0000899751False00008997512024-02-292024-02-29


    
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 29, 2024

TITAN INTERNATIONAL, INC.
(Exact name of Registrant as specified in its Charter)

Delaware1-1293636-3228472
(State of Incorporation)(Commission File Number)(I.R.S. Employer Identification No.)
1525 Kautz Road, Suite 600, West Chicago, IL 60185
(Address of principal executive offices, including Zip Code)
(630) 377-0486
(Registrant's telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

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

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

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

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

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

Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading
Symbol
Name of each exchange on which registered
Common stock, $0.0001 par valueTWINew York Stock Exchange





Item 1.01 Entry into a Material Definitive Agreement

Membership Interest Purchase Agreement

On February 29, 2024, Titan International, Inc., a Delaware corporation (the “Company”) entered into a Membership Interest Purchase Agreement (the “Purchase Agreement”) by and among the Company, Titan Tire Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Holdings”), Carlstar Intermediate Holdings I, LLC (“Carlstar Intermediate”), AIPCF V Feeder (Cayman), LP (“AIPCF Cayman”), AIPCF V Feeder CTP Tire, LLC (together with Carlstar Intermediate and AIPCF Cayman, the “Sellers”) and The Carlstar Group, LLC (“Carlstar”) under which Holdings acquired all of the equity interest of Carlstar (the “Transaction”) for a total purchase price of approximately $296.2 million, consisting of approximately $127.5 million of cash (the “Cash Consideration”) and $168.7 million of the Company’s common stock (11,921,766 shares based on a volume-weighted average share price of $14.43 per share) (the “Stock Consideration”), subject to certain customary adjustments including a working capital adjustment based on an agreed working capital target. The Company incurred additional transaction costs of approximately $7 million. The Transaction has closed, subject to completion of the wire transfers under the Purchase Agreement and the issuance of the Stock Consideration.

The Purchase Agreement contains customary representations, warranties and post-closing covenants made by the Company, Holdings and the Sellers. The Company obtained a representation and warranty policy to cover losses in the event that Sellers breach certain of the representations and warranties contained in the Purchase Agreement. In connection with closing, the Company and the Sellers entered into a Stockholders Agreement, discussed in further detail below.

As a result of the Transaction, the Sellers own approximately 16.4% of the issued and outstanding common stock of the Company. The Purchase Agreement was unanimously approved by the Company’s Board of Directors (the “Board”).

The foregoing description of the Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Purchase Agreement, which is filed as Exhibit 10.1 hereto, and is incorporated by reference herein.

The Purchase Agreement has been disclosed to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, Holdings, the Sellers, Carlstar, or their respective subsidiaries or affiliates. The representations, warranties, and covenants contained in the Purchase Agreement were made only for purposes of the Purchase Agreement and as of specific dates, were solely for the benefit of the parties to the Purchase Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Purchase Agreement and should not rely on the representations, warranties, or covenants, or any descriptions thereof, as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Purchase Agreement, and such subsequent information may or may not be fully reflected in the Company's public disclosures.

Stockholders Agreement

On February 29, 2024, in connection with the closing of the Transaction and the issuance of the Stock Consideration under the Purchase Agreement, the Company and Sellers entered into a Stockholders Agreement (the “Stockholders Agreement”). The Stockholders Agreement imposes an obligation on the Company to file a shelf registration statement covering the Stock Consideration no later than November 1, 2024 (the “Initial Registration Statement”) and imposes certain restrictions on Sellers, including a standstill period through the first business day after the 2025 Annual Meeting of Stockholders, a lockup period through the earlier of December 31, 2024 and the date the U.S. Securities and Exchange Commission declares the Initial Registration Statement to be effective (or otherwise becomes automatically effective), and agreements related to the voting of the Company’s common stock held by Sellers. Under the Stockholders Agreement, the Company agreed to appoint Kim Marvin, a Senior Managing Member at AIP, LLC d/b/a American Industrial Partners (“AIP”), to the Board.

The foregoing description of the Stockholders Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Stockholders Agreement, which is filed as Exhibit 10.2 hereto, and is incorporated by reference herein.

Indemnification Agreement

On February 29, 2024, the Company and Kim Marvin entered into a Director’s Indemnification Agreement (the “Indemnification Agreement”). In general, the Indemnification Agreement provides that the Company will, to the extent



permitted by applicable law and subject to certain limitations, indemnify Mr. Marvin against all expenses, judgments, fines, amounts paid in settlement, liabilities or losses actually and reasonably incurred by reason of the fact that Mr. Marvin is or was a director of the Company. Additionally, the Indemnification Agreement provides for the advancement of expenses incurred by Mr. Marvin in connection with any proceeding involving Mr. Marvin and covered by the Indemnification Agreement, provided that Mr. Marvin will reimburse the Company for such advanced expenses to the extent it is determined Mr. Marvin is not entitled to indemnification.

The foregoing description of the Indemnification Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Indemnification Agreement, which is filed as Exhibit 10.3 hereto, and is incorporated by reference herein.

Credit Agreement

On February 29, 2024, the Company and certain of its subsidiaries entered into a credit and security agreement with respect to a $225 million revolving credit facility (the “Credit Facility”) with Bank of America, N.A., as agent and a lender, and other financial institutions party thereto. Under the Credit Facility, swingline loans are available up to an aggregate outstanding amount of $20 million and letters of credit may be issued in an aggregate amount not to exceed $50 million. The Credit Facility also includes an uncommitted accordion feature allowing the Company to request up to an additional $50 million from existing lenders or new lenders, subject to certain conditions. Amounts available under the Credit Facility are available subject to a borrowing base and are collateralized by accounts receivable and inventory of certain of the Company’s United States and Canadian subsidiaries. The Credit Facility includes a maturity of the earlier of February 29, 2029 or 91 days prior to the maturity of the Company’s 7.00% senior secured notes due in 2028. This Credit Facility replaces Titan's $125 million revolving credit facility with agent BMO Harris Bank N.A.

The Credit Facility will initially bear interest at a floating rate per annum of, at the Borrower’s option, Term SOFR plus 1.625% or a base rate plus 0.625% and thereafter be subject to a three level pricing grid based on excess availability, the amount the Company would be able to draw on the Credit Facility. The Term SOFR rate is subject to an interest rate floor of 0.00%. The base rate is subject to an interest rate floor of 1.00%. Commitment fees of 0.25% per annum will be collected on the amount by which the aggregate commitment of each lender exceeds the average daily amount of any outstanding swingline or revolving loans plus the total outstanding obligations under letters of credit. Those fees are payable both quarterly in arrears and upon the termination of the Credit Facility commitments.

The credit and security agreement contains certain covenants, which among other things, limit the ability of Company to (i) incur additional indebtedness; (ii) pay dividends or make other restricted payments; (iii) make loans and investments; (iv) incur liens; (v) sell assets; (vi) enter into affiliate transactions; (vii) enter into agreements restricting Company’s subsidiaries’ ability to pay dividends; (viii) prepay certain debt, and (ix) merge, consolidate or amalgamate or sell all or substantially all of their property. These covenants are subject to a number of exceptions and qualifications that are described in the credit and security agreement. The credit and security agreement provides for customary events of default which include (subject in certain cases to customary grace and cure periods), among others, nonpayment of principal or interest, failure to comply with other covenants or agreements in the credit and security agreement, failure to pay certain other indebtedness, failure to pay certain final judgments, failure of certain guarantees to be enforceable and certain events of bankruptcy or insolvency. These events of default are subject to a number of qualifications, limitations and exceptions that are described in the credit and security agreement. In addition, should availability under the Credit Facility come to be lower than certain thresholds, the Company shall be required to satisfy a minimum consolidated fixed charge coverage ratio for the most recent period of four consecutive fiscal quarters for which financial statements are available of at least 1.0 to 1.0.

The foregoing description of the Credit Facility does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Credit and Security Agreement filed as Exhibit 10.4 hereto.

Item 1.02 Termination of a Material Definitive Agreement

On February 29, 2024, the Company entered into the Credit Facility, as described in Item 1.01, which replaced Titan's $125 million revolving credit facility with agent BMO Harris Bank N.A. The Company did not incur any material early termination penalties under its prior credit facility.

Item 2.01 Completion of Acquisition or Disposition of Assets

The disclosure set forth in Item 1.01 above under the heading “Membership Interest Purchase Agreement” is incorporated herein by reference and is qualified in its entirety by reference to the Purchase Agreement, which is filed as Exhibit 10.1 hereto.

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




The disclosure set forth in Item 1.01 above under the heading “Credit Agreement” is incorporated herein by reference and is qualified in its entirety by reference to the Credit Agreement, which is filed as Exhibit 10.4 hereto.

Item 3.02 Unregistered Sales of Equity Securities

The disclosure set forth in Item 1.01 above under the heading “Membership Interest Purchase Agreement” is incorporated herein by reference and is qualified in its entirety by reference to the Purchase Agreement, which is filed as Exhibit 10.1 hereto. The issuance of the Stock Consideration in connection with the Transaction is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(a)(2) as a transaction not involving a public offering.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

The Company has appointed Kim Marvin to the Board, effective as of February 29, 2024. Mr. Marvin was appointed to the Board pursuant to the Stockholders Agreement, and Mr. Marvin and the Company have entered into an Indemnification Agreement, in each case as described in Item 1.01 above. In connection with Mr. Marvin’s appointment, the Board increased its size from eight to nine members.

Mr. Marvin, age 62, is a Senior Managing Member at AIP, which he joined in 1997. He previously served in the Mergers and Acquisitions and Financial Institutions Groups of Goldman, Sachs & Co. from 1994 through 1997, and Chief Operating Officer of The American Original Corporation where he was employed from 1985 through 1991. Mr. Marvin graduated Tau Beta Pi from Massachusetts Institute of Technology with a Bachelor of Science in Ocean Engineering, and graduated from the Harvard Graduate School of Business Administration with High Distinction, where he earned his Master of Business Administration and was named a Baker Scholar.

There are no family relationships between Mr. Marvin and any director or executive officer of the Company, and there are no relationships or related transactions between Mr. Marvin and the Company that would be required to be reported under Item 404 of Regulation S-K.

Item 7.01 Regulation FD Disclosure.

On February 29, 2024, Titan issued a press release announcing the closing of the Transaction. A copy of this press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein. This information is furnished pursuant to Item 7.01 and shall not be deemed filed for purposes of Section 18 of the Exchange Act or incorporated by reference into any filing under the Securities Act or the Securities Exchange Act of 1934, as amended, except as shall be expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired

The Financial statements required to be filed under Item 9.01(a) will be filed by amendment to this Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K is required to be filed.

(b) Pro Forma Financial Information

The Financial statements required to be filed under Item 9.01(b) will be filed by amendment to this Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K is required to be filed.
















(d) Exhibits
10.1
10.2
10.3
10.4
99.1














































SIGNATURE

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.




TITAN INTERNATIONAL, INC.
(Registrant)

Date:February 29, 2024
By:
/s/ MICHAEL G. TROYANOVICH
Michael G. Troyanovich
Secretary and General Counsel

EXECUTION VERSION 4874-7262-122514874-7262-1225 MEMBERSHIP INTEREST PURCHASE AGREEMENT by and among TITAN INTERNATIONAL, INC., TITAN TIRE HOLDINGS, INC. CARLSTAR INTERMEDIATE HOLDINGS I LLC, THE CARLSTAR GROUP LLC, AIPCF V FEEDER C (CAYMAN), LP and AIPCF V FEEDER CTP TIRE LLC dated February 29, 2024 4889-2802-6525v.15


 
TABLE OF CONTENTS Page i ARTICLE I DEFINITIONS; INTERPRETATION ...................................................................... 1 Section 1.1 Certain Terms Defined .......................................................................... 1 Section 1.2 Other Definitional and Interpretive Matters ........................................ 18 ARTICLE II CLOSING ............................................................................................................... 21 Section 2.1 Purchase and Exchange ....................................................................... 21 Section 2.2 Closing ................................................................................................ 21 Section 2.3 Deliveries at the Closing ..................................................................... 21 Section 2.4 Purchase Price Adjustment ................................................................. 24 Section 2.5 Purchase Price Allocation ................................................................... 26 Section 2.6 Mechanics of Exchange and Surrender ............................................... 27 Section 2.7 No Fractional Shares ........................................................................... 27 Section 2.8 Withholding ........................................................................................ 28 Section 2.9 Payment of Indebtedness..................................................................... 28 ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY MEMBERS AND THE BLOCKERS ........................................ 29 Section 3.1 Due Organization; No Prior Activities ................................................ 29 Section 3.2 Power and Authority of the Company Members ................................ 29 Section 3.3 Capitalization ...................................................................................... 30 Section 3.4 Subsidiaries; Investments .................................................................... 30 Section 3.5 Non-Contravention; Governmental Consents ..................................... 31 Section 3.6 Financial Statements; Undisclosed Liabilities .................................... 32 Section 3.7 Absence of Changes ............................................................................ 33 Section 3.8 Litigation ............................................................................................. 35 Section 3.9 Compliance With Laws; Permits ........................................................ 35 Section 3.10 Material Contracts ............................................................................... 36 Section 3.11 Real Property ....................................................................................... 38 Section 3.12 Employee Benefits .............................................................................. 39 Section 3.13 Labor and Employment Matters.......................................................... 42 Section 3.14 Environmental Matters ........................................................................ 43 Section 3.15 Insurance ............................................................................................. 45 Section 3.16 Taxes ................................................................................................... 46 Section 3.17 Intellectual Property ............................................................................ 49


 
TABLE OF CONTENTS (continued) ii 24874-7262-1225 Section 3.18 Brokers ................................................................................................ 50 Section 3.19 Related Party Transactions .................................................................. 50 Section 3.20 Customers and Suppliers ..................................................................... 51 Section 3.21 Title to Assets ...................................................................................... 51 Section 3.22 Product and Service Warranty ............................................................ 52 Section 3.23 Product Liability ................................................................................. 52 Section 3.24 Directors and Officers; Powers of Attorney ....................................... 52 Section 3.25 Anti-Bribery; Anti-Corruption ............................................................ 52 Section 3.26 Privacy and Data Security Compliance............................................... 52 Section 3.27 No Other Representations or Warranties; Non-Reliance; Investigation ........................................................................................ 53 ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS ........................................................................................................ 54 Section 4.1 Due Organization of Seller; Right to Sell ........................................... 54 Section 4.2 Title to Purchased Interests and Blocker Interests; Liens ................... 55 Section 4.3 Non-Contravention .............................................................................. 55 Section 4.4 Governmental Consents ...................................................................... 55 Section 4.5 Litigation ............................................................................................. 56 Section 4.6 Brokers ................................................................................................ 56 Section 4.7 Securities Matters ................................................................................ 56 ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT ....... 56 Section 5.1 Due Organization of Buyer and Parent ............................................... 56 Section 5.2 Power and Authority of Buyer and Parent .......................................... 57 Section 5.3 Non-Contravention; Governmental Consents ..................................... 57 Section 5.4 Brokers ................................................................................................ 57 Section 5.5 Issuance of Parent Common Stock ..................................................... 58 Section 5.6 SEC Documents; Financial Statements ............................................... 58 Section 5.7 Conduct of Business ............................................................................ 60 Section 5.8 Capitalization ...................................................................................... 60 Section 5.9 Absence of Certain Changes ............................................................... 61 Section 5.10 Litigation ............................................................................................. 61 Section 5.11 Investment ........................................................................................... 62


 
TABLE OF CONTENTS (continued) iii 24874-7262-1225 Section 5.12 Solvency .............................................................................................. 62 Section 5.13 United States Real Property Holding Corporation .............................. 62 Section 5.14 Customers and Suppliers ..................................................................... 62 Section 5.15 No Other Representations or Warranties; Non-Reliance; Investigation ........................................................................................ 63 ARTICLE VI COVENANTS ...................................................................................................... 64 Section 6.1 Access ................................................................................................. 64 Section 6.2 Public Disclosure ................................................................................ 64 Section 6.3 Cooperation; Further Actions .............................................................. 64 Section 6.4 Indemnification of Directors and Officers .......................................... 65 Section 6.5 Employee Matters ............................................................................... 66 Section 6.6 Tax Matters ......................................................................................... 67 Section 6.7 Representation and Warranty Insurance ............................................. 72 Section 6.8 Form 8-K Filing .................................................................................. 72 Section 6.9 NYSE Listing ...................................................................................... 72 Section 6.10 Stockholder Agreement ....................................................................... 73 Section 6.11 Release ................................................................................................ 73 ARTICLE VII MISCELLANEOUS ............................................................................................ 74 Section 7.1 Amendment and Waivers .................................................................... 74 Section 7.2 Survival ............................................................................................... 74 Section 7.3 Expenses .............................................................................................. 74 Section 7.4 Notices................................................................................................. 74 Section 7.5 Counterparts ........................................................................................ 75 Section 7.6 Entire Agreement; No Third Party Beneficiaries ................................ 75 Section 7.7 Severability ......................................................................................... 75 Section 7.8 Governing Law; Consent to Jurisdiction............................................. 76 Section 7.9 Assignment .......................................................................................... 76 Section 7.10 Specific Performance .......................................................................... 76 Section 7.11 Non-Recourse ...................................................................................... 77 Section 7.12 WAIVER OF JURY TRIAL ............................................................... 77 Section 7.13 Legal Representation ........................................................................... 77


 
TABLE OF CONTENTS (continued) iv 24874-7262-1225 Schedule 1.1(a) Excluded Arrangements Schedule 1.1(b) Knowledge Parties Schedule 1.1(c) Permitted Liens Schedule 2.3(a)(iii) Resignations Schedule 2.3(a)(v) Company Members for Delivery of Good Standing Certificates Schedule 2.3(a)(x) Terminated Contracts Schedule 2.3(b)(vi) Payoff Indebtedness Exhibit A Pre-Closing Restructuring Exhibit B Accounting Principles Exhibit C Form of Escrow Agreement Exhibit D Form of Fund V Restrictive Covenant Agreement Exhibit E Form of Stockholder Agreement Annex I Sample Net Working Capital Calculation Annex II Purchase Price Allocation Principles


 
MEMBERSHIP INTEREST PURCHASE AGREEMENT MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated February 29, 2024, by and among Titan International, Inc., a Delaware corporation (“Parent”), Titan Tire Holdings, Inc., a Delaware corporation (“Buyer”), Carlstar Intermediate Holdings I LLC, a Delaware limited liability company (“CH Seller”), AIPCF V Feeder CTP Tire LLC, a Delaware limited liability company (“Blocker Seller 1”), AIPCF V Feeder C (Cayman), LP, a Cayman Islands exempted limited partnership (“Blocker Seller 2” and together with CH Seller and Blocker Seller 1, the “Sellers”), and The Carlstar Group, LLC, a Delaware limited liability company (“Company” and together with Buyer, Parent and the Sellers, the “Parties” and each a “Party”). RECITALS 1. Immediately prior to the Pre-Closing Restructuring, (a) CH Seller owned 100% of the issued and outstanding Equity Interests of Carlstar Intermediate Holdings, LLC (“CH Blocker” and such interests the “CH Blocker Interests”) and (b) CH Seller and CH Blocker collectively owned 100% of the issued and outstanding Equity Interests of Company (the “Company Interests”). 2. Prior to the Closing Date, the Sellers have caused the restructuring transactions set forth on Exhibit A to occur (the “Pre-Closing Restructuring”). 3. Following the consummation of the Pre-Closing Restructuring and as of the date of this Agreement, (a) CH Seller, CH Blocker, AIPCF V CTP Tire Blocker Cooperatie U.A., a Dutch cooperative (“Tire Blocker”), and AIPCF V CTP Marastar Blocker, Inc., a Delaware corporation (“Marastar Blocker,” and together with CH Blocker and Tire Blocker, the “Blockers”) collectively own 100% of the Company Interests, (b) CH Seller continues to own 100% the CH Blocker Interests, (c) Blocker Seller 1 owns 0.01% of the issued and outstanding Equity Interests of Tire Blocker and Blocker Seller 2 owns 99.99% of the issued and outstanding Equity Interests of Tire Blocker (collectively, the “Tire Blocker Stock”) and (d) Blocker Seller 2 owns 100% of the issued and outstanding Equity Interests of Marastar Blocker (the “Marastar Blocker Stock” and together with the CH Blocker Interests and the Tire Blocker Stock, the “Blocker Interests”). 4. At the Closing, on the terms and subject to the conditions set forth in this Agreement: (a) Buyer desires to purchase from CH Seller, and CH Seller desires to sell to Buyer, all of the Company Interests owned by CH Seller (the “Purchased Interests”) and (b) Buyer desires to purchase from CH Seller, Blocker Seller 1 and Blocker Seller 2, and CH Seller, Blocker Seller 1 and Blocker Seller 2 desire to sell to Buyer, all of the Blocker Interests. In consideration of the representations, warranties and covenants set forth in this Agreement, the Parties agree as follows: ARTICLE I DEFINITIONS; INTERPRETATION Section 1.1 Certain Terms Defined. The following terms will have the meanings set forth below for purposes of this Agreement:


 
2 “1934 Act” has the meaning set forth in Section 5.6(a). “2023 Pre-Closing Income Tax Return” has the meaning set forth in Section 6.6(h)(i)(A). “Accounting Principles” means the specific accounting practices, policies, judgments and methodologies set forth on Exhibit B. “Action” means any claim, action, cause of action, arbitration, litigation, suit, investigation, hearing or other legal proceeding (whether in contract, tort or otherwise, whether civil or criminal and whether brought at law or in equity) by or before any Governmental Entity. “Adjustment Escrow Deposit” means $10,000,000. “Adjustment Escrow Funds” means the Adjustment Escrow Deposit together with any interest earned thereon. “Adjustment Maximum Amount” means $10,000,000. “Affiliates” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting Equity Interests, by Contract or otherwise; provided, however, that except for the purposes of Section 3.10(a)(xi) and Section 3.19, in no event will the Sellers, Company or any of their respective Subsidiaries be considered an Affiliate of any portfolio company of any investment fund affiliated with AIP, LLC, nor will any portfolio company of any investment fund affiliated with AIP, LLC be considered an Affiliate of the Sellers, Company or any of their respective Subsidiaries. “Aggregate Cash Consideration” means an amount in cash equal to (i) the Base Amount, plus (ii) the Closing Company Cash, minus (iii) the Closing Company Indebtedness, minus (iv) the Closing Transaction Expenses, plus (v) the Net Working Capital Excess (if any), minus (vi) the Net Working Capital Shortfall (if any), minus the Building Remediation Amount. “Aggregate Stock Consideration” means 11,921,766 shares of Parent Common Stock. “Agreement” has the meaning set forth in the Preamble. “AIPCF V AIV C, LP Agreement” means the Amended and Restated Exempted Partnership Agreement of AIPCF V AIV C, LP, in effect as of the date hereof. “Allocation Schedule” has the meaning set forth in Section 2.5(b). “Ancillary Agreements” means the Escrow Agreement, the Stockholder Agreement, the Fund V Restrictive Covenant Agreement and all other agreements contemplated by this Agreement in connection with the Transaction.


 
3 “Antitrust Laws” means any Laws or Orders of any jurisdiction that are designed or intended to prohibit, restrict or regulate actions that may have the purpose or effect of creating a monopoly, lessening competition or restraining trade. “Applicable Privacy and Data Security Requirements” means all of the following, to the extent relating to privacy, security or the collection, processing, storage, protection and disclosure of Personal Information applicable to any Company Member, including: (a) applicable Laws, including the Federal Trade Commission Act and Laws pertaining to unfair, deceptive or misleading trade practices; (b) applicable industry standards, guidelines and practices in the industry in which any of Company and its Subsidiaries operates; (c) each of Company’s and its Subsidiaries’ own rules, policies and procedures, including each of Company’s and its Subsidiaries’ publicly-facing privacy policy; and (d) Contracts to which any of Company and its Subsidiaries is a party or by which any of Company and its Subsidiaries or any of their respective assets or properties are otherwise bound. “Approvals” means any consent, approval or authorization of, permit or license issued or granted by, Order, waiver or exemption by, notice to, negative clearance from, or the expiration or early termination of any waiting period imposed by, any Person (including any third party or Governmental Entity (including any Governmental Antitrust Entity)). “Audited Financial Statements” has the meaning set forth in Section 3.6(a). “Authorized Action” has the meaning set forth in Section 7.14(b). “Base Amount” means $127,500,000. “Benefit Plan Funding Obligation” means any accrued and unfunded obligation in respect of any Company Benefit Plan that is a defined benefit pension plan subject to Title IV of ERISA, solely to the extent it has not already been accrued in the determination of Net Working Capital. “Blockers” has the meaning set forth in the Recitals. “Blocker Interests” has the meaning set forth in the Recitals. “Blocker Seller 1” has the meaning set forth in the Preamble. “Blocker Seller 2” has the meaning set forth in the Preamble. “Blocker Sellers” means, collectively, Blocker Seller 1 and Blocker Seller 2. “Bonus Amounts” has the meaning set forth in Section 6.5(c). “Building Remediation Amount” means $3,142,857. “Business Day” means any day other than a Saturday, Sunday or a day on which banks in New York, New York are authorized or obligated by Law or Order to close. “Buyer” has the meaning set forth in the Preamble.


 
4 “Buyer Disclosure Schedule” means the disclosure schedule of even date herewith delivered by Buyer to Sellers in connection with the execution and delivery of this Agreement. “Buyer Releasing Party” has the meaning set forth in Section 6.11(b). “Canadian Tax Act” or any reference to a specific provision thereof means the Income Tax Act (Canada) and any legislation of any province or territory of Canada (including the Taxation Act (Quebec)) and any regulations and other interpretive authorities thereunder. “CARES Act and COVID Relief Programs” means, collectively, The Coronavirus Aid, Relief, and Economic Security Act, the Families First Coronavirus Response Act, the Paycheck Protection Program Flexibility Act, any rules and regulations of the U.S. Small Business Association, the U.S. Department of the Treasury or any public health agency, any applicable Law in connection with COVID-19 and all FAQs or Interim Final Rules issued by any Governmental Entity related thereto, including any other Law or executive order or Presidential Memorandum (including the Presidential Memorandum described in IRS Notice 2020-65) related to COVID-19 and any similar programs adopted by a foreign Governmental Entity. “Cash” means cash and cash equivalents of the Company Members required to be reflected as cash and cash equivalents on a balance sheet of the Company Members, on a consolidated basis, determined in accordance with the Accounting Principles. Notwithstanding the foregoing, “Cash” (a) includes uncashed and uncleared checks and other deposits or transfers received or deposited for the account of any Company Member (to the extent there has been a corresponding reduction in current assets (e.g., accounts receivable) on account thereof), (b) is reduced by outstanding checks or similar instruments of, or issued or sent by, any Company Member (to the extent there has been a corresponding reduction in current liabilities (e.g., accounts payable) on account thereof). For the avoidance of doubt, Cash may be a positive or negative number. “Causes of Action” has the meaning set forth in Section 6.11(a). “CEI” means Carlstar Export Inc., a Delaware corporation. “CFI” means Carlstar Finance Inc., a Delaware corporation. “CH Seller” has the meaning set forth in the Preamble. “CH Blocker” has the meaning set forth in the Recitals. “CH Blocker Interests” has the meaning set forth in the Recitals. “Chosen Courts” has the meaning set forth in Section 7.8. “Charter Indemnification Provisions” has the meaning set forth in Section 6.4(c). “Closing” has the meaning set forth in Section 2.2. “Closing Company Cash” means the aggregate amount of all Cash as of the Reference Time.


 
5 “Closing Company Indebtedness” means the Company Indebtedness as of the Reference Time. “Closing D&O Policies” has the meaning set forth in Section 6.4(b). “Closing Date” has the meaning set forth in Section 2.2. “Closing Net Working Capital” means the Net Working Capital as of the Reference Time. “Closing Statement” has the meaning set forth in Section 2.4(b) “Closing Transaction Expenses” means the aggregate amount of Transaction Expenses, unpaid as of immediately prior to the Closing. “Code” means the Internal Revenue Code of 1986, as amended. “Company” has the meaning set forth in the Preamble. “Company Benefit Plan” has the meaning set forth in Section 3.12(a). “Company Employee” has the meaning set forth in Section 6.5(a). “Company Indebtedness” means, as of a given time, the aggregate amount of all Indebtedness of the Company Members outstanding. “Company Interests” has the meaning set forth in the Recitals. “Company Member” means any of Company or its Subsidiaries or the Blockers. “Company Member Released Parties” has the meaning set forth in Section 6.11(a). “Company Permits” has the meaning set forth in Section 3.9(d). “Contract” means, whether written or oral, any legally binding agreement, contract, subcontract, settlement agreement, lease, instrument, note, option, warranty, license, sublicense or insurance policy. “COVID Measures” means any applicable mandate, guideline or recommendations of a Governmental Entity (including the Centers for Disease Control and Prevention and the World Health Organization), Order or Law issued, adopted or in force (or announced to be issued, adopted or in force) regarding COVID-19, including any “shelter in place,” “stay home” or other restrictions on the freedom of activities of individuals or businesses. “COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof. “CRA” means Canada Revenue Agency. “Credit Agreement” means that certain ABL Credit Agreement, dated as of November 9, 2023, by and among Company, CH Seller, CH Blocker, Ally Bank, as Administrative Agent,


 
6 Collateral Agent, Swingline Lender, L/C Issuer and as Sole Lead Arranger and Sole Bookrunner (each as defined therein) and each Person party thereto as a Lender or L/C Issuer (each as defined therein) from time to time. “Customs & Trade Laws” means all applicable export, import, customs and trade, and anti- boycott Laws or programs administered, enacted or enforced by any Governmental Entity, including: (a) the Laws and programs administered or enforced by U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the U.S. International Trade Commission, the U.S. Department of Commerce, and the U.S. Department of State; (b) the U.S. Tariff Act of 1930; (c) the U.S. Export Control Reform Act of 2018 and the Export Administration Regulations, including related restrictions with regard to persons or entities on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List; (d) the U.S. Arms Export Control Act and the International Traffic in Arms Regulations, including related restrictions with regard to Persons on the U.S. Department of State’s Debarred List; (e) the U.S. Foreign Trade Regulations; and (f) the anti-boycott Laws administered by the U.S. Department of Commerce and the U.S. Department of the Treasury. “Data Room” means the virtual data room entitled “Project Row” maintained by Intralinks. “DGCL” means the General Corporation Law of the State of Delaware. “Disclosure Schedule” has the meaning set forth in Article III. “Disputed Items” has the meaning set forth in Section 2.4(e). “Due Date” means the due date with respect to an applicable Tax Return (taking into account valid extensions). “Enforceability Exception” has the meaning set forth in Section 3.2. “Environmental Laws” means all Laws relating to pollution or the protection of the environment, public health and safety regarding exposure to Hazardous Materials, or employee health and safety regarding exposure to Hazardous Materials, including Laws relating to emissions, discharges, release, or threatened releases of pollutants, contaminants, petroleum or petroleum- based materials or wastes, or chemical or toxic substances, or Hazardous Materials into any environmental media, including ambient air, soil, surface water or groundwater, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants or chemicals or toxic materials or wastes, or Hazardous Materials. Without limiting the generality of the foregoing, such Environmental Laws include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970 solely as it pertains to exposure to Hazardous Materials, each as amended. “Environmental Permits” means all permits, licenses, registrations, approvals, authorizations, permissions, orders or exemptions which are issued by, granted by or required from Governmental Entities under applicable Environmental Laws.


 
7 “Equity Interests” means: (a) any shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, (b) any ownership interests in a Person other than a corporation, including membership interests, partnership interests and joint venture interests, (c) any warrants, stock appreciation rights, restricted stock, profits interests, options, units, or any other equity or equity-based compensation, convertible or exchangeable securities, or call rights to purchase or acquire any of the foregoing, and (d) any “equity security” within the meaning of the 1934 Act. “ERISA” has the meaning set forth in Section 3.12(a). “ERISA Affiliate” means any trade or business that, together with the Company, would be considered a single employer within the meaning of Section 4001 of ERISA or Section 414 of the Code. “Escrow Account” has the meaning set forth in Section 2.3(b)(iv). “Escrow Agent” means Wilmington Trust, National Association. “Escrow Agreement” means the Escrow Agreement among Buyer, CH Seller and the Escrow Agent, in the form attached hereto as Exhibit C. “Estimated Closing Statement” has the meaning set forth in Section 2.4(a). “Estimated Company Cash” means the Sellers’ good faith estimate of the Closing Company Cash, as set forth on the Estimated Closing Statement. “Estimated Company Indebtedness” means the Sellers’ good faith estimate of the Closing Company Indebtedness, as set forth on the Estimated Closing Statement. “Estimated Net Working Capital” means the Sellers’ good faith estimate of the Net Working Capital, as set forth on the Estimated Closing Statement. “Estimated Net Working Capital Excess” means the amount by which (if any) the Estimated Net Working Capital, as set forth in the Estimated Closing Statement, is greater than the Target Net Working Capital. “Estimated Net Working Capital Shortfall” means the absolute value of the amount by which (if any) the Estimated Net Working Capital, as set forth in the Estimated Closing Statement, is less than the Target Net Working Capital. “Estimated Purchase Price” has the meaning set forth in Section 2.4(a) “Estimated Transaction Expenses” means the Sellers’ good faith estimate of the Closing Transaction Expenses, as set forth on the Estimated Closing Statement. “Exchange Agent” means Computershare Limited.


 
8 “Filings” means any registrations, applications, declarations, reports, submissions or other filings with, or any notices to, any Person (including any third party or Governmental Entity, including any Governmental Antitrust Entity). “Final Purchase Price” means the Purchase Price as finally determined in accordance with Section 2.4. “Financial Statements” has the meaning set forth in Section 3.6(a). “Fraud” means actual, knowing and intentional common law fraud by a Party in the making of the representations in Article III, Article IV or Article V; provided, that for the avoidance of doubt Fraud will require that a Party had actual knowledge that a representation set forth in this Agreement was not true when made and intended for another Party to rely to its detriment on such representation and the other Party in fact relied to its detriment on such representation. “FTE Election” has the meaning set forth in Section 3.16(m). “Funds Flow Statement” means the Funds Flow Statement to be dated as of the Closing Date between Sellers and Buyer, which shall include (a) each recipient of a payment and the amount thereof with respect to the Estimated Company Indebtedness (solely to the extent being paid at and as of the Closing), (b) each recipient of a payment and the amount thereof with respect to the Estimated Transaction Expenses, (c) the payment to be made at Closing to each Seller, and (d) wire information for all Persons to whom amounts must be wired on the Closing Date. “Fund V” means American Industrial Partners Capital Fund V, L.P., a Delaware limited partnership. “Fund V Restrictive Covenant Agreement” means the restrictive covenant agreement, substantially in the form attached hereto as Exhibit D, to be entered into by and among Fund V, AIP, LLC and Buyer on the Closing Date and effective upon the Closing. “GAAP” means generally accepted accounting principles in the United States, consistently applied. “Governmental Antitrust Entity” means any of the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice, the attorneys general of the several states of the United States and any other Governmental Entity having jurisdiction with respect to the Transaction pursuant to applicable Antitrust Laws. “Governmental Entity” means (a) any government, (b) any governmental or regulatory entity, body, authority, department, commission, subdivision, board, bureau, administrative agency or instrumentality, (c) any court, tribunal, judicial body, or an arbitrator or arbitration panel, or (d) any non-governmental, self-regulatory or administrative agency, securities exchange, commission or authority, in each of clauses (a) through (d), whether supranational, national, federal, state, county, municipal, provincial, and whether local or foreign. “Governmental Entity Approval” means any Approval of a Governmental Entity.


 
9 “Hazardous Material” means, with respect to any geographic location, any material, chemical, substance, compound, mixture, pollutant, contaminant or waste that is defined to be, that is regulated as, that is listed as, that has been designated by or that (because of its concentration or quality) has characteristics that are radioactive, toxic or hazardous under applicable Environmental Laws in effect at the locations at which any business of Company and its Subsidiaries is conducted. Without limiting the generality of the foregoing, Hazardous Material includes: (a) any article or mixture that contains a Hazardous Material; (b) petroleum products or byproducts or fractions thereof; (c) any substance the presence of which requires reporting, investigation, removal or remediation under any Environmental Laws; (d) polychlorinated biphenyls; (e) asbestos and asbestos-containing materials; (f) urea formaldehyde; and (g) per- and polyfluoroalkyl substances. “HSR Act” has the meaning set forth in Section 3.5(b). “Improvements” has the meaning set forth in Section 3.11(c). “Income Taxes” means all Taxes that are in whole or in part based upon, measured by, or calculated with respect to net income or profits (including any capital gains, franchise, or minimum Tax but not including any sales, use, real or personal property, transfer or similar Taxes). “Indebtedness” of any Person means, without duplication, (a) all obligations for borrowed money, (b) all obligations evidenced by notes, bonds, debentures, mortgage or other similar instruments, (c) all obligations under any debt security, interest rate, currency or other hedging or swap, derivative obligation or other similar arrangement, (d) all obligations under letters of credit, surety bonds or similar facilities (but only to the extent drawn), (e) all obligations for the deferred purchase price of property or services required under GAAP to be classified and accounted for on a balance sheet as liabilities (but excluding, for the avoidance of doubt, trade payables, accruals and any similar amounts which have been incurred in the Ordinary Course of Business), (f) all obligations with respect to leases of any property (real, personal or mixed) which are required to be recorded as capitalized lease obligations in accordance with GAAP (to the extent not included in clause (e) above and excluding operating lease obligations pursuant to ASC 842), (g) all outstanding prepayment and redemption premiums (including any make-whole premiums or payments) and penalties, and any other interest, fees, expenses, breakage charges and other similar amounts owed with respect to, or payable as a result of the prepayment or discharge in full of, any item set forth in clauses (a) through (f), (h) any Benefit Plan Funding Obligation, (i) all accrued (or, in accordance with GAAP, required to be accrued) and unpaid Income Taxes of the Company Members for any Pre-Closing Tax Period or portion of any Straddle Period ending on or before the Closing Date, in each case, calculated in accordance with the past practice of the Company Members (except to the extent required under applicable Law) and on the assumption that any Straddle Period ends on the Closing Date, determined on a jurisdiction-by-jurisdiction basis and reduced by Transaction Tax Deductions (and which amount shall not be less than zero dollars ($0) for any jurisdiction), and (j) all guarantees of the obligations of another Person with respect to any items set forth in clauses (a) through (i). For the avoidance of doubt, “Indebtedness” shall not include any obligations in respect of any arrangements disclosed on Schedule 1.1(a). “Incidental License” means any (a) permitted use right to confidential information in a non-disclosure agreement; (b) Contract for commercially-available Software with an overall replacement or annual license, subscription or maintenance cost of no more than $100,000, and (c)


 
10 non-exclusive license that is not material to the Company Members and merely incidental to the transaction contemplated in the Contract, the commercial purpose of which is primarily for something other than such license, such as any: (i) Contract for the sale of advertising; (ii) sales or marketing or similar Contract that includes a license to use the trademarks and copyrights of the Company Members for the purposes of promoting the products of the Company Members and (iii) vendor Contract that includes permission for the vendor to identify any Company Member as a customer of the vendor. “Indemnified D&Os” has the meaning set forth in Section 6.4(a). “Independent Accountant” means Baker Tilly. “Information Security Incident” means the unauthorized access to the IT Systems or Personal Information maintained, collected or received by a Company Member, or any information or other material that can be used to access such Personal Information, in any manner that would require notification to any Person or Governmental Entity under Applicable Privacy and Data Security Requirements, as well as any ransomware attack, exploitation of software vulnerabilities, phishing attacks, social engineering, malware, distributed denial-of-service attack or any other similar incident affecting the IT Systems. “Insurance Policies” has the meaning set forth in Section 3.15. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (a) patents, patent applications, together with all reissuances, continuations, continuations-in-part, divisions, extensions, and reexaminations thereof, and inventions whether or not patentable, along with any improvements, ideas, data, concepts, formulas, techniques, methods, prototypes, protocols, processes associated with the foregoing, (b) Trademarks, (c) copyrightable works, all copyrights, all applications for registration, all registrations and renewals in connection therewith, and works of authorship, whether or not copyrightable, (d) trade secrets, formulas, compositions, processes, confidential business and technical information, know-how, any other confidential and proprietary information and all rights therein, and any other information that derives independent economic value (actual or potential) from not being generally known to and not being readily ascertainable by proper means by a person able to obtain economic value from its use or disclosure, including drawings, bills of material and other tangible or electronic materials embodying the foregoing and relating to products or services made or sold or otherwise distributed by Company and its Subsidiaries, (e) all domain names, URLs, websites and webpages, and registrations in respect thereof, and social media account names or identifiers (including “handles”), and all content and data associated with the same, (f) Software, (g) hardware, designs, industrial designs (including registrations and applications therefor), drawings, plans, molds, masks and proprietary equipment; and (h) all other intellectual property and related proprietary rights whether protected, created, or arising by operation of law, in each case, whether (i) granted under common law or by statute, (ii) registered or unregistered or (iii) published or unpublished. “Interim Financial Statements” has the meaning set forth in Section 3.6(a).


 
11 “Inventories” shall mean all inventory, including raw materials, components, work-in- progress, finished products, tooling, stores, stock, supplies, packaging and spare parts used or held for use by Company or its Subsidiaries and existing as of the Closing. “IRS” means the Internal Revenue Service. “IT Systems” means all Software, computer systems, servers, hardware, network equipment, databases, websites, and other information technology systems of whatever type or kind that are used to process, store, maintain and operate data, information, and functions that are owned, leased or licensed by or to a Company Member in the Ordinary Course of Business. “Knowledge” means (a) with respect to Buyer or Parent, the actual knowledge of each individual identified on Schedule 1.1(b) under the heading “Buyer Knowledge Parties”, in each case after reasonable inquiry and investigation, and (b) with respect to the Sellers or Company, the actual knowledge of each individual identified on Schedule 1.1(b) under the heading “Seller Knowledge Parties”, in each case after reasonable inquiry and investigation. “Latest Balance Sheet” has the meaning set forth in Section 3.6(a). “Latest Balance Sheet Date” has the meaning set forth in Section 3.6(a). “Law” means any law (whether local or common), statute, code, ordinance, regulation, treaty (including any Tax treaty), rule or other requirement of any Governmental Entity and includes any Order. “Leased Real Property” means all real property leased or subleased (whether as a tenant or subtenant) by any Company Member. “Liability” means any liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes. “Liens” means any mortgage, license, charge, interest, pledge, claim, lien, encumbrance, option, security interest, restriction on the right to sell, transfer or dispose (and in the case of securities, vote) or other adverse claim of any kind or nature whatsoever (whether arising by Contract or by operation of law and whether voluntary or involuntary). “Lookback Date” means January 1, 2021. “Majority Holders” has the meaning set forth in Section 7.14(f). “Marastar Blocker” has the meaning set forth in the Recitals. “Marastar Blocker Stock” has the meaning set forth in the Recitals. “Material Adverse Effect” means any fact, condition, circumstance, occurrence, effect, change, event or development (“Effect”) that either alone or in combination with any other Effect


 
12 has or reasonably would be expected to have a material adverse effect on the business, assets, results of operations or financial condition of the Company Members, taken as a whole, but will not include any facts, conditions, circumstances, occurrences, effects, changes, events or developments that are, or are attributable to, (a) any changes in general United States or global economic conditions, (b) any changes in conditions generally affecting any of the industries in which the Company Members operate, (c) regulatory, legislative or political conditions or securities, credit, financial or other capital markets conditions, in each case, in the United States or any foreign jurisdiction, (d) any failure by any Company Member to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may, if not otherwise excluded hereunder, be taken into account in determining whether a Material Adverse Effect has occurred), (e) the execution and delivery of this Agreement or the public announcement or pendency of the Transaction, including the impact thereof on the relationships, contractual or otherwise, of the Company Members with employees, customers, suppliers or partners, (f) the performance by Company of its obligations under this Agreement or any action taken at the written request of Buyer, (g) any change in GAAP or in any applicable Law, including any tax, trade or tariff policy (or authoritative interpretations thereof), (h) geopolitical conditions, the outbreak or escalation of hostilities, any acts of war (whether or not declared), trade war, civil disobedience, sabotage or terrorism, cyberterrorism or cyberattack or any escalation or worsening of any of the foregoing underway as of the date of this Agreement, (i) landslides, lightning, fire, storms, hurricanes, earthquakes, floods or similar causes, any acts of God or natural disasters or any escalation or worsening of any of the foregoing, (j) any epidemic, pandemic or disease outbreak and any material worsening of the foregoing (including COVID-19) or any shutdown or material limiting of certain United States or foreign federal, state, provincial, territorial or local government services, quarantine or similar directive, policy or other similar action by any Governmental Entity in connection with the foregoing, (k) any fact, condition, circumstance, event, change, effect, occurrence or development that is disclosed in the Disclosure Schedule; except, in the cases of the foregoing clauses (a), (b), (c), (g), (h), (i) and (j), to the extent such facts, conditions, circumstances, occurrences, effects, changes, events or developments have a materially disproportionate adverse effect on the Company Members, taken as a whole, relative to other participants in the industries in which the Company Members operate. “Material Contracts” has the meaning set forth in Section 3.10(b). “Material Customer” has the meaning set forth in Section 3.20(a). “Material Supplier” has the meaning set forth in Section 3.20(b). “Net Adjustment Amount” means an amount, which may be positive, zero or negative, equal to the Final Purchase Price less the Estimated Purchase Price. “Net Working Capital” means the amount, whether positive or negative, equal to (a) the aggregate value of the current assets, excluding Cash and any deferred Tax assets, that would be shown on a consolidated balance sheet of the Company Members as of the Closing Date, minus (b) the sum of the current liabilities, excluding any Company Indebtedness and any deferred Tax liabilities, that would be shown on a consolidated balance sheet of the Company Members as of


 
13 the Closing Date, in each case calculated on a basis consistent with the Accounting Principles and including only such line items as are included in the Sample Net Working Capital Calculation. “Net Working Capital Excess” means the amount by which (if any) the Closing Net Working Capital, as finally determined pursuant to Section 2.4, is greater than the Target Net Working Capital. “Net Working Capital Shortfall” means the absolute value of the amount by which (if any) the Closing Net Working Capital, as finally determined pursuant to Section 2.4, is less than the Target Net Working Capital. “New Plans” has the meaning set forth in Section 6.5(b). “Notice of Disagreement” has the meaning set forth in Section 2.4(d). “NYSE” means the New York Stock Exchange. “OFAC” means the U.S. Office of Foreign Assets Control. “Open Source Software” means any software (in source or object code form) that is subject to (a) a license or other agreement commonly referred to as open source, free software, copyleft or community source code license (including but not limited to any code or library licensed under the GNU General Public License, GNU Lesser General Public License, BSD License, Apache Software License, any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org, or any other similar or public source code license arrangement) or (b) any other license or other agreement that requires, as a condition of the use, modification or distribution of software subject to such license or agreement, that such software or other software linked with, called by, combined or distributed with such software be (i) disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) licensed for the purpose of making derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (iv) redistributable at no charge. “Order” means any order, writ, judgment, ruling, injunction, assessment, stipulation, determination, award or decree of any Governmental Entity. “Ordinary Course of Business” means any action taken by the Company Members, Buyer or Parent, as the case may be, in the ordinary course of business of such Person and which is (a) consistent in all material respects with the past practices of the Company Members, Buyer or Parent (as applicable), or (b) with respect to actions taken since January 1, 2020, a COVID Measure. “Organizational Documents” means, with respect to any Person (other than an individual), (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) any charter or similar document adopted or filed in connection with the creation, formation, or organization of such Person (e.g., a certificate of formation, articles of organization, articles of association or certificate of limited partnership), and any Contract governing such Person (e.g., a limited liability company agreement, operating agreement or partnership agreement); and (c) any amendment to any of the foregoing.


