cps-20221215
0001320461false00013204612022-12-152022-12-15

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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) – December 15, 2022
 
COOPER-STANDARD HOLDINGS INC.
(Exact name of registrant as specified in its charter)
Delaware001-3612720-1945088
(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 (248596-5900 
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 classTrading Symbol(s)Name of each exchange on which registered
Common Stock, par value $0.001 per shareCPSNew 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.

Backstop Agreement

On December 19, 2022, Cooper-Standard Automotive Inc. (“CSA”), a wholly-owned subsidiary of Cooper-Standard Holdings Inc. (the “Company”), entered into a backstop agreement (the “Backstop Agreement”) with certain holders (the “Backstop Parties”) that, as of such date, beneficially owned approximately 62.7% in aggregate outstanding principal amount of CSA’s existing 5.625% Senior Notes due 2026 (the “2026 Senior Notes”). The Backstop Agreement relates to certain refinancing transactions (the “Refinancing Transactions”), the terms of which were described in the previously reported Transaction Support Agreement, dated as of November 15, 2022 (together with all exhibits, annexes and schedules thereto, the “Transaction Support Agreement”), among the Company and certain of its direct and indirect subsidiaries, including CSA, and the Backstop Parties, to be undertaken by CSA as follows: (i) an offering (the “Concurrent Notes Offering”) of $580 million in aggregate principal amount of 13.50% Cash Pay / PIK Toggle Senior Secured First Lien Notes due 2027 (the “New First Lien Notes”) newly issued by CSA and guaranteed by CS Intermediate HoldCo 1 LLC (“Holdings”) and certain of CSA’s subsidiaries to holders of 2026 Senior Notes or their designees for cash, (ii) an exchange offer (the “Exchange Offer”) for any and all of $400.0 million in aggregate principal amount of 2026 Senior Notes to holders of 2026 Senior Notes who participate in the Concurrent Notes Offering in exchange for CSA’s newly issued 5.625% Cash Pay / 10.625% PIK Toggle Senior Secured Third Lien Notes due 2027 (the “New Third Lien Notes” and together with the New First Lien Notes, the “New Notes”) on a par-for-par basis, (iii) a related consent solicitation (the “Consent Solicitation”) to remove substantially all of the covenants, certain events of default and certain other provisions contained in the 2026 Senior Notes and the indenture governing the 2026 Senior Notes, (iv) the ABL Amendment (as defined below) and (v) the use of proceeds from the Concurrent Notes Offering, together with cash on hand, to prepay CSA’s senior term loan facility, to redeem CSA’s existing 13.000% Senior Secured Notes due 2024 and to pay fees and expenses related to the Refinancing Transactions.

Pursuant to the Backstop Agreement, the Backstop Parties have agreed to (i) subscribe for their pro rata share of the New First Lien Notes in the Concurrent Notes Offering (based on the proportion of $1,450 principal amount of New First Lien Notes subscribed for in the Concurrent Notes Offering for each $1,000 principal amount of 2026 Senior Notes tendered in the Exchange Offer); (ii) tender all of their 2026 Senior Notes in the Exchange Offer; (iii) provide their consents with respect to their 2026 Senior Notes in the Consent Solicitation and (iv) purchase 100% of the New First Lien Notes not otherwise purchased by eligible holders of the 2026 Senior Notes in the Concurrent Notes Offering, which will be in addition to their purchase of their pro rata share of the New First Lien Notes purchased pursuant to clause (i). As consideration for the Backstop Parties’ backstop commitment and pursuant to the terms and conditions set forth in the Backstop Agreement, the Backstop Parties will be entitled to receive a backstop fee. The Concurrent Notes Offering and the Backstop Parties’ obligation to backstop the Concurrent Notes Offering are conditioned upon the substantially concurrent completion of the Consent Solicitation and the Exchange Offer as well as certain conditions in the Backstop Agreement with respect to the backstop obligations.

The Backstop Agreement includes representations, warranties, covenants and closing conditions customary for agreements of this type. It also provides for customary indemnification by CSA against certain liabilities and customary contribution provisions in respect of those liabilities. The Backstop Agreement will terminate at the mutual written consent of CSA and the Backstop Parties or on February 15, 2023 if the date of settlement of the New Notes has not yet occurred. Further, the Backstop Parties may terminate the Backstop Agreement upon, among other circumstances, the termination of the Transaction Support Agreement, an occurrence of an event which would have a material adverse effect on CSA and a material breach of the Backstop Agreement by CSA.

The foregoing is a summary of the material terms of, and is qualified by, the Backstop Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

Amendment to Third Amended and Restated Credit Agreement

On December 19, 2022, certain subsidiaries of the Company, namely Holdings, CSA, Cooper-Standard Automotive Canada Limited (the “Canadian Borrower”), Cooper-Standard Automotive International Holdings B.V. (the “European Borrower” and, together with CSA and the Canadian Borrower, the “Borrowers”), and certain subsidiaries of the Company, entered into Amendment No. 3 (the “ABL Amendment”) to the Third Amended and Restated Loan Agreement (as amended, the “Amended Senior ABL Facility”) with certain lenders, Bank of America, N.A., as agent (the “Agent”), and other parties thereto. The following summary of the material terms of the ABL Amendment is subject to and qualified in its entirety by reference to the provisions of the ABL Amendment and the credit agreement governing the Amended Senior ABL Facility (the “Credit Agreement”).

Upon the closing of the Refinancing Transactions contemplated by the Transaction Support Agreement and satisfaction of certain other conditions set forth in the ABL Amendment, the ABL Amendment will amend the Credit Agreement to, among other things:






a.permit CSA to issue the New Notes in the Concurrent Notes Offering and Exchange Offer, including the granting of liens, subject to the restrictions set forth in the Amended Senior ABL Facility;
b.provide for certain of the Company’s wholly-owned subsidiaries organized in Costa Rica, France, Mexico, the Netherlands, Romania and certain other jurisdictions specified from time to time to become guarantors under the Amended Senior ABL Facility;
c.authorize the collateral agent under the Credit Agreement to enter into an intercreditor agreement with the collateral trustees and/or collateral agents for the New Notes; and
d.remove the European Borrower as a borrower under the Amended Senior ABL Facility.

The foregoing is a summary of the material terms of, and is qualified by, the ABL Amendment, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

Amendment to Transaction Support Agreement

On December 15, 2022, the Credit Parties entered into Amendment No. 1 (the “TSA Amendment”) to the Transaction Support Agreement with the Backstop Parties pursuant to which the Backstop Parties agreed to extend the deadline to launch the Refinancing Transactions from Thursday, December 15, 2022 to Tuesday, December 20, 2022.

The foregoing is a summary of the material terms of, and is qualified by, the TSA Amendment, dated as of December 15, 2022, a copy of which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.

Item 8.01 Other Events.

On December 19. 2022, the Company issued a press release announcing the commencement of the Concurrent Notes Offering, the Exchange Offer and the Consent Solicitation described in this report. A copy of the Company’s press release is being furnished as Exhibit 99.1 and is incorporated herein by reference.

Cautionary Note Regarding Refinancing Transactions

The closing of the Refinancing Transactions are conditioned on the satisfaction or waiver of certain conditions precedent. The Refinancing Transactions may not be completed as contemplated or at all. If the Company is unable to complete the Refinancing Transactions or any other alternative transactions, on favorable terms or at all, due to market conditions or otherwise, its financial condition could be materially adversely affected.

This report shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of any of these securities, in any jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The New Notes to be offered in the Concurrent Notes Offering and the Exchange Offer have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and unless so registered, may not be offered or sold in the United States or to U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.

Cautionary Note Regarding Forward-Looking Statements

This Current Report on Form 8-K, including the exhibits attached hereto, include “forward-looking statements” within the meaning of U.S. federal securities laws, and we intend that such forward-looking statements be subject to the safe harbor created thereby. When used in this report, including the exhibits attached hereto, the words “estimate,” “expect,” “anticipate,” “project,” “plan,” “intend,” “believe,” “outlook,” “guidance,” “forecast,” or future or conditional verbs, such as “will,” “should,” “could,” “would,” or “may,” and variations of such words or similar expressions are intended to identify forward-looking statements. All forward-looking statements are based upon the Company’s expectations and various assumptions. The Company’s expectations, beliefs, and projections are expressed in good faith and the Company believes there is a reasonable basis for them. However, no assurances can be made that these expectations, beliefs and projections will be achieved. Forward-looking statements are not guarantees of future performance and are subject to significant risks and uncertainties that may cause actual results or achievements to be materially different from the future results or achievements expressed or implied by the forward-looking statements. These risks and uncertainties and other important factors include, but are not limited to, those described under the heading “Risk Factors” in the Company’s most recent annual report on Form 10-K under Item 1A of Part 1 and in the Company’s most recent quarterly report on Form 10-Q under Item 1A of Part II and other risk factors identified from time to time in the Company’s filings with the U.S. Securities and Exchange Commission. Readers should carefully review these risk factors, and should not place undue reliance on the Company’s forward-looking statements. There may be other factors that may cause the Company’s actual results to differ materially from the forward-looking statements. All forward-looking statements apply only as of the date of this report, and the date of the exhibit attached hereto, and are expressly qualified in their entirety by the cautionary statements included in this report. The Company undertakes no obligation to publicly update or otherwise revise any forward-looking statements, whether as a result of new information, future events or otherwise, except where we are expressly required to do so by law.






Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

The following exhibits are furnished pursuant to Item 9.01 of Form 8-K:

Exhibit 10.1 Backstop Agreement, dated as of December 19, 2022, among Cooper-Standard Automotive Inc., J.P. Morgan Investment Management Inc. and Millstreet Capital Management LLC.

Exhibit 10.2 Third Amendment, dated as of December 19, 2022, to the Third Amended and Restated Loan Agreement, among CS Intermediate Holdco 1 LLC, Cooper-Standard Automotive Inc., Cooper-Standard Automotive Canada Limited, Cooper-Standard Automotive International Holdings B.V., certain subsidiaries of Cooper-Standard Automotive Inc., the lenders party thereto and Bank of America, N.A. as agent for such lenders.

Exhibit 10.3 Amendment No. 1 to the Transaction Support Agreement, dated as of December 15, 2022, among Cooper-Standard Holdings Inc., Cooper-Standard Automotive Inc., CS Intermediate Holdco 1 LLC, certain other direct or indirect subsidiaries of Cooper-Standard Holdings Inc., J.P. Morgan Investment Management Inc. and Millstreet Capital Management LLC.

Exhibit 99.1 Press Release, dated December 19, 2022.

Exhibit 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/ Joanna M. Totsky
Name:Joanna M. Totsky
Title:
Senior Vice President, Chief Legal Officer
and Secretary
Date: December 20, 2022




Document
Exhibit 10.1
Execution Version
BACKSTOP COMMITMENT AGREEMENT
BACKSTOP COMMITMENT AGREEMENT, dated as of December 19, 2022 (this “Agreement”), among Cooper-Standard Automotive Inc., an Ohio corporation (the “Company”), and the parties set forth on Schedule 1 hereto (together with their respective successors and permitted assigns, each a “Backstop Party” and collectively, the “Backstop Parties”). The Company and each Backstop Party is referred to herein, individually, as a “Party” and, collectively, as the “Parties.”
RECITALS
WHEREAS, the Company executed and delivered that certain Indenture, dated as of November 2, 2016, among itself, each of the guarantors named therein and U.S. Bank Trust Company, National Association as successor in interest to U.S. Bank, National Association, as trustee, pursuant to which the Company issued $400,000,000 aggregate principal amount of 5.625% Senior Notes due 2026 (the “2026 Unsecured Notes”);
WHEREAS, the Company executed and delivered that certain Indenture, dated as of May 29, 2020, among itself, each of the guarantors named therein and U.S. Bank Trust Company, National Association as successor in interest to U.S. Bank, National Association, as trustee and collateral agent, pursuant to which the Company issued $250,000,000 aggregate principal amount of 13.000% Senior Secured Notes due 2024 (the “2024 Secured Notes” and together with the 2026 Unsecured Notes, the “Senior Notes”);
WHEREAS, the Company intends to pursue, on the terms described in and in accordance with the TSA (as defined below) and the Exchange and Offering Documents (as defined below), a notes offering (the “Concurrent Notes Offering”) to all Eligible 2026 Unsecured Noteholders (as defined below) to purchase for cash newly issued 13.500% Cash Pay / PIK Toggle Senior Secured First Lien Notes due 2027 with the terms set forth in the Exchange and Offering Documents, in an aggregate principal amount of $580,000,000 (the “New First Lien Notes”);
WHEREAS, the Company intends to pursue, on the terms described in and in accordance with the TSA and the Exchange and Offering Documents (as defined below) (i) an exchange offer (the “Concurrent Exchange Offer”) to all Eligible 2026 Unsecured Noteholders (or their designee(s)) who commit to participate for their ratable share of the New First Lien Notes in the Concurrent Notes Offering for any and all of the 2026 Unsecured Notes in exchange for newly issued 5.625% Cash Pay / 10.625% PIK Toggle Senior Secured Third Lien Notes due 2027 on a par-for-par basis, with the terms set forth in the Exchange and Offering Documents, in an aggregate principal amount of up to $400,000,000 (the “New Third Lien Notes”) and (ii) a related solicitation (the “Consent Solicitation”) of consents (the “Consents”) from holders of the 2026 Unsecured Notes (the “Consent Solicitation”) to remove substantially all of the restrictive covenants and certain events of default in the 2026 Unsecured Notes; and
WHEREAS, in connection with the Concurrent Notes Offering, and subject to the terms and conditions contained in this Agreement, each Backstop Party has agreed to provide a backstop commitment to purchase New First Lien Notes if such New First Lien Notes are not otherwise subscribed for by Eligible 2026 Unsecured Noteholders (or their designee(s)) in the Concurrent Notes Offering;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:



