parent
and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
income or operations and cash flows for such fiscal quarter and for the portion of the fiscal year then
ended, in each case with all consolidating information regarding Parent and its Restricted Subsidiaries
required to reflect the adjustments necessary to eliminate the accounts of any Unrestricted Subsidiaries
from such consolidated financial statements (it being understood and agreed that such requirement with
respect to Unrestricted Subsidiaries may be satisfied in the form of a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, or in “Management’s Discussion
and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of
operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of Parent), setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Parent as fairly
presenting in all material respects the financial condition, results of operations and cash flows of
Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;
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(d)concurrently with delivery of financial statements under clauses (a) and (c) above (or
concurrently with delivery of financial statements under clause (b) above during a Financial Covenant
Trigger Period), and more frequently if requested by Agent while an Event of Default has occurred and
is continuing, a Compliance Certificate executed by a Responsible Officer of Holdings, which shall state
whether a Pricing/Fee Reduction Period is in effect and, if so, evidence in reasonable detail that the
Consolidated Total Debt Ratio is equal to or less than 3.50 to 1.00 for the most recently ended four fiscal
quarter period;
(e)not later than the earlier of seventy-five (75) days after the end of each fiscal year of the
Parent or thirty (30) days after the approval of the Board of Directors thereof, concurrently with delivery
of financial statements under clause (a) above, reasonably detailed forecasts prepared by management of
Holdings (including projected consolidated balance sheets, income statements, and EBITDA, cash flow
statements and Availability of the Borrowers and their Restricted Subsidiaries) on a quarterly basis for
the fiscal year following such fiscal year then ended;
(f)at Agent’s request (but in no event more frequently than once each calendar quarter, so
long as no Default or Event of Default has occurred and is continuing), a listing of each Loan Party’s
trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in
form reasonably satisfactory to Agent;
(g)promptly after the sending or filing thereof, copies of any final proxy statements,
financial statements or reports that Parent has generally made publicly available to its shareholders;
copies of any regular, periodic and special reports (including reports on Form 8-K and 10-Q) or
registration statements (other than registration statements on Form S-8) or prospectuses that any Loan
Party files with the SEC; and copies of any press releases or other statements made available by a Loan
Party to the public concerning material changes to or developments in the business of such Loan Party;
(h)at Agent’s request, after the filing thereof, copies of any annual information report or
return (including all actuarial reports and other schedules and attachments thereto), required to be filed
with a Governmental Authority, or the filing of any request for funding relief with the Superintendent in
connection with each Pension Plan or any Canadian Pension Plan; promptly upon receipt, copies of any
notice, demand, inquiry or subpoena received in connection with any Plan or Canadian Pension Plan
from a Governmental Authority (including FSCO and the Superintendent) (other than routine inquiries
in the course of application for a favorable IRS determination letter); at Agent’s request, copies of any
annual return required to be filed with a Governmental Authority in connection with any other Plan or
Canadian Pension Plan;
(i)promptly, after receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC (or comparable agency in any applicable
non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency
regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(j)(i) promptly upon becoming aware of the occurrence of any ERISA Event (or Foreign
Plan Event) that, alone or together with any other ERISA Events (or Foreign Plan Events) that have
occurred, could reasonably be expected to result in liability of Holdings or its Restricted Subsidiaries in
an amount that would reasonably be expected to have a Material Adverse Effect, a written notice
specifying the nature thereof, what action Holdings or any of its Restricted Subsidiaries has taken, are
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taking or propose to take with respect thereto and, when known, any action taken or threatened by the
IRS, the Department of Labor, the PBGC or any other Governmental Authority or Multiemployer Plan
sponsor with respect thereto; and (ii) with reasonable promptness, upon request by Agent, copies of (1)
each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower or
any of its Restricted Subsidiaries with the IRS with respect to each Pension Plan; (2) the most recent
actuarial valuation report for each Pension Plan that is sponsored or contributed to by Holdings or its
Restricted Subsidiaries; (3) all notices received by Holdings or its Restricted Subsidiaries from a
Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event or Foreign
Plan Event; and (4) such other documents or governmental reports or filings relating to any Person Plan,
Multiemployer Plan or Foreign Plan as Agent shall reasonably request;
(k)together with the delivery of each Compliance Certificate pursuant to Section 10.1.1(d), a
report supplementing Schedules 9.1.4, 9.1.6(b) and 9.1.11;
(l)as soon as practicable and in any event by the last day of each fiscal year, a report in form
reasonably satisfactory to Agent outlining all material insurance coverage maintained as of the date of
such report by Holdings and its Subsidiaries and all material insurance coverage planned to be
maintained by Holdings and its Subsidiaries in the immediately succeeding fiscal year;
(m)such other reports and information (financial or otherwise) as Agent may reasonably
request from time to time in connection with any Collateral or any Loan Party’s or Restricted
Subsidiary’s financial condition or business; and
(n)upon receipt or delivery thereof by or to Holdings or any Restricted Subsidiary, any
notice of “Default” or “Event of Default” (under and as defined in the Permitted Secured Debt
Documents or the Secured Incremental Equivalent Debt Documents) and, without duplication of any
report required to be provided hereunder, each material report required to be provided pursuant to the
Permitted Secured Debt Documents or the Secured Incremental Equivalent Debt Documents and, upon
execution thereof, any waiver, amendment or other modification to the Permitted Secured Debt
Documents or the Secured Incremental Equivalent Debt Documents.
Notwithstanding the foregoing, (i) in the event that Holdings delivers to Agent an Annual Report for the
Parent on Form 10-K for such fiscal year, as filed with the SEC, within 90 days after the end of such
fiscal year, such Form 10-K shall satisfy all requirements of paragraph (a) of this Section 10.1.1 to the
extent that it contains the information required by such paragraph (a) and does not contain any “going
concern” or like qualification, exception or explanatory paragraph or qualification or any exception or
explanatory paragraph as to the scope of such audit and (ii) in the event that Holdings delivers to Agent
a Quarterly Report for the Parent on Form 10-Q for such fiscal quarter, as filed with the SEC, within 45
days after the end of such fiscal quarter, such Form 10-Q shall satisfy all requirements of paragraph (b)
of this Section 10.1.1 to the extent that it contains the information required by such paragraph (b); in
each case to the extent that information contained in such 10-K or 10-Q satisfies the requirements of
paragraph (a) or (b) of this Section 10.1.1, as the case may be.
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So long as (i) the Parent is a registrant for purposes of U.S. federal securities laws or (ii) the Parent or
any of its Restricted Subsidiaries has Indebtedness outstanding (other than the Facility Commitments
and the Obligations hereunder) with respect to which it must prepare financial statements in accordance
with Regulation S-X, in each case with respect to any fiscal period covered by or included in any
financial statements delivered by Holdings pursuant to Section 10.1.1(a) or (b), such financial
statements delivered by Holdings pursuant to Section 10.1.1(a) or (b) shall be in such form as shall meet
the requirements of Regulation S-X, and all other accounting rules and regulations of the SEC
promulgated thereunder, required of a registrant.
Holdings will be permitted to satisfy its obligations with respect to financial information relating to
Parent described in clauses (a) and (b) above by furnishing financial information relating to any Parent
Entity; provided that the same is accompanied by consolidating information that explains in reasonable
detail the differences between the information relating to any Parent Entity and any of its Subsidiaries
other than Holdings and its Subsidiaries, on the one hand, and the information relating to Holdings, the
other Loan Parties and the other Restricted Subsidiaries of Holdings on a standalone basis, on the other
hand.
Documents required to be delivered pursuant to this Section 10.1.1 may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such
documents, or provides a link thereto to any Parent Entity’s website on the internet at the website
address “cooperstandard.com”; or (ii) on which such documents are posted on Holdings’ behalf on an
internet or intranet website, if any, to which each Lender and Agent have access (whether a commercial,
third-party website or whether sponsored by Agent); provided that: (i) upon written request by Agent,
Holdings shall deliver paper copies of such documents to Agent for further distribution to each Lender
until a written request to cease delivering paper copies is given by Agent or such Lender and (ii)
Holdings shall notify (which may be facsimile or electronic mail) Agent of the posting of any such
documents and provide to Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Agent shall have no obligation to request the delivery of or to maintain or deliver to
Lenders paper copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by Holdings with any such request for delivery, and each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery and maintaining its copies of
such documents.
Holdings hereby acknowledges that (a) Agent will make available to the Lenders materials and/or
information provided by or on behalf of Holdings hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive
material non-public information with respect to the Parent or its Subsidiaries, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. Holdings hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders
and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which,
at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” Holdings shall be deemed to have authorized Agent, the
Lead Arrangers, and the Lenders to treat such Borrower Materials as not containing any material non-
public information (although it may be sensitive and proprietary) with respect to Holdings or its
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securities for purposes of United States federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as set forth in Section
14.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Side Information;” and (z) Agent and the Lead Arrangers
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only
for posting on a portion of the Platform not designated “Public Side Information.”
10.1.2Notices. Notify Agent in writing, promptly after a Responsible Officer of the Loan
Party’s obtaining knowledge thereof, of any of the following that affects any Loan Party or Restricted
Subsidiary:
(a)any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(b)the existence of any Default or Event of Default;
(c)the discharge of or any withdrawal or resignation by any of the Loan Parties’ independent
accountants and any material change in accounting policies or financial reporting practices;
(d)any (i) material breach by a plan sponsor of the terms of a Canadian Pension Plan, or (ii)
action or inaction of a plan sponsor or administrator, in each case, provided that it could reasonably be
expected to result in a Termination Event.
(e)any Casualty Event that affects, in aggregate, Collateral with a book value in excess of
the Dollar Equivalent of $6,000,000;
(f)without duplication of any notice required to be provided hereunder, each material notice
required to be provided pursuant to the Permitted Secured Debt Documents or the Secured Incremental
Equivalent Debt Documents;
(g)promptly upon any Loan Party obtaining knowledge of (i) the institution of any Adverse
Proceeding not previously disclosed in writing by Holdings to Agent, or (ii) any material development in
any Adverse Proceeding that, in the case of clause (i) could reasonably be expected to have a Material
Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of the Transactions, written
notice thereof together with such other information as may be reasonably available to Holdings to enable
Agent and its counsel to evaluate such matters;
(h)any rent disputes involving a Loan Party with respect to a location where any material
Collateral is located.
Each notice pursuant to this Section 10.1.2 shall be accompanied by a statement of a Responsible
Officer of Holdings setting forth details of the occurrence referred to therein and stating what action
Holdings has taken and proposes to take with respect thereto. Each notice pursuant to Section 10.1.2(b)
shall describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.
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10.1.3Landlord and Storage Agreements. Upon Agent’s commercially reasonable
request, provide Agent with copies of all existing agreements, and promptly after execution thereof
provide Agent with copies of all future agreements, in each case, between a Loan Party and/or a
Restricted Subsidiary and any landlord, warehouseman, processor, shipper, bailee or other Person that
owns any premises at which any material Collateral may be kept or that otherwise may possess or handle
any material Collateral.
10.1.4Compliance with Laws. Comply with all applicable Laws, including ERISA (and
analogous foreign legislation), Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws and laws
regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the
ownership of its Properties or conduct of its business, unless such failure to so comply (other than failure
to comply with Anti-Terrorism Laws) or to so maintain would not reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing, if any environmental Release
of Hazardous Materials occurs at, on, under or from any Real Estate of any Loan Party or Restricted
Subsidiary that could reasonably be expected to have a Material Adverse Effect, it shall, to the extent
required of it by Environmental Law, reasonably conduct investigation and remediation of such Release.
10.1.5Taxes. Pay and discharge all Taxes prior to the date on which they become
delinquent or penalties attach, unless such Taxes are being Properly Contested or where the failure to pay
could not reasonably be expected to have a Material Adverse Effect.
10.1.6Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 10.2.7, (b) take all reasonable action to maintain all material rights, privileges
(including its good standing), permits, licenses and franchises necessary or desirable in the normal
conduct of its business, and (c) maintain all of its material Intellectual Property, except, in each case
(other than the Loan Parties with respect to clause (a)), as would not have a Material Adverse Effect.
10.1.7Maintenance of Properties. Maintain, preserve and protect all of its assets or
property necessary in the operation of its business in good working order and condition, ordinary wear
and tear excepted and casualty or condemnation excepted, and make all necessary repairs thereto and
renewals and replacement thereof, in each case, except as would not reasonably be expected to have a
Material Adverse Effect.
10.1.8Insurance.
(a)Maintain with financially sound and reputable insurance companies, insurance with
respect to its property and business against loss or damage of the kinds customarily insured against by
Persons engaged in similar businesses (including business interruption insurance in amount customarily
maintained by similarly situated companies engaged in the same or similar business in the same or
similar locations), in each case in such amounts (giving effect to self-insurance), with such deductibles,
covering such risks and otherwise on such terms and conditions as shall be customary for such Persons.
Each such policy of insurance (other than worker’s compensation, directors and officers liability or other
insurance where endorsements, such Insurance Assignments or additions are not customarily available)
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shall (i) name Agent, on behalf of the Secured Parties as a lender’s loss payee thereunder as its interests
may appear and (ii) in the case of each casualty insurance policy, contain a loss payable clause or
endorsement, reasonably satisfactory in form and substance to Agent, that names Agent, on behalf of the
Secured Parties, as the first loss payee/mortgagee thereunder and provides for at least thirty days’ prior
written notice to Agent of any modification or cancellation of such policy, in each case, to the extent
acceptable to the insurer.
(b)[Reserved].
10.1.9Inspections; Appraisals.
(a)Permit Agent from time to time, subject to reasonable notice and during normal business
hours (except when an Event of Default exists), to visit and inspect the Properties of any Loan Party or
Restricted Subsidiary in the United States and Canada, including, without limitation, inspect, audit and
make extracts from any Loan Party’s or Restricted Subsidiary’s books and records, and discuss with its
officers, employees, agents, advisors and independent accountants such Loan Party’s or Restricted
Subsidiary’s business, financial condition, assets, prospects and results of operations. Neither Agent nor
any Lender shall have any duty to any Loan Party to make any inspection, nor to share any results of any
inspection, appraisal or report with any Loan Party (provided that, except when an Event of Default
exists, a representative of Loan Party Agent is given the opportunity to be present during any discussion
with any such agent, adviser or independent accountant). The Loan Parties acknowledge that all
inspections, appraisals and reports are prepared by Agent and Lenders for their purposes, and the Loan
Parties shall not be entitled to rely upon them.
(b)Reimburse Agent in accordance with Section 3.4 for all charges, costs and expenses of
Agent in connection with (i) examinations of any Loan Party’s books and records or any other financial
or Collateral matters as Agent deems appropriate, up to one (1) time (or, during any Audit Trigger
Period, two (2) times) per Loan Year; and (ii) appraisals of Inventory up to one (1) time (or, during any
Audit Trigger Period, two (2) times) per Loan Year; provided, however, that if an examination or
appraisal is initiated during an Event of Default, all charges, costs and expenses therefor shall be
reimbursed by the Loan Parties without regard to such limits; provided, further, that so long as (i) the
total outstanding Revolver Loans are $0 and (ii) the LC Obligations do not exceed an amount equal to
the Dollar Equivalent of $20,000,000, the Borrower may request an extension of such appraisal and the
reimbursement by the Loan Parties to the Administrative Agent of the same for a period of up to six (6)
months, which such extension may be granted by the Administrative Agent in its sole discretion.
Subject to and without limiting the foregoing, the Loan Parties specifically agree to pay Agent’s then
standard charges for each day that an employee of Agent or its Affiliates is engaged in any examination
activities, and shall pay the standard charges of Agent’s internal appraisal group. Subject to the
restrictions set forth in clause (a) above and this clause (b), Agent agrees, for the benefit of the Lenders,
to commence examinations as referenced in this Section 10.1.9 on at least an annual basis. In addition
to the foregoing, during an Event of Default, at its discretion, Agent shall be permitted to request
appraisals of Fixed Asset Priority Collateral up to two (2) times per Loan Year.
10.1.10Use of Proceeds. Use the proceeds of any Loans for working capital and
general corporate purposes of Holdings and its Subsidiaries, including acquisitions and investments and
payment of fees and expenses in connection therewith.
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10.1.11Covenant to Guarantee Obligations and Give Security.
(a)Upon the formation or acquisition of any new U.S. Subsidiary or Canadian Subsidiary of
Holdings, or any Subsidiary organized under the laws of a Specified Jurisdiction (other than an
Excluded Subsidiary) (provided, that each of (i) any redesignation resulting in an Unrestricted
Subsidiary becoming a Restricted Subsidiary and (ii) any Excluded Subsidiary ceasing to be an
Excluded Subsidiary but remaining a Restricted Subsidiary shall be deemed to constitute the acquisition
of a Restricted Subsidiary for all purposes of this Section 10.1.11), or upon the acquisition of any
personal property, including Intellectual Property (other than “Excluded Property” as defined in the
Pledge and Security Agreement) by any U.S. Subsidiary or Canadian Subsidiary, then Holdings shall, in
each case at Holdings’ expense:
(i)in connection with (x) the formation or acquisition of a U.S. Subsidiary, within
ninety (90) days after such formation or acquisition or such longer period as Agent may agree,
(A) cause each such Subsidiary that is not an Excluded Subsidiary to duly execute and deliver to
Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to
Agent, guaranteeing U.S. Facility Obligations, and (B) (if not already so delivered) deliver
certificates representing the Pledged Equity Interests of each such Subsidiary (other than any
Unrestricted Subsidiary) accompanied by undated stock powers or other appropriate instruments
of transfer executed in blank and instruments evidencing the Pledged Debt of such Subsidiary
indorsed in blank to Agent, together with, if requested by Agent, Pledge Supplements or other
pledge or security agreements with respect to the pledge of any Equity Interests or Indebtedness;
provided, that only 65% of voting Equity Interests of any Foreign Subsidiary that is a CFC (or
any U.S. Subsidiary described in clause (i) of the definition of Excluded Subsidiary) held by a
Loan Party shall be required to be pledged as Collateral for the U.S. Facility Obligations and no
such restriction shall apply to non-voting Equity Interests of such Subsidiaries; provided, further,
that notwithstanding anything to the contrary in this Agreement, no assets owned by any Foreign
Subsidiary that is a CFC (including stock owned by such Foreign Subsidiary in a U.S.
Subsidiary) or any Subsidiary described in clause (i) of the definition of Excluded Subsidiary
shall be required to be pledged as Collateral for the U.S. Facility Obligations, and (y) the
formation or acquisition of a Canadian Subsidiary, within ninety (90) days after such formation
or acquisition or such longer period as Agent may agree, cause such Subsidiary that is not an
Excluded Subsidiary to duly execute and deliver to Agent a guaranty supplement, in form and
substance reasonably satisfactory to Agent, guaranteeing the Canadian Facility Obligations, and
(z) the formation or acquisition of a Subsidiary organized under the laws of a Specified
Jurisdiction, within ninety (90) days after such formation or acquisition or such longer period as
Agent may agree, cause each such Subsidiary that is not an Excluded Subsidiary to become a
Specified Jurisdiction Guarantor by duly executing and delivering to Agent a guaranty or
guaranty supplement, in form and substance reasonably satisfactory to Agent, guaranteeing the
Obligations; provided, that notwithstanding anything to the contrary in this Agreement or any
other Loan Document, no assets owned by any Subsidiary organized under the laws of athe
Specified Jurisdiction Guarantor shall be required to be pledged as Collateral. For the avoidance
of doubt, and notwithstanding anything to the contrary in any other Loan Document, no entity
shall have any obligation to become a Specified Jurisdiction Guarantor prior to the date that is
ninety (90) days after the Third Amendment Effective Date or such longer period as Agent may
agree.
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(ii)(x) within ninety (90) days after such formation or acquisition of a U.S.
Subsidiary (or such longer period, as Agent may agree), furnish to Agent a description of the real
and personal properties of the U.S. Subsidiaries (other than Excluded Subsidiaries) in detail
reasonably satisfactory to Agent; provided that any such information provided pursuant to this
clause (ii)(x) shall consist solely of information of the type that would be set forth on Schedules
8.6.1, 9.1.4, 9.1.6(b) and 9.1.11, and (y) within ninety (90) days after such formation or
acquisition of a Canadian Subsidiary (or such longer period, as Agent may agree), furnish to
Agent a description of the personal properties of the Canadian Subsidiaries (other than Excluded
Subsidiaries) in detail reasonably satisfactory to Agent;
(iii)(x) within ninety (90) days after such formation or acquisition of a U.S.