 
14 “Owned Real Property” means all real property owned by Company or any of its Subsidiaries. “Parent” has the meaning set forth in the Preamble. “Parent Common Stock” means the common stock of Parent, par value $0.0001 per share. “Parent Common Stock Price” means $14.4274 per share. “Parent Financial Statements” has the meaning set forth in Section 5.6(b). “Party” has the meaning set forth in the Preamble. “Permits” means all permits, approvals, concessions, grants, franchises, licenses, identification numbers and other authorizations and approvals of or by any Governmental Entity. “Permitted Liens” means (a) Liens that relate to Taxes, assessments and governmental charges or levies imposed upon Company or any of its Subsidiaries that are not yet due and payable or that are being contested in good faith by appropriate proceedings or for which adequate reserves have been established on the Interim Financial Statements, (b) Liens imposed by Law that relate to obligations that are not yet due and payable and have arisen in the Ordinary Course of Business, (c) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations), (d) mechanics’, carriers’, workers’, repairers’ and similar Liens imposed upon Company or any of its Subsidiaries arising or incurred in the Ordinary Course of Business, for amounts that are not yet due and payable or which are being contested in good faith by the applicable Company Members by appropriate proceedings or for which reserves have been established on the Interim Financial Statements, (e) non-exclusive licenses to Intellectual Property provided or entered into in the Ordinary Course of Business, (f) Liens, whether or not of record, that relate to zoning, entitlement and other land use and Environmental Laws, (g) other imperfections or irregularities in title, charges, easements, survey exceptions, leases, subleases, license agreements and other occupancy agreements, reciprocal easement agreements, restrictions and other customary encumbrances on title to or use of real property, whether or not of record, that do not materially detract from use of the property subject thereto in the same manner as used by Company and its Subsidiaries as of the date of this Agreement, (h) any utility company rights, easements or franchises, whether or not of record, for electricity, water, steam, gas, sanitary sewer, surface water, drainage, telephone, fiber optic or other service or the right to use and maintain poles, lines, wires, cables, pipes, boxes and other fixtures and facilities in, over, under and upon any of the Sites, or other general easements granted to Governmental Entities in the ordinary course of developing or operating any Site, (i) as to any Leased Real Property, any Lien affecting the interest of the lessor thereof, (j) Liens that will be terminated or released at the Closing in connection with the repayment of Company Indebtedness at Closing, and (k) Liens described on Schedule 1.1(c); provided, however, that in the case of clauses (f) through (i), none of the foregoing, individually or in the aggregate, materially adversely affects the continued use of the property to which its relates in the conduct of the business currently conducted thereon. For the avoidance of doubt, “Permitted Liens” shall include any Lien in respect of any arrangements disclosed on Schedule 1.1(a).


 
15 “Person” means a natural person, sole proprietorship, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated society or association, joint venture, Governmental Entity or other legal entity or organization. “Personal Information” means any information that (a) alone or in combination with other Personal Information, identifies, relates to, describes and is reasonably capable of being associated with, or would reasonably be expected to be linked, directly or indirectly, with an individual, device, or household and (b) any information that is governed, regulated, or protected as “personal information,” “personally identifiable information,” “sensitive personal information,” “personal data,” or any similar terms under the Applicable Privacy and Data Security Requirements. “PRC” means the People’s Republic of China, and for the purpose of this Agreement only, excluding Hong Kong Special Administrative Regions of China, Macau Special Administrative Regions of China and Taiwan. “PRC Tax Authority” means the State Administration of Tax and any tax authority at the provincial (autonomous regions, municipality directly under the national government) level, at the prefecture (city divided into districts, autonomous prefecture, league) level, and at the county (city, banner) level in the PRC. “Pre-Closing Restructuring” has the meaning set forth in the Recitals. “Pre-Closing Tax Period” means any taxable period ending on or prior to the Closing Date. “Press Release” has the meaning set forth in Section 6.8. “Privileged Communications” has the meaning set forth in Section 7.13(a). “Public Notice 7” means Public Notice 2015 No. 7 issued by the PRC State Administration of Taxation on February 3, 2015, titled “Public Notice of the State Administration of Taxation Regarding Certain Corporate Income Tax Matters on Indirect Transfer of Properties by Non-Tax Resident Enterprises” (关于非居民企业间接转让财产企业所得税若干问题的公告), as amended. “Public Notice 7 Filing” has the meaning set forth in Section 6.6(g)(i). “Purchase Price” has the meaning set forth in Section 2.1(a). “Purchased Interests” has the meaning set forth in the Recitals. “R&W Insurance Policy” has the meaning set forth in Section 6.7. “R&W Insurer” has the meaning set forth in Section 6.7. “Real Property Leases” has the meaning set forth in Section 3.11(b). “Reference Time” means 12:01 a.m. eastern time on the Closing Date.


 
16 “Representatives” means with respect to any Person its respective directors, members of its board of managers, officers, employees, agents, advisors, Affiliates and representatives (including attorneys, accountants, consultants, bankers and financial advisors). “Restricted Person” means any Person identified on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List or the U.S. Department of State’s Debarred List or Nonproliferation Sanctions. “Review Period” has the meaning set forth in Section 2.4(c). “Sample Net Working Capital Calculation” means the illustrative calculation of Net Working Capital as of December 31, 2023 that is included in Annex I. “Sanctioned Person” means a Person that is the target of Sanctions, including any Person (a) listed on any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the European Union, any European Union member state, the United Nations Security Council, or any Governmental Entity of any jurisdiction where any Company Member operates, (b) located, organized, or resident in a Sanctioned Territory, or (c) directly or indirectly owned, 50% or more, or controlled (individually or in the aggregate) as applicable under Law by any of the Persons described in the foregoing clauses (a) and (b). “Sanctioned Territory” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions. “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by any Governmental Entity of (a) the United States (including OFAC and the U.S. Department of State), (b) the European Union, (c) any European Union member state, (d) the United Nations Security Council, or (e) any jurisdiction where any Company Member operates. “Sarbanes-Oxley Act” has the meaning set forth in Section 5.6(a). “SEC” has the meaning set forth in Section 5.6(a). “SEC Documents” has the meaning set forth in Section 5.6(a). “Securities Act” means the Securities Act of 1933. “Seller Group” shall mean, collectively, Sellers and each of their respective successors and assigns (and each of the foregoing Persons shall be a “Seller Group Member”). “Seller R&W Parties” has the meaning set forth in Section 6.7. “Seller Releasing Party” has the meaning set forth in Section 6.11(a). “Seller Representative” has the meaning set forth in Section 7.14(a). “Sellers” has the meaning set forth in the Preamble.


 
17 “Site” means each location where Company or any of its Subsidiaries conducts business, including each Owned Real Property and Leased Real Property. “Software” means computer software and programs (both source code and object code form), all proprietary rights in the computer software and programs, and all documentation and other materials related to the computer software and programs. “Stockholder Agreement” means the Stockholder Agreement to be entered into at Closing by Parent and the Sellers in the form attached hereto as Exhibit E. “Straddle Period” means any taxable period that begins on or before, and ends after, the Closing Date. “Subsidiary” means, with respect to any party, any foreign or domestic corporation or other entity, whether incorporated or unincorporated, of which (a) such party or any other Subsidiary of such party is a general partner (excluding such partnerships where such party or any Subsidiary of such party does not have a majority of the voting interest in such partnership), or (b) at least a majority of the securities or other Equity Interests having by their terms ordinary voting power to elect a majority of the directors or others performing similar functions with respect to such corporation or other entity is directly or indirectly owned or controlled by such party or by any one or more of such party’s Subsidiaries, or by such party and one or more of its Subsidiaries. “Target Net Working Capital” means $136,720,000. “Tax” means any federal, state, local, provincial, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, goods and services, harmonized sales, consumption, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not. “Tax Authority” means the IRS, the CRA and any other domestic or foreign Governmental Entity responsible for the administration of any Taxes. “Tax Proceeding” means any audit, assessment, reassessment, claim, examination or other inquiry relating to Taxes by any Tax Authority or any judicial or administrative proceeding relating to Taxes. “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. “Tax Sharing Agreement” means any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract or arrangement, whether written or unwritten (other than any commercial Contract entered into in the Ordinary Course of Business the primary purpose of which is not Tax), including any such agreement, Contract or arrangement included in any purchase or sale agreement, merger agreement, joint venture agreement or other document.


 
18 “Trademarks” means registered and unregistered trademarks, service marks, brands, certification marks, trade dress, logos, trade names, corporate names (including “doing business as” or “d/b/a” registrations), and all other indicia or identifiers of source or origin, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith. “Tire Blocker” has the meaning set forth in the Recitals. “Tire Blocker Stock” has the meaning set forth in the Recitals. “Transaction” means, collectively, the transactions contemplated by this Agreement and the Ancillary Agreements. “Transaction Expenses” means, solely to the extent unpaid as of immediately prior to the Closing, the aggregate amount of the following fees and expenses incurred through the Closing and payable by any Company Member in connection with this Agreement and the consummation of the Transaction: (a) any fees and expenses of UBS Securities LLC, Fredrikson & Byron, P.A., Ropes & Gray LLP and Sidley Austin LLP and other financial advisors, attorneys, accountants, advisors, consultants or other representatives engaged in connection with the Transaction, (b) transaction-related bonuses, change of control payments and any other similar payments triggered and payable solely as a result of the occurrence of the Closing, and (c) the employer portion of any payroll, social security, unemployment or similar Taxes with respect to any payments pursuant to clause (b). For the avoidance of doubt, Transaction Expenses will not include (x) any fees or expenses incurred by Buyer, Parent or any of their financial advisors, attorneys, accountants, advisors, consultants or other representatives or financing sources, regardless of whether any such fees or expenses may be paid after the Closing by any Company Member, or any fees and expenses Buyer expressly agrees to pay pursuant to this Agreement or (y) any fees or expenses taken into account in the determination of Closing Net Working Capital or Closing Company Indebtedness. “Transaction Form 8-K” has the meaning set forth in Section 6.8. “Transaction Tax Deduction” has the meaning set forth in Section 6.6(c)(i). “Transfer Taxes” has the meaning set forth in Section 6.6(a). “Treasury Regulations” means the U.S. Department of the Treasury regulations promulgated under the Code. “WARN Act” has the meaning set forth in Section 3.13(c). Section 1.2 Other Definitional and Interpretive Matters. Unless otherwise expressly provided herein or the context otherwise requires, for purposes of this Agreement, the following rules of interpretation apply: (a) References herein to Articles, Sections, Annexes, Exhibits or Schedules refer to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement, as applicable.


 
19 (b) The 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. (c) The word “including” or any variation thereof means “including, without limitation” and will not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. (d) The word “or” shall be construed in the inclusive sense of “and/or” unless otherwise specified. (e) The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and will not affect or be utilized in construing or interpreting this Agreement. (f) Any reference in this Agreement to gender includes all genders, and words imparting the singular number only will include the plural and vice versa. (g) References to “$” and “dollars” are to the currency of the United States of America. (h) The word “extent” and the phrase “to the extent” mean the degree to which a subject or other thing extends, and such phrase does not simply mean “if.” (i) “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. (j) (i) References to any statute refer to such statute as amended from time to time and to any rules and regulations promulgated thereunder and to any successor statutes, rules or regulations and (ii) references to any Person include the successors and permitted assigns of that Person. (k) An item arising with respect to a specific representation or warranty shall be deemed to be “reflected on” or “set forth in” a balance sheet or financial statement, to the extent any such phrase appears in such representation or warranty, if (i) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statement that relates to the subject matter of such representation, (ii) such item is otherwise specifically set forth on the balance sheet or financial statement or (iii) such item is set forth in the notes to the balance sheet or financial statement. (l) When calculating periods 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 will be excluded, and if the last day of such period is a non-Business Day, the period in question will end on the next succeeding Business Day. (m) All references herein to the Subsidiaries of a Person include all direct and indirect Subsidiaries of such Person.


 
20 (n) A reference to any party to this Agreement or any other agreement or document shall include such party’s successors and permitted assigns. (o) Any document that is described as being “delivered,” “furnished,” “made available” or similarly means that the Sellers or any Company Member has (i) posted such materials to the Data Room, in a manner that enables viewing of such materials by Buyer or its Representatives prior to 5:00 p.m. (Eastern Time) on the date that is two (2) Business Days prior to the date of this Agreement or (ii) set forth a true and complete copy of such materials in the Disclosure Schedule (provided that the construction of any such terms used in Section 3.27 and Section 5.15 will not be limited by this Section 1.2(o)). (p) The Disclosure Schedule is hereby incorporated and made a part hereof and is an integral part of this Agreement. As used in any Section of the Disclosure Schedule, unless the context would otherwise require, the term “material” and the concept of the “material” nature of an effect upon Company will be measured relative to Company and its Subsidiaries, taken as a whole, as their business is currently being conducted. Company may, at its option, include in the Disclosure Schedule items that are not material in order to avoid any misunderstanding, and such inclusion, or any references to dollar amounts, will not be deemed to be an acknowledgement or representation or warranty that such items are material, to establish any standard of materiality or to define further the meaning of such terms for purposes of this Agreement or otherwise. Any matter set forth in any Section of any Disclosure Schedule will be deemed to be referred to and incorporated in any other Section to which it is specifically referenced or cross-referenced, and also in all other Sections of the Disclosure Schedule to which such matter’s application or relevance is reasonably apparent on its face. Nothing contained in any Section of the Disclosure Schedule should be construed as an admission of liability or responsibility of any party to any third party in connection with any pending or threatened Action or otherwise. Except as otherwise expressly set forth in any Section of the Disclosure Schedule, in no event will the listing or disclosure of any information or document in any Section of the Disclosure Schedule or in the documents referred to or incorporated by reference in any such Section of the Disclosure Schedule constitute or be deemed to imply any representation, warranty, undertaking, covenant or other obligation of Company not expressly set out in this Agreement nor will such disclosure be construed as extending the scope of any representation or warranty, undertaking, covenant or obligation set out in this Agreement. Any capitalized terms used in any Section of the Disclosure Schedule or Exhibit but not otherwise defined therein will be defined as set forth in this Agreement. (q) The Parties agree that they have participated jointly in the drafting of this Agreement and have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.


 
21 ARTICLE II CLOSING Section 2.1 Purchase and Exchange. (a) The aggregate consideration payable by Buyer to the Sellers for the Purchased Interests and the Blocker Interests (the “Purchase Price”) is equal to: (i) the Aggregate Cash Consideration plus (ii) the Aggregate Stock Consideration. (b) On the terms and subject to the conditions set forth in this Agreement, at the Closing, in exchange for the Purchase Price, Buyer will purchase from the Sellers, and the Sellers will transfer to Buyer, the Purchased Interests and the Blocker Interests, free and clear of all Liens (other than Liens imposed by applicable securities Laws). Section 2.2 Closing. The closing of the purchase and exchange of the Purchased Interests and the Blocker Interests for the Purchase Price (the “Closing”) will take place remotely on the date of execution of this Agreement (the “Closing Date”). The Closing will be deemed to occur and be effective at the Reference Time. Section 2.3 Deliveries at the Closing. (a) Deliveries by the Sellers. At the Closing, the Sellers will deliver or cause to be delivered to Buyer: (i) the Escrow Agreement, duly executed by CH Seller and Escrow Agent; (ii) the Stockholder Agreement, duly executed by the Sellers; (iii) written resignation of each person who serves as a director (or in a comparable capacity) of any of the Company Members in his or her capacity as such, as identified on Schedule 2.3(a)(iii); (iv) instruments of assignment of the Purchased Interests and the Blocker Interests, endorsed in blank in proper form for transfer; (v) a duly executed certificate of an authorized officer of CH Seller certifying as to (A) the Organizational Documents of CH Seller and each Company Member, as currently in effect, (B) certificates or other evidence of good standing of the Company Members set forth on Schedule 2.3(a)(v) issued by the applicable Governmental Entity of the jurisdiction of such Person’s organization or formation no more than ten (10) days prior to Closing, and (C) the resolutions of the sole member of each of Company and CH Seller, respectively, authorizing the execution, delivery and performance of this Agreement, the Ancillary Agreements to which they are a party and the transactions contemplated hereby and thereby;


 
22 (vi) a duly executed certificate of an authorized officer of Blocker Seller 1 certifying as to the resolutions of the sole member of Blocker Seller 1 authorizing the execution, delivery and performance of this Agreement, the Ancillary Agreements to which it is a party and the transactions contemplated hereby and thereby; (vii) a duly executed certificate of an authorized officer of Blocker Seller 2 certifying as to the resolutions of the general partner of Blocker Seller 2 authorizing the execution, delivery and performance of this Agreement, the Ancillary Agreements to which it is a party and the transactions contemplated hereby and thereby; (viii) the Fund V Restrictive Covenant Agreement, duly executed by Fund V and AIP, LLC; (ix) the Funds Flow Statement, duly executed by the Sellers; (x) evidence of the termination of the Contracts and arrangements set forth on Schedule 2.3(a)(x); (xi) (A) from each of CH Seller and CH Blocker, a duly executed IRS Form W-9, (B) from the Marastar Blocker, a statement issued by the Marastar Blocker in form and substance prescribed by Treasury Regulations Sections 1.897-2(h) and 1.1445- 2(c)(3), certifying that no interest in the Marastar Blocker is a United States real property interest as defined in Section 897(c) of the Code (including a notice to the IRS as prescribed by Treasury Regulations Section 1.897-2(h)(2)) (it being understood that Buyer will be solely responsible for mailing such notice and certificate to the IRS after the Closing) and (C) from Tire Blocker, a duly executed IRS Form W-8BEN-E, certifying its status as a foreign entity; and (xii) (A) customary payoff letters in connection with repayment of all Indebtedness under the Credit Agreement and any other Indebtedness items listed on Schedule 2.3(b)(vi) as being paid at and as of the Closing, which shall include the amounts necessary to pay off such Indebtedness as of the Closing, along with the per diem interest amount with respect thereto, if applicable, and the agreement of each such holder of Indebtedness that, upon receipt of such specified amount, the Indebtedness payable to it shall be paid in full, all Liens, if any, relating thereto shall automatically terminate and the applicable Company Member or its designees shall be authorized to terminate any and all filing evidencing such Liens, and (B) final invoices for the Transaction Expenses (or other evidence reasonably satisfactory to Buyer). (b) Deliveries by Buyer. At the Closing, Buyer will: (i) issue to CH Seller and the Blocker Sellers, in accordance with the Funds Flow Statement, the Aggregate Stock Consideration, proportionately adjusted for any increase or decrease in the number of issued shares of such common stock between the date of execution hereof and the Closing resulting from a stock split or the payment of a stock dividend or any other increase or decrease in the number of shares of Parent Common Stock, all such shares to be duly authorized, validly issued, fully paid, non-assessable


 
23 shares issued free and clear of Liens (other than interests, claims, charges and restrictions imposed by this Agreement); (ii) deliver to CH Seller and the Blocker Sellers, in accordance with the Funds Flow Statement, stock certificates issued in each Seller’s name representing such Seller's shares of the Aggregate Stock Consideration; (iii) pay (or cause to be paid) to CH Seller and the Blocker Sellers, in accordance with the Funds Flow Statement, by wire transfer of immediately available funds in accordance with the wire instructions set forth in the Funds Flow Statement, an amount equal to the Estimated Purchase Price, less the Adjustment Escrow Deposit; (iv) deposit (or cause to be deposited) with the Escrow Agent, by wire transfer of immediately available funds in accordance with the wire instructions set forth in the Funds Flow Statement to the account specified by the Escrow Agent (the “Escrow Account”), the Adjustment Escrow Deposit; (v) pay (or cause to be paid) on behalf of the applicable Company Member to the Persons entitled thereto, the Estimated Transaction Expenses, in each case in the amount due and owing from the applicable Company Member to such Persons as set forth in the Funds Flow Statement by wire transfer of immediately available funds in accordance with the wire instructions set forth in the Funds Flow Statement; provided, however, any amounts treated as wages or compensation to a current or former employee of any Company Member shall be paid to the applicable Company Member, which shall pay the respective payee such amount, less applicable withholding Taxes, through such Company Member’s payroll system, and amounts paid as compensation to service providers who are not current or former employees shall be treated as contributed to the applicable Company Member and immediately thereafter paid by such Company Member, to such service providers; (vi) pay (or cause to be paid) by wire transfer of immediately available funds on behalf of the applicable Company Member, amounts sufficient to discharge in full the Indebtedness items listed on Schedule 2.3(b)(vi), including the Indebtedness under the Credit Agreement, in each case in the amount due and owing from the applicable Company Member to such holder of Indebtedness as set forth in the Funds Flow Statement in accordance with the wire instructions set forth in the Funds Flow Statement; (vii) deliver to the Sellers, the Funds Flow Statement, duly executed by Buyer; (viii) deliver to the Sellers, the Stockholder Agreement, duly executed by Parent; (ix) deliver to the Sellers, the Fund V Restrictive Covenant Agreement, duly executed by Buyer; and (x) deliver to the Sellers, the Escrow Agreement, duly executed by Buyer and the Escrow Agent.


 
24 Section 2.4 Purchase Price Adjustment. (a) Estimated Purchase Price. No later than one (1) calendar day prior to the Closing Date, CH Seller and Buyer shall have agreed to a written statement (the “Estimated Closing Statement”) setting forth CH Seller’s good faith estimate of the Purchase Price calculated in accordance with the definition thereof and in accordance with the Accounting Principles and the Sample Net Working Capital Calculation (the “Estimated Purchase Price”); provided, however, in case of any disagreement between CH Seller and Buyer regarding the estimates set forth therein, the estimates and calculations of CH Seller set forth in the Estimated Closing Statement shall control. The Estimated Closing Statement will include reasonable detail showing CH Seller’s calculation of (i) Estimated Net Working Capital (and any Estimated Net Working Capital Shortfall or Estimated Net Working Capital Excess, as applicable), (ii) Estimated Company Cash, (iii) Estimated Transaction Expenses, and (iv) Estimated Company Indebtedness. (b) Closing Statement. As soon as reasonably practicable, but no later than 90 days after the Closing Date, Buyer will either confirm CH Seller’s calculations set forth in the Estimated Closing Statement or cause to be prepared and delivered to CH Seller a closing statement (the “Closing Statement”) setting forth Buyer’s calculation of the Purchase Price, calculated in accordance with the definition thereof. Buyer’s calculation of Purchase Price will be made in accordance with the Accounting Principles and the Sample Net Working Capital Calculation. The Closing Statement will include reasonable detail showing Buyer’s calculation of (i) Closing Net Working Capital (and any Net Working Capital Shortfall or Estimated Net Working Capital Excess, as applicable), (ii) Closing Company Cash, (iii) Closing Transaction Expenses and (iv) Closing Company Indebtedness. If Buyer fails to deliver the Closing Statement within 90 days following the Closing Date, then the Estimated Closing Statement will be deemed to be the Closing Statement for purposes of this Section 2.4. (c) Review Period. During the 90-day period from and after Buyer’s delivery of the Closing Statement to CH Seller (the “Review Period”), CH Seller and its Representatives will be permitted to review the work papers of Buyer and the Company Members and their respective independent accountants and will have access to their respective Representatives in connection with the preparation of the Closing Statement and Buyer’s calculation of the Purchase Price, as well as their relevant books and records; provided that such access shall be in a manner that does not materially interfere with the normal business operations of Buyer or the Company Members. The Parties will not introduce different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining the Purchase Price under this paragraph from those used in the Accounting Principles. Without limiting the foregoing, the Closing Net Working Capital as calculated in the Closing Statement will not contain any categories or types of assets or liabilities or other accounts, reserves or line items not reflected in the calculations of Closing Net Working Capital as set forth in the Sample Net Working Capital Calculation and included in the Accounting Principles. (d) Closing Statement Disputes. If CH Seller disagrees with Buyer’s calculations of the Purchase Price as set forth in the Closing Statement, then CH Seller may, during the Review Period, deliver a written notice (the “Notice of Disagreement”) to Buyer describing in reasonable detail the amount, nature and basis of all disputed items. If no Notice of Disagreement is delivered to Buyer at or prior to the expiration of the Review Period, then the Closing Statement,


 
25 including the Purchase Price and the components thereof set forth therein will be deemed to have been accepted by the Sellers and will be deemed the Final Purchase Price and binding for all purposes. (e) Independent Accountant’s Determination. If a Notice of Disagreement is timely delivered pursuant to Section 2.4(d), each of CH Seller and Buyer will, during the 30 days following such delivery (or such longer period as CH Seller and Buyer shall agree in writing), use their respective commercially reasonable efforts to reach an agreement on the disputed items or amounts set forth in such Notice of Disagreement in order to determine the Final Purchase Price. If, during such period, CH Seller and Buyer are unable to reach such an agreement, they will promptly thereafter cause the Independent Accountant to review the relevant portions of this Agreement and the disputed items or amounts set forth in such Notice of Disagreement that then remain in dispute (the “Disputed Items”) for the purpose of calculating the Final Purchase Price (it being understood that, in making such calculation, the Independent Accountant will be functioning as an expert and not as an arbitrator). The Independent Accountant’s role in completing such review will be limited to resolving such disputes and determining the correct calculations of the Disputed Items and the resulting calculation of Final Purchase Price. Such calculation will be made by the Independent Accountant in accordance with this Agreement, the Accounting Principles and the Sample Net Working Capital Calculation. Buyer and CH Seller will furnish to the Independent Accountant such working papers and other relevant documents and information relating to the Disputed Items as the Independent Accountant may reasonably request in connection with its review and determination of such Disputed Items. The Independent Accountant will deliver to CH Seller and Buyer, as promptly as practicable (and Buyer and CH Seller will use their respective commercially reasonable efforts to cause the Independent Accountant to deliver no later than 30 days from the date of engagement of the Independent Accountant), a report setting forth, as applicable, its determinations of the Disputed Items, the Purchase Price (which will be deemed the Final Purchase Price), and a summary of the Independent Accountant’s reasons for its determination of each issue; provided, however, that the Independent Accountant may only assign a value to any Disputed Item equal to the value claimed by CH Seller or the value claimed by Buyer. Such report will, absent manifest error or fraud, be final and binding upon the Parties. The cost of any such review and report by the Independent Accountant will be allocated and paid between Buyer, on the one hand, and CH Seller, on the other hand, in inverse proportion to the relative success of the Parties with respect to the value of the Disputed Items, as finally determined by the Independent Accountant. (f) Adjustment. Within five (5) Business Days after the final determination of the Final Purchase Price pursuant to this Section 2.4, the following payments shall be made, by wire transfer of immediately available funds, as applicable: (i) If the Net Adjustment Amount is positive or zero, then (A) Buyer will pay (or cause to be paid) to CH Seller and the Blocker Sellers, as determined by the Sellers in their sole discretion in accordance with the AIPCF V AIV C, LP Agreement, (1) if the Net Adjustment Amount is equal to or less than the Adjustment Maximum Amount, a dollar amount equal to the Net Adjustment Amount (if any) or (2) if the Net Adjustment Amount is greater than the Adjustment Maximum Amount, a dollar amount equal to the Adjustment Maximum Amount to the account(s) specified in writing by CH Seller to Buyer, and (B) Buyer and CH Seller will jointly instruct the Escrow Agent to promptly deliver the


 
26 Adjustment Escrow Funds to CH Seller from the Escrow Account to the account(s) specified in writing by CH Seller to the Escrow Agent. (ii) If the Net Adjustment Amount is negative, then Buyer and CH Seller will jointly instruct the Escrow Agent to promptly deliver from the Escrow Account (A) if the absolute value of the Net Adjustment Amount is less than the Adjustment Escrow Funds, (1) to Buyer an amount equal to the absolute value of the Net Adjustment Amount to the account specified in writing by Buyer to the Escrow Agent and (2) to CH Seller and the Blocker Sellers, as determined by the Sellers in their sole discretion in accordance with the AIPCF V AIV C, LP Agreement, any remaining portion of the Adjustment Escrow Funds after payment of the Net Adjustment Amount to Buyer pursuant to clause (1), to the account(s) specified in writing by CH Seller to the Escrow Agent; or (B) if the absolute value of the Net Adjustment Amount is equal to or greater than the Adjustment Escrow Funds, to Buyer the Adjustment Escrow Funds to the account specified in writing by Buyer to the Escrow Agent. (iii) Buyer acknowledges that its sole source of recovery and exclusive remedy with respect to any claims arising out of or relating to the Net Adjustment Amount will be, and will not exceed in the aggregate, the Adjustment Escrow Funds (including in the event that the Net Adjustment Amount exceeds the Adjustment Escrow Funds) to be paid in accordance with Section 2.4(f)(ii), and none of Buyer or its Affiliates (including, after the Closing, the Company Members) will have any claim against the Sellers in respect thereof. (iv) The Sellers acknowledge that their sole source of recovery and exclusive remedy with respect to any claims arising out of or relating to the Net Adjustment Amount will be, and will not exceed in the aggregate, (A) an amount equal to the Adjustment Maximum Amount plus (B) delivery of the Adjustment Escrow Funds from the Escrow Account, in each case to be paid in accordance with Section 2.4(f)(i), and none of the Sellers or their Affiliates will have any further claim against Buyer or any of its Affiliates in respect thereof. (v) The Parties will treat any payment made pursuant to this Section 2.4(f) as an adjustment to the Purchase Price for federal income (and other applicable) Tax purposes, unless, and only to the extent, otherwise required by applicable Law. (vi) For the avoidance of doubt, all adjustments made pursuant to this Section 2.4(f) shall be with respect to the Aggregate Cash Consideration and there shall be no post-Closing adjustment with respect to the Aggregate Stock Consideration. Section 2.5 Purchase Price Allocation. (a) Buyer and the Sellers agree that the Purchase Price allocated to CTP Distribution (HK) Ltd. and its subsidiaries is $40,000,000. (b) Buyer and the Sellers further agree that the Purchase Price will be allocated among the Purchased Interests, the CH Blocker Interests, the Tire Blocker Stock and the Marastar


 
27 Blocker Stock as set forth on Annex II and the Purchase Price so allocated to the Purchased Interests, which includes the allocation to CTP Distribution (HK) Ltd. and its subsidiaries as set forth in Section 2.5(a), (and all other relevant amounts for federal Income Tax purposes) will be allocated among the assets of Company and its Subsidiaries that are disregarded for federal Income Tax purposes in accordance with the principles and methodology set forth in Annex II and Section 751 of the Code for purposes of determining the allocation under Section 755 of the Code and the tax basis adjustment under Section 743 of the Code and the Treasury Regulations thereunder (and any similar provisions of state, local or foreign Law, as appropriate). Within 90 days after the Closing Date, CH Seller will prepare and deliver to Buyer a schedule setting forth CH Seller’s proposed allocation (the “Allocation Schedule”). Buyer will have 60 days following receipt of the Allocation Schedule to deliver to CH Seller a notice stating that Buyer disagrees with all or any portion of the Allocation Schedule. If no notice of disagreement is delivered to CH Seller on or prior to the expiration of such 60-day period, then the Allocation Schedule as prepared by CH Seller pursuant to this Section 2.5 will be deemed to have been accepted by Buyer and will be final and binding on the Parties. If such a notice of disagreement is timely delivered to CH Seller pursuant to this Section 2.5, then Buyer and CH Seller will, during the 30 days following such delivery, use their respective commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine a mutually agreeable Allocation Schedule. If, during such 30-day period, Buyer and CH Seller are unable to reach such an agreement and resolve all disputed items or amounts, they will promptly thereafter submit the remaining disputed items and amounts to the Independent Accountant for resolution in a manner consistent with the procedures provided for in Section 2.4(e) for the resolution of disputes with respect to the Closing Statement and the Purchase Price (provided, however, that Buyer, on the one hand, and CH Seller, on the other, will share equally the costs of retaining the Independent Accountant pursuant to this Section 2.5) and the Allocation Schedule as revised to reflect any changes mutually agreed upon by the Parties and the determination of the Independent Accountant will be final and binding on the Parties. The Parties will, and will cause their respective Affiliates to, file all Tax Returns consistent with the Allocation Schedule (as finally determined) and the Parties will not, and will cause their respective Affiliates not to, take any position on any Tax Return, in any Tax Proceeding or otherwise before any Tax Authority that is inconsistent with the Allocation Schedule (as finally determined), in each case, unless otherwise required by a final “determination” (within the meaning of Section 1313(a) of the Code). In the event that the Allocation Schedule is disputed by any Governmental Entity, the party receiving notice of such dispute shall promptly notify and consult with the other Parties concerning the resolution of such dispute, and the Parties shall use reasonable efforts to contest such dispute in a manner consistent with the Allocation Schedule. Section 2.6 Mechanics of Exchange and Surrender. The Exchange Agent will act as paying and exchange agent in connection with the Transaction to receive, for the benefit of the Sellers, the Aggregate Stock Consideration to which the Sellers shall become entitled pursuant to Section 2.1 and Section 2.3(b). Parent shall cause the Exchange Agent to pay or deliver, as applicable, to the applicable Seller promptly after the Closing, the Aggregate Stock Consideration to which such holder is entitled pursuant to Section 2.3(b). Section 2.7 No Fractional Shares. (a) No certificates or scrip representing fractional shares of Parent Common Stock will be issued upon the exchange contemplated by Section 2.1 and Section 2.3(b), and such


 
28 fractional share interests shall not entitle the owner thereof to vote or to any rights of a holder of Parent Common Stock. All fractional share interests to which a single Seller would be entitled will be rounded up to three decimal places for purposes of the cash payment under Section 2.7(b). (b) In lieu of the issuance of any fractional share, such Seller shall be entitled to receive from Buyer an amount in cash (rounded to the nearest cent), without interest, determined by multiplying the fraction of such fractional share of Parent Common Stock by the Parent Common Stock Price. Payment of cash in lieu of fractional shares of Parent Common Stock shall be made solely for purposes of avoiding the expense and inconvenience to Parent of issuing fractional shares of Parent Common Stock and shall not represent separately bargained-for consideration. Section 2.8 Withholding. Buyer, the Sellers and each Company Member (and each of their respective Affiliates, as necessary) will be entitled to deduct and withhold from any amounts otherwise payable to any Person pursuant to this Agreement such amounts as set forth in the Funds Flow Statement as such Person is required to deduct and withhold with respect to the making of such payment under any applicable Tax laws; provided, however, that, other than with respect to (a) any withholding due in respect of any compensatory payments pursuant to this Agreement, and (b) the failure of the applicable party to deliver the documentation set forth in Section 2.3(a)(xi), Buyer will (i) not deduct or withhold any amount in connection with Public Notice 7 (the application of which to the transactions contemplated hereunder shall be governed exclusively by Section 6.6(g)), (ii) provide to the relevant Seller at least ten (10) Business Days’ written notice of Buyer’s intention to make any deduction or withholding in respect of any payment to or in respect of such Seller under this Agreement and, in reasonable detail, the authority and method of calculation for the proposed deduction or withholding in order for such Seller to obtain reduction of, or relief from, such deduction or withholding from the applicable Tax Authority, and (iii) consider in good faith any objections from such Seller to such deduction or withholding and shall reasonably cooperate with such Seller in efforts by such Seller to obtain such reduction of, or relief from, such deduction or withholding. Any such withheld or deducted amounts that are timely paid over to, or deposited with, the relevant Tax Authority, shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. Section 2.9 Payment of Indebtedness. Payment by Buyer of the Indebtedness pursuant to Section 2.3(b)(vi) shall be accomplished by (a) first, a contribution by Buyer to each Blocker, equal to the aggregate amount of the Indebtedness to be paid multiplied by each Blocker’s respective percentage ownership interest in Company, (b) second, a contribution by each of Buyer, CH Blocker, Marastar Blocker and Tire Blocker to Company in an amount equal to the aggregate amount of the Indebtedness to be paid multiplied by the pro rata percentage of Buyer’s and each Blocker’s respective percentage ownership interest in Company as of immediately after the Closing, and (c) third, payment by Company to the holders of the applicable Indebtedness. Company and each Blocker may direct Buyer to pay such Indebtedness directly, but such payment will be deemed to have occurred in accordance with this Section 2.9.


 
29 ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY MEMBERS AND THE BLOCKERS The Sellers, jointly and severally, hereby represent and warrant to Buyer and Parent that the statements in this Article III are true, complete and correct, subject, in any case, to the exceptions provided in the disclosure schedule supplied by the Sellers to Buyer and Parent, dated as of the date of this Agreement (the “Disclosure Schedule”): Section 3.1 Due Organization; No Prior Activities. (a) Section 3.1(a) of the Disclosure Schedule lists each Company Member, together with its type of entity, jurisdiction of organization or formation and the jurisdictions in which it is qualified, registered or licensed to do business as a foreign business entity. Each Company Member is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization or formation, and each Company Member has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. Except as would not be material to the Company Members taken as a whole, each Company Member is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary. All corporate or equivalent actions taken by each Company Member in connection with this Agreement will be duly authorized on or prior to the Closing. (b) True, correct and complete copies of the Organizational Documents of each Company Member have been made available to Buyer. (c) The Blockers and CH Seller were formed solely for the purpose of a direct or indirect investment in Company. None of the Blockers or CH Seller have had any employees or carried on any business or conducted any commercial operations, other than in connection with the direct or indirect investment, as applicable, in Company and the Transaction. Section 3.2 Power and Authority of the Company Members. Each Company Member has the requisite power and authority to enter into this Agreement and each Ancillary Agreement to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the Transaction. The execution and delivery by a Company Member of this Agreement and each Ancillary Agreement to which it is a party, the performance of its obligations hereunder and thereunder, and the consummation of the Transaction, have been duly authorized by all requisite action on the part of such Company Member. This Agreement has been duly executed and delivered by Company and, assuming the due authorization, execution and delivery by each other Party, this Agreement constitutes a legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights


 
30 generally and by the availability of injunctive relief and other equitable remedies (the “Enforceability Exception”). Section 3.3 Capitalization. (a) The number and type of authorized, issued and outstanding Equity Interests of Company and each of the Blockers, the class thereof, and the holders thereof as of the date hereof is set forth in Section 3.3(a) of the Disclosure Schedule and all such Equity Interests have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record and beneficially as of the date hereof by the Sellers or, with respect to Company Interests that are not Purchased Interests, the Blockers, in each case as set forth in Section 3.3(a) of the Disclosure Schedule. Immediately after the Closing, Buyer will own all of the outstanding Purchased Interests and Blocker Interests free and clear of any Liens or any other restrictions on transfer, other than restrictions on transfer arising under applicable securities Laws or as set forth in Section 3.3(a) of the Disclosure Schedule. (b) Except as set forth in Section 3.3(b) of the Disclosure Schedule, (i) there are no outstanding or authorized (A) options, warrants, convertible securities or other rights, arrangements or commitments of any character relating to membership interests or any other Equity Interests which obligate Company or the Blockers to issue or sell any membership interests or other Equity Interests of Company or the Blockers or (B) equity appreciation, phantom equity, profit participation or similar rights with respect to Company or the Blockers and (ii) there are no voting trusts, member agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of the Purchased Interests and the Blocker Interests. The Purchased Interests and the Blocker Interests are uncertificated. Except as set forth in Section 3.3(b) of the Disclosure Schedule, Company and the Blockers have not adopted, sponsored or maintained any equity-based or profits interest plan or any other plan or agreement providing for equity compensation to any Person. Section 3.4 Subsidiaries; Investments. (a) Section 3.4(a) of the Disclosure Schedule sets forth a true, correct and complete list of all Subsidiaries of Company, including such Subsidiary’s name, authorized Equity Interests, the number and type of its issued and outstanding Equity Interests, and the current ownership of such Equity Interests. (b) Except as listed on Section 3.4(a) of the Disclosure Schedule, none of Company, any of its Subsidiaries or the Blockers owns, of record or beneficially, any direct or indirect equity or other ownership, capital, voting or participation interest or any right (contingent or otherwise) to acquire the same in any Person. (c) Each Subsidiary of Company (i) is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization or formation and, except as would not be material to the Company Members taken as a whole, all other jurisdictions in which its ownership of property or conduct of business requires it to be qualified and (ii) possesses all requisite organizational power and authority to own, operate, lease and license its properties, to carry on its business as now conducted and to consummate the Transaction.


 
31 (d) All of the issued and outstanding Equity Interests of each Subsidiary of Company have been duly authorized and validly issued, and are fully paid and non-assessable. Company or one or more of its Subsidiaries owns (beneficially and of record) all of the outstanding Equity Interests of the Subsidiaries of Company, free and clear of any Liens, other than restrictions on transfer arising under applicable federal and state securities Laws. Except as set forth in Section 3.4(d) of the Disclosure Schedule, there are no outstanding or authorized (i) options, warrants, convertible securities or other rights, arrangements or commitments of any character relating to membership interests or any other Equity Interests which obligate any Subsidiary of Company to issue or sell any membership interests or other Equity Interests of the Subsidiaries of Company or (ii) equity appreciation, phantom equity, profit participation or similar rights with respect to the Subsidiaries of Company. Except as set forth in Section 3.4(d) of the Disclosure Schedule, the Subsidiaries of Company have not adopted, sponsored or maintained any equity- based or profits interest plan or any other plan or agreement providing for equity compensation to any Person. (e) The register of the owners of Equity Interests of each Subsidiary of Company and all transfer records related thereto, and all other records related to the current and prior owners of each Subsidiary of Company have been made available to Buyer, are complete and correct and have been maintained in accordance with all applicable Laws. Section 3.5 Non-Contravention; Governmental Consents. (a) Neither the execution, delivery or performance by any Company Member of this Agreement or any Ancillary Agreement to which any Company Member is a party, nor the consummation of the Transaction, will, with or without the giving of notice or the lapse of time or both (i) contravene, conflict with, or result in a material violation of any Law or Order binding upon or applicable to the Company Members or by which any property or asset of a Company Member is bound or affected, (ii) materially violate any provision of the Organizational Documents of the Company Members, or (iii) (A) except as set forth on Section 3.5(a)(iii) of the Disclosure Schedule, require any material consent or material approval under, (B) result in any material breach of or any loss of any benefit under, (C) constitute a material default (or an event which with notice or lapse of time or both would become a material default) under, or (D) give to others any right of termination, vesting, amendment, acceleration or cancellation of, any right or obligation under any Material Contract, Real Property Lease or material Company Permit, or (iv) result in the creation of any material Lien (other than any Permitted Lien) upon any properties, assets or rights of any Company Member. (b) Except for (i) compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) or any other Filing made pursuant to any other Antitrust Law and (ii) Governmental Entity Approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Company Members to consummate the Transaction, there are no Governmental Entity Approvals required in connection with Company’s execution and delivery of this Agreement or any Ancillary Agreement to which any Company Member is a party, the performance by any Company Member of its respective obligations hereunder or thereunder and the consummation of the Transaction.