1.    CERTAIN DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the TSA (as defined below). The following terms have the meanings set forth below:
2024 Secured Notes” has the meaning assigned to it in the Recitals hereto.
2026 Unsecured Notes” has the meaning assigned to it in the Recitals hereto.
ABL Amendment” means, the Third Amendment, to be dated as of the Settlement Date, to the Amended and Restated Credit Agreement, dated as of April 4, 2014, among CSA, as the borrower, certain subsidiaries of CSA, as guarantors, CS Intermediate Holdco1 LLC, as Holdings, Deutsche Bank AG New York Branch, as Administrative Agent and Collateral Agent and the other lenders party thereto, as amended, modified, supplemented, or amended and restated from time to time.
Addendum” has the meaning assigned to it in Section 9.2.
Affiliate” of any Person means any Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, “control” (including with its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
Agreement” has the meaning assigned to it in the Preamble hereto.
Available Unsubscribed Notes” means the Unsubscribed Notes that any Backstop Party fails to purchase as a result of a Backstop Party Default by such Backstop Party.
Backstop Commitment” means, with respect to any Backstop Party, such Backstop Party’s several and not joint commitment to backstop the Concurrent Notes Offering subject to the terms and conditions set forth herein.
Backstop Commitment Amount” means, with respect to any Backstop Party, an aggregate principal amount of New First Lien Notes equal to the product of (a) the Unsubscribed Notes multiplied by (b) such Backstop Party’s Backstop Commitment Percentage, rounded among the Backstop Parties solely to (x) avoid fractional notes and (y) comply with the minimum denominations described in the Exchange and Offering Documents, as the Backstop Parties may determine in their sole discretion.
Backstop Commitment Percentage” means, with respect to any Backstop Party, the percentage set forth opposite such Backstop Party’s name on Schedule 1 in the column titled “Backstop Commitment Percentage.”
Backstop Fee” has the meaning assigned to it in Section 2.3.
Backstop Fee Percentage” means 5.00%.
Backstop Funding Date” has the meaning assigned to it in Section 3.2.
Backstop Party” and “Backstop Parties” have the meanings assigned to them in the Preamble hereto.
2



Backstop Party Default” means, with respect to any Backstop Party, (x) such Backstop Party fails to deliver and pay the aggregate Purchase Price payable by it for its Backstop Commitment Percentage of any Unsubscribed Notes by the Backstop Funding Date in accordance with Section 3.3 hereof or (y) such Backstop Party denies or disaffirms its obligations in writing (electronic or otherwise) pursuant to Section 2.1, Section 2.2 or Section 3.3 hereof.
Backstop Party Professionals” means (a) Willkie Farr & Gallagher LLP, as counsel to the Backstop Parties, and (b) Houlihan, as financial advisor to the Backstop Parties.
Backstop Party Replacement has the meaning assigned to it in Section 2.7.1.
Backstop Party Replacement Period” has the meaning assigned to it in Section 2.7.1.
Backstop Purchase Price” means, with respect to each Backstop Party, an amount equal to the sum of (x) the aggregate Purchase Price for such Backstop Party’s Backstop Commitment Amount and (y) the aggregate Purchase Price for the New First Lien Notes such Backstop Party has subscribed for in the Concurrent Notes Offering, less such Backstop Party’s Backstop Fee.
Bank of America Credit Agreement” means that certain Third Amended and Restated Revolving Loan Agreement, dated as of November 2, 2016, among the Company, as a borrower, Bank of America, N.A., as administrative agent, and the other entities from time to time party thereto, as amended, modified, supplemented, or amended and restated from time to time.
Beneficial Ownership Regulation” has the meaning assigned to it in Section 9.15.
Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.
Company” has the meaning assigned to it in the Preamble hereto.
Concurrent Exchange Offer” has the meaning assigned to it in the Recitals hereto.
Concurrent Notes Offering” has the meaning assigned to it in the Recitals hereto.
Consents” has the meaning assigned to it in the Recitals hereto.
Consent Solicitation” has the meaning assigned to it in the Recitals hereto.
Eligible 2026 Unsecured Noteholder” means a holder of 2026 Unsecured Notes that is an Eligible Holder.
Eligible Assignee” means any Person that is an Eligible Holder.
Eligible Holder” means a Person that is either (A) a “qualified institutional buyer” within the meaning of Rule 144A of the Securities Act or (B) a non U.S. person under Regulation S under the Securities Act.
Event” means any event, change, effect, circumstance, occurrence, development, condition, result, state of facts or change of facts.
Exchange Act” means the Securities Exchange Act of 1934, as amended.
3



Exchange and Offering Documents” means (i) the Company’s Offering Memorandum and Subscription Form and (ii) any consent solicitation statements or other solicitation materials, including any related notices, ballots, or other election forms used in connection with the Consent Solicitation, which may be combined with any offering memoranda referred to in clause (i) (in each case, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof), in each case, in form and substance reasonably acceptable to the Required Backstop Parties.
Expense Reimbursement” has the meaning assigned to it in Section 2.4 hereto.
Expiration Date” means the date on which the Concurrent Notes Offering, the Concurrent Exchange Offer and the Consent Solicitation shall expire pursuant to the Offering Memorandum.
Funding Notice” has the meaning assigned to it in Section 3.2.
Funding Account” means that certain segregated Subscription Account (or Subscription Accounts) (as defined in the Subscription Agent Agreement) of the Subscription Agent, opened and maintained by the Subscription Agent solely in connection with the Transactions, and administered in accordance with the Subscription Agent Agreement.
Funding Notice Date” has the meaning assigned to it in Section 3.2.
Governmental Authority” means any nation or government, any federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Guarantor Subsidiary” means any Subsidiary of the Company that is contemplated to guarantee the New First Lien Notes or the New Third Lien Notes pursuant to the Transaction Documents.
Houlihan” means Houlihan Lokey Capital Inc., as financial advisor to the Backstop Parties.
Indemnified Person” has the meaning assigned to it in Section 9.5.
Investment Company Act” means the Investment Company Act of 1940, as amended.
Joinder” has the meaning assigned to it in Section 9.2.
Law” means any law (including common law), statute, ordinance, treaty, rule, regulation, policy requirement of any Governmental Authority and authoritative interpretations thereon, order, judgment or decree, in each case, applicable to or binding on such Person or any of its properties or to which such Person or any of its properties is subject.
Loss” has the meaning assigned to it in Section 9.5.
Material Adverse Effect” means any Event after November 2, 2022 which individually, or together with all other Events, has had or would reasonably be expected to have a material and adverse effect on (a) the business, assets, liabilities, finances, properties, results of operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company and its Subsidiaries, taken as a whole, to perform their respective obligations under, or to consummate the transactions contemplated by, the Exchange and Offering Documents.
4



Material Contract” means (a) each “plans of acquisition, reorganization, arrangement, liquidation or succession” and “material contracts” (as such terms are defined in Items 601(b)(2) and 601(b)(10) of Regulation S-K under the Exchange Act) to which the Company or any of its Subsidiaries is a party, (b) the indenture with respect to the 2026 Unsecured Notes, (c) the indenture with respect to the 2024 Secured Notes, and (d) the Bank of America Credit Agreement.
Money Laundering Laws” has the meaning assigned to it in Section 4.8 hereto.
New First Lien Notes” has the meaning assigned to it in the Recitals hereto.
New Third Lien Notes” has the meaning assigned to it in the Recitals hereto.
Offering Memorandum” means the Company’s confidential offering memorandum and consent solicitation statement (as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof).
Outside Date” has the meaning assigned to it in Section 9.10.3.
Party” and “Parties” have the meanings assigned to them in the Preamble hereto.
PATRIOT Act” has the meaning assigned to it in Section 9.15.
Person” includes any individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited partnership, trust, estate, unincorporated organization, governmental unit, or other entity.
Purchase Price” means a price for the New First Lien Notes equal to 96.00% of the principal amount of New First Lien Notes purchased.
Related Funds” means, with respect to any Person, any funds, accounts or investment vehicles managed or advised by such Person or an Affiliate of such Person, or any funds, accounts or investment vehicles managed or advised by the investment manager or advisor of such Person or any Affiliate of such Person.
Related Parties” means, with respect to any Person, such Person’s Affiliates and related parties and the partners, directors, officers, employees, agents, trustees, administrators, attorneys, managers (including, for the avoidance of doubt, investment managers) advisors (including, for the avoidance of doubt, investment advisors) and representatives of such Person and of such Person’s Affiliates, in each case, solely in their respective capacity as such.
Related Purchaser” means, with respect to any Backstop Party, an Affiliate or Related Fund of such Backstop Party, as applicable.
Replacement Backstop Party has the meaning set forth in Section 2.7.1.
Required Backstop Parties” means the Backstop Parties holding a majority of the Backstop Commitment Percentages; provided that, whenever the consent of the Required Backstop Parties is required, the consent of both (i) J.P. Morgan Investment Management Inc. and/or JPMorgan Chase Bank, N.A. and (ii) Millstreet Capital Management LLC shall be required.
Requisite Consents” means the Consent of the holders of at least a majority in aggregate principal amount of then outstanding 2026 Unsecured Notes.
5



SEC” means the U.S. Securities and Exchange Commission.
Securities Act” means the Securities Act of 1933, as amended.
Senior Notes” has the meaning assigned to it in the Recitals hereto.
Settlement Date” means the date on which each of the Concurrent Exchange Offer and the Concurrent Notes Offering are consummated and the New First Lien Notes and New Third Lien Notes are issued.
Subscription Agent” means Kroll Restructuring Administration LLC d/b/a Kroll Issuer Services (US), as Exchange and Subscription Agent (as defined in the Offering Memorandum).
Subscription Agent Agreement” means that certain Subscription Agent Agreement, dated as of December 15, 2022, by and between the Company and the Subscription Agent (as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof).
Subscription Form” means the form, as may be supplemented and amended from time to time in accordance with the terms hereof, to be completed and duly executed by Eligible 2026 Unsecured Noteholders (or their designee(s)) with respect to subscribing for New First Lien Notes in the Concurrent Notes Offering (as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof).
Subsidiary” means, with respect to any Person, a corporation, partnership, limited liability company or other entity a majority of the voting power of the voting equity securities or the outstanding equity interests of which are owned, directly or indirectly, by such Person or by one or more of its other subsidiaries.
Transaction Documents” means, collectively, (i) the Exchange and Offering Documents, (ii) any indenture or supplemental indenture, including any indenture entered into in connection with the issuance of the New First Lien Notes, any indenture entered into in connection with the issuance of the New Third Lien Notes and any supplemental indenture with respect to the 2026 Unsecured Notes entered into in connection with the Consent Solicitation to effectuate amendments thereto, (iii) any other securities offering or exchange offer documents used in connection with the Transactions, (iv) any security or collateral documents entered into in connection with the Transactions, (v) any intercreditor agreements entered into in connection with the Transactions, (vi) this Agreement, (vii) the Subscription Agent Agreement and (vii) any other documents entered into in connection with the Transactions (in each case, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof), in each case, in form and substance reasonably acceptable to the Required Backstop Parties.
Term Loan Facility” means the senior term loan facility governed by that certain credit agreement, dated April 4, 2014, by and between CS Intermediate HoldCo 2 LLC, CS Intermediate HoldCo 1 LLC, certain lenders, Deutsche Bank AG New York Branch, as administrative agent and collateral agent for such lenders, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as syndication agent for such lenders, Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Barclays Bank plc and UBS Securities LLC, as joint lead arrangers and joint bookrunners, and the other parties thereto (as amended, supplemented or otherwise modified from time to time).
6