Subsidiary, or such longer period, as Agent may agree, duly execute and deliver, and cause each
such U.S. Subsidiary that is not an Excluded Subsidiary to duly execute and deliver, to Agent
Pledge Supplements, security agreement supplements and other security agreements, as specified
by and in form and substance reasonably satisfactory to Agent (consistent with the Pledge and
Security Agreement and Intellectual Property Security Agreement (and Section 10.1.11)),
securing payment of all the U.S. Facility Obligations and constituting Liens on all such
properties, and (y) within ninety (90) days after such formation or acquisition of a Canadian
Subsidiary, or such longer period, as Agent may agree in its sole discretion, duly execute and
deliver, and cause each such Canadian Subsidiary that is not an Excluded Subsidiary to (aa) duly
execute and deliver, to Agent security agreements (including Canadian Security Agreements), as
specified by and in form and substance reasonably satisfactory to Agent, securing payment of all
the Canadian Facility Obligations, (bb) take whatever action may be necessary or advisable
(including the filing of PPSA financing statements) in the reasonable opinion of the Agent to vest
in Agent (or in any representative of Agent designated by it) valid, subsisting and perfected
Liens on the properties purported to be subject to the Canadian Security Agreements and other
security agreements delivered pursuant to this Section 10.1.11, in each case, to the extent
required under the Loan Documents and enforceable against all third parties in accordance with
their terms;
(iv)within ninety (90) days after such formation or acquisition of a U.S. Subsidiary,
or such longer period, as Agent may agree in its sole discretion, take, and cause such Subsidiary
that is not an Excluded Subsidiary to take, whatever action (including, without limitation, the
filing of UCC financing statements, the giving of notices and delivery of stock and membership
interest certificates) may be necessary or advisable in the reasonable opinion of Agent to vest in
Agent (or in any representative of Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the Pledge Supplements and security agreements delivered
pursuant to this Section 10.1.11, in each case, to the extent required under the Loan Documents
and subject to the perfection exceptions (as provided in the Pledge and Security Agreement),
enforceable against all third parties in accordance with their terms;
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(v)within thirty (30) days after the request of Agent, or such longer period as such
Agent may agree, deliver to such Agent, a signed copy of one or more opinions, addressed to
such Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable
to such Agent as to such matters as Agent may reasonably request;
(vi)notwithstanding anything to the contrary herein, if any Subsidiary shall provide a
guaranty or security interest as credit support for the First Lien Notes, Senior Secured Notes or
any other Fixed Asset Facility, such Subsidiary shall become a Guarantor pursuant to this
Section 10.1.11; and
(vii)at any time and from time to time, promptly execute and deliver any and all
further instruments and documents and take all such other action as Agent in its reasonable
judgment may deem necessary in obtaining the full benefits of, or in perfecting and preserving
the Liens of, such guaranties, Pledge Supplements and security agreements.
(b)Notwithstanding the foregoing, (i) Agent shall not take a security interest in assets of
anythe Specified Jurisdiction Guarantor or those assets as to which Agent shall determine, in its
reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or
other tax) are excessive in relation to the benefit to the applicable Lenders of the security afforded
thereby, (ii) neither Holdings nor any of its Subsidiaries shall be required to take any actions in order to
perfect the security interests granted to Agent for the ratable benefit of the Secured Parties under the law
of any jurisdiction outside the United States or Canada or with respect to any real property, and (iii) any
security interest or Lien on the assets of any U.S. Domiciled Loan Party, and any obligation of any U.S.
Domiciled Loan Party, shall be subject to the relevant requirements of the Intercreditor Agreement.
(c)Notwithstanding the joint and several liability envisaged in Section 5.10.1 above, subject
to the provisions of Section 5.10.2 above and notwithstanding the provisions on governing law
contained in Section 14.14, each Specified Jurisdiction Guarantor that is incorporated under the laws of
Romania (each a “Romanian Guarantor”), hereby irrevocably and unconditionally guarantees to
Agent and the Lenders the prompt payment and performance of all Obligations and agreements of each
other Loan Party under the Loan Documents, with this guarantee having the legal nature of a fideiusiune
within the meaning of the Article 2280 and the following of the Romanian Civil Code (the “Romanian
Suretyship”).
(d)Notwithstanding the foregoing, in respect any Romanian Guarantor, any guarantee
constituted or purportedly constituted by a Romanian Guarantor through the present Agreement and/or
other Loan Documents in relation to the Third Amendment Transactions (as defined in the Third
Amendment) and any related Refinancing, including the Romanian Suretyship constituted as per Section
10.1.11(c) above (collectively, the “Romanian Guarantee”), shall be subject to the following:
(i)It is expressly accepted that the Romanian Guarantee is to be constituted through
the present Agreement and/or other Loan Documents;
(ii)Each Romanian Guarantor’s cumulative liability under the Romanian Guarantee
is limited to any amount that would not cause the Romanian Guarantor to breach any of its legal
or statutory obligations, including the breach of the covenants undertaken under this Section
10.1.11(d);
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(iii)The Romanian Guarantee shall not be binding on any Romanian Guarantor to the
extent to which the constituting of the Romanian Guarantee would result in a breach of the
provisions of art. 272 para (1) let. (b) of the Romanian Companies Law no. 31/1990, subject to
the provisions of para (2) of the same article;
(iv)The Romanian Guarantee shall not be binding on a Romanian Guarantor to the
extent to which the constituting of the Romanian Guarantee would result in a breach of the
provisions of art. 272 para (1) let. (c) of the Romanian Companies Law no. 31/1990, as
corroborated by the provisions of art. 1444 of the same law;
(v)The Romanian Guarantee shall not include the assumption by any Romanian
Guarantor of any liability which would result in a misuse of such Romanian Guarantor’s assets
or credit and that would accordingly trigger the liability of any of a Romanian Guarantor’s
management, shareholders or any other person that contributed to the situation of insolvency, in
terms of art. 169 of the Romanian Insolvency Law no. 85/2014, as corroborated by art. 117 of
the same law; and
(vi)The Romanian Guarantee shall be limited in such an amount as is necessary to
ensure the compliance of each Romanian Guarantor with the Romanian legal requirements
relating to the legal concept of “corporate benefit”, as understood by the relevant Romanian
legislation, case law and doctrine. In this regard, each Romanian Guarantor will only constitute
the Romanian Guarantee in the event that such Romanian Guarantor will derive substantial direct
and indirect corporate benefit from the credit commitments issued under this Agreement, which
corporate benefit must have been expressly acknowledged by the competent corporate body or
bodies of such Romanian Guarantor, as applicable, prior to the entry of such Romanian
Guarantor into this Agreement.
10.1.12Licenses. Keep each material License necessary to make, use or sell any
Collateral (including the manufacture, distribution or disposition of Inventory) in full force and effect
(other than any forfeiture, abandonment or dedication to the public taken in the ordinary course of
business).
10.1.13Post-Closing Matters. Holdings shall, and shall cause each of its Restricted
Subsidiaries to, satisfy the requirements set forth on Schedule 10.1.13 on or before the date thereon
specified for such requirement, in each case as such date may be extended by Agent in its sole discretion,
so long as Holdings is working diligently in good faith to complete, or cause its Restricted Subsidiaries to
complete, the applicable requirement as determined by Agent in its sole discretion.
10.2Negative Covenants. As long as any Commitments or Obligations (other than indemnity
obligations that are not currently due and payable) are outstanding, each Covenant Party jointly and
severally with the other Covenant Parties hereby agrees not to, or to permit any Restricted Subsidiary to,
and solely with respect to Sections 10.2.1 and 10.2.4, Holdings agrees not to:
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10.2.1Permitted Liens. (a) Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether owned on the Third Restatement Date or thereafter acquired
(except Permitted Liens) (each, a “Subject Lien”) that secures obligations under any Indebtedness on any
asset or property of Holdings or any Loan Party, unless:
(i)in the case of Subject Liens on any Collateral, any Subject Lien if such Subject
Lien is a Permitted Lien; and
(ii)in the case of any other asset or property any Subject Lien if (i) the applicable
Obligations are equally and ratably secured with (or on a senior basis to, in the case such Subject
Lien secures any Junior Indebtedness) the obligations secured by such Subject Lien or (ii) such
Subject Lien is a Permitted Lien.
(b)Any Lien created for the benefit of the Secured Parties pursuant to the preceding clause
(ii) shall provide by its terms that such Lien shall be automatically and unconditionally be released and
discharged upon the release and discharge of the Subject Lien that gave rise to the obligation to so
secure the applicable Obligations.
10.2.2Permitted Indebtedness. (a) Directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock and Holdings will not permit
any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that
Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in
each case if the Fixed Asset Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries on a
consolidated basis for the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional Indebtedness is
Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00
determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been
issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of
such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including
Acquired Indebtedness) that may be Incurred and Disqualified Stock or Preferred Stock that may be
issued pursuant to the foregoing by Restricted Subsidiaries that are U.S. Domiciled Loan Parties shall not
exceed the greater of (x) $130,000,000105,000,000 and (y) 5.050.0% of Consolidated Total AssetsLTM
EBITDA at the time of Incurrence, at any one time outstanding.
(b)In addition, the following shall be permitted:
(i)the Incurrence by Holdings or its Restricted Subsidiaries (including for the
avoidance of doubt, any Wholly-Owned Restricted Subsidiary that is a Foreign Subsidiary
designated under Section 2.18 of the term loan credit agreement governing the Fixed Asset
Facility as such agreement is in effect on the First Amendment Effective Date (or any
comparable section of any other Fixed Asset Facility)) of (1) the Obligations under this
Agreement and the other Loan Documents, (2) Indebtedness in respect of the Fixed Asset
Facility described in the definition thereof in an aggregate principal amount not to exceed at any
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one time outstanding $580,000,000 plus the amount of any payment-in-kind (PIK) interest
payments with respect to the First Lien Notes1,100,000,000 and (3) additional Indebtedness
under the Fixed Asset Facility up to an aggregate principal amount of Indebtedness outstanding
in reliance of this subclause (3) not to exceed the sum of (i) the maximum positive amount of
Indebtedness at such time that could be Incurred without causing the Consolidated Senior
Secured Net Debt Ratio to exceed 2.255.00 to 1.00 (in each case, on a pro forma basis, after
giving effect to (x) any New Term Loans or New Revolving Facility issued pursuant to Section
2.17 of the term loan credit agreement governing the Fixed Asset Facility Incurred on or prior to
the date of determination as such agreement is in effect on the First Amendment Effective Date
(or any comparable section of any other Fixed Asset Facility), (y) any increased Loans (as
defined in the term loan credit agreement governing the Fixed Asset Facility as such agreement
is in effect on the First Amendment Effective Date (or any comparable section of any other Fixed
Asset Facility)) Incurred on or prior to the date of determination, or (z) any Incremental
Equivalent Debt Incurred on or prior to the date of determination, and, in each case, the use of
the proceeds therefrom, but excluding any amounts Incurred simultaneously pursuant to the
immediately following clause (ii) and, in the case of an increase to a New Revolving Facility,
assuming that the amount of such increase is fully drawn), (ii) $400,000,000 and (iii) the
aggregate principal amount of all voluntary prepayments (or voluntary redemptions) after the
Third Restatement Date of (a) Term Loans (or notes issued under an indenture for the Fixed
Asset Facility) and New Term Loans prior to such date and (including pursuant to a Dutch
Auction pursuant to Section 2.05(c) of the term loan credit agreement governing the Fixed Asset
Facility as such agreement is in effect on the First Amendment Effective Date (or any
comparable section of any other Fixed Asset Facility)) and (b) loans under any New Revolving
Facility and loans under this Agreement in each case solely to the extent accompanied by a
dollar-for-dollar permanent reduction of New Revolving Commitments or commitments under
this Agreement, as applicable, prior to such date, in each case for this clause (iii) other than to the
extent any such prepayment is funded from the proceeds of long-term Indebtedness (the sum of
clause (b)(i)(3), the “Maximum Incremental Amount”);
(ii)Contingent Obligations existing on the First Amendment Effective Date and listed
on Schedule 1.1(b);
(iii)Indebtedness existing on the First Amendment Effective Date and listed on
Schedule 10.2.2;
(iv)Indebtedness (including, without limitation, Capitalized Lease Obligations and
mortgage financings as purchase money obligations) Incurred by Holdings or any of its
Restricted Subsidiaries, Disqualified Stock issued by Holdings or any of its Restricted
Subsidiaries and Preferred Stock issued by any Restricted Subsidiaries of Holdings to finance all
or any part of the purchase, lease, construction, installation, replacement, repair or improvement
of property (real or personal), plant or equipment or other fixed or capital assets used or useful in
the business of Holdings or its Restricted Subsidiaries or in a Similar Business (whether through
the direct purchase of assets or the Capital Stock of any Person owning such assets) in an
aggregate principal amount or liquidation preference, including all Indebtedness Incurred and
Disqualified Stock or Preferred Stock issued to renew, refund, refinance, replace, defease or
discharge any Indebtedness Incurred and Disqualified Stock or Preferred Stock issued pursuant
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to this clause (iv), not to exceed at any one time outstanding the greater of (x)
$100,000,000105,000,000 and (y) 3.7550.0% of Consolidated Total AssetsLTM EBITDA at the
time of Incurrence;
(v)Indebtedness Incurred by Holdings or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances,
bank guarantees, warehouse receipts or similar facilities entered into, or relating to obligations or
liabilities incurred, in the ordinary course of business, including without limitation letters of
credit in respect of workers’ compensation claims, performance, completion or surety bonds,
health, disability or other employee benefits (whether current or former) or property, casualty or
liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type
obligations regarding workers’ compensation claims, performance, completion or surety bonds,
health, disability or other employee benefits or property, casualty or liability insurance or self-
insurance; provided, however, that upon the drawing of such letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 30 days following such drawing or
incurrence;
(vi)Indebtedness arising from agreements of Holdings or any of its Restricted
Subsidiaries related to indemnification, adjustment of purchase price, earn out or similar
obligations, in each case, Incurred or assumed in connection with the acquisition or disposition
of any business, assets or a Subsidiary of Holdings not exceeding the proceeds of such
disposition, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(vii)Indebtedness of Holdings to a Restricted Subsidiary; provided that (x) such
Indebtedness owing to a Restricted Subsidiary that is not a U.S. Domiciled Loan Party, excluding
any Indebtedness in respect of accounts payable incurred in connection with goods and services
rendered in the ordinary course of business (and not in connection with the borrowing of money),
is expressly subordinated in right of payment to the Obligations and (y) any subsequent issuance
or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness
(except to Holdings or another Restricted Subsidiary or any pledge of such Indebtedness
constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be
an Incurrence of such Indebtedness not permitted by this clause (vii);
(viii)shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued
to Holdings or another Restricted Subsidiary; provided that any subsequent issuance or transfer
of any Capital Stock or any other event that results in any Restricted Subsidiary that holds such
shares of Preferred Stock or Disqualified Stock of another Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock
(except to Holdings or another Restricted Subsidiary) shall be deemed, in each case, to be an
issuance of shares of Preferred Stock not permitted by this clause (viii);
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(ix)Indebtedness of a Restricted Subsidiary to Holdings or another Restricted
Subsidiary; provided that (x) if a Guarantor Incurs such Indebtedness to a Restricted Subsidiary
that is not a Guarantor, excluding any Indebtedness in respect of accounts payable incurred in
connection with goods and services rendered in the ordinary course of business (and not in
connection with the borrowing of money), such Indebtedness is unsecured and subordinated in
right of payment to the Guarantee of such Guarantor and (y) any subsequent issuance or transfer
of any Capital Stock or any other event that results in any Restricted Subsidiary lending such
Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to Holdings or another Restricted Subsidiary or any pledge of such
Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in
each case, to be an Incurrence of such Indebtedness not permitted by this clause (ix);
(x)Hedging Obligations that are Incurred in the ordinary course of business (and not
for speculative purposes);
(xi)obligations (including reimbursement obligations with respect to letters of credit
and bank guarantees) in respect of performance, bid, appeal and surety bonds, bankers’
acceptance facilities and completion guarantees, customs, VAT or other tax guarantees and
similar obligations provided by Holdings or any Restricted Subsidiary or obligations in respect of
letters of credit, bank guarantees or similar instruments related thereto, in each case in the
ordinary course of business;
(xii)(a) Indebtedness or Disqualified Stock of Holdings or any Restricted Subsidiary
of Holdings and Preferred Stock of any Restricted Subsidiary of Holdings in an aggregate
principal amount or liquidation preference up to 100.0% of the net cash proceeds received by
Holdings since immediately after April 4, 2014 from the issue or sale of Equity Interests of
Holdings or cash contributed to the capital of Holdings or any Parent Entity (to the extent the net
cash proceeds are contributed to Holdings) (in each case, other than Excluded Contributions or
proceeds of Disqualified Stock or proceeds of Designated Preferred Stock or sales of Equity
Interests to Holdings or any of its Subsidiaries) as determined in accordance with Section
10.2.3(a)(3)(B) and (C) to the extent such net cash proceeds or cash have not been applied
pursuant to such clauses to make Restricted Payments or to make Investments, payments or
exchanges pursuant to Section 10.2.3(b) or to make Permitted Investments (other than Permitted
Investments specified in clauses (1), (2) and (3) of the definition thereof) and (b) Indebtedness or
Disqualified Stock of Holdings or any Restricted Subsidiary of Holdings and Preferred Stock of
any Restricted Subsidiary of Holdings in an aggregate principal amount or liquidation preference
that, when aggregated with the principal amount or liquidation preference of all other
Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to
this clause (xii)(b), does not exceed at any one time outstanding the greater of (x)
$155,000,000175,000,000 and (y) 6.075.0% of Consolidated Total AssetsLTM EBITDA at the
time of any incurrence pursuant to this clause (xii)(b) (it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred pursuant to this clause (xii)(b) shall cease to be
deemed incurred or outstanding for purposes of this clause (xii)(b) but shall be deemed incurred
pursuant to the first paragraph of this covenant from and after the first date on which Holdings or
such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or
Preferred Stock under Section 10.2.2(a));
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(xiii)any Guarantee by Holdings or a Restricted Subsidiary of Indebtedness or other
obligations of Holdings or any of its Restricted Subsidiaries so long as the Incurrence of such
Indebtedness or other obligations by Holdings or such Restricted Subsidiary is permitted
hereunder; provided that if such Indebtedness is by its express terms subordinated in right of
payment to the Obligations, any such Guarantee of any of the Guarantor with respect to such
Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee of any of
the Obligations hereunder substantially to the same extent as such Indebtedness is subordinated
to such Obligations;
(xiv)the Incurrence or issuance by Holdings or any of its Restricted Subsidiaries of
Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary of Holdings that
serves to Refinance any Indebtedness, Disqualified Stock or Preferred Stock Incurred as
permitted under Section 10.2.2(a) and 10.2.2(b)(iii), (xii)(a), this clause (xiv), (xv), (xviii), (xx),
and (xxx) or any Indebtedness, Disqualified Stock or Preferred Stock Incurred to so Refinance
such Indebtedness, Disqualified Stock or Preferred Stock, including any additional Indebtedness,
Disqualified Stock or Preferred Stock Incurred to pay accrued and unpaid interest and dividends
and premiums (including reasonable tender premiums), defeasance costs and fees and expenses
in connection with such Refinancing (subject to the following proviso, “Refinancing
Indebtedness”) on or prior to its respective maturity; provided, however, that such Refinancing
Indebtedness:
(A)has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is Incurred that is not less than the remaining Weighted Average Life
to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced;
(B)has a Stated Maturity which is no earlier than the Stated Maturity
of the Indebtedness being Refinanced;
(C)to the extent such Refinancing Indebtedness Refinances Junior
Indebtedness, such Refinancing Indebtedness is Junior Indebtedness and to the extent such
Refinancing Indebtedness Refinances unsecured Indebtedness, such Refinancing Indebtedness is
unsecured Indebtedness; and
(D)shall not include (x) Indebtedness, Disqualified Stock or Preferred
Stock of Holdings or a Guarantor that Refinances Indebtedness of a Restricted Subsidiary of
Holdings that is not a Guarantor or (y) Indebtedness of Holdings or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary;
(xv)Indebtedness, Disqualified Stock or Preferred Stock of (i) Holdings or any of its
Restricted Subsidiaries Incurred or issued to finance an acquisition or (ii) Persons that are
acquired by Holdings or any of its Restricted Subsidiaries or merged into, amalgamated with or
consolidated with Holdings or a Restricted Subsidiary in accordance with the terms hereof
(including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided,
however, that either (i) the aggregate principal amount or liquidation preference of such
Indebtedness, Disqualified Stock or Preferred Stock does not at any one time outstanding exceed
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$125,000,000 or (ii) after giving effect to such acquisition, merger, amalgamation or
consolidation and the Incurrence of such Indebtedness, Disqualified Stock or Preferred Stock,
either:
(A)Holdings would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Asset Fixed Charge Coverage Ratio test set forth in Section
10.2.2(a); or
(B)the Fixed Asset Fixed Charge Coverage Ratio of the Parent and its
Restricted Subsidiaries on a consolidated basis is equal to or greater than immediately prior to
such acquisition, merger, amalgamation or consolidation;
(xvi)Indebtedness arising from 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;
(xvii)Indebtedness of Holdings or any Restricted Subsidiary supported by a letter of
credit or bank guarantee issued pursuant to this Agreement, in a principal amount not in excess
of the stated amount of such letter of credit or bank guarantee;
(xviii)[Intentionally Omitted];the issuance of any Participating Financial Instruments in
connection with the European Restructuring, including Guarantees, in an aggregate principal
amount, liquidation preference, subscription price, value or similar concept not to exceed at any
one time outstanding €90.0 million;
(xix)Indebtedness of Holdings or any Restricted Subsidiary consisting of (x) the
financing of insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business, not to exceed
$5,000,00010,000,000 at any one time outstanding;
(xx)Indebtedness of Foreign Subsidiaries of Holdings in an amount not to exceed at
any one time outstanding the greater of (x) $100,000,000105,000,000 and (y) 3.7550.0% of
Consolidated Total AssetsLTM EBITDA at the time of such incurrence;
(xxi)Indebtedness of a Joint Venture to Holdings or any Guarantor and to the other
holders of Equity Interests of such Joint Venture, so long as the percentage of the aggregate
amount of such Indebtedness of such Joint Venture owed to such other holders of its Equity
Interests does not exceed the percentage of the aggregate outstanding amount of the Equity
Interests of such joint venture held by such other holders;
(xxii)Indebtedness Incurred in a Permitted Receivables Financing;
(xxiii)Indebtedness owed on a short-term basis to banks and other financial institutions
Incurred in the ordinary course of business of Holdings and the Restricted Subsidiaries with such
banks or financial institutions that arises in connection with ordinary banking arrangements to
manage cash balances of Holdings and the Restricted Subsidiaries;
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(xxiv)Indebtedness consisting of Indebtedness issued by Holdings or any Restricted
Subsidiary to future, current or former officers, directors, employees, managers, service
providers or consultants thereof or any direct or indirect parent thereof, their respective estates,
spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests
of Holdings or any Parent Entity to the extent permitted under Section 10.2.3(b)(iv);
(xxv)customer deposits and advance payments received in the ordinary course of
business from customers for goods purchased in the ordinary course of business;
(xxvi)Indebtedness incurred by a Restricted Subsidiary in connection with bankers’
acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit
management purposes, in each case incurred or undertaken in the ordinary course of business on
arm’s-length commercial terms;
(xxvii)Indebtedness incurred by Holdings or any Restricted Subsidiary to the extent that
the net proceeds thereof are promptly deposited with a trustee to satisfy and discharge
Indebtedness in connection with the indenture therefor;
(xxviii) (i) Guarantees incurred in the ordinary course of business in respect of
obligations to suppliers, customers, franchisees, lessors and licensees that, in each case, are non-
Affiliates and (ii) any Designated Foreign Guaranty;
(xxix)the incurrence by Holdings or any Restricted Subsidiary of Indebtedness
consisting of Guarantees of Indebtedness incurred by Permitted Joint Ventures; provided that the
aggregate principal amount of Indebtedness Guaranteed pursuant to this clause (xxix) does not at
any one time outstanding exceed the greater of (x) $120,000,000 and (y) 5.0) 50.0% of
Consolidated Total AssetsLTM EBITDA at the time of such incurrence; and
(xxx)Indebtedness evidenced by the Senior Unsecured Notes and the Senior Secured
Notes, and in each case the guarantees with respect thereto, in an aggregate principal amount not
to exceed at any one time outstanding $400,000,000 plus the amount of any payment-in-kind
(PIK) interest payments with respect to the Senior Secured Notes; and
(xxxi)Indebtedness of any U.S. Domiciled Loan Party or any Wholly-Owned Restricted
Subsidiary that is a Foreign Subsidiary designated under Section 2.18 of the term loan credit
agreement governing the Fixed Asset Facility as such agreement is in effect on the First
Amendment Effective Date (or any comparable section of any other Fixed Asset Facility) in
respect of one or more series of senior unsecured notes, senior secured first lien or junior lien
notes, junior lien or unsecured loans that, in each case, if secured, will be secured by the U.S.