 
32 Section 3.6 Financial Statements; Undisclosed Liabilities. (a) Section 3.6(a) of the Disclosure Schedule contains true and complete copies of Company’s (i) consolidated audited financial statements consisting of the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2022 and December 31, 2021 and the related statements of operations, members’ equity and cash flows for the years then ended (the “Audited Financial Statements”) and (ii) consolidated unaudited financial statements consisting of the consolidated unaudited balance sheet (the “Latest Balance Sheet”) of Company and its Subsidiaries as of December 31, 2023 (the “Latest Balance Sheet Date”) and the related consolidated unaudited statements of operations, members’ equity and cash flows for the twelve- month period then ended (the “Interim Financial Statements” and together with the Audited Financial Statements, the “Financial Statements”). The Financial Statements have been prepared from, and are consistent with, the books and records of Company and its Subsidiaries and in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (none of which would be material, individually or in the aggregate) and the absence of notes (that, if presented, would not differ materially from those included in the Audited Financial Statements), and, on that basis, present fairly, in all material respects, the financial condition of Company and its Subsidiaries as of the respective dates they were prepared and the results of the operations of Company and its Subsidiaries for the periods indicated. (b) Company and its Subsidiaries have established and maintained internal controls that are sufficient to provide reasonable assurances that transactions are properly recorded in their respective accounting records to permit the preparation of the Financial Statements in accordance with GAAP. There are no significant deficiencies in the financial reporting of any of Company or its Subsidiaries which are reasonably likely to materially impact the ability to record, process, summarize and report financial information. Since the Lookback Date, Company and its Subsidiaries have not received written notice, and Company and its Subsidiaries do not otherwise have Knowledge, (i) of any fraud that involves management or other employees of Company or its Subsidiaries who have a significant role in financial reporting, (ii) of any claim or allegation regarding any of the foregoing or (iii) from its independent accountants regarding any of the foregoing. (c) None of the Company Members has any liabilities that would be required to be reflected or reserved against on a balance sheet prepared in accordance with GAAP except: (i) those which are adequately reflected or reserved against on the Latest Balance Sheet as of the Latest Balance Sheet Date, (ii) those which have been incurred in the Ordinary Course of Business since the Latest Balance Sheet Date, (iii) those which will be included in the calculation of Purchase Price and set forth on the Estimated Closing Statement, and (iv) other liabilities which would not, individually or in the aggregate, be material to the Company Members, taken as a whole. (d) All of the Inventories of the Company and its Subsidiaries, whether or not reflected in the Interim Financial Statements, are usable in the Ordinary Course of Business, subject to any reserves for obsolescence included in the Latest Balance Sheet, as adjusted for the passage of time through the Closing Date in accordance with GAAP and past practices of the Company Members. None of the Inventories is slow-moving, obsolete, damaged or defective in any material respects, except for items that have been reserved for, written off or written down to


 
33 net realizable value in the Interim Financial Statements (other than write-offs, write-downs and reserves in the Ordinary Course of Business since the Latest Balance Sheet Date). All Inventories have been purchased or acquired by Company and its Subsidiaries in the Ordinary Course of Business and are valued according to GAAP at the lower of cost or market value on a first-in, first- out basis. (e) The accounts receivable of Company and its Subsidiaries reflected on the Latest Balance Sheet and the accounts receivable arising after the Latest Balance Sheet Date (i) have arisen from bona fide sales actually made or services actually performed in the Ordinary Course of Business, (ii) are subject to no setoffs, counterclaims or disputes outside of the Ordinary Course Business, and (iii) constitute only valid and collectible claims, subject to normal cash discounts accrued in the Ordinary Course of Business and except (A) to the extent of (x) any specific reserves against any such accounts receivable reflected in the Financial Statements or (y) any allowance for doubtful accounts reflected in the Financial Statements and (B) as would not reasonably be expected to be, individually or in the aggregate, material to the Company Members, taken as a whole. Section 3.7 Absence of Changes. (a) Since the Latest Balance Sheet Date through the date of this Agreement, except as otherwise required or contemplated by this Agreement, the Company Members have conducted their respective businesses in the Ordinary Course of Business in all material respects, (b) since the Latest Balance Sheet Date, there has not been a Material Adverse Effect, and (c) since the Latest Balance Sheet Date through the date of this Agreement, except as set forth on Section 3.7 of the Disclosure Schedule, no Company Member has: (a) amended or otherwise changed any Company Member’s Organizational Documents; (b) transferred, issued, pledged, encumbered, assigned, sold or disposed of any of its Equity Interests, or granted options, warrants or other rights to purchase or otherwise acquire, any shares of capital stock, membership interests or securities convertible, exchangeable or exercisable therefor of the Company Members or other Equity Interests of any Company Member, other than (i) in connection with the Pre-Closing Restructuring and (ii) Liens under the Credit Agreement that will be discharged at or prior to Closing; (c) effected any recapitalization, reclassification, reorganization or like change in the capitalization of any Company Member; (d) declared, set aside or paid any dividend or distribution in any property or redeemed, purchased, or otherwise acquired any of its Equity Interests (except for the repurchase of Equity Interests from employees or other service providers of the Company Members in connection with the termination of their services to the extent required by Contracts disclosed on the Disclosure Schedule); (e) (i) terminated any Material Contract or (ii) materially amended any Material Contract, in each case, except in the Ordinary Course of Business; (f) mortgaged, pledged or subjected to any Lien (other than a Permitted Lien) any portion of the material assets of any Company Member;


 
34 (g) sold, transferred, assigned, licensed or otherwise disposed of any Company Member’s material assets valued at more than $500,000 in the aggregate except sales of inventory in the Ordinary Course of Business; (h) adopted or materially amended any Company Benefit Plan, except for the renewal of existing Company Benefit Plans in the Ordinary Course of Business or pursuant to applicable Laws; (i) granted to any officer, manager, director, employee or other individual service provider whose target annual compensation is in excess of $150,000 any material increase in compensation or benefits, except in connection with ordinary course annual salary or wage increases or as required by Company Benefit Plans in effect as of the date hereof; (j) incurred any Indebtedness or assumed any third-party Indebtedness, in each case, involving more than $250,000 in the aggregate, other than Indebtedness incurred under the Credit Agreement in the Ordinary Course of Business; (k) made any material change in any method of financial or Tax accounting, or financial or Tax accounting practice or policy (including any change in its annual accounting period) other than those required by GAAP or Tax Law or made, revoked or amended any material Tax election, entered into any closing agreement or settlement in respect of material Taxes, conceded any material claim or assessment in respect of material Taxes or filed any amended material Tax Return; (l) acquired by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person, or otherwise acquired any assets that are valued, individually or in the aggregate, in excess of $500,000, except for acquisitions that would be classified as capital expenditures; (m) made any capital expenditure (or series of related capital expenditures) either involving more than $500,000 or outside the Ordinary Course of Business; (n) materially accelerated the invoicing of customers or the collection of accounts receivable outside the Ordinary Course of Business; (o) materially delayed or postponed the payment of accounts payable or any other Liabilities outside the Ordinary Course of Business; (p) made any loan in excess of $25,000 in the aggregate to any of its directors, officers or employees other than travel or expense advances made in the Ordinary Course of Business; (q) entered into any employment Contract or collective bargaining agreement or amended or modified the terms of any existing such Contract; (r) experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $250,000;


 
35 (s) made or pledged to make any charitable contribution; (t) made any loans or advances of money, other than (i) loans or advances between Company Members or (ii) loans or other transactions permitted under clause (p) above; or (u) authorized any of the foregoing, or committed or agreed to take actions, to do any of the foregoing, other than as contemplated hereunder. Section 3.8 Litigation. As of the date of this Agreement, except as set forth on Section 3.8 of the Disclosure Schedule, there are no material Actions pending or, to Company’s Knowledge, threatened against any Company Member (and no such Actions have been pending against any Company Member at any time since the Lookback Date). As of the date of this Agreement, no Company Member is a party or subject to, bound by or in default under, any Order that would materially interfere with the conduct of the business of any Company Member as presently conducted or prevent, materially delay or materially impair the consummation of the Transaction. Section 3.9 Compliance With Laws; Permits. (a) Except as set forth on Section 3.9(a) of the Disclosure Schedule, each Company Member is and, since the Lookback Date has been, in compliance in all material respects with all applicable Laws and Orders. Except as set forth on Section 3.9(a) of the Disclosure Schedule, since the Lookback Date, no written notices have been received by, and no claims have been filed against, any Company Member alleging a violation of any Law or Order and the Company Members have not been subject to any adverse inspection, finding, investigation, penalty, assessment, audit or other compliance or enforcement action. (b) No Company Member, any of their respective directors, officers, managers, or, to Company’s Knowledge, any of their respective employees, distributors, resellers, representatives, sales intermediaries or other third parties has, since the Lookback Date, materially violated any Sanctions or Customs & Trade Laws, or Laws relating to anti-money laundering. There are no allegations, investigations, inquiries, claims, enforcement proceedings or litigation by any Governmental Entity with respect to any alleged material violation by a Company Member of any applicable Sanctions, Customs & Trade Laws, or Laws relating to anti-money laundering. Since the Lookback Date, each Company Member has at all times had in place controls and systems reasonably designed to ensure compliance in all material respects with Sanctions and Customs & Trade Laws. There are no pending or, to the Knowledge of Company, threatened material claims against any Company Member with respect to Sanctions, Customs & Trade Laws, or any Laws relating to anti-money laundering. (c) No Company Member and none of the directors, administrators, officers, managers, board of directors or employees of any Company Member is a Sanctioned Person or a Restricted Person. No Company Member has had any material transactions, business or financial dealings that benefited or, directly or indirectly, involved a Sanctioned Person or Restricted Person in violation of Sanctions or Customs & Trade Laws.


 
36 (d) Each Company Member holds all material governmental licenses, authorizations, permits, consents and approvals, and has completed all material filing and registration obligations, necessary for (i) the operation of the businesses of such Company Member as presently conducted or (ii) for the ownership, use, development, maintenance or operation of any properties or assets of a Company Member (the “Company Permits”), a listing of which is set forth on Section 3.9(d) of the Disclosure Schedule. Each Company Member is in compliance in all material respects with the terms of the Company Permits. Since the Lookback Date, no Governmental Entity has given written notice to any Company Member that it intends to revoke, suspend, not renew or adversely modify any Company Permit. (e) To the extent that a Company Member has since the Lookback Date marketed or offered for sale in commerce any product with a “Made in America” or “Made in the USA” label, or made any other express or implied claim that a product is Made in the USA, to the Company’s Knowledge, the Company has complied in all material respects with the U.S. Federal Trade Commission’s Enforcement Policy Statement on U.S. Origin Claims. Section 3.10 Material Contracts. (a) Section 3.10(a) of the Disclosure Schedule sets forth by applicable subsection or subclause, a list of each Contract of the following types in effect as of the date of this Agreement to which any Company Member is a party or is otherwise bound or has rights or receives benefits under (including the title, date and name of the parties to such Contract): (i) which requires or will require any payments by or on behalf of any Company Member in excess of $1,000,000 during the current or next fiscal year; (ii) which provides for any Company Member to receive any payments in excess of $1,000,000 during the current or next fiscal year; (iii) which contains covenants restricting the ability of any Company Member to compete, solicit any Person, or engage in any line of business or geographical area, or which grants exclusive rights to any Person; (iv) which grants any Company Member an Equity Interest in any partnership, joint venture or other similar arrangement involving a sharing of profits, losses, costs or liabilities with any other Person or involving sharing of Equity Interests; (v) pursuant to which any Company Member (A) licenses or is granted rights in Intellectual Property and/or IT Systems from a third party or (B) licenses or grants rights in its owned Intellectual Property to third parties, excluding Incidental Licenses; (vi) which relates to Company Indebtedness or under which a Company Member has imposed a Lien on any material assets, tangible or intangible (other than Permitted Liens), securing obligations, in the case of this clause (vi), in excess of $500,000 in the aggregate;


 
37 (vii) which involves any collective bargaining agreement or other Contract with any labor organization, union or association to which any Company Member is a party; (viii) which involves the disposition or acquisition of Equity Interests or material assets (other than the sale of inventory in the Ordinary Course of Business) to which a Company Member is a party or is otherwise bound, entered into by a Company Member since the Lookback Date; (ix) which relates to any settlement of litigation with, or an Order of, a Governmental Entity since the Lookback Date; (x) which is with a Material Supplier or a Material Customer; (xi) which involves any agreement between or among any Company Member, on the one hand, and Seller or any of its Affiliates (other than a Company Member) or any current or former officer, director or manager of Seller or any of its Affiliates (other than a Company Member), on the other hand; (xii) which provides any customer of a Company Member with (A) discounts, allowances, rebates or other incentives or (B) pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers of such Company Member, including any Contract containing “most favored nation” provisions; (xiii) which involves the lease of equipment or other personal property to or from any Person and requires or will require any payments by or on behalf of any Company Member in excess of $500,000 during the current or next fiscal year; (xiv) which relates to the employment or engagement of any officer, Company Employee or independent contractor that provides annual cash compensation in excess of $150,000 per year (other than Company Benefit Plans); (xv) which relates to any sales representative or agency agreement, brokers agreement or dealer agreement or other Contract relating to the sale or distribution of products or services to or by other Persons; (xvi) which involves any Company Member advancing or loaning any Person amounts in the aggregate exceeding $100,000; or (xvii) pursuant to which a Governmental Entity is a party. (b) Sellers have delivered or made available to Buyer a true and complete copy of each written Contract (as amended to date) required to be set forth in Section 3.10(a) of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral Contract required to be set forth in Section 3.10(a) of the Disclosure Schedule (collectively, the “Material Contracts”). Except as set forth in Section 3.10(b) of the Disclosure Schedule, (i) no Company Member (and, to the Knowledge of Company, no other party thereto) is in material default, and no Company Member has received written notice of an alleged material default, under


 
38 any Material Contract, (ii) each of the Material Contracts is in full force and effect and is a valid, binding and enforceable obligation of the applicable Company Member, and to the Knowledge of Company, of the other parties thereto, subject to the Enforceability Exception, (iii) the Company Members have performed all material obligations required to be performed by them to date under the Material Contracts and are not (with or without the lapse of time or the giving of notice, or both) in material breach thereunder, and (iv) no Company Member has received any written notice of termination with respect to, and, to the Knowledge of Company, no party has threatened in writing or provided written notice of its intention to terminate, any Material Contract. Section 3.11 Real Property. (a) Section 3.11(a) of the Disclosure Schedule sets forth the address and legal description of each parcel of Owned Real Property and the applicable Company Member that is the owner thereof, including with respect to Carlisle (Meizhou) Rubber Manufacturing Co., Ltd. (卡莱(梅州)橡胶制品有限公司) the term of ownership. Except as set forth on Section 3.11(a) of the Disclosure Schedule, Company or one of its Subsidiaries has good, valid and marketable fee simple title to all Owned Real Property free and clear of all Liens, except Permitted Liens. Neither Company nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof. To the Knowledge of Company, there are no facts, circumstances, or conditions that are reasonably likely to result in any Liens, except Permitted Liens, against, any possession or occupancy of, or claims to a right or interest in, any of the Owned Real Property. There are no Actions, rights of first refusal or options to acquire, lease, sell or dispose of any Owned Real Property or any portion thereof. Except as otherwise disclosed in Section 3.11(a) of the Disclosure Schedule, Company or one of its Subsidiaries has exclusive possession of each Owned Real Property. (b) Section 3.11(b) of the Disclosure Schedule sets forth the address of each parcel of Leased Real Property and a list of each real property lease or sublease entered into by Company or any of its Subsidiaries for each parcel of Leased Real Property (collectively, the “Real Property Leases”), including the title, date and name of the parties to such Real Property Lease. Sellers have delivered to Buyer a true and complete copy of each Real Property Lease. Except as set forth in Section 3.11(b) of the Disclosure Schedule, with respect to each Real Property Lease: (i) none of Company or any of its Subsidiaries or, to the Knowledge of Company, any other party is in material breach of or default thereunder, (ii) each Real Property Lease is legal, valid, binding, enforceable in full force and effect, and is a valid, binding and enforceable obligation of Company and its Subsidiaries, and to the Knowledge of Company, of the other parties thereto, subject to the Enforceability Exception, (iii) Company and its Subsidiaries have performed all material obligations required to be performed by them to date under such Real Property Lease, (iv) neither Company nor any of its Subsidiaries has received any written notice of termination with respect to, and, to the Knowledge of Company, no party has threatened, or provided notice of its intent, to terminate, any such Real Property Lease, (v) Company and its Subsidiaries’ possession and quiet enjoyment of the Leased Real Property under such Real Property Lease has not been materially disturbed and there are no material disputes with respect to such Real Property Lease, (vi) neither Company nor its Subsidiaries have assigned the Real Property Lease or subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof; (vii) neither Company nor its Subsidiaries have collaterally assigned or granted any other Lien in such Real Property Lease or any interest therein; and (viii) neither Company nor its


 
39 Subsidiaries have made any material improvements or alterations to the Leased Real Property which must be removed at a material cost upon the expiration or termination of the applicable Real Property Lease. (c) The Owned Real Property and the Leased Real Property comprise all of the real property used in, or otherwise related to, the business conducted by Company and its Subsidiaries. Except as otherwise disclosed in Section 3.11(c) of the Disclosure Schedule, all buildings, structures, fixtures, building systems and equipment, and all components thereof, including the roof, foundation, load-bearing walls and other structural elements thereof, heating, ventilation, air conditioning, mechanical, electrical, plumbing and other building systems, environmental control, remediation and abatement systems, sewer, storm and waste water systems, irrigation and other water distribution systems, parking facilities, fire protection, security and surveillance systems, and telecommunications, computer, wiring and cable installations, included in the Owned Real Property or Leased Real Property (the “Improvements”) are in good condition and repair (ordinary wear and tear excepted) and sufficient for the operation of the business conducted by Company and its Subsidiaries, in each case, in all material respects. Except as otherwise disclosed in Section 3.11(c) of the Disclosure Schedule, there are no structural deficiencies or latent defects affecting, in any material respect, any of the Improvements. To the Knowledge of Company, no part of the Owned Real Property or Leased Real Property is subject to any building, health, environmental, safety, sanitation or use restrictions that restrict or prevent the use of the Owned Real Property or Leased Real Property for the operation of the business of Company and its Subsidiaries as currently conducted thereon. The Owned Real Property and Leased Real Property are adequately serviced in any material respect by utilities for the operation of the business of Company and its Subsidiaries as currently conducted thereon. To the Knowledge of Company, the classification of each parcel of Owned Real Property or Leased Real Property under applicable zoning Laws expressly permits the use and occupancy of such parcel and the operation of the business of Company and its Subsidiaries as currently conducted thereon (and not merely as a prior non-conforming use or similar designation), and permits the Improvements located thereon as currently constructed, used and occupied. There are no pending or, to the Knowledge of Company, threatened condemnation, expropriation or eminent domain proceedings that affect any Owned Real Property or Leased Real Property. Section 3.12 Employee Benefits. (a) As used herein, the term “Company Benefit Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)) and each other material equity incentive, equity or equity-based compensation, severance, employment, change-in-control, retention, fringe benefit, bonus, incentive, savings, retirement, deferred compensation or other benefit plan, agreement, program, policy or Contract, whether or not subject to ERISA, whether funded or unfunded, whether written or unwritten, under which any current or former employee, service provider, officer or director of Company or any of its Subsidiaries has any present or future right to benefits and which are entered into, contributed to, sponsored by or maintained by Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries have any Liability; provided, however, that, the term Company Benefit Plan will not include any plan or program that is mandatory under applicable Law or to which there is no outstanding benefit right owed. Section 3.12(a) of the Disclosure Schedule lists each material Company Benefit Plan. Company has made available to Buyer with


 
40 respect to each material Company Benefit Plan (in each case to the extent applicable): (i) a copy of the Company Benefit Plan document, including all currently effective amendments thereto (and to the extent that a written copy does not exist, a summary of such Company Benefit Plan), (ii) the most recent summary plan description and all currently effective summaries of material modifications with respect to the Company Benefit Plan, (iii) the most recently received IRS determination or opinion letter, (iv) the most recent Form 5500 annual report; (v) the most recent actuarial valuation reports or financial statements, (vi) to the extent available, trust agreements, insurance contracts, or other funding vehicles associated with each Company Benefit Plan, and (vii) non-discrimination testing and top-heavy testing reports for the most recently completed year. (b) Except as disclosed in Section 3.12(b) of the Disclosure Schedule, (i) to the Knowledge of Company, neither Company nor any of its ERISA Affiliates have ever sponsored, contributed to or had an obligation to contribute to or have any liability (whether accrued, absolute, contingent or otherwise) regarding: (A) a plan that is subject to Title IV of ERISA, Section 302 of ERISA, or Section 412 of the Code or (B) a multiemployer plan, as defined in Section 3(37) of ERISA and (ii) neither Company nor any of its Subsidiaries have any Liability regarding: (A) a plan sponsored by two or more contributing sponsors at least two of whom are not under common control (within the meaning of Section 4063 of ERISA); (B) a multiple employer plan, as defined in Section 413(c) of the Code; (C) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA; (D) a plan or trust maintained in connection with Sections 501(c)(9) or 501(c)(17) of the Code; or (E) a plan that provides retiree medical, hospital, or prescription drug benefits to any current or former employee, officer, director, or service provider of Company or its Subsidiaries, in each case, following a termination of service with Company or its Subsidiaries, except to the extent required by Law or pursuant to a Company Benefit Plan set forth on Section 3.12(a) of the Disclosure Schedule. (c) As to each Company Benefit Plan: (i) Except as disclosed in Section 3.12(c)(i) of the Disclosure Schedule, each Company Benefit Plan is in material compliance with and has been operated in all material respects in accordance with all applicable Laws, including ERISA, the Code and the Canadian Tax Act. (ii) Except as disclosed in Section 3.12(c)(ii) of the Disclosure Schedule, each Company Benefit Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS or may rely upon a favorable opinion letter from the IRS as to its qualified status and, to the Knowledge of Company, no event has occurred since the date of such determination or opinion that would reasonably be expected to adversely affect such determination or opinion. (iii) Each Company Benefit Plan that purports to qualify as a particular type of plan under the Canadian Tax Act or that has or purports to have Tax-favoured treatment, meets all material requirements in effect under the Canadian Tax Act for such qualification or treatment and has complied in all material respects with the provisions of the Canadian Tax Act and the administration practices of the CRA applicable to that type of plan or treatment. To the knowledge of Company, no event has occurred respecting any Company Benefit Plan which could reasonably be expected to adversely affect the Tax-


 
41 favoured status of the Company Benefit Plan or its qualifications as a particular type of plan under the Canadian Tax Act. (iv) Except as disclosed in Section 3.12(c)(iv) of the Disclosure Schedule, no material Actions (other than routine claims for benefits in the Ordinary Course of Business) are pending or, to the Knowledge of Company, threatened with respect to any Company Benefit Plan, and to the Knowledge of Company, no fact or event exists that would reasonably give rise to any such Action (other than routine claims for benefits in the Ordinary Course of Business). (d) All contributions, premiums, or payments required to be made with respect to each Company Benefit Plan have been made on or before their due date (including any extensions) and within the applicable time required by such Company Benefit Plan and Law in all material respects. All such contributions have, where applicable, been fully deducted for income tax purposes, and to the Knowledge of Company, no such deduction has been challenged or disallowed by any Governmental Entity. (e) Company and each Company Benefit Plan is in compliance in all material respects with all applicable requirements of the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010, as amended. Company and its Subsidiaries are not liable, directly or indirectly, for any employer shared responsibility payments or other penalties or taxes on account of any employee, former employee, or service provider under Sections 4980H, 6055 and 6056 of the Code. (f) Each Company Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in all material respects in compliance with, and is in all material respects in documentary compliance with, Section 409A of the Code. (g) Except as disclosed in Section 3.12(g) of the Disclosure Schedule, neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) result in any parachute payments as defined in Section 280G(b)(2) of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes or other amounts under Section 4999 or 409A of the Code. (h) Except as disclosed in Section 3.12(h) of the Disclosure Schedule, there have been no material prohibited transactions (as defined in Section 4975 of the Code and Section 406 of ERISA) with respect to any Company Benefit Plan for which no individual or class exemption exists. (i) Each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms, without liability to any other party (other than administration expenses in the Ordinary Course of Business or with respect to benefits previously earned, vested, or accrued thereunder). (j) Except as disclosed in Section 3.12(j) of the Disclosure Schedule, the consummation of the Transaction will not alone (and not in combination with any other event) (i)


 
42 entitle any current or former employee, director, service provider or officer of Company or any of its Subsidiaries to any severance pay or any other material payment, (ii) accelerate the time of payment or vesting of, or materially increase the amount of compensation due to, any such employee, director, service provider or officer, (iii) result in the triggering or imposition of any restrictions or limitations on the right of Company or any of its Subsidiaries to amend or terminate any Company Benefit Plan; or (iv) limit or restrict the ability of Buyer or its Affiliates to merge, amend, or terminate any Company Benefit Plan, in each case, as a result of the execution of this Agreement. Section 3.13 Labor and Employment Matters. (a) Except as set forth in Section 3.13(a) of the Disclosure Schedule, neither Company nor any of its Subsidiaries is a party to, or bound by, any labor agreement, collective bargaining agreement or any other labor-related Contract with any labor union, trade union, labor organization, works council, employee association or similar entity, nor have any commitments been made to recognize any labor union, trade union, labor organization, works council, employee association or similar entity. Except as set forth in Section 3.13(a) of the Disclosure Schedule, no employees of Company or any of its Subsidiaries are represented by any labor union, trade union or labor organization with respect to their employment with Company or any of its Subsidiaries. No labor union, trade union, labor organization or group of employees of Company or any of its Subsidiaries has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other Governmental Entity. To the Knowledge of Company, there are no organizing activities with respect to Company or any of its Subsidiaries. There has been no actual or, to the Knowledge of Company, threatened material arbitrations, material grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting Company or any of its Subsidiaries. Neither Company nor any of its Subsidiaries is engaged in, or since the Lookback Date, has engaged in any unfair labor practice, as defined in the National Labor Relations Act or other applicable Laws. (b) Except as set forth on Section 3.13(b) of the Disclosure Schedule, since the Lookback Date, neither Company nor any of its Subsidiaries has received any written notice of intent by any Governmental Entity responsible for the enforcement of labor or employment Laws to conduct a material investigation relating to Company or any of its Subsidiaries and, to the Knowledge of Company, no such investigation is in progress. (c) Since the Lookback Date, neither Company nor any of its Subsidiaries has (i) effectuated (A) a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”)) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of Company or any of its Subsidiaries or (B) a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of Company or any of its Subsidiaries or (ii) been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar Law. (d) Except as set forth on Section 3.13(d) of the Disclosure Schedule, since the Lookback Date, Company and its Subsidiaries have been at all times and are currently in


 
43 compliance in all material respects with all applicable Laws respecting labor relations, employment and employment practices, terms and conditions of employment, and wages and hours. Since the Lookback Date, in accordance with applicable Law, each current and former employee of Company and its Subsidiaries is, and has been, (i) authorized to work in the country in which the Person performs such services and for the entity by which they are employed, (ii) properly classified as an employee or independent contractor, (iii) if an employee, properly classified as an exempt or non-exempt employee under the Fair Labor Standards Act or other applicable wage and hour Law, (iv) paid all wages (including any required minimum wages, overtime pay, and waiting time penalties), benefits, and other compensation for all services performed by such Person, and (v) if a U.S. employee, accurately completed all proper employment verification and authorization documentation, including proper maintenance of such documentation during employment and post-termination, as required by Law. (e) Except as set forth on Section 3.13(e) of the Disclosure Schedule, there are no pending or, to the Knowledge of Company, threatened labor or employment Actions against Company or any of its Subsidiaries, including, but not limited to, any claims under any worker’s compensation policy or claims alleging unlawful harassment, employment discrimination, retaliation, whistleblowing, unfair labor practices, unpaid wages, unlawful wage or immigration practices, wrongful termination, unlawful denials of leaves of absence, misclassification of independent contractors, or unlawful Tax withholding practices regarding Company and its Subsidiaries under applicable Law. (f) A list of all employees of Company and its Subsidiaries as of January 2, 2024, including each such Person’s name, job title or function and job location, credited service date, full- or part-time status, exempt or non-exempt status under the Fair Labor Standards Act, hourly rate of pay or annualized base salary (as applicable), vacation and/or paid time off accrual amounts, bonus, commission and other incentive compensation paid to such employee in the calendar year 2023 and any other forms of compensation, each current Employee Benefit Plan in which such employee participates or is eligible to participate, visa status (if applicable, including the type of visa and expiration date) and leave of absence status (if applicable, including type of leave and expected return date, if known), has been made available to Buyer. (g) All Persons characterized and treated by Company or its Subsidiaries as independent contractors or consultants are properly treated as independent contractors under all applicable Laws. None of the current or previous independent contractors currently or previously engaged by or performing services for Company or its Subsidiaries meets or has met the conditions to be reclassified as an employee of Company or any of its Subsidiaries. Section 3.14 Environmental Matters. Except as set forth in Section 3.14 of the Disclosure Schedule: (a) Company and its Subsidiaries, the business of Company and its Subsidiaries and the condition of the properties and assets owned by Company and its Subsidiaries are, and at all times since the Lookback Date, have been, in compliance in all material respects with all requirements of applicable Environmental Laws.


 
44 (b) Company and its Subsidiaries at all times since the Lookback Date have possessed and complied in all material respects with all terms and conditions of applicable Environmental Permits required under Environmental Laws for the occupation of the Owned Real Property and the Leased Real Property, the ownership and use of their other properties and assets, and to operate the businesses of Company and its Subsidiaries as currently operated. (c) To the Knowledge of Company, none of the following exists or existed at, on, in or under any portion of the Owned Real Property or Leased Real Property during the time of Company or its Subsidiaries’ ownership or leasehold: (i) underground storage tanks, (ii) asbestos-containing material in any form or condition, (iii) polychlorinated biphenyls, or (iv) landfills, surface impoundments, or disposal areas, or (v) per- or polyfluoroalkyl substances, in each case, as would reasonably be expected to result in a material liability of Company or any of its Subsidiaries. (d) Company and its Subsidiaries have not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including any Hazardous Material, exposed any employee or other individual to any substance or condition, including any Hazardous Material, or owned or operated any property or facility (and no such property or facility is contaminated by any such substance) in a manner that has given or would give rise to material Liabilities, including any material Liability for response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney fees, under any Environmental Laws. (e) Since the Lookback Date, neither Company nor any of its Subsidiaries has received any written or, to the Knowledge of Company, oral, notification alleging that it is materially liable, or requesting information, pursuant to any applicable Environmental Law for which such alleged liability or request for information has not been fully resolved with the appropriate Governmental Entity or Person. Company has made available to Buyer all material data, reports, investigations or studies in Company’s possession, custody or reasonable control regarding (1) any Hazardous Material which at present is located at, or emanating from any portion of the Leased Real Property, Owned Real Property or any real property previously owned or operated by Company or its Subsidiaries; or (2) actual or alleged violation of or compliance with Environmental Laws. (f) There are no material Actions arising under Environmental Laws pending or, to the Knowledge of Company, threatened against Company or any of its Subsidiaries, and no facts, events or conditions exist relating to the Owned Real Property, Leased Real Property or relating to past or present facilities, properties or operations of Company or its Subsidiaries that would reasonably be expected to give rise to any material Liability of Company or any of its Subsidiaries for any investigatory, remedial or corrective obligations pursuant to Environmental Laws, or give rise to any other material Liabilities pursuant to Environmental Laws, including any relating to onsite or offsite releases or threatened releases of Hazardous Materials, substances or wastes, personal injury, property damage or natural resources damage. (g) Company and its Subsidiaries have not, either expressly or by operation of law, assumed or undertaken any material Liability, including any obligation for corrective or remedial action, of any other Person under any Environmental Laws.


 
45 (h) Company and its Subsidiaries have not entered into any consent decree, consent order or settlement agreement with any Governmental Entity or any other Person regarding any actual or alleged violation of, or Liability arising under, Environmental Laws for which Company and its Subsidiaries have material outstanding obligations. (i) Neither this Agreement nor the consummation of the Transaction will result in any obligations for site investigation or cleanup, or notification to or consent of any Governmental Authority or third parties, pursuant to the New Jersey Industrial Site Recovery Act or the Connecticut Property Transfer Law. (j) Neither Company nor any of its Subsidiaries has been identified as a “Potentially Responsible Party” at a Superfund or similar site in relation to any off-site disposal of wastes generated on-site for which the potential liability of Company or any of its Subsidiaries has not been fully resolved with the appropriate Governmental Entity or Person. Section 3.15 Insurance. (a) Section 3.15(a) of the Disclosure Schedule sets forth all material insurance policies to which Company or a Subsidiary is a party (the “Insurance Policies”). (b) The Insurance Policies are enforceable, subject to Enforceability Exceptions, and in full force and effect in all material respects and provide insurance in such amounts and against such risks as Company has reasonably determined to be prudent, taking into account the industries in which Company and its Subsidiaries operate, and as is sufficient to comply in all material respects with all applicable Laws and Contracts to which any Company Member is a party or is otherwise bound. Except as set forth in Section 3.15(b) of the Disclosure Schedule, each Insurance Policy will continue to be enforceable, subject to Enforceability Exceptions, and in full force and effect on identical terms immediately following the Closing. (c) None of Company nor any of its Subsidiaries is in material breach or material default (including with respect to its payment obligations) under any of the Insurance Policies, and neither Company nor any of its Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time, or both, would constitute such a material breach or material default, or permit termination or modification of, any of such Insurance Policies. (d) No written notice of cancellation or termination, other than pursuant to the expiration of any such Insurance Policy in accordance with the terms thereof, has been received with respect to any such Insurance Policy. Since the Lookback Date, neither Company nor any of its Subsidiaries has (i) received any written notice of denial of coverage or reservation of rights with respect to any pending or threatened claims against any such Insurance Policy or (ii) been refused any insurance or had its coverage limited by any insurance carrier to which it has applied for any insurance or with which it has carried insurance. (e) Except as set forth on Section 3.15(e) of the Disclosure Schedule, there are no material outstanding claims by Company or any of its Subsidiaries under the Insurance Policies. (f) Section 3.15(f) of the Disclosure Schedule describes any self-insurance arrangements effecting Company or any of its Subsidiaries.


 
46 Section 3.16 Taxes. Except as set forth in Section 3.16 of the Disclosure Schedule: (a) Each Company Member has timely filed or caused to be timely filed (taking into account extensions) all material Tax Returns required to be filed by it. All such Tax Returns are complete and accurate in all material respects. No Company Member is currently the beneficiary of any extension of time within which to file any Tax Return (other than any extension to file a Tax Return requested or obtained in the Ordinary Course of Business). All Taxes due and owing by the Company Members, whether or not shown on any Tax Return, have been timely paid. (b) There are no Liens for Taxes upon the assets of the Company Members other than Permitted Liens. (c) No deficiency for Taxes which has been proposed, asserted, assessed or reassessed in writing by any Tax Authority against any Company Member remains unpaid. There are no waivers or extensions of any statute of limitations currently in effect with respect to the assessment or collection of Taxes of the Company Members (other than as a result of any extension to file a Tax Return requested or obtained in the Ordinary Course of Business). There are no Tax Proceedings ongoing or pending or, to the Knowledge of Company, threatened, against the any Company Member. (d) Since January 1, 2021, all material Taxes which any Company Member is obligated to withhold from amounts paid or owing to any Company Employee, creditor, partner, owner, shareholder, non-resident or other third party have been withheld and, to the extent required by applicable Law, timely paid to the applicable Tax Authority. (e) No Company Member is a party to any Tax Sharing Agreement. (f) No Company Member has material Liability for the Taxes of any other Person (other than the Company Members) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee or successor, or (iii) by Contract (other than commercial Contracts not primarily relating to Taxes). (g) No Company Member has been a party to a “listed transaction,” as such term is defined in Section 6707A(c)(2) of the Code and Treasury Regulation Section 1.6011-4(b)(2). No Company Member has failed to disclose in its Tax Returns any information required by the provisions of the Treasury Regulations issued under Code Section 6011 with respect to any “reportable transaction” as that term is defined in Code Section 6707A(c) (or similar provisions of state, local or foreign Law). (h) Marastar Blocker and Tire Blocker are, and at all times since their respective formations have been, properly treated as an association taxable as corporations for U.S. federal Income Tax purposes. (i) As of the Closing Date, Company is properly treated as a partnership for U.S. federal Income Tax purposes. Company has not made an election pursuant to Section 301.7701-3 of the Treasury Regulations.


 
47 (j) Effective as of the date of its formation, CH Blocker made a valid election pursuant to Section 301.7701-3 to be treated as an association taxable as a corporation for U.S. federal Income Tax purposes. (k) Other than CFI and CEI, each Subsidiary of Company is, and at all times since its formation has been, properly treated as an entity disregarded as separate from its owner under any Law, including for U.S. federal Income Tax purposes. (l) For the entire tax year of Company and any Subsidiary of Company treated as a partnership for U.S. federal Income Tax purposes in which the Closing occurs, Company and any Subsidiary of Company treated as a partnership for U.S. federal Income Tax purposes has a valid election under Section 754 of the Code in effect. (m) No Company Member has made an election to report or pay the Tax Liability of such Company Member’s owners directly to a Tax Authority, where, absent such election, such Company Member would have had no Liability for such Taxes and such Company’s Member’s income or loss would have flowed through to its direct or indirect owners and be includable by such owners directly in computing their own Tax Liability (an “FTE Election”). (n) No Company Member has, nor has any Company Member ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country. (o) No Company Member has requested or been issued, and is not subject to, any private letter ruling from the IRS or comparable ruling of any state, local or foreign Tax Authority. No Company Member has granted a power of attorney with respect to any Taxes that is currently in effect. (p) No Company Member has ever been a party to, nor is any Company Member subject to any currently effective Tax holiday or Tax incentive or grant in any jurisdiction. (q) No Company Member will be required to include any item of income in, or to exclude any item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) use of the “installment method” as defined in Code Section 453 or open transaction disposition made on or prior to the Closing Date; (ii) any prepaid amount or advance payment received or paid on or prior to the Closing Date or deferred revenue realized or received on or prior to the Closing Date; (iii) change in method of accounting or use of an improper method of accounting; (iv) an agreement entered into with any Tax Authority (including a “closing agreement” under Code Section 7121 or any “gain recognition agreements” entered into under Code Section 367) on or prior to the Closing Date; (v) a closing agreement made prior to the Closing Date; or (vi) an election pursuant to Code Section 965(h). (r) The Pre-Closing Restructuring will be non-taxable to all parties (including all Company Members) and no Company Member will have an increase in its Tax liability for any Tax period solely as a result of the Pre-Closing Restructuring.


 
48 (s) No Company Member has extended, deferred, or delayed the payment of any Taxes under the CARES Act and COVID Relief Programs or otherwise as a result of COVID- 19 that remains outstanding or otherwise unsettled as of the Closing Date. (t) Marastar Blocker is not (and has not been within the applicable time period set forth in Code Section 897(c)) a “United States real property holding corporation” within the meaning of Code Section 897(c). (u) Neither: (i) fifty (50%) or more of the value of Company’s gross assets constitute U.S. real property interests; nor (ii) the value of Company’s U.S. real property interests combined with its cash and cash equivalents are 90% or more of the value of Company’s gross assets. No interest in Company is a United States real property interest as defined in Code Section 897(g) or Treasury Regulation Section 1.897-7T. (v) Blocker Seller 1 is not a United States person within Code Section 7701. (w) No Company Member has an obligation to file Tax Returns in a jurisdiction where such Company Member does not currently file Tax Returns. (x) All Company Members have timely filed all FinCEN Form 114 due prior to the Closing Date with respect to any reportable foreign financial accounts. (y) Except as set forth on Section 3.16(y) of the Disclosure Schedule, no Company Member has previously made any payment to an Affiliate that is not entitled to benefits under any applicable Tax treaty: (i) due to the “limitation on benefits” provision thereof; or (ii) due to any provision in an applicable Tax treaty denying benefits to payments made to or received by “hybrid” entities that are treated as disregarded entities for U.S. income tax purposes and as corporations or other entities under the laws of the applicable foreign country. (z) None of Sections 80 through 80.04, of the Canadian Tax Act have applied or will apply to any Company Member in respect of the last five (5) completed Tax years immediately preceding the Closing Date and the current Tax year through and including the Closing Date. No Company Member has any unpaid amounts that may be required to be included in income under Section 78 of the Canadian Tax Act for a Tax period (or portion thereof) ending after the Closing Date. (aa) For all periods prior to the Closing Date, all Company Members required to be registered for Quebec Sales Tax, Goods and Services Tax, Harmonized Sales Tax, Provincial Sales Tax and other value added or similar Taxes, have registered for such Taxes (collectively “Value Added Taxes”) and their respective registration numbers are set forth on Section 3.16(aa) of the Disclosure Schedule. Prior to the Closing Date, all input tax credits claimed by each Company Member with respect to any Value Added Tax, have been timely and correctly calculated and claimed. Each Company Member has timely collected, paid and remitted all Value Added Taxes collectible, payable and remittable prior to the Closing Date.


 
49 Section 3.17 Intellectual Property. (a) Company or one of its Subsidiaries owns all right, title and interest in, or has the right to use, pursuant to a license, sublicense or other Contract, all Intellectual Property required to operate in all material respects Company’s and its Subsidiaries’ businesses as presently conducted. Company and its Subsidiaries have taken all commercially reasonable action to maintain and protect each item of Intellectual Property that it owns or uses. As of the date hereof, (i) there are no pending Actions, and since the Lookback Date, neither Company nor any of its Subsidiaries has received, any written notice of any threatened Actions alleging a violation, misappropriation or infringement of the Intellectual Property of any other Person by Company or any of its Subsidiaries, (ii) the operation of Company’s and its Subsidiaries’ businesses as currently conducted does not misappropriate, infringe upon or otherwise violate the Intellectual Property of any other Person, and (iii) to the Knowledge of Company, except as set forth on Section 3.17(a) of the Disclosure Schedule, no other Person has violated, misappropriated or infringed any Intellectual Property owned by Company or any of its Subsidiaries. (b) Company or a Subsidiary of Company owns or has a valid right to use free and clear of all Liens (other than Permitted Liens), all Intellectual Property used in, held for use in, or otherwise necessary to conduct the business of Company and its Subsidiaries, including with respect to all products and services. (c) Section 3.17(c) of the Disclosure Schedule identifies each active United States and foreign patent, trademark, copyright and domain name issuance or registration owned by or filed in the name of Company or a Subsidiary along with the owner of each such patent, trademark, copyright or domain name, and identifies each pending patent application or application for registration which Company or a Subsidiary has made with respect to any Intellectual Property. Section 3.17(c) of the Disclosure Schedule also identifies each material unregistered trademark, service mark, trade name, corporate name, each social media account and each Software item that is owned or purported to be owned by Company and its Subsidiaries. (d) Except as set forth on Section 3.17(d) of the Disclosure Schedule, all Software owned or purported to be owned by Company and its Subsidiaries: (i) is operative for its intended purpose and, to the Knowledge of Company, free of any material defects and, to the Knowledge of Company, does not contain any viruses, worms, Trojan horses or similar programs that are designed to delete, disable, deactivate, interfere with or otherwise harm such Software and (ii) has been maintained by Company and its Subsidiaries in accordance with generally accepted industry standards. The provision, incorporation, linking, calling or other use of any Open Source Software in Software that is owned or purported to be owned by Company or its Subsidiaries does not obligate Company to disclose, make available, offer or deliver any portion of the source code to any third party (other than the applicable Open Source Software). All Software used by Company and its Subsidiaries is sufficient in all material respects for the operation of Company and its Subsidiaries’ business as presently conducted, and Company and its Subsidiaries have purchased a sufficient number of license seats for all Software. Company and its Subsidiaries have in their possession copies of all source code for all Software that is owned or purported to be owned by Company or its Subsidiaries. Company and its Subsidiaries have not disclosed, and Company and its Subsidiaries are not under any current or future obligation (including any contingent


 
50 obligation pursuant to an escrow arrangement or otherwise) to disclose, any source code of Software owned or purported to be owned by Company or its Subsidiaries to any Person. (e) Company and its Subsidiaries own or have a valid right to access and use the IT Systems and the IT Systems are adequate for, and operate and perform in all material respects as required in connection with, the operation of Company’s and its Subsidiaries’ business as presently conducted. Company and its Subsidiaries have taken commercially reasonable measures to maintain the performance and security of the IT Systems, and since the Lookback Date, there have been no failures, breakdowns, continued substandard performance or other adverse events affecting any IT Systems that have caused or, to the Knowledge of Company, would reasonably be expected to result in any material disruption or interruption in or to the use of such IT Systems or the conduct of the business of Company and its Subsidiaries that have not been remediated in all material respects. Company and its Subsidiaries have commercially reasonable back-up and disaster recovery arrangements in the event of a failure of the IT Systems. (f) Company and its Subsidiaries own or otherwise have sufficient right to use the know-how and trade-secrets (including formulas, forms, samples, lists, technical descriptions, drawings, equipment and tools) necessary to operate in all material respects the business of Company and its Subsidiaries consistent with past practice. Each employee of Company and its Subsidiaries that has participated in the development of Intellectual Property for Company and its Subsidiaries that is material to their respective businesses as presently conducted has executed a confidential information and invention assignment agreement, substantially in the form(s) delivered by Company and its Subsidiaries to Buyer, or Company or its Subsidiaries is considered the author by operation of applicable Law. Each independent contractor or consultant to Company or its Subsidiaries that has had access to any Intellectual Property owned or used by Company or its Subsidiaries that is considered material to their respective businesses as presently conducted has entered into an agreement containing appropriate confidentiality and invention assignment provisions in favor of Company or its Subsidiaries. To the Knowledge of Company, no current or former officer, director, employee, independent contractor or consultant of Company or its Subsidiaries is in violation of such confidential information and invention assignment agreement or any prior employment or proprietary information agreement with any other Person. Section 3.18 Brokers. Other than UBS Securities LLC, there is no investment banker, broker, finder or other intermediary who has been retained by or is authorized to act on behalf of any Company Member that is entitled to any fee or commission in connection with the Transaction. Section 3.19 Related Party Transactions. Except (x) as set forth in Section 3.19 of the Disclosure Schedule and (y) for employment relationships and compensation, benefits, travel advances and employee loans in the Ordinary Course of Business, no current or former officer, director, manager, employee or equity holder of the Company Members, or any Affiliate thereof (other than the Company Members) or, to the Knowledge of Company, any member of any such Person’s immediate family: (a) has any interest in any asset, real or personal, owned or leased by the Company Members or used in connection with the business of the Company Members; (b) provides any service, property, asset or loan to the Company Members; or (c) is engaged in any Contract with any Company Member (other than payments made to, and other compensation provided to, employees, officers and directors (or equivalent) in the Ordinary Course of Business).