Transactions” means, collectively, the Concurrent Notes Offering, the Concurrent Exchange Offer, the Consent Solicitation and the other transactions contemplated by this Agreement and the TSA.
TSA” means that certain Transaction Support Agreement, dated as of November 15, 2022, by and among the Company, the other Credit Parties (as defined therein) party thereto, and J.P. Morgan Investment Management Inc. and/or JPMorgan Chase Bank, N.A., as investment manager of certain discretionary accounts, and Millstreet Capital Management LLC, on behalf of certain funds and accounts managed or advised by it (as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof).
Unsubscribed Notes” means an aggregate principal amount of New First Lien Notes equal to (x) $580,000,000 in aggregate principal amount of New First Lien Notes minus (y) the aggregate principal amount of New First Lien Notes subscribed for and purchased by Eligible 2026 Unsecured Noteholders pursuant to and in accordance with the terms of the Exchange and Offering Documents.
2.    THE BACKSTOP COMMITMENT
2.1    Commitments. Subject to and in accordance with the terms and conditions herein, each Backstop Party agrees, severally and not jointly, to (a) purchase its Backstop Commitment Amount in connection with the Concurrent Notes Offering, (b) subscribe for New First Lien Notes in the Concurrent Notes Offering (subject to the terms of the Exchange and Offering Documents) in an amount equal to its ratable holdings of 2026 Unsecured Notes, (c) tender (or cause to be tendered) all of its 2026 Unsecured Notes in exchange for New Third Lien Notes in the Concurrent Exchange Offer (subject to the terms of the Exchange and Offering Documents) in accordance with the applicable procedures set forth in the Exchange and Offering Documents, and (d) consent to the Proposed Amendments (as defined in the Offering Memorandum) in accordance with the applicable procedures set forth in the Exchange and Offering Documents.
2.2    Closing. Subject to Section 4 hereto, on the Settlement Date, the Company shall issue to each Backstop Party, and each Backstop Party shall purchase, severally and not jointly, from the Company, (a) New First Lien Notes in an aggregate principal amount equal to such Backstop Party’s Backstop Commitment Amount for the Purchase Price therefor and (b) New First Lien Notes in an aggregate principal amount equal to its ratable holdings of 2026 Unsecured Notes pursuant to the Concurrent Notes Offering.
2.3    Backstop Fee. On the Backstop Funding Date, the Company agrees to pay to each Backstop Party, as consideration for entering into this Agreement and committing to provide its respective Backstop Commitment, a fee equal to its ratable share (based on such Backstop Party’s Backstop Commitment Percentage) of the Backstop Fee Percentage of the aggregate principal amount of New First Lien Notes issued, which is expected to be $580,000,000 (the “Backstop Fee”). Such Backstop Party’s Backstop Fee will be netted against the amount that such Backstop Party is required to pay in cash to purchase New First Lien Notes pursuant to the Concurrent Notes Offering or such Backstop Party’s Backstop Commitment.
2.4    Expense Reimbursement. The Company agrees to pay or reimburse the reasonable and documented fees, costs, expenses and disbursements of the Backstop Parties (including but not limited to the reasonable and documented fees, costs, expenses and disbursements of the Backstop Party Professionals) incurred in connection with this Agreement, the other Transaction Documents and the Transactions, whether incurred prior to or on the Settlement Date (the “Expense Reimbursement”).
7



2.5    Transfer Taxes. All of the New First Lien Notes issued to the Backstop Parties pursuant to this Agreement will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company.
2.6    Designation Rights. Each Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Settlement Date that some or all of the Unsubscribed Notes that it is obligated to purchase hereunder be issued in the name of, and delivered to a Related Purchaser of such Backstop Party upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Backstop Party and each such Related Purchaser, (ii) specify the principal amount of Unsubscribed Notes to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations set forth in Sections 5.6 hereof as applied to such Related Purchaser; provided, that no such designation pursuant to this Section 2.6 shall relieve such Backstop Party from its obligations under this Agreement.
2.7    Backstop Party Default.
2.7.1    During the two (2) Business Day period after receipt of written notice from the Company to all Backstop Parties of a Backstop Party Default, which notice shall be given to all Backstop Parties promptly after the Company becomes aware of the occurrence of such Backstop Party Default (such two (2) Business Day period, the “Backstop Party Replacement Period”), the Backstop Parties (other than any Defaulting Backstop Party) shall have the right, but not the obligation, to make arrangements for one or more of the Backstop Parties (other than any Defaulting Backstop Party) to purchase all or any portion of the Available Unsubscribed Notes (such purchase, a “Backstop Party Replacement”) on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by all of the non-defaulting Backstop Parties electing to purchase all or any portion of the Available Unsubscribed Notes (such Backstop Parties, the “Replacement Backstop Parties”). Any such Available Unsubscribed Notes purchased by a Replacement Backstop Party shall be included, among other things, in the determination of (x) the Unsubscribed Notes to be purchased by such Replacement Backstop Party for all purposes hereunder, (y) the Backstop Commitment Percentage of such Replacement Backstop Party for all purposes hereunder (including, without limitation, the calculation of the Backstop Fee of such Replacement Backstop Party) and (z) the Backstop Commitment of such Replacement Backstop Party for purposes of the definition of the “Required Backstop Parties.” If a Backstop Party Default occurs, the Outside Date (as defined below) shall be delayed only to the extent necessary to allow for the Backstop Party Replacement to be completed within five (5) Business Days after the completion of the Backstop Party Replacement Period. Schedule 2 shall be revised as necessary without requiring a written instrument signed by the Company and the Required Backstop Parties to reflect conforming changes in the composition of the Backstop Parties and Backstop Commitment Percentages as a result of any Backstop Party Replacement in compliance with this Section 2.7.
2.7.2    Notwithstanding anything in this Agreement to the contrary, if a Backstop Party is a Defaulting Backstop Party, it shall not be entitled to any of the Backstop Fee set forth in Section 2.3 applicable solely to such Defaulting Backstop Party provided, or to be provided, under or in connection with this Agreement.
8



2.7.3    Nothing in this Agreement shall be deemed to require a Backstop Party to purchase more than its Backstop Commitment Percentage of the Unsubscribed Notes.
2.7.4    For the avoidance of doubt, notwithstanding anything to the contrary set forth in Section 2.7 hereof, no provision of this Agreement shall relieve any Defaulting Backstop Party from any liability hereunder in connection with a Defaulting Backstop Party’s Backstop Party Default or other breach or non-performance of its obligations under or in connection with this Agreement.
3.    TRANSACTIONS
3.1    Conduct of the Transactions. The Company shall conduct the Concurrent Notes Offering, the Concurrent Exchange Offer and the Consent Solicitation in accordance with the terms of the Exchange and Offering Documents and the TSA, and consistent with this Agreement. Without limiting the foregoing, pursuant to the Concurrent Notes Offering, the Company shall give each Eligible 2026 Unsecured Noteholder (or its designee(s) that are Eligible Holders) the right to subscribe, on or prior to the Expiration Date, to purchase up to its ratable share (based on its ratable holdings of 2026 Unsecured Notes) of the New First Lien Notes, pursuant to the terms of the Exchange and Offering Documents. Under the Concurrent Exchange Offer, for every $1,450 of New First Lien Notes subscribed for by an Eligible 2026 Unsecured Noteholder (or its designee(s)), such holder will be offered the opportunity to exchange $1,000 of the 2026 Unsecured Notes at par for New Third Lien Notes.
3.2    Funding Notice. The Company shall cause the Subscription Agent to deliver, on behalf of the Company, no later than the third (3rd) Business Day following the Expiration Date, to each Backstop Party a written notice (the “Funding Notice,” and the date of such delivery, the “Funding Notice Date”) setting forth (i) the aggregate principal amount of New First Lien Notes elected to be purchased by Eligible 2026 Unsecured Noteholders (or their designee(s)), (ii) the Subscription Agent’s calculation of each Backstop Party’s (A) Backstop Commitment Amount and (B) the aggregate Purchase Price therefor, which calculations shall be made in consultation with Houlihan, (iii) the principal amount of New First Lien Notes such Backstop Party is subscribed for in the Concurrent Notes Offering and the aggregate Purchase Price therefor, calculation of which shall be made in consultation with Houlihan, (iv) the amount of such Backstop Party’s Backstop Fee, the calculation of which shall be made in consultation with Houlihan, (v) the amount of such Backstop Party’s Backstop Purchase Price, the calculation of which shall be made in consultation with Houlihan, (vi) the Backstop Funding Date (as defined below), and (vii) the Funding Account (and wiring information therefor) to which such Backstop Party shall deliver and pay the such Backstop Party’s Backstop Purchase Price; provided that the Backstop Parties may seek an upward or downward adjustment of the calculations set forth in clauses (ii), (iii), (iv) or (v) of this Section 3.2 if the Backstop Parties can reasonably show that such calculations are inaccurate, which such adjustment shall be reasonably acceptable to the Company. The Company shall promptly direct the Subscription Agent to provide any written backup information and documentation relating to the information contained in the applicable Funding Notice as Houlihan or any Backstop Party may reasonably request.
3.3    Funding of Backstop. On a date designated by the Subscription Agent that is not more than two (2) Business Days prior to the Settlement Date and not less than two (2) Business Days after the Funding Notice Date (the “Backstop Funding Date”), each Backstop Party shall deliver and pay its respective Backstop Purchase Price, by wire transfer of immediately available funds in U.S. dollars into the Funding Account in
9



satisfaction of such Backstop Party’s Backstop Commitment and its obligation to fully subscribe for its ratable portion of the Concurrent Notes Offering.
3.4    Funding Account Release. The Company shall instruct the Subscription Agent to make disbursements from the Funding Account pursuant to Sections 3 and 9 of the Subscription Agent Agreement only upon satisfaction of all of the conditions to the consummation of the Concurrent Notes Offering, the Exchange Offer and the Consent Solicitation (other than the receipt of the disbursements from the Funding Account) set forth in Section 7.1 of this Agreement. Within the Disbursement Instruction (as defined in the Subscription Agreement) delivered by the Company to the Subscription Agent in accordance with the Subscription Agent Agreement, an authorized officer of the Company shall certify that, on the date of the Disbursement Instruction, (i) the requirements under the first sentence of Section 3.4 of this Agreement have been satisfied and (ii) substantially concurrently with release of the Backstop Purchase Price from the Subscription Account, the Concurrent Notes Offering, the Exchange Offer and the Consent Solicitation will be consummated in accordance in all material respects with the Transaction Documents.
4.    REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants, as of the date hereof and as of the Settlement Date, to each of the Backstop Parties as follows:
4.1    Organization.     The Company is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization.
4.2    Due Authorization, Execution and Delivery; Enforceability. The Company has the requisite power and authority for the due execution, delivery and performance of this Agreement and the consummation of the Concurrent Notes Offering and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement and the consummation of the Concurrent Notes Offering. Assuming due and valid execution and delivery by the other parties hereto, this Agreement constitutes the legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
4.3    Consents. None of the execution, delivery or performance of this Agreement by the Company, nor the consummation of the Concurrent Notes Offering, will require any consent of, authorization by, exemption from, filing or registration with, or notice to (i) any Governmental Authority or (ii) the shareholders of the Company, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.4    No Conflicts. Neither the execution, delivery and performance of this Agreement by the Company, nor the consummation of the Concurrent Notes Offering, will (a) conflict with or result in any breach of any provision of the certificate of incorporation, by-laws or equivalent governing documents of the Company or any Guarantor Subsidiary, (b) conflict with or result in the breach of the terms, conditions or provisions of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give rise to any right of termination or acceleration or cancellation under, any Material Contract, lease, mortgage, license, indenture, loan agreement instrument or any other material agreement or contract to which the Company or any of its Subsidiaries is a
10



party or by which any properties or assets of the Company or its Subsidiaries are bound or (c) result in a violation of any Law (including, without limitation, federal and state securities Laws) applicable to the Company or its Subsidiaries or by which any properties or assets of the Company or any of its Subsidiaries will be bound or affected, except in each case as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, with respect to clause (b) above, assuming as of the Settlement Date, the receipt by the Company of the Requisite Consents, the effectiveness of the ABL Amendment, the prepayment of all of the amounts outstanding under the Term Loan Facility, the redemption of the 2024 Secured Notes and the execution and delivery of the Supplemental Indenture.
4.5    Company Information. Since November 2, 2022, the Company has timely filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act.
4.6    No Violation; Compliance with Laws. Neither the Company nor any Guarantor Subsidiary is in violation of its charter or by-laws, certificate of formation, limited liability company operating agreement or similar organizational document, except in each case as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. At no time since November 2, 2022 has the Company or any of its Subsidiaries been deemed to be in violation of any applicable Law, except for any such violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.7    No Unlawful Payments. During the last three (3) years, neither the Company nor any of its Subsidiaries, nor, to the Company’s knowledge, any of their respective directors, officers or employees acting on behalf of such Company or Subsidiary with the express authority to do such act, has in any material respect: (a) used any funds of such Company or Subsidiary for any unlawful contribution, gift, entertainment or other unlawful expense, in each case relating to political activity; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) violated or is in violation of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977; or (d) made any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment in violation of applicable Law.
4.8    Compliance with Money Laundering Laws. During the last three (3) years, the operations of the Company and its Subsidiaries are and have been at all times, conducted in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transactions Reporting Act of 1970, the money laundering statutes of all jurisdictions in which the Company and its Subsidiaries operate (and the rules and regulations promulgated thereunder) and any related or similar Laws (collectively, the “Money Laundering Laws”) and no legal proceeding by or before any Governmental Authority or any arbitrator involving the Company or any of its Subsidiaries with respect to Money Laundering Laws is pending or, to the actual knowledge of the Company, threatened.
4.9    No Broker’s Fees. The Company is not party to any contract with any Person (other than this Agreement) that would give rise to a valid claim against the Backstop Parties for a brokerage commission, finder’s fee or like payment in connection with the Concurrent Notes Offering and the other transactions contemplated hereby.
4.10    Investment Company Act. The Company is not, and after giving effect to the Concurrent Notes Offering, will not be, subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act.
11