Facility Collateral on a pari passu or junior basis with the U.S. Facility Obligations, that are
issued or made in lieu of (A) increases in the Fixed Asset Facility pursuant to Section 2.16 of the
term loan credit agreement governing the Fixed Asset Facility as such agreement is in effect on
the First Amendment Effective Date (or any comparable section of any other Fixed Asset
Facility) or (B) a New Term Facility, pursuant to an indenture, note purchase agreement, loan or
credit agreement or otherwise (the “Incremental Equivalent Debt”); provided that (i) Incremental
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Equivalent Debt that is secured on a pari passu basis with the U.S. Facility Obligations may not
be in the form of term or revolving loans (but may be in the form of notes), (ii) for the purposes
of calculating the Consolidated Senior Secured Net Debt Ratio, any Incremental Equivalent Debt
that is unsecured shall be deemed to be Indebtedness secured by a Lien on Collateral on a pari
passu basis with the U.S. Facility Obligations, and (iii) the aggregate principal amount of all
Incremental Equivalent Debt issued or incurred pursuant to this Section 10.2.2(b)(xxxi) shall
not, (together with all requests for (A) increases to a Term Loan Facility (as defined in the term
loan credit agreement governing the Fixed Asset Facility as such agreement is in effect
immediately prior to the Third Amendment Effective Date (or any comparable section of any
other Fixed Asset Facility)), a New Term Facility and New Revolving Facility pursuant to
Section 2.16 of the term loan credit agreement governing the Fixed Asset Facility as such
agreement is in effect on the First Amendment Effective Date (or any comparable section of any
other Fixed Asset Facility) and (B) New Term Facilities or New Revolving Facilities pursuant to
Section 2.17 of the term loan credit agreement governing the Fixed Asset Facility as such
agreement is in effect immediately prior to the Third Amendment Effective Date (or any
comparable section of any other Fixed Asset Facility)), exceed the Maximum Incremental
Amount; provided, further, (i) subject to Section 2.18 of the term loan credit agreement
governing the Fixed Asset Facility as such agreement is in effect on the First Amendment
Effective Date (or any comparable section of any other Fixed Asset Facility) such Incremental
Equivalent Debt shall not be subject to any guarantee by any person other than a U.S. Domiciled
Loan Party, (ii) subject to Section 2.18 of the term loan credit agreement governing the Fixed
Asset Facility as such agreement is in effect on the First Amendment Effective Date (or any
comparable section of any other Fixed Asset Facility), in the case of Incremental Equivalent
Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any
asset of Holdings or any Restricted Subsidiary other than any asset constituting U.S. Facility
Collateral, (iii) no Default shall have occurred and be continuing or would exist immediately
after giving effect to such incurrence, (iv) if such Incremental Equivalent Debt is secured, the
security agreements relating to such Incremental Equivalent Debt shall be substantially the same
as the Security Documents (with such differences as are reasonably satisfactory to Agent), (v) if
such Incremental Equivalent Debt is secured, such Incremental Equivalent Debt shall be subject
to a customary intercreditor agreement reasonably acceptable to Agent, and (vi) the
documentation with respect to any Incremental Equivalent Debt shall contain no mandatory
prepayment, repurchase or redemption provisions prior to the Facility Termination Date at the
time of incurrence, issuance or obtainment of such Incremental Equivalent Debt, other than
customary prepayments, repurchases or redemptions of or offers to prepay, redeem or repurchase
upon a change of control, asset sale event or casualty or condemnation event, customary
prepayments, redemptions or repurchases or offers to prepay, redeem or repurchase based on
excess cash flow (in the case of loans) and customary acceleration rights upon an event of
default, and (b) any Refinancing Indebtedness thereof.
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(c)For purposes of determining compliance with this covenant, in the event that an item of
Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more
than one of the categories of Indebtedness, Disqualified Stock or Preferred Stock permitted under one of
the clauses of Section 10.2.2(b) or is entitled to be Incurred pursuant to Section 10.2.2(a), Holdings
shall, in its sole discretion, at the time of Incurrence, divide, classify or reclassify, or at any later time
divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any
portion thereof) in any manner that complies with this Section 10.2.2 and shall only be required to
include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock (or portion
thereof) in Section 10.2.2(a) or one of the clauses or subsections of 10.2.2(b); provided that all
Indebtedness under this Agreement and the Fixed Asset Facility outstanding on the ThirdFifth
Amendment Effective Date shall be deemed to have been Incurred pursuant to Section 10.2.2(b)(i) and
Holdings shall not be permitted to reclassify all or any portion of such Indebtedness. Accrual of interest
or dividends, the accretion of accreted value, the accretion of the amortization of original issue discount,
the payment of interest or dividends in the form of additional Indebtedness with the same terms, the
payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of
Disqualified Stock or Preferred Stock of the same class, the accretion of liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange
rate of currencies will not be deemed to be an Incurrence of Indebtedness, Disqualified Stock or
Preferred Stock for purposes of this covenant. Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness that are otherwise included in the determination of a particular amount of
Indebtedness shall not be included in the determination of such amount of Indebtedness, provided that
the Incurrence of the Indebtedness represented by such Guarantee or letter of credit, as the case may be,
was in compliance with this covenant. Indebtedness Incurred to Refinance Indebtedness incurred
pursuant to clauses (i), (iv) and (xii) of Section 10.2.2(b) shall be permitted to include additional
Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest and
dividends and premiums (including reasonable tender premiums), defeasance costs and fees and
expenses incurred in connection with such Refinancing Indebtedness if such Indebtedness, Disqualified
Stock, or Preferred Stock in the aggregate does not exceed (i) the principal amount of such Indebtedness
being Refinanced plus (ii) the aggregate amount of fees, defeasance costs, underwriting discounts,
accrued and unpaid interest, premiums and other costs and expenses incurred in connection with such
Refinancing.
(d)For purposes of determining compliance with any U.S. dollar-denominated restriction on
the Incurrence of Indebtedness, the Dollar Equivalent principal amount of Indebtedness denominated in
a foreign currency shall 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 first Incurred (whichever
yields the lower Dollar Equivalent), in the case of revolving credit debt; provided that if such
Indebtedness is Incurred to Refinance other Indebtedness denominated in a foreign currency, and such
Refinancing 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 Refinancing, 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 (i) the principal amount of such Indebtedness being
Refinanced plus (ii) the aggregate amount of fees, defeasance costs, underwriting discounts, accrued and
unpaid interest, premiums and other costs and expenses incurred in connection with such Refinancing.
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10.2.3Restricted Payments. (a)(i) Declare or pay any dividend or make any distribution
on account of Holdings’ or any of its Restricted Subsidiaries’ Equity Interests, including any dividend,
payment or distribution payable in connection with any merger or consolidation involving Holdings
(other than (A) dividends, payments or distributions by Holdings payable solely in Equity Interests (other
than Disqualified Stock) of any Intermediate Holdings or in options, warrants or other rights to purchase
such Equity Interests; or (B) dividends, payments or distributions by a Restricted Subsidiary so long as,
in the case of any dividend, payment or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, Holdings
or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in
accordance with its Equity Interests in such class or series of securities); (ii) purchase, redeem, defease or
otherwise acquire or retire for value any Equity Interests of Holdings or any other Parent Entity,
including in connection with any merger or consolidation, in each case held by a Person other than
Holdings or a Restricted Subsidiary; (iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value in each case, or give any irrevocable notice of redemption, in each
case prior to any scheduled repayment or scheduled maturity, any Junior Indebtedness (other than (i) the
payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Junior Indebtedness 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 payment, redemption, repurchase, defeasance, acquisition or
retirement and (B) Indebtedness permitted under Section 10.2.2(b)(vii) and (ix) and (ii) the giving of an
irrevocable notice of redemption with respect to the transaction permitted under clause (b)(ii) or (iii) of
this Section 10.2.3); or (iv) make any Restricted Investment (all such payments and other actions set
forth in clauses (a)(i) through (a)(iv) above (other than any exception thereto) being collectively referred
to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(1)no Event of Default shall have occurred and be continuing or would occur
as a consequence thereof;
(2)immediately after giving effect to such transaction on a pro forma basis,
Holdings could Incur $1.00 of additional Indebtedness under Section 10.2.2; andRestricted
Payment (including, without limitation, the incurrence of any Indebtedness to finance such
Restricted Payment), the Consolidated Total Net Debt Ratio would be equal to or less than
4.25:1.00; and
(3)such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by Holdings and its Restricted Subsidiaries after the Third
RestatementFifth Amendment Effective Date (including Restricted Payments permitted by
Section 10.2.3(b)(i) and (vii), but excluding all other Restricted Payments permitted by Section
10.2.3(b)), is less than the sum of, without duplication,
(A)the sum of (x) $300,000,000 and (y) 5050.0% of the Consolidated
Net Income of Holdings for the period (taken as one accounting period) from October 1,
2016the Fifth Amendment Effective Date to the end of Holdings’ most recently ended fiscal
quarter for which internal financial statements are available at the time of such Restricted
Payment (or, in the case such Consolidated Net Income for such period is a deficit, minus 100%
of such deficit), plus
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(B)100% of the aggregate net proceeds and the Fair Market Value of
marketable securities or other property received by Holdings since immediately after the Third
RestatementFifth Amendment Effective Date from the issue or sale of:
(I)Equity Interests of Holdings, including Treasury Capital
Stock (as defined below), but excluding cash proceeds and the Fair Market Value of marketable
securities or other property received from the sale of Equity Interests to any future, present or
former employees, directors, managers, service providers or consultants of Holdings, its
Subsidiaries or any Parent Entity after the Third RestatementFifth Amendment Effective Date to
the extent such amounts have been applied to Restricted Payments made in accordance with
Section 10.2.3(b)(iv) and Designated Preferred Stock; and
(II)any Indebtedness of Holdings or any of its Restricted
Subsidiaries that have been converted into or exchanged for such Equity Interests (other than
Disqualified Stock) of Holdings or a Parent Entity; provided, however, that this clause (B) shall
not include Excluded Equity, plus
(C)100% of the aggregate amount of cash and the Fair Market Value
of marketable securities or other property contributed to the capital of Holdings, or that became
part of the capital of Holdings through consolidation or merger, following the Third
RestatementFifth Amendment Effective Date (other than Excluded Equity), plus
(D)100% of the aggregate amount received by Holdings or any
Restricted Subsidiary in cash and the Fair Market Value of marketable securities or other
property received by Holdings or any Restricted Subsidiary from:
(x)the sale or other disposition (other than to Holdings or a
Subsidiary of Holdings) of Restricted Investments made by Holdings and its Restricted
Subsidiaries and from repurchases and redemptions of, or cash distributions or cash interest
received in respect thereof, such Restricted Investments from Holdings and its Restricted
Subsidiaries by any Person (other than Holdings or any of its Subsidiaries) and from repayments
of loans or advances, and releases of guarantees, which constituted Restricted Investments made
by Holdings or its Restricted Subsidiaries in each case after the Third RestatementFifth
Amendment Effective Date,
(y)the sale (other than to Holdings or a Restricted Subsidiary
or an employee stock ownership plan or trust established by Holdings or any Restricted
Subsidiary (other than to the extent such employee stock ownership plan or trust has been
funded by Holdings or any Restricted Subsidiary or to the extent that such Investment
constituted a Permitted Investment)) of the Capital Stock of an Unrestricted Subsidiary, or
(z)any distribution or dividend from an Unrestricted
Subsidiary (to the extent such distribution or dividend is not already included in the calculation
of Consolidated Net Income), plus
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(E)in the event any Unrestricted Subsidiary of Holdings has been
redesignated as a Restricted Subsidiary or has been merged or consolidated with or into, or
transfers or conveys its assets to, or is liquidated into, Holdings or a Restricted Subsidiary of
Holdings, in each case after the Third RestatementFifth Amendment Effective Date, the Fair
Market Value of the Investment of Holdings in such Unrestricted Subsidiary at the time of such
redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable),
(other than in each case to the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary constituted a Permitted Investment), plus
(F)the aggregate amount of Declined Amounts.