 
51 Section 3.20 Customers and Suppliers. (a) Section 3.20(a) of the Disclosure Schedule sets forth the top twenty customers of Company and its Subsidiaries (including distributors) (each, a “Material Customer”), based on the dollar amount of consolidated revenues earned by Company and its Subsidiaries for each of the two most recent fiscal years, and the revenues generated from such customers. Except as set forth on Section 3.20(a) of the Disclosure Schedule, no such Material Customer has terminated or materially and adversely modified its relationship with a Company Member in the past 12 months and no Company Member has received any written, or to the Knowledge of Company, oral notice that (x) any Material Customer has terminated, intends to terminate or materially and adversely modify its relationship with a Company Member or (y) any Material Customer has requested a material decrease in the prices charged by a Company Member, other than in the Ordinary Course of Business or pursuant to the terms of the underlying Contract; provided that the fact that any particular Contract or commitment with any Material Customer is scheduled to expire shall not, in and of itself, constitute notice of any of the foregoing matters so long as the Material Customer has not provided notice that it does not intend to renew such Contract or commitment. (b) Section 3.20(b) of the Disclosure Schedule sets forth the top twenty vendors, suppliers, resellers, service providers or other similar business relation of Company and its Subsidiaries (each, a “Material Supplier”), based on the dollar amount of consolidated amounts paid by Company and its Subsidiaries for goods or services from such Material Supplier for each of the two most recent fiscal years, the amounts owing to each such Material Supplier, and whether such amounts are past due. Except as set forth on Section 3.20(b) of the Disclosure Schedule, no such Material Supplier has terminated or materially and adversely modified its relationship with a Company Member in the past 12 months and no Company Member has received any written, or to the Knowledge of Company, oral notice that (x) any Material Supplier has terminated, intends to terminate or materially and adversely modify its relationship with a Company Member or (y) any Material Supplier has requested a material increase in the prices charged to a Company Member, other than in the Ordinary Course of Business or pursuant to the terms of the underlying Contract; provided that the fact that any particular Contract or commitment with any Material Supplier is scheduled to expire shall not, in and of itself, constitute notice of any of the foregoing matters, so long as such Material Supplier has not provided notice that it does not intend to renew such Contract or commitment. Section 3.21 Title to Assets. (a) Each of Company and its Subsidiaries has good and valid title to, or a valid leasehold interest in or other valid right to use, all material assets and properties used in the operation of their business, including all material assets reflected in the Interim Financial Statements and all of the assets purchased or otherwise acquired by Company and its Subsidiaries since the Latest Balance Sheet Date (except in each case for assets and properties disposed of since the Latest Balance Sheet Date in the Ordinary Course of Business), free and clear of all Liens other than Permitted Liens. (b) Immediately following the consummation of the Transaction, Company or its Subsidiaries will own or have the right to use all material assets (whether tangible, intangible


 
52 or mixed) reasonably necessary for the continued conduct of Company’s and its Subsidiaries’ business after the Closing in the same manner as conducted immediately prior to the Closing, free and clear of all Liens other than Permitted Liens. (c) The buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property that are material to the operation of Company’s and its Subsidiaries’ business are structurally sound, are in all material respects in good operating condition and repair (subject to normal wear and tear), and are adequate in all material respects for the uses to which they are being put. None of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of material maintenance or material repairs, except for ordinary, routine maintenance and repairs. Section 3.22 Product and Service Warranty. Since the Lookback Date, each product designed, manufactured, assembled, sold, leased or delivered or service provided by Company or its Subsidiaries has, in all material respects, been in conformity with applicable contractual commitments and express and implied warranties, and none of Company or its Subsidiaries have any material Liability for replacement or repair thereof or the provision of additional products or services or other damages in connection therewith. Section 3.23 Product Liability. Except as set forth on Section 3.23 of the Disclosure Schedule, since the Lookback Date, none of Company or its Subsidiaries have had any material Liability arising out of any injury to individuals or property as a result of the ownership, possession, or use of any product designed, manufactured, assembled, sold, leased, or delivered by Company or its Subsidiaries. Section 3.24 Directors and Officers; Powers of Attorney. Section 3.24 of the Disclosure Schedule contains a complete and accurate list of (a) all directors, managers and officers of each Company Member, and (b) the name and address of each Person who has a power of attorney to act on behalf of any Company Member. Section 3.25 Anti-Bribery; Anti-Corruption. Since the Lookback Date, neither a Company Member nor, to the Knowledge of Company, any representative of a Company Member has, to obtain or retain business, directly or indirectly offered, paid or promised to pay, or authorized the payment of, any money or other thing of value (including any fee, gift, sample, travel expense or entertainment with a value in excess of Fifty Dollars ($50.00) in the aggregate to any one individual in any year) to: (a) any Person who is an official, officer, agent, employee or representative of any Governmental Entity or of any existing or prospective customer (whether government owned or nongovernment owned); (b) any political party or official thereof; (c) any candidate for political or political party office; or (d) any other Person, in each case, in violation of any Laws relating to anti-bribery or anti-corruption that are applicable to a Company Member. Section 3.26 Privacy and Data Security Compliance. (a) Except as set forth on Section 3.26(a) of the Disclosure Schedule, since the Lookback Date, Company and its Subsidiaries have complied in all material respects with all Applicable Privacy and Data Security Requirements, and no written notices have been received


 
53 by, and no claims, charges or complaints have been made against, Company or its Subsidiaries alleging a violation of any Applicable Privacy and Data Security Requirements. Since the Lookback Date, to the Knowledge of Company, each of Company and its Subsidiaries has not been subject to any investigation, audit or inquiry with regard to any Applicable Privacy and Data Security Requirements. Since the Lookback Date, each of Company and its Subsidiaries has undertaken commercially reasonable administrative, technical, and physical measures to protect and maintain the security, integrity and confidential nature of the Personal Information maintained, collected, or received by such Company or Subsidiary, and has implemented procedures designed to prevent any unauthorized access, disclosure, use or loss of Personal Information as required under any Applicable Privacy and Data Security Requirements. (b) Except as set forth on Section 3.26(b) of the Disclosure Schedule, since the Lookback Date, to the Knowledge of Company, none of Company or its Subsidiary has suffered an Information Security Incident. (c) Since the Lookback Date, each of Company and its Subsidiaries has taken commercially reasonable measures to detect, prevent and escalate any Information Security Incidents, and train applicable personnel to escalate any such Information Security Incidents. (d) Since the Lookback Date, to the extent required by any Applicable Privacy and Data Security Requirements, each of Company and its Subsidiaries has written agreements with the third-party service providers (including vendors and marketing partners) that receive or otherwise have access to material Personal Information requiring (i) compliance with Applicable Privacy and Data Security Requirements and (ii) the use of commercially reasonable efforts to protect such Personal Information against unauthorized access or use. (e) Neither the execution, delivery nor performance of this Agreement nor the consummation of the Transaction will constitute a violation of any Applicable Privacy and Data Security Requirements in any material respects by Company or its Subsidiaries. (f) Each of Company and its Subsidiaries is and at all times since the Lookback Date has been in compliance with such Company or Subsidiary’s website privacy policies, if any is published. To the extent a privacy policy is published by Company or its Subsidiaries, such a privacy policy is accurate in all material respects and does not contain any material omissions regarding Company or its Subsidiary’s collection, use, and disclosure of Personal Information. Section 3.27 No Other Representations or Warranties; Non-Reliance; Investigation. (a) Except for the representations and warranties made by the Sellers in this Article III and in Article IV (in each case, as modified by the Disclosure Schedule), (i) none of the Company Members, the Sellers or their Affiliates or any of their respective stockholders, members or Representatives or any other Person acting on their behalf makes, or will be deemed to have made, and Buyer and Parent are not relying on and have not relied on, any other representations or warranties, whether express or implied, at law or in equity, and all other representations and warranties are specifically disclaimed, including in respect to the accuracy or completeness of any information, documents, projections, forecasts, plans or budgets of future revenues, expenses or expenditures, future results of operations, future cash flows or future financial condition (or any


 
54 component thereof) or other material delivered to or made available to Buyer Parent, their lenders or Affiliates or their respective Representatives in certain “data rooms” or management presentations or otherwise related to the Transaction and (ii) none of the Company Members, the Sellers or their Affiliates or any of their respective stockholders, members or Representatives or any other Person acting on their behalf will have or be subject to any Liability or indemnification obligation to Buyer, Parent or any other Person resulting from the distribution to Buyer or Parent, or Buyer’s or Parent’s use of, any such materials. Except for the representations and warranties of the Sellers expressly and specifically set forth in this Article III and Article IV (in each case, as modified by the Disclosure Schedule), the Sellers hereby disclaim all Liability and responsibility for, any use by Buyer, Parent or any of their lenders or Representatives of any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to Buyer or Parent or any of their lenders or Representatives. Nothing in this Section 3.27 shall prevent Buyer or Parent from bringing any claim for Fraud by Sellers. (b) Except for the representations and warranties made by Buyer and Parent in Article V, Sellers acknowledge that none of Buyer, Parent nor their Affiliates or any of their respective stockholders, members, Representatives or any other Person acting on their behalf makes, or will be deemed to have made, any other representations or warranties, whether express or implied, at law or in equity. Sellers specifically disclaim that they are relying upon or have relied upon any other representations and warranties, including in respect to the accuracy or completeness of any information, documents, projections, forecasts, plans or budgets of future revenues, expenses or expenditures, future results of operations, future cash flows or future financial condition (or any component thereof) or other material delivered to or made available to Sellers, their Affiliates or their respective Representatives in certain “data rooms” or management presentations or otherwise related to the Transaction, and acknowledges and agrees that Buyer, Parent and their Affiliates have specifically disclaimed any such other representations or warranties. (c) Without limiting the representations and warranties of Buyer or Parent contained herein, Sellers acknowledge and affirm that (i) they have conducted and completed their own investigation, analysis and evaluation of Buyer and Parent, (ii) they have made all such reviews and inspections of the financial condition, business, results of operations, properties, assets and prospects of Buyer and Parent as they have deemed necessary or appropriate, and (iii) they have had the opportunity to request all information they have deemed relevant to the foregoing from Buyer and Parent and they have received responses they deem adequate and sufficient to conduct and complete their own investigation, analysis and evaluation of Buyer and Parent. ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS Each Seller, severally and not jointly, as to itself, represents and warrants to Buyer and Parent that the statements in this Article IV are true, complete and correct, subject, in any case, to the exceptions provided in the Disclosure Schedule: Section 4.1 Due Organization of Seller; Right to Sell. Such Seller has all requisite limited liability company or equivalent power and full legal right to enter into this Agreement and


 
55 each Ancillary Agreement to which such Seller is to be a party, to perform all of such Seller’s agreements and obligations hereunder or thereunder in accordance with its terms, and to sell to Buyer all of the Purchased Interests and the Blocker Interests owned by such Seller. This Agreement has been, and each Ancillary Agreement to which such Seller will be a party will be, duly executed and delivered by such Seller, assuming the due authorization, execution and delivery by the other parties hereto and thereto (other than such Seller) and constitutes or will constitute, as applicable, the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by the Enforceability Exception. Each Seller that is an entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and each such Seller’s Organizational Documents (of which each such Seller is not in material violation) are in full force and effect. CH Seller has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. Section 4.2 Title to Purchased Interests and Blocker Interests; Liens. Such Seller has record and beneficial ownership of and good and valid title to the Purchased Interests and the Blocker Interests set forth opposite such Seller’s name in Section 4.2 of the Disclosure Schedule, free and clear of any Lien (other than restrictions on transfer under applicable securities Laws) and the Purchased Interests and the Blocker Interests held by such Seller constitute all of the Equity Interests in Company or the Blockers owned beneficially or held of record by such Seller as of the date of this Agreement. Upon the consummation of the Transaction, Buyer will acquire record and beneficial ownership of and good and valid title to all of the Purchased Interests and the Blocker Interests held by such Seller, free and clear of any Lien (other than restrictions on transfer under applicable securities Laws or any Lien applicable to the Company Interests or the Blocker Interests created or imposed by Buyer). Except as provided in this Agreement and as set forth in Section 4.2 of the Disclosure Schedule, such Seller is not party to or bound by any agreement or instrument affecting or relating to such Seller’s right to transfer or vote the Purchased Interests or the Blocker Interests owned by such Seller. Section 4.3 Non-Contravention. None of the execution, delivery or performance by such Seller of this Agreement and each Ancillary Agreement to which such Seller is a party, nor the consummation of the Transaction, will, with or without the giving of notice or the lapse of time or both, (i) contravene, conflict with, or result in a material violation of any Law or Order binding upon or applicable to such Seller or by which any property or asset of such Seller is bound or affected, (ii) materially violate any provision of the Organizational Documents of such Seller, each as amended to date and as currently in effect, (iii) (A) require any material consent or material approval under, (B) result in any material breach of or any material loss of any benefit under, (C) constitute a material default (or an event which with notice or lapse of time or both would become a material default) under, or (D) give to others any right of termination, vesting, amendment, acceleration or cancellation of, any right or obligation under any Contract, to which such Seller is a party or to which such Seller or any of its respective property is bound or affected, or (iv) result in the creation of any material Lien (other than a Permitted Lien) on any property or asset of such Seller. Section 4.4 Governmental Consents. Except for (i) compliance with the HSR Act or any other Filing made pursuant to any other Antitrust Law and (ii) Governmental Entity Approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to


 
56 prevent, materially delay or materially impair the ability of the Sellers to consummate the Transaction, there are no Governmental Entity Approvals required in connection with the Sellers’ execution and delivery of this Agreement or any Ancillary Agreement to which the Sellers are party, the performance by each Seller of its respective obligations hereunder and thereunder and the consummation of the Transaction. Section 4.5 Litigation. No Action is pending or, to such Seller’s Knowledge, threatened, against such Seller with respect to such Seller’s execution, performance and delivery of this Agreement or any Ancillary Agreement to which such Seller is to be a party or the consummation by such Seller of the Transaction. No Action is pending or, to such Seller’s Knowledge, threatened against such Seller before any arbitrator or court or other Governmental Entity which (a) if adversely determined, would be reasonably likely to result in payments, penalties or fines payable by a Company Member, (b) challenges the validity of this Agreement or any Ancillary Agreement or any action taken or to be taken in connection herewith or therewith, or (c) if adversely determined, would reasonably be expected to prevent, materially delay or materially impair the ability of Sellers to consummate the Transaction. Section 4.6 Brokers. Other than UBS Securities LLC, there is no investment banker, broker, finder or other intermediary who has been retained by or is authorized to act on behalf of such Seller that is entitled to any fee or commission in connection with the Transaction. Section 4.7 Securities Matters. Such Seller is receiving the Parent Common Stock representing the Aggregate Stock Consideration solely for the purpose of investment and not with a view to the sale or distribution of any part thereof in violation of the Securities Act. Such Seller understands and acknowledges that the Parent Common Stock representing the Aggregate Stock Consideration is not registered under the Securities Act, any applicable state securities Law or any applicable foreign securities Law, and that such shares of Parent Common Stock may not be transferred except pursuant to the Stockholder Agreement and the registration provisions of the Securities Act or applicable foreign securities Laws or pursuant to an applicable exemption therefrom and pursuant to state securities Laws as applicable. Such Seller is an “accredited investor” as such term is defined under Section 501 of Regulation D promulgated under the Securities Act. ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT Buyer and Parent, jointly and severally, represent and warrant to the Sellers as follows: Section 5.1 Due Organization of Buyer and Parent. Each of Buyer and Parent is a corporation duly organized, validly existing and in good standing under the Laws of Delaware, and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. Each of Buyer and Parent is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary. All corporate actions taken


 
57 by Buyer and Parent in connection with this Agreement will be duly authorized on or prior to the Closing. Section 5.2 Power and Authority of Buyer and Parent. Each of Buyer and Parent has the requisite power and authority to enter into this Agreement and each Ancillary Agreement to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the Transaction. The execution and delivery by Buyer and Parent of this Agreement and each Ancillary Agreement to which it is a party, the performance of its obligations hereunder and thereunder, and the consummation of the Transaction, have been duly authorized by all requisite action on the part of Buyer and Parent. This Agreement has been duly executed and delivered by Buyer and Parent and, assuming the due authorization, execution and delivery by each other Party, this Agreement constitutes a legal, valid and binding obligation of Buyer and Parent, enforceable against Buyer and Parent in accordance with its terms, except as such enforceability may be limited by the Enforceability Exception. Section 5.3 Non-Contravention; Governmental Consents. (a) None of the execution, delivery or performance by Buyer or Parent of this Agreement and each Ancillary Agreement to which Buyer or Parent, as applicable, is a party, nor the consummation of the Transaction, will, with or without the giving of notice or the lapse of time or both, (i) contravene, conflict with, or result in a material violation of any Law or Order binding upon or applicable to Buyer or Parent or by which any property or asset of Buyer or Parent is bound or affected, (ii) materially violate any provision of the Organizational Documents of Buyer or Parent, as amended to date and as currently in effect, (iii) (A) require any material consent or material approval under, (B) result in any material breach of or any material loss of any benefit under, (C) constitute a material default (or an event which with notice or lapse of time or both would become a material default) under, or (D) give to others any right of termination, vesting, amendment, acceleration or cancellation of, any right or obligation under any Contract, to which Buyer or Parent is a party or to which Buyer or Parent or any of their respective property is bound or affected, or (iv) result in the creation of any material Lien (other than a Permitted Lien) on any property or asset of Buyer or Parent. (b) Except for (i) compliance with the HSR Act or any other Filing made pursuant to any other Antitrust Law, (ii) Governmental Entity Approvals, the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Buyer or Parent to consummate the Transaction and (iii) approval by NYSE of a Supplemental Listing Application for the Parent Common Stock representing the Aggregate Stock Consideration, there are no Governmental Entity Approvals required in connection with Buyer’s execution and delivery of this Agreement or any Ancillary Agreement to which Buyer or Parent is party, the performance by Buyer or Parent of its obligations hereunder and thereunder and the consummation of the Transaction. Section 5.4 Brokers. Except as set forth on Section 5.4 of the Buyer Disclosure Schedule, none of Buyer, Parent or any of its Affiliates has retained, utilized or been represented


 
58 by, or has any Liability or obligation to pay fees or commissions to, any broker, finder or agent in connection with the Transaction. Section 5.5 Issuance of Parent Common Stock. Upon issuance of the shares of Parent Common Stock representing the Aggregate Stock Consideration in accordance with the terms of this Agreement, the Aggregate Stock Consideration, will be duly and validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof (other than those arising from applicable securities Laws) and will be issued in compliance with applicable federal and state securities Laws, with the holders being entitled to all rights accorded to a holder of Parent Common Stock. Section 5.6 SEC Documents; Financial Statements. (a) Except as set forth on Section 5.6 of the Buyer Disclosure Schedule, during the two years prior to the date hereof, Parent has filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “1934 Act”), together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002 as amended (the “Sarbanes-Oxley Act”) (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). Parent has delivered or has made available to Company true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. Subject to the subsequent filing of an amendment to an SEC Document with the SEC prior to the date of this Agreement, as of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as disclosed in the SEC Documents or in Section 5.6 of the Buyer Disclosure Schedule as of the date of this Agreement, (i) to Buyer’s Knowledge, none of the SEC Documents is the subject of ongoing SEC review, and (ii) Parent has not received any comments from the SEC with respect to any of the SEC Documents which remain unresolved, nor has it received any inquiry or information request from the SEC as of the date of this Agreement as to any matters affecting Parent that have not been addressed. Parent is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act. (b) As of their respective dates, the financial statements of Parent included in the SEC Documents (the “Parent Financial Statements”) complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. The Parent Financial Statements have been prepared in accordance with GAAP, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of Parent as


 
59 of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). The reserves, if any, established by Parent or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by Parent on the date hereof and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board. Parent is not currently contemplating amending or restating, nor is Parent aware of any fact or circumstance which would require it to amend or restate, any of the Parent Financial Statements, and Parent has not been informed by its independent accountants that they recommend that Parent amend or restate any of the Parent Financial Statements or that there is any need for Parent to amend or restate any of the Parent Financial Statements. Parent has engaged Grant Thornton LLP to audit the consolidated financial results for Parent and its Subsidiaries. (c) Parent has established and maintains a system of internal control over financial reporting (as defined in Rules 13a–15 and 15d–15 of the 1934 Act) that is designed to provide reasonable assurance regarding the reliability of financial reporting. Parent (i) has designed and maintains disclosure controls and procedures (as defined in Rules 13a–15 and 15d– 15 of the 1934 Act) to provide reasonable assurance that all material information required to be disclosed by Parent in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to Parent management as appropriate to allow decisions regarding required disclosure and (ii) has disclosed, based on its most recent evaluation of internal control over financial reporting, to Parent’s outside auditors and the audit committee of the board of directors of Parent (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent internal control over financial reporting. During the two years prior to the date hereof, any material change in internal control over financial reporting required to be disclosed in any SEC Document has been so disclosed. During the two years prior to the date hereof, each of the principal executive officer and principal financial officer of Parent (or each former principal executive officer and principal financial officer of Parent, as applicable) has made all certifications required by Rules 13a-14 and 15d-14 under the 1934 Act and Sections 302 and 906 of the Sarbanes-Oxley Act and any related rules and regulations promulgated by the SEC and NYSE and neither Parent nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. (d) Except as disclosed in the SEC Documents, during the two years prior to the date hereof, neither Parent nor any of its Subsidiaries nor, to the Knowledge of Buyer, any Representative of Parent or any of its Subsidiaries has received any written (or to the Knowledge of Buyer, oral) complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of Parent or any of its Subsidiaries or their respective internal accounting controls relating to the period that is during the two years prior to the date hereof, including any complaint, allegation, assertion or claim that Parent or any of its Subsidiaries has engaged in questionable accounting or auditing practices.


 
60 (e) Neither Parent nor any Subsidiary of Parent is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement, including any Contract relating to any transaction or relationship between Parent or any Subsidiary of Parent, on the one hand, and any unconsolidated Affiliate of Parent or any Subsidiary of Parent, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any off balance sheet arrangements, in each case where the result, purpose or effect of such Contract is to avoid public disclosure of any material transaction involving, or material liabilities of, Parent or any Subsidiary of Parent or any of their financial statements. Section 5.7 Conduct of Business. Neither Parent nor any of its Subsidiaries is in violation of any term under its applicable Organizational Documents. Neither Parent nor any of its Subsidiaries is in violation of any Law, judgment, decree or order or any statute, ordinance, rule or regulation applicable to Parent or any of its Subsidiaries, and since the Lookback Date, neither Parent nor any of its Subsidiaries has conducted its business in violation of any of the foregoing. Without limiting the generality of the foregoing, Parent is in compliance with all federal and state securities Laws, including the rules, regulations or requirements of NYSE. To Buyer’s Knowledge, there are no facts or circumstances that would reasonably lead to delisting or suspension of the Parent Common Stock by NYSE in the foreseeable future. Since the date of the most recent Parent Financial Statements, neither Parent nor any of its Subsidiaries has entered into any transaction or any agreement to enter into a transaction to acquire, sell, lease, transfer, license, abandon or otherwise dispose of any material business of Parent or any of its Subsidiaries, or any material assets, except in the ordinary course of business consistent with past practices. During the two years prior to the date hereof, (a) the Parent Common Stock has been listed or designated for quotation on NYSE, (b) trading in the Parent Common Stock has not been suspended by the SEC or NYSE, (c) Parent has received no communication, written or oral, from the SEC or NYSE regarding the suspension or delisting of the Parent Common Stock from NYSE, which has not been publicly disclosed, and (d) Parent has not taken any action that is designed to terminate the registration of the Parent Common Stock under the 1934 Act. There is no agreement, commitment, judgment, injunction, order or decree binding upon Parent or any of its Subsidiaries or to which Parent or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of Parent or any of its Subsidiaries, any acquisition of property by Parent or any of its Subsidiaries or the conduct of business by Parent or any of its Subsidiaries as currently conducted. Section 5.8 Capitalization. (a) As of the date hereof, the authorized capital stock of Parent is as set forth on Section 5.8 of the Buyer Disclosure Schedule. Other than as disclosed on Section 5.8 of the Buyer Disclosure Schedule, there are (i) no securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent, and (ii) no options, warrants, or other rights to acquire from Parent, and no obligations of Parent to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Parent. (b) All of the outstanding capital stock of Parent are duly authorized and have been validly issued and are fully paid and nonassessable, and were issued in compliance with all


 
61 applicable federal and state securities Laws and are not subject to and were not issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the organizational documents of Parent or any Contract to which Parent is a party or otherwise bound. (c) Except as set forth on Section 5.8 of the Buyer Disclosure Schedule: (i) none of Parent’s or any of its Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by Parent or any of its Subsidiaries; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of Parent or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which Parent or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of Parent or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of Parent or any of its Subsidiaries; (iii) there are no agreements or arrangements with respect to the Parent Common Stock under which Parent or any of its Subsidiaries is (A) bound with respect to voting (including without limitation voting trusts or proxies), (B) obligated to register the sale of any of their securities under the Securities Act (other than the Stockholder Agreement), or (C) sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, co-sale rights or “drag- along” rights) any such securities; (iv) there are no outstanding securities or instruments of Parent or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which Parent or any of its Subsidiaries is or may become bound to redeem a security of Parent or any of its Subsidiaries; (v) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Aggregate Stock Consideration; and (vi) neither Parent nor any of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. (d) Parent has furnished to Company or filed on the EDGAR system true, correct and complete copies of Parent and Buyer’s articles of incorporation, each as amended and as in effect on the date hereof, and Parent and Buyer’s bylaws, each as amended and as in effect on the date hereof. Section 5.9 Absence of Certain Changes. Since the date of the most recent Parent Financial Statements to the date hereof, (a) there has not occurred any action, event, change, event, circumstance, development, occurrence or state of facts that constitutes a material adverse effect of Parent, (b) the business of Parent and its Subsidiaries has been conducted in the Ordinary Course of Business, except in connection with this Agreement and the Transaction, and (c) neither Parent nor any of its Subsidiaries has taken any actions that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent and its Subsidiaries, taken as a whole. Section 5.10 Litigation. No Action is pending or, to Buyer’s Knowledge, threatened against Parent or Buyer before any arbitrator or court or other Governmental Entity which (a) challenges the validity of this Agreement or any Ancillary Agreement or any action taken or to be


 
62 taken in connection herewith or therewith, or (b) would, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Buyer to consummate the Transaction. Section 5.11 Investment. Buyer is acquiring the Purchased Interests and the Blocker Interests for its own account as an investment without the present intent to sell, transfer or otherwise distribute the Purchased Interests or the Blocker Interests to any other Person. Each of Buyer and Parent has made, independently and without reliance on any of, the Blockers, Company or any of its Subsidiaries or the Sellers (except to the extent that Buyer has relied on the representations and warranties of the Sellers set forth in Article III and Article IV), its own analysis of the Purchased Interests, the Blocker Interests, and the Company Members. Parent and Buyer acknowledge that the Purchased Interests and the Blocker Interests are not registered pursuant to the Securities Act or any other securities law and that none of the Purchased Interests or the Blocker Interests may be transferred, except pursuant to an applicable exception under the Securities Act or the applicable securities law. Section 5.12 Solvency. Parent and its Subsidiaries, taken as a whole, are as of the date of this Agreement and immediately after giving effect to the Transaction on the Closing Date will be solvent and (a) be able to pay their debts as they become due, (b) own property that has a fair saleable value greater than the amounts required to pay their debts (including a reasonable estimate of the amount of all contingent liabilities) and (c) have adequate capital to carry on its business. No transfer of property is being made, and no obligation is being incurred, by Parent in connection with the Transaction with the intent to hinder, delay or defraud either present or future creditors of Parent. Section 5.13 United States Real Property Holding Corporation. Parent is not (and has not been within the applicable time period set forth in Code Section 897(c)) a “United States real property holding corporation” within the meaning of Code Section 897(c). Section 5.14 Customers and Suppliers. (a) None of the top ten customers of Parent and its Subsidiaries (including distributors), based on the dollar amount of consolidated revenues earned by Parent and its Subsidiaries for each of the two most recent fiscal years and for the current fiscal year, have terminated or materially and adversely modified its relationship with Parent or any of its Subsidiaries in the past 12 months and neither Parent nor any of its Subsidiaries have received any written, or to Parent’s Knowledge, oral notice that (x) any such customer has terminated, intends to terminate or materially and adversely modify its relationship with Parent or any of its Subsidiaries or (y) any such customer has requested a material decrease in the prices charged by Parent or any of its Subsidiaries, other than in the ordinary course of business consistent with past practices or pursuant to the terms of the underlying Contract; provided that the fact that any particular Contract or commitment with any such customer is scheduled to expire shall not, in and of itself, constitute notice of any of the foregoing matters. (b) None of the top ten vendors, suppliers, resellers, service providers or other similar business relation of Parent and its Subsidiaries, based on the dollar amount of consolidated amounts paid by Parent and its Subsidiaries for goods or services from such supplier for each of


 
63 the two most recent fiscal years and for the current fiscal year, have terminated or materially and adversely modified its relationship with Parent or any of its Subsidiaries in the past 12 months and neither Parent nor any of its Subsidiaries have received any written, or to Parent’s Knowledge, oral notice that (x) any such supplier has terminated, intends to terminate or materially and adversely modify its relationship with Parent or any of its Subsidiaries or (y) any such supplier has requested a material increase in the prices charged to Parent or any of its Subsidiaries, other than in the ordinary course of business consistent with past practices or pursuant to the terms of the underlying Contract; provided that the fact that any particular Contract or commitment with any such supplier is scheduled to expire shall not, in and of itself, constitute notice of any of the foregoing matters. Section 5.15 No Other Representations or Warranties; Non-Reliance; Investigation. (a) Except for the representations and warranties made by Parent and Buyer in this Article V (as modified by the Buyer Disclosure Schedule), (i) none of Parent, Buyer or their Affiliates or any of their respective stockholders, members or Representatives or any other Person acting on their behalf makes, or will be deemed to have made, and Sellers are not relying on and have not relied on, any other representations or warranties, whether express or implied, at law or in equity, and all other representations and warranties are specifically disclaimed, including in respect to the accuracy or completeness of any information, documents, projections, forecasts, plans or budgets of future revenues, expenses or expenditures, future results of operations, future cash flows or future financial condition (or any component thereof) or other material delivered to or made available to Sellers, their lenders or Affiliates or their respective Representatives in certain “data rooms” or management presentations or otherwise related to the Transaction and (ii) none of Parent, Buyer or their Affiliates or any of their respective stockholders, members or Representatives or any other Person acting on their behalf will have or be subject to any Liability or indemnification obligation to Sellers or any other Person resulting from the distribution to Sellers, or Sellers’ use of, any such materials. Except for the representations and warranties expressly and specifically set forth in this Article V (as modified by the Buyer Disclosure Schedule), Parent and Buyer hereby disclaims all Liability and responsibility for, or any use by Sellers or any of their lenders or Representatives of any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to Sellers or any of their lenders or Representatives. Nothing in this Section 5.15 shall prevent Sellers from bringing any claim for Fraud by Parent or Buyer. (b) Except for the representations and warranties made by Sellers in Article III and in Article IV, Buyer acknowledges that none of the Company Members, the Sellers or their Affiliates or any of their respective stockholders, members, Representatives or any other Person acting on their behalf makes, or will be deemed to have made, any other representations or warranties, whether express or implied, at law or in equity. Buyer specifically disclaims that it is relying upon or has relied upon any other representations and warranties, including in respect to the accuracy or completeness of any information, documents, projections, forecasts, plans or budgets of future revenues, expenses or expenditures, future results of operations, future cash flows or future financial condition (or any component thereof) or other material delivered to or made available to Buyer or its lenders or their respective Representatives in certain “data rooms” or management presentations or otherwise related to the Transaction, and acknowledges and agrees that the Company Members, the Sellers and their respective Affiliates have specifically disclaimed any such other representations or warranties.


 
64 (c) Without limiting the representations and warranties of the Sellers contained herein, Buyer acknowledges and affirms that (i) it has conducted and completed its own investigation, analysis and evaluation of the Company Members, (ii) it has made all such reviews and inspections of the financial condition, business, results of operations, properties, assets and prospects of the Company Members as it has deemed necessary or appropriate, and (iii) it has had the opportunity to request all information it has deemed relevant to the foregoing from the Sellers and the Company Members and it has received responses it deems adequate and sufficient to conduct and complete its own investigation, analysis and evaluation of the Company Members. ARTICLE VI COVENANTS Section 6.1 Access. For a period of seven years following the Closing, Buyer will preserve and keep, or cause to be preserved and kept, all original books and records in respect of each Company Member in the possession of Buyer or its Affiliates, provided that in accordance with the Company Member’s current practices, such copies may be maintained in electronic or digital form. The Sellers, upon reasonable notice and for any reasonable business purpose, will have reasonable access during normal business hours to examine, inspect and copy such books and records during such seven year period. Sellers will bear all reasonable out-of-pocket costs and expenses incurred by Buyer or any Company Member in connection with Sellers’ requests for such access. Section 6.2 Public Disclosure. From and after the date hereof, any press release or any public disclosure, either written or oral, of the Transaction or negotiations related thereto to be made by Buyer, Parent, Company, the Sellers or any of their respective Representatives shall be jointly drafted and approved by Parent and the Sellers, which approvals will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing or anything herein to the contrary, but subject in all respects to Section 6.8, nothing herein will prevent (a) a Seller or any of its Affiliates which is a private equity or other investment fund from making customary disclosures (which are made subject to customary confidentiality obligations), including the key economic terms of the Transaction and the return realized as a result thereof, to its current or prospective investors in connection with its normal fundraising and reporting activities, or (b) Buyer or Parent from making disclosures in any regulatory filing required under applicable Law. Section 6.3 Cooperation; Further Actions. Following the Closing, each of the Parties will, and will cause their respective Affiliates to, use commercially reasonable efforts to take or cause to be taken all actions, execute and deliver such additional instruments, documents, conveyances or assurances and to do or cause to be done all other things, necessary, proper or advisable, or otherwise reasonably requested by another Party, in order for such Party to fulfill and perform his, her or its obligations in respect of this Agreement and the Ancillary Agreements to which such Person is a party, or otherwise to consummate and make effective the Transaction and carry out the intent and purposes of this Agreement.


 
65 Section 6.4 Indemnification of Directors and Officers. (a) During the period ending six years after the Closing Date, Buyer will ensure that each Company Member fulfills its obligations to the present and former members of the governing body of such Company Member and present and former officers of each Company Member (the “Indemnified D&Os”) pursuant to the terms of each Company Member’s Organizational Documents, as the case may be, as in effect on the date hereof. (b) Prior to the Closing Date, but effective as of the Closing, the Company Members shall have obtained on behalf of each Company Member a prepaid directors’ and officers’ liability insurance policy or policies which policies provide such Indemnified D&Os with coverage for an aggregate period of not less than six years following the Closing Date with coverage in amount and scope at least as favorable as the existing coverage for such Company Member, with respect to claims arising from facts or events that occurred on or before the Closing Date, including with respect to the Transaction (collectively, the “Closing D&O Policies”). The premiums, costs and related expenses for procuring such Closing D&O Policies will be paid in full by Buyer at or prior to the Closing and such Closing D&O Policies will be non-cancelable. Buyer will, and will cause the Company Members to, maintain such Closing D&O Policies in full force and effect, and continue to honor the obligations thereunder, during the period for which they have been prepaid. In no event will Buyer be required to pay more than 250% of the current annual premium paid in respect of the Company Members’ existing directors’ and officers’ liability insurance coverage. (c) For a period of six years from the Closing Date, Buyer will cause, unless otherwise required by Law, the Organizational Documents of each Company Member to contain provisions no less favorable to the Indemnified D&Os with respect to limitation of liabilities of directors and officers and indemnification and advancement of expenses than are set forth in their respective Organizational Documents immediately prior to the Closing (the “Charter Indemnification Provisions”), which Charter Indemnification Provisions will not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnified D&Os. (d) In the event Buyer or any Company Member, or any of their respective successors or assigns (i) consolidates with or merges into any other Person and will not be the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision will be made so that such continuing or surviving entity or transferee of such assets, as the case may be, will assume all of the obligations set forth in this Section 6.4. (e) The terms and provisions of this Section 6.4 are intended to be in addition to the rights otherwise available to the Indemnified D&Os by applicable Law, the applicable Company Member’s Organizational Documents or other Contract, as applicable, and will operate for the benefit of, and will be enforceable by, the Indemnified D&Os and their respective heirs and Representatives, each of whom is an intended third party beneficiary of this Section 6.4.


 
66 Section 6.5 Employee Matters. (a) Through December 31, 2024 (or, if earlier, through the date of termination of employment of the applicable Company Employee), Buyer will provide, or cause to be provided, to each employee of Company or any of its Subsidiaries who continues to be employed by Company or any of its Subsidiaries at the Closing (each, a “Company Employee”) with (i) salary, wages and cash bonus opportunity that are substantially similar, in the aggregate, to the salary, wages and cash bonus opportunity provided to such Company Employee immediately before the Closing and (ii) employee retirement and other benefits that are substantially similar, in the aggregate, to the employee retirement and other benefits provided to each such Company Employee immediately before the Closing. For the purposes of this subsection (a), salary and wages shall not include equity-based compensation and deferred compensation. Through December 31, 2024, Buyer will provide, or cause to be provided, to each Company Employee severance benefits that are substantially similar to such benefits of Company and its Subsidiaries (taking into account such Company Employee’s service as required pursuant to Section 6.5(b) below, to the extent applicable). Notwithstanding anything contained herein to the contrary, with respect to any Company Employees who are based outside of the United States, Buyer’s obligations under this Section 6.5 will be in addition to, and not in contravention of, any obligations under the Laws of the foreign countries and political subdivisions thereof in which such Company Employees are based. (b) For purposes of vesting, eligibility to participate, level of benefits and benefit accruals under the employee benefit plans of Buyer and its Subsidiaries providing benefits to any Company Employee after the Closing Date (the “New Plans”), each Company Employee will be credited with his or her years of service with Company and its ERISA Affiliates or predecessors before the Closing Date, to at least the same extent as such Company Employee was entitled, before the Closing Date, to credit for such service under any similar employee benefit plan of Company or any of its Subsidiaries in which such Company Employee participated or was eligible to participate immediately prior to the Closing, provided that the foregoing, will not apply to the extent that its application would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing, (i) each Company Employee will be immediately eligible to participate, without any waiting time, in any and all New Plans and (ii) for purposes of each New Plan providing welfare benefits to any Company Employee, Buyer will cause all pre-existing condition limitations or exclusions and actively-at-work requirements of such New Plan to be waived for such Company Employee and his or her spouse and covered dependents, and Buyer will cause any eligible expenses incurred by such Company Employee and his or her spouse and covered dependents during the portion of the plan year of any corresponding Company Benefit Plan ending on the date such Company Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Company Employee and his or her spouse and covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan. Buyer will, or will cause its Subsidiaries or Affiliates to, credit each Company Employee with the accrued and unused vacation, personal and sickness days to which such Company Employee is entitled through the Closing Date. (c) To the extent that any bonus amounts under any cash bonus, sales and other cash incentive plans of Company and its Subsidiaries (“Bonus Amounts”) with respect to a


 
67 performance period completed prior to the Closing remain unpaid as of the Closing Date, Buyer will cause all such Bonus Amounts to be calculated and paid in the ordinary course to the eligible employees of Company and its Subsidiaries. Buyer will cause all Bonus Amounts with respect to the performance period in which the Closing occurs to be calculated pursuant to the applicable plans in place pre-Closing and paid in the ordinary course to the eligible employees of Company and its Subsidiaries when payable pursuant to the terms thereof. (d) Nothing contained in this Section 6.5 or any other provision of this Agreement, express or implied, is intended to confer upon any Company Employee any right to continued employment for any period or continued receipt of any specific benefit or compensation, or constitutes an establishment of or amendment to or any other modification of any Company Benefit Plan. Further, this Section 6.5 is binding upon and will inure solely to the benefit of the Parties, and nothing in this Section 6.5, express or implied, is intended to confer upon any other Person (including any Company Employee) any rights or remedies of any nature (including third- party beneficiary rights under this Agreement) whatsoever under or by reason of this Section 6.5. Section 6.6 Tax Matters. (a) Transfer Taxes. Buyer will pay all transfer, documentary, sales, use, stamp, registration and other such non-income Taxes incurred in connection with the purchase and sale of the Purchased Interests, the CH Blocker Interests, the Tire Blocker Stock and the Marastar Blocker Stock (“Transfer Taxes”) pursuant to this Agreement, and Buyer will be responsible for the preparation and filing of any Tax Returns with respect to such Taxes. (b) Limitations on Certain Tax Actions. (i) From the Closing until the date on which Final Purchase Price is finally determined pursuant to Section 2.4, Buyer will not, and Buyer will cause the Company Members not to, without the prior written consent of the Sellers, (A) file (other than in accordance with Section 6.6(c)), amend, re-file, change or otherwise modify any Tax Returns of any Company Member for any Pre-Closing Tax Period or any Straddle Period, or (B) make any material Tax election that has retroactive effect to any Pre-Closing Tax Period or any Straddle Period that is inconsistent with the past practice of the Company Members (including any election under Section 338 or Section 336(e) of the Code with respect to the purchase and sale of the Purchased Interests, the CH Blocker Interests, the Tire Blocker Stock or the Marastar Blocker Stock or the deemed purchase and sale for federal Income Tax purposes of Equity Interests of CH Blocker, CFI or CEI), except that, notwithstanding any other contrary provision in this Section 6.6(b)(i), Buyer may cause any eligible Company Member to make an election under Code Section 754, in Buyer’s sole discretion. (ii) Buyer will not, nor will Buyer cause the Company Members (and such Company Member’s “partnership representative” (as defined in Code Section 6223), if any) to, make any elections under Section 6226 or 6225(c) of the Code with respect to Company or any of its Subsidiaries for any Pre-Closing Tax Period or any Straddle Period without the prior written consent of the Sellers.


 
68 (iii) Notwithstanding anything contrary in this Agreement, Section 6.6(f) shall exclusively govern any Public Notice 7 Filings. (c) Preparation and Filing of Tax Returns. (i) The Sellers will have the right, at their cost and expense, to prepare all Income Tax Returns of the Company Members (including all IRS Forms 1065 and corresponding Schedules K-1 of Company and any Subsidiary of Company treated as a partnership for U.S. federal Income Tax purposes) for all Pre-Closing Tax Periods that are required to be filed after the Closing Date (including extensions), and Buyer will prepare any such Tax Return that the Sellers do not elect to prepare. All such Tax Returns will be prepared in a manner consistent with past practice of the applicable Company Member, except as otherwise required by applicable Law. (ii) Buyer will have the right, at its cost and expense, to prepare all Income Tax Returns of the Company Members (including all IRS Forms 1065 and corresponding Schedules K-1 of Company and any Subsidiary of Company treated as a partnership for U.S. federal Income Tax purposes) for any Straddle Periods that are required to be filed after the Closing Date (including extensions). All such Tax Returns will be prepared in a manner consistent with past practice of the applicable Company Member, except as otherwise required by applicable Law; provided, however, that (i) in connection with the preparation of the IRS Form 1065 (or any analogous state or local Tax Return) of Company for a Straddle Period, the Parties agree that the interim closing of the books methodology with calendar day convention under Treasury Regulations Section 1.706-4 will be selected and (ii) to the maximum extent permitted by applicable Law determined on a “more likely than not” basis, all items of loss or deduction resulting from or attributable to the payment or satisfaction of Closing Company Indebtedness and Transaction Expenses (collectively, “Transaction Tax Deductions”) will be reported on Tax Returns for Pre-Closing Tax Periods or, in the case of any Transaction Tax Deductions reported on any Tax Return for a Straddle Period, such deductions will be treated as arising in the portion of such Straddle Period ending on the Closing Date. (iii) Taxes other than Income Taxes for a Straddle Period of a Company Member shall be allocated to the pre-Closing and post-Closing portions of such Straddle Period based on a daily proration of such Taxes for the entire Straddle Period. For purposes of this Section 6.6(c)(iii), the Sellers’ allocable share of the Tax incurred during a Straddle Period shall equal the Tax liability for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the pre-closing portion of the Straddle Period ending on the Closing Date and the denominator is the number of days in the entire Straddle Period. (iv) The Party that prepares a Tax Return pursuant to this Section 6.6(c) will provide a draft of such Tax Return to the other Party not less than 30 days prior to the due date (including extensions) for such Tax Return and such Tax Return will be revised to reflect any reasonable comments provided in writing by such other Party to the preparing Party not less than 15 days after receiving such draft Tax Return.