4.11    Arm’s-Length. The Company acknowledges and agrees that (a) each Backstop Party is acting solely in the capacity of an arm’s-length contractual counterparty to the Company with respect to the transactions contemplated hereby and not as an agent, advisor or a fiduciary to, or an agent of, the Company or any of its Subsidiaries or any of their respective Affiliates and (b) no Backstop Party is advising the Company or any of its Subsidiaries or any of their respective Affiliates as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.
5.    REPRESENTATIONS AND WARRANTIES OF EACH BACKSTOP PARTY
Each Backstop Party hereby severally and not jointly represents and warrants, on its own behalf and, as applicable, in its capacity as investment manager for its managed funds and accounts party hereto, to the Company as of the date of this Agreement:
5.1    Organization. Such Backstop Party is duly organized, validly existing and in good standing (or equivalent thereof) under the Laws of the jurisdiction of its organization.
5.2    Due Authorization. Such Backstop Party has the requisite power and authority to enter into, execute and deliver this Agreement and any other Transaction Documents to which such Backstop Party is a party and to perform its obligations hereunder and thereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement. Assuming due and valid execution and delivery by the other parties hereto, each of this Agreement and any other Transaction Documents to which such Backstop Party is a party constitutes the legally valid and binding obligation of such Backstop Party, enforceable against such Backstop Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
5.3    Investor Representation. Such Backstop Party is an Eligible Holder. Any securities of the Company acquired by the applicable Backstop Party under this Agreement will have been acquired for investment and not with a view to distribution or resale in violation of the Securities Act. By reason of its business and financial experience, such Backstop Party has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of participating in the Concurrent Notes Offering, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment. Such Backstop Party has been furnished with materials relating to the business, finances and operations of the Company and its Subsidiaries and relating to the Concurrent Notes Offering that have been requested by such Backstop Party. Such Backstop Party has been afforded the opportunity to ask questions of the Company and its representatives. Such Backstop Party understands and acknowledges that its participation in the Concurrent Notes Offering involves a high degree of risk and uncertainty. Such Backstop Party has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its participation in the Concurrent Notes Offering.
5.4    No Conflict. The execution and delivery by such Backstop Party of this Agreement and the other Transaction Documents to which it is a party, the compliance by such Backstop Party with the provisions hereof and thereof and the consummation of the Transactions contemplated herein and therein will not (a) result in any violation of the provisions of the organizational or governing documents of such Backstop Party, or (b) result in any violation of any Law applicable to such Backstop Party or any of its properties.
12



5.5    Consents and Approvals. No consent, approval, authorization, order, registration or qualification of or with any Governmental Entity having jurisdiction over such Backstop Party or any of its properties is required for the execution and delivery by such Backstop Party of this Agreement and each other Transaction Document to which such Backstop Party is a party, the compliance by such Backstop Party with the provisions hereof and thereof and the consummation of the Transactions (including the purchase by each Backstop Party of its Backstop Commitment Amount) contemplated herein and therein.
5.6    Sufficiency of Funds. As of the date of funding of the Backstop pursuant to Section 3.2 hereof, each Backstop Party reasonably expects to have available funds sufficient to pay the aggregate Purchase Price for such Backstop Party’s Backstop Commitment Amount and the aggregate Purchase Price for the New First Lien Notes such Backstop Party has subscribed for in the Concurrent Notes Offering. For the avoidance of doubt, such Backstop Party acknowledges that its obligations under this Agreement and the other Transaction Documents are not conditioned in any manner upon its obtaining financing.
5.7    No Broker’s Fee. Such Backstop Party is not a party to any contract with any Person (other than the engagement letter with Houlihan or this Agreement) that would give rise to a valid claim against the Company for a brokerage commission, finder’s fee or like payment in connection with the Concurrent Notes Offering and the other transactions contemplated hereby.
5.8    No Registration. Such Backstop Party understands that any New First Lien Notes and any New Third Lien Notes issued to it in the Exchange Offer or the Concurrent Notes Offering (i) have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act and (ii) cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available. Such Backstop Party will not sell, transfer or otherwise dispose of the New First Lien Notes or the New Third Lien Notes or any interest therein, except in a registered transaction or in a transaction exempt from or not subject to the registration requirements of the Securities Act.
5.9    2026 Unsecured Notes. Such Backstop Party either (A) is the sole beneficial owner of the principal amount of the 2026 Unsecured Notes indicated for such Backstop Party on Schedule 2 attached hereto or (B) has sole investment or voting discretion with respect to the principal amount of the 2026 Unsecured Notes indicated for such Backstop Party on Schedule 2 and has the full power to vote, dispose of and compromise at least such aggregate principal amount of the 2026 Unsecured Notes.
6.    COVENANTS
6.1    Non-Disclosure of Certain Information. The Company shall not disclose publicly Schedule 1 or Schedule 2 to this Agreement or the Backstop Commitments or holdings information of any Backstop Party as of the date hereof or any time hereafter with respect to the New First Lien Notes; provided, that the Company may file this Agreement with the SEC, but shall redact Schedule 1, Schedule 2, and any Backstop Commitment or holdings information of any Backstop Party set forth on Schedule 1 and Schedule 2. The foregoing shall not prohibit the Company from disclosing the aggregate holdings information held by all of the Backstop Parties together or the aggregate Backstop Commitments of all of the Backstop Parties together.
6.2    Commercially Reasonable Efforts. Each of the Company and the Backstop Parties hereby agrees to use its commercially reasonable efforts to timely satisfy (if applicable)
13



each of the conditions under Section 7 hereof and consummate the Transactions contemplated hereby.
6.3    Facilitation; Further Assurances. Each Party, shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other Party may reasonably request to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. Each Party furthermore agrees to perform any and all of its covenants, agreements and obligations under this Agreement and not take any actions that would be inconsistent with such obligations.
6.4    Notification. The Company agrees to notify, or cause the Company’s professionals or Subscription Agent to notify, as reasonably practicable and upon the request of the Backstop Parties, during the exercise period for the Concurrent Notes Offering and on each Business Day during the five (5) Business Days prior to the Expiration Date (and any extensions thereto), the Backstop Parties of the aggregate number of New First Lien Notes known by the Company or the Subscription Agent to have been subscribed for pursuant to the Concurrent Notes Offering as of such date.
6.5    Amendments; Expiration Date. Prior to the Settlement Date, the Company shall not amend, supplement or otherwise modify the TSA, the Exchange and Offering Documents or the other Transaction Documents, without the prior written consent of the Required Backstop Parties, in their sole discretion. The Company shall not shorten or extend the Expiration Date without the prior written consent of the Required Backstop Parties, in their sole discretion.
7.    CONDITIONS TO THE BACKSTOP PARTIES’ CLOSING OBLIGATIONS
7.1    Conditions to the Backstop Parties’ Closing Obligations. The obligation of the Backstop Parties to consummate the transactions under Sections 2.1 and 2.2 hereof on the Settlement Date shall be subject to the satisfaction of each of the following conditions:
7.1.1    Certain Documents. The Exchange and Offering Documents, New First Lien Notes, New Third Lien Notes, and each of the other Transaction Documents shall be in form and substance reasonably acceptable to the Required Backstop Parties.
7.1.2    TSA; Agreement. The TSA and this Agreement shall have been validly authorized, executed, and delivered by the Company and neither this Agreement nor the TSA shall have been terminated.
7.1.3    Exchange Offer and Consent Solicitation. The Exchange Offer and the Consent Solicitation shall have been consummated or are being consummated substantially concurrently, in all material respects, in accordance with the Transaction Documents, and the Settlement Date shall have occurred or is occurring substantially concurrently.
7.1.4    Backstop Fee and Expense Reimbursement. The Company shall have paid to each Backstop Party (x) the Backstop Fee pursuant to Sections 2.3 and 3.3 hereof and (y) all Expense Reimbursement (to the extent invoiced at least two (2) Business Days prior to the Settlement Date) in full in cash, or such Expense Reimbursement shall be paid in full in cash concurrently with the Settlement Date (to the extent invoiced at least two (2) Business Days prior to the Settlement Date).
14



7.1.5    Representations and Warranties. The representations and warranties of the Company set forth in Section 4 hereof shall be true and correct in all material respects on and as of the Settlement Date, except for (a) such representations and warranties that are already qualified as to materiality by the terms of this Agreement, in which case such representations and warranties shall be true in all respects, and (b) such representations and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date.
7.1.6    Covenants. The Company shall have performed and complied, in all material respects, with all of its respective covenants and agreements contained in this Agreement that contemplate, by their terms, performance or compliance on or prior to the Settlement Date.
7.1.7    No Legal Impediment. No Law shall have been enacted, adopted or issued by any Governmental Authority that prohibits the consummation of the Transactions.
7.1.8    Determination of Backstop Commitments. The Subscription Agent shall have performed and complied, in all material respects, with the terms of Section 3 hereof that are contemplated to be performed by the Subscription Agent.
7.1.9    Material Adverse Effect. Since the date of this Agreement, there shall not have occurred, and there shall not exist, any Event that constitutes, individually or in the aggregate with all other Events, a Material Adverse Effect.
8.    CONDITIONS TO THE COMPANY’S CLOSING OBLIGATIONS
8.1    Conditions to the Company’s Closing Obligations. The obligation of the Company to consummate the transactions contemplated by this Agreement on the Settlement Date shall be subject to the satisfaction of each of the following conditions:
8.1.1    Exchange Offer and Consent Solicitation. The Exchange Offer and the Consent Solicitation shall have been consummated or are being consummated substantially concurrently, in all material respects, in accordance with the Transaction Documents, and the Settlement Date shall have occurred or is occurring substantially concurrently.
8.1.2    No Legal Impediment. No Law shall have been enacted, adopted or issued by any Governmental Authority that prohibits the consummation of the Transactions.
8.1.3    Representations and Warranties. The representations and warranties of the Backstop Parties set forth in Section 5 hereof shall be true and correct in all material respects on and as of the Settlement Date, except for (a) such representations and warranties that are already qualified as to materiality by the terms of this Agreement, in which case such representations and warranties shall be true in all respects, and (b) such representations and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date.
8.1.4    Covenants. Each of the Backstop Parties shall have performed and complied, in all material respects, with all of its respective covenants and agreements contained in this Agreement that contemplate, by their terms, performance or compliance on or prior to the Settlement Date.
15



8.1.5    TSA; Agreement. The TSA and this Agreement shall have been validly authorized, executed, and delivered by the Backstop Parties and neither this Agreement nor the TSA shall not have been terminated.
9.    MISCELLANEOUS
9.1    Notice. Any notice or other communication required or which may be given pursuant to this Agreement will be in writing and either delivered personally to the addressee or sent via electronic mail, courier, by certified mail, or registered mail (return receipt requested), and will be deemed given when so delivered personally, delivered by overnight courier, or sent via electronic mail, or, if mailed, five (5) calendar days after the date of mailing, as follows:
if to a Backstop Party:
to the address or email address set forth on Schedule 1 hereto (which notice information may be updated by any Backstop Party, from time to time, by providing written Notice to the Company pursuant to this Section 9.1)
with a copy to (which shall not constitute notice):
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attn:     Rachel C. Strickland (rstrickland@willkie.com)
    Weston T. Eguchi (weguchi@willkie.com)

if to the Company, to:
Cooper-Standard Automotive Inc.
40300 Traditions Drive
Northville, Michigan 48168
Attn: Joanna Totsky, Chief Legal Officer (Joanna.Totsky@cooperstandard.com)

with a copy to (which shall not constitute notice):

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attn:    Kenneth B. Wallach (kwallach@stblaw.com)
Sunny Cheong (scheong@stblaw.com)