(b)Notwithstanding the foregoing, Section 10.2.3(a)(i)-(iv) will not prohibit:
(i)the payment of any dividend or distribution or consummation of any irrevocable
redemption within 60 days after the date of declaration thereof or the giving of a redemption
notice related thereto, if at the date of declaration or notice such payment would have complied
with the provisions of this Agreement;
(ii)(x) the redemption, repurchase, defeasance, discharge, retirement or other
acquisition of any Equity Interests (“Retired Capital Stock”) of Holdings or any other Parent
Entity (“Treasury Capital Stock”), or Junior Indebtedness of Holdings or any Guarantor, in
exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of
Holdings or any other Parent Entity or contributions to the equity capital of Holdings (other than
Excluded Equity) (collectively, including any such contributions, “Refunding Capital Stock”);
(y)the declaration and payment of accrued dividends on the Retired Capital
Stock out of the proceeds of the substantially concurrent sale (other than to a Subsidiary
of Holdings or to an employee stock ownership plan or any trust established by Holdings
or any of its Subsidiaries) of Refunding Capital Stock; and
(z)if immediately prior to the retirement of the Retired Capital Stock, the
declaration and payment of dividends thereon was permitted under Section 10.2.3(b)(vi)
and has not been made as of such time (the “Unpaid Amount”), the declaration and
payment of dividends on the Refunding Capital Stock (other than Refunding Capital
Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire
any Equity Interests of Holdings or any Parent Entity) in an aggregate amount no greater
than the Unpaid Amount;
(iii)the prepayment, redemption, defeasance, repurchase, exchange or other
acquisition or retirement of Junior Indebtedness of Holdings or any Guarantor made by exchange
for, or out of the proceeds of the substantially concurrent sale of, Refinancing Indebtedness
thereof;
(iv)the purchase, retirement, redemption or other acquisition (or dividends to
Holdings or any other Parent Entity to finance any such purchase, retirement, redemption or
other acquisition) for value of Equity Interests of Holdings or any other Parent Entity held by any
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future, present or former employee, director, manager, service provider or consultant of Holdings
or any other Parent Entity or any Subsidiary of Holdings (or their permitted transferees) pursuant
to any management equity plan or stock option plan or any other management or employee
benefit plan or other agreement or any equity subscription or equityholder agreement (including,
for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by
Holdings or any Parent Entity in connection with such repurchase, retirement or other
acquisition); provided, however, that the aggregate amounts paid under this clause (iv) shall not
exceed in any calendar year $7,500,000 (with unused amounts in any calendar year being carried
over to succeeding calendar years up to a maximum of $15,000,000 in the aggregate in any
calendar year); provided, further, however, that such amount in any fiscal year may be increased
by an amount not to exceed:
(A)the cash proceeds received by Holdings or any of its Restricted
Subsidiaries from the sale of Equity Interests (other than Excluded Equity) of Holdings or
any other Parent Entity (to the extent contributed to the Borrower) to members of
management, directors or consultants of Holdings and its Restricted Subsidiaries or
Holdings or any other Parent Entity that occurs after April 4, 2014 to the extent the cash
proceeds from the sale of such Equity Interests have not otherwise been applied to the
payment of Restricted Payments by virtue of (Section 10.2.3(a)(3)); plus
(B)the cash proceeds of key man life insurance policies received by
Holdings or any other Parent Entity (to the extent contributed to Holdings) and its
Restricted Subsidiaries after the April 4, 2014; minus
(C)the amount of any Restricted Payments previously made with the
cash proceeds described in clauses (A) and (B) of this clause (iv),
(provided that the cancellation of Indebtedness owing to Holdings from any current or
former officer, director, employee, manager, service provider or consultant (or any
permitted transferees thereof) of Holdings or any of its Restricted Subsidiaries (or any
Parent Entity), in connection with a repurchase of Equity Interests of Holdings or any
Parent Entity from such Persons will not be deemed to constitute a Restricted Payment
for purposes of this Section 10.2.3 or any other provision of this Agreement);
(v)the declaration and payment of dividends or distributions to holders of any class
or series of Disqualified Stock of Holdings or any of its Restricted Subsidiaries and any Preferred
Stock of any Restricted Subsidiaries issued or Incurred in accordance with Section 10.2.2;
(vi)the declaration and payment of dividends or distributions to holders of any class
or series of Designated Preferred Stock and the declaration and payment of dividends to
Holdings or any other Parent Entity, the proceeds of which will be used to fund the payment of
dividends to holders of any class or series of Designated Preferred Stock of Holdings or any
other Parent Entity issued after April 4, 2014; provided, however, that (A) for the most recently
ended four full fiscal quarters for which internal financial statements are available immediately
preceding the date of issuance of such Designated Preferred Stock, after giving effect to such
issuance (and the payment of dividends or distributions) on a pro forma basis, the Fixed Charge
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Coverage Ratio of the Parent and its Restricted Subsidiaries on a consolidated basis would have
been at least 2.00 to 1.00 and (B) the aggregate amount of dividends declared and paid pursuant
to this clause (vi) does not exceed the net cash proceeds actually received by Holdings from the
sale (or the contribution of the net cash proceeds from the sale) of Designated Preferred Stock;
(vii)[Intentionally Omitted];the declaration and payment of dividends on the
Borrower’s common stock (or the payment of dividends to any Parent Entity to fund a payment
of dividends on such entity’s common stock) of up to (A) 6.0% per annum of the net cash
proceeds received by the Borrower from any public offering of common stock or contributed to
the Borrower by any Parent Entity in or from any public offering of common stock (other than
public offerings with respect to common stock registered on Form S-8) and (B) an aggregate
amount not to exceed 7.0% of Market Capitalization;
(viii)[Intentionally Omitted];any Restricted Payments in connection with any European
Restructuring in a reasonable amount in Holdings’ good faith determination, but in any event,
not to exceed an amount equal to the total outstanding amount incurred pursuant to Section
10.2.2(b)(xviii);
(ix)Restricted Payments in an aggregate amount that does not exceed the aggregate
amount of Excluded Contributions received since April 4, 2014;
(x)any Restricted Payment; provided that (x) no Default or Event of Default has
occurred and is continuing or would result from such Restricted Payment and (y) on a pro forma
basis after giving effect to such Restricted Payment and any related incurrence of Indebtedness,
the proceeds of which are used to make such Restricted Payment, the Consolidated Total Net
Debt Ratio would be equal to or less than 2.003.25:1.00;
(xi)[Intentionally Omitted]Restricted Payments in an amount not to exceed the
greater of (x) $105,000,000 and (y) 50.0% of LTM EBITDA;
(xii)for so long as Holdings is a member of a group filing a consolidated, combined or
similar income tax return with Holdings or any other Parent Entity (or a disregarded entity for
tax purposes with respect to Holdings or such other direct or indirect parent), the payment of
dividends or other distributions to Holdings or such other Parent Entity in amounts required for
Holdings or such other parent company to pay income taxes imposed on such entity to the extent
such income taxes are attributable to the income of Holdings and its Subsidiaries; provided,
however, that the amount of such payments in respect of any tax year does not, in the aggregate,
exceed the amount that Holdings and its Subsidiaries would have been required to pay in respect
of such income taxes in respect of such year if the Borrower and its Subsidiaries paid such
income taxes directly as a stand-alone income tax group (reduced by any such taxes paid directly
by Holdings or any Subsidiary); provided, further, the permitted payment pursuant to this clause
(xii) with respect to any taxes attributable to income of any Unrestricted Subsidiary for any
taxable period shall be limited to the amount actually paid with respect to such period by such
Unrestricted Subsidiary to Holdings or any Restricted Subsidiary for the purposes of paying such
income taxes;
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(xiii)the payment of dividends, other distributions or other amounts to, or the making
of loans to Holdings or any Parent Entity, in the amount required for such entity to, if applicable:
(A)pay amounts equal to the amounts required for Holdings or any
other Parent Entity to pay fees and expenses (including franchise or similar taxes) required to
maintain its corporate existence, customary salary, bonus and other benefits payable to, and
indemnities provided on behalf of, officers, employees, directors, managers, service providers
and consultants of Holdings or any other Parent Entity, if applicable, and general corporate
operating and overhead expenses of Holdings or any other Parent Entity, if applicable, in each
case to the extent such fees, expenses, salaries, bonuses, benefits and indemnities are
attributable to the ownership or operation of Holdings and its Subsidiaries;
(B)pay, if applicable, amounts required for Holdings, any Parent
Entity to pay interest and/or principal on Indebtedness the proceeds of which have been
contributed to Holdings (other than as Excluded Equity) and that has been guaranteed by, and is
otherwise considered Indebtedness of, Holdings or any Restricted Subsidiary Incurred in
accordance with Section 10.2.2; and
(C)pay fees and expenses incurred by Holdings or any Parent Entity,
other than to Affiliates of Holdings, related to any unsuccessful equity or debt offering of such
Parent Entity;
(xiv)the payment of cash dividends or other distributions on Holdings’s’ Capital Stock
used to, or the making of loans to Holdings or any other Parent Entity to, fund the payment of
fees and expenses owed by Holdings or any other Parent Entity, as the case may be, or Restricted
Subsidiaries of Holdings to Affiliates, in each case to the extent permitted by Section 10.2.15;
(xv)(i) repurchases of Equity Interests deemed to occur upon exercise of stock options
or warrants if such Equity Interests represent a portion of the exercise price of such options or
warrants and (ii) in connection with the withholding of a portion of the Equity Interests granted
or awarded to a current or former director or employee to pay for the taxes payable by such
director or employee upon such grant or award;
(xvi)purchases of receivables in connection with a Permitted Receivables Financing
and the payment or distribution of Receivables Fees;
(xvii)payments or distributions to satisfy dissenters’ rights, pursuant to or in connection
with a consolidation, merger, amalgamation or transfer of assets that complies with the
provisions of this Agreement applicable to mergers, consolidations and transfers of all or
substantially all the property and assets of Holdings;
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(xviii)the distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to Holdings or a Restricted Subsidiary of Holdings by, Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and/or
cCash eEquivalents); and
(xix)the repurchase, redemption, or other acquisition for value of Equity Interests of
Holdings or any of its Restricted Subsidiaries deemed to occur in connection with the payment of
cash in lieu of the issuance of fractional shares of Equity Interests in connection with a share
dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or
other business combination of Holdings or a Restricted Subsidiary, in each case, as permitted
under this Agreement;
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted
under clause (x), no Event of Default shall have occurred and be continuing or would occur as a
consequence thereof.
(c)Holdings will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary
except pursuant to the definition of “Unrestricted Subsidiary.” For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by Holdings and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be
Restricted Payments or Permitted Investments in an amount determined as set forth in the last sentence
of the definition of “Investments.” Such designation will only be permitted if a Restricted Payment or
Permitted Investment in such amount would be permitted at such time and if such Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary.
(d)For purposes of compliance with Section 10.2.3, if any Investment or Restricted Payment
would be permitted pursuant to one or more provisions of Section 10.2.3 and/or one or more of the
exceptions contained in the definition of “Permitted Investments,” Holdings may divide and classify
such Investment or Restricted Payment in any manner that complies with this covenant and may later
divide and reclassify any such Investment or Restricted Payment so long as the Investment or Restricted
Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable
exception as of the date of such reclassification.
(e)The amount of all Restricted Payments (other than cash) will be the Fair Market Value on
the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by
Holdings or any of its Restricted Subsidiaries, as the case may be, pursuant to the Restricted Payment.
Notwithstanding the foregoing provisions of this Section 10.2.3, (i) the Restricted Payments described
in preceding clauses (a)(i), (a)(ii), (b)(vi) and, (b)(x) and (b)(xi) shall only be permitted to the extent
that, in addition to the other conditions set forth in this Section 10.2.3 applicable thereto, the Specified
Transaction Conditions shall have been satisfied in connection therewith and (ii) with respect to this
Section 10.2.3 and the definition of “Permitted Investments”, for purposes of determining the
permissibility of any Investment or Restricted Payment consisting of a sale, assignment, transfer, lease,
conveyance or other disposition of ABL Priority Collateral, eachthe Specified Jurisdiction Guarantor
shall be deemed to be a Restricted Subsidiary that is not a Guarantor or a Loan Party (and, for the
avoidance of doubt, shall not be deemed to be a Guarantor or a Loan Party).
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10.2.4Holdings Activities. Holdings shall not conduct, transact or otherwise engage in
any business or operations other than (i) the ownership and/or acquisition of the Capital Stock of the U.S.
Borrower and activities incidental thereto, (ii) the maintenance of its legal existence, including the ability
to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and
other administrative matters as owner of the Capital Stock of the U.S. Borrower and reporting related to
such matters, (iv) the performance of its obligations under and in connection with the Loan Documents,
the Senior Unsecured Notes, any documentation governing the Fixed Asset Facility and any
documentation governing other Indebtedness permitted hereunder, any refinancing thereof and the other
agreements contemplated hereby and thereby, (v) incurring fees, costs and expenses relating to overhead
and general operating including professional fees for legal, tax and accounting matters, (vi) providing
indemnification to officers and directors and as otherwise permitted hereunder, (vii) activities incidental
to the consummation of the Transactions, (viii) financing activities, including the issuance of securities,
incurrence of debt, payment of dividends, making contributions to the capital of the U.S. Borrower and
guaranteeing the obligations of the U.S. Borrower and its Subsidiaries, (ix) any other transaction
permitted pursuant to Section 10.2.1 (it being understood and agreed that notwithstanding anything
herein to the contrary, the only negative covenants in Section 10.2 Holdings is subject to are Section
10.2.1 and this Section 10.2.4), (x) providing indemnification to its directors and officers and (xi)
activities incidental to the businesses or activities described in clauses (i) through (x) of this Section
10.2.4.
10.2.5[Intentionally Omitted]
10.2.6[Intentionally Omitted]
10.2.7Fundamental Changes.
(a)Allow any Borrower to Consolidate, merge or amalgamate with or into or wind up into
(whether or not such Borrower is the surviving Person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one or more related transactions,
to any Person unless:
(i)such Borrower is the surviving Person or the Person formed by or surviving any
such consolidation, merger or amalgamation with a Person from the same country of domicile (if
other than such Borrower) or to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made is a Person organized or existing under the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof or Canada, or any
province thereof, as applicable (such Borrower or such Person, as the case may be, being herein
called the “Successor Company”);
(ii)the Successor Company (if other than such Borrower) expressly assumes all the
obligations of such Borrower under each Loan Document to which such Borrower is a party
pursuant to joinder documentation reasonably satisfactory to Agent;
(iii)immediately after giving effect to such transaction, no Default exists;
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(iv)immediately after giving pro forma effect to such transaction, as if such
transaction had occurred at the beginning of the applicable four-quarter period, either;
(A)the Successor Company would be permitted to Incur at least $1.00
of additional Indebtedness pursuant to the Fixed Asset Fixed Charge Coverage Ratio test set
forth in Section 10.2.2(a); or
(B)the Fixed Asset Fixed Charge Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be equal to or greater than such ratio for
Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v)if the Successor Company is other than such Borrower, each Guarantor with
respect to such Borrower’s obligations, unless it is the other party to the transactions described
above, shall have confirmed that its Guarantee and grant of security shall apply to such Person’s
obligations under the Loan Documents;
(vi)to the extent any assets of the Person which is merged, amalgamated or
consolidated with or into the Successor Company are assets of the type which would constitute
Collateral under the Security Documents, the Successor Company will take such action as may
be reasonably requested by Agent to the extent necessary to cause such property and assets to be
made subject to the Lien of the Security Documents in the manner and to the extent required by
Section 10.1.11 hereof or any of the Security Documents and shall take all reasonably necessary
action so that such Lien is perfected to the extent required by the Security Documents; and
(vii)the Collateral owned by or transferred to the Successor Company shall:
(A) continue to constitute Collateral under this Agreement and the Security Documents, (B) be
subject to the Lien in favor of Agent for the benefit of the applicable Secured Parties, and (C) not
be subject to any Lien other than Permitted Liens or Liens otherwise permitted hereunder.
The Successor Company (if other than such Borrower) will succeed to, and be substituted for,
such Borrower under the Loan Documents, and such Borrower will automatically be released and
discharged from its Obligations. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted
Subsidiary that is not a Guarantor may consolidate, amalgamate or merge with or into or sell, assign,
transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Borrower or
any Restricted Subsidiary, (b) any Restricted Subsidiary that is a Guarantor may consolidate,
amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or
part of its properties and assets to any Borrower, any Guarantor or any Restricted Subsidiary that
becomes a Guarantor in connection with such consolidation, amalgamation, merger, sale, assignment,
transfer, lease, conveyance or disposal and (c) any Borrower may merge, amalgamate or consolidate
with an Affiliate incorporated or organized in the same country of domicile and solely for the purpose of
reincorporating or reorganizing the Borrowers in another state of the United States, the District of
Columbia, any territory of the United States or Canada or any province thereof, as applicable, so long as
the amount of Indebtedness of such Borrower and its Restricted Subsidiaries is not increased thereby and
all Lien perfection steps have been satisfied, as required by the Agent.
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(b)Each Guarantor will not, and Holdings will not permit any Guarantor to, consolidate,
amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving
Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, any Person unless:
(i)either (a) such Guarantor is the surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to
which such sale, assignment, transfer, lease, conveyance or other disposition will have been
made is a Person organized or existing under the laws of the jurisdiction of organization of such
Guarantor, as the case may be, or (provided it is the same country of domicile) the laws of the
United States, any state thereof, the District of Columbia or any territory thereof, or Canada or
any province thereof, as applicable (such Guarantor or such Person, as the case may be, being
herein called the “Successor Guarantor”) and the Successor Guarantor (if other than such
Guarantor) expressly assumes all the obligations of such Guarantor under the Loan Documents to
which such Guarantor is a party pursuant to joinder documentation reasonably satisfactory to the
Agent or (b) such sale or disposition or consolidation or merger is not in violation of Section
10.2.3;
(A)immediately after giving effect to such transaction, no Default
exists;
(B)to the extent any assets of the Guarantor which is merged,
amalgamated or consolidated with or into the Successor Company are assets of the type which
would constitute Collateral under the Security Documents, the Successor Company will take
such action as may be reasonably requested by the Agent to the extent necessary to cause such
property and assets to be made subject to the Lien of the Security Documents in the manner and
to the extent required by Section 10.1.11 hereof or any of the Security Documents and shall take
all reasonably necessary action so that such Lien is perfected to the extent required by the
Security Documents; and
(C)the Collateral (if any) owned by or transferred to the Successor
Company shall: (i) continue to constitute Collateral under the Loan Documents, (ii) be subject to
the Lien in favor of Agent for the benefit of the applicable Secured Parties, and (iii) not be
subject to any Lien other than Permitted Liens.
(ii)The Successor Guarantor will succeed to, and be substituted for, such Guarantor
under the Loan Documents and such Guarantor’s Guarantee, and such Guarantor will
automatically be released and discharged from its obligations under the Loan Documents.
Notwithstanding the foregoing, (a) a Guarantor may merge, amalgamate or consolidate with an
Affiliate incorporated or organized in the same country of domicile and solely for the purpose of
reincorporating or reorganizing such Guarantor in another state of the United States, the District
of Columbia, any territory of the United States or Canada or any province thereof, as applicable,
so long as the amount of Indebtedness of the Guarantor is not increased thereby and all Lien
perfection steps have been satisfied, as required by the Agent, (b) a Guarantor may merge,
amalgamate or consolidate with another Guarantor or Holdings and (c) a Guarantor may convert
into a Person organized or existing under the laws of the jurisdiction of organization of such
Guarantor or a jurisdiction in the United States or Canada or any province thereof, as applicable,
and all Lien perfection steps have been satisfied, as required by the Agent.
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(iii)[Intentionally Omitted].
Notwithstanding the foregoing provisions of this Section 10.2.7, for purposes of determining the
permissibility of any sale, assignment, transfer, lease, conveyance or other disposition of ABL Priority
Collateral under this Section 10.2.7, eachthe Specified Jurisdiction Guarantor shall be deemed to be a
Restricted Subsidiary that is not a Guarantor or a Loan Party (and, for the avoidance of doubt, shall not
be deemed to be a Guarantor or a Loan Party).
10.2.8[Intentionally Omitted]
10.2.9Organization Documents. Amend, modify or otherwise change any of its
Organization Documents as in effect on the First Amendment Effective Date in any manner materially
adverse to the Lenders.
10.2.10Tax Consolidation. File or consent to the filing of any consolidated income
tax return with any Person other than the Covenant Parties and Restricted Subsidiaries.
10.2.11Accounting Changes. (a) Make any material change in accounting
treatment or reporting practices, except as required by GAAP and in accordance with Section 1.2; or
change its fiscal year or (b) be included in a fiscal unity (fiscal eenheid) for Dutch tax purposes with any
Person other than the Covenant Parties and Restricted Subsidiaries.
10.2.12Dividend and Other Payment Restrictions Affecting Subsidiaries. Directly
or indirectly, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted Subsidiary that is not a Guarantor
to:
(a)(i) pay dividends or make any other distributions to Holdings or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits; or (ii) pay any Indebtedness owed to Holdings or any of its Restricted
Subsidiaries;
(b)make loans or advances to Holdings or any of its Restricted Subsidiaries; or
(c)sell, lease or transfer any of its properties or assets to Holdings or any of its Restricted
Subsidiaries;
except in each case for such encumbrances or restrictions existing under or by reason of:
(i)contractual encumbrances or restrictions in effect or entered into on the Third
Restatement Date, including pursuant to this Agreement, the Loan Documents and the other
documents relating to this Agreement and related Hedging Obligations, the related
documentation, the Fixed Asset Facility Indenture incurred on the date hereof and related
Hedging Obligations and the related documentation and any documents relating to the Senior
Unsecured Notes;
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(ii)[Intentionally Omitted];
(iii)applicable law or any applicable rule, regulation or order;
(iv)any agreement or other instrument of a Person, or relating to Indebtedness or
capital stock of a Person, which Person is acquired by or merged, consolidated or amalgamated
with or into Holdings or any Restricted Subsidiary, or any other transaction entered into in
connection with such acquisition, merger, consolidation or amalgamation, which was in
existence at the time of such acquisition or at the time it mergers, consolidates or amalgamates
with or into Holdings or any of its Restricted Subsidiaries (but, in each case, not created in
contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person and its Subsidiaries, or the property or
assets of the Person and its Subsidiaries, so acquired;
(v)contracts for the sale or disposition of assets, including customary encumbrances
or restrictions with respect to a Subsidiary of (i) Holdings or (ii) any of its Restricted
Subsidiaries imposed pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Subsidiary;
(vi)restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(vii)customary provisions in (x) joint venture agreements entered into in the ordinary
course of business with respect to the Equity Interests subject to the joint venture and
(y) operating or other similar agreements, asset sale agreements, stock sale agreements entered
into in connection with the entering into of such transaction, which limitation is applicable only
to the assets that are the subject of those agreements;
(viii)purchase money obligations for property acquired in the ordinary course of
business and Capitalized Lease Obligations to the extent imposing restrictions of the nature
discussed in clause (c) above on the property so acquired;
(ix)customary provisions contained in leases, subleases, licenses, sublicenses,
contracts and other similar agreements, including with respect to intellectual property and other
agreements;
(x)any encumbrance or restriction contained in any documentation relating to a
Permitted Receivables Financing;
(xi)other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted
Subsidiary of the Borrower that is Incurred subsequent to April 4, 2014 pursuant to Section
10.2.2; provided that such encumbrances and restrictions contained in any agreement or
instrument will not materially affect Holdings’ ability to make anticipated principal or interest
payment on the Loans (as determined by Holdings in good faith);
(xii)any encumbrance or restriction contained in Secured Indebtedness otherwise
permitted to be Incurred pursuant to Sections 10.2.1 and 10.2.2 to the extent limiting the right of
the debtor to dispose of the assets securing such Indebtedness;
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(xiii)encumbrances or restrictions arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not, individually or in the aggregate,
(x) detract from the value of the property or assets of Holdings or any Restricted Subsidiary in
any manner material to Holdings or any Restricted Subsidiary or (y) materially affect Holdings’
ability to make anticipated principal or interest payment on the Loans (as determined by
Holdings in good faith);
(xiv)encumbrances or restrictions existing under, by reason of or with respect to
Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the
agreements governing that Refinancing Indebtedness are not materially more restrictive, taken as
a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(xv)any encumbrance or restriction with respect to a Subsidiary which was previously
an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a
party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary;
provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary
becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to
any assets or property of Holdings or any other Restricted Subsidiary other than the assets and
property of such Subsidiary;
(xvi)restrictions or conditions contained in any trading, netting, operating,
construction, service, supply, purchase, sale or other agreement to which Holdings or any of its
Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that
such agreement prohibits the encumbrance of solely the property or assets of Holdings or such
Restricted Subsidiary that are the subject to such agreement, the payment rights arising
thereunder or the proceeds thereof and does not extend to any other asset or property of Holdings
or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; and
(xvii)any encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or Refinancings of the
contracts, instruments or obligations referred to in clauses (i) through (xvi) above; provided that
such amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or Refinancings are, in the good faith judgment of Holdings, not materially more
restrictive with respect to such encumbrances and other restrictions taken as a whole than prior to
such amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
For purposes of determining compliance with this Section 10.2.12, (i) the priority of any Preferred Stock
in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being
paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital
Stock and (ii) the subordination of loans or advances made to Holdings or a Restricted Subsidiary of
Holdings to other Indebtedness Incurred by Holdings or any such Restricted Subsidiary shall not be
deemed a restriction on the ability to make loans or advances.