 
69 (v) Except as provided in Section 6.6(c)(i), Buyer shall prepare all other Tax Returns of Company for any Pre-Closing Tax Period and Straddle Period. (vi) Buyer will timely file or cause to be timely filed all Tax Returns prepared pursuant to this Section 6.6(c). Buyer shall not be liable for any delay in filing any Tax Returns prepared by Sellers under this Section 6.6(c) if Sellers do not provide the completed return to Buyer at least ten (10) days prior to the due date of such Tax Return (including extensions). (vii) For the avoidance of doubt, any Public Notice 7 Filings and any amendments, modifications, supplements, updates or revocations thereof shall be governed exclusively by Section 6.6(f) and not this Section 6.6(c). (d) Tax Elections. (i) For any Tax Returns filed by Sellers under Section 6.6(c), Sellers shall not permit any Company Member to make an FTE Election for any Tax period. (ii) For any Tax Returns filed by Sellers under Section 6.6(c), Sellers shall not allow any Company Member to revoke or change any Code Section 754 election . (iii) Subject to Section 6.6(b)(ii), with respect to Company and any other applicable Company Member, Buyer shall have the right to appoint each such Company Members’ “partnership representative” (as defined in Code Section 6223) for each Company’s taxable year which includes the Closing Date. (e) Cooperation. Buyer, the Company Members and the Sellers (and, in each case, their respect Affiliates) will cooperate fully, as and to the extent reasonably requested by any other party, in connection with the filing of Tax Returns, any Tax Proceedings or other Tax-related claims. Such cooperation will include providing records and information that are reasonably relevant to any such matters, making employees available on a mutually convenient basis to provide additional information and explaining any materials provided pursuant to this Section 6.6(e). Subject to the express limitations in this Agreement, Buyer shall have the right to control any Tax Proceeding with respect to any Pre-Closing Tax Period or any Straddle Period and shall be able to compromise or settle any such Tax Proceeding in its sole discretion. (f) Intended Tax Treatment. For U.S. federal (and applicable state and local) Income Tax purposes, the parties intend that (i) the portion of the Purchase Price allocable to Buyer’s purchase of the Tire Blocker Stock and the Marastar Blocker Stock shall each be treated as a purchase of corporate shares within the meaning of Section 1001(a) of the Code and the Treasury Regulations thereunder, (ii) the portion of the Purchase Price allocable Buyer’s purchase of the Purchased Interests pursuant to Section 2.5 and the Allocation Schedule shall be treated as a purchase of partnership interests of Company from CH Seller by Buyer within the meaning of Section 741 of the Code, and (iii) Company will not terminate by virtue of the Transaction and will be treated as continuing for purposes of Section 708 of the Code and the Treasury Regulations thereunder. The Parties will, and will cause their respective Affiliates to, file all Tax Returns consistent with the tax treatment set forth in this Section 6.6(f) and will not, and will cause their respective Affiliates not to, take any position on any Tax Return, in any Tax Proceeding or


 
70 otherwise before any Tax Authority that is inconsistent with Section 6.6(f), in each case, unless, and only to the extent, otherwise required by applicable Law. (g) Public Notice 7 Filings. (i) CH Seller shall timely make (or cause to be made) within thirty (30) days of the date of this Agreement relevant disclosure with the relevant Tax Authorities permitted to be made under Public Notice 7 in connection with the sale and purchase of the Purchased Interests pursuant to this Agreement (a “Public Notice 7 Filing”). At least ten (10) days prior to submitting the Public Notice 7 Filing, CH Seller shall provide Buyer with a substantially final draft of such Public Notice 7 Filing materials. If Buyer has any comments with respect to such Public Notice 7 Filing, it shall notify CH Seller (by written notice within five (5) days of receipt of such Public Notice 7 Filing) thereof of such comments, and CH Seller shall consider in good faith all reasonable comments of Buyer with respect to such Public Notice 7 Filing. If Buyer does not provide comments in written notice within such period, such Public Notice 7 Filing shall be deemed to be accepted and agreed upon for purposes of this Section 6.6(f). CH Seller shall file (or cause to be filed) such Public Notice 7 Filing and, as soon as reasonably practicable after making such filing, shall provide Buyer with a copy of the acknowledgment receipt stamped or other evidence to the extent available, if any, including accurate descriptions of any oral or other communication with such relevant PRC Tax Authority that such Public Notice 7 Filing has been duly made. (ii) CH Seller shall have the responsibility to communicate with the relevant Tax Authorities in connection with the Public Notice 7 Filing and the transactions contemplated by this Agreement (including with respect to any information requests, claims, assessments, audits, litigation, proceedings, or similar events with respect to the transactions contemplated by this Agreement, and with respect to the negotiation and settlement of the amount of any Tax assessed and/or determined by the relevant Tax Authorities under Public Notice 7). Buyer shall provide CH Seller all assistance and information as is reasonably required by CH Seller in relation to any Public Notice 7 matters with respect to this Agreement, and CH Seller shall keep Buyer reasonably informed of the status and progress of any Public Notice 7 Filing and subsequent related events. (iii) In the event that any relevant Tax Authority finally determines and assesses any Tax with respect to the indirect transfer pursuant to this Agreement of any Company Member incorporated or organized in the PRC in accordance with Public Notice 7, and such determination is not appealable or CH Seller elects to forgo further appeals, CH Seller shall prepare the relevant Tax Returns and pay the applicable Tax assessed under Public Notice 7. CH Seller shall provide Buyer with reasonable evidence or other correspondence with the Tax Authority including a copy of the Tax Return and Tax payment receipt provided by the applicable Tax Authority, that the applicable Tax assessed under any Public Notice 7 Filing has been paid as soon as reasonably practicable after making such payment. (iv) Any amendments, modifications, supplements, updates or revocations to any Public Notice 7 Filing shall be the responsibility of CH Seller and CH Seller shall keep Buyer reasonably informed of the status and progress of any such amendment, modification, supplement, update or revocation to any Public Notice 7 Filing; provided, however,


 
71 prior to any such action, CH Seller shall provide to Buyer a substantially final draft of any such amendment, modification, supplement, update or revocation for Buyer’s review and comments, and CH Seller shall consider in good faith all reasonable comments of Buyer received within a timely manner with respect to any such amendment, modification, supplement, update or revocation. CH Seller shall provide Buyer with reasonable evidence, to the extent available, that any such amendment, modification, supplement, update or revocation has been duly made as soon as reasonably practicable after taking such action. (v) Notwithstanding anything to the contrary set forth herein, if CH Seller fails to make the Public Notice 7 Filing as set forth in this Section 6.6(g), Buyer shall have the right, but not the obligation, to make such Public Notice 7 Filing to the applicable Tax Authority within 30 days from the date of this Agreement. Buyer shall provide CH Seller with substantially final drafts of such Public Notice 7 Filing materials, and keep CH Seller reasonably informed of the status and progress of any Public Notice 7 Filing and subsequent related events. CH Seller shall have right to attend any meeting with the Tax Authority associated with the Public Notice 7 Filing, and remain liable for relevant Tax payments and Sellers shall reimburse Buyer for all reasonable costs (including attorneys, other professional fees and government charges) in connection therewith (h) Certain 2023 Income Tax Matters. (i) Notwithstanding anything contained herein to the contrary: (A) If, on or prior to the Final Purchase Price being determined in accordance with Section 2.4, any applicable state and local Income Tax Return for the Company or any of its Subsidiaries, or any applicable Income Tax Return for any non-U.S. Subsidiary of the Company, in each case, for the taxable year ending on December 31, 2023, as originally filed pursuant to Section 6.6(c)(i) of this Agreement (each a “2023 Pre-Closing Income Tax Return”) reflects an overpayment of Income Taxes, any such overpayment shall be paid (or caused to be paid) by Buyer to Sellers promptly following the receipt by Buyer of such Tax refund from the applicable Governmental Entity (including by way of being credited for such Tax refund); and (B) If, on or prior to the Final Purchase Price being determined in accordance with Section 2.4, any 2023 Pre-Closing Income Tax Return reflects an underpayment of Income Taxes for such Tax year, any such underpayment shall be paid (or caused to be paid) by Sellers to Buyer promptly following the filing of such 2023 Pre-Closing Income Tax Return. (ii) The Parties will cooperate fully in good faith, as and to the extent reasonably requested by any other party for purposes of carrying out each Parties respective obligations pursuant to this Section 6.6(h), including the prompt filing for Tax refunds.


 
72 (iii) Any amounts payable pursuant to this Section 6.6(h) (x) shall not be made if and to the extent any such amount has otherwise specifically been taken into account in the determination of the Purchase Price pursuant to this Agreement; (y) shall not be further adjusted as a result of any Tax Proceeding or other similar adjustment; and (z) shall be treated for purposes of this Agreement as adjustment to the Purchase Price for federal income (and other applicable) Tax purposes, unless, and only to the extent, otherwise required by applicable Law. Section 6.7 Representation and Warranty Insurance. Buyer may elect to obtain a buy- side representations and warranties insurance policy for its benefit (and its sole cost and expense) in respect of the Transaction (the “R&W Insurance Policy”). If Buyer obtains an R&W Insurance Policy, Buyer will confirm that the R&W Insurance Policy includes a provision stating that the insurer(s) thereunder (the “R&W Insurer”) will not receive and will irrevocably and unconditionally waive, and agree not to bring any action, or pursue or exercise, directly or indirectly, any and all rights and claims of subrogation, contribution, indemnification, recourse and any other rights and claims of recovery against the Sellers and their respective past, present or future direct or indirect shareholders, members, directors, officers, employees, partners, heirs, agents or Representatives (collectively, the “Seller R&W Parties”), except that the R&W Insurer may receive rights of subrogation against the Sellers in the event and to the extent that a payment under the R&W Insurance Policy arose out of Fraud by the Sellers, and then only against such Seller that committed the Fraud (and only to the extent of such Seller’s Liability); provided, that the Fraud of any Person will not be imputed to any other Person. Buyer will ensure that the R&W Insurance Policy (a) includes a provision stating that the Seller R&W Parties are express and intended third party beneficiaries of the R&W Insurance Policy, (b) will not be amended, waived or otherwise modified or revised in any way that adversely affects any of the Seller R&W Parties without prior written consent of the Sellers, and (c) does not require Buyer or any of its Affiliates to make or bring any proceeding against any Seller R&W Party in respect of any breach of a representation or warranty by Sellers in this Agreement or any Ancillary Agreement (other than in the case of Fraud by the Sellers). Within five (5) Business Days of the Closing Date, Sellers shall deliver, or shall cause to be delivered, to Buyer two (2) or more portable “thumb drives” in PC- readable format, that contain readable, working Adobe or other (i.e., Microsoft Office) portable document format files that set forth a complete and accurate set of documents made available, provided or delivered to Buyer prior to the Closing through the Data Room. Section 6.8 Form 8-K Filing. As promptly as practicable after the execution of this Agreement, Parent shall file with the SEC, a Current Report on Form 8-K pursuant to the 1934 Act to report the execution of this Agreement and the consummation of the Transaction in form and substance mutually agreed upon by Parent and Company prior to the Closing (“Transaction Form 8-K”). Parent shall prepare and use reasonable best efforts to provide the Transaction Form 8-K to Company for review at least five (5) Business Days prior to the Closing Date (but in any event shall provide to Company for review at least two (2) Business Days prior to the Closing Date). Prior to the Closing, Parent and Company shall prepare the press release announcing the consummation of the Transaction (“Press Release”). Section 6.9 NYSE Listing. Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable under applicable Laws and the rules and policies of NYSE and the SEC to enable the listing of the shares


 
73 of Parent Common Stock representing the Aggregate Stock Consideration on NYSE no later than the Closing Date, subject to official notice of issuance. Section 6.10 Stockholder Agreement. At the Closing, Parent and the Sellers shall enter into the Stockholder Agreement. Section 6.11 Release. (a) Effective as of the Closing, except with respect to each Seller’s rights or obligations arising under this Agreement or any Ancillary Agreement, each Seller on behalf of itself and such Seller’s Affiliates, successors and assigns (each, a “Seller Releasing Party”), hereby absolutely, unconditionally and irrevocably releases and forever discharges the Company Members and their respective past, present and future directors, managers, members, equityholders, officers, employees, agents, Affiliates, attorneys, representatives, successors and assigns, from any and all Actions (including any derivative claim on behalf of any Person) and Liabilities, at law or in equity, in contract or tort, of any nature whatsoever, whether known or unknown, suspected or unsuspected, previously, now or hereafter arising (collectively, “Causes of Action”), in each case, arising out of, relating to or against any of the Company Members, in respect of any and all Contracts or Liabilities entered into or incurred on or prior to the Closing Date, or in respect of any event occurring or circumstances existing on or prior to the Closing Date, whether or not relating to claims pending on, or asserted after, the Closing Date; provided that such Causes of Action shall not include (i) coverage or indemnification to the extent provided for in Section 6.4, (ii) any claims by a Seller Releasing Party pursuant to this Agreement or any Ancillary Agreement, (iii) claims in respect of Fraud, (iv) coverage under any directors and officers liability insurance policy maintained by a Company Member or (v) any right where a waiver is expressly prohibited by applicable Law. (b) Effective as of the Closing, except with respect to Buyer’s rights or obligations arising under this Agreement or any Ancillary Agreement, Buyer on behalf of itself and its Affiliates, successors and assigns (each, a “Buyer Releasing Party”), hereby absolutely, unconditionally and irrevocably releases and forever discharges the Sellers and their respective past, present and future directors, managers, members, shareholders, officers, employees, agents, Affiliates, attorneys, representatives, successors and assigns, from any and all Causes of Action, in each case, arising out of, relating to or against any of the Company Members (including, for the avoidance of doubt, with respect to the Purchased Interests and Blocker Interests) in respect of any and all Contracts or Liabilities entered into or incurred on or prior to the Closing Date, or in respect of any event occurring or circumstances existing on or prior to the Closing Date, whether or not relating to claims pending on, or asserted after, the Closing Date; provided that such Causes of Action shall not include (i) any claims by a Buyer Releasing Party pursuant to this Agreement or any Ancillary Agreement, (ii) claims in respect of Fraud or (iii) any right where a waiver is expressly prohibited by applicable Law (c) Each of the Seller Releasing Parties and Buyer Releasing Parties is aware that it may hereafter discover facts in addition to or different from those it now knows or believes to be true with respect to the release provided for in this Section 6.11, however, it is the intention of each such Person that such release shall be effective as a full and final accord and satisfactory release of each and every matter specifically or generally referred to in this Section 6.11.


 
74 ARTICLE VII MISCELLANEOUS Section 7.1 Amendment and Waivers. This Agreement may not be amended, modified or supplemented except upon the execution and delivery of a written agreement executed by the Parties and specifically referencing this Agreement. The failure of any party to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights. Section 7.2 Survival. The Parties, intending to modify any applicable statute of limitations, agree that the representations and warranties in this Agreement or in any schedule, instrument or other document delivered pursuant to this Agreement (including in Article III, Article IV and Article V) will terminate effective as of the Closing and will not survive the Closing. No covenant or agreement contained herein that is to be performed on or prior to the Closing will survive the Closing. Any covenant and agreement and any group of related covenants and agreements to be performed, in whole or in part, after the Closing will survive the Closing in accordance with its terms. Section 7.3 Expenses. Except as otherwise specifically provided herein, all fees, costs and expenses (including all legal, accounting, broker, finder and investment banker fees) incurred in connection with this Agreement and the Transaction are to be paid by the Party incurring such fees, costs and expenses. Section 7.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder will be in writing and sent by electronic mail, by nationally recognized overnight courier service or by registered mail and will be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via electronic mail at the email address specified in this Section 7.4 prior to 5:00 p.m. (New York City time) on a Business Day and a copy is sent on such Business Day by nationally recognized overnight courier service, (b) the Business Day after the date of transmission, if such notice or communication is delivered via electronic mail at the email address specified in this Section 7.4 later than 5:00 p.m. (New York City time) on any date and earlier than 12:00 midnight (New York City time) on the following Business Day and a copy is sent no later than such following Business Day by nationally recognized overnight courier service, (c) on the date delivery is promised by the overnight courier service, if sent by nationally recognized overnight courier service (other than in the cases of clauses (a) and (b) above), or (d) upon actual receipt by the party to whom such notice is required to be given if sent by registered mail. The address for such notices and communications will be as follows: (i) if to Buyer or Parent or, after the Closing, Company, to: Titan International, Inc. 1525 Kautz Road Suite 600 West Chicago, Illinois 60185 Attention: Michael G. Troyanovich, General Counsel Email: mike.troyanovich@titan-intl.com


 
75 with a copy to: Bodman PLC 1901 St. Antoine Street 6th Floor at Ford Field Detroit, Michigan 48226 Attention: Robert J. Diehl, Jr. Gene P. Bowen Email: rdiehl@bodmanlaw.com Email: gbowen@bodmanlaw.com (ii) if to the Sellers, or, prior to the Closing, Company, to: American Industrial Partners 450 Lexington Avenue, 40th floor New York, New York 10017 Attn: Joel Rotroff; General Counsel Email: jrotroff@americanindustrial.com; notices@americanindustrial.com with a copy to: Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Attention: Justin A. Macke; MK (Mee Kyung) Han Email: jmacke@sidley.com; mhan@sidley.com Section 7.5 Counterparts. This Agreement may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Signatures to this Agreement transmitted by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. Section 7.6 Entire Agreement; No Third Party Beneficiaries. This Agreement (including the Disclosure Schedule) and the Ancillary Agreements (a) constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter thereof and (b) except as set forth in this Agreement, including Section 6.4, is not intended to and will not confer upon any Person other than the Parties and their permitted assigns any rights, benefits or remedies of any nature whatsoever. Section 7.7 Severability. Any term or provision of this Agreement that is held by a court of competent jurisdiction or other Governmental Entity to be invalid, void or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in


 
76 any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction or other Governmental Entity declares that any term or provision of this Agreement is invalid, void or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible and the Parties agree that the court making such determination will have the power to reduce the scope, duration, area or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. Section 7.8 Governing Law; Consent to Jurisdiction. This Agreement, and all matters arising out of or relating to this Agreement and the Transaction or in connection with any matter which is the subject of this Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, will be construed in accordance with and governed by the laws of the State of Delaware applicable to contracts made and to be performed entirely in such state (without giving effect to the conflict of laws provisions thereof). The Parties hereby irrevocably submit to the exclusive jurisdiction of the Delaware Court of Chancery or any applicable state appellate court therefrom within the State of Delaware, or in the event (but only in the event) such courts do not have subject matter jurisdiction over a given matter, any federal court within the State of Delaware, or in the event (but only in the event) such courts do not have subject matter jurisdiction over a given matter, any state court within the State of Delaware (collectively, the “Chosen Courts”) over any action arising out of or in connection with this Agreement or the Transaction or related to any matter which is the subject of this Agreement and each Party hereby irrevocably agrees that all claims in respect of such action may be heard and determined in such courts. The Parties hereby irrevocably waive any objection which they may now or hereafter have to the laying of venue of such action brought in such court or any claim that such action brought in such court has been brought in an inconvenient forum. Each of the Parties agrees that a judgment in such action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by any applicable Law. Each of the Parties hereby irrevocably consents to process being served by any party to this Agreement in any action by delivery of a copy thereof in accordance with the provisions of Section 7.4 and consents to the exercise of jurisdiction of the Chosen Courts over it and its properties with respect to any action, suit or proceeding arising out of or in connection with this Agreement or the Transaction or the enforcement of any rights under this Agreement. Section 7.9 Assignment. This Agreement will be binding upon, and will be enforceable by and inure solely to the benefit of, the Parties and their respective successors and assigns; provided, however, that neither this Agreement nor any of the rights or obligations of any Party may be assigned or delegated by such Party without the prior written consent of the other Parties; provided, that no assignment pursuant to this Section 7.9 will limit any Party’s obligations hereunder. Any attempted assignment or delegation of this Agreement or any of such rights or obligations by any Party in violation of this Agreement will be void and of no effect. Notwithstanding the foregoing, Buyer may assign its rights under this Agreement, in whole or in part, without the prior written consent of the other Parties, to any lender of Buyer or any Affiliate of Buyer as collateral security for borrowings in connection with the transactions that are the subject of this Agreement. Section 7.10 Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance


 
77 with their specific terms or were otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such breach. It is accordingly agreed that: (a) Buyer and Parent (on behalf of themselves and the Company Members) will be entitled to an injunction, specific performance and other equitable relief to prevent or restrain breaches or threatened breaches of this Agreement by the Sellers and to enforce specifically all of the terms and provisions hereof, and (b) the Sellers will be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches by Buyer or Parent. The Sellers, on the one hand, and Buyer and Parent, on the other hand, hereby agree not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of the provisions of this Agreement identified above in this Section 7.10 by such Party. Appropriate injunctive relief will, however, be cumulative and not exclusive and will be in addition to any other remedies which a Party may have under this Agreement. Section 7.11 Non-Recourse. Notwithstanding any other provision of this Agreement or any rights of a Party at Law or in equity, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement or the Transaction may only be brought against, the Persons that are expressly Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Section 7.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NEGOTIATION OF THIS AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT OR THE TRANSACTION. Section 7.13 Legal Representation. (a) Buyer agrees that, as to all communications between and among all counsel for the Sellers (including Fredrikson & Byron, P.A., Ropes & Gray LLP, Baker Botts LLP and Sidley Austin LLP) and the Company Members or their respective Affiliates that relate in any way to the Transaction, in each case to the extent protectable under Model Rule of Professional Conduct 1.6 or other applicable Law governing privilege and client confidences (collectively, the “Privileged Communications”), the attorney-client privilege and the expectation of client confidence with respect to the Privileged Communications belongs to the Sellers and may be controlled by the Sellers and will not pass to or be claimed by Buyer or any of its respective Affiliates (including, following the Closing, the Company Members). The Privileged Communications are the property of the Sellers and, from and after the Closing, none of Buyer, its Affiliates (including, following the Closing, the Company Members) or any Person purporting to act on behalf of or through Buyer or its Affiliates will seek to obtain the Privileged Communications, whether by seeking a waiver of the attorney-client privilege or through other means. Buyer and its Affiliates (including, following the Closing, the Company Members), together with any of their respective Affiliates, successors or assigns, further agree that no such party may use or rely on any of the Privileged Communications in any action against or involving the Sellers or any of their respective Affiliates after the Closing. The Privileged Communications may be used by the Sellers or any of their respective Affiliates in connection with any dispute that relates to the Transaction or in connection with this Agreement or any of the Ancillary Agreements, which use shall constitute a waiver. Notwithstanding the foregoing, in the event that a dispute


 
78 arises between Buyer or any of its Subsidiaries and a third party (other than a party to this Agreement or any of its Affiliates) after the Closing, Buyer and its Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications by counsel to such third party; provided, that neither Buyer nor its Subsidiaries (including, following the Closing, the Company Members) may waive such privilege without the prior written consent of the Sellers. (b) Recognizing that Fredrikson & Byron, P.A., Ropes & Gray LLP, Baker Botts LLP and Sidley Austin LLP have acted as legal counsel to the Sellers, and may be deemed to have acted as legal counsel to the Company Members prior to Closing, and that Fredrikson & Byron, P.A., Ropes & Gray LLP, Baker Botts LLP and Sidley Austin LLP intend to act as legal counsel to the Sellers after the Closing, the Parties acknowledge that the Company Members have waived, on their own behalf, and Buyer hereby waives, any conflicts that may arise in connection with Fredrikson & Byron, P.A., Ropes & Gray LLP, Baker Botts LLP and Sidley Austin LLP representing the Sellers after the Closing. Section 7.14 Seller Representative. (a) By the execution of this Agreement, each Seller hereby irrevocably constitutes and appoints CH Seller (“Seller Representative”) as its agent, proxy, and attorney-in-fact for each of the Seller Group Members for all purposes authorized under this Agreement, including the full power and authority on behalf of the Seller Group Members (i) to direct or disburse any payments to be made to the Sellers hereunder; (ii) to endorse and deliver any certificates or instruments representing the Purchased Interests and the Blocker Interests and execute such further instruments of assignment as Buyer or Parent shall reasonably request; (iii) to execute and deliver on behalf of such Seller Group Member any amendment or waiver hereto; (iv) (A) to dispute or refrain from disputing, or to deliver instructions, on behalf of such Seller Group Member relative to any amounts to be received by the applicable Seller under this Agreement or any Ancillary Agreement, or any claim made by Buyer or Parent under this Agreement or any Ancillary Agreement, (B) to negotiate and compromise, on behalf of any Seller Group Member, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any Ancillary Agreement, and (C) to execute, on behalf of each Seller Group Member, any settlement agreement, release or other document with respect to such dispute or remedy; (v) to engage attorneys, accountants, agents or consultants on behalf of the Seller Group Members in connection with this Agreement or any Ancillary Agreement and pay any out-of-pocket fees related thereto; and (vii) to do each and every act and exercise any and all rights which such Seller Group Member individually or collectively with the other Seller Group Members are permitted or required to do or exercise in the judgment of Seller Representative to accomplish any of the foregoing or as contemplated by this Agreement or any Ancillary Agreement. Each Seller agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Seller Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any such Seller or its successors and assigns. All decisions and actions by Seller Representative (to the extent authorized by this Agreement) shall be binding upon all of the Seller Group Members, and no Seller Group Member shall have the right to object, dissent, protest or otherwise contest the same. (b) Each Seller agrees that Buyer and Parent shall be entitled to rely on any action taken by Seller Representative, on behalf of such Seller Group Member, pursuant to Section


 
79 7.14(a) (an “Authorized Action”), and that each Authorized Action shall be binding on each such Seller Group Member as fully as if such Seller Group Member had taken such Authorized Action. (c) Seller Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Seller Group Member, except in respect of amounts received on behalf of such Seller Group Member for further distribution to the applicable Seller Group Member. Seller Representative shall not be liable to any Seller Group Member for any action taken or omitted by it or any agent employed by it hereunder or under any Ancillary Agreement, except that Seller Representative shall not be relieved of any liability imposed by law for willful misconduct. Seller Representative shall not be liable to the Seller Group Members for any apportionment or distribution of payments made by Seller Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Seller Group Member to whom payment was due, but not made, shall be to recover from the other Seller Group Members any payment in excess of the amount to which they are determined to have been entitled. Seller Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither Seller Representative nor any agent employed by it shall incur any liability to any Seller Group Member by virtue of the failure or refusal of Seller Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of its other duties hereunder, except for actions or omissions constituting actual and intentional fraud. (d) Seller Representative (in its capacity as such) shall be entitled to retain counsel and to incur such expenses (including court costs and reasonable attorneys’ fees and expenses) as Seller Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement. All fees and expenses incurred by Seller Representative in performing its duties as the Seller Representative shall be borne by the Sellers. (e) Each Seller hereby agrees to indemnify Seller Representative (in its capacity as such) against, and to hold Seller Representative (in its capacity as such) harmless from any and all liabilities of whatever kind which may at any time be imposed upon, incurred by or asserted against Seller Representative (in its capacity as such) in any way relating to or arising out of Seller Representative’s action or failure to take action pursuant to this Agreement or in connection herewith or therewith in such capacity; provided, that Sellers shall not be liable for the payment of any portion of such liabilities to the extent resulting from the fraud of Seller Representative. Sellers hereby authorize Seller Representative to apply proceeds otherwise distributable to Sellers pursuant to this Agreement to satisfy any of Sellers’ obligations under this Section 7.14. (f) Seller Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Sellers on a pro rata basis (the “Majority Holders”); provided, however, in no event shall Seller Representative resign or be removed without the Majority Holders having first appointed a new Seller Representative who shall assume such duties immediately upon the resignation or removal of the Seller Representative. In the event of the death, incapacity, resignation or removal of the Seller Representative, a new Seller Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Seller Representative shall be sent to Parent and Buyer, such appointment to be effective upon the


 
80 later of the date indicated in such consent or the date such notice is received by Parent and Buyer; provided, that until such notice is received, Parent and Buyer, shall be entitled to rely on the decisions and actions of the prior Seller Representative as described in Section 7.14(a). [Signatures on Following Page.]


 
[SIGNATURE PAGE TO MEMBERSHIP INTEREST PURCHASE AGREEMENT] 4855-9326-7881_1 4889-2802-6525v.10 IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the date first written above. TITAN INTERNATIONAL, INC. By: /s/ Paul Reitz ________________________ Name: Paul Reitz ________________________ Title: President __________________________ TITAN TIRE HOLDINGS, INC. By: /s/ Paul Reitz ________________________ Name: Paul Reitz ________________________ Title: President __________________________ CARLSTAR INTERMEDIATE HOLDINGS I LLC By: /s/ Max Narancich ____________________ Name: Max Narancich ____________________ Title: Chief Financial Officer _______________ AIPCF V FEEDER CTP TIRE LLC By: /s/ Stanley Edme ______________________ Name: Stanley Edme______________________ Title: Authorized Person ___________________


 
[SIGNATURE PAGE TO MEMBERSHIP INTEREST PURCHASE AGREEMENT] 4855-9326-7881_1 4889-2802-6525v.10 AIPCF V FEEDER C (CAYMAN), LP By: /s/ Stanley Edme ______________________ Name: Stanley Edme______________________ Title: Vice President ______________________ THE CARLSTAR GROUP, LLC By: /s/ Jacob Thomas _____________________ Name: Jacob Thomas _____________________ Title: President __________________________


 
4855-9326-7881_1 4889-2802-6525v.10


 
4890-5883-7151v.9 4894-5195-433614894-5195-4336 STOCKHOLDERS AGREEMENT by and among TITAN INTERNATIONAL, INC. and the other parties hereto Dated as of February 29, 2024


 
4890-5883-7151v.9 STOCKHOLDERS AGREEMENT This STOCKHOLDERS AGREEMENT (as it may be amended from time to time in accordance with the terms hereof, this “Agreement”) is dated as of February 29, 2024, by and among Titan International, Inc., a Delaware corporation (the “Company”), Carlstar Intermediate Holdings I LLC, a Delaware limited liability company (“CH Seller”), AIPCF V Feeder CTP Tire LLC, a Delaware limited liability company (“Blocker Seller 1”), and AIPCF V Feeder C (Cayman), LP, a Cayman Islands exempted limited partnership (“Blocker Seller 2,” and together with CH Seller and Blocker Seller 1, the “Stockholders”). RECITALS WHEREAS, on the date hereof, the Company entered into that certain Membership Interest Purchase Agreement (the “Purchase Agreement”), by and among the Company, the Stockholders and The Carlstar Group LLC, a Delaware limited liability company; WHEREAS, the transactions contemplated by the Purchase Agreement have been consummated as of the date of this Agreement and, pursuant to the Purchase Agreement, Company has issued an aggregate of 11,921,766 shares of Common Stock (the “Initial Shares”) to the Stockholders. WHEREAS, the Company and the Stockholders desire to enter into this Agreement to set forth their understanding and agreement as to certain rights and obligations of the Holders (as defined below) and the Company upon and after the consummation of the transactions contemplated in the Purchase Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements of the parties hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree, intending to be legally bound, as follows: 1. Certain Definitions. As used herein, the following terms shall have the following meanings: “2025 Meeting” means the Company’s 2025 annual shareholders meeting. “Additional Piggyback Rights” has the meaning set forth in Section 2.3(c). “Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Company, upon the written advice of external counsel to the Company, (a) would be required to be made in any registration statement or SEC report in order for it to not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the registration statement or report were not being filed, declared effective or used, as the case


 
3 4890-5883-7151v.9 may be, and (c) the Company has a bona fide business purpose for not making such information public. “Affiliate” means when used with respect to a specified Person, any Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person; provided that for purposes hereof, (i) each Fund V Person shall be deemed to be an Affiliate of every other Fund V Person, (ii) neither the Company nor any Subsidiary of the Company shall be deemed to be an Affiliate of any Holder, and (iii) except as set forth in clause (i) above, no Holder shall be deemed to be an Affiliate of any other Holder. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or partnership or other ownership interests, by contract, as trustee or executor, or otherwise, and “controlled” and “controlling” have meanings corresponding to the foregoing. “Agreement” has the meaning set forth in the preamble. “Automatic Shelf Registration Statement” has the meaning set forth in Section 2.5. “Beneficially Own” means, with respect to any securities, having “beneficial ownership” of such securities for purposes of Rule 13d-3 or 13d-5 promulgated under the Exchange Act. “Blocker Seller 1” has the meaning set forth in the preamble. “Blocker Seller 2” has the meaning set forth in the preamble. “Board” means the board of directors of the Company. “Business Day” means any day other than a Saturday, Sunday or day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close. “CH Seller” has the meaning set forth in the preamble. “Claims” has the meaning set forth in Section 2.10(a). “Closing” shall have the meaning given in the Purchase Agreement. “Closing Date” shall have the meaning given in the Purchase Agreement. “Common Stock” means the common stock of the Company, par value $0.0001 per share. “Company” has the meaning set forth in the preamble. “Company Competitor” means those competitors of the Company identified on Schedule A to this Agreement, as such Schedule A is supplemented or amended from time to time to (a) add successors thereto or acquirers thereof, in each case with the consent of the Stockholders, not to be unreasonably withheld, conditioned or delayed or (b) remove competitors as a result of


 
4 4890-5883-7151v.9 divestitures by the Company, in each case with the consent of the Company, not to be unreasonably withheld, conditioned or delayed. “Company Shares” means (a) Common Stock, and (b) Equity Securities that may be issued by the Company after the date hereof in respect of, in exchange for, or in substitution of, Company Shares, pursuant to any stock dividends, splits, reverse splits, combinations, reclassifications, recapitalizations, reorganizations and the like occurring after the date hereof. “Demand” has the meaning set forth in Section 2.2(a). “Demand Request” has the meaning set forth in Section 2.2(a). “EDGAR” has the meaning set forth in Section 7.3. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Equity Securities” means all shares of Common Stock, all securities convertible into or exchangeable for shares of Common Stock of the Company, and all options, warrants and other rights to purchase or otherwise acquire from the Company shares of Common Stock, or securities convertible into or exchangeable for shares of Common Stock. “Expenses” means any and all fees and expenses incident to the Company’s performance of or compliance with Section 2, including, without limitation: (i) SEC, stock exchange or FINRA registration and filing fees and all listing fees and fees with respect to the inclusion of securities on the New York Stock Exchange or on any other securities market on which the Company Shares are listed or quoted, (ii) fees and expenses of compliance with state securities or “blue sky” laws and in connection with the preparation of a “blue sky” survey, including, without limitation, reasonable fees and expenses of “blue sky” counsel, (iii) printing and copying expenses, (iv) messenger and delivery expenses, (v) expenses incurred in connection with any road show, (vi) fees and disbursements of counsel for the Company, (vii) fees and disbursements of one outside counsel for Participating Holder(s) (selected by the Majority Participating Holders, and subject to a cap of $30,000 per registration and an aggregate cap of $150,000), (viii) fees and disbursements of all independent public accountants (including the expenses of any audit and/or comfort letter and updates thereof) and fees and expenses of other Persons retained by the Company, including special experts, (ix) fees and expenses payable to any Qualified Independent Underwriter, and (x) any other fees and disbursements of underwriters, if any, customarily paid by issuers of securities (excluding, for the avoidance of doubt, any underwriting discount or spread). For the avoidance of doubt, “Expenses” does not include expenses of a Holder incident to the registration and sale of the Registrable Securities, including all fees, costs and expenses of each Holder’s counsel, accountants, advisors or representatives relating to the registration and sale of the Registrable Securities other than as set forth in clause (vii) above. “FINRA” means the Financial Industry Regulatory Authority. “Form S-3 Shelf” means a registration statement on Form S-3 or other applicable registration form, including Form S-1 to the extent the Company is not eligible to use Form S-3.


 
5 4890-5883-7151v.9 “Group” has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act. “Group Member” means, with respect to any specified Person, any Affiliate of the specified Person that is, directly or indirectly, Controlled by the specified Person and includes any Person with respect to which the specified Person is a direct or indirect Subsidiary. “Fund V Person” means each of CH Seller, Blocker Seller 1, Blocker Seller 2 and any Permitted Transferee who is Transferred any or all of such Fund V Person’s Registrable Securities in accordance with Section 7.6. “Holder” means the Fund V Persons or any transferee of Registrable Securities to whom any Fund V Person shall Transfer any rights hereunder in accordance with Section 7.6. “Initial Shelf Registration Statement” has the meaning set forth in Section 2.1(a) “Initiating Holder(s)” has the meaning set forth in Section 2.2(a). “Lock-Up Period” means the period from the date of this Agreement until the earlier of (a) December 31, 2024 and (b) the date that the Initial Shelf Registration Statement is declared effective by the SEC (or otherwise becomes automatically effective). “Majority Participating Holders” means the Participating Holders holding more than 50% of the Registrable Securities proposed to be included in an offering of Registrable Securities pursuant to Section 2.2 or Section 2.3. “Manager” has the meaning set forth in Section 2.2(c). “Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a registration statement or prospectus or necessary to make the statements in a registration statement or prospectus (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading. “Non-Prohibited Transfer” means, in each case, so long as such Transfer is in accordance with applicable law (a) any Lock-Up Period Permitted Transfer, (b) a Transfer of Company Shares offered through any public offering for cash as contemplated by NYSE Rule 312.03, pursuant to an exercise of the registration rights provided in Section 2, (c) a Transfer of Company Shares effected through a broker’s transaction as defined in Rule 144(g) executed on a securities exchange or over-the-counter market by a securities broker-dealer acting as an agent for the Stockholder (so long as such Transfer is not directed by the Stockholder to be made to a particular party or counterparties), or (d) a Transfer of Shares in any underwritten offering. “Participating Holders” means all Holders of Registrable Securities which are proposed to be included in any registration or offering of Registrable Securities pursuant to Section 2.2 or Section 2.3. “Partner Distribution” has the meaning set forth in Section 2.2(b)(ii).


 
6 4890-5883-7151v.9 “Permitted Transferee” means, in the case of any Holder, a direct or indirect controlled Affiliate of such Holder, provided that if any such transferee ceases to be a direct or indirect controlled Affiliates of such Holder, (a) such transferee shall immediately Transfer back the transferred Company Shares to the Holder, as if such Transfer of such Company Shares had not taken place and (b) the Company shall no longer, and shall instruct its transfer agent to no longer, record or recognize such Transfer of such Company Shares on the shareholders’ register of the Company. “Person” means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, governmental entity or agency or other entity of any kind or nature. “Piggyback Shares” has the meaning set forth in Section 2.4(a)(v). “Prohibited Transferee” means any Transferee, the identity of whom is known to a Holder who, to the actual knowledge of a Holder (with respect to clause (ii) based solely upon publicly available information), is (i) a Company Competitor or (ii) a Person (other than an Affiliate of Holder) that has filed a Schedule 13D with the SEC in respect of any class of equity securities of the Company, or (iii) a Person (other than an Affiliate of Holder) who is part of a “group” (as defined in Section 13(d) of the Exchange Act) that has filed a Schedule 13D with the SEC in respect of any class of equity securities of the Company. “Purchase Agreement” has the meaning set forth in the recitals. “Qualified Independent Underwriter” means a “qualified independent underwriter” within the meaning of FINRA Rule 5121. “Registrable Securities” means, subject to any adjustment in accordance with Section 7.1,(i) the Initial Shares, and (ii) any securities issued by way of a share dividend, distribution or share split or in connection with a replacement of or exchange for the Initial Shares; provided that, as to any Registrable Securities held by a particular Holder, such securities shall cease to be Registrable Securities when: (a) a registration statement with respect to the sale of such securities shall have been declared effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such registration statement; (b) such securities shall have ceased to be outstanding; (c) such securities have been sold to, or through, a broker, dealer or underwriter or pursuant to Rule 144 in a public distribution or other public securities transaction and are no longer held by such Holder; or (d) such securities have been Transferred in violation of Section 3.1 of this Agreement. “Rule 144” and “Rule 144A” have the meaning set forth in Section 7.2.


 
7 4890-5883-7151v.9 “SEC” means the U.S. Securities and Exchange Commission. “Section 2.4(a) Sale Number” has the meaning set forth in Section 2.4(a). “Section 2.4(b) Sale Number” has the meaning set forth in Section 2.4(b). “Section 2.4(c) Sale Number” has the meaning set forth in Section 2.4(c). “Securities Act” means the United States Securities Act of 1933, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time. “Shelf” shall mean the Form S-3 Shelf or any Subsequent Shelf Registration Statement, as the case may be. “Subsequent Shelf Registration Statement” means a new shelf registration statement filed in the event the Shelf ceases to be effective while Registrable Securities are still outstanding. “Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, or other business entity of which a majority of the voting securities or voting interests is at the time Beneficially Owned, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. “Standstill Period” means the period beginning on the date hereof and ending on the first Business Day following the date of the 2025 Meeting. “Suspension Notice” has the meaning set forth in Section 2.8(b). “Transfer” means to directly or indirectly sell, transfer, assign, distribute, exchange, pledge, hypothecate, mortgage, grant a security interest in, encumber or otherwise dispose of capital stock or other security, whether voluntarily or by operation of law, including by way of a merger. “Transferor,” “Transferee,” and “Transferring” have meanings corresponding to the foregoing. “Underwritten Shelf Takedown” means the sale of all or any portion of a Holders’ Registrable Securities in an underwritten offering that is registered pursuant to the Shelf. “Valid Business Reason” has the meaning set forth in Section 2.8(b)(ii). “WKSI” has the meaning set forth in Section 2.5. 2. Registration Rights. 2.1. Shelf Registration. (a) On or before November 1, 2024, the Company shall file with the SEC a registration statement for a Shelf registration on a Form S-3 Shelf covering the resale of all the Registrable


 
8 4890-5883-7151v.9 Securities (determined as of two (2) business days prior to such submission or filing) on a delayed or continuous basis (the “Initial Shelf Registration Statement”) and, if such Shelf is not an automatically effective Shelf, shall use its reasonable best efforts to have such Shelf declared effective as soon as practicable after the filing thereof, but no later than the earlier of (x) the sixtieth (60th) calendar day following the filing date thereof if the SEC notifies the Company that it will “review” the registration statement and (y) the seventh (7th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. (b) If any Shelf ceases or will cease to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall use its reasonable best efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act or file a Subsequent Shelf Registration Statement registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), in each case using its reasonable best efforts to prevent any period in which the Registrable Securities would not be subject to a Shelf, and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement is filed, the Company shall use its reasonable best efforts to (i) if such Shelf is not an automatically effective Shelf, cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof and (ii) keep such Subsequent Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. 2.2. Demands for Underwritten Shelf Takedowns. (a) If at any time after the expiration of the Lock-Up Period, the Company shall receive a written request from a Holder or group of Holders for an Underwritten Shelf Takedown (a “Demand Request,” and the underwritten offering so requested is referred to herein as a “Demand,” and the sender(s) of such request pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall use its reasonable best efforts to effectuate such Underwritten Shelf Takedown as soon as practicable, including preparing and, if required by applicable law, filing any amendment or supplement to the related prospectus or an amendment or supplement to any document incorporated therein by reference or any other required document in such a manner as to permit such Holder or group of Holders to deliver or be deemed to deliver such prospectus to purchasers of Registrable Securities in accordance with applicable law and to enable such Registrable Securities to be offered, sold and distributed in the Underwritten Shelf


 
9 4890-5883-7151v.9 Takedown. All requests for Underwritten Shelf Takedowns shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Notwithstanding the foregoing, the Company is not obligated to effect an Underwritten Shelf Takedown: (i) more than three (3) times in any twelve-month period; (ii) prior to the expiration or waiver of the applicable lockup period, if any, in respect of another Underwritten Shelf Takedown pursuant to this Section 2.2, provided that such lockup period shall not exceed 180 days; (iii) during the period starting with the date 30 days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date 90 days after the effective date of, a Company-initiated registration (other than a registration statement on Form S-8 or any successor or other forms promulgated for similar purposes or forms filed in connection with any employee benefit or stock purchase and/or dividend reinvestment plan); provided that the Company continues to actively use, in good faith, its reasonable best efforts to maintain the effectiveness of the applicable registration statement; or (iv) where the anticipated offering price, before any underwriting discounts or commissions and any offering-related expenses, is equal to or greater than $50,000,000, or, if the total outstanding Registrable Securities then held by the Stockholder is less than $50,000,000, $25,000,000. (b) (i) The Company, subject to Sections 2.4 and 2.7, shall include in an Underwritten Shelf Takedown (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to the Company for inclusion in such underwritten offering pursuant to Section 2.3 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder). (ii) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a direct or indirect distribution to, and resale or distribution by, the members or partners of a Holder for which the registration statement is required under the Securities Act to make such resale or distribution (a “Partner Distribution”), file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language reasonably requested and deemed necessary or advisable by such Holder, subject to compliance with applicable securities laws, if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, subject to compliance with applicable securities laws, including filing a prospectus supplement naming the Holders, partners, members and shareholders to the extent required by law, and otherwise take any action deemed necessary


 
10 4890-5883-7151v.9 or advisable by such Holder, to effect such Partner Distribution (including, if requested by such Holder and upon receipt of customary representations by such Holder, an opinion from the Company’s counsel). (c) In connection with any Underwritten Shelf Takedown, the Majority Participating Holders shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with such registration and up to two other managing underwriters for such registration (which underwriter(s) shall be reasonably satisfactory to the Company, such consent not to be unreasonably withheld, conditioned or delayed). Within five (5) Business Days following the designation by the Manager of the lead underwriter(s), the Company shall have the right to select an additional underwriter to serve as the co-managing underwriter. Notwithstanding the foregoing, compensation of the underwriters designated pursuant to this Section 2.2(c) shall be determined by the Majority Holders in their sole discretion, provided that such compensation shall be reasonable and comparable to compensation paid to underwriters in similar underwritten shelf offerings. (d) Notwithstanding anything to the contrary in this Agreement, the Company may effectuate any Underwritten Shelf Takedown pursuant to any then effective registration statement that is then available for such offering. 2.3. Piggyback Registrations. (a) If the Company intends to register or commence an offering of any of its securities for its own account or otherwise (other than a registration statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) pursuant to a registration statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iii) for a dividend reinvestment plan or (iv) filed pursuant to Section 2.1 hereunder), the Company shall: (i) promptly give to each Holder written notice thereof (in any event within five (5) Business Days prior to the initial filing of a registration statement or preliminary prospectus, as the case may be); and (ii) include in such registration and in any underwriting involved therein (if any), all the Registrable Securities specified in a written request or requests, made within three (3) business days after receipt of such written notice from the Company, by any of the Holders, except as set forth in Section 2.3(b) and Section 2.3(d), with the securities which the Company at the time proposes to register or sell to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered or sold, including, if necessary, by filing with the SEC a supplement to the registration statement filed by the Company or the prospectus related thereto. There is no limitation on the number of such piggyback registrations pursuant to the preceding sentence which the Company is obligated to effect. No registration of Registrable Securities effected under this Section 2.3(a) shall relieve the


 
11 4890-5883-7151v.9 Company of its obligations to effect Underwritten Shelf Takedowns under Section 2.2 hereof. (b) If the registration in this Section 2.3 involves an underwritten offering, the right of any Holder to include its Registrable Securities in a registration or offering pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in the underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters. (c) The Company, subject to Sections 2.4 and 2.7, may elect to include in any registration statement and offering pursuant to a Demand by any Person, (i) authorized but unissued shares of Company Shares or Company Shares held by the Company as treasury shares and (ii) any other Company Shares which are requested to be included in such registration pursuant to the exercise of piggyback registration rights granted by the Company after the date hereof and which are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to, and subject to, the terms of the underwriting agreement or arrangements, if any, entered into by the Initiating Holders. (d) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder (including to effect a Partner Distribution), file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language reasonably requested and deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder including filing a prospectus supplement naming the Holders, partners, members and shareholders to the extent required by law. 2.4. Allocation of Securities Included in Registration Statement or Offering. (a) Notwithstanding any other provision of this Agreement, in connection with an underwritten offering initiated by a Demand Request, if the Manager advises the Initiating Holders and the Company in writing that in the Manager’s good faith opinion marketing factors require a limitation of the number of shares to be underwritten (such number, the “Section 2.4(a) Sale Number”) within a price range acceptable to the Majority Participating Holders, the Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the Company shall use its reasonable best efforts to include in such registration or offering, as applicable, the number of shares of Registrable Securities in the registration and underwriting as follows: (i) first, all Registrable Securities requested to be included in such registration or offering by the Initiating Holders thereof; provided, however, that if such number of Registrable Securities exceeds the Section 2.4(a) Sale Number, the number of such