9.2    Assignment. This Agreement will be binding upon and inure to the benefit of each and all of the Parties, and their respective successors and permitted assigns. Except as set forth below, neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties without the prior written consent of the other Parties. Notwithstanding the foregoing, this Agreement and the rights, obligations and interests hereunder (including any Backstop Commitment, any related fees (including all or a portion of the Backstop Fee) or other consideration hereunder) may be assigned, delegated or transferred, in whole or in part, by any Backstop Party to an Eligible Assignee, in each case, without the consent of the Company or any other Party hereto; provided, however, that such transferee, as a condition precedent to such transfer, becomes a Party to this Agreement and assumes the obligations of the transferring Backstop Party under this Agreement by executing (x) an addendum substantially in the form set forth in Exhibit A (the “Addendum”), (y) if not at such time a Backstop Party, a joinder in substantially the form set forth in Exhibit B hereto (the “Joinder”), and (z) if
16



not at such time party to the TSA, a joinder in substantially the form set forth in Exhibit B to the TSA, and deliver each of the foregoing (to the extent applicable) to the Company and Willkie Farr & Gallagher LLP in accordance with Section 9.1; provided, further, that, except in the case of an assignment from a Backstop Party to another Backstop Party, no Backstop Party shall be relieved, released or novated from its obligations pursuant to its Backstop Commitment hereunder, until the funding of the New First Lien Notes has occurred on the Settlement Date, unless the Company, acting in good faith, shall have consented in writing to such transfer. Following any assignment of a Backstop Party’s rights and obligations in this Agreement, Schedule 1 hereto shall be updated by the Company solely to reflect the name and address of the applicable transferee and the Backstop Percentage that shall apply to such transferee, and any changes to the Backstop Percentage applicable to the assigning Backstop Party. Any update to Schedule 1 hereto described in the immediately preceding sentence shall not be deemed an amendment or modification of this Agreement. In performing this Agreement, the Company and the Subscription Agent may rely solely on the most current Schedule 1.
9.3    Entire Agreement. This Agreement, including the terms of the agreements contemplated hereby and referred to herein (including the Exchange and Offering Documents) constitutes the entire agreement by and between the Company and the Backstop Parties with respect to the transactions contemplated by this Agreement and supersedes all prior agreements and representations, written or oral, with respect thereto. To the extent there is an inconsistency between the provisions in this Agreement and the agreements contemplated hereby and referred to herein, the provisions in this Agreement shall control.
9.4    Waivers and Amendments, Etc. This Agreement may be amended, modified or superseded, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the Company and the Required Backstop Parties, provided, one or more provisions of this Agreement may be waived with just the consent of the party hereto that is waiving the obligations of the other party under such provision. Notwithstanding the foregoing or anything in this Agreement to the contrary, (i) any provision of this Agreement requiring the consent of each Backstop Party may not amended without the prior written consent of each Backstop Party, (ii) any change to the Backstop Commitment of any Backstop Party, or any other change to this Agreement that increases the obligations of any Backstop Party, shall require the consent of such Backstop Party, and (iii) any changes to this Section 9.4 or the definitions of “Backstop Commitment Amount”, “Backstop Commitment Percentage”, “Backstop Fee” or “Purchase Price” shall require the consent of each adversely affected Backstop Party. No delay on the part of any Party in exercising any right, power or privilege pursuant to this Agreement will operate as a waiver thereof.  No waiver on the part of any Party of any right, power or privilege pursuant to this Agreement, nor any single or partial exercise of any right, power or privilege pursuant to this Agreement, shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement.  The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any Backstop Party otherwise may have at law or in equity. 
9.5    Indemnification and Expenses. The Company agrees to (a) indemnify and hold harmless each Backstop Party, in each case, in their capacity as such, their respective Related Parties and permitted successors and assigns (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several (“Losses”) that may be incurred by or asserted or awarded against any such Indemnified Person arising out of or in connection with this Agreement, the Transactions, the use of proceeds thereof or any claim, litigation, investigation or proceeding relating to
17



any of the foregoing, and to (b) reimburse each Backstop Party in their capacity as such from time to time upon receipt of their reasonable demand by presentation of a summary statement, for any reasonable and documented out-of-pocket legal or other expenses incurred in connection with the enforcement of this Agreement, the TSA and the Exchange and Offering Documents; provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to Losses to the extent (a) they are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Indemnified Person’s gross negligence, willful misconduct or fraud, (b) they relate to a dispute solely among Indemnified Persons and not arising out of any act or omission of the Company or any of its Subsidiaries or other Affiliates or (c) they apply to a Defaulting Backstop Party or its Related Parties related to a Backstop Party Default by such Defaulting Backstop Party or its Related Parties. None of the Company or its Subsidiaries need pay for any settlement or provide any indemnification for any other Losses associated therewith to the extent such settlement is made without its consent.
None of the Company, any Backstop Party, any Indemnified Person nor any of their respective Related Parties will be responsible or liable to one another for any indirect, special, punitive or consequential damages which may be alleged as a result of or arising out of, or in any way related to, the New First Lien Notes, the enforcement of this Agreement, the Exchange and Offering Documents, or any ancillary documents and security arrangements in connection therewith; provided that the indemnity and reimbursement obligations under this Section 9.5 shall not be limited by this sentence.
9.6    Governing Law; Jurisdiction; Venue; Process. This Agreement shall be governed by and construed in accordance with the Law of the State of New York without regard to the choice of law principles thereof. Each Party hereby irrevocably submits to the exclusive jurisdiction of any New York state court or federal court sitting in New York County, City of New York, for any action or proceeding arising out of or related to this Agreement or the transactions contemplated hereby. Each Party irrevocably waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
9.7    Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. All such counterparts will be deemed an original, will be construed together and will constitute one and the same instrument. An electronically scanned copy of a signature or an electronic signature (such as DocuSign®) shall be deemed an original signature under this Agreement.
9.8    Headings. The headings in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.
9.9    Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein will not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties hereto will be enforceable to the fullest extent permitted by Law.
9.10    Termination. This Agreement shall terminate as follows:
9.10.1    Consensual Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the
18



Settlement Date by mutual written consent of the Company and the Required Backstop Parties.
9.10.2    Termination by Required Backstop Parties. This Agreement may be terminated by the Required Backstop Parties upon written notice to the Company if any of the following occurs:
(a)    the Company (i) amends, alters or otherwise modifies or consummates any Transaction Document in a manner that is (A) materially inconsistent with this Agreement or the TSA without the consent of the Required Backstop Parties or (B) in a manner materially adverse to the Backstop Parties or (ii) suspends or revokes any Transaction Document;
(b)    a breach in any material respect by the Company of any representation, warranty, covenant or other agreement made by the Company in this Agreement or any other Transaction Document or any such representation or warranty shall have become inaccurate in any material respect and such breach or inaccuracy (i) would or would reasonably be expected to, individually or in the aggregate, cause a condition set forth in Section 7.1 hereof not to be satisfied and (ii) is not cured within five (5) Business Days after the Backstop Parties have notified the Company thereof;
(c)    since November 2, 2022 there shall have occurred any Event, individually, or together with all other Events, that has had or would reasonably be expected to have a Material Adverse Effect; or
(d)    the TSA is terminated in accordance with its terms or otherwise ceases to be effective.
9.10.3    Automatic Termination. This Agreement shall terminate without notice by or to any Party hereto if the Settlement Date shall not have occurred by February 15, 2023 (the “Outside Date”) or such later date as agreed to by the Company and the Required Backstop Parties.
9.11    Effect of Termination. Upon termination of this Agreement pursuant to Section 9.10 hereof, this Agreement shall forthwith become void and there shall be no further obligations or liabilities on the part of the parties hereto; provided, that (a) the obligation of the Company to pay the Expense Reimbursement pursuant to Section 2.4 shall survive the termination of this Agreement unless terminated due to a breach by a Backstop Party and shall remain in full force and effect until such obligation has been satisfied (except as otherwise set forth herein), and (b) the provisions set forth in Section 9.5, Section 9.8, this Section 9.11, Section 9.12, Section 9.13, Section 9.14, Section 9.15 and Section 9.16 shall survive the termination of this Agreement in accordance with their terms. Notwithstanding anything contained herein, if this Agreement is terminated as a result of a breach of this Agreement by a Party hereto, such Party shall not be released and shall remain liable for any damages resulting from such termination.
9.12    Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
19



9.13    Publicity. Except as required by Law, at all times prior to the Settlement Date or the earlier termination of this Agreement in accordance with its terms, the Company and the Backstop Parties shall consult with each other prior to issuing any press releases (and provide each other a reasonable opportunity to review and comment upon any such release) or otherwise making public announcements with respect to the transactions contemplated by this Agreement. Except as required by Law, the Company shall not identify or use the name of any Backstop Party in connection with any press release or other public announcement related to this Agreement without the prior written consent of such Backstop Party. Notwithstanding the foregoing, the Company shall not be required to keep confidential the aggregate Backstop Commitments or aggregate holdings of 2026 Unsecured Notes of all Backstop Parties.
9.14    No Recourse to Related Parties; Obligations Several Not Joint.
9.14.1    Related Parties. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Parties may be partnerships or limited liability companies, each Party covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any Related Parties of any Party other than the Parties party to this Agreement and each of their respective successors and permitted assignees under this Agreement, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Related Parties of any Party, as such, for any obligation or liability of any Party or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, that nothing in this Section 9.14 shall relieve or otherwise limit the liability of any Party or any of their respective successors or permitted assigns for any breach or violation of its obligations under this Agreement or such other documents or instruments.
9.14.2    Obligations Several and Not Joint. The obligations of the Backstop Parties arising out of this Agreement are several and not joint with respect to each participating fund and account that is a Backstop Party, in accordance with its proportionate interest hereunder, and the Company agrees not to proceed against any fund or account for the obligations of another.
9.15    PATRIOT ACT. The Backstop Parties hereby notify the Company that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”) and recent regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), each of them may be required to obtain, verify and record information that will allow it to identify the Person who is establishing the relationship or opening the account, which information may include a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, including the name and address and other information that will allow the Backstop Parties to identify such Persons in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. The Company shall, promptly following a request by Backstop Party or a Backstop Party Professional, provide all documentation and other information that such Person reasonably requests in order to comply with any Backstop Party’s ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.
20



9.16    Other Interpretive Matters. Unless otherwise expressly provided herein, for purposes of this Agreement, the following rules of interpretation shall apply: (a) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and, if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day; (b) any reference in this Agreement to “$” or “dollars” shall mean U.S. dollars; (c) all exhibits and schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein and any capitalized terms used in any such exhibit or schedule but not otherwise defined therein shall be defined as set forth in this Agreement; (d) words imparting the singular number only shall include the plural and vice versa; (e) words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires; (f) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (g) the division of this Agreement into Sections and other subdivisions are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement; and (h) all references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
9.17    Specific Performance. The Parties agree that irreparable damage could occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to seek an injunction or injunctions without the necessity of posting a bond to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in this Agreement is intended to be exclusive or to preclude a Party from pursuing any other rights and remedies to the extent available under this Agreement, at law or in equity.
[Signature pages follow]
21



    IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers, solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date first set forth above.


COOPER-STANDARD AUTOMOTIVE INC.



By:         /s/ Jonathan P. Banas            
    Name: Jonathan P. Banas
    Title: Executive Vice President and Chief
         Financial Officer






MILLSTREET CAPITAL MANAGEMENT LLC, on behalf of multiple funds



By:        /s/ Craig M. Kelleher            
    Name: Craig M. Kelleher
    Title: Managing Member    



J.P. MORGAN INVESTMENT MANAGEMENT INC. AND/OR JPMORGAN CHASE BANK, N.A. ("Signatory"), solely as investment manager of the certain discretionary accounts holding the 2026 Unsecured Notes indicated on Schedule 2 hereto.

By executing this Agreement, Signatory, solely as investment manager of such discretionary accounts, binds only itself, and itself only in that capacity, and not any other affiliate of JP Morgan Chase & Co., or any of its or their respective business units, subsidiaries or affiliates (including any desk or business unit thereof), and no such affiliate shall be deemed to be bound by the terms of this Agreement by virtue of Signatory's execution of this Agreement. Moreover, Signatory shall have no obligation to cause any of its affiliates to take or refrain from taking any action.



By:        /s/ Greg Seketa            
    Name: Greg Seketa
    Title: Executive Director    



SCHEDULE 1


[intentionally omitted]



SCHEDULE 2



[intentionally omitted]














Exhibit A

Addendum

ADDENDUM (this “Addendum”), dated as of [_____], by the undersigned Assignor and Assignee, for the benefit of the parties to that certain Backstop Commitment Agreement, dated as of December 19, 2022 (the “Agreement”), among Cooper-Standard Automotive Inc. (the “Company”), and the Backstop Parties party thereto from time to time. Each capitalized term used but not defined herein shall have the meaning given to it in the Agreement.
The undersigned Assignor and Assignee hereby represent, warrant, acknowledge and agree, for the benefit of the Parties as follows:
(a)     Assignee represents and warrants that, as of the date hereof, (i) it is a Backstop Party or will become a Backstop Party through the execution and delivery of a Joinder, and (ii) it is a party to the TSA or will become a party to the TSA through the execution and delivery of a joinder in substantially the form set forth in Exhibit B to the TSA;
(b)     Assignee and Assignor each represent and warrant that, on or prior to the date hereof, Assignor has assigned, delegated or transferred to Assignee the Backstop Commitments described on Annex A hereto (the “Transferred Commitments”);
(c)     Subject to the terms and conditions of the Agreement, as of the date hereof, Assignee agrees to be bound by all of the terms and conditions of the Agreement as a Backstop Party with respect to the Transferred Commitments, including, without limitation, the obligation to purchase, severally and not jointly, from the Company, (i) New First Lien Notes in an aggregate principal amount equal to such Assignee’s Backstop Commitment Amount and (ii) New First Lien Notes in an aggregate principal amount equal to its ratable holdings of 2026 Unsecured Notes pursuant to the Concurrent Notes Offering, in each case, in accordance with the terms and conditions of the Agreement;
(d) Assignee and Assignor each acknowledge and agree, severally and not jointly, that the terms and conditions of Section 9.2 of the Agreement apply to the Transferred Commitments, and each represent and warrant to the best of its knowledge that the assignment of the Transferred Commitments complies with the terms and conditions of Section 9.2 of the Agreement; and
(e)     Assignee and Assignor acknowledge that the Schedules to the Agreement may be updated in accordance with the terms of Section 9.2 of the Agreement, and agree that the Company and the other Parties may rely on the representations, warranties, acknowledgements and agreements herein, in connection with implementing the terms of the Agreement.
Each of the undersigned acknowledges and agrees that once delivered to the Company, it may not revoke, withdraw, amend, change or modify this Addendum unless the Agreement has been terminated.
THIS ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
This Addendum may be executed in one or more counterparts, each of which, when so executed, shall constitute the same instrument and the counterparts may be delivered by facsimile transmission or by e-mail in portable document format (.pdf).