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10.2.13Hedging Agreements. Enter into any Hedging Agreement, except to hedge
risks arising under the Loan Documents, the Permitted Secured Debt Documents, the Secured
Incremental Equivalent Debt Documents or in the ordinary course of business and, in any case, not for
speculative purposes.
10.2.14Conduct of Business. Engage in any business, other than its business as
conducted on the First Amendment Effective Date or reasonable extensions thereof and other businesses
reasonably incidental or related thereto (including relating to manufacturing processes), and any activities
incidental thereto.
10.2.15Affiliate Transactions. (a) Directly or indirectly, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate of Holdings (each of
the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $10,000,000,
unless:
(i)such Affiliate Transaction is on terms that are not materially less favorable to
Holdings or the relevant Restricted Subsidiary than those that could have been obtained in a
comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person;
(ii)with respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $25,000,000, Holdings delivers to Agent a
resolution adopted in good faith by the majority of the Board of Directors of Holdings, approving
such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate
Transaction complies with clause (i) above.
(b)Notwithstanding the foregoing, Section 10.2.15 will not apply to the following:
(i)(A) transactions between or among Holdings and/or any of its Restricted
Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction)
and (B) any merger, amalgamation or consolidation of Holdings or any other Parent Entity,
provided that such parent company shall have no material liabilities and no material assets other
than cash, Cash Equivalents and the Capital Stock of Holdings and such merger, amalgamation
or consolidation is otherwise in compliance with the terms of this Agreement;
(ii)(A) Restricted Payments permitted by Section 10.2.3 and (B) Permitted
Investments;
(iii)any employment and severance agreements entered into by Holdings or any of its
Restricted Subsidiaries in the ordinary course of business and the payment of reasonable and
customary fees and compensation paid to, and indemnity and similar arrangements provided on
behalf of, officers, directors, employees, managers, service providers or consultants of Holdings
or any Restricted Subsidiary or Holdings or (to the extent relating to the business of Holdings
and its Subsidiaries) Holdings or any other Parent Entity;
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(iv)transactions in which Holdings or any of its Restricted Subsidiaries, as the case
may be, delivers to Agent a letter from an Independent Financial Advisor stating that such
transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view or
meets the requirements of Section 10.2.15(a)(i);
(v)payments or loans (or cancellation of loans, advances or Guarantees) or advances
to employees or consultants or Guarantees in respect thereof for bona fide business purposes in
the ordinary course of business;
(vi)any agreement or arrangement as in effect or contemplated as of the First
Amendment Effective Date or as thereafter amended, supplemented or replaced (so long as such
amended, supplemented or replaced agreement is not more disadvantageous to the Lenders in
any material respect than the original agreement or arrangement as in effect on the First
Amendment Effective Date) or any transaction or payments contemplated thereby;
(vii)[Intentionally Omitted];
(viii)the existence of, or the performance by Holdings or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders or similar agreement
(including any registration rights agreement or purchase agreement related thereto) to which it is
a party as of the First Amendment Effective Date and any amendment thereto or similar
transactions, arrangements or agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by Holdings or any of its Restricted Subsidiaries of its
obligations under, any future amendment to any such existing transaction, arrangement or
agreement or under any similar transaction, arrangement or agreement entered into after the First
Amendment Effective Date shall only be permitted by this clause (viii) to the extent that the
terms of any such existing transaction, arrangement or agreement together with all amendments
thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the
Lenders in any material respect than the original transaction, arrangement or agreement as in
effect on the First Amendment Effective Date;
(ix)(A) transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Agreement, which are fair to Holdings and its Restricted Subsidiaries in the
reasonable determination of the Board of Directors or the senior management of Holdings, and
are on terms at least as favorable as might reasonably have been obtained at such time from an
unaffiliated party or (B) transactions with Unrestricted Subsidiaries in the ordinary course of
business;
(x)any transaction effected as part of a Permitted Receivables Financing;
(xi)the sale or issuance or transfer of Equity Interests (other than Disqualified Stock)
of Holdings and the granting and performing of reasonable and customary registration rights;
(xii)payments by Holdings or any of its Restricted Subsidiaries to any of the Investors
made for any financial advisory, financing, underwriting or placement services or in respect of
other investment banking activities, including, without limitation, in connection with acquisitions
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or divestitures which payments are approved by a majority of the Board of Directors of Holdings
in good faith;
(xiii)any contribution to the capital of Holdings (other than Disqualified Stock);
(xiv)any transaction with a Person (other than an Unrestricted Subsidiary or a joint
venture) which would constitute an Affiliate Transaction solely because Holdings or a Restricted
Subsidiary owns an Equity Interest in or otherwise controls such Person;
(xv)transactions between Holdings or any of its Restricted Subsidiaries and any
Person that would constitute an Affiliate Transaction solely because a director of which is also a
director of Holdings or any other Parent Entity; provided, however, that such director abstains
from voting as a director of Holdings or such other Parent Entity, as the case may be, on any
matter involving such other Person;
(xvi)the entering into of any tax sharing agreement or arrangement and any payments
permitted by Section 10.2.3(b)(xii);
(xvii)transactions to effect the Transactions and the payment of all transaction,
underwriting, commitment and other fees and expenses related to the Transactions;
(xviii)pledges of Equity Interests of Unrestricted Subsidiaries;
(xix)the issuances of securities or other payments, loans, advances or guarantees (or
cancellation of loans, advances or guarantees) to employees, directors, managers, service
providers or consultants of Holdings, any of its Restricted Subsidiaries or any Parent Entity and
employment agreements, stock option and stock ownership plans or similar employee benefit
plans which, in each case, are approved by Holdings in good faith;
(xx)any employment, consulting, service or termination agreement, or customary
indemnification arrangements, entered into by Holdings or any of its Restricted Subsidiaries with
current, former or future officers and employees of Holdings or any of its respective Restricted
Subsidiaries and the payment of compensation to officers and employees of Holdings or any of
their respective Restricted Subsidiaries (including amounts paid pursuant to employee benefit
plans, employee stock option or similar plans), in each case in the ordinary course of business;
(xxi)transactions with Affiliates solely in their capacity as holders of Indebtedness or
Equity Interests of Holdings or any of its Subsidiaries, so long as such transaction is with all
holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no
more favorably than all other holders of such class generally; and
(xxii)the existence of, or the performance by Holdings or any of its Restricted
Subsidiaries of their obligations under the terms of, any customary registration rights agreement
to which they are a party or become a party in the future.
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(xxiii)investments by any of the Investors in securities of Holdings or any of its
Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Investors
in connection therewith) so long as the investment is being offered generally to other investors
on the same or more favorable terms;
(xxiv)transactions with joint ventures entered into in the ordinary course of business
(including any cash management activities related thereto);
(xxv)any lease entered into between Holdings or any of its Restricted Subsidiaries, as
lessee and any Affiliate of Holdings, as lessor, in the ordinary course of business; and
(xxvi)intellectual property licenses in the ordinary course of business.
10.2.16Plans. Establish or become party to any Pension Plan, Canadian Pension
Plan, Multiemployer Plan, Canadian Multi-Employer Plan or any Plan providing for medical or life
insurance benefits with respect to terminated or retired employees, other than any in existence on the First
Amendment Effective Date to which any Covenant Party or its Affiliate or ERISA Affiliate is a party, or
amend any Pension Plan, Canadian Pension Plan, Multi-Employer Plan, Canadian Multi-Employer Plan,
or any rights or entitlements, or the actuarial assumptions used thereunder, in a manner that would or
would reasonably be expected to cause a material increase in any Covenant Party’s or its Affiliate’s or
ERISA Affiliate’s liabilities thereunder (contingent or otherwise), except and to the extent (i) required by
applicable Laws or a collective bargaining agreement, (ii) as the direct result of the consummation of any
acquisition or (iii) if consented to in writing by Required Lenders or any such event could not reasonably
be expected to materially and adversely affect the Lenders. No Covenant Party, as a Canadian Pension
Plan sponsor or otherwise, shall, nor shall it permit, the wind up and/or termination of any Canadian
Pension Plan unless it gives Agent 30 days prior written notice of such wind up or termination.
10.2.17Certain Amendments. Amend, supplement or otherwise modify any
document, instrument or agreement relating to the (a) Fixed Asset Facility if such modification is
prohibited by the Intercreditor Agreement or (b) Secured Equivalent Investment Equivalent Debt
Document if such modification is prohibited by the applicable intercreditor agreement, if such
modification is materially adverse to the interests of any of (i) the Loan Parties, (ii) the Agent or (iii) the
Lenders, including, any amendments that would affect the non-recourse nature thereof.
10.3Financial Covenant. As long as any Commitments or Obligations (other than indemnity
obligations that are not currently due and payable) are outstanding:
10.3.1Fixed Charge Coverage Ratio. Parent and its Restricted Subsidiaries on a
consolidated basis shall maintain a Fixed Charge Coverage Ratio (as calculated on a consolidated basis)
of at least 1.0 to 1.0 for each Fixed Charge Coverage Ratio Test Period ending during any Financial
Covenant Trigger Period and on the date of the occurrence of the trigger for the applicable Financial
Covenant Trigger Period measured for the most recent period for which financial statements were
delivered hereunder prior to the Financial Covenant Trigger Period.
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SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
11.1Events of Default. Each of the following shall be an “Event of Default” hereunder, if the
same shall occur for any reason whatsoever, whether voluntary or involuntary, by operation of law or
otherwise:
(a)A Loan Party fails to (i) pay when and as required to be paid herein, any amount of
principal of any Loan or any reimbursement obligation under any drawn Letter of Credit or deposit any
funds as Cash Collateral in respect of LC Obligations, or (ii) pay within three Business Days after the
same becomes due, any interest on any Loan or on any reimbursement obligation under any drawn
Letter of Credit, or (iii) pay within five Business Days after the same becomes due, any other amount
payable hereunder or under any other Loan Document;
(b)Any representation, warranty or other written statement of a Loan Party made in
connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in
any material respect when given;
(c)(x) A Loan Party breaches or fails to perform any covenant contained in Sections 8.1,
10.1.3(d), 10.2 or 10.3, or (y) a Loan Party breaches or fails to perform any covenant contained in
Sections 8.2.4, 8.6.2(a)(1) or (b) or 10.1.1(a), and such breach or failure as referenced in this clause (y)
is not cured within five (5) days after a Responsible Officer of such Loan Party has knowledge thereof
or receives notice thereof from Agent, whichever is sooner;
(d)A Loan Party breaches or fails to perform any other covenant contained in any Loan
Documents, and such breach or failure is not cured within thirty (30) days after a Responsible Officer of
such Loan Party has knowledge thereof or receives notice thereof from Agent, whichever is sooner;
(e)A Guarantor repudiates, revokes or attempts to revoke, in writing, its Guarantee; a Loan
Party contests the validity or enforceability of any Loan Document or any Obligations; or the perfection
or priority of any Lien on any material portion of the Collateral granted or purported to be granted to
Agent or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or
release by Agent and Lenders (or Required Lenders, if applicable), or on any Collateral for which
perfection is not required hereunder or under any Loan Document, or any action solely in the control of
Agent);
(f)Any breach or default of a Loan Party occurs under any document, instrument or
agreement to which it is a party or by which it or any of its Properties is bound, relating to any
Indebtedness (other than the Obligations) in excess of the Dollar Equivalent of $35,000,000100,000,000,
if the effect of such breach or default is to permit the holder or holders of such Indebtedness to cause the
maturity of such Indebtedness to be accelerated or demanded, or required to be repurchased or redeemed
due to such breach;
(g)Any judgment or order for the payment of money is entered against a Loan Party in an
amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all
Loan Parties, the Dollar Equivalent of $35,000,000100,000,000 (in each case, net of any insurance
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coverage therefor which has not been denied in writing), which judgment or order is not paid,
discharged, bonded, stayed or waived within 60 days after such judgment or order becomes final, unless
a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal (and, where
applicable, the posting of any necessary bond) or otherwise;
(h)A loss, theft, damage or destruction occurs with respect to any Collateral if the amount
not covered by insurance exceeds the Dollar Equivalent of $100,000,000 (or, with respect to any
Collateral constituting ABL Priority Collateral, if the amount not covered by insurance exceeds the
Dollar Equivalent of $35,000,000);
(i)Any Loan Party generally fails to pay or admits in writing its inability or refusal to pay,
in each case, its debts as they become due; an Insolvency Proceeding is commenced by a Loan Party; a
Loan Party agrees to, commences or is subject to any liquidation, dissolution or winding up of its affairs
(except as permitted pursuant to Section 10.2.8); the Canadian Facility Loan Parties (excluding the U.S.
Facility Loan Parties), taken as a whole, or the U.S. Facility Loan Parties, in each case taken as a whole,
are not Solvent; a Loan Party makes an offer of settlement, extension or composition to its unsecured
creditors generally; a trustee is appointed to take possession of any substantial property of or to operate
any material portion of the business of a Loan Party; or an Insolvency Proceeding is commenced against
a Loan Party and either (1) such Loan Party consents to institution of the proceeding, (2) the petition
commencing the proceeding is not timely contested by such Loan Party, (3) the petition is not dismissed
within sixty (60) days after filing, or (4) an order for relief is entered in the proceeding;
(j)(i) (A) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that
has resulted or could reasonably be expected to result in liability of a Loan Party or ERISA Affiliate to a
Pension Plan, Multiemployer Plan, the PBGC or IRS, or which would constitute or could reasonably be
expected to constitute grounds for appointment of a trustee for or termination by the PBGC of any
Pension Plan or Multiemployer Plan; (B) a Loan Party or ERISA Affiliate fails to pay when due any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan; (C) the “funding target attainment percentage” (within the meaning of Code
Section 430) (“FTAP”) for any plan year of a Pension Plan falls below the FTAP of such Pension Plan
as of the First Amendment Effective Date; or (D) the amount of unfunded post-retirement benefit
liabilities, determined in accordance with ASC 715-60, that have resulted or could reasonably be
expected to result in liability of a Loan Party or its Affiliate or ERISA Affiliate increases relative to the
amount of such liabilities as of the First Amendment Effective Date; (ii) a Termination Event occurs;
(iii) any Canadian Domiciled Loan Party is in default with respect to any required contributions to a
Canadian Pension Plan; or (iv) any Lien arises (save for contribution amounts not yet due) in connection
with any Canadian Pension Plan, provided the events set forth in clauses (i), (ii), (iii) and (iv) (whether
or not in existence as of the First Amendment Effective Date), individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(k)A Change of Control occurs;
(l)Any subordination provision in any Junior Indebtedness in a principal amount of
$35,000,000100,000,000, or any subordination provision in any Guarantee by any Loan Party of any
Junior Indebtedness, shall cease to be in full force and effect, or any Loan Party shall contest in any
manner the validity, binding nature or enforceability of any such provision or a proceeding shall be
commenced by any subordinating party or any Governmental Authority having jurisdiction over any of
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them, seeking to establish the invalidity or unenforceability thereof; or
(m)At any time that any Permitted Secured Debt or Secured Incremental Equivalent Debt is
outstanding, the Intercreditor Agreement or other applicable intercreditor agreement shall cease to be in
full force or effect (except in accordance with its terms) or any of the Loan Parties or the Permitted
Secured Debt Collateral Agent shall challenge, deny or disaffirm their respective obligations thereunder.
11.2Remedies upon Default. If an Event of Default described in Section 11.1(i) occurs and
is continuing with respect to any Loan Party, then to the extent permitted by applicable Law, all
Obligations (other than Secured Bank Product Obligations) shall become automatically due and payable
and all Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or
if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of
Required Lenders) do any one or more of the following from time to time: declare any Obligations
(other than Secured Bank Product Obligations) immediately due and payable, whereupon they shall be
due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Loan Parties to the fullest extent permitted by law; terminate, reduce or condition
any Commitment, or make any adjustment to the Borrowing Base; require the Loan Parties to Cash
Collateralize LC Obligations and Secured Bank Product Obligations, and, if the Loan Parties fail
promptly to deposit such Cash Collateral, Agent may (and shall upon the direction of Required Lenders)
advance the required Cash Collateral as Loans (whether or not an Overadvance exists or is created
thereby, or the conditions in Section 6 are satisfied); and exercise any other rights or remedies afforded
under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party
under the UCC and the PPSA. Such rights and remedies include the rights to (i) take possession of any
Collateral; (ii) require the Loan Parties to assemble Collateral, at the Loan Parties’ expense, and make it
available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located
and store Collateral on such premises until sold (and if the premises are owned or leased by a Loan
Party, the Loan Parties agree not to charge for such storage); and (iv) sell or otherwise dispose of any
Collateral in its then condition, or after any further manufacturing or processing thereof, at public or
private sale, with such notice as may be required by applicable Law, in lots or in bulk, at such locations,
all as Agent, in its discretion, deems advisable. Each Loan Party agrees that ten (10) days’ notice of any
proposed sale or other disposition of Collateral by Agent shall be reasonable. Agent shall have the right
to conduct such sales on any Loan Party’s premises, without charge, and such sales may be adjourned
from time to time in accordance with applicable Law. Agent shall have the right to sell, lease or
otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase
any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the
purchase price, may set off the amount of such price against the Obligations.
11.3License. Effective upon the occurrence and during the continuance of an Event of
Default, Agent is hereby granted an irrevocable, worldwide, non-exclusive right and license, including
the right to sub-license (without payment of Royalty or other compensation to any Person) under any
and all Intellectual Property owned or sublicensable by the Loan Parties, including computer hardware
and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels,
packaging materials and other property, to use and exercise all other rights under such Intellectual
Property in connection with advertising for sale, marketing, selling, collecting, making, having made,
completing manufacture of, or otherwise exercising any rights or remedies with respect to, any
Collateral. Each Loan Party’s rights and interests under such Intellectual Property, and Agent’s use
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thereof under this Section, shall inure solely to such Loan Party’s benefit. With respect to any
trademarks or similar property included in the license granted hereunder, Agent shall ensure that the
quality of the goods and services with which it uses such trademark or similar property shall be
consistent with the quality of the goods and services as manufactured, marketed and sold by the Loan
Parties. Upon Agent’s reasonable request, each Mexican Guarantor shall execute and deliver any
instrument, document or agreement that Agent may reasonably request to register such license.
11.4Setoff. At any time after the occurrence and during the continuance of an Event of
Default, Agent, Issuing Banks, Lenders, and any of their Affiliates are authorized, to the fullest extent
permitted by applicable Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by Agent, such Issuing Bank, such Lender or such Affiliate to or for the
credit or the account of a Loan Party against any Obligations then due, irrespective of whether or not
Agent, such Issuing Bank, such Lender or such Affiliate shall have made any demand under this
Agreement or any other Loan Document and although such Obligations may be contingent or unmatured
or are owed to a branch or office of Agent, such Issuing Bank, such Lender or such Affiliate different
from the branch or office holding such deposit or obligated on such indebtedness. The rights of Agent,
each Issuing Bank, each Lender and each such Affiliate under this Section 11.4 are in addition to other
rights and remedies (including other rights of setoff) that such Person may have.