 
12 4890-5883-7151v.9 Registrable Securities (not to exceed the Section 2.4(a) Sale Number) to be included in such registration shall be allocated among all such Initiating Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Initiating Holders at the time of filing of the registration statement or the time of the offering, as applicable; (ii) second, all Registrable Securities requested to be included in such registration or offering by Holders pursuant to the exercise of piggyback rights pursuant to Section 2.3(a); provided, however, that if such number of Registrable Securities exceeds the Section 2.4(a) Sale Number, the number of such Registrable Securities (not to exceed the Section 2.4(a) Sale Number) to be included in such registration shall be allocated among all such Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing of the registration statement or the time of the offering, as applicable; (iii) third, if by the withdrawal of Registrable Securities by a Participating Holder, a greater number of Registrable Securities held by other Holders, may be included in such registration or offering (up to the Section 2.4(a) Sale Number), then the Company shall offer to all Holders who have included Registrable Securities in the registration or offering the right to include additional Registrable Securities in the same proportions as set forth in Section 2.4(a)(ii); (iv) fourth, to the extent that the number of Registrable Securities to be included pursuant to clauses (i), (ii) and (iii) of this Section 2.4(a) is less than the Section 2.4(a) Sale Number, and if the underwriter so agrees, any securities that the Company proposes to register or sell, up to the Section 2.4(a) Sale Number; and (v) fifth, to the extent that the number of securities to be included pursuant to clauses (i), (ii), (iii) and (iv) of this Section 2.4(a) is less than the Section 2.4(a) Sale Number, the remaining securities to be included in such registration or offering shall be allocated on a pro rata basis among all Persons requesting that securities be included in such registration or offering pursuant to the exercise of Additional Piggyback Rights (“Piggyback Shares”), based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.4(a) Sale Number. (b) Notwithstanding any other provision of this Agreement, in a registration involving an underwritten offering on behalf of the Company, which was initiated by the Company, if the Manager determines that marketing factors require a limitation of the number of shares to be underwritten (such number, the “Section 2.4(b) Sale Number”) the Company shall so advise all Holders whose securities would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated as follows:


 
13 4890-5883-7151v.9 (i) first, all equity securities that the Company proposes to register for its own account; (ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.4(b) is less than the Section 2.4(b) Sale Number, among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities requested for inclusion in such registration by Holders pursuant to Section 2.3 up to the Section 2.4(b) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.4(b) is less than the Section 2.4(b) Sale Number, the remaining securities to be included in such registration shall be allocated on a pro rata basis among all Persons requesting that securities be included in such registration pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.4(b) Sale Number. (c) If any registration pursuant to Section 2.3 involves an underwritten offering by any Person(s) other than a Holder to whom the Company has granted registration rights which are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement, the Manager (as selected by the Company or such other Person) shall advise the Company that, in its view, the number of securities requested to be included in such registration exceeds the number (the “Section 2.4(c) Sale Number”) that can be sold in an orderly manner in such registration within a price range acceptable to the Company, the Company shall include shares in such registration as follows: (i) first, the shares requested to be included in such registration shall be allocated on a pro rata basis among such Person(s) requesting the registration and all Holders requesting that Registrable Securities be included in such registration pursuant to the exercise of piggyback rights pursuant to Section 2.3, based on the aggregate number of securities or Registrable Securities, as applicable, then owned by each of the foregoing requesting inclusion in relation to the aggregate number of securities or Registrable Securities, as applicable, owned by all such Holders and Persons requesting inclusion, up to the Section 2.4(c) Sale Number; (ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.4(c) is less than the Section 2.4(c) Sale Number, the remaining shares to be included in such registration shall be allocated on a pro rata basis among all Persons requesting that securities be included in such registration pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.4(c) Sale Number; and


 
14 4890-5883-7151v.9 (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.4(c) is less than the Section 2.4(c) Sale Number, the remaining shares to be included in such registration shall be allocated to shares the Company proposes to register for its own account, up to the Section 2.4(c) Sale Number. (d) If any Holder of Registrable Securities disapproves of the terms of the underwriting, or if, as a result of the proration provisions set forth in clauses (a), (b) or (c) of this Section 2.4, any Holder shall not be entitled to include all Registrable Securities in a registration or offering that such Holder has requested be included, such Holder may elect to withdraw such Holder’s request to include Registrable Securities in such registration or offering or may reduce the number requested to be included; provided, however, that (x) such request must be made in writing, to the Company, Manager and, if applicable, the Initiating Holder(s), prior to the execution of the underwriting agreement with respect to such registration and (y) such withdrawal or reduction shall be irrevocable and, after making such withdrawal or reduction, such Holder shall no longer have any right to include such withdrawn Registrable Securities in the registration as to which such withdrawal or reduction was made to the extent of the Registrable Securities so withdrawn or reduced. 2.5. Registration Procedures. Except as otherwise provided in this Agreement, if and whenever the Company is required by the provisions of this Agreement to use reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company shall act as expeditiously as reasonably practicable (but in any event within 75 days after a demand for an Underwritten Shelf Takedown in the case of Section 2.5(a)) in connection with the registration of the Registrable Securities and, where applicable, a takedown off of a Shelf registration: (a) promptly prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof (including, without limitation, a Partner Distribution), which registration form (i) shall be selected by the Company and (ii) shall, in the case of a Shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the first date as of which all of the Registrable Securities included in the registration statement have been sold or have ceased to be Registrable Securities (provided, however, that, upon request, before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company shall furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders) copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the review and comment of such counsel, and the Company shall not file a Shelf registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto (other than any


 
15 4890-5883-7151v.9 amendments or supplements as a result of the filing of any documents that are incorporated by reference in any of the foregoing) to which the Majority Participating Holders shall reasonably object); (b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for the period set forth in Section 2.5(a) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition (including to effect a Partner Distribution) by the seller or sellers thereof set forth in such registration statement, including, at the reasonable request of any Holder, any disclosure and language reasonably requested and deemed necessary or advisable by such Holder if such disclosure or language was not included in a Shelf, or revise such disclosure or language if deemed necessary or advisable by such Holder, including filing a prospectus supplement naming the Holders, Permitted Transferees, partners, members and shareholders to the extent required by law, in each case in accordance with and as permitted by applicable securities laws and not inconsistent with the other provisions of this Agreement; (c) in the event of any Underwritten Shelf Takedown, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering; provided that such underwriting agreement shall (i) be satisfactory in form and substance to the Majority Participating Holders and (ii) contain such representations and warranties by, and such other agreements on the part of, the Company and such other terms as are generally prevailing in agreements of that type, including, without limitation, indemnities and contribution agreements on substantially the same terms as those contained herein. Any Participating Holder shall be a party to such underwriting agreement; (d) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller; (e) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company be required to qualify to do business as a foreign corporation in any


 
16 4890-5883-7151v.9 jurisdiction where it would not, but for the requirements of this Agreement, be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; (f) promptly notify each Participating Holder and each managing underwriter, if any: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any free writing prospectus has been filed (other than any documents that are incorporated by reference in any of the foregoing) and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time between the signing and closing of an offering to which an underwriting agreement, securities sale agreement, or other similar agreement relates, the representations and warranties contemplated by such agreement shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading; (g) comply (and continue to comply) with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement, an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (h) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, and (ii) comply (and continue to comply) with the requirements of any self-


 
17 4890-5883-7151v.9 regulatory organization applicable to the Company, including without limitation all corporate governance requirements, not later than the effective date of such registration statement; (i) cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement; (j) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, in each case in accordance with and as permitted by applicable securities laws and not inconsistent with the other provisions of this Agreement; (k) use its reasonable best efforts (i) to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and comfort letters (including, in the case of such comfort letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and (ii) furnish to each Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter; (l) to the extent permitted by applicable law, deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff, with respect to the registration statement, and upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company necessary for the preparation of the registration statement, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent necessary for the preparation of the registration statement; (m) use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction; (n) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;


 
18 4890-5883-7151v.9 (o) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide assistance reasonably requested by the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering; (p) prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request; (q) furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith; (r) in connection with a sale of Registrable Securities, cooperate with the Participating Holders and the managing underwriter, if any, to (i) subject to the applicable procedures and requirements of the transfer agent, and the delivery of customary seller representations and other information, facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities being sold, and (ii) subject to the applicable procedures, timing and requirements of the transfer agent, use its reasonable best efforts to cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least three Business Days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof; (s) in the event of an underwritten offering, to the extent customary for a transaction of its type, cooperate with any due diligence investigation by any Manager, underwriter or Participating Holder and make available such customary documents and records of the Company and its Subsidiaries that they reasonably request (which, in the case of the Participating Holder, may be subject to the execution by the Participating Holder of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company); (t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; (u) take all reasonable action to ensure that any free writing prospectus utilized in connection with any registration covered by Section 2.2 or 2.3 complies in all material respects


 
19 4890-5883-7151v.9 with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any Misstatement; and (v) in connection with any Underwritten Shelf Takedown, if at any time the information conveyed to a purchaser at the time of sale includes any Misstatement, promptly file with the SEC such amendments or supplements to such information as may be necessary to cure such Misstatement. To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”) at the time any demand for an Underwritten Self Takedown is submitted to the Company, and such demand requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on Form S-3, the Company shall file an automatic shelf registration statement which covers those Registrable Securities which are requested to be registered. The Company shall use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which the Registrable Securities remain Registrable Securities. If the Company is at any time no longer a WKSI or becomes an ineligible issuer, it shall use its reasonable best efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be kept effective. If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, the Company agrees that it shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 2.2, 2.3, or 2.5 that each Participating Holder shall furnish to the Company such information regarding themselves, the Registrable Securities held by them, and the intended method of disposition of such securities as the Company may from time to time reasonably request so long as such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration. If any such registration statement or comparable statement under state “blue sky” laws refers to any Holder by name or otherwise as the Holder of any securities of the Company, then such Holder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that


 
20 4890-5883-7151v.9 such reference to such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel, required by the Securities Act or any similar federal statute or any state “blue sky” or securities law then in force, the deletion of the reference to such Holder. 2.6. Registration Expenses. All Expenses incurred in connection with any offering, registration, filing, qualification or compliance pursuant to Section 2 shall be borne by the Company; provided that (a) expenses of a Holder incident to the registration and sale of Registrable Securities pursuant to this Agreement and all fees, costs and expenses of its counsel, accountants, advisors or representatives relating to the registration and sale of Registrable Securities shall in each case be borne by such Holder other than as set forth in clause (vii) of the definition of “Expenses” in Section 1 and (b) if an Initiating Holder (i) withdraws their Registrable Securities, (ii) as a result no Registrable Securities are eligible to be filed under a registration statement, (iii) the withdrawal is not a result of the failure of the Company to comply with this Agreement, and (iv) the withdrawal is not a result of information disclosed in the underwriting process that, in the good faith determination of the Initiating Holder, would prohibit the sale under applicable law or would negatively impact the Company’s stock price, then the Initiating Holder shall pay for the Expenses associated with the withdrawn registration. All underwriting discounts and selling commissions relating to securities registered by the Holders shall be borne by the holders of such securities pro rata in accordance with the number of shares sold in the offering by such Participating Holder. 2.7. Certain Limitations on Registration Rights. In the case of any registration under Section 2.2 pursuant to an underwritten offering, or, in the case of a registration under Section 2.3, all securities to be included in such registration shall be subject to the underwriting agreement and no Person may participate in such registration or offering unless such Person (i) agrees to sell such Person’s securities on the basis provided therein and completes and executes all reasonable questionnaires, and other documents (including custody agreements, indemnities and powers of attorney) which must be executed in connection therewith; provided, however, that all such documents shall be consistent with the provisions hereof, and (ii) provides such other information to the Company or the underwriter as may be necessary to register such Person’s securities. The failure to include in any registration statement the Registrable Securities of a Holder that does not comply with this Section 2.7 shall not result in any liability on the part of the Company to such Holder. 2.8. Limitations on Sale or Distribution of Other Securities. (a) Upon receipt of written notice from the Company that a registration statement or prospectus contains a Misstatement, each Holder shall forthwith discontinue disposing of Registrable Securities until it has received copies of a supplemented or amended prospectus correcting the Misstatement (it being understood that the Company hereby covenants to use its reasonable best efforts to prepare and file such supplement or amendment as soon as reasonably practicable after the time of such notice), or until it is advised in writing by the Company that the use of the prospectus may be resumed.


 
21 4890-5883-7151v.9 (b) The Company may postpone the effectiveness of a registration statement relating to a Demand Request during the regular quarterly period during which directors and executive officers of the Company are not permitted to trade under the insider trading policy of the Company then in effect until the expiration of such quarterly period (but in no event later than two (2) Business Days after the date of the Company’s quarterly earnings announcement). (c) Subject to Section 2.8(e), the Company may, upon giving prompt written notice (the “Suspension Notice”) to the Holders, postpone filing a registration statement relating to a Demand Request, suspend sales under an existing Shelf registration statement, cause a registration statement to be withdrawn and its effectiveness terminated or postpone amending or supplementing a registration statement: (i) if the Company would be required to (1) make an Adverse Disclosure or (2) include in such registration statement financial statements that are unavailable to the Company for reasons beyond the Company’s control (provided that the Company will use its reasonable best efforts to obtain such financial statements as soon as practicable); and (ii) if the negotiation or consummation of a material financing, acquisition, corporate reorganization, merger, other transaction or event involving the Company or any of its subsidiaries is pending or an event has occurred, which negotiation, consummation or event, the Board reasonably believes would require additional disclosure by the Company in the registration statement of material information that the Company has a bona fide business purpose for keeping confidential, and the non-disclosure of which in the registration statement would be expected, in the reasonable determination of the Board, to cause the registration statement to fail to comply with applicable disclosure requirements (each of the foregoing, a “Valid Business Reason”). The Suspension Notice shall not specify the nature of the event giving rise to such delay or suspension. (d) In the event the Company exercises its rights under Section 2.8(c), the Holders agree to (i) suspend, immediately upon their receipt of the Suspension Notice, their use of the prospectus relating to any registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents and (ii) if so directed by the Company, deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of the Suspension Notice. (e) The right to delay or suspend any filing, initial effectiveness or continued use of a registration statement pursuant to Section 2.8(c) or a registered offering pursuant to Section 2.1 shall only be exercised by the Company for the shortest period of time determined in good faith by the Company to be necessary for such purpose, which will in no event be for more than one hundred twenty (120) calendar days during any twelve (12)-month period. If the Company shall


 
22 4890-5883-7151v.9 give any notice of withdrawal or postponement of a registration statement pursuant to this section, the Company shall, not later than five Business Days after the event that caused such withdrawal or postponement no longer exists, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration. (f) If the Company shall have withdrawn or prematurely terminated a registration statement filed pursuant to a Demand Request (whether pursuant to Section 2.8 or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration or Demand for the purposes of Section 2.2(a)(i) of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If, following receipt of a Suspension Notice, an Initiating Holder withdraws its Demand Request, the Company shall not be considered to have effected an effective registration or Demand for the purposes of Section 2.2(a)(i) of this Agreement. (g) Each Holder agrees, (i) to the extent requested in writing by a managing underwriter, if any, of any registration effected pursuant to Section 2.2, not to sell, transfer or otherwise dispose of, including any sale pursuant to Rule 144 under the Securities Act, any Company Shares or any other equity security of the Company or any security convertible into or exchangeable or exercisable for any equity security of the Company (other than as part of such underwritten public offering) during the time period reasonably requested by the managing underwriter, not to exceed 90 days from the pricing date of such offering (plus an extension period as may be proposed by the Manager to address FINRA regulations regarding the publishing of research) or such shorter period as the managing underwriter, the Company or any executive officer or director of the Company shall agree to; provided that, if a managing underwriter or underwriters of an offering releases any Person from its similar obligations, each other Holder shall be released from its obligations under this Section 2.8, on a pro rata basis, in accordance with the number of Registrable Securities held by them at such time, and (ii) to the extent requested in writing by a managing underwriter of any underwritten public offering effected by the Company for its own account, not to sell any Company Shares (other than as part of such underwritten public offering) during the time period reasonably requested by the managing underwriter, which period shall not exceed 90 days; and, if so requested, each Holder agrees to enter into a customary lock- up agreement, not to exceed ninety (90) days from the pricing date of such offering (plus an extension period as may be proposed by the Manager to address FINRA regulations regarding the publishing of research), with such managing underwriter. (h) The Company hereby agrees that, if it shall previously have received a request for registration pursuant to Section 2.2 or Section 2.3, and if such previous registration shall not have been withdrawn or abandoned, the Company shall not sell, transfer, or otherwise dispose of, any Company Shares, or any other equity security of the Company or any security convertible into or exchangeable or exercisable for any equity security of the Company (other than as part of such underwritten public offering, a registration on Form S-4 or Form S-8 or any successor or similar form which is then in effect or pursuant to a transaction approved by the Board), until a period of 90 days shall have elapsed from the effective date of such previous registration; and the Company


 
23 4890-5883-7151v.9 shall use its reasonable best efforts to (i) so provide in any registration rights agreements hereafter entered into with respect to any of its securities and (ii) cause each holder of any equity security or any security convertible into or exchangeable or exercisable for any equity security of the Company purchased from the Company at any time other than in a public offering to so agree. 2.9. No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any effective registration statement. 2.10. Indemnification. (a) In the event of any registration and/or offering of any securities of the Company under the Securities Act pursuant to this Section 2.10, the Company shall, and hereby agrees to, and hereby does, indemnify, defend and hold harmless, to the fullest extent permitted by law, each Holder, its directors, officers, fiduciaries, employees, shareholders, members or general and limited partners (and the directors, officers, fiduciaries, employees, shareholders, members or general and limited partners thereof), any underwriter (as defined in the Securities Act) for such Holder and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (i) an untrue or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact required to be stated in a registration statement or a preliminary or final prospectus, including any free writing prospectus, or any amendments or supplements thereto, necessary to make the statements therein (in the case of a prospectus or an amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration statement, any preliminary or final prospectus contained therein, or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any free writing prospectus utilized in connection therewith, and the Company shall reimburse any such indemnified party for any reasonable legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the Company shall not be liable to any indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such registration statement or amendment thereof or supplement thereto or in any such prospectus or any preliminary or final prospectus or free writing prospectus in reliance upon and in conformity with information furnished to the Company by or on behalf of an indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such seller.


 
24 4890-5883-7151v.9 (b) Each Participating Holder shall, severally and not jointly, indemnify, defend and hold harmless (in the same manner and to the same extent as set forth in clause (a) of this Section 2.10) to the fullest extent permitted by law the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act, each underwriter (within the meaning of the Securities Act) of the Company’s securities covered by such a registration statement, any Person who controls such underwriter, and any other Holder selling securities in such registration statement and each of its directors, officers, partners or agents or any Person who controls such Holder with respect to an untrue or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact required to be stated in a registration statement or a preliminary or final prospectus, including any free writing prospectus, or any amendments or supplements thereto, necessary to make the statements therein (in the case of a prospectus or an amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or its representatives by or on behalf of such Participating Holder, specifically for use therein and reimburse such indemnified party for any reasonable legal or other expenses reasonably incurred in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which any such Participating Holder shall be required to pay pursuant to this Section 2.10(b) and Section 2.10(c) and Section 2.10(e) shall in no case be greater than the amount of the net proceeds actually received by such Participating Holder upon the sale of the Registrable Securities pursuant to the registration statement giving rise to such Claim. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder. (c) Indemnification similar to that specified in the preceding clauses (a) and (b) of this Section 2.10 (with appropriate modifications) shall be given by the Company and each Participating Holder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws. (d) Any Person entitled to indemnification under this Agreement shall notify promptly the indemnifying party in writing of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 2.10, but the failure of any indemnified party to provide such notice shall not relieve the indemnifying party of its obligations under the preceding clauses of this Section 2.10, except to the extent the indemnifying party is materially and actually prejudiced thereby and shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 2.10. In case any action or proceeding is brought against an indemnified party, the indemnifying party shall be entitled to (x) participate in such action or proceeding and (y) unless, in the reasonable opinion of outside counsel to the indemnified party, a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, assume the defense thereof jointly with any other indemnifying party similarly notified, with counsel reasonably satisfactory to such indemnified party. The indemnifying party shall promptly notify the indemnified party of its decision to assume the defense of such action or proceeding. If, and after, the indemnified party has received such notice from the indemnifying party, the indemnifying


 
25 4890-5883-7151v.9 party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense of such action or proceeding other than reasonable costs of investigation; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal or equitable defenses available to such indemnified party which are not available to the indemnifying party or which may conflict with those available to another indemnified party with respect to such Claim; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim), unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. (e) If for any reason the foregoing indemnity is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.10(a), (b) or (c), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim as well as any other relevant equitable considerations. The relative fault shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 2.10(e) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 2.10(e). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 2.10(e) to the contrary, no


 
26 4890-5883-7151v.9 indemnifying party (other than the Company) shall be required pursuant to this Section 2.10(e) to contribute any amount greater than the amount of the net proceeds actually received by such indemnifying party upon the sale of the Registrable Securities pursuant to the registration statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 2.10(b) and (c). (f) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract (except as set forth in subsection (h) below) and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party and the completion of any offering of Registrable Securities in a registration statement. In the event one or more Holders effect a Partner Distribution pursuant to a registration statement in which the name of partners, members or shareholders who receive a distribution are named in a prospectus supplement or registration statement, the partners, members or shareholders so named shall be entitled to indemnification and contribution by the Company to the same extent as a Holder hereunder. (g) The indemnification and contribution required by this Section 2.10 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred; provided, however, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder. (h) If a customary underwriting agreement shall be entered into in connection with any registration pursuant to Section 2.2 or 2.3, the indemnity, contribution and related provisions set forth therein shall supersede the indemnification and contribution provisions set forth in this Section 2.10. 3. Transfer Restrictions. 3.1. Restrictions. The right of the Holders and their Affiliates to, directly or indirectly, in a single transaction or series of related transactions, Transfer any Registrable Securities is subject to the restrictions set forth in this Section 3, and no Transfer of Registrable Securities by a Holder or any of its Affiliates may be effected except in accordance with this Section 3 and in compliance with all applicable laws. Any attempted Transfer in violation of this Agreement shall be of no effect, regardless of whether the purported transferee has any knowledge, actual or constructive, of the Transfer restrictions set forth in this Agreement, and shall not be recorded on the stock transfer books of the Company or any transfer agent. (a) Until the expiration of the Lock-Up Period, no Holder shall, directly or indirectly, in a single transaction or a series of related transactions, Transfer any Registrable Securities without the prior written consent of the Company, other than the following Transfers (each, a “Lock-Up Period Permitted Transfer”):


 
27 4890-5883-7151v.9 (i) a Transfer of Registrable Securities in response to a tender or exchange offer by any Person that has been approved and recommended by the Board; (ii) a Transfer of Registrable Securities to the Company; (iii) a Transfer of Registrable Securities to a Permitted Transferee, so long as such Permitted Transferee executes a customary joinder to this Agreement, in form and substance reasonably acceptable to the Company, in which such Permitted Transferee agrees to be bound by the terms of this Agreement as if such Permitted Transferee was an original Stockholder which was party hereto; (iv) a Transfer required by applicable law; (v) a Transfer that has been approved in advance by the Board; (vi) a Transfer of Registrable Securities pursuant to Section 2.3 and that is a offered through any public offering for cash as contemplated by NYSE Rule 312.03, pursuant to an exercise of the registration rights provided in Section 2; and (vii) a Transfer of Registrable Securities in connection with which the transferring Holder’s rights under this Agreement are assigned to the Transferee pursuant to Section 7.6(b). (b) Following the Lock-Up Period, a Holder shall be entitled to Transfer any Registrable Securities in its sole discretion, provided that such Holder shall not directly or indirectly, in a single transaction or a series of related transactions, Transfer any Registrable Securities: (i) other than in accordance with all applicable laws and in accordance with the other terms and conditions of this Agreement; or (ii) to a Prohibited Transferee (except in a Non-Prohibited Transfer). (c) Notwithstanding anything to the contrary contained herein, no Holder shall at any time Transfer, or cause or permit the Transfer of, any Registrable Securities, if such Transfer would violate any applicable law. (d) Nothing in this Agreement shall prevent a Holder or its representatives from entering into discussions with the Company or one or more financial institutions in connection with a Lock-Up Period Permitted Transfer or an offering to be effected after the end of the Lock- Up Period, provided that such discussions are not publicly disclosed. 4. Voting 4.1. Voting Agreement. During the Standstill Period:


 
28 4890-5883-7151v.9 (a) Each Holder shall, and shall cause its respective Group Members to, (a) vote at all meetings of stockholders of the Company either (x) in person, (y) by ballot or (z) by completing the proxy forms distributed by the Company so that the Initial Shares directly or indirectly owned by Holders and their Group Members may be counted for the purpose of determining the presence of a quorum at such meeting and (b) vote the Initial Shares on any action by written consent. (b) Each Holder shall, and shall cause its respective Group Members to, vote the Initial Shares (i) in favor of all those persons nominated and recommended to serve as directors by the Board or the applicable committee of the Board, (ii) with respect to any matter related to the compensation of directors, directors’ insurance or indemnification or release from liability of directors, in a manner proportionally consistent with the vote of shares of Common Stock not Beneficially Owned by the Holder or any of its Group Members, (iii) with respect to any other action, proposal, or matter to be voted on by the stockholders of the Company, either (x) in accordance with the recommendation of the Board or the applicable committee of the Board or (y) in a manner proportionally consistent with the vote of shares of Common Stock not Beneficially Owned by the Holder or any of its Group Members. 5. Standstill. 5.1. During the Standstill Period, no Holder shall, directly or indirectly, and shall cause its representatives (to the extent acting on behalf of the Holder) and Group Members directly or indirectly not to, without the prior written consent of the Company: (a) subject to Section 5.2, acquire, offer or seek to acquire, agree to acquire or make any public proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any Subsidiary of the Company; provided that nothing in this Agreement, including this Section 5.1(a) shall prohibit the Stockholder or any of its Group Members from making a non-public offer to the Board so long as the Stockholder or such Group Member reasonably believes that such offer will not result in the Company or the Stockholder or their Affiliates being required by applicable law to disclose the making of such offer promptly following the making thereof; (b) offer, or seek to acquire, or participate in any acquisition of assets of the Company or its Subsidiaries; (c) otherwise act in concert with others to knowingly seek to control or influence the Board or stockholders of the Company; provided that nothing in this clause (c) shall preclude a Stockholder or its representatives from (i) engaging in discussions with the Company or its representatives or (ii) the Stockholder’s designated and/or nominated director to the Board pursuant to Section 6 of this Agreement from engaging in any activities in his or her capacity as such designated and/or nominated director; (d) make or join or become a participant (as defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in, or encourage, any “solicitation” of “proxies” (as such


 
29 4890-5883-7151v.9 terms are defined in Regulation 14A under the Exchange Act), or otherwise knowingly advise or intentionally influence any Person with respect to the voting of any securities of the Company; (e) make any public announcement with respect to, solicit or publicly submit a proposal for, or publicly offer, seek, propose or indicate an interest in, any merger, consolidation, business combination, “tender offer” (as such term is used in Regulation 14D under the Exchange Act), recapitalization, reorganization, purchase or license of all or substantially all of the assets or Equity Securities of the Company or any Subsidiary of the Company, or other similar extraordinary transaction involving the Company or any Subsidiary of the Company, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any third party regarding any of the foregoing; (f) call or seek to call a meeting of stockholders of the Company or initiate any stockholder proposal or meeting agenda item for action of the Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director of the Board (other than pursuant to Section 6 of this Agreement); (g) form, join, become a member or otherwise participate in a Group (other than with the Holder, any of its Group Members) with respect to the securities of the Company or any of its Subsidiaries or Affiliates; or (h) deposit any Equity Securities in a voting trust or similar Contract or subject any Equity Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Equity Securities, other than with the Stockholder and any of its wholly-owned Subsidiaries or to the Company or any of its representatives; (i) publicly make any proposal or publicly disclose any plan, or cause or authorize any of its directors, officers, employees, agents, advisors and other representatives to publicly make any proposal or publicly disclose any plan on its behalf, inconsistent with the foregoing restrictions; (j) knowingly take any action or cause or authorize any of its directors, officers, employees, agents advisors and other representatives to take any action on its behalf, that would reasonably be expected to require the Company to publicly disclose any of the foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in this Section 5.1. (k) knowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party with respect to any of the foregoing, in each case, in respect of the Company; or (l) directly or indirectly contest the validity of any provision of this Section 5.1 (including this subclause) or Section 4.1, whether by legal action or otherwise. 5.2. Notwithstanding anything herein to the contrary, the prohibition in Section 5.1(a) shall not apply to the activities of a Holder or any of its Group Members in connection with:


 
30 4890-5883-7151v.9 (a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board; (b) acquisitions made in connection with a transaction or series of related transactions in which a Holder or any of its Group Members acquires a previously unaffiliated business that Beneficially Owns Equity Securities or any securities convertible into or exchangeable for Equity Securities, at the time of the consummation of such acquisition. 5.3. Notwithstanding anything herein to the contrary, the prohibitions in Section 5.1 shall immediately terminate and a Holder and its Affiliates may engage in any of the activities specified in Section 5.1 in the event that: (a) the Company publicly announces that it has entered into an agreement with any Person or group which provides for (i) the acquisition by such person or group of more than 50% of the common stock of the Company or all or a majority of the assets of the Company, or (ii) merger, consolidation or similar business combination, including as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change, involving the Company and such other Person (each, a “Third Party Acquisition”); (b) the Board recommends that stockholders of the Company tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group (i) acquires Beneficial Ownership of more than 50% of the outstanding Common Stock of the Company, (ii) makes an offer which if fully subscribed would result in such person or group acquiring Beneficial Ownership of more than 50% of the outstanding Common Stock of the Company, or (iii) publicly announces an intention to engage in a Third Party Acquisition and, in the case of clause (ii) or (ii), the Company does not, within ten (10) Business Days of public announcement thereof by such person or group, publicly oppose and/or recommend to its stockholders that they do not accept such offer or support such Third Party Acquisition. 5.4. Notwithstanding any of the foregoing, nothing in this Agreement shall restrict (a) any of a Holder’s representative effecting or recommending transactions in securities (i) in the ordinary course of its business as an investment adviser, broker, dealer in securities, market maker, specialist or block positioner and (ii) not at the direction or request of a Holder or any of its Affiliates and (b) the director designated or nominated by the Holders from exercising his or her fiduciary duties as a member of the Board. 5.5. For the avoidance of doubt, the restrictions set forth in Section 5.1 and Section 5.2 shall not be deemed to restrict any actions taken by any representative of a Fund V Person in his or her capacity as a member of the Board, solely in his or her capacity as a director at any meeting (or action by written consent) of the Board, or any applicable committee of the Board, in a manner required by his or her fiduciary duties as directors under applicable Law. The provisions of Section 5.1 and Section 5.2 shall not be deemed to prohibit any Fund V Person or its directors, officers,


 
31 4890-5883-7151v.9 partners, employees, members or agents (acting in such capacity) from privately requesting a waiver of any of the provisions of Section 5.1 or Section 5.2 from the Board, so long as such requests are not intended to, and would not reasonably be expected to, trigger public disclosure obligations for any party to this Agreement. 6. Board of Directors; Insider Trading Policy. 6.1. Appointment. Effective as of the date hereof, the Company has appointed to the Board Kim Marvin as a director to serve until his successor is elected and qualified or his resignation or removal in accordance with the bylaws of the Company then in effect. 6.2. Indemnification, Fees, Expense Reimbursement and Insurance. Kim Marvin shall be entitled to all benefits and rights under any indemnification, exculpation and reimbursement agreement, policy and provision of any organizational document (including as to advancement or reimbursement of expenses), as well as any director and officer insurance policy maintained by the Company, in each case to the fullest extent made available to any other director of the Board. The Company shall maintain in full force and effect a policy or policies of director and officer liability insurance, issued by insurers of recognized responsibility, insuring against such losses and risks, and in such amounts, as are at least as favorable as are maintained by the Company as of the date hereof. On the date hereof, the Company and Mr. Marvin entered into a Director’s Indemnification Agreement in respect of the foregoing matters. 6.3. Insider Trading Policy. The Stockholders acknowledge receipt of the Company’s insider trading policy, attached hereto as Schedule B. The Stockholders agree to be bound by the Company’s insider trading policy and any amendments thereto, which the Company shall promptly provide to each Stockholder. 7. General. 7.1. Adjustments Affecting Registrable Securities. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Registrable Securities, to any and all shares of capital stock of the Company or any successor or assign of the Company (whether by merger, share exchange, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution of, Registrable Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. 7.2. Rule 144 and Rule 144A. The Company covenants that (i) so long as it remains subject to the reporting provisions of the Exchange Act, it shall timely file the reports required to be filed by it under the Securities Act or the Exchange Act (including, but not limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities Act, as such Rule may be amended (“Rule 144”)) or, if the Company is not required to file such reports, it shall, upon the request of any Holder, make publicly available other information so long as necessary to permit sales by such Holder under Rule 144, Rule 144A under the Securities Act, as such Rule may be amended (“Rule 144A”), or any similar rules or regulations


 
32 4890-5883-7151v.9 hereafter adopted by the SEC, and (ii) it shall provide other information as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (A) Rule 144, (B) Rule 144A or (C) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, the Company shall deliver to such Holder a written statement by the Company that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company and such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form, including, if requested by such Holder and upon receipt of customary representations by such Holder, an opinion from the Company's counsel. 7.3. EDGAR Filings. Notwithstanding anything contained in this Agreement, the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). 7.4. Amendments and Waivers; Termination. Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the Holders of at least a majority-in-interest of the Registrable Securities at the time in question. Any amendment or waiver effected in accordance with this Section 7.4 shall be binding upon each Holder and the Company. Any waiver of any breach or default by any other party of any of the terms of this Agreement effected in accordance with this Section 7.4 shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by any party to assert its or his or her rights hereunder on any occasion or series of occasions. This Agreement shall terminate as to any Holder when it no longer holds any Registrable Securities, provided that the provisions of Section 2.6, Section 2.10 and this Section 7 shall survive such termination. 7.5. Notices. Unless otherwise specified herein, all notices, consents, approvals, reports, designations, requests, waivers, elections and other communications authorized or required to be given pursuant to this Agreement shall be in writing and shall be deemed given, made or delivered on the earliest of (a) the date of delivery, if delivered via personal hand-delivery, (b) the date of transmission, if such notice or communication is delivered via electronic mail at the email address specified in this Section 7.5 prior to 5:00 p.m. (New York City time) on a Business Day and a copy is sent on such Business Day by nationally recognized overnight courier service, (c) the Business Day after the date of transmission if such notice or communication is delivered via electronic mail at the email address specified in this Section 7.5 later than 5:00 p.m. (New York City time) on any date and earlier than 12:00 midnight (New York City time) on the following Business Day and a copy is sent no later than such following Business Day by nationally recognized overnight courier


 
33 4890-5883-7151v.9 service, (d) on the date delivery is promised by the overnight courier service, if sent by nationally recognized overnight courier service (other than in the cases of clauses (b) and (c) above), or (e) upon actual receipt by the party to whom such notice is required to be given if sent by registered mail, in each case, addressed to the Company or the Stockholders at the address set forth below or to the applicable Holder (other than the Stockholders) at the address indicated on Schedule C hereto (or at such other address for a Holder as shall be specified by like notice): if to the Company: Titan International, Inc. 1525 Kautz Road, Suite 600 West Chicago, IL 60185 Attention: Michael G. Troyanovich, General Counsel Email: mike.troyanovich@titan-intl.com with a copy (which shall not constitute notice) to: Bodman PLC 1901 St. Antoine Street 6th Floor at Ford Field Detroit, Michigan 48226 Attention: Robert J. Diehl, Jr. Gene P. Bowen E-Mail: rdiehl@bodmanlaw.com gbowen@bodmanlaw.com if to the Stockholders: American Industrial Partners 450 Lexington Avenue, 40th Floor New York, New York 10017 Attention: Joel Rotroff E-Mail: jrotroff@americanindustrial.com notices@americanindustrial.com with a copy (which shall not constitute notice) to: Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Attention: Justin A. Macke Samir A. Gandhi Alexander E. Csordas E-mail: jmacke@sidley.com sgandhi@sidley.com acsordas@sidley.com


 
34 4890-5883-7151v.9 7.6. Successors and Assigns. (a) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. (b) A Stockholder may not Transfer his, her or its rights under this Agreement without the Company’s prior written consent; provided that no such consent shall be required for (i) subject to Section 7.6(d), any assignment by a Stockholder of its rights or obligations hereunder (other than in Section 6) in connection with a merger, consolidation, combination, reorganization or similar transaction in or to which the Stockholder is a constituent Person or the transfer, sale, lease conveyance or disposition of all or substantially all of the Stockholder’s assets, if such assignee agrees in writing to be bound by the terms of this Agreement or (ii) the assignment or delegation by the Stockholder of any of its rights or obligations under this Agreement to a Permitted Transferee, provided that such Permitted Transferee shall agree in writing that it shall, upon such transfer, assume with respect to such Company Shares the transferor’s rights and obligations under this Agreement and become a Party for such purpose and be treated as a Holder for all purposes of this Agreement, and become a party to any other applicable agreement or instrument executed and delivered by such transferor in respect of the Company Shares; provided further that no such assignment or delegation shall relieve a Stockholder of its obligations under this Agreement. Any Transfer shall be conditioned upon prior written notice to the Company identifying the name and address of such Transferee and any other material information as to the identity of such Transferee as may be reasonably requested, and Schedule C hereto shall be updated to reflect such Transfer. For the avoidance of doubt, the Stockholders may not assign or delegate any of their rights or obligations under Section 6 without the prior written consent of the Company. (c) Except as provided in Section 7.6(d), the covenants and agreements of a Stockholder set forth in Articles 3, 4 and 5 shall not be binding upon or restrict any transferee of Company Shares other than Permitted Transferees in accordance with Section 3.1(a)(iii) or any transferee of Company Shares pursuant to a Transfer in connection with which a Stockholder’s rights under this Agreement are assigned to the transferee pursuant to Section 7.6(b)(i), and no transferee of Shares other than such Permitted Transferees or a transfer of a Stockholder’s rights pursuant to Section 7.6(b) shall have any rights under this Agreement. (d) No Stockholder will enter into any transaction pursuant to which any non-Affiliated Person would become its ultimate parent entity (such that the Stockholder is a direct or indirect Subsidiary of another non-Affiliated Person or all or substantially all of a Stockholder’s equity securities or assets have been acquired by another non-Affiliated Person) without causing such Person to assume, or otherwise acknowledge, all of a Stockholder’s obligations under this Agreement effective as of the consummation of such transaction. 7.7. Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the consent of the Holders of at least a majority of the Registrable Securities at the time in question, enter into any agreement with any holder or prospective holder of any securities of the Company which provides such holder or prospective holder of securities of the Company rights that are more favorable taken as a whole than the


 
35 4890-5883-7151v.9 registration rights granted to the Holders hereunder unless the Company shall also give such rights to such Holders. 7.8. Entire Agreement. This Agreement and the other agreements referenced herein and therein constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede any prior agreement or understanding among them with respect to the matters referred to herein. 7.9. Governing Law; Waiver of Jury Trial; Jurisdiction. (a) Governing Law. This Agreement is and all actions (whether based on contract, tort or otherwise) arising out of or relating to this Agreement (including the actions of the parties to this Agreement in the negotiation, administration, performance and enforcement hereof) are governed by and shall be construed in accordance with the laws of the State of Delaware, excluding any conflict-of-laws rule or principle (whether of Delaware or any other jurisdiction) that might refer the governance or the construction of this Agreement to the law of another jurisdiction. (b) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. The Company or any Holder may file an original counterpart or a copy of this Section 7.9(b) with any court as written evidence of the consent of any of the parties hereto to the waiver of their rights to trial by jury. (c) Jurisdiction. Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any action or proceeding relating to the transactions contemplated by this Agreement, for and on behalf of itself or any of its properties or assets, in accordance with Section 7.5, and nothing in this Section 7.9 shall affect the right of any party to serve legal process in any other manner permitted by applicable law; (ii) irrevocably submits itself and its properties and assets to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if (and only if) the Court of Chancery of the State of Delaware declines to accept or does not have jurisdiction over a particular matter, any federal court sitting in the State of Delaware) for the purpose of any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement hereof; (iii) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware (or, if (and only if) the Court of Chancery of the State of Delaware declines to accept or does not have jurisdiction over a particular matter, any federal court sitting in the State of Delaware) for the purpose of any such action, proceeding or counterclaim; (iv) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (v) waives any objection that it may now or hereafter have to the venue of any such action, proceeding or counterclaim in any such court or that such action, proceeding or counterclaim was brought in an inconvenient court and agrees not to plead or claim the same; and (vi) agrees that it will not bring


 
36 4890-5883-7151v.9 any action, proceeding or counterclaim relating to this Agreement or the transactions contemplated hereby in any court other than the aforesaid courts. Each of the Parties agrees that a final judgment in any action or proceeding in such courts as provided above shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. 7.10. Interpretation; Construction. (a) The headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thin extends, and such phrase shall not mean simply “if.” References to a Person are also to its permitted successors and assigns. (b) The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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. 7.11. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or electronic mail) in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same instrument. Signatures to this Agreement transmitted by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. 7.12. Severability. In the event that any provision of this Agreement shall be invalid, illegal or unenforceable, such provision shall be construed by limiting it so as to be valid, legal and enforceable to the maximum extent provided by law and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 7.13. Specific Performance. It is hereby agreed and acknowledged that it will be impossible to measure the money damages that would be suffered if the parties fail to comply with any of the obligations imposed on them by this Agreement and that, in the event of any such failure, an aggrieved party will be irreparably damaged and will not have an adequate remedy at law. Each party hereto shall, therefore, be entitled (in addition to any other remedy to which such party may be entitled at law or in equity) to injunctive relief, including specific performance, to enforce such obligations, without the posting of any bond or any similar instrument, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall oppose the granting of an injunction or specific performance as provided herein or raise the


 
37 4890-5883-7151v.9 defense that there is an adequate remedy at law. The remedies available to the parties hereto pursuant to this Section 7.13 shall be in addition to and without prejudice with regard to any other remedy to which the parties hereto are entitled at law or in equity. 7.14. No Third Party Beneficiaries. This Agreement is not intended to confer upon any Person, except for the parties hereto, any rights or remedies hereunder; provided, however, that the parties hereto hereby acknowledge that the Persons set forth in Section 2.10 are express third- party beneficiaries of the obligations of the Parties set forth in Section 2.10. 7.15. Further Assurances. Each party hereto 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 hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. 7.16. Fees and Expenses. Except as otherwise provided in this Agreement, (including in Section 2.6), each party hereto shall pay its own direct and indirect expenses incurred by it in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated by this Agreement, including all fees and expenses of its advisors and representatives. 7.17. Acknowledgment of Securities Laws. Each Stockholder is aware, and shall advise its representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the securities laws of the United States on the purchase or sale of securities by any Stockholder who has received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 
4890-5883-7151v.9 IN WITNESS WHEREOF, the Parties set forth below have duly executed this Agreement as of the day and year first above written. TITAN INTERNATIONAL, INC. By: /s/ Paul Reitz Name: Paul Reitz Title: President


 
4890-5883-7151v.9 HOLDERS: CARLSTAR INTERMEDIATE HOLDINGS I LLC By: /s/ Joel Rotroff Name: Joel Rotroff Title: President AIPCF V FEEDER CTP TIRE LLC By: /s/ Stanley Edme Name: Stanley Edme Title: Authorized Person AIPCF V FEEDER C (CAYMAN), LP By: AIPCF V (Cayman), L.P., its general partner By: AIPCF V (Cayman), Ltd., its general partner By: /s/ Stanley Edme Name: Stanley Edme Title: Vice President


 
4861-1176-3113 DIRECTOR’S INDEMNIFICATION AGREEMENT THIS AGREEMENT is made as of February 29, 2024 between Titan International, Inc., a Delaware corporation (the “Company”), and Kim Marvin (the “Indemnitee”). WITNESSETH THAT: WHEREAS, the Company, Carlstar Intermediate Holdings I, LLC, AIPCF V Feeder CTP Tire LLC and AIPCF V Feeder C (Cayman), LP have entered into that certain Stockholders Agreement dated as of the date hereof (the “Stockholders Agreement”); WHEREAS, the Stockholders Agreement requires that the Company enter into this Agreement with Indemnitee; WHEREAS, Article XI of the Company’s By-laws (“By-laws”) and applicable law expressly recognize that the right of indemnification provided therein shall not be exclusive of any other rights to which any indemnified person may otherwise be entitled; and WHEREAS, the Company’s By-laws, its Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) and applicable law permit contracts between the Company and the members of its Board of Directors covering indemnification. NOW, THEREFORE, the parties hereto agree as follows: 1. Indemnity. In consideration of the Indemnitee’s agreement to serve or continue to serve as a Director of the Company, or, at the request of the Company, as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, whether for profit or not, and including, without limitation, any employee benefit plan (a “Designated Director”), if Indemnitee was or is made or is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened, pending or completed investigation, claim, action, suit, arbitration, alternate dispute resolution mechanism or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative or investigative (including, without limitation, any internal corporate investigation), whether formal or informal, and including all appeals thereto (a “Proceeding”), the Company hereby agrees to hold the Indemnitee harmless and to indemnify the Indemnitee to the fullest extent now or hereafter permitted by applicable law from and against any and all expenses (which term shall be broadly construed and include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, appeal bonds, other out-of-pocket costs) (“Expenses”)), judgments, fines, amounts paid in settlement (with such judgments, fines or amounts including, without limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan), liabilities or losses actually and reasonably incurred by the Indemnitee by reason of the fact such person is or was a Director of the Company or a Designated Director, or by reason of any actual or alleged action or omission to act taken or omitted in any such capacity. 2. Maintenance of Insurance; Subrogation; Other Rights of Recovery.