[Signature pages follow]




    IN WITNESS WHEREOF, the Parties have caused this Addendum to be executed and delivered by their respective duly authorized officers, solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date first set forth above.

                        ASSIGNOR:

[_______________]



By:                    
    Name:
    Title:


ASSIGNEE:

[_______________]



By:                    
    Name:
    Title:





Consented to:
COOPER-STANDARD AUTOMOTIVE INC.



By:        
Name:
Title:





Annex A
Transferred Commitments




Exhibit B
Joinder
This JOINDER AGREEMENT (this “Joinder”), dated as of [_____], by the undersigned (“Joining Backstop Party”). Reference is made to that certain Backstop Commitment Agreement, dated as of December 19, 2022 (the “Agreement”), among Cooper-Standard Automotive Inc. (the “Company”), and the Backstop Parties party thereto from time to time. Each capitalized term used but not defined herein shall have the meaning given to it in the Agreement. A copy of the Agreement is attached hereto as Annex I.
Upon execution and delivery of this Joinder, the undersigned hereby becomes a Backstop Party under the Agreement and agrees to be bound thereby (including all the terms, conditions and obligations set forth therein).
By executing and delivering this Joinder, the undersigned represents and warrants, severally and not jointly, to each Party as of the date hereof and as of the Settlement Date (except for representations and warranties that are made as of a specific date, which are made only as of such date) each of the representations and warranties applicable to Backstop Parties in the Agreement (including Section 5 thereof).
The undersigned acknowledges and agrees that once delivered to the Company, it may not revoke, withdraw, amend, change or modify this Joinder unless the Agreement has been terminated according to its terms.
This Joinder shall take effect and shall become an integral part of the Agreement immediately upon its execution, and the Joining Backstop Party shall be deemed to be bound by all of the terms, conditions and obligations of the Agreement and entitled to all of the rights under the Agreement as of the date thereof. The Joining Backstop Party shall hereafter be deemed to be a “Backstop Party” and a “Party” for all purposes under the Agreement.
THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
This Joinder may be executed in one or more counterparts, each of which, when so executed, shall constitute the same instrument and the counterparts may be delivered by facsimile transmission or by e- mail in portable document format (.pdf).
[Signature pages follow]





IN WITNESS WHEREOF, the undersigned has caused this Joinder to be executed and delivered by their respective duly authorized officers, solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date first set forth above.

                        JOINING BACKSTOP PARTY:

[_______________]



By:                    
    Name:
    Title:


Document
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 3 TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
This AMENDMENT NO. 3 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is entered into as of December 19, 2022 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”), COOPER-STANDARD AUTOMOTIVE INTERNATIONAL HOLDINGS B.V., a corporation under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) (the “European Borrower” and, together with the U.S. Borrower and the Canadian 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, and Amendment No. 2 to Third Amended and Restated Loan Agreement dated as of May 18, 2020 (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 (collectively, the “Company”) have entered into a transaction support agreement (together with all exhibits, annexes and schedules thereto, the “Transaction Support Agreement”) dated November 15, 2022 with an ad hoc committee of holders (the “Consenting Noteholders”) of approximately 62.7% of the aggregate principal amount of the U.S. Borrower’s 5.625% Senior Notes due 2026 (the “2026 Senior Notes”) whereby the Consenting Noteholders have agreed to support a set of refinancing transactions to be commenced by the Company (collectively, the “Third Amendment Refinancing Transactions”), consisting of (i) a notes offering for cash (the “Concurrent Notes Offering”) to holders of the 2026 Senior Notes of $580 million in aggregate principal amount of 13.50% Cash Pay / PIK Toggle Senior Secured First Lien Notes due 2027 (the “New First Lien Notes”) newly issued by U.S. Borrower and guaranteed by Holdings and certain of U.S. Borrower’s subsidiaries, (ii) an exchange offer (the “Exchange Offer”) conducted by U.S. Borrower for any and all of its $400.0 million in aggregate principal amount of 2026 Senior Notes to holders of 2026 Senior Notes who participate in the Concurrent Notes Offering in exchange for newly issued 5.625% Cash Pay / 10.625% PIK Toggle Senior Secured Notes due 2027 on a par-for-par basis; (iii) a related consent solicitation (the “Consent Solicitation”) to remove substantially all of the covenants, certain events of default and certain other provisions contained in the 2026 Senior Notes and the indenture governing the 2026



Senior Notes; (iv) a backstop commitment by funds and accounts managed or advised by J.P. Morgan Investment Management Inc. and/or JPMorgan Chase Bank, N.A. and Millstreet Capital Management (the “Initial Backstop Parties”) and certain other investors as may be designated by the Initial Backstop Parties to purchase any New First Lien Notes not otherwise subscribed for by holders of the 2026 Senior Notes in the Concurrent Notes Offering; and (v) the use of proceeds from the New First Lien Notes, together with cash on hand, to (x) prepay in full the U.S. Borrower’s existing term loan facility with respect to the senior secured term B credit facility dated November 2, 2016 among Holdings, the financial institutions named therein and Deutsche Bank AG New York Branch, as administrative agent and collateral agent (the “Term Loan B Prepayment”), (y) to redeem the U.S. Borrower’s existing 13.000% Senior Secured Notes due 2024 (the “Senior Secured Notes Redemption”) and (z) to pay related fees and expenses (collectively, clauses (i) through (v), the “Third Amendment 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, (a) permit the Third Amendment Transactions, (b) remove the European Borrower, (c) increase the Applicable Margin and (d) implement Term SOFR as a benchmark replacement to LIBOR.
Now, therefore, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1.    Amendments.
(a)    Upon the Third 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.
(b)    Upon the Third Amendment Effective Date, clause (9) of the definition of “Excluded Property” in the Pledge and Security Agreement is hereby amended and restated as follows “Excluded Capital Stock and any assets or property of any Specified Jurisdiction Guarantor”.
2.    Signing Effective Date. This Agreement (other than the amendments set forth in Section 1 hereof) shall become effective upon the execution and delivery of this Agreement by the undersigned Loan Parties, Agent and each Lender (the “Third Amendment Signing Date”).
3.    Third Amendment Effective Date. The amendments set forth in Section 1 of this Agreement shall become effective upon satisfaction of the following conditions (the “Third Amendment Effective Date”):
(a)    (i) the Third Amendment Signing Date shall have occurred and (ii) the Third Amendment Effective Date shall occur on or before the date that is 60 days following the Third Amendment Signing Date;
- 2 -



(b)    the Third Amendment Transactions shall be consummated substantially simultaneously with the Third Amendment Effective Date substantially in accordance with the terms of the Transaction Support Agreement without any amendment, supplement or other modification thereto materially adverse to the Lenders, including without limitation the Term Loan B Prepayment and Senior Secured Notes Redemption;
(c)    Agent shall have received (i) a payoff letter evidencing the Term Loan B Prepayment, in form and substance reasonably satisfactory to the Agent and (ii) a copy of a notice of redemption with respect to the Senior Secured Notes Redemption and, in each case, customary documentation with respect to the release and termination of security interests in connection with the Term Loan B Prepayment and the Senior Secured Notes Redemption (including UCC-3 financing statement releases);
(d)    the execution and delivery of each applicable Intercreditor Agreement by the applicable parties thereto;
(e)    after giving effect to the amendments in Section 1 hereof and upon consummation of the Third Amendment Transactions, (i) no Default or Event of Default shall exist, (ii) the representations and warranties set forth in Section 9 of the Loan Agreement are true and correct in all material respects as of the Third 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), (iii) the Borrowers and their consolidated Restricted Subsidiaries, taken as a whole, are Solvent and (iv) since December 31, 2021, 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;
(f)    Agent shall have received (i) a certificate, in form and substance reasonably satisfactory to it, from a Responsible Officer of each Borrower certifying as to the satisfaction of clause (e) of this Section 3 and (ii) a perfection certificate, in form and substance reasonably satisfactory to it, executed by a Responsible Officer of Loan Party Agent;
(g)    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 Third Amendment Effective Date pursuant to the Loan Documents shall have been paid in full in cash, including an amendment fee for the ratable benefit of each Lender party hereto in an amount equal to 0.25% of the aggregate amount of each Lender’s Facility Commitments on the Third Amendment Effective Date (such amendment fee to be fully earned and due and payable on, and subject to the occurrence of the Third Amendment Effective Date, and shall not be refundable for any reason);
(h)    to the extent reasonably requested by Agent or any Lender at least 10 Business Days prior to the Third 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
- 3 -


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; and
(i)    giving effect to the Third Amendment Effective Date and the transactions contemplated herein, Availability shall be at least $60,000,000 (without giving effect to the $35,000,000 U.S. Bank Product Reserve included in the Borrowing Base).
4.    European Borrower. As of the Third Amendment Effective Date, “Borrower” and “Borrowers” shall not include the European Borrower 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.
5.    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 Third Amendment Effective Date and (b) 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.
6.    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.
(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 Third 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.
7.    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.
- 4 -



8.    Governing Law. This Agreement shall be governed by the laws of the State of New York.
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]

- 5 -


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 U.S. Facility Guarantor and a Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: President
COOPER-STANDARD AUTOMOTIVE INC., as a U.S. Borrower, a U.S. Facility Guarantor and a Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: Executive Vice President and Chief Financial Officer
COOPER-STANDARD INDUSTRIAL AND SPECIALTY GROUP, LLC, as a U.S. Facility Guarantor and Canadian Facility Guarantor
By: /s/ James Zabriskie
Name: James Zabriskie
      Title: Treasurer

COOPER-STANDARD AUTOMOTIVE CANADA LIMITED, as the Canadian Borrower and a Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: Vice President





[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


COOPER-STANDARD AUTOMOTIVE INTERNATIONAL HOLDINGS B.V., as the European Borrower
By: /s/ Ramsey Changoo
Name: Ramsey Changoo
 Title: Director A
By: /s/ Daniel Shattock
Name: Daniel Shattock
      Title: Director B

COOPER-STANDARD AUTOMOTIVE FLUID SYSTEMS MEXICO HOLDING LLC, as a U.S. Facility Guarantor and Canadian Facility Guarantor
By:/s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: Vice President

[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


CSA SERVICES INC., as a U.S. Facility Guarantor and Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: President
NISCO HOLDING CO., as a U.S. Facility Guarantor and Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
Title: Vice President
COOPER-STANDARD FHS LLC, as a U.S. Facility Guarantor and Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
      Title: President
COOPER-STANDARD CANADA HOLDINGS LLC, as a U.S. Facility Guarantor and Canadian Facility Guarantor
By: /s/ Jonathan P. Banas
Name: Jonathan P. Banas
      Title: President
[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


AGENT AND LENDERS:

BANK OF AMERICA, N.A.,
as Agent and U.S. Lender

By: /s/ Thomas H. Herron        
Name: Thomas H. Herron
Title: Senior Vice President


[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


BANK OF AMERICA, N.A., (acting through its Canada branch), as a Canadian Lender

By: /s/ Medina Sales de Andrade        
Name: Medina Sales de Andrade
Title: Vice President
[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

By: /s/ Phillip Tancorra            
Name: Phillip Tancorra
Title: Vice President


By: /s/ Suzan Onal                
Name: Suzan Onal
Title: Vice President

[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


GOLDMAN SACHS BANK USA, as a Lender

By: /s/ Keshia Leday                
Name: Keshia Leday
Title: Authorized Signatory
[Signature Page to Amendment No. 3 to Third Amended and Restated Loan Agreement]


ANNEX A
[See Attached]


Conformed Credit AgreementAnnex A

___________________________________________________________________________
$180,000,000

THIRD AMENDED AND RESTATED LOAN AGREEMENT
among

CS INTERMEDIATE HOLDCO 1 LLC,
as a U.S./European Facility Guarantor and a Canadian Facility Guarantor

COOPER-STANDARD AUTOMOTIVE INC.,
as the U.S. Borrower, a U.S./European Facility Guarantor and a Canadian Facility Guarantor

COOPER-STANDARD AUTOMOTIVE CANADA LIMITED,
as the Canadian Borrower and a Canadian Facility Guarantor
COOPER-STANDARD AUTOMOTIVE INTERNATIONAL HOLDINGS B.V.,
as the European Borrower
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,
and as amended by Amendment No. 2, dated as of May 18, 2020,
and as amended by Amendment No. 3, dated as of December 19, 2022,

BANK OF AMERICA SECURITIES, INC.
as Syndication Agent

BANK OF AMERICA SECURITIES INC.
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers and Bookrunners



TABLE OF CONTENTS
Page
_____________________________________________________________________________
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION    2
1.1    Definitions    2
1.2    Accounting Terms    7372
1.3    Uniform Commercial Code/PPSA    7472
1.4    Certain Matters of Construction    7472
1.5    Interpretation (Quebec)    7573
1.6    LIBOR Amendment    75Term SOFR Successor Rate    73
1.7    Canadian BA Rate Amendment    7775
1.8    Divisions    7775
1.9    Interest Rates    75
SECTION 2. CREDIT FACILITIES    7876
2.1    Commitment    7876
2.1.1    Revolver Loans    7876
2.1.2    Revolver Notes    7977
2.1.3    Use of Proceeds    7977
2.1.4    Reduction or Termination of Commitments; Increase of Commitments    7977
2.1.5    Overadvances    8279
2.1.6    Protective Advances    8280
2.1.7    Prepayments    8380
2.2    U.S. and European Letter of Credit Facility    8381
2.2.1    Issuance of Letters of Credit    8381
2.2.2    U.S. Letters of Credit and European Letters of Credit: Reimbursement and Participations    8583
2.2.3    Cash Collateral    8784
2.2.4    Resignation of U.S    8784
2.3    Canadian Letter of Credit Facility    8784
2.3.1    Issuance of Letters of Credit    8784
2.3.2    Canadian Letters of Credit: Reimbursement and Participations    8986