11.5Remedies Cumulative; No Waiver.
11.5.1Cumulative Rights. All agreements, warranties, guarantees, indemnities and other
undertakings of the Loan Parties under the Loan Documents are cumulative and not in derogation of each
other. The rights and remedies of Agent and Lenders are cumulative, may be exercised at any time and
from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies
available by agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full
force and effect until Full Payment of all Obligations.
11.5.2Waivers. No waiver or course of dealing shall be established by (a) the failure or
delay of Agent or any Lender to require strict performance by the Loan Parties with any terms of the
Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the
making of any Loan or issuance of any Letter of Credit during a Default, Event of Default or other failure
to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or
performance by a Loan Party under any Loan Documents in a manner other than that specified therein. It
is expressly acknowledged by the Loan Parties that any failure to satisfy a financial covenant on a
measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date.
11.6Judgment Currency. If, for the purpose of obtaining judgment in any court or obtaining
an order enforcing a judgment, it becomes necessary to convert any amount due under this Agreement in
Dollars or in any other currency (hereinafter in this Section 11.6 called the “first currency”) into any
other currency (hereinafter in this Section 11.6 called the “second currency”), then the conversion shall
be made at Agent’s spot rate of exchange for buying the first currency with the second currency
prevailing at Agent’s close of business on the Business Day next preceding the day on which the
judgment is given or (as the case may be) the order is made. Any payment made by a Loan Party to any
Secured Party pursuant to this Agreement in the second currency shall constitute a discharge of the
obligations of any applicable Loan Parties to pay to such Secured Party any amount originally due to the
Secured Party in the first currency under this Agreement only to the extent of the amount of the first
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currency which such Secured Party is able, on the date of the receipt by it of such payment in any second
currency, to purchase, in accordance with such Secured Party’s normal banking procedures, with the
amount of such second currency so received. If the amount of the first currency falls short of the
amount originally due to such Secured Party in the first currency under this Agreement, the Loan Parties
agree that they will indemnify each Secured Party against and save such Secured Party harmless from
any shortfall so arising. This indemnity shall constitute an obligation of each such Loan Party separate
and independent from the other obligations contained in this Agreement, shall give rise to a separate and
independent cause of action and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum or sums in respect of amounts due to any Secured Party under any Loan
Documents or under any such judgment or order. Any such shortfall shall be deemed to constitute a loss
suffered by such Secured Party and the Loan Parties shall not be entitled to require any proof or
evidence of any actual loss. If the amount of the first currency exceeds the amount originally due to a
Secured Party in the first currency under this Agreement, such Secured Party shall promptly remit such
excess to the Loan Parties. The covenants contained in this Section 11.6 shall survive the Full Payment
of the Obligations under this Agreement.
SECTION 12. AGENT
12.1Appointment, Authority and Duties of Agent.
12.1.1Appointment and Authority.
(a)Each Secured Party appoints and designates Bank of America as Agent under all Loan
Documents. Agent may, and each Secured Party authorizes Agent to, enter into all Loan Documents to
which Agent is intended to be a party and accept all Security Documents, for the benefit of Secured
Parties. Any action taken by Agent in accordance with the provisions of the Loan Documents, and the
exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably
incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the
generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing
and collecting agent for Secured Parties with respect to all payments and collections arising in
connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including
any intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as
collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan
Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with
Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with
respect to any Collateral or under any Loan Documents, applicable Law or otherwise. The duties of
Agent are ministerial and administrative in nature only, and Agent shall not have a fiduciary relationship
with any Secured Party, Participant or other Person, by reason of any Loan Document or any transaction
relating thereto. Agent alone shall be authorized to determine (in accordance with the terms hereof and
the other Loan Documents) whether any Account or Inventory constitutes an Eligible Account or
Eligible Inventory, whether to impose or release any reserve, or whether any conditions to funding or to
issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in
good faith, shall exonerate Agent from liability to any Secured Party or other Person for any error in
judgment.
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(b)[Reserved].
(c)Without limiting the powers of the Agent, for the purposes of holding any hypothec
granted pursuant to the laws of the Province of Québec to secure the payment and performance of any
and all Obligations by any Loan Party, each of the Secured Parties that is a party hereto hereby
irrevocably appoints and authorizes the Agent and ratifies the appointment and authorization of the
Agent, to act as the hypothecary representative, as contemplated under Article 2692 of the Civil Code of
Québec, for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”),
and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise
such powers and duties that are conferred upon the Hypothecary Representative under any related deed
of hypothec. The Hypothecary Representative shall: (a) have the sole and exclusive right and authority
to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and
remedies given to the Hypothecary Representative pursuant to any such deed of hypothec and applicable
law, and (b) benefit from and be subject to all provisions hereof with respect to the Agent mutatis
mutandis, including, without limitation, all such provisions with respect to the liability or responsibility
to and indemnification by the Secured Parties and Loan Parties. Any person who becomes a Secured
Party shall, by its execution of an Assignment and Acceptance Agreement, be deemed to have consented
to and confirmed the Hypothecary Representative as the person acting as hypothecary representative
holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured
Party, all actions taken by the Hypothecary Representative in such capacity. The substitution of the
Agent pursuant to the provisions of this Section 12 also constitute the substitution of the Hypothecary
Representative.
12.1.2Duties. The title of “Agent” is used solely as a matter of market custom and the
duties of Agent are administrative in nature only. Agent has no duties except those expressly set forth in
the Loan Documents, and in no event does Agent have any fiduciary or implied duty to or relationship
with any Secured Party or other Person by reason of any Loan Document or related transaction. The
conferral upon Agent of any right shall not imply a duty to exercise such right, unless instructed to do so
by Lenders in accordance with this Agreement.
12.1.3Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon,
and shall be fully protected in any action taken in good faith reliance upon, any advice given by an
Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents,
employees or Agent Professionals selected by it with reasonable care.
12.1.4Instructions of Required Lenders. The rights and remedies conferred upon Agent
under the Loan Documents may be exercised without the necessity of joinder of any other party, unless
required by applicable Law. In determining compliance with a condition for any action hereunder,
including satisfaction of any condition in Section 6, Agent may presume that the condition is
satisfactory to a Secured Party unless Agent has received notice to the contrary from such Secured Party
before Agent takes the action. Agent may request instructions from Required Lenders, Required Facility
Lenders or other Secured Parties with respect to any act (including the failure to act) in connection with
any Loan Documents or Collateral, and may seek assurances to its satisfaction from Secured Parties of
their indemnification obligations against Claims that could be incurred by Agent. Agent may refrain
from any act until it has received such instructions or assurances, and shall not incur liability to any
Person by
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reason of so refraining. Instructions of Required Lenders or Required Facility Lenders shall be binding
upon all Secured Parties, and no Secured Party shall have any right of action whatsoever against Agent
as a result of Agent acting or refraining from acting pursuant to instructions of all Lenders, Required
Lenders or Required Facility Lenders, as applicable. Notwithstanding the foregoing, instructions by and
consent of specific parties shall be required to the extent provided in Section 14.1.1. In no event shall
Agent be required to take any action that, in its opinion, is contrary to applicable Law or any Loan
Documents or could subject any Agent Indemnitee to personal liability.
12.2Agreements Regarding Collateral, Borrower Materials and Intercreditor Matters.
12.2.1Lien Releases; Care of Collateral; Intercreditor Matters.
(a)Canadian Lenders and the applicable Secured Parties (i) authorize Agent to, and Agent
shall, release any Lien or guarantee with respect to any Canadian Facility Collateral (a) upon Full
Payment of the Canadian Facility Obligations; (b) that is the subject of a disposition, merger,
amalgamation or other combination or transaction, or a Lien which Loan Party Agent certifies in writing
to Agent is not prohibited hereunder (and Agent may rely conclusively on any such certificate without
further inquiry); or (c) with the written consent of all Canadian Lenders (or such lesser number as may
be required by Section 14.1) and (ii) authorize Agent to, and upon Agent’s reasonable determination of
the appropriateness to do so, Agent shall, subordinate their Liens to any purchase money lien permitted
hereunder.
(b)U.S. Lenders and the applicable Secured Parties (i) authorize Agent to, and Agent shall,
release any Lien or guarantee with respect to any U.S. Facility Collateral (a) upon Full Payment of the
U.S. Facility Obligations; (b) that is the subject of a disposition or other transaction which Loan Party
Agent certifies in writing to Agent is not prohibited hereunder (and Agent may rely conclusively on any
such certificate without further inquiry); or (c) with the written consent of all U.S. Lenders or such lesser
number as may be required by Section 14.1) and (ii) authorize Agent to, and upon Agent’s reasonable
determination of the appropriateness to do so, Agent shall, subordinate their Liens to any purchase
money lien permitted hereunder.
(c)Agent shall have no obligation to assure that any Collateral exists or is owned by a Loan
Party, or is cared for, protected, insured or encumbered, nor to assure that Agent’s Liens have been
properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty
of care with respect to any Collateral.
(d)(i)U.S. Lenders and the applicable Secured Parties authorize Agent to enter into the
Intercreditor Agreement, (ii) U.S. Lenders and the applicable Secured Parties authorize Agent to enter
into other intercreditor agreements (in a form not materially less favorable, taken as a whole, to the U.S.
Lenders than the terms of the Intercreditor Agreement, in the case of Indebtedness with Junior Lien
Priority, or in a form customary for intercreditor agreements or collateral trust agreements in light of
then prevailing market conditions, in the case of Other Pari Passu Lien Obligations), subordination
agreements and amendments to the Security Documents to reflect arrangements with respect to any
obligations (other than the U.S. Facility Obligations) permitted to be incurred hereunder and secured by
Liens permitted to be incurred hereunder on all or a portion of the Collateral securing the U.S. Facility
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Obligations, on terms acceptable to Agent, and (iii) Canadian Lenders and the applicable Secured Parties
authorize Agent to enter into other intercreditor agreements (in a form not materially less favorable,
taken as a whole, to the Canadian Lenders than the terms of the Intercreditor Agreement, in the case of
Indebtedness with Junior Lien Priority, or in a form customary for intercreditor agreements or collateral
trust agreements in light of then prevailing market conditions, in the case of Other Pari Passu Lien
Obligations), subordination agreements and amendments to the Security Documents to reflect
arrangements with respect to any obligations (other than the Canadian Facility Obligations) permitted to
be incurred hereunder and secured by Liens permitted to be incurred hereunder on all or a portion of the
Collateral securing the Canadian Facility Obligations, on terms acceptable to Agent.
(e)Upon no less than ten (10) Business Days prior written notice (the “Tooling A/R
Removal Notice”) to Agent from a Responsible Officer of the Loan Party Agent, the U.S. Borrower and
the Canadian Borrower may, at their option, request that upon and after the effective date indicated in
such notice that: (i) Eligible Tooling Accounts no longer be included in either of the U.S. Borrowing
Base or the Canadian Borrowing Base and (ii) the related U.S. Tooling Vendor Reserve and the
Canadian Tooling Vendor Reserve also no longer be included in the U.S. Borrowing Base or Canadian
Borrowing Base, as applicable. Any Tooling A/R Removal Notice shall be irrevocable when given, and
each of the U.S. Borrower and the Canadian Borrower agree to deliver to Agent, upon request, an
updated Borrowing Base Certificate giving effect to the changes specified in the Tooling A/R Removal
Notice. Upon the requested effective date indicated in the Tooling A/R Removal Notice, it is agreed
that: (A) Eligible Tooling Accounts shall automatically, and without any further action required by any
Person, no longer be included in either of the U.S. Borrowing Base or the Canadian Borrowing Base
(nor shall the related U.S. Tooling Vendor Reserve nor the Canadian Tooling Vendor Reserve, as
applicable, be thereafter included) and (B) the Agent shall, at the sole expense of the Loan Party Agent,
terminate its Lien on all Accounts of the U.S. Borrower, the Canadian Borrower and each of their
respective Subsidiaries, which in each case arise from the sale of tooling (“Tooling A/R”), and shall
execute and deliver, without recourse, representation or warranty, all releases and other documents as
reasonably requested (including partial-release UCC-3 financing statements, and comparable
instruments under the PPSA) to evidence such release of Liens on Tooling A/R.
12.2.2Possession of Collateral.
(a)Agent, Canadian Lenders and the applicable Secured Parties appoint each Canadian
Lender as agent (for the benefit of Canadian Facility Secured Parties) for the purpose of perfecting Liens
in any Canadian Facility Collateral held or controlled by such Canadian Lender, to the extent such Liens
are perfected by possession or control.
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(b)Agent, the U.S. Lenders and the applicable Secured Parties appoint each U.S. Lender as
agent (for the benefit of U.S. Facility Secured Parties) for the purpose of perfecting Liens in any U.S.
Facility Collateral held or controlled by such U.S. Lender, to the extent such Liens are perfected by
possession or control.
(c)If any Lender obtains possession or control of any Collateral, it shall notify Agent thereof
and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with it in
accordance with Agent’s instructions.
12.2.3Reports. Agent shall promptly provide to Lenders, when complete, any field audit,
examination or appraisal report prepared for Agent with respect to any Loan Party or Collateral
(“Report”). Reports and other Borrower Materials may be made available to Lenders by providing access
to them on the Platform, but Agent shall not be responsible for system failures or access issues that may
occur from time to time. Each Lender agrees (a) that Reports are not intended to be comprehensive
audits or examinations, and that Agent or any other Person performing an audit or examination will
inspect only specific information regarding the Obligations or Collateral and will rely significantly upon
Borrowers’ books, records and representations; (b) that Agent makes no representation or warranty as to
the accuracy or completeness of any Borrower Materials and shall not be liable for any information
contained in or omitted from any Borrower Materials, including any Report; and (c) to keep all Borrower
Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or other
Borrower Materials (or the contents thereof) to any Person (except to such Lender’s Participants,
attorneys and accountants), and to use all Borrower Materials solely for administration of the Obligations.
Each Lender shall indemnify and hold harmless Agent and any other Person preparing a Report from any
action such Lender may take as a result of or any conclusion it may draw from any Borrower Materials,
as well as from any Claims arising as a direct or indirect result of Agent furnishing same to such Lender,
via the Platform or otherwise.
12.3Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in
relying, upon any certification, notice or other communication (including those by telephone, telex,
telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person. Agent shall have a reasonable and practicable amount of time to act upon
any instruction, notice or other communication under any Loan Document, and shall not be liable for
any delay in acting.
12.4Action Upon Default. Agent shall not be deemed to have knowledge of any Default or
Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has received written
notice from a Borrower or Required Lenders specifying the occurrence and nature thereof. If any
Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly
notify Agent thereof in writing. Each Secured Party agrees that, except as otherwise provided in any
Loan Documents or with the written consent of Agent and Required Lenders, it will not take any
Enforcement Action, accelerate Obligations (other than Secured Bank Product Obligations), or exercise
any right that it might otherwise have under applicable Law to credit bid at foreclosure sales, UCC or
PPSA sales or other dispositions of Collateral, or to assert any rights relating to any Collateral.
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12.5Ratable Sharing. If any Lender obtains any payment or reduction of any Obligation,
whether through set-off, lien enforcement or otherwise, in excess of its share of such Obligation,
determined on a Pro Rata basis or in accordance with Section 5.5.1, as applicable, such Lender shall
forthwith purchase from Agent, the applicable Issuing Bank and the other Applicable Lenders such
participations in the affected Obligation as are necessary to share the excess payment or reduction on a
Pro Rata basis or in accordance with Section 5.5.1, as applicable. If any of such payment or reduction is
thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest. No Lender shall set off against any DACA
Deposit Account or Dominion Account without the prior consent of Agent. Notwithstanding the
foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall immediately
turn over the amount thereof to Agent for application under Section 4.2.2 and it shall provide a written
statement to Agent describing the Obligation affected by such payment or reduction. No Lender shall
set off against any Dominion Account without Agent’s prior consent. For the avoidance of doubt, this
Section 12.5 shall not restrict (x) the repayment in full of the Obligations due and payable to the Non-
Extending Lender on the Facility Termination Date applicable to such Non-Extending Lender and/or (y)
the non-ratable termination of the Non-Extending Lender’s Commitments on the Facility Termination
Date (or on an earlier date pursuant to and in accordance with Section 2.1.4(a)).
12.6Indemnification. EXCEPT FOR LOSSES DETERMINED IN A FINAL, NON-
APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO RESULT FROM
AN AGENT INDEMNITEE’S OR ISSUING BANK INDEMNITEE’S ACTUAL GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A FINAL, NON-
APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION, EACH LENDER
SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES AND ISSUING BANK
INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY THE LOAN PARTIES, ON A PRO
RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED
AGAINST ANY SUCH INDEMNITEE, PROVIDED THAT ANY CLAIM AGAINST AN AGENT
INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE
CAPACITY OF AGENT). In Agent’s discretion, it may reserve for any Claims made against an Agent
Indemnitee or Issuing Bank Indemnitee, and may satisfy any judgment, order or settlement relating
thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Secured
Parties. If Agent is sued by any Creditor Representative, debtor-in-possession or other Person for any
alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of
such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the
defense of same, shall be promptly reimbursed to Agent by each Lender to the extent of its Pro Rata
share.
12.7Limitation on Responsibilities of Agent. Agent shall not be liable to any Secured Party
for any action taken or omitted to be taken under the Loan Documents, except for losses determined in a
final, non-appealable judgment by a court of competent jurisdiction to result from Agent’s actual gross
negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in
performance or any breach by any Loan Party, Lender or other Secured Party of any obligations under
the Loan Documents. Agent does not make any express or implied warranty, representation or
guarantee to Secured Parties with respect to any Obligations, Collateral, Loan Documents or Loan Party.
No Agent Indemnitee shall be responsible to Secured Parties for any recitals, statements, information,
representations or warranties contained in any Loan Documents or Borrower Materials; the execution,
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validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity,
extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any
Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness
or legal status of any Loan Party or Account Debtor. No Agent Indemnitee shall have any obligation to
any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the
observance by any Loan Party of any terms of the Loan Documents, or the satisfaction of any conditions
precedent contained in any Loan Documents.
12.8Successor Agent and Co-Agents.
12.8.1Resignation; Successor Agent. Subject to the appointment and acceptance of a
successor Agent as provided below, Agent may resign at any time by giving at least thirty (30) days
written notice thereof to Lenders and Loan Party Agent Upon receipt of such notice, Required Lenders
shall have the right to appoint a successor Agent which shall be (a) a U.S. Lender or an Affiliate of a U.S.
Lender; or (b) a financial institution reasonably acceptable to Required Lenders and (provided no Default
or Event of Default exists) Borrowers. If no successor agent is appointed prior to the effective date of
Agent’s resignation, then Agent may appoint a successor agent that is a financial institution acceptable to
it, which shall be a Lender unless no Lender accepts the role. Upon acceptance by a successor Agent of
its appointment hereunder, such successor Agent shall thereupon succeed to and become vested with all
the powers and duties of the retiring Agent without further act, and the retiring Agent shall be discharged
from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set
forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s resignation, the provisions of this
Section 12 shall continue in effect for its benefit with respect to any actions taken or omitted to be taken
by it while Agent. Any successor to Bank of America by merger or acquisition of stock or this loan shall
continue to be Agent hereunder without further act on the part of any Secured Party or Loan Party.
12.8.2Co-Collateral Agent. If necessary or appropriate under applicable Law, Agent
may appoint a Person to serve as a co-collateral agent or separate collateral agent under any Loan
Document. Each right and remedy intended to be available to Agent under the Loan Document shall also
be vested in such agent. Secured Parties shall execute and deliver any instrument, document or
agreement that Agent may request to effect such appointment. If the agent shall die, dissolve, become
incapable of acting, resign or be removed, then all the rights and remedies of such agent, to the extent
permitted by applicable Law, shall vest in and be exercised by Agent until appointment of a new agent.