 
2 (a) Subject only to the provisions of Section 2(c) hereof, the Company hereby agrees that, so long as the Indemnitee shall continue to serve as a Director of the Company, and thereafter so long as the Indemnitee shall be entitled to indemnification hereunder, the Company will provide insurance coverage comparable to that presently provided and at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company under the Company’s Directors’ and Officers’ Liability Insurance policies (the “insurance policies”) in effect at the date hereof. (b) At the time the Company receives notice from Indemnitee, or is otherwise aware, of a Proceeding, the Company shall give prompt notice to the insurers in accordance with the procedures set forth in the insurance policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such insurance policy. (c) However, the Company shall not be required to maintain all or any of such insurance policies or comparable insurance coverage if, in the business judgment of the Board of Directors of the Company, (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) such insurance is otherwise not reasonably available. (d) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation. (e) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise; provided, however, that (i) the Company hereby agrees that it is the indemnitor of first resort under this Agreement and under the By-laws and the Certificate of Incorporation of the Company or under any other indemnification agreement with Indemnitee, i.e., its obligations to Indemnitee under this Agreement or any other agreement or undertaking to provide advancement and/or indemnification to Indemnitee are primary and any obligation of any Designating Stockholder (as defined herein) (or any affiliate thereof other than the Company) to provide advancement or indemnification for the same Expenses, liabilities, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by Indemnitee are secondary, and (ii) if any Designating Stockholder (or any affiliate thereof) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with Indemnitee, then (x) such Designating Stockholder (or such affiliate, as the case may be) shall be fully subrogated to all rights of Indemnitee with respect to such payment, (y) the Company shall fully


 
3 indemnify, reimburse and hold harmless such Designating Stockholder (or such other affiliate) for all such payments actually made by such Designating Stockholder (or such other affiliate), and (z) the Company shall not (and shall cause each of its affiliates not to) seek payment, reimbursement or other recourse against the Designating Stockholder or its affiliates with respect to such payment, including through any claim of subrogation, reimbursement exoneration, contribution, indemnification, set-off or in any other manner. For purposes of this Agreement, “Designating Stockholder” means Carlstar Intermediate Holdings I LLC or any affiliated or successor entity thereof. The Designating Stockholders are express third party beneficiaries of this Agreement, are entitled to rely upon this Section 2(e), and may specifically enforce the Company’s obligations hereunder as though a party hereunder. 3. Additional Indemnity. Subject only to the exclusions set forth in Section 4 hereof, the Company hereby further agrees to hold harmless and indemnify the Indemnitee: (a) to the fullest extent provided under Article XI of the Company’s By-laws as in effect at the date hereof; and (b) in the event the Company does not maintain in effect the insurance coverage provided under Section 2 hereof, to the fullest extent of the coverage which would otherwise have been provided for the benefit of the Indemnitee pursuant to the insurance policies in effect at the date hereof. 4. Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 hereof shall be paid by the Company, except to the extent the aggregate of losses to be indemnified thereunder exceed the amount of such losses for which the Indemnitee is indemnified or insured pursuant to either Section 1 or 2 hereof; (b) No indemnity pursuant to Section 1 or Section 3 hereof shall be paid by the Company in respect of any of the following as determined by a final judgment or other final adjudication: (1) remuneration paid to, or indemnification of, the Indemnitee that was or is prohibited by applicable law; (2) any transaction from which the Indemnitee derived an improper personal benefit; (3) any breach of the Indemnitee’s duty to act in good faith or if the Indemnitee did not (i) in the case of conduct in the Indemnitee’s official capacity with the Company, reasonably believe that his or her conduct was in the best interests of the Company, (ii) in all other cases, reasonably believe that his or her conduct was at least not opposed to the Company’s best interests or (iii) in the case of any criminal proceeding, have reasonable cause to believe that his or her conduct was unlawful; (4) acts or omissions which involve intentional misconduct or a knowing violation of law by the Indemnitee;


 
4 (5) arising from the purchase and sale by Indemnitee of securities in violation of Section 16 of the Securities Exchange Act of 1934, as amended, or the rules and regulations promulgated thereunder; or (6) any claim initiated by Indemnitee unless (A) the Board of Directors has authorized or consented to the initiation of such claim or (B) the claim is brought to enforce Indemnitee’s rights under this Agreement. 5. Continuation of Indemnity. All agreements and obligations of the Company contained herein shall continue during the period the Indemnitee is a Director of the Company and shall continue thereafter so long as the Indemnitee may be made or threatened to be made a party to, or be otherwise involved in, as a witness or otherwise, any Proceeding, by reason of the fact that the Indemnitee was a Director of the Company or a Designated Director, or by reason of any action alleged to have been taken or omitted in any such capacity. 6. Notification and Defense of Claim. (a) Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Secretary of the Company in writing of the commencement thereof and shall provide the Secretary with such documentation and information as is reasonably available to Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification; but an omission to so promptly notify the Company will not relieve it from any liability which it may have to the Indemnitee (i) under this Agreement, except to the extent the Company is actually and materially prejudiced in its defense of such Proceeding or (ii) otherwise than under this Agreement, including, without limitation, its liability to indemnify the Indemnitee under the Company’s By-laws. (b) With respect to any such Proceeding: (1) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election so to assume the defense thereof and approval by the Indemnitee of such counsel (which approval shall not be unreasonably withheld), the Company will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee for separate counsel in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ its own counsel in such Proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of such counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded, after consultation with counsel selected by the Indemnitee (with written notice to the Company setting forth the basis for such conclusion), that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of such


 
5 Proceeding or that there are claims or allegations against the Indemnitee relating to or arising from the Indemnitee’s affiliation with the Designating Stockholder that are distinct from those asserted against other directors who were not designated by the Designating Stockholder, or (iii) the Company shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have made the conclusion provided for in (ii) above; (2) in the event the Company is required to pay or reimburse the fees and expenses of counsel to the Indemnitee, the Indemnitee shall be represented by one counsel, and the fees and expenses of any additional or separate counsel engaged by the Indemnitee shall be at the expense of the Indemnitee; and (3) the Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Company’s written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty, obligation or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold their consent to any proposed settlement. (c) Except as otherwise required by applicable law, the determination of the Indemnitee’s entitlement to indemnification shall be made pursuant to and in accordance with the procedures set forth in the By-Laws in effect as of the date hereof, or any such procedures that may be more favorable to the Indemnitee that are set forth in the By-Laws in effect on the date Indemnitee provides the Secretary notice of the request for indemnification. (d) The parties intend and agree that, to the extent permitted by applicable law, in connection with any determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person: (1) it will be presumed that Indemnitee is entitled to indemnification under this Agreement and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (2) the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; and (3) Indemnitee will be deemed to have acted in good faith if Indemnitee relies upon the books and records of the Company, including financial


 
6 statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of the Company’s legal counsel or other advisors (including financial advisors and accountants) or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company unless, in each case, Indemnitee has knowledge concerning the matter in question that makes such reliance unwarranted. The provisions of this Section 6 shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. 7. Advancement and Repayment of Expenses. Upon receipt by the Company of a statement from the Indemnitee requesting advancement or repayment of any Expenses incurred in connection with any Proceeding involving the Indemnitee, along with reasonable evidence of such Expenses, all such Expenses shall be paid promptly (and in any event within twenty (20) days of receipt of such statement, which statement shall reasonably evidence the Expenses incurred or to be incurred) by the Company in advance of the final disposition of such Proceeding. The Indemnitee agrees that the Indemnitee will reimburse (without interest) the Company for all reasonable Expenses advanced, paid or incurred by the Company on behalf of the Indemnitee in respect of a claim against the Company under this Agreement in the event and only to the extent that it shall be ultimately and finally determined that the Indemnitee is not entitled to be indemnified by the Company for such Expenses under the provisions of applicable law, the Company’s Certificate of Incorporation or By-laws, this Agreement or otherwise. The Company’s obligations to advance Expenses under this Section 7 shall not be subject to any conditions or requirements not contained in this Section. 8. Nonexclusivity. The provisions for indemnification and advancement and reimbursement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, in any court in which a proceeding is brought, the Company’s Certificate of Incorporation or By-laws, other agreements or otherwise, and Indemnitee’s rights hereunder shall inure to the benefit of the heirs, executors and administrators of Indemnitee. No amendment or alteration of the Company’s Certificate of Incorporation or By-laws or another agreement shall adversely affect the rights provided to Indemnitee under this Agreement. To the extent that a change in Delaware or other law, whether by statute or judicial decision, permits greater indemnification or payment than would be afforded currently under the Company’s Certificate of Incorporation, By-laws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. 9. Enforcement. If a claim under this Agreement is not paid in full by the Company within ninety days after a written request has been received by the Company, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part, the Indemnitee shall also be entitled to be indemnified for all expenses actually and reasonably incurred by the Indemnitee in connection with the prosecution of such claim. Nothing in this Section 9 is intended to limit the Company’s obligations with respect to the advancement or repayment of expenses to Indemnitee in


 
7 connection with any such action, suit or proceeding instituted by Indemnitee to enforce or interpret this Agreement. 10. Severability. If any provision of this Agreement shall be held to be or shall, in fact, be invalid, inoperative or unenforceable as applied to any particular case or in any particular jurisdiction, for any reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other distinguishable case or jurisdiction, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity, inoperability or unenforceability of any one or more phrases, sentences, clauses or Sections contained in this Agreement shall not affect any other remaining part of this Agreement. 11. Governing Law; Binding Effect; Amendment or Termination. (a) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware. (b) This Agreement shall be binding upon the Indemnitee and upon the Company and its successors and assigns, and shall inure to the benefit of the Indemnitee and his or her heirs, personal representatives, executors and administrators, and to the benefit of the Company and its successors and assigns. (c) This Agreement constitutes the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement, except to the extent any such prior agreement may be more favorable to the Indemnitee than the provisions hereunder. (d) No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto. [Signature Page Follows]


 
[Signature Page to Director's Indemnification Agreement] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. TITAN INTERNATIONAL, INC. By: /s/ Paul G. Reitz Name: Paul G. Reitz Title: Chief Executive Officer Accepted and Acknowledged as of the date first written above: By: /s/ Kim Marvin Name: Kim Marvin


 
Execution Version AmericasActive:19586302.10 CREDIT AND SECURITY AGREEMENT Dated as of February 29, 2024 $225,000,000 TITAN INTERNATIONAL, INC., as Borrower Agent, THE OTHER BORROWERS AND GUARANTORS PARTY HERETO, as Obligors and BANK OF AMERICA, N.A., as Agent and BOFA SECURITIES, INC. and JPMORGAN CHASE BANK, N.A., as Joint Lead Arrangers and Joint Book Managers


 
i AmericasActive:19586302.10 TABLE OF CONTENTS Page SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION ............................................................... 1 1.1 Definitions .......................................................................................................................... 1 1.2 Accounting Terms ............................................................................................................. 36 1.3 Uniform Commercial Code; PPSA ................................................................................... 37 1.4 Certain Matters of Construction ........................................................................................ 37 1.5 Division ............................................................................................................................. 37 1.6 Currency Equivalents ........................................................................................................ 37 1.6.1. Calculations ......................................................................................................... 37 1.6.2. Judgments ............................................................................................................ 38 1.7 Limited Condition Transactions ........................................................................................ 38 SECTION 2. CREDIT FACILITIES ...................................................................................................... 40 2.1 Revolver Commitment ...................................................................................................... 40 2.1.1. Revolver Loans .................................................................................................... 40 2.1.2. Revolver Notes .................................................................................................... 40 2.1.3. Use of Proceeds ................................................................................................... 40 2.1.4. Voluntary Reduction or Termination of Revolver Commitments ........................ 40 2.1.5. Overadvances ....................................................................................................... 41 2.1.6. Protective Advances ............................................................................................. 41 2.1.7. Increase in Revolver Commitments ..................................................................... 41 2.2 [Reserved] ......................................................................................................................... 42 2.3 Letter of Credit Facility .................................................................................................... 42 2.3.1. Issuance of Letters of Credit ................................................................................ 42 2.3.2. Reimbursement; Participations ............................................................................ 43 2.3.3. Cash Collateral ..................................................................................................... 44 2.3.4. Resignation of Issuing Bank ................................................................................ 44 SECTION 3. INTEREST, FEES AND CHARGES................................................................................ 45 3.1 Interest .............................................................................................................................. 45 3.1.1. Rates and Payment of Interest ............................................................................. 45 3.1.2. Application of Term SOFR to Outstanding Loans ............................................... 45 3.1.3. Interest Periods .................................................................................................... 46 3.2 Fees ................................................................................................................................... 46


 
ii AmericasActive:19586302.10 3.2.1. Unused Line Fee .................................................................................................. 46 3.2.2. LC Facility Fees ................................................................................................... 46 3.2.3. [Reserved] ............................................................................................................ 47 3.2.4. Fee Letters ........................................................................................................... 47 3.3 Computation of Interest, Fees, Yield Protection ............................................................... 47 3.4 Reimbursement Obligations ............................................................................................. 47 3.5 Illegality ............................................................................................................................ 48 3.6 Inability to Determine Rates ............................................................................................. 48 3.7 Increased Costs; Capital Adequacy ................................................................................... 49 3.7.1. Change in Law ..................................................................................................... 49 3.7.2. Capital Adequacy ................................................................................................. 50 3.7.3. Compensation ...................................................................................................... 50 3.8 Mitigation.......................................................................................................................... 50 3.9 Funding Losses ................................................................................................................. 51 3.10 Maximum Interest ............................................................................................................. 51 SECTION 4. LOAN ADMINISTRATION ............................................................................................ 51 4.1 Manner of Borrowing and Funding Revolver Loans ........................................................ 51 4.1.1. Notice of Borrowing ............................................................................................ 51 4.1.2. Fundings by Lenders ............................................................................................ 52 4.1.3. Swingline Loans; Settlement ............................................................................... 52 4.1.4. Notices ................................................................................................................. 53 4.1.5. Conforming Changes ........................................................................................... 53 4.2 Defaulting Lender ............................................................................................................. 53 4.2.1. Reallocation of Pro Rata Share; Amendments ..................................................... 54 4.2.2. Payments; Fees .................................................................................................... 54 4.2.3. Cure ...................................................................................................................... 54 4.3 Number and Amount of Term SOFR Loans; Determination of Rate ................................ 54 4.4 Borrower Agent ................................................................................................................. 55 4.5 One Obligation .................................................................................................................. 55 4.6 Effect of Termination ........................................................................................................ 55 SECTION 5. PAYMENTS ...................................................................................................................... 55 5.1 General Payment Provisions ............................................................................................. 55 5.2 Repayment of Revolver Loans .......................................................................................... 55 5.3 Mandatory Payments ........................................................................................................ 56


 
iii AmericasActive:19586302.10 5.4 Payment of Other Obligations .......................................................................................... 56 5.5 Marshaling; Payments Set Aside ...................................................................................... 56 5.6 Application and Allocation of Payments .......................................................................... 56 5.6.1. Application .......................................................................................................... 56 5.6.2. Post-Default Allocation ........................................................................................ 57 5.6.3. Erroneous Application ......................................................................................... 57 5.7 Dominion Account ............................................................................................................ 57 5.8 Account Stated .................................................................................................................. 58 5.9 Taxes ................................................................................................................................. 58 5.9.1. Payments Free of Taxes ....................................................................................... 58 5.9.2. Payment ............................................................................................................... 58 5.10 Lender Tax Information .................................................................................................... 58 5.10.1. Status of Lenders ................................................................................................. 58 5.10.2. Documentation ..................................................................................................... 59 5.10.3. Lender Obligations .............................................................................................. 59 5.11 Nature and Extent of Each Obligor’s Liability ................................................................. 59 5.11.1. Joint and Several Liability ................................................................................... 59 5.11.2. Waivers ................................................................................................................ 60 5.11.3. Extent of Liability; Contribution ......................................................................... 60 5.11.4. Joint Enterprise .................................................................................................... 61 5.11.5. Subordination ....................................................................................................... 61 SECTION 6. CONDITIONS PRECEDENT .......................................................................................... 61 6.1 Conditions Precedent to Initial Loans ............................................................................... 61 6.2 Conditions Precedent to All Credit Extensions ................................................................. 63 SECTION 7. COLLATERAL ................................................................................................................. 64 7.1 Grant of Security Interest .................................................................................................. 64 7.2 Lien on Deposit Accounts; Cash Collateral ...................................................................... 64 7.2.1. Deposit Accounts ................................................................................................. 65 7.2.2. Cash Collateral ..................................................................................................... 65 7.3 [Reserved] ......................................................................................................................... 65 7.4 Other Collateral ................................................................................................................. 65 7.4.1. Commercial Tort Claims ...................................................................................... 65 7.4.2. Certain After-Acquired Collateral ........................................................................ 65 7.5 No Assumption of Liability .............................................................................................. 65


 
iv AmericasActive:19586302.10 Further Assurances ............................................................................................................ 65 SECTION 8. COLLATERAL ADMINISTRATION .............................................................................. 66 8.1 Borrowing Base Certificates ............................................................................................. 66 8.2 Administration of Accounts .............................................................................................. 66 8.2.1. Records and Schedules of Accounts .................................................................... 66 8.2.2. Taxes .................................................................................................................... 66 8.2.3. Account Verification ............................................................................................ 66 8.2.4. Maintenance of Dominion Account ..................................................................... 67 8.2.5. Proceeds of Collateral .......................................................................................... 67 8.3 Administration of Inventory ............................................................................................. 67 8.3.1. Records and Reports of Inventory ....................................................................... 67 8.3.2. Returns of Inventory ............................................................................................ 67 8.3.3. Acquisition, Sale and Maintenance...................................................................... 67 8.4 [Reserved] ......................................................................................................................... 67 8.5 Administration of Deposit Accounts ................................................................................. 68 8.6 General Provisions ............................................................................................................ 68 8.6.1. Location of Collateral .......................................................................................... 68 8.6.2. Insurance of Collateral ......................................................................................... 68 8.6.3. Protection of Collateral ........................................................................................ 68 8.6.4. Defense of Title .................................................................................................... 69 8.7 Power of Attorney ............................................................................................................. 69 SECTION 9. REPRESENTATIONS AND WARRANTIES .................................................................. 69 9.1 General Representations and Warranties .......................................................................... 69 9.1.1. Organization and Qualification ............................................................................ 69 9.1.2. Power and Authority ............................................................................................ 69 9.1.3. Enforceability....................................................................................................... 70 9.1.4. Capital Structure .................................................................................................. 70 9.1.5. Title to Properties; Priority of Liens .................................................................... 70 9.1.6. Accounts .............................................................................................................. 70 9.1.7. Financial Statements; Solvency ........................................................................... 71 9.1.8. Surety Obligations ............................................................................................... 71 9.1.9. Taxes .................................................................................................................... 71 9.1.10. Brokers ................................................................................................................. 72 9.1.11. [Reserved] ............................................................................................................ 72


 
v AmericasActive:19586302.10 9.1.12. Governmental Approvals ..................................................................................... 72 9.1.13. Compliance with Laws ........................................................................................ 72 9.1.14. [Reserved] ............................................................................................................ 72 9.1.15. Burdensome Contracts ......................................................................................... 72 9.1.16. Litigation .............................................................................................................. 72 9.1.17. No Defaults .......................................................................................................... 72 9.1.18. ERISA .................................................................................................................. 72 9.1.19. [Reserved] ............................................................................................................ 73 9.1.20. [Reserved]. ........................................................................................................... 73 9.1.21. [Reserved] ............................................................................................................ 73 9.1.22. Not a Regulated Entity ......................................................................................... 73 9.1.23. Margin Stock ........................................................................................................ 74 9.1.24. Sanctions .............................................................................................................. 74 9.1.25. Anti-Corruption Laws; Anti-Terrorism Laws ...................................................... 74 9.1.26. Accuracy of Borrowing Base ............................................................................... 74 9.2 Complete Disclosure ......................................................................................................... 74 SECTION 10. COVENANTS AND CONTINUING AGREEMENTS ................................................... 74 10.1 Affirmative Covenants ...................................................................................................... 74 10.1.1. Inspections; Appraisals ........................................................................................ 74 10.1.2. Financial and Other Information .......................................................................... 75 10.1.3. Notices ................................................................................................................. 76 10.1.4. Landlord and Storage Agreements ....................................................................... 77 10.1.5. Compliance with Laws ........................................................................................ 77 10.1.6. Taxes .................................................................................................................... 77 10.1.7. Insurance .............................................................................................................. 77 10.1.8. Licenses ............................................................................................................... 77 10.1.9. Future Subsidiaries .............................................................................................. 77 10.1.10. Post-Closing Obligations ..................................................................................... 78 10.2 Negative Covenants .......................................................................................................... 78 10.2.1. Permitted Debt ..................................................................................................... 78 10.2.2. Permitted Liens .................................................................................................... 80 10.2.3. [Reserved] ............................................................................................................ 81 10.2.4. Distributions ........................................................................................................ 81 10.2.5. Investments .......................................................................................................... 81


 
vi AmericasActive:19586302.10 10.2.6. Disposition of Assets ........................................................................................... 82 10.2.7. [Reserved] ............................................................................................................ 83 10.2.8. Restrictions on Payment of Certain Debt ............................................................. 83 10.2.9. Fundamental Changes .......................................................................................... 83 10.2.10. [Reserved] ............................................................................................................ 83 10.2.11. Organic Documents ............................................................................................. 84 10.2.12. Tax Consolidation ................................................................................................ 84 10.2.13. Accounting Changes ............................................................................................ 84 10.2.14. Restrictive Agreements ........................................................................................ 84 10.2.15. Swaps ................................................................................................................... 84 10.2.16. Conduct of Business; Issuance of Equity............................................................. 84 10.2.17. Affiliate Transactions ........................................................................................... 84 10.2.18. Plans ..................................................................................................................... 84 10.2.19. Amendments to Subordinated Debt or Indenture ................................................ 85 10.2.20. Access and Use Rights ......................................................................................... 85 10.3 Financial Covenant ........................................................................................................... 85 10.3.1. Consolidated Fixed Charge Coverage Ratio ........................................................ 85 SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT ................................................... 85 11.1 Events of Default .............................................................................................................. 85 11.2 Remedies upon Default ..................................................................................................... 87 11.3 License; Right to Use ........................................................................................................ 87 11.4 Setoff ................................................................................................................................. 88 11.5 Remedies Cumulative; No Waiver .................................................................................... 88 11.5.1. Cumulative Rights ............................................................................................... 88 11.5.2. Waivers ................................................................................................................ 88 SECTION 12. AGENT ............................................................................................................................. 88 12.1 Appointment, Authority and Duties of Agent ................................................................... 88 12.1.1. Appointment and Authority ................................................................................. 88 12.1.2. Duties ................................................................................................................... 89 12.1.3. Agent Professionals ............................................................................................. 89 12.1.4. Instructions of Required Lenders ......................................................................... 90 12.2 Agreements Regarding Collateral and Borrower Materials .............................................. 90 12.2.1. Lien Releases; Care of Collateral ........................................................................ 90 12.2.2. Possession of Collateral ....................................................................................... 91


 
vii AmericasActive:19586302.10 12.2.3. Reports ................................................................................................................. 91 12.3 Reliance By Agent ............................................................................................................ 91 12.4 Action Upon Default ......................................................................................................... 91 12.5 Ratable Sharing ................................................................................................................. 91 12.6 Indemnification ................................................................................................................. 92 12.7 Limitation on Responsibilities of Agent ........................................................................... 92 12.8 Successor Agent and Co-Agents ....................................................................................... 92 12.8.1. Resignation; Successor Agent .............................................................................. 92 12.8.2. Co-Collateral Agent ............................................................................................. 93 12.9 Due Diligence and Non-Reliance ..................................................................................... 93 12.10 Remittance of Payments and Collections ......................................................................... 93 12.10.1. Remittances Generally ......................................................................................... 93 12.10.2. Erroneous Payments ............................................................................................ 93 12.10.3. Distributions ........................................................................................................ 94 12.11 Recovery of Payments ...................................................................................................... 94 12.12 Individual Capacities ........................................................................................................ 94 12.13 [Reserved] ......................................................................................................................... 94 12.14 Bank Product Providers .................................................................................................... 94 12.15 No Third Party Beneficiaries ............................................................................................ 94 SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS ............................................................. 95 13.1 Successors and Assigns ..................................................................................................... 95 13.2 Participations .................................................................................................................... 95 13.2.1. Permitted Participants; Effect .............................................................................. 95 13.2.2. Voting Rights ....................................................................................................... 95 13.2.3. Benefit of Set-Off ................................................................................................ 95 13.2.4. Participant Register .............................................................................................. 95 13.3 Assignments ...................................................................................................................... 95 13.3.1. Permitted Assignments ........................................................................................ 95 13.3.2. Effect; Effective Date .......................................................................................... 96 13.3.3. Certain Assignees ................................................................................................. 96 13.3.4. Register ................................................................................................................ 96 13.4 Replacement of Certain Lenders ....................................................................................... 96 SECTION 14. MISCELLANEOUS ......................................................................................................... 97 14.1 Consents, Amendments and Waivers ................................................................................ 97


 
viii AmericasActive:19586302.10 14.1.1. Amendment .......................................................................................................... 97 14.1.2. Limitations ........................................................................................................... 98 14.1.3. Payment for Consents .......................................................................................... 98 14.2 Indemnity .......................................................................................................................... 98 14.3 Notices and Communications ........................................................................................... 98 14.3.1. Electronic Communications; Voice Mail ............................................................. 99 14.3.2. Platform ............................................................................................................... 99 14.3.3. Non-Conforming Communications ..................................................................... 99 14.3.4. Reliance on Communications ............................................................................ 100 14.4 Performance of Obligors’ Obligations ............................................................................ 100 14.5 Credit Inquiries ............................................................................................................... 100 14.6 Severability ..................................................................................................................... 100 14.7 Cumulative Effect; Conflict of Terms ............................................................................. 100 14.8 Execution; Electronic Records ........................................................................................ 100 14.9 Entire Agreement ............................................................................................................ 101 14.10 Relationship with Lenders .............................................................................................. 101 14.11 No Advisory or Fiduciary Responsibility ....................................................................... 101 14.12 Confidentiality ................................................................................................................ 101 14.13 Certifications Regarding Indenture ................................................................................. 102 14.14 GOVERNING LAW ....................................................................................................... 102 14.15 Consent to Forum ............................................................................................................ 102 14.16 Waivers by Obligors ....................................................................................................... 102 14.17 Acknowledgement Regarding Supported QFCs ............................................................. 103 14.17.1. Covered Party .................................................................................................... 103 14.17.2. Definitions ......................................................................................................... 103 14.18 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ............... 103 14.19 Patriot Act Notice; Canadian AML Legislation .............................................................. 104 14.20 NO ORAL AGREEMENT.............................................................................................. 104


 
ix AmericasActive:19586302.10 LIST OF EXHIBITS AND SCHEDULES Exhibit A Assignment Exhibit B Form of Compliance Certificate Schedule 1.1 Commitments of Lenders Schedule 8.5 Deposit Accounts Schedule 8.6.1 Business Locations Schedule 9.1.4 Certain Asset Acquisitions, Mergers and Combinations Schedule 9.1.4(a) Names and Capital Structure Schedule 9.1.4(b) Existing Stock Option Plans Schedule 9.1.15 Restrictive Agreements Schedule 9.1.16 Litigation Schedule 9.1.18 Pension Plans Schedule 10.1.10 Post-Closing Obligations Schedule 10.2.1 Existing Debt Schedule 10.2.2 Existing Liens Schedule 10.2.17 Existing Affiliate Transactions Schedule 12.3 Addresses for Notices


 
1 AmericasActive:19586302.10 CREDIT AND SECURITY AGREEMENT THIS CREDIT AND SECURITY AGREEMENT (this “Agreement”) is dated as of February 29, 2024, among TITAN INTERNATIONAL, INC., a Delaware corporation (“Titan International”), each of the Domestic Subsidiaries of Titan International that becomes a Borrower after the Closing Date pursuant to Section 10.1.9 (together with Titan International, collectively, “Borrowers”), the other Domestic Subsidiaries of Titan International party to this Agreement from time to time as Obligors, the financial institutions parties to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA N.A., a national banking association (“Bank of America”), both as agent for the Lenders (“Agent”) and individually as a Lender. R E C I T A L S: Pursuant to, and in accordance with the steps set forth in, that certain Membership Interest Purchase Agreement, dated as of the date hereof (the “Closing Date Acquisition Agreement”), by and among Titan International, Titan Tire Holdings, Inc., Carlstar Intermediate Holdings I LLC, The Carlstar Group LLC, AIPCF V Feeder C (Cayman), LP and AIPCF V Feeder CTP Tire LLC, Titan International, shall acquire, directly or indirectly, the equity interests of The Carlstar Group LLC (“Target”) (together with the related transactions contemplated by the Closing Date Acquisition Agreement, collectively, the “Closing Date Acquisition”). Borrowers have requested that Lenders provide a $225,000,000 revolving credit facility to Borrowers to finance a portion of the Closing Date Acquisition and their mutual and collective business enterprise. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement. 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 capitalized terms have the meanings set forth below: “2028 Note Indenture”: that certain Indenture, dated as of April 22, 2021, by and among Titan International, each of the guarantors party thereto, and U.S. Bank National Association, as trustee and collateral trustee, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “2028 Notes”: the 7.00% Senior Secured Notes due 2028 issued by Titan International in April, 2021, pursuant to the 2028 Note Indenture. “Account”: as defined in the UCC or the PPSA, as applicable, including all rights to payment for goods sold or leased, or for services rendered and including all claims. “Account Debtor”: a Person obligated under an Account, Chattel Paper or General Intangible. “Acquisition”: a transaction or series of transactions resulting in (a) acquisition of a business, division, or substantially all assets of a Person; (b) acquisition of record or beneficial ownership of 50% or more of the Equity Interests of a Person; or (c) merger, amalgamation, consolidation or combination of an Obligor or Subsidiary with another Person.


 
2 AmericasActive:19586302.10 “Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate”: with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have correlative meanings. “Agent Fee Letter”: that certain Amended and Restated Fee Letter, dated as of the date hereof, by and among Bank of America, BofA Securities, Inc. and Titan International, as amended, restated, amended and restated or otherwise modified from time to time. “Agent Indemnitees”: Agent and its officers, directors, employees, Agent Professionals and, if utilized in connection with the transactions related to this Agreement, Affiliates. “Agent Professionals”: attorneys, accountants, appraisers, auditors, advisors, consultants, agents, service providers, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals, experts and representatives retained by Agent. “Agreement”: as defined in the preamble to this Agreement. “Anti-Corruption Law”: any law relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, UK Bribery Act 2010, the Corruption of Foreign Public Officials Act (Canada), as amended, and the and Patriot Act. “Anti-Terrorism Law”: any law relating to terrorism or money laundering, including the Patriot Act and Canadian AML Legislation. “Applicable Law”: all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities. “Applicable Margin”: with respect to any Type of Loan, the margin set forth below, as determined by the Average Availability (as a percentage of the Line Cap) for the prior Fiscal Quarter, subject to the below: Level Average Availability (as a percentage of the Line Cap) Base Rate Loans Term SOFR Loans I >66.6% 0.375% 1.375% II ≤66.6%> 33.3% 0.625% 1.625% III ≤ 33.3% 0.875% 1.875% Until September 30, 2024, margins shall be determined as if Level II were applicable. Thereafter, margins shall be subject to increase or decrease by Agent on the first day of the calendar month following each Fiscal Quarter end based on Agent’s calculation of Average Availability during the prior Fiscal Quarter. If Agent is unable to calculate Average Availability for a Fiscal Quarter due to Borrowers’ failure to deliver a Borrowing Base Certificate when required hereunder, then, at the option of Agent or Required Lenders,


 
3 AmericasActive:19586302.10 margins shall be determined as if Level III were applicable until the first day of the calendar month following its receipt. “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, and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either. “Asset Disposition”: a sale, lease, license, consignment, transfer or other disposition (including by Division) of Property (in one transaction, a series of related transactions or otherwise) of an Obligor, including a disposition of Property in connection with an issuance of Equity Interests by a subsidiary, assignment, a sale-leaseback transaction or synthetic lease. “Assignment”: an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise satisfactory to the Agent. “Attributable Indebtedness”: on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. “Availability”: (a) the Line Cap, minus (b) Revolver Usage. “Availability Reserve”: the sum (without duplication) of (a) the Inventory Reserve; (b) the Rent and Charges Reserve; (c) the LC Reserve; (d) the aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (e) Bank Product Reserves; (f) the Dilution Reserve; (g) reserves equal to the copays or deductibles, if and as applicable, in respect of Credit Insured Accounts; (h) Canadian Priority Payables Reserves; and (i) such additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect to impose from time to time; provided, that, before instituting a reserve with respect to clauses (a)-(i), Agent shall provide Borrower Agent with prior notice accompanied by a statement setting forth the amount and, in those cases where the reserve item is not defined or has no fixed parameters, the basis for Agent’s good faith determination made with reasonable business judgment to impose such reserves. “Average Availability”: as of any date of determination, an amount equal to the quotient of (a) the sum of the end of day Availability for each day of the applicable Fiscal Quarter or other applicable measurement period, divided by (b) the number of days in such measurement period, all as reasonably determined by Agent based on the Borrowing Base Certificate previously delivered by the Borrower Agent. “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”: with respect to (a) 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule or (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 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).


 
4 AmericasActive:19586302.10 “Bank of America Indemnitees”: Bank of America and its officers, directors, employees, Affiliates, agents, advisors, consultants, service providers, attorneys and other representatives. “Bank Product”: any of the following products, services or facilities extended to any Obligor or Affiliate of an Obligor by a Lender or any of its Affiliates or branches: (a) Cash Management Services; (b) Swaps; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Obligor or its Affiliates, other than Letters of Credit. “Bank Product Reserve”: the aggregate amount of reserves established by Agent from time to time in its discretion with respect to Secured Bank Product Obligations. “Bankruptcy Code”: Title 11 of the United States Code. “Base Rate”: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month interest period as of such day, plus 1.0%; provided, that in no event shall the Base Rate be less than 1.0%. “Base Rate Loan”: any Loan that bears interest based on the Base Rate. “Beneficial Ownership Certification”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association. “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. “Borrowed Money”: with respect to any Obligor, without duplication, its (a) Debt that (i) arises from the lending of money by any Person to such Obligor, (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 owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any of the foregoing owing by another Person. “Borrower Agent”: as defined in Section 4.4. “Borrower Materials”: Borrowing Base Certificates, Compliance Certificates, Notices of Borrowing, Notices of Conversion/Continuation, and other information, Reports, financial statements and other materials delivered by Obligors under the Loan Documents, as well as other Reports and information provided by Agent to Lenders in connection with the credit facility established by this Agreement. “Borrowers”: as defined in the preamble to this Agreement. “Borrowing”: one or more Loans of one Type that are made on the same day or are converted into Loans of one Type on the same day.


 
5 AmericasActive:19586302.10 “Borrowing Base”: the sum of: (a) 90% of the Value of Investment Grade Accounts; plus (b) the lesser of (i) 90% of the Value of Credit Insured Accounts and (ii) $5,000,000; plus (c) 85% of the Value of Unenhanced Accounts; plus (d) the lesser of (i) 75% of the Value of Eligible Inventory and (ii) 85% of the NOLV Percentage of the Value of Eligible Inventory; provided that the positive capitalized variances (only to the extent not part of the determination of NOLV Percentage) in respect of material pricing changes for Inventory shall not exceed $20,000,000; plus (e) the least of (i) 75% of the Value of Eligible In-Transit Inventory, (ii) 85% of the NOLV Percentage of the Value of Eligible In-Transit Inventory and (iii) $20,000,000; plus (f) the least of (i) 75% of the Value of Eligible Work-In-Progress Inventory, (ii) 85% of the NOLV Percentage of the Value of Eligible Work-In-Progress Inventory and (iii) $30,000,000; plus (g) the lesser of (i) 100% of Eligible Cash and (ii) $25,000,000; minus (h) the Availability Reserve. Notwithstanding the foregoing or anything to the contrary in this Agreement, if the Initial Collateral Examinations are not completed and delivered to Agent prior to the Closing Date (a) the Borrowing Base shall be deemed to be the Deemed Borrowing Base during the Deemed Borrowing Base Period, and (b) unless and until the Initial Collateral Examinations are completed and delivered to Agent, the Borrowing Base shall be deemed to equal $0 after the end of the Deemed Borrowing Base Period. In connection with the consummation of any Permitted Acquisition, the acquired Accounts and Inventory that would constitute Eligible Inventory or Eligible Accounts but for the completion of any applicable field examinations or appraisals may be included in the calculation of the Borrowing Base prior to the completion of such field examinations and appraisals for a period of not more than 120 days after the closing of such Permitted Acquisition; provided that the portion of Borrowing Base attributable to any such Accounts and Inventory during such period shall not exceed 20% of the Borrowing Base (before giving effect to such acquired assets). “Borrowing Base Certificate”: a report of the Borrowing Base, in form and substance satisfactory to Agent. “Business Day”: any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in North Carolina. “Canadian AML Legislation”: the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada) and the United Nations Act (Canada), including the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (Canada) and the United Nations Al-Qaida and Taliban Regulations (Canada) promulgated under the United Nations Act (Canada), and other applicable anti-money laundering laws, anti-terrorism laws and “know your client” policies,


 
6 AmericasActive:19586302.10 regulations, laws or rules applicable in Canada, including any rules, regulations, directives, guidelines or orders thereunder. “Canadian Defined Benefit Pension Plan”: any Canadian Pension Plan which contains a “defined benefit provision” as defined in subsection 147.1(1) of the Income Tax Act (Canada). “Canadian Dollars”: lawful currency of Canada. “Canadian MEPP”: a pension plan (a) that is a “multi-employer plan” as such term is defined in Section 147.1(1) of the Income Tax Act (Canada); (b) that is contributed to or required to be contributed to by an Obligor; and (c) in respect of which no Obligor is the sponsor or the administrator. “Canadian Pension Event”: (a) the whole or partial withdrawal of an Obligor from a Canadian Pension Plan during a plan year where any additional funding obligations of such Obligor (other than the remittance of normal cost contributions owing in respect of periods up to the withdrawal date) would be triggered by such withdrawal; (b) the filing of a notice of intent to terminate in whole or in part a Canadian Pension Plan; (c) the treatment by a Governmental Authority of a Canadian Pension Plan amendment as a termination or partial termination; or (d) the appointment of a trustee by a Governmental Authority to administer the termination, in whole or in part, of a Canadian Pension Plan. Notwithstanding anything to the contrary herein, a “Canadian Pension Event” shall not include any event that relates to the partial wind- up or termination of solely the defined contribution component of a Canadian Pension Plan. “Canadian Pension Plan”: a pension plan that is a “registered pension plan” (as defined in the Income Tax Act (Canada)) or that is required to be registered under the Pension Benefits Act (Ontario) or other Canadian federal or provincial or territorial law with respect to pension benefits standards and that is maintained or contributed to by an Obligor or any of its Subsidiaries for its Canadian employees or former Canadian employees, but does not include a Canadian MEPP, the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively. “Canadian Priority Payables Reserves”: reserves established in the Permitted Discretion of Agent for amounts secured by any Liens on Collateral of the Obligors, choate or inchoate, which rank or are capable of ranking in priority to, or pari passu with, the Liens of Agent granted under the Loan Documents on such Collateral and/or for amounts which may represent costs relating to the enforcement of the Liens of Agent granted under the Loan Documents on such Collateral, including, without limitation, in the Permitted Discretion of Agent, any such amounts due and not paid for wages, vacation pay, amounts payable under the Wage Earner Protection Program Act (Canada), pursuant to the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada), amounts owing to a load broker, broker, operator or other Person in respect of the carry of goods by commercial motor vehicle (including, but not limited to, amounts to be held in trust pursuant to the Highway Traffic Act (Ontario) or any analogous or successor statute), amounts due and not paid for Inventory subject to rights of suppliers under Section 81.1 of the Bankruptcy and Insolvency Act (Canada) or other Applicable Law (generally known as the “30-day goods” rule), amounts due and not paid pursuant to any legislation on account of workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Income Tax Act (Canada), on account of sales tax, goods and services tax, value added tax, harmonized sales tax, amounts currently or past due and not paid for realty, municipal or similar taxes, all amounts currently or past due and not contributed, remitted or paid to any Canadian Pension Plan, Canadian MEPP, the Canada Pension Plan, the Quebec Pension Plan, amounts due in respect of any and all solvency deficiencies, unfunded liabilities on wind-up or wind-up deficiencies in regards to any Canadian Pension Plan, or any other similar statutory or other claims.


 
7 AmericasActive:19586302.10 “Canadian Security Agreement”: the Security Agreement, dated as of the Closing Date, by and between The Carlstar Group ULC and Agent, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Canadian Security Documents”: collectively, (a) the Canadian Security Agreement and (b) each of the other agreements, deeds of hypothec, pledge agreements, mortgages, instruments or documents that creates or purports to create a Lien to secure the Obligations, in each case, in favor of Agent, for the benefit of the Secured Parties, and that are governed by the laws of any province or territory of Canada and the federal laws of Canada applicable therein. “Capital Expenditures”: all liabilities incurred or expenditures made by any Obligor for the acquisition of fixed assets or any improvements, replacements, substitutions or additions thereto with a useful life of more than one year which, in accordance with GAAP, are required to be capitalized for financial reporting purposes. “Capital Lease”: any lease that is required to be capitalized for financial reporting purposes in accordance with GAAP. “Cash Collateral”: cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Obligations. “Cash Collateralize”: the delivery by a Borrower of Cash Collateral to Agent, in connection with this Agreement as security for the payment of Obligations, in an amount equal to (a) with respect to LC Obligations, 102.5% of the aggregate LC Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including fees, expenses, indemnification obligations and Secured Bank Product Obligations), Agent’s good faith estimate of the amount that is due or could become due, including all fees and other amounts relating to such Obligations. “Cash Collateralization” has a correlative meaning. “Cash Equivalents”: (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the United States government, maturing within 12 months of the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by Bank of America or a commercial bank organized under the laws of the United States or any state or district thereof, rated A- 1 (or better) by S&P or P-1 (or better) by Moody’s at the time of acquisition, and (unless issued by a Lender) not subject to offset rights; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank described in clause (b); (d) commercial paper issued by Bank of America or rated A-1 (or better) by S&P or P-1 (or better) by Moody’s, and maturing within nine months of the date of acquisition; and I shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Moody’s or S&P. “Cash Management Services”: any services provided from time to time by (i) Bank of America or any of its Affiliates or (ii) any other Lender or any of its Affiliates to any Borrower or its Affiliates 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, cash pooling arrangements, blocked accounts, lockbox and stop payment services. “CERCLA”: the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et seq.).


 
8 AmericasActive:19586302.10 “CFC”: a “controlled foreign corporation” as defined under Section 957 of the Code, in which any Borrower is a “United States shareholder” within the meaning of Section 951(b) of the Code, other than any such controlled foreign corporation (a) the dividends of which are entitled to the dividends received deduction under Section 245A of the Code or (b) if the pledge thereof or the security interest therein would not give rise to a material adverse Tax consequence to any Obligor, as reasonably determined by Borrower Agent in consultation with Agent. “CFCHC”: any entity that has no material assets other than Equity Interests (or Equity Interests and indebtedness) in one or more CFCs or other CFCHCs. “Change in Law”: the occurrence, after the date hereof, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof; or (c) the making, issuance or application of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, however, that “Change in Law” shall include, all requests, guidelines, requirements or directives enacted, adopted or issued hereafter or otherwise not yet implemented as of the date hereof (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 of International Settlements, the Basel Committee on Banking Supervision (or any similar authority) or any other Governmental Authority. “Change of Control”: any of the following: (a) any Person or group of Persons (within the meaning of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 50% or more of the issued and outstanding shares of Equity Interests of Titan International having the right to vote for the election of directors of Titan International under ordinary circumstances; (b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Titan International (the “Board”) cease to be composed of individuals (i) who were members of that Board on the first day of such period, (ii) whose election or nomination to that Board was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that Board or (iii) whose election or nomination to that Board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board; (c) any “Change of Control” (as defined in the 2028 Note Indenture) shall occur; or (d) Titan International shall cease to own and control, directly or indirectly, all of the economic and voting rights associated with all of the outstanding Equity Interests of any other Obligor. “Claims”: all claims, 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 or replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Obligor or other Person, 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 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, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee or Obligor is a party thereto. “Closing Date”: as defined in Section 6.1. “Closing Date Collateral Assignment of R&W Insurance”: that certain Collateral Assignment of R&W Insurance, dated as of the date hereof, made by Titan International in favor of Agent and


 
9 AmericasActive:19586302.10 acknowledged and accepted by Ryan Transactional Risk, as amended, restated, supplemented or otherwise modified from time to time. “Closing Date R&W Insurance”: the Representations and Warranties Insurance Policy, with policy number RTR24RW560181 issued by Ryan Transactional Risk to Titan International on the date hereof. “CME”: CME Group Benchmark Administration Limited. “Code”: the Internal Revenue Code of 1986, as amended. “Collateral”: all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, that now or hereafter secures (or is intended to secure) any Obligations. “Commitment”: for any Lender, its obligation to (a) make Loans (b) participate in LC Obligations and (c) participate in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 or in the Assignment pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. “Commitments”: the aggregate amount of all Lenders’ Commitments. The Commitments on the Closing Date shall be $225,000,000. “Commitment Termination Date”: the earliest to occur of (a) the Revolver Termination Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2. “Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Common Stock”: existing class of common stock of Titan International. “Compliance Certificate”: a certificate substantially in the form of Exhibit B. “Conforming Changes”: with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Agent’s discretion, 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 is reasonably necessary in connection with the administration of any Loan Document). “Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated), or are franchise or branch profits Taxes.