    -i-



2.3.3    Cash Collateral    9187
2.3.4    Resignation of Canadian Issuing Bank    9188
2.4    FILO Credit Facility    9188
SECTION 3. INTEREST, FEES AND CHARGES    9490
3.1    Interest    9490
3.1.1    Rates and Payment of Interest    9490
3.1.2    Application of LIBORTerm SOFR to Outstanding Loans    9591
3.1.3    Application of Canadian BA Rate to Outstanding Loans    9592
3.1.4    Interest Periods    9692
3.1.5    Interest Rate Not Ascertainable    9693
3.2    Fees    9693
3.2.1    Unused Line Fee    9693
3.2.2    U.S    9793
3.2.3    European LC Facility Fees    97[Reserved]    94
3.2.4    Canadian LC Facility Fees    9794
3.2.5    Other Fees    9794
3.3    Computation of Interest, Fees, Yield Protection    9794
3.4    Reimbursement Obligations    9894
3.5    Illegality    9895
3.6    Inability to Determine Rates    9995
3.7    Increased Costs; Capital Adequacy    9996
3.7.1    Change in Law    9996
3.7.2    Capital Adequacy    10096
3.7.3    Compensation    10096
3.8    Mitigation    10097
3.9    Funding Losses    10197
3.10    Maximum Interest    10197
SECTION 4. LOAN ADMINISTRATION    10298
4.1    Manner of Borrowing and Funding Loans    10298
4.1.1    Notice of Borrowing    10298
4.1.2    Fundings by Lenders    10399
    -ii-



4.1.3    Swingline Loans; Settlement    104; Rescindable Amounts    100
4.1.4    Notices    105101
4.2    Defaulting Lender    105102
4.2.1    Reallocation of Pro Rata Share; Amendments    105102
4.2.2    Payments; Fees    105102
4.2.3    Status; Cure    106102
4.3    Number and Amount of Interest Period Loans; Determination of Rate    106102
4.4    Loan Party Agent    106103
4.5    One Obligation    107104
4.6    Effect of Termination    107104
SECTION 5. PAYMENTS    107104
5.1    General Payment Provisions    107104
5.2    Repayment of Obligations    107105
5.3    Payment of Other Obligations    108105
5.4    Marshaling; Payments Set Aside    108105
5.5    Post-Default Allocation of Payments    108106
5.5.1    Allocation    108106
5.5.2    Erroneous Application    111108
5.6    Application of Payments    111108
5.7    Loan Account; Account Stated    111108
5.7.1    Loan Account    111108
5.7.2    Entries Binding    111109
5.8    Taxes    111109
5.8.1    Payments Free of Taxes    112109
5.8.2    Other Taxes    112109
5.8.3    Indemnification by Loan Parties    112109
5.8.4    Indemnification by Lenders    112109
5.8.5    Evidence of Payment    112110
5.8.6    Treatment of Certain Refunds    113110
5.8.7    Survival    113110
5.8.8    Defined Terms    113111
5.9    Lender Tax Information    113111
    -iii-




5.9.1    Generally    113111
5.9.2    U.S    114111
5.9.3    Lender Obligations    114112
5.10    Guarantee by U.S. Facility Loan Parties    115112
5.10.1    Joint and Several Liability    115112
5.10.2    Waivers    115112

5.10.3    Extent of Liability; Contribution    116114
5.10.4    Joint Enterprise    117115
5.10.5    Subordination    117116
5.11    Currency Matters    117
5.12    Currency Fluctuations    118
SECTION 6. CONDITIONS PRECEDENT    119
6.1    Conditions Precedent to Initial Loans    119
6.2    Conditions Precedent to All Credit Extensions    121
SECTION 7. CASH COLLATERAL    122
7.1    Cash Collateral    122
SECTION 8. COLLATERAL ADMINISTRATION    122
8.1    Borrowing Base Certificates    122
8.2    Administration of Accounts    123
8.2.1    Records and Schedules of Accounts    123
8.2.2    Taxes    123
8.2.3    Account Verification    123
8.2.4    Maintenance of DACA Deposit Accounts and Dominion Accounts    124123
8.2.5    Proceeds of Collateral; Payment Items Received    124
8.3    Administration of Inventory    124
8.3.1    Records and Reports of Inventory    124
8.3.2    Returns of Inventory    125124
8.3.3    Acquisition, Sale and Maintenance    125
8.4    [Intentionally Omitted]    125
8.5    Administration of Deposit Accounts    125
8.6    General Provisions    126125
8.6.1    Location of Collateral    126125
    -iv-



8.6.2    Insurance of Collateral; Condemnation Proceeds    126
8.6.3    Protection of Collateral    127
8.6.4    Defense of Title to Collateral    127
8.7    Power of Attorney    127
SECTION 9. REPRESENTATIONS AND WARRANTIES    128
9.1    General Representations and Warranties    128
9.1.1    Organization and Qualification    128
9.1.2    Power and Authority    128

9.1.3    Enforceability    129128
9.1.4    Corporate Names; Capital Structure    129128
9.1.5    Locations    129
9.1.6    Title to Properties; Priority of Liens    129
9.1.7    Accounts and Inventory    129
9.1.8    Financial Statements; Solvency; Material Adverse Effect    130
9.1.9    Taxes    131130
9.1.10    [Intentionally Omitted]    131130
9.1.11    Intellectual Property    131
9.1.12    Governmental Approvals    131
9.1.13    Compliance with Laws    132131
9.1.14    Compliance with Environmental Laws    132131
9.1.15    Burdensome Contracts    132
9.1.16    Litigation    133132
9.1.17    No Defaults    133132
9.1.18    ERISA    133132
9.1.19    Trade Relations    134
9.1.20    Labor Relations    135134
9.1.21    Payable Practices    135134
9.1.22    Not a Regulated Entity    135134
9.1.23    Margin Stock    135134
9.1.24    Perfection, Etc    135134
9.1.25    OFAC; Sanctions    136135
9.1.26    Affected Financial Institution    136135
9.1.27    Anti-Corruption Laws    136
    -v-



9.2    Complete Disclosure    137136
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS    137136
10.1    Affirmative Covenants    137136
10.1.1    Financial and Other Information    137136
10.1.2    Notices    141140
10.1.3    Landlord and Storage Agreements    142141
10.1.4    Compliance with Laws    142141
10.1.5    Taxes    142141
10.1.6    Preservation of Existence, Etc    142

10.1.7    Maintenance of Properties    143142
10.1.8    Insurance    143142
10.1.9    Inspections; Appraisals    143142
10.1.10    Use of Proceeds    144143
10.1.11    Covenant to Guarantee Obligations and Give Security    144143
10.1.12    Licenses    146147
10.1.13    Post-Closing Matters    147
10.2    Negative Covenants    147
10.2.1    Permitted Liens    147
10.2.2    Permitted Indebtedness    147
10.2.3    Restricted Payments    155156
10.2.4    Holdings Activities.    162163
10.2.5    [Intentionally Omitted]    163
10.2.6    [Intentionally Omitted]    163
10.2.7    Fundamental Changes    163
10.2.8    [Intentionally Omitted]    165166
10.2.9    Organization Documents    166
10.2.10    Tax Consolidation    166
10.2.11    Accounting Changes    166
10.2.12    Dividend and Other Payment Restrictions Affecting Subsidiaries    166
10.2.13    Hedging Agreements    168169
10.2.14    Conduct of Business    169
10.2.15    Affiliate Transactions    169
    -vi-



10.2.16    Plans    172
10.2.17    Certain Amendments    172
10.3    Financial Covenant    172
10.3.1    Fixed Charge Coverage Ratio    172
SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT    173
11.1    Events of Default    173
11.2    Remedies upon Default    175
11.3    License    175
11.4    Setoff    176
11.5    Remedies Cumulative; No Waiver    176
11.5.1    Cumulative Rights    176

11.5.2    Waivers    176
11.6    Judgment Currency    176
SECTION 12. AGENT    177
12.1    Appointment, Authority and Duties of Agent    177
12.1.1    Appointment and Authority    177
12.1.2    Duties    178
12.1.3    Agent Professionals    178
12.1.4    Instructions of Required Lenders    178
12.2    Agreements Regarding Collateral, Borrower Materials and Intercreditor Matters    179
12.2.1    Lien Releases; Care of Collateral; Intercreditor Matters    179
12.2.2    Possession of Collateral    180
12.2.3    Reports    181
12.3    Reliance By Agent    181
12.4    Action Upon Default    181
12.5    Ratable Sharing    182181
12.6    Indemnification    182
12.7    Limitation on Responsibilities of Agent    182
12.8    Successor Agent and Co-Agents    183
12.8.1    Resignation; Successor Agent    183
12.8.2    Co-Collateral Agent    183
12.9    Due Diligence and Non-Reliance    183
    -vii-



12.10    Replacement of Certain Lenders    184
12.11    Remittance of Payments and Collections    184
12.11.1    Remittances Generally    184
12.11.2    Failure to Pay    184
12.11.3    Recovery of Erroneous Payments    185184
12.12    Individual Capacity    185
12.13    Titles    185
12.14    Bank Product Providers    185
12.15    No Third Party Beneficiaries    185
12.16    Certain ERISA Matters    186185
12.16.1    Lender Representations    186185
12.16.2    Further Lender Representations    186
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS    186

13.1    Successors and Assigns    186
13.2    Participations    187186
13.2.1    Permitted Participants; Effect    187186
13.2.2    Voting Rights    187
13.2.3    Benefit of Set-Off    187
13.3    Assignments    188187
13.3.1    Permitted Assignments    188187
13.3.2    Register    188
13.3.3    Effect; Effective Date    189188
13.3.4    Certain Assignees    189188
SECTION 14. MISCELLANEOUS    189
14.1    Consents, Amendments and Waivers    189
14.1.1    Amendment    189
14.1.2    Limitations    190
14.1.3    Payment for Consents    191190
14.2    Indemnity    191190
14.3    Notices and Communications    191
14.3.1    Notice Address    191
14.3.2    Electronic Communications    192191
    -viii-



14.3.3    Platform    192191
14.3.4    Non-Conforming Communications    192
14.4    Performance of the Loan Parties’ Obligations    192
14.5    Credit Inquiries    193192
14.6    Severability    193192
14.7    Cumulative Effect; Conflict of Terms    193192
14.8    CounterpartsExecution; Electronic Records    193
14.9    Entire Agreement    193
14.10    Relationship with Lenders    193
14.11    No Advisory or Fiduciary Responsibility    194193
14.12    Confidentiality    194
14.13    Acknowledgment Regarding QFCs    195194
14.13.1    Covered Party    195
14.13.2    Definitions    195
14.14    GOVERNING LAW    195

14.15    Consent to Forum    195
14.15.1    Forum    195
14.16    Waivers by the Loan Parties    196
14.17    Patriot Act Notice    196
14.18    Canadian Anti-Money Laundering Legislation    197196
14.19    Reinstatement    197
14.20    Nonliability of Lenders    197
14.21    INTERCREDITOR AGREEMENT    198197
14.22    Amendment and Restatement    198
14.23    Acknowledgement and Consent to Bail-In of Affected Financial Institutions    199

    -ix-


LIST OF EXHIBITS AND SCHEDULES
Exhibit A-1Form of Canadian Revolver Note
Exhibit A-2Form of U.S. Revolver Note
Exhibit A-3Form of European Revolver Note
Exhibit BNotice of Borrowing
Exhibit CNotice of Conversion/Continuation
Exhibit DAssignment and Acceptance
Exhibit EAssignment Notice
Exhibit F[Reserved]
Exhibit GForm of Borrowing Base Certificate
Exhibit HForm of Landlord Waiver
Exhibit IForm of Bailee Letter
Exhibit J
Intercreditor Agreement[Reserved]
Exhibit KPledge and Security Agreement
Exhibit LIntercompany 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 6.1List of Closing Documents
Schedule 8.5Deposit Accounts
Schedule 8.6.1Business Locations
Schedule 9.1.4Corporate Names and Capital Structure
Schedule 9.1.6(b)Owned Real Property
Schedule 9.1.11Intellectual Property
Schedule 9.1.14Environmental Matters
Schedule 9.1.16Litigation
Schedule 9.1.18(e)Canadian Pension Plan
Schedule 9.1.20Labor Contracts
Schedule 9.1.24Filing Offices
Schedule 10.1.13Post-Closing Matters
Schedule 10.2.1Liens
Schedule 10.2.2Existing Indebtedness
    -x-


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, and amended by Amendment No. 2, dated as of May 18, 2020, among CS INTERMEDIATE HOLDCO 1 LLC, a Delaware limited liability company (“Holdings”) as a U.S./European 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), COOPER-STANDARD AUTOMOTIVE INTERNATIONAL HOLDINGS B.V., a corporation under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) (the “European Borrower and together with the U.S. Borrower and the Canadian 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./European Facility Guarantors and, 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 European 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./European 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 and/or the European 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
    -1-