12.9Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has,
independently and without reliance upon Agent or any other Lenders, and based upon such documents,
information and analyses as it has deemed appropriate, made its own credit analysis of each Loan Party
and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations
hereunder. Each Secured Party has made such inquiries as it feels necessary concerning the Loan
Documents, Collateral and Loan Parties. Each Secured Party acknowledges and agrees that the other
Secured Parties have made no representations or warranties concerning any Loan Party, any Collateral
or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each
Secured Party will, independently and without reliance upon any other Secured Party, and based upon
such financial statements, documents and information as it deems appropriate at the time, continue to
make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in
taking or refraining from any action under any Loan Documents. Except for notices, reports and other
information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any
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Secured Party with any notices, reports or certificates furnished to Agent by any Loan Party or any
credit or other information concerning the affairs, financial condition, business or Properties of any Loan
Party (or any of its Affiliates) which may come into possession of Agent or its Affiliates.
12.10Replacement of Certain Lenders. If a Lender (a) is a Defaulting Lender, (b) fails to
give its consent to any amendment, waiver or action for which consent of all Lenders or the
Supermajority Required Facility Lenders was required, and Required Lenders, or Required Facility
Lenders, as applicable, have consented, or (c) gives notice under Section 3.5 or requests compensation
under Section 3.7, or if either Borrower is required to pay additional amounts or indemnity payments
with respect to a Lender under Section 5.8, then, in addition to any other rights and remedies that any
Person may have, Agent or Loan Party Agent may, by notice to such Lender within one hundred twenty
(120) days after such event (or within one hundred twenty (120) days after receipt of a notice from such
Lender claiming indemnity payments under Section 5.8), require such Lender to assign all of its rights
and obligations under the Loan Documents to Eligible Assignee(s) specified by Agent or Loan Party
Agent, pursuant to appropriate Assignment and Acceptance(s) and within twenty (20) days after Agent’s
or Loan Party Agent’s notice, as applicable; provided that, in the case of an assignment resulting from a
claim for compensation or indemnity payments under Section 3.7 or Section 5.8, such assignment will
result in a reduction of claims for compensation or indemnity payments thereafter. Agent is irrevocably
appointed as attorney-in-fact to execute any such Assignment and Acceptance if Lender fails to execute
same. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts
owed to it under the Loan Documents, including all principal, interest and fees through the date of
assignment but excluding any prepayment charge. With respect to the Non-Extending Lender, Loan
Party Agent may, by notice to such Non-Extending Lender and Agent, require the Non-Extending
Lender to assign all of its rights and obligations under the Loan Documents (with respect to all or a
portion of its Loans and Commitments) to Eligible Assignee(s) specified by Loan Party Agent, pursuant
to appropriate Assignment and Acceptance(s) in accordance with Section 13.3 (and subject to the terms
of this Section 12.10) and upon execution and delivery of such Assignment and Acceptance(s) (subject
to the following proviso), such Eligible Assignee(s) shall constitute Lenders for all purposes of this
Agreement and the other Loan Documents (and not, for the avoidance of doubt, Non-Extending
Lenders); provided, that any such Assignment and Acceptance shall be conditioned upon the Non-
Extending Lender receiving, in cash, concurrently with the execution and delivery thereof, all amounts
owed to it under the Loan Documents (with respect to the interests so assigned) at par, including all
principal, interest and fees through the date of assignment. Agent is irrevocably appointed as attorney-
in-fact to execute any such Assignment and Acceptance if the Non-Extending Lender fails to execute the
same within ten (10) Business Days of Notice thereof. For the avoidance of doubt and notwithstanding
anything to the contrary set forth herein, any Commitments (and related Revolver Loans) assigned from
the Non-Extending Lender pursuant to this Section 12.10 or otherwise shall, immediately upon such
assignment and without any further action of any Person, be subject to the Facility Termination Date set
forth in clause (b) of the definition thereof.
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12.11Remittance of Payments and Collections.
12.11.1Remittances Generally. All payments by any Lender to Agent shall be
made by the time and on the day set forth in this Agreement, in immediately available funds. If no time
for payment is specified or if payment is due on demand by Agent and request for payment is made by
Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on
such day, and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the next
Business Day. Payment by Agent to any Secured Party shall be made by wire transfer, in the type of
funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts
due from such payee under the Loan Documents.
12.11.2Failure to Pay. If any Secured Party fails to pay any amount when due by it
to Agent pursuant to the terms hereof, such amount shall bear interest, from the due date until paid in full,
at the rate determined by Agent as customary for interbank compensation for two Business Days and
thereafter at the Default Rate for Floating Rate Loans. In no event shall Borrowers be entitled to receive
credit for any interest paid by a Secured Party to Agent, nor shall any Defaulting Lender be entitled to
interest on any amounts held by Agent pursuant to Section 4.2.
12.11.3Recovery of Erroneous Payments. Without limitation of any other
provision herein, if at any time Agent makes a payment hereunder in error to any Secured Party, whether
or not in respect of an Obligation due and owing by Borrowers at such time, where such payment is a
Rescindable Amount, then in any such event each Secured Party receiving a Rescindable Amount
severally agrees to repay to Agent forthwith on demand the Rescindable Amount received by such
Secured Party in immediately available funds in the currency so received, with interest thereon for each
day from and including the date such Rescindable Amount is received by it to but excluding the date of
repayment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in
accordance with banking industry rules on interbank compensation. Each Secured Party irrevocably
waives any and all defenses, including any defense of discharge for value (under which a creditor might
otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by
another) or similar defense to its obligation to return any Rescindable Amount. Agent shall inform each
Secured Party promptly upon determining that any payment made to such Secured Party was comprised,
in whole or in part, of a Rescindable Amount.
12.12Individual Capacity. As a Lender, Bank of America shall have the same rights and
remedies under the Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders”,
“Required Facility Lenders” or any similar term shall include Bank of America in its capacity as a
Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, provide Bank
Products to, act as financial or other advisor to, and generally engage in any kind of business with, Loan
Parties and their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account
therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates may
receive information regarding Loan Parties, their Affiliates and their Account Debtors (including
information subject to confidentiality obligations), and shall have no obligation to provide such
information to any Secured Party.
12.13Titles. Each Lender, other than Bank of America, that is designated (on the cover page
of this Agreement or otherwise) by Bank of America as an “Agent,” “Arranger” or “Bookrunner” of any
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type shall have no right, power or duty under any Loan Documents other than those applicable to all
Lenders, and shall in no event have any fiduciary duty to any Secured Party.
12.14Bank Product Providers. Each Secured Bank Product Provider, by delivery of a notice
to Agent of a Bank Product, agrees to be bound by Section 5.5 and this Section 12. Each Secured Bank
Product Provider shall indemnify and hold harmless Agent Indemnitees, to the extent not reimbursed by
Loan Parties, against all Claims that may be incurred by or asserted against any Agent Indemnitee in
connection with such provider’s Secured Bank Product Obligations.
12.15No Third Party Beneficiaries. This Section 12 (other than Section 12.2.1, 12.8 and
12.10) is an agreement solely among Lenders (and to the extent expressly contemplated hereby, Lenders
and their Affiliates in their capacities as Secured Bank Product Providers) and Agent, and shall survive
Full Payment of the Obligations. This Section 12 (other than Section 12.2.1, 12.8 and 12.10) does not
confer any rights or benefits upon the Loan Parties or any other Person. As between the Loan Parties
and Agent, any action that Agent may take under any Loan Documents or with respect to any
Obligations shall be conclusively presumed to have been authorized and directed by Secured Parties.
12.16Certain ERISA Matters.
12.16.1Lender Representations. Each Lender represents and warrants, as of the
date it became a Lender party hereto, and covenants, from the date it became a Lender party hereto to the
date it ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to
or for the benefit of the Loan Parties, that at least one of the following is and will be true: (a) Lender is
not using “plan assets” (within the meaning of ERISA Section 3(42) or otherwise) of one or more Benefit
Plans with respect to Lender’s entrance into, participation in, administration of and performance of the
Loans, Letters of Credit, Commitments or Loan Documents; (b) the transaction exemption set forth in
one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions
involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain
transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect to Lender’s entrance into,
participation in, administration of and performance of the Loans, Letters of Credit, Commitments and
Loan Documents; (c)(i) Lender is an investment fund managed by a “Qualified Professional Asset
Manager” (within the meaning of Part VI of PTE 84-14), (ii) such Qualified Professional Asset Manager
made the investment decision on behalf of Lender to enter into, participate in, administer and perform the
Loans, Letters of Credit, Commitments and Loan Documents, (iii) the entrance into, participation in,
administration of and performance of the Loans, Letters of Credit, Commitments and Loan Documents
satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14, and (iv) to the best
knowledge of Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect
to Lender’s entrance into, participation in, administration of and performance of the Loans, Letters of
Credit, Commitments and Loan Documents; or (d) such other representation, warranty and covenant as
may be agreed in writing between Agent, in its discretion, and Lender.
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12.16.2Further Lender Representations. Unless Section 12.16.1(a) or (d) is true
with respect to a Lender, such Lender further represents and warrants, as of the date it became a Lender
hereunder, and covenants, from the date it became a Lender to the date it ceases to be a Lender
hereunder, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of any Loan
Party, that Agent is not a fiduciary with respect to the assets of such Lender involved in its entrance into,
participation in, administration of and performance of the Loans, Letters of Credit, Commitments and
Loan Documents (including in connection with the reservation or exercise of any rights by Agent under
any Loan Document.
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
13.1Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the Loan Parties, Agent, Lenders, and their respective successors and assigns, except that (a) no Loan
Party (other than pursuant to a transaction permitted under Section 10.2.7) shall have the right to assign
its rights or delegate its obligations under any Loan Documents; and (b) any assignment by a Lender
must be made in compliance with Section 13.3. Agent may treat the Person which made any Loan as
the owner thereof for all purposes until such Person makes an assignment in accordance with Section
13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent
transferee or assignee of such Lender.
13.2Participations.
13.2.1Permitted Participants; Effect. Any Lender may, in the ordinary course of its
business and in accordance with applicable Law, at any time sell to a financial institution (“Participant”)
a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite
any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties
hereto for performance of such obligations, such Lender shall remain the holder of its Loans and Facility
Commitments for all purposes, all amounts payable by the Loan Parties within the applicable Loan Party
Group shall be determined as if such Lender had not sold such participating interests, and the Loan
Parties within the applicable Loan Party Group and Agent shall continue to deal solely and directly with
such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for
notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders
shall not have any obligation or liability to any such Participant. A Participant shall be entitled to the
benefits of Section 5.8 in the same manner as if the Participant acquired its interest by assignment,
provided the Participant complies with the requirements of Section 5.9 as if it were a Lender. Each
Lender that sells participations to a Participant, acting solely for this purpose as a non-fiduciary agent of
the Borrowers, shall maintain a register of all such Participants, provided that no Lender shall have any
obligation to disclose all or any portion of the Participant register to any Person (including the identity of
any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its
other obligations under any Loan Document) except to the extent that such disclosure is necessary to
establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c)
of the Treasury regulations. The entries in the participant register shall be conclusive (absent manifest
error), and the Borrowers and the Lenders shall treat each Person whose name is recorded in the
participant register pursuant to the terms hereof as a participant for all purposes of this Agreement,
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notwithstanding notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall
have no responsibility for maintaining a participant register.
13.2.2Voting Rights. Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, waiver or other modification of any Loan Documents other
than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with
respect to the applicable Loan or Facility Commitment in which such Participant has an interest,
postpones the Canadian Revolver Commitment Termination Date or U.S. Revolver Commitment
Termination Date, as applicable, or any date fixed for any regularly scheduled payment of principal,
interest or fees on such Loan or Commitment in which such Participant has an interest, or releases the
applicable Borrower, or all or substantially all of the benefits of the applicable Guarantee, or all or
substantially all of the applicable Collateral.
13.2.3Benefit of Set-Off. The Loan Parties agree that each Participant shall have a right
of set-off in respect of its participating interest to the same extent as if such interest were owing directly
to a Lender, and each Lender shall also retain the right of set-off with respect to any participating
interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all
amounts received through its set-off, in accordance with Section 12.5 as if such Participant were a
Lender.
13.3Assignments.
13.3.1Permitted Assignments. A Lender may assign to an Eligible Assignee any of its
rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not
a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in
the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless otherwise
agreed by Agent and Loan Party Agent, each in its discretion) and integral multiples of $1,000,000 in
excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and
obligations, the aggregate amount of the Commitments retained by the transferor Lender is at least
$5,000,000 (unless otherwise agreed by Agent and Loan Party Agent, each in its discretion); (c) the
parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an
Assignment and Acceptance; and (d) the transferee Lender shall have executed a joinder to the
Reallocation Agreement in form and substance acceptable to Agent. Nothing herein shall limit the right
of a Lender to pledge or assign any rights under the Loan Documents to (i) any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to Regulation A of the FRB and any Operating
Circular issued by such Federal Reserve Bank, or (ii) counterparties to swap agreements relating to any
Loans; provided, however, (i) such Lender shall remain the holder of its Loans and owner of its interest
in any Letter of Credit for all purposes hereunder, (ii) the Borrowers, Agent, the other Lenders and
Issuing Banks shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, (iii) any payment by the Loan Parties to the
assigning Lender in respect of any Obligations assigned as described in this sentence shall satisfy the
Loan Parties’ obligations hereunder to the extent of such payment, and no such assignment shall release
the assigning Lender from its obligations hereunder. Notwithstanding the foregoing, nothing herein shall
limit the right of a Lender to pledge or assign any rights under the Loan Documents to another Lender
following an acceleration of Loans and termination of Commitments pursuant to Section 11.2 in
connection with implementation of the Reallocation Agreement following a Designation Date.
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13.3.2Register. Agent, acting solely for this purpose as a non-fiduciary agent of the
Borrowers, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest
error, and the Borrowers, Agent and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
13.3.3Effect; Effective Date. Upon delivery to Agent of an assignment notice in the
form of Exhibit E and a processing fee of $3,500 (unless otherwise agreed by Agent in its discretion), the
assignment shall become effective as specified in the notice, if it complies with this Section 13.3. From
such effective date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents,
and shall have all rights and obligations of a Lender thereunder. Upon consummation of an assignment,
the transferor Lender, Agent and the Loan Parties shall upon request by the transferring or transferee
Lender make appropriate arrangements for issuance of replacement and/or new Notes, as applicable. The
transferee Lender shall comply with Section 5.9 and deliver, upon request, an administrative
questionnaire satisfactory to Agent.
13.3.4Certain Assignees. No assignment or participation may be made to a Borrower,
Affiliate of a Borrower, Defaulting Lender or natural person. Any assignment by a Defaulting Lender
shall be effective only upon payment by the Eligible Assignee or Defaulting Lender to Agent of an
aggregate amount sufficient, upon distribution (through direct payment, purchases of participations or
other compensating actions as Agent deems appropriate), to satisfy all funding and payment liabilities
then owing by the Defaulting Lender hereunder. If an assignment by a Defaulting Lender shall become
effective under applicable Law for any reason without compliance with the foregoing sentence, then the
assignee shall be deemed a Defaulting Lender for all purposes until such compliance occurs.
SECTION 14. MISCELLANEOUS
14.1Consents, Amendments and Waivers.
14.1.1Amendment. No modification of any Loan Document, including any extension or
amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective
without the prior written agreement of Agent (with the consent of Required Lenders) and each Loan Party
party to such Loan Document; provided, however, that:
(a)without the prior written consent of Agent, no modification shall be effective with respect
to any provision in a Loan Document that relates to any rights, duties or discretion of Agent;
(b)without the prior written consent of each affected Issuing Bank, no modification shall be
effective with respect to any LC Obligations, Section 2.2 or Section 2.3 or any other provision in a Loan
Document that relates to any rights, duties or discretion of such affected Issuing Bank;
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(c)without the prior written consent of each affected Lender, including a Defaulting Lender,
no modification shall be effective that would (i) increase the Facility Commitment of such Lender; (ii)
reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such
Lender (except as provided in Section 4.2); (iii) increase the aggregate amount of all Commitments
(except as set forth in Section 2.1.4) or (iv) extend the U.S. Revolver Commitment Termination Date,
the Canadian Revolver Commitment Termination Date or Facility Termination Date;
(d)without the prior written consent of all Lenders (except any Defaulting Lender), no
modification shall be effective that would (i) alter Section 5.5, 7.1 (except to add Collateral) or 14.1.1;
(ii) amend the definitions of Pro Rata, Required Lenders, Required Facility Lenders or Supermajority
Required Facility Lenders; (iii) amend this Section 14.1.1; or (iv) increase the Maximum Facility
Amount (except as set forth in Section 2.1.4);
(e)without the prior written consent of the Supermajority Required Facility Lenders having
Commitments to a Borrower (except a Defaulting Lender as and to the extent provided in Section 4.2),
no amendment or waiver shall be effective that would (x) with respect to Lenders having Facility
Commitments to the Canadian Borrower, amend the definition of Canadian Borrowing Base (or, for
purposes of such definition, any defined term used in such definition) or (y) with respect to Lenders
having Facility Commitments to the U.S. Borrower, amend the definition of U.S. Borrowing Base (or,
for purposes of such definition, any defined term used in such definition);
(f)without the prior written consent of all Lenders having Commitments to a Borrower
(except a Defaulting Lender as and to the extent provided in Section 4.2), no amendment or waiver shall
be effective that would (x) with respect to Lenders having Facility Commitments to the Canadian
Borrower, (i) increase the advance rates applicable to the Canadian Borrower, (ii) release all or
substantially all of the Canadian Facility Collateral, except as currently contemplated by Section 12.2.1,
or (iii) release any Canadian Facility Loan Party from liability for any Canadian Facility Obligations,
except as currently contemplated by Section 12.2.1; or (y) with respect to Lenders having Facility
Commitments to the U.S. Borrower, (i) increase the advance rates applicable to the U.S. Borrower, (ii)
release all or substantially all of the U.S. Facility Collateral, except as currently contemplated by
Section 12.2.1, or (iii) release any U.S. Facility Loan Party from liability for any U.S. Facility
Obligations, except as currently contemplated by Section 12.2.1; and
(g)without the prior written consent of a Secured Bank Product Provider, no modification
shall be effective that affects its relative payment priority under Section 5.5.1.
Notwithstanding any other provision contained herein, it is understood and agreed that (x) Agent and the
Loan Party Agent may amend or modify this Agreement and any other Loan Document to cure any
ambiguity, omission, defect or inconsistency therein and (y) this Agreement and the other Loan
Documents may be amended and converted into an accounts receivables facility with the prior written
agreement of Agent (with the consent of Required Lenders) and each Loan Party party hereto.
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14.1.2Limitations. The agreement of the Loan Parties shall not be necessary to the
effectiveness of any modification of a Loan Document that deals solely with the rights and duties of
Lenders, Agent and/or Issuing Banks as among themselves. Only the consent of the parties to any
Collateral Access Agreement, Deposit Account Control Agreement or any agreement relating to fees or a
Bank Product shall be required for modification of such agreement, and no Bank Product provider (in
such capacity) shall have any right to consent to modification of any Loan Document other than its Bank
Product agreement. The making of any Loans during the existence of a Default or Event of Default shall
not be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of
dealing. Any waiver or consent granted by Agent or Lenders hereunder shall be effective only if in
writing, and then only in the specific instance and for the specific purpose for which it is given.
14.1.3Payment for Consents. No Loan Party will, directly or indirectly, pay any
remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any
Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any
modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the
same terms, on a Pro Rata basis to all Lenders providing their consent.
14.2Indemnity. EACH LOAN PARTY SHALL INDEMNIFY AND HOLD HARMLESS
THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED
AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ASSERTED BY ANY LOAN PARTY OR
OTHER PERSON OR ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE; provided that, in
no event shall any Loan Party have any obligation hereunder to indemnify or hold harmless an
Indemnitee with respect to a Claim that is determined in a final, non-appealable judgment by a court of
competent jurisdiction to result from its actual gross negligence or willful misconduct. In the case of an
investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding is brought by the Loan
Parties, their equity holders or creditors, partners, a third party or an Indemnitee and whether or not an
Indemnitee is otherwise a party thereto and, except for losses determined in a final, non-appealable
judgment by a court of competent jurisdiction to result from an Indemnitee’s actual gross negligence or
willful misconduct.
14.3Notices and Communications.