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.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
SECTION 1.     DEFINITIONS; RULES OF CONSTRUCTION
1.1    Definitions. 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”: as defined in Section 1.6.
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
    -2-


of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
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.
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 and the European 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 and (iii) with respect to the European Borrower, the U.S./European Facility Loan Parties.
Applicable Margin”: with respect to any Type of Loan and such other Obligations specified below, (x) for any day prior to the Third Amendment Effective Date, such margin set forth in this Agreement as in effect on such day and (y) as of the Third Amendment Effective Date and each day thereafter, the respective margin set forth below, as determined by reference to the Average Quarterly Availability:

Level
Average Quarterly Availability
LIBORTerm SOFR Loans, Canadian BA Rate Loans, Letter of Credit Fees
U.S. Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans
I
Greater than or equal to 45% of the Borrowing Base
1.502.00%
0.501.00%




II
Greater than or equal to 20% of the Borrowing Base but less than 45% of the Borrowing Base
1.752.25%
0.751.25%




    -3-



Level
Average Quarterly Availability
LIBORTerm SOFR Loans, Canadian BA Rate Loans, Letter of Credit Fees
U.S. Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans
III
Less than 20% of the Borrowing Base
2.002.50%
1.001.50%
The Applicable Margin shall be adjusted quarterly as of the first (1st) day of each calendar quarter, based upon the Average Quarterly Availability for the immediately preceding calendar quarter. As of the First Amendment Effective Date and until April 1, 2020, the Applicable Margin shall be the rates corresponding to Level II in the foregoing table.
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.
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./European 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./European 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./European 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.
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
    -4-


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.
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
    -5-


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.
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 Capital Leases 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.
    -6-



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./European 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.
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 LIBOR Loan denominated in Dollars, the term shall also exclude any day on which banks are not open for the transaction of banking business in London, England, (ii) a LIBOR Loan denominated in Euros, any fundings, disbursements, settlements and payments in Euros in respect of any such LIBOR Loan, or any other dealings in Euros to be carried out pursuant to this Agreement in respect of any such LIBORTerm SOFR Loan, the term shall also exclude any day that is not a TARGETU.S. Government Securities Business Day, and (iii) 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 (other than in connection with the making of any Revolver Loan to the European Borrower pursuant to Section 2.1 or the issuance of any Letter of Credit for the account of the European Borrower pursuant to Section 2.2.), 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
    -7-


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 BA Rate”: with respect to each Interest Period for a Canadian BA Rate Loan, the rate of interest per annum equal to the average rate applicable to Canadian Dollar Bankers’ Acceptances having an identical or comparable term as the proposed Canadian BA Rate Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuter Monitor Money Rates Service as at approximately 10:00 a.m. Toronto time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business Day); provided that if such rate does not appear on the CDOR Page at such time on such date, the rate for such date will be the annual discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Eastern time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by Agent is then offering to purchase Canadian Dollar Bankers’ Acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term); provided that if the Canadian BA Rate determined pursuant to the foregoing method is less than one percent (1.00%), then such rate shall be deemed one percent (1.00%) for purposes of this Agreement.
Canadian BA Rate Loan”: a Canadian Revolver Loan, or portion thereof, funded in Canadian Dollars and bearing interest calculated by reference to the Canadian BA Rate.
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) LIBOR for a thirty (30) dayTerm 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.
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.
    -8-



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./European 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.
    -9-



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.
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./European 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./European 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.
    -10-



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 rate of interest in effect for such day as publicly announced from time to time by Bank of America (Canada) as its “Canadian Prime rate” and (b) the Canadian BA Rate for a thirty (30) day Interest Period as determined on such day plus 1.00%; provided that if the Canadian Prime Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “Canadian Prime Rate” is a rate set by Bank of America (Canada) based upon various factors including Bank of America (Canada)’s 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 such 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.
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).
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,
    -11-


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./European 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 Canadian BA Rate Loan or a Canadian Prime Rate Loan and, if denominated in Dollars, shall be either a Canadian Base Rate Loan or a LIBORTerm 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.
    -12-



Canadian Subsidiary”: a Subsidiary of Holdings incorporated or organized under the laws of Canada or any province or territory of Canada.
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./European 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 Third Amendment Effective Date, such rate set forth in this Agreement as in effect on such day and (y) as of the Third Amendment Effective Date and each day thereafter, a rate per annum equal to (a) 0.25% when the Canadian Revolver Exposure is greater than 50% of the Canadian Revolver Commitments and (b) 0.30% at all other times0.50%.
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 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
    -13-


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.
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.
    -14-



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 any 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;
(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
    -15-



(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.
CDOR Scheduled Unavailability Date”: as defined in Section 1.7June 28, 2024, or such other date that all tenors of CDOR have either permanently or indefinitely ceased to be administered and provided by Refinitiv Benchmark Services (UK) Limited (or any successor person).
CDOR Screen Rate”: as defined in Section 1.7.
CDOR Successor Rate”: as defined in Section 1.7.
CDOR Successor Rate Conforming Changes”: with respect to any proposed CDOR Successor Rate, any conforming changes to this Agreement, including changes to the Canadian BA Rate, Interest Period, timing and frequency of determining rates and payments of interest and other administrative matters as may be appropriate, in Agent's discretion, to reflect the adoption of such CDOR 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 CDOR Successor Rate exists, in such other manner of administration as Agent determines in consultation with BorrowersLoan Party Agent). Such changes shall provide that the CDOR Successor Rate cannot be less than one percent (1.00%) for purposes of this Agreement.
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)
    -16-


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 (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
    -17-


Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.
“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
    -18-


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 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 Indebtedness”: as of any date of determination, the aggregate principal amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP, 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).
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:
    -19-



(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”: 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.
Contribution Indebtedness”: Indebtedness of a U.S. Domiciled Loan Party in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of such U.S. Domiciled Loan Party after April 4, 2014; provided that:
(1)    such Contribution Indebtedness shall be Indebtedness with a Stated Maturity later than the Stated Maturity of the Fixed Asset Facility and a Weighted Average Life to Maturity longer than the Weighted Average Life to Maturity of the Fixed Asset Facility, and
(2)    such Contribution Indebtedness (a) is Incurred within 210 days after the making of such cash contributions and (b) is so designated as Contribution Indebtedness pursuant to an Officer’s Certificate on the Incurrence date thereof.
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.
    -20-



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 Federal Reserve Bank of New York 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.
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).
    -21-



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.
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.
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 or the European Borrower); 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 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).
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:
    -22-



(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 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
    -23-


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 (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.
    -24-



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);
(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, LLC, (ii) 40% in the case of General Motors Corporation and (iii) forty percent (40%) 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
    -25-


(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;
(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
    -26-



(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./European 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).
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
    -27-


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;
(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.
    -28-



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 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
    -29-


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 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 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 European Borrower and its Subsidiaries (or any other Affiliate thereof requested by the European Borrower and approved by Agent).
European Borrower”: as defined in the preamble to this Agreement.
European Facility Obligations”: all applicable Obligations of the U.S./European 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 and the European Facility Obligations).
European LC Obligations”: the sum (without duplication) of (a) all amounts owing by the European Borrower for any drawings under Letters of Credit; (b) the stated amount of all outstanding Letters of Credit issued for the account of the European Borrower; and (c) all fees and other amounts owing with respect to Letters of Credit issued for the account of the European Borrower.
    -30-



European Letters of Credit”: as defined in Section 2.2.1 hereof.
European Revolver Exposure”: on any date, an amount equal to the sum of the Dollar Equivalent of the European Revolver Loans outstanding on such date plus the European LC Obligations (excluding amounts specified in clause (c) of such definition) on such date.
European Revolver Loan”: a Revolver Loan made by a U.S. Lender to the European Borrower pursuant to Section 2.1.1(a), which Loan shall be denominated in Euros and shall be a LIBOR Loan.
European Revolver Notes”: collectively, each promissory note, if any, executed by the European Borrower in favor of a U.S. Lender to evidence the European Revolver Loans funded from time to time by such U.S. Lender, which shall be in the form of Exhibit A-3 to this Agreement, together with any replacement or successor notes therefor.
Event of Default”: as defined in Section 11.
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,
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
    -31-


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 a 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).
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
    -32-


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 and, (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./European 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.
Facility Commitment Increase Effective Date”: as defined in Section 2.1.4(f).
Facility Termination Date”: the earlier of (a) March 24, 2025 and (b) the date 91 days prior to the maturity date of the Fixed Asset Facility.
    -33-



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”: (a) the weighted average per annum interest rate on overnight federal funds transactions with members of the Federal Reserve System on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if the rate is not so published, the average per annum rate (rounded up to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by Agent; provided, that in no event shall the Federal Funds Rate be less than zero.
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.
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.
Fixed Asset Collateral”: as defined in the Intercreditor Agreement.
    -34-



“First Lien Notes”: the 13.50% Cash Pay / PIK Toggle Senior Secured First Lien Notes due 2027, to be issued on the Third Amendment Effective Date in an initial aggregate principal amount of $580,000,000 pursuant to the First Lien Notes Indenture.
“First Lien 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 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.
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 Facility”: (i) the term loan facility with respect to the senior secured term B credit facility entered into on the Third Restatement Date among Holdings, the financial institutions named therein and Deutsche Bank AG New York Branch, as administrative agent and collateral agentFirst 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 under such facilitythereunder 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 credit agreementFirst Lien Notes referred to in clause (i) remains 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 borrowers or 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.
    -35-


“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:
(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 Revolvinger 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).
    -36-



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.
FRB”: the Board of Governors of the Federal Reserve System of the United States.
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
    -37-


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).
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./European 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.
Guarantors”: Canadian Facility Guarantors, U.S./European Facility Guarantors, the Specified Jurisdiction Guarantors, and each other Person (if any) who guarantees payment or performance of any Obligations.
Guarantor Payment”: as defined in Section 5.10.3.
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
    -38-


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 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.
    -39-



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.
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 Amended and Restated Iintercreditor Aagreement, dated as of the Third Restatement Date, amongAmendment 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 U.S./European Facility Guagrantors and parties from time to time party thereto, Agent, Fixed Asset Facility Collateral Agent or an intercreditor agreement among Holdings, the U.S. Borrower, the other U.S./European Facility Guarantors party thereto, Agent,providing the relative priority of the Liens in favor of the Agent and the Fixed Asset Facility Collateral Agent substantially in the form attached hereto as Exhibit J, as the samein 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, restated or otherwise modifiedin whole or in part, from time to time.
Interest Period”: as defined in Section 3.1.4.
Interest Period Loan”: a LIBORTerm SOFR Loan or a Canadian BA Rate Loan.
    -40-



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”:
(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:
    -41-



(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
(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.
    -42-



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.
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 or the European Borrower, total U.S. LC Obligations (excluding amounts specified in clause (c) of each such definition) do not exceed the U.S./European Letter of Credit Sublimit and no U.S./European Overadvance exists or would result therefrom; (c) after giving effect to the issuance of a Letter of Credit for the account of the Canadian Borrower, 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; (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) with respect the issuance of Letters of Credit for the account of the European Borrower, the Letter of Credit and payments thereunder are denominated in Euros[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) with respect to the issuance of a Letter of Credit for the account of the European Borrower, the applicable Specified Transaction Conditions have been satisfied[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, European LC Obligations and Canadian LC Obligations.
    -43-



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”: Merrill Lynch, Pierce, Fenner & Smith Incorporated (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), Deutsche Bank Securities Inc., and JPMorgan Chase Bank, N.A.
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.
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, European 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.
LIBOR”: the per annum rate of interest (rounded up to the nearest 1/8th of 1%) determined by Agent at or about 11:00 a.m. (London time) two Business Days prior to an interest period, for a term equivalent to such period, equal to the London interbank offered rate, or comparable or successor rate approved by Agent, as published on the applicable Reuters screen page (or other available source designated by Agent from time to time); provided, that any comparable or successor rate shall be applied by Agent, if administratively feasible, in a manner consistent with market practice; and provided further, that in no event shall LIBOR be less than one percent (1.00%).
LIBOR Loan”: each set of LIBOR Revolver Loans having a common length and commencement of Interest Period.
LIBOR Revolver Loan”: a Revolver Loan that bears interest based on LIBOR; provided, however, that a U.S. Base Rate Loan bearing interest as set forth in clause (c) of the definition of U.S. Base Rate shall not constitute a LIBOR Revolver Loan.
LIBOR Screen Rate”: as defined in Section 1.6.
LIBOR Successor Rate”: as defined in Section 1.6.
    -44-



LIBOR Successor Rate Conforming Changes”: with respect to any proposed LIBOR Successor Rate, any conforming changes to this Agreement, including changes to Base Rate, Interest Period, timing and frequency of determining rates and payments of interest and other technical, administrative or operational matters as may be appropriate, in Agent's discretion, to reflect the adoption and implementation of such LIBOR 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 LIBOR Successor Rate exists, in such other manner of administration as Agent determines in consultation with Borrowers). Such changes shall provide that the LIBOR Successor Rate cannot be less than one percent (1.00%) for 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 and, the U.S./European 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