14.3.1Notice Address. Subject to Section 4.1.4, all notices and other communications by
or to a party hereto shall be in writing and shall be given to any Loan Party, at Loan Party Agent’s
address shown on the signature pages hereof, and to any other Person at its address shown on the
signature pages hereof (or, in the case of a Person who becomes a Lender after the Third Restatement
Date, at the address shown on its Assignment and Acceptance), or at such other address as a party may
hereafter specify by notice in accordance with this Section 14.3. Each such notice or other
communication shall be effective only (a) if given by facsimile transmission, when transmitted to the
applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three (3)
Business Days after deposit in the U.S. mail (or, in the case of a Canadian Domiciled Loan Party, the
Canadian mail system), with first-class postage pre-paid, addressed to the applicable address; (c) if given
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by personal delivery, when duly delivered to the notice address with receipt acknowledged; (d) if given
by electronic mail or any other telecommunications device, when transmitted to an electronic mail
address (or by another means of electronic delivery). Notwithstanding the foregoing, no notice to Agent
pursuant to Section 2.1.4, 2.2, 2.3, 3.1.2, 3.1.3 or 4.1.1 shall be effective until actually received by the
individual or department to whose attention at Agent such notice is required to be sent. Any written
notice or other communication that is not sent in conformity with the foregoing provisions shall
nevertheless be effective on the date actually received by the noticed party. Any notice received by Loan
Party Agent shall be deemed received by all Loan Parties.
14.3.2Electronic Communications. Electronic and telephonic communications (including
e-mail, messaging, voice mail and websites) may be used only in a manner acceptable to Agent. Secured
Parties make no assurance as to the privacy or security of electronic or telephonic communications. E-
mail and voice mail shall not be effective notices under the Loan Documents.
14.3.3Platform. Borrower Materials shall be delivered pursuant to procedures approved
by Agent, including electronic delivery (if possible) upon request by Agent to an electronic system
maintained by Agent (“Platform”). Borrowers shall notify Agent of each posting of Borrower Materials
on the Platform and the materials shall be deemed received by Agent only upon its receipt of such notice.
Borrower Materials and other information relating to this credit facility may be made available to Lenders
on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the
accuracy or completeness of any information on the Platform nor the adequacy or functioning of the
Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials or any
issues involving the Platform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY AGENT WITH RESPECT TO
BORROWER MATERIALS OR THE PLATFORM. Lenders acknowledge that Borrower Materials may
include material non-public information of Loan Parties and should not be made available to any
personnel who do not wish to receive such information or who may be engaged in investment or other
market-related activities with respect to any Loan Party’s securities. No Agent Indemnitee shall have any
liability to Borrowers, Lenders or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform or delivery
of Borrower Materials and other information through the Platform.
14.3.4Non-Conforming Communications. Agent and Lenders may rely upon any
communications purportedly given by or on behalf of any Loan Party even if they were not made in a
manner specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by
the recipient, varied from a later confirmation. Each Loan Party shall indemnify and hold harmless each
Indemnitee from any liabilities, losses, costs and expenses arising from any non-conforming
communication (including telephonic and electronic communications) purportedly given by or on behalf
of a Loan Party.
14.4Performance of the Loan Parties’ Obligations. Agent may, in its discretion at any time
and from time to time, at the expense of the Loan Parties of the applicable Loan Party Group, pay any
amount or do any act required of a Loan Party under any Loan Documents to (a) enforce any Loan
Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c)
defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a
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judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or
any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent
under this Section 14.4 shall be reimbursed to Agent by the Loan Parties, on demand, with interest
from the date incurred to the date of payment thereof at the rate applicable to U.S. Base Rate Loans.
Any payment made or action taken by Agent under this Section 14.4 shall be without prejudice to any
right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.
14.5Credit Inquiries. Agent and Lenders may (but shall have no obligation) to respond to
usual and customary credit inquiries from third parties concerning any Loan Party or Subsidiary.
14.6Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under applicable Law. If any provision is found to be invalid
under applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining
provisions of the Loan Documents shall remain in full force and effect.
14.7Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several limitations, tests or
measurements to regulate similar matters, and they agree that these are cumulative and that each must be
performed as provided. Except as otherwise provided in another Loan Document (by specific reference
to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with
any provision in another Loan Document, the provision herein shall govern and control.
14.8Execution; Electronic Records. Any Loan Document, including any required to be in
writing, may (if agreed by Agent) be in the form of an Electronic Record and may be executed using
Electronic Signatures. An Electronic Signature on or associated with any Communication shall be valid
and binding on each Loan Party and other party thereto to the same extent as a manual, original
signature, and any Communication entered into by Electronic Signature shall constitute the legal, valid
and binding obligation of each party, enforceable to the same extent as if a manually executed original
signature were delivered. A Communication may be executed in as many counterparts as necessary or
convenient, including both paper and electronic counterparts, but all such counterparts are one and the
same Communication. The parties may use or accept manually signed paper Communications converted
into electronic form (such as scanned into pdf), or electronically signed Communications converted into
other formats, for transmission, delivery and/or retention. Agent and Lenders may, at their option,
create one or more copies of a Communication in the form of an imaged Electronic Record (“Electronic
Copy”), which shall be deemed created in the ordinary course of the Person’s business, and may destroy
the original paper document. Any Communication in the form or format of an Electronic Record,
including an Electronic Copy, shall be considered an original for all purposes, and shall have the same
legal effect, validity and enforceability as a paper record. Notwithstanding anything herein, (a) Agent is
under no obligation to accept an Electronic Signature in any form unless expressly agreed by it pursuant
to procedures approved by it; (b) each Secured Party shall be entitled to rely on any Electronic Signature
purportedly given by or on behalf of a Loan Party without further verification and regardless of the
appearance or form of such Electronic Signature; and (c) upon request by Agent, any Loan Document
using an Electronic Signature shall be promptly followed by a manually executed, original counterpart.
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14.9Entire Agreement. Time is of the essence with respect to all Loan Documents and
Obligations. The Loan Documents constitute the entire agreement, and supersede all prior
understandings and agreements, among the parties relating to the subject matter thereof.
14.10Relationship with Lenders. The obligations of each Lender hereunder are several, and
no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts
payable hereunder to each Lender shall be a separate and independent debt. It shall not be necessary for
Agent or any other Lender to be joined as an additional party in any proceeding for such purposes.
Nothing in this Agreement and no action of Agent, Lenders or any other Secured Party pursuant to the
Loan Documents or otherwise shall be deemed to constitute Agent and any Secured Party to be a
partnership, joint venture or similar arrangement, nor to constitute control of any Loan Party.
14.11No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated by any Loan Document, the Loan Parties acknowledge and agree that (a)(i)
this credit facility and any related arranging or other services by Agent, any Lender, any of their
Affiliates or any arranger are arm’s-length commercial transactions between the Loan Parties and such
Person; (ii) the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to
the extent they have deemed appropriate; and (iii) the Loan Parties are capable of evaluating, and
understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan
Documents; (b) each of Agent, Lenders, their Affiliates and any arranger is and has been acting solely as
a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their Affiliates or any
other Person (except as expressly set forth in Section 13.3.2), and has no obligation with respect to the
transactions contemplated by the Loan Documents except as expressly set forth therein; and (c) Agent,
Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that involve
interests that differ from those of the Loan Parties and their Affiliates, and have no obligation to disclose
any of such interests to the Loan Parties or their Affiliates. Each Loan Party hereby agrees that it will
not claim that any of the Agent, Lenders and their respective Affiliates has rendered advisory services of
any nature or respect or owes a fiduciary duty or similar duty to it in connection with any transaction
contemplated by a Loan Document.
14.12Confidentiality. Each of Agent, Lenders and Issuing Banks shall maintain the
confidentiality of all Information (as defined below), except that Information may be disclosed (a) to its
Affiliates, and to its and their partners, directors, officers, employees, agents, advisors and
representatives (provided such Persons are informed of the confidential nature of the Information and
instructed to keep it confidential); (b) to the extent requested by any governmental, regulatory or self-
regulatory authority purporting to have jurisdiction over it or its Affiliates; (c) to the extent required by
applicable Law or by any subpoena or other legal process; (d) to any other party hereto; (e) in
connection with any action or proceeding relating to any Loan Documents or Obligations; (f) subject to
an agreement containing provisions substantially the same as this Section 14.12, to any Transferee or
any actual or prospective party (or its advisors) to any Bank Product; (g) to any direct or indirect
contractual counterparty in Hedging Agreements or such contractual counterparty’s professional advisor,
(h) with the consent of Loan Party Agent; or (i) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 14.12 or (ii) is available to Agent, any Lender,
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any Issuing Bank or any of their Affiliates on a nonconfidential basis from a source other than the Loan
Parties. Notwithstanding the foregoing, Agent and Lenders may publish or disseminate general
information concerning this credit facility for league table, tombstone and advertising purposes, and may
use the Loan Parties’ logos, trademarks or product photographs in advertising materials. As used herein,
“Information” means all information received from a Loan Party or Subsidiary relating to it or its
business that is identified as confidential when delivered. Any Person required to maintain the
confidentiality of Information pursuant to this Section 14.12 shall be deemed to have complied if it
exercises a degree of care similar to that which it accords its own confidential information. Each of
Agent, Lenders and Issuing Banks acknowledges that (i) Information may include material non-public
information; (ii) it has developed compliance procedures regarding the use of material non-public
information; and (iii) it will handle such material non-public information in accordance with applicable
Law.
14.13Acknowledgment Regarding QFCs. To the extent that the Loan Documents provide
support, through a guarantee or otherwise, for any Swap or any other agreement or instrument that is a
QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance
Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special
Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the United States or any other state
of the United States):
14.13.1Covered Party. If a Covered Entity that is party to a Supported QFC (each,
a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, transfer of
such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or
under such Supported QFC and such QFC Credit Support, and any rights in property securing such
Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same
extent as the transfer would be effective under the U.S. Special Resolution Regimes if the Supported
QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were
governed by the laws of the United States or a state of the United States. If a Covered Party or BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regimes if
the Supported QFC and Loan Documents were governed by the laws of the United States or a state of the
United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies
of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party
with respect to a Supported QFC or any QFC Credit Support.
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14.13.2Definitions. As used in this Section, (a) “BHC Act Affiliate” means an
“affiliate,” as defined in and interpreted in accordance with 12 U.S.C. §1841(k); (b) “Default Right” has
the meaning assigned in and interpreted in accordance with 12 C.F.R. §§252.81, 47.2 or 382.1, as
applicable; and (c) “QFC” means a “qualified financial contract,” as defined in and interpreted in
accordance with 12 U.S.C. §5390(c)(8)(D).
14.14GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW
PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).
14.15Consent to Forum.
14.15.1Forum. EACH LOAN PARTY HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH
JURISDICTION OVER THE STATE OF NEW YORK, IN ANY PROCEEDING OR DISPUTE
RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH
PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH LOAN
PARTY IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY
HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION,
VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1.
Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any Loan Party
in any other court, nor limit the right of any party to serve process in any other manner permitted by
applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any
judgment or order obtained in any forum or jurisdiction.
14.16Waivers by the Loan Parties. To the fullest extent permitted by applicable Law, each
Loan Party waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in any
proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or Collateral;
(b) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release,
compromise, settlement, extension or renewal of any accounts, documents, instruments, chattel paper
and guarantees at any time held by Agent on which a Loan Party may in any way be liable, and hereby
ratifies anything Agent may do in this regard; (c) notice prior to taking possession or control of any
Collateral; (d) any bond or security that might be required by a court prior to allowing Agent to exercise
any rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim
against Agent, any Issuing Bank or any Lender, on any theory of liability, for special, indirect,
consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way
relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and
(g) notice of acceptance hereof. Each Loan Party acknowledges that the foregoing waivers are a
material inducement to Agent, Issuing Banks and Lenders entering into this Agreement and that they are
relying upon the foregoing in their dealings with the Loan Parties. Each Loan Party has reviewed the
foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and
other rights following consultation with legal counsel. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
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14.17Patriot Act Notice. Agent and Lenders hereby notify the Loan Parties that pursuant to
the Patriot Act, the Proceeds of Crime Act and other applicable anti-money laundering, anti-terrorist
financing, government sanction and “know your client” policies, regulations, laws or rules (the Proceeds
of Crime Act and such other applicable policies, regulations, laws or rules, collectively, including any
guidelines or orders thereunder, “AML Legislation”), Agent and Lenders are required to obtain, verify
and record information that identifies each Loan Party, including its legal name, address, tax ID number
and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act
and the AML Legislation. Agent and Lenders will also require information regarding each personal
guarantor, if any, and may require information regarding the Loan Parties’ management and owners,
such as legal name, address, social security number and date of birth. Each Loan Party shall promptly
provide all such information, including supporting documentation and other evidence, as may be
reasonably requested by any Lender or any prospective assignee or participant of a Lender, in order to
comply with the Patriot Act and/or the applicable AML Legislation, whether now or hereafter in
existence. Loan Parties shall, promptly upon request, provide all documentation and other information
as Agent, Issuing Bank or any Lender may request from time to time in order to comply with any
obligations under any “know your customer,” anti-money laundering or other requirements of applicable
Law.
14.18Canadian Anti-Money Laundering Legislation.
(a)If Agent has ascertained the identity of any Canadian Facility Loan Party or any
authorized signatories of any Canadian Facility Loan Party for the purposes of applicable AML
Legislation, then Agent:
(i)shall be deemed to have done so as an agent for each Canadian Lender, and this
Agreement shall constitute a “written agreement” in such regard between each Canadian Lender
and Agent within the meaning of the applicable AML Legislation; and
(ii)shall provide to each Canadian Lender copies of all information obtained in such
regard without any representation or warranty as to its accuracy or completeness.
Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each
Canadian Lender agrees that Agent has no obligation to ascertain the identity of the Canadian Loan
Parties or any authorized signatories of the Canadian Loan Parties on behalf of any Canadian Lender, or
to confirm the completeness or accuracy of any information it obtains from any Canadian Facility Loan
Party or any such authorized signatory in doing so.
14.19Reinstatement. This Agreement shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Loan Party for liquidation or reorganization,
should any Loan Party become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of such Loan Party’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time payment and performance of
the Obligations, or any part thereof, is, pursuant to applicable Law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Obligations, whether as a “voidable
preference”, “fraudulent conveyance”, or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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14.20Nonliability of Lenders. Neither Agent, any Issuing Bank nor any Lender undertakes
any responsibility to any Loan Party to review or inform any Loan Party of any matter in connection
with any phase of any Loan Party’s business or operations. Each Loan Party agrees, on behalf of itself
and each other Loan Party, that neither Agent, any Issuing Bank nor any Lender shall have liability to
any Loan Party (whether sounding in tort, contract or otherwise) for losses suffered by any Loan Party in
connection with, arising out of, or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction
that such losses resulted from the actual gross negligence or willful misconduct of the party from which
recovery is sought. NO LENDER SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE
USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH
INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT.
14.21INTERCREDITOR AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, THE LIEN AND PRIORITY GRANTED TO AGENT PURSUANT TO ANY
LOAN DOCUMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY IN RESPECT OF THE
COLLATERAL BY AGENT HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT ARE
SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF
ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT, THIS
AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL WITH RESPECT TO ANY RIGHT OR
REMEDY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL RIGHTS AND
REMEDIES WITH RESPECT TO THE COLLATERAL OF AGENT (AND THE SECURED
PARTIES) SHALL BE SUBJECT TO THE TERMS OF THE INTERCREDITOR AGREEMENT,
AND NO LOAN PARTY SHALL BE REQUIRED HEREUNDER OR UNDER ANY LOAN
DOCUMENT TO TAKE ANY ACTION WITH RESPECT TO THE COLLATERAL THAT IS
INCONSISTENT WITH SUCH LOAN PARTIES’ OBLIGATIONS UNDER THE FIXED ASSET
FACILITY. AGENT MAY NOT REQUIRE ANY LOAN PARTY TO TAKE ANY ACTION WITH
RESPECT TO THE CREATION, PERFECTION OR PRIORITY OF ITS LIEN, WHETHER
PURSUANT TO THE EXPRESS TERMS HEREOF OR OF ANY OTHER LOAN DOCUMENT OR
PURSUANT TO THE FURTHER ASSURANCE PROVISIONS HEREOF OR ANY OTHER LOAN
DOCUMENT, TO THE EXTENT THAT SUCH ACTION WOULD BE VIOLATIVE OF THE
INTERCREDITOR AGREEMENT, OR SUCH LOAN PARTY’S OBLIGATIONS UNDER THE
FIXED ASSET FACILITY. THE DELIVERY OF ANY COLLATERAL TO AGENT UNDER THE
FIXED ASSET FACILITY PURSUANT TO THE FIXED ASSET FACILITY SHALL SATISFY ANY
DELIVERY REQUIREMENT HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT TO
THE EXTENT THAT SUCH DELIVERY IS CONSISTENT WITH THE TERMS OF THE
INTERCREDITOR AGREEMENT.
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14.22Amendment and Restatement.
(a)On the Third Restatement Date, the Existing Loan Agreement shall be amended, restated
and superseded in its entirety. The parties hereto acknowledge and agree that (a) this Agreement and the
other Loan Documents executed and delivered in connection herewith do not constitute a novation,
payment and reborrowing, or termination of the Obligations under the Existing Loan Agreement as in
effect prior to the Third Restatement Date and (b) such Obligations are in all respects continuing with
only the terms thereof being modified as provided in this Agreement.
(b)Notwithstanding the modifications effected by this Agreement of the representations,
warranties and covenants of the Loan Parties contained in the Existing Loan Agreement, the Loan
Parties acknowledge and agree that (1) any causes of action or other rights created prior to the Third
Restatement Date in favor of any Lender and its successors arising out of the representations and
warranties of the Loan Parties contained in or delivered (including representations and warranties
delivered in connection with the making of the loans or other extensions of credit thereunder) in
connection with the Existing Loan Agreement shall survive the execution and delivery of this
Agreement; provided, however, that it is understood and agreed that the Borrowers’ monetary
obligations under the Existing Loan Agreement in respect of the loans and letters of credit thereunder
are evidenced by this Agreement as provided herein and (2) the execution, delivery and performance of
this Agreement and the other Loan Documents on the Third Restatement Date shall not impair the
validity, effectiveness or priority of the Liens granted in favor of the Agent prior to the date hereof, or
the Notes issued by the Borrowers prior to the date hereof, as applicable, and such Liens and obligations
in respect of the Notes are ratified and reaffirmed and shall continue unimpaired with the same priority
to secure the applicable Obligations.
(c)All indemnification obligations of the Loan Parties pursuant to the Existing Loan
Agreement (including any arising from a breach of the representations thereunder) shall survive the
amendment and restatement of the Existing Loan Agreement pursuant to this Agreement.
(d)[Reserved].
(e)Each Loan Party hereby (a) ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, and each grant of security interests and liens in favor of the Agent,
under each Reaffirmed Agreement to which it is a party, (b) agrees and acknowledges that such
ratification and reaffirmation is not a condition to the continued effectiveness of such Reaffirmed
Agreements and (c) agrees that neither such ratification and reaffirmation, nor the Agent’s, or any
Lender’s solicitation of such ratification and reaffirmation, constitutes a course of dealing giving rise to
any obligation or condition requiring a similar or any other ratification or reaffirmation from any Loan
Party with respect to any subsequent modifications to the Reaffirmed Agreements. The Reaffirmed
Agreements shall remain in full force and effect and are hereby ratified and confirmed.
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14.23Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any
Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the write-down and conversion powers of the applicable
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an
Affected Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability;
(ii)a conversion of all, or a portion of, such liability into shares or other instruments
of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution
that may be issued to it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii)the variation of the terms of such liability in connection with the exercise of the
write-down and conversion powers of the applicable Resolution Authority.
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ANNEX B
Released Guarantors
1. CS Automotive Costa Rica S.A.
2. Cooper-Standard France SAS
3. Cooper-Standard Automotive France SAS
4. Cooper-Standard Technical Services de Mexico S. de R.L. de C.V.
5. Cooper-Standard de Mexico, S. de R.L. de C.V.
6. Cooper-Standard Automotive de Mexico S.A. de C.V.
7. Cooper-Standard Automotive Sealing de Mexico, S.A. de C.V.
8. CS Mexico Holdings S. de R.L. de C.V.
9. Cooper-Standard Automotive Services, S. de R.L. de C.V.
Cooper-Standard Automotive Fluid Systems de Mexico, S. de R.L. de C.V.
Manufacturera El Jarundo, S. de R.L. de C.V.
Cooper-Standard Automotive FHS, S. de R.L. de C.V.
Cooper-Standard Romania S.R.L.
Cooper-Standard Automotive Korea Inc.
Any other Specified Jurisdiction Guarantor as of the date hereof, except CS Latin America.