 
10 AmericasActive:19586302.10 “Consolidated EBITDA”: as of any date of determination for the four consecutive Fiscal Quarter period ending on such date, an amount determined for the Obligors on a consolidated basis, without duplication: (a) Consolidated Net Income for such period, plus (b) the sum of the following to the extent deducted in calculating Consolidated Net Income for such period: (i) Consolidated Interest Charges for such period, plus (ii) provision for taxes based on income, profits, revenue or capital, including federal, foreign, local and state income, franchise, excise, value added and similar taxes, property taxes and similar taxes, and foreign withholding taxes paid or accrued during such period (including any penalties and interest related to taxes or arising from tax examinations), and any payments to a parent company in respect of such taxes permitted to be made hereunder, plus (iii) the total amount of depreciation and amortization expense, including the amortization of intangible assets, deferred financing fees, debt issuance costs, commissions, fees and expenses for such period on a consolidated basis and otherwise determined in accordance with GAAP, plus (iv) any other non-cash expenses, charges, expenses, losses or items (including any write-offs or write-downs, other than with respect to inventory or accounts receivable) reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the Borrower Agent may determine not to add back such non-cash charge in the current period and (B) to the extent the Borrower Agent decides to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus (v) any costs or expenses incurred pursuant to any management equity plan, stock option plan or any other management or employee benefit plan, agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of such Person or net cash proceeds of an issuance of Equity Interest of such Person, plus (vi) any net loss from disposed, abandoned or discontinued operations, plus (vii) indemnification obligations with respect to directors and officers, in each case, to the extent not prohibited to be paid in accordance with this Agreement, plus (viii) costs, fees and reasonable and documented expenses associated with (A) the Closing Date Acquisition or any other Permitted Acquisition or Investment, whether or not consummated, (B) the negotiation, execution and delivery of the Loan Documents or any permitted Debt and (C) any amendments, modifications, consents or waivers with respect to the Loan Documents and any permitted Debt and all fees, costs, expenses and indemnity amounts paid or reimbursed to Agent and/or any Lender in connection with the Loans and any Loan Documents permitted or required by this Agreement (including all


 
11 AmericasActive:19586302.10 agent fees and fees, costs and expenses incurred in connection with any accounts, inventory or other collateral appraisals and inspections), including any amendments, waivers, consents, additional perfection documentation or other modifications to any of the foregoing, plus (ix) any unrealized net losses (or less unrealized net gains) in an amount equal to the fair market value of non-interest hedging arrangements, swap contracts or other derivatives (including, without limitation, commodity hedging) and unrealized foreign exchange losses (or less gains) resulting from the impact of foreign currency changes, in each case, with respect to transactions permitted under this Agreement and to the extent deducted (or included) in the determination of net income for such period, plus (x) the amount of “run rate” cost savings, operating expense reductions, operational improvements and cost synergies projected by the Borrower Agent in good faith to result from actions taken during such period in connection with the Closing Date Acquisition or any Permitted Acquisition, Investments, Asset Dispositions, other divestitures, operating improvements, restructurings, cost savings initiatives or similar initiatives, in each case to the extent conducted outside the Ordinary Course of Business, to the extent the Borrowers in good faith reasonably expects to realize such “run rate” cost savings, operating expense reductions, operational improvements and cost synergies within 18 months of the date of such event, it being understood that such “run rate” cost savings, operating expense reductions, operational improvements and cost synergies shall be added to Consolidated EBITDA during the entirety of the period for which the Borrower Agent expects in good faith to realize such cost savings, operating expense reductions, operational improvements and cost synergies and that, if “run rate” cost savings, operating expense reductions, operational improvements and cost synergies are included in any pro forma calculations based on such actions, then on and after the date that is 18 months after the date of such Permitted Acquisition, Investments, Asset Dispositions, other divestitures, operating improvements, restructurings, cost savings initiatives or similar initiatives, such pro forma calculations shall no longer give effect to such cost savings to the extent that realization did not actually occur during such 18 month period; provided, (a) such cost savings and cost synergies shall be calculated net of the amount of actual benefits realized during such period from such actions, (b) such cost savings and cost synergies are reasonably identifiable, factually supportable and are disclosed to Agent pursuant to a certificate of an authorized officer of the Borrower Agent prior to adding to Consolidated EBITDA, (c) no cost savings or cost synergies shall be added to Consolidated EBITDA pursuant to this clause (x) to the extent duplicative of any expenses or charges relating to such cost savings or cost synergies that are otherwise included in this definition or in any pro forma calculation of this definition, and (d) in no event shall the aggregate amount added to Consolidated EBITDA under this clause (x) exceed, during any test period, 20% of Consolidated EBITDA of Obligors for any such period (calculated after giving effect to such addback), plus (xi) losses (or gains) resulting from changes in the fair value of earn-out obligations as a result of the application of Accounting Standards Codification 805 and any non-cash deductions, expenses or charges to net income attributable to (A) purchase accounting adjustments made in accordance with GAAP or (B) changes in accounting principles, practices or policies required to conform with or harmonize to accounting principles, practices or policies related to Permitted Acquisitions to the extent deducted in the determination of net income for such period, minus


 
12 AmericasActive:19586302.10 (c) non-cash charges previously added back to Consolidated Net Income in determining Consolidated EBITDA to the extent such non-cash charges have become cash charges during such period minus (d) to the extent included in calculating Consolidated Net Income, any other non- recurring cash or non-cash gains during such period, minus (e) any net gain from disposed, abandoned or discontinued operations. “Consolidated Fixed Charge Coverage Ratio”: the ratio, determined on a consolidated basis for Obligors on the last day of a Fiscal Quarter, based upon the most recent Measurement Period, of (a) Consolidated EBITDA minus Capital Expenditures (other than Capital Expenditures financed with Debt other than the Loans) to (b) Consolidated Fixed Charges. “Consolidated Fixed Charges”: for any period, for Obligors on a Consolidated basis, the sum of, without duplication, (a) Consolidated Interest Charges paid or required to be paid in cash during such period, (b) all cash principal repayments made or required to be made of Consolidated Funded Indebtedness during such period, but excluding any such payments to the extent constituting a refinancing of such Consolidated Funded Indebtedness through the incurrence of additional Debt otherwise expressly permitted under Section 10.2.1 and repayments of Obligations under this Agreement, (c) all Distributions (other than Distributions permitted under clauses (a) through (d) of Section 10.2.4) made in cash during such period, (d) the aggregate amount of federal, state, local and foreign income taxes paid in cash, in each case, of or by Obligors for the most recently completed Measurement Period and (e) cash contributions made to any Pension Plan or any Canadian Pension Plan (to the extent not deducted in the calculation of Consolidated Net Income). “Consolidated Funded Indebtedness”: as of any date of determination, for Obligors on a Consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Debt, (c) all direct obligations arising under standby and commercial letters of credit (excluding the undrawn amount thereof), bankers’ acceptances, bank guaranties (excluding the amounts available thereunder as to which demand for payment has not yet been made), surety bonds (excluding the amounts available thereunder as to which demand for payment has not yet been made) and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the Ordinary Course of Business), (e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Debt of the types specified in clauses (a) through (e) above of Persons other than Obligors, and (g) all Debt of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which any Obligor is a general partner or joint venturer, to the extent such Debt is recourse to such Obligor. “Consolidated Interest Charges”: with respect to Obligors for any period ending on the date of computation thereof, the gross interest expense of Obligors, including without limitation (a) the current amortized portion of all fees (including fees payable in respect of any Swaps in the nature of an interest rate hedge and all fees payable in respect of any Letter of Credit) payable in connection with the incurrence of Debt to the extent included in gross interest expense and (b) the portion of any payments made in connection with Capital Leases allocable to interest expense, all determined on a Consolidated basis in accordance with GAAP.


 
13 AmericasActive:19586302.10 “Consolidated Net Income”: for any period, for Obligors on a Consolidated basis, the net income of Obligors for that period, computed in accordance with GAAP, excluding (a) net losses or gains realized in connection with (i) any sale, lease, conveyance or other disposition of any asset (other than in the Ordinary Course of Business), or (ii) repayment, repurchase or redemption of Debt, and (b) extraordinary or nonrecurring gain or income (or expense); provided that there shall be excluded from Consolidated Net Income, without duplication, the net income or loss of any Person other than an Obligor except to the extent of the amount of dividends or other distributions actually paid in cash to an Obligor by such Person during such period. “Contingent Obligation”: any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. “Contractual Obligations”: as to any Person, any provision of any security (whether in the nature of Equity Interests or otherwise) issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound or to which any of its Property is subject. “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). “Credit Insured Accounts”: Eligible Accounts supported by credit insurance reasonably satisfactory in all respects to Agent. “Daily Simple SOFR”: with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Agent). “Debt”: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) Synthetic Lease Obligations; (c) all Contingent Obligations; (d) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (e) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. “Default”: an event or condition that, if it continues uncured, with the lapse of time or giving of notice, will constitute an Event of Default.


 
14 AmericasActive:19586302.10 “Default Rate”: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate or fee otherwise applicable thereto. “Defaulting Lender”: any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) has notified Agent or any Borrower 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; (c) has failed, within three Business Days following request by Agent or any Borrower, to confirm in a manner satisfactory to Agent and Borrowers that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding (including reorganization, arrangement, liquidation, or appointment of a receiver, interim receiver, receiver and manager, monitor, trustee, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation or any other regulatory authority) or Bail-In Action; provided, 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 Canada 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; and provided, further, that a Lender shall not be deemed to be a Defaulting Lender under clause (a) or (b) above if such Lender has notified Agent and the Borrower Agent in writing that such failure is based on its good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding under this Agreement cannot be satisfied. “Deemed Borrowing Base”: an amount equal to (a) 100% of the “Borrowing Base” as calculated under the Existing Titan Credit Agreement plus (b) 90% of the “Borrowing Base” as calculated under the Existing Carlstar Credit Agreement but only to the extent attributable to Accounts and Inventory and excluding any portion of such borrowing base attributable to the FILO thereunder. “Deemed Borrowing Base Period”: the period commencing on the Closing Date and ending on the earlier of (a) June 28, 2024 (or such later date as may be agreed to by Required Lenders in their reasonable discretion) and (b) the date on which the Initial Collateral Examinations, together with an updated Borrowing Base Certificate reflecting such Initial Collateral Examinations pursuant to the definition of Borrowing Base, are delivered to Agent. “Deposit Account”: as defined in the UCC and includes any deposit, demand, time, savings, passbook or other accounts with a bank, credit union, trust company or similar financial institution, including, for the avoidance of doubt, any such account maintained in Canada. “Deposit Account Control Agreements”: the Deposit Account control agreements satisfactory to Agent to be executed by each institution maintaining a Deposit Account for an Obligor (other than any Excluded Accounts), in favor of Agent, to perfect Agent’s Lien on such Deposit Accounts. “Designated Jurisdiction”: any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Dilution Percent”: the percent, determined at the end of each Fiscal Quarter for the most recent four Fiscal Quarters, equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts, divided by (b) gross sales. At the request of the Borrower Agent (with Agent permission), Dilution Percent may be determined for a twelve-month period on account of the results of the prior trailing twelve months.


 
15 AmericasActive:19586302.10 “Dilution Reserve”: on any date of determination, a reserve against the Eligible Accounts equal to 1.0% for each whole percentage point (or portion thereof) by which the Dilution Percent exceeds 5.0%. “Distribution”: any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Obligor, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Obligor’s stockholders, partners or members (or the equivalent Person thereof). “Division”: the division of assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the original dividing Person and pursuant to which the original dividing Person may or may not survive. “Dollars” or “$”: lawful money of the United States. “Domestic Subsidiary”: any Subsidiary that is not a Foreign Subsidiary. “Dominion Account”: a collection account established by Obligors at Bank of America or another bank acceptable to Agent. “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. “Eligible Account”: an Account owing to an Obligor that arises in the Ordinary Course of Business from the sale of goods or rendition of services and is payable in Dollars or Canadian Dollars; provided, that no Account shall be an Eligible Account if: (a) it is unpaid for (i) more than 60 days after the original due date, or (ii) more than 180 days after the original invoice date; provided that the aggregate amount of Accounts that are unpaid more than 120 days after the original invoice date (i.e., 121 to 180 days past the original invoice date) included in the Borrowing Base shall not exceed $5,000,000 (prior to giving effect to the advance rate); (b) 50% or more of the Accounts owing by the Account Debtor are ineligible based on the foregoing clause (a); (c) it does not conform with a covenant or representation herein;


 
16 AmericasActive:19586302.10 (d) it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit, allowance, debit memos or accrued volume rebate amounts (but ineligibility shall be limited to the amount thereof); (e) it is owed by an Account Debtor which has filed or has had filed against it an Insolvency Proceeding; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs or is subject to any country sanctions program or specially designated nationals list maintained by the Office of Foreign Assets Control of the U.S. Treasury Department or by the Government of Canada; or the Obligor is not able to bring suit or enforce remedies against the Account Debtor through judicial process; (f) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada; provided that Accounts for Account Debtors outside of such named jurisdictions shall not be excluded by this clause (f) if (i) such Account is supported by credit insurance satisfactory in all respects to Agent, or (ii)(A) the Account Debtor is organized or has its principal offices or assets in the United Kingdom, Australia, New Zealand or any member state of the European Union prior to May 2004 and (B) the aggregate amount for all such Account Debtors does not exceed $5,000,000; (g) it is owing by (i) a Governmental Authority (other than Canada, any province of Canada or any department, agency or instrumentality thereof) unless 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 federal Assignment of Claims Act but which assignment shall not be filed by Agent except during a Trigger Period (Dominion) or (ii) Canada, any province of Canada or any department, agency or instrumentality thereof, unless the relevant Obligor has complied, to the satisfaction of Agent, with the Financial Administration Act (Canada), as amended, or any equivalent legislation of any province of Canada, as applicable; (h) it (i) is not subject to a duly perfected, first priority Lien in favor of Agent, or (ii) is subject to any other Lien (other than Permitted Liens for Taxes and statutory Liens which (x) are not yet overdue or (y) have been disclosed to Agent and are being Properly Contested); (i) it arises from goods where the Account Debtor has not taken delivery or from services that have not been accepted by the Account Debtor, or it does not otherwise represent a final sale; (j) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment unless the originals of any such Instrument or tangible Chattel Paper have been endorsed and/or assigned and delivered to Agent subject to its sole control and possession; (k) its payment has been extended or the Account Debtor has made a partial payment, other than a partial payment relating to contractually agreed upon raw material commodity indexing; (l) it arises from a sale to an Affiliate of an Obligor, from a sale on a cash-on-delivery, bill-and-hold, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (m) 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;


 
17 AmericasActive:19586302.10 (n) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; (o) it is a contra account; (p) Accounts due from an Account Debtor and its Affiliates, the aggregate of which Accounts due from such Account Debtor represents more than 25% (or 30% in respect of Deere & Company) of all then outstanding Accounts (or such higher percentage as Required Lenders may establish for the Account Debtor from time to time) owed to the Obligors, but only to the extent of such excess; (q) subject to the last paragraph of the definition of Borrowing Base, it is an Account acquired in connection with a Permitted Acquisition or another transaction outside of the Ordinary Course of Business, unless Agent has completed a field examination and legal diligence to the extent reasonably required to confirm the foregoing eligibility criteria and Dilution Reserves with respect to such Accounts (which field examination and legal diligence may be conducted prior to the closing of such Permitted Acquisition); (r) it (i) has been sold or factored, is intended to be sold or factored, or is subject to documentation that permits it to be sold or factored, by any Obligor or (ii) is owed by Permitted Supply Chain Account Debtor; provided that any Account that is excluded by the eligibility criteria in this clause (r) shall continue to be deemed ineligible until delivery of documentation reasonably requested by the Agent to evidence termination of such supply chain arrangements and written notice from the Agent that such Accounts may be included in the Borrowing Base; or (s) it is otherwise deemed ineligible by Agent in its Permitted Discretion; provided that, before determining an Account ineligible pursuant to clause (s), Agent shall provide Borrower Agent with prior notice accompanied by a statement setting forth the basis for Agent’s good faith determination made with reasonable business judgment of such ineligibility. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 120 days or 180 days old, as applicable, will be excluded. “Eligible Assignee”: a Person that is (a) a Lender, Affiliate of a Lender or Approved Fund; (b) any other financial institution approved by Borrower Agent (which approval shall not be unreasonably withheld or delayed) and Agent, which extends revolving credit facilities of this type in its ordinary course of business; and (c) during any Event of Default, any Person acceptable to Agent in its discretion. “Eligible Cash”: cash and Cash Equivalents held in special accounts established in the United States by an Obligor at Bank of America and which is designated as an “Eligible Pledged Cash Account” by the Agent in its Permitted Discretion; provided that each Obligor may decrease the amount of Eligible Cash by withdrawing cash from its respective Eligible Pledged Cash Account(s), if (a) immediately before such withdrawal no Default or Event of Default exists or would exist after giving effect thereto, (b) upon the request of the Agent, the Borrower Agent delivers a Borrowing Base Certificate to the Agent reflecting solely the change in the Borrowing Base, after giving effect to such withdrawal, and (c) the Borrowing Base shall be reduced immediately upon such withdrawal. “Eligible In-Transit Inventory”: Inventory owned by an Obligor that would be Eligible Inventory if it were not subject to a Document and/or in transit from a foreign location, and that Agent, in its Permitted Discretion, deems to be Eligible In-Transit Inventory. Without limiting the foregoing, no Inventory shall be Eligible In-Transit Inventory unless it is:


 
18 AmericasActive:19586302.10 (a) if requested in writing by the Agent in its Permitted Discretion, subject to a negotiable Document showing Agent (or, with Agent’s consent, the applicable Obligor) as consignee, which Document is in the possession of Agent (or the applicable Obligor) or other Person satisfactory to Agent; (b) fully insured in a manner satisfactory to Agent in its Permitted Discretion; (c) sold by a vendor that is not the target of any Sanction, that has no right to reclaim, divert shipment of, repossess, stop delivery, or assert any reservation of title or Lien against the Inventory; (d) subject to purchase orders and other documentation satisfactory to Agent in its Permitted Discretion; and title has passed to the Obligor; (e) shipped by a common carrier that is not affiliated with the vendor and in transit to a location of an Obligor within the United States or Canada (f) is in transit for not more than 60 days; and (g) handled by a customs broker, freight-forwarder or other handler that has delivered a Lien Waiver. “Eligible Inventory”: Inventory owned by an Obligor 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 finished goods or raw materials, and 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 down payment (but ineligibility shall be limited to the amount of such deposit or down payment); (c) is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale; (d) is not slow-moving, perishable, obsolete or unmerchantable, and does not constitute returned or repossessed goods; (e) meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any applicable Environmental Law; (f) conforms with the covenants and representations herein; (g) is subject to a duly perfected, first priority Lien in favor of Agent, and no other Lien (other than Permitted Liens for Taxes and statutory Liens which (x) are not yet overdue or (y) have been disclosed to Agent and are being Properly Contested); (h) is located within the continental United States or Canada, subject to the mutual agreement of Agent and the Borrower Agent, is not consigned to any Person and is not in transit, other than Inventory in transit between United States and Canadian locations of any Obligor as to which Agent’s Liens have been perfected at origin and destination;


 
19 AmericasActive:19586302.10 (i) is not subject to any warehouse receipt or negotiable Document; (j) is not subject to any License or other arrangement that restricts such Obligor’s or Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Lien Waiver; (k) is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established; (l) is not subject to a third party’s trademark or other proprietary right, unless Agent is satisfied that it could sell such Inventory during a Default on terms satisfactory to Agent; (m) is reflected in the details of a current perpetual inventory report; (n) is not subject to any unfavorable capitalized variances; (o) is not identified within the “physical inventory reserve” in the Obligors’ Financial Statements; (p) is not subject to intercompany profits from intercompany sales; (q) is not subject to vendor rebate accruals but, if so, such Inventory, if otherwise Eligible Inventory, shall only be excluded to the extent of such rebate accruals; (r) subject to the last paragraph of the definition of Borrowing Base, with respect to Inventory acquired in connection with a Permitted Acquisition or another transaction outside of the Ordinary Course of Business, Agent has completed a field examination, appraisal and legal diligence to the extent reasonably required to confirm the foregoing eligibility criteria and Value with respect to such Inventory (which field examination, appraisal and legal diligence may be conducted prior to the closing of such Permitted Acquisition); and (s) is not otherwise deemed ineligible by Agent in its Permitted Discretion; provided that, before determining any Inventory ineligible pursuant to clause (s), Agent shall provide Borrower Agent with prior notice accompanied by a statement setting forth the basis for Agent’s good faith determination made with reasonable business judgment of such ineligible. “Eligible Work-In-Process Inventory”: Inventory that would be Eligible Inventory except that such Inventory consists of work-in-process. “Enforcement Action”: any action to enforce any Obligations (other than Secured Bank Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, exercise of any right to act in an Obligor’s Insolvency Proceeding or to credit bid Obligations, or otherwise). “Environmental Laws”: all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA.


 
20 AmericasActive:19586302.10 “Environmental Notice”: a written notice from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. “Environmental Release”: a release as defined in CERCLA or under any other Environmental Law. “Equity Interest”: the interest of any (a) shareholder in a corporation; (b) partner in a partnership (whether general, limited, limited liability or joint venture); (c) member in a limited liability company; or (d) other Person having any other form of equity security or ownership interest in any Person (other than a natural Person). “ERISA”: the Employee Retirement Income Security Act of 1974. “ERISA Affiliate”: any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). “ERISA Event”: (a) a Reportable Event with respect to a Pension Plan or Multiemployer Plan; (b) a withdrawal by any Obligor or 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 any Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the determination that any Pension Plan or Multiemployer Plan is considered an at risk plan or a plan in critical or endangered status under the Code, ERISA or the Pension Protection Act of 2006; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate. “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. “Event of Default”: as defined in Section 11. “Excluded Accounts”: (a) Deposit Accounts and Securities Accounts held exclusively (i) for payroll and payroll taxes, (ii) for employee benefit payments and expenses related to an Obligor’s employees, and (iii) to pay taxes, (b) zero balance disbursement accounts, (c) other Deposit Accounts and Securities Accounts maintained in the Ordinary Course of Business containing cash amounts that do not exceed at any time $2,500,000 for any such account and $5,000,000 (with the value of Canadian dollars converted to an equivalent value in Dollars at then existing Spot Rate for purposes of measuring compliance with such limitations) in the aggregate for all such accounts under this clause (c) and (d) in Agent’s sole discretion, any additional Deposit Account or Securities Account that is a disbursement account. “Excluded Property”: collectively (a) any Property of a CFC or CFCHC or any direct or indirect Foreign Subsidiary of a CFC; (b) motor vehicles or other assets subject to certificates of title or other registration statutes of the United States, any State, Canada (or any province or territory thereof) or other


 
21 AmericasActive:19586302.10 jurisdiction unless Agent’s Lien thereon can be perfected by the filing of a UCC or PPSA financing statement; (c) Intellectual Property; (d) any Equipment; and (e) any Real Estate; provided that “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). “Excluded Swap Obligation”: with respect to an Obligor, each Swap Obligation as to which, and only to the extent that, such Obligor’s guaranty of or grant of a Lien as security for such Swap Obligation is or becomes illegal under the Commodity Exchange Act because the Obligor does not constitute an “eligible contract participant” as defined in the act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Obligor and all guarantees of Swap Obligations by other Obligors) 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) for the applicable Obligor. “Excluded Tax”: with respect to Agent, any Lender, Issuing Bank or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), branch profits taxes and franchise Taxes imposed on it (in lieu of net income taxes), in each case, (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or (ii) constituting Other Connection Taxes; (b) any backup withholding tax required by the Code to be withheld from amounts payable to a Lender that has failed to comply with Section 5.10; (c) in the case of a Foreign Lender, any United States withholding Tax that is (i) required pursuant to laws in force at the time such Lender becomes a Lender (or designates a new Lending Office) hereunder, other than pursuant to an assignment made pursuant to Section 13.4, or (ii) attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 5.10, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrowers with respect to such withholding Tax; and (d) Taxes imposed on it by reason of Section 1471 or 1472 of the Code. “Existing Carlstar Credit Agreement”: that certain ABL Credit Agreement, dated as of November 9, 2023, by and among The Carlstar Group, LLC, Carlstar Intermediate Holdings I, LLC, Carlstar Intermediate Holdings LLC, the lenders from time to time party thereto and Ally Bank, as administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Existing Credit Agreements”: collectively, (i) the Existing Carlstar Credit Agreement, and (ii) the Existing Titan Credit Agreement. “Existing Letter of Credit”: that certain irrevocable letter of credit no. NUSCGS043507, dated as of June 14, 2022 and issued by JPMCB in favor of American Alternative Insurance Corporation at the request of The Carlstar Group, LLC in the face amount of $4,400,000.00. “Existing Titan Credit Agreement”: that certain Credit and Security Agreement, dated February 17, 2017 by and among Titan International, Titan Wheel, Titan Tire, Titan Freeport, Titan Bryan, Titan Union, Titan Marketing and Bank of America, as Agent, and other lenders parties thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Extraordinary Expenses”: all costs, expenses or advances that Agent and, solely with respect to clauses (c) and (e) below, Lenders may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including those relating to (a) any audit, inspection,


 
22 AmericasActive:19586302.10 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 Obligor, any representative of creditors of an Obligor 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 or any Lender 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, reasonable legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and reasonable travel expenses. “Federal Funds Rate”: for any day, the per annum rate calculated by FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Rate be less than zero. “Fiscal Quarter”: each period of three months, commencing on the first day of a Fiscal Year. “Fiscal Year”: the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes, ending on December 31 of each year. “FLSA”: the Fair Labor Standards Act of 1938. “Foreign Lender”: any Lender that is organized under the laws of a jurisdiction other than the laws of the United States, or any state or district thereof. “Foreign Plan”: any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary. For greater certainty, “Foreign Plan” shall include any Canadian Pension Plan. “Foreign Subsidiary”: a Subsidiary that (a) is not organized in the United States or Canada (or any province or territory thereof) or (b) is a CFC. “FRBNY”: the Federal Reserve Bank of New York. “Fronting Exposure”: a Defaulting Lender’s Pro Rata share of LC Obligations, Swingline Loans or Protective Advances, as applicable, except to the extent Cash Collateralized by the Defaulting Lender or allocated to other Lenders under Section 4.2. “Full Payment”: with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding) (other than contingent obligations or expense reimbursement obligations to the extent no claim giving rise thereto has been asserted and other obligations expressly stated to survive such payment and termination of this Agreement); and (b) if such Obligations are LC Obligations, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its reasonable


 
23 AmericasActive:19586302.10 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. “Governmental Approvals”: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities. “Governmental Authority”: any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank or other entity or officer exercising executive, legislative, judicial, taxing regulatory or administrative powers or functions for any public corporation established by law or any governmental, judicial, investigative, regulatory or self-regulatory authority or entity (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or European Central Bank). “Guarantor Payment”: as defined in Section 5.11.3. “Guarantors”: the Subsidiaries of Borrowers identified on the signature pages hereto and each other Person that guarantees payment or performance of Obligations. “Guaranty”: each guaranty agreement executed by a Guarantor in favor of Agent. “Indemnified Taxes”: Taxes other than Excluded Taxes. “Indemnitees”: collectively, Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees. “Initial Collateral Examinations”: the initial field examination and appraisal of the Collateral received by Agent (i) which is or was conducted by an independent appraiser selected or approved by the Agent (in its Permitted Discretion); (ii) which will be or was conducted in such a manner and methodology and of such a scope as is reasonably acceptable to the Agent (in its Permitted Discretion); and (iii) upon which the Agent and Lenders are expressly permitted to rely. The Initial Collateral Examinations shall be conducted at the sole cost and expense of the Obligors and shall be in addition to any other field examinations and appraisals permitted under this Agreement. “Insolvency Proceeding”: any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada) or any other insolvency, debtor relief or debt adjustment law, including corporate laws (to the extent the relief sought under such corporate laws relates to or involves the compromise, settlement, adjustment or arrangement of debt); (b) the appointment of a receiver, interim receiver, receiver and manager, trustee, liquidator, administrator, monitor, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors. “Intellectual Property”: all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.


 
24 AmericasActive:19586302.10 “Intercreditor Agreement”: collectively, (a) that certain Intercreditor and Collateral Access Agreement dated as of October 7, 2013 by and among Bank of America, N.A., as agent, U.S. Bank National Association, as trustee and collateral trustee under an indenture governing certain secured notes due 2020 of Titan International, Titan International and certain of its Subsidiaries and (b) that certain Assignment between Agent and Bank of America, N.A. and acknowledged by Collateral Trustee, Titan International and the Subsidiaries of Titan International from time to time party thereto, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Interest Payment Date”: (a) for each Term SOFR Loan, the last day of the applicable Interest Period and, if the Interest Period is more than three months, each three month anniversary of the beginning of the Interest Period; and (b) for all other Loans, the first day of each calendar month. “Interest Period”: as defined in Section 3.1.3. “Inventory”: as defined in the UCC or 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 an Obligor’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”: an Acquisition; an acquisition of record or beneficial ownership of any Equity Interests of a Person; or an advance or capital contribution to or other investment in a Person. “Investment Grade Accounts”: Eligible Accounts owing from Account Debtors, which Account Debtor, or any parent thereof, has a credit rating of BBB- or Baa3 or higher as determined by S&P or Moody’s, as applicable. “IRS”: the United States Internal Revenue Service. “ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto. “Issuing Bank”: each of Bank of America and JPMCB or any replacement issuer appointed pursuant to Section 2.3.4. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the “Issuing Bank” in connection with a Letter of Credit or other matter shall be deemed to be a reference to the relevant Issuing Bank with respect thereto. With respect to the Existing Letter of Credit, JPMCB shall be deemed to be the Issuing Bank. “Issuing Bank Indemnitees”: Issuing Bank and its officers, directors, employees, agents (including attorneys) and, if utilized in connection with the transactions related to this Agreement, Affiliates.


 
25 AmericasActive:19586302.10 “Issuing Bank Sublimit” means, as of the Closing Date, (a) $30,500,000, in the case of Bank of America, (b) $19,500,000, in the case of JPMCB, and (c) such amount as shall be designated to the Agent and the Borrower Agent in writing by an Issuing Bank; provided that any Issuing Bank shall be permitted at any time to increase (to an amount not exceeding the Letter of Credit Subline) or reduce its Issuing Bank Sublimit upon providing five days’ prior written notice thereof to the Agent and the Borrower Agent. “Joint Fee Letter”: that certain Joint Fee Letter, dated as of the date hereof, by and among Bank of America, BofA Securities, Inc., JPMCB and Titan International, as amended, restated, amended and restated or otherwise modified from time to time. “JPMCB”: JPMorgan Chase Bank, N.A. “LC Application”: an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance satisfactory to Issuing Bank and Agent. “LC Conditions”: the following conditions necessary for issuance of a Letter of Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline, the total LC Obligations of any Issuing Bank does not exceed its applicable Issuing Bank Sublimit, no Overadvance exists and, if no Revolver Loans are outstanding, the LC Obligations do not exceed the Line Cap (without giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of Credit, and (ii) no more than 120 days from issuance, in the case of documentary Letters of Credit; and (d) the Letter of Credit and payments thereunder are denominated in Dollars or other tradeable foreign currency satisfactory to Agent and Issuing Bank. “LC Disbursement”: any payment made by an Issuing Bank pursuant to a Letter of Credit. “LC Documents”: all documents, instruments and agreements (including LC Requests and LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection with any Letter of Credit. “LC Obligations”: the sum (without duplication) of (a) all amounts owing by Borrowers for any drawings under Letters of Credit; and (b) the stated amount of all outstanding Letters of Credit. “LC Request”: a request for issuance of a Letter of Credit, to be provided by Borrower Agent to Issuing Bank, in form satisfactory to Issuing Bank and, if the Issuing Bank is not Bank of America or an Affiliate thereof, Agent. “LC Reserve”: the aggregate of all LC Obligations, other than those that have been Cash Collateralized by Borrowers. “Lender Indemnitees”: Lenders and Secured Bank Product Providers and their officers, directors, employees, agents (including attorneys) consultants, service providers and other representatives and, if utilized in connection with the transactions related to this Agreement, Affiliates. “Lenders”: lenders party to this Agreement (including Agent in its capacity as provider of Swingline Loans or Protective Advances) and any Person who hereafter becomes a “Lender” pursuant to an Assignment, including any Lending Office of the foregoing. “Lending Office”: the office (including any domestic or foreign Affiliate or branch) designated as such by Agent, a Lender or Issuing Bank by notice to Borrower Agent and, if applicable, Agent.


 
26 AmericasActive:19586302.10 “Letter of Credit”: the Existing Letter of Credit and any standby or documentary letter of credit issued by Issuing Bank for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower. “Letter of Credit Subline”: $50,000,000. “License”: any license or agreement under which an Obligor 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 an Obligor 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, including any lien, mortgage, encumbrance, title retention lien, charge, hypothec or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise. “Lien Waiver”: an agreement, in form and substance satisfactory to Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral to the Lien of Agent, and agrees to permit Agent, after an Obligor’s Default or Event of Default, to enter upon the leased 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 to the Lien of Agent, 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 following an Event of Default; (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 to the Lien of Agent, and agrees to deliver the Collateral to Agent upon request following an Event of Default; 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. “Limited Condition Related Transactions”: as defined in Section 1.7(a). “Limited Condition Transaction”: (a) any Permitted Acquisition (whether by merger, amalgamation, consolidation or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (b) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (c) any dividends or Distributions on, or redemptions of, Equity Interests requiring irrevocable notice in advance thereof; provided that in the event the consummation of such dividend, Distribution or redemption shall not have occurred on or prior to the date that is 65 days following the initial declaration of the applicable dividend, Distribution or redemption, such dividend, Distribution or redemption shall no longer constitute a Limited Condition Transaction for any purpose hereunder. “Line Cap”: the lesser of (a) the Borrowing Base and (b) the Commitments. “Loan”: a Revolver Loan. “Loan Documents”: this Agreement, Other Agreements and Security Documents.


 
27 AmericasActive:19586302.10 “Loan Year”: each 12 month period commencing on the Closing Date and on each anniversary of the Closing Date. “Margin Stock”: as defined in Regulation U of the Board of Governors. “Material Adverse Effect”: the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, has or could be reasonably expected to (a) have a material adverse effect on the business, operations, Properties or financial condition of the Obligors and their Subsidiaries, taken as a whole; (b) have a material adverse effect on the value of the Collateral taken as a whole, the enforceability of any of this Agreement or any Loan Document in respect of the Collateral, or the validity or priority of Agent’s Lien on any material Collateral; (c) materially impair the ability of the Obligors taken as a whole to perform their obligations under the Loan Documents, including repayment of any Obligations; or (d) otherwise materially impair the ability of Agent or any Secured Party to enforce their rights and remedies under the Loan Documents. “Material Contract”: any agreement or arrangement to which an Obligor is party (other than the Loan Documents) (a) that is deemed to be a material contract under any securities law applicable to such Person, including the Securities Act of 1933; (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; or (c) that relates to Material Debt. “Material Debt”: any Borrowed Money (other than the Obligations, Capital Leases, reimbursement obligations with respect to letters of credit, and Purchase Money Debt) with an aggregate principal amount in excess of $35,000,000. “Measurement Period”: means, at any date of determination, the most recently completed four (4) consecutive Fiscal Quarters of the Obligors for which Obligors’ Financial Statements have or should have been delivered in accordance with Section 10.1.2(a) or 10.1.2(b). “Moody’s”: Moody’s Investors Service, Inc., and its successors. “Multiemployer Plan”: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. “NOLV Percentage”: the net orderly liquidation value of Inventory, expressed as a percentage, expected to be realized at an orderly, negotiated, sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of Obligors’ Inventory performed by an appraiser and on terms satisfactory to Agent. “Notice of Borrowing”: a form satisfactory to Agent to be provided by Borrower Agent to Agent to request a Borrowing of Revolver Loans. “Notice of Conversion/Continuation”: a form satisfactory to Agent to be provided by Borrower Agent to Agent to request a conversion or continuation of any Loans as Term SOFR Loans. “Obligations”: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Borrowers with respect to Letters of Credit, (c) interest, expenses, fees, indemnification obligations, Extraordinary Expenses and other amounts payable by Obligors under Loan Documents, (d) Secured Bank Product Obligations, and (e) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether now existing or hereafter arising, whether evidenced


 
28 AmericasActive:19586302.10 by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several; provided, that Obligations of an Obligor shall not include its Excluded Swap Obligations. “Obligor”: each Borrower, Guarantor, or other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations. “Obligors’ Financial Statements”: as defined in Section 9.1.7. “Ordinary Course of Business”: the ordinary course of business of any Obligor or Subsidiary, consistent with Applicable Law and past practices and undertaken in good faith. “Organic Documents”: with respect to any Person, its charter, certificate, articles of incorporation, continuance or amalgamation, bylaws, articles of organization, articles and memorandum of association, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person. “OSHA”: the Occupational Safety and Hazard Act of 1970. “Other Agreement”: each LC Document, fee letter (including without limitation the Agent Fee Letter and the Joint Fee Letter), Lien Waiver, Subordination Agreement, the Intercreditor Agreement, Borrowing Base Certificate, Borrower Materials, hedging agreement relating to any Swap Obligations or other note, document, instrument or agreement (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transactions relating hereto. “Other Connection Taxes”: Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced or sold or assigned an interest in, any Loan or Loan Document). “Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 13.4). “Overadvance”: as defined in Section 2.1.5. “Overadvance Loan”: a Base Rate Loan made when an Overadvance exists or is caused by the funding thereof. “Participant”: as defined in Section 13.2.1. “Patriot Act”: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). “Payment Conditions”: with respect to any transaction that references the Payment Conditions:


 
29 AmericasActive:19586302.10 (a) no Event of Default has occurred and is continuing or would result from such transaction; (b) either: (i) both (A) Availability is not less than the greater of (x) $22,500,000 and (y) 12.5% of the Line Cap on the date of such transaction and for each of the thirty days immediately preceding such transaction, in each case after giving pro forma effect to such transactions (including the making of any Loans in connection therewith) and (B) the Consolidated Fixed Charge Coverage Ratio is at least 1.00 to 1.00, both before and after giving pro forma effect to such transaction; or (ii) Availability is not less than the greater of (x) $33,750,000 and (y) 17.5% of the Line Cap on the date of such transaction and for each of the thirty days immediately preceding such transaction, in each case after giving pro forma effect to such transactions (including the making of any Loans in connection therewith); and (c) with respect to any transaction (or series of related transactions) with an aggregate value in excess of $50,000,000, Lender shall have received a certificate of a Senior Officer certifying as to compliance with the Payment Conditions and demonstrating (in reasonable detail) the calculations required thereby. “Payment Item”: each check, draft or other item of payment payable to an Obligor, including those constituting proceeds of any Collateral. “PBGC”: the Pension Benefit Guaranty Corporation. “Pension Plan”: any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years. “Permitted Acquisition” any Acquisition so long as the following conditions are satisfied: (a) the Payment Conditions are satisfied; (b) the Acquisition is consensual; (c) the assets, business or Person being acquired is useful or engaged in the business of Obligors; and (d) with respect to any transaction with an aggregate value in excess of $5,000,000, Borrower Agent shall deliver to Agent, at least 5 Business Days prior to the Acquisition, copies of all material agreements relating thereto and target financial statements (to the extent reasonably available) for the most recent 12 month period and such other information reasonably requested by the Agent. “Permitted Asset Disposition”: as defined in Section 10.2.6.


 
30 AmericasActive:19586302.10 “Permitted Discretion”: a determination made in good faith, using reasonable business judgment (from the perspective of a secured, asset-based lender). “Permitted Lien”: as defined in Section 10.2.2. “Permitted Supply Chain Account Debtor”: CNH Industrial America LLC, Linamar Corporation, Caterpillar Inc. and their respective Affiliates and each other Account Debtor approved in writing by Agent. “Permitted Supply Chain Transactions” means customary supply chain, factoring or early-pay arrangements between an Obligor (each such Person, a “Selling Obligor”) and any of (x) a third party commercial bank or an Affiliate thereof or (y) any other Person that is not an Affiliate of an Obligor which customarily acts as a supply chain program provider or factor under factoring or early pay arrangements in the ordinary course of its business (each such counterparty, a “Supply Chain Provider”; it being acknowledge and agreed that Citibank N.A. and JPMCB are permitted Supply Chain Providers), pursuant to which such Selling Obligor sells Accounts, together with Related Assets, to such Supply Chain Provider in the Ordinary Course of Business of such Obligor; provided that the Account Debtor is a Permitted Supply Chain Account Debtor. “Person”: any individual, corporation, limited liability company, unlimited company, unlimited liability company partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity. “Platform”: as defined in Section 14.3.2. “PPSA”: the Personal Property Security Act (Ontario), including the regulations thereto and related minister’s orders; provided that, if validity, priority, opposability, perfection or the effect of perfection or non-perfection of any Lien on the Collateral created under any Loan Document is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in any jurisdiction in Canada other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including, the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions of any applicable Loan Document relating to such validity, priority, opposability, perfection or the effect of perfection or non-perfection, as the case may be. “Pro Rata”: with respect to any Lender, a percentage (rounded to the ninth decimal place) determined (a) while Revolver Commitments are outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and (b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations outstanding by the aggregate amount of all outstanding Loans and LC Obligations. “Prime Rate”: the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement. “Properly Contested”: with respect to any obligation of an Obligor, (a) the obligation is being properly contested in good faith by appropriate proceedings instituted within the time allowed by law and diligently pursued thereafter; and (b) appropriate reserves have been established in accordance with GAAP.


 
31 AmericasActive:19586302.10 “Property”: any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible. “Protective Advances”: as defined in Section 2.1.6. “Purchase Money Debt”: (a) Debt (other than the Obligations) incurred for payment of any of the purchase price of fixed or capital assets; (b) Debt (other than the Obligations) incurred within 90 days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions, modifications or refinancings (but not increases) thereof. “Purchase Money Lien”: a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired in whole or in part by such Debt and constituting a Capital Lease or a purchase money security interest under the UCC or the PPSA, as applicable. “Qualified ECP”: an Obligor with total assets exceeding $10,000,000, or that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act. “Qualifying PO”: issuance by any Obligor or any direct or indirect parent thereof of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or in a firm commitment underwritten offering (or series of related offerings of securities to the public pursuant to a final prospectus) made pursuant to the Securities Act. “Real Estate”: all right, title and interest (whether as owner, lessor or lessee) in any real Property or any buildings, structures, parking areas or other improvements thereon. “Recipient”: Agent, Issuing Bank, any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation. “Refinancing Conditions”: the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that does not exceed the principal amount of the Debt being extended, renewed or refinanced (plus the amount of accrued and unpaid interest thereon and fees, costs, expenses and premiums incurred in connection therewith); (b) it has a final maturity no sooner than, and a weighted average life to maturity no less than the Debt being extended, renewed, refinanced, replaced, refunded, exchanged or converted; (c) it is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed, refinanced, replaced, refunded, exchanged or converted; (d) the representations, covenants and defaults applicable to it are no less favorable (when taken as a whole) to Obligors than those applicable to the Debt being extended, renewed or refinanced; (e) if secured, such Refinancing Debt shall not be secured by property other than property securing the applicable refinanced debt; (f) such Refinancing Debt shall not at any time be incurred or guaranteed by any Person other than a Person that is an obligor or guarantor of the applicable Refinanced Debt unless such Person is also an Obligor; and (g) upon giving effect to it, no Default or Event of Default exists and is continuing. “Refinancing Debt”: Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(b), (c), (d), (f), or (k). “Reimbursement Date”: as defined in Section 2.3.2.


 
32 AmericasActive:19586302.10 “Related Assets”: with respect to any Accounts sold pursuant to a Permitted Supply Chain Transaction, all collateral securing such Accounts, all contracts and contract rights, guarantees or other obligations in respect of such Accounts, all records with respect to such Accounts and any other assets customarily transferred together with Accounts in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred by an Obligor to the factor thereunder. “Rent and Charges Reserve”: the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve equal to three months’ rent and other charges that could be payable to any such Person, unless such Person has executed a Lien Waiver; provided that with respect to any Lien Waiver not delivered at the Closing Date, Agent shall not institute any Rent and Charges Reserves until the date which is 60 days after the Closing Date. “Report”: as defined in Section 12.2.3. “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived. “Required Lenders”: two or more unaffiliated Lenders (unless there is only one Lender) which are not Affiliates (subject to Section 4.2) having together (a) Revolver Commitments in excess of 50% of the aggregate then outstanding Revolver Commitments; and (b) if the Revolver Commitments have terminated, outstanding Loans in excess of 50% of all outstanding Loans; provided, that the Commitments and outstanding Loans of any Defaulting Lender shall be excluded from such calculation. “Required Supermajority Lenders”: two or more unaffiliated Lenders (unless there is only one Lender) which are not Affiliates (subject to Section 4.2) having together (a) Revolver Commitments in excess of 66 2/3% of the aggregate then outstanding Revolver Commitments; and (b) if the Revolver Commitments have terminated, outstanding Loans in excess of 66-2/3% of all outstanding Loans; provided, that the Commitments and outstanding Loans of any Defaulting Lender shall be excluded from such calculation. “Rescindable Amount”: has the meaning specified in Section 4.1.3(c). “Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Restrictive Agreement”: an agreement (other than a Loan Document) that conditions or restricts the right of any Obligor or Subsidiary to incur or repay Borrowed Money, to grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Debt. “Revolver Commitment”: the Commitments. “Revolver Loan”: an advance made to a Borrower pursuant to Section 2.1, and any Swingline Loan, Overadvance Loan or Protective Advance. “Revolver Termination Date”: the date that is the earlier of: (a) February 28, 2029 or (b) 91 days prior to the maturity of the 2028 Notes.


 
33 AmericasActive:19586302.10 “Revolver Usage”: the aggregate amount of outstanding LC Obligations and Loans. “Royalties”: all royalties, fees, expense reimbursement and other amounts payable by an Obligor under a License. “S&P”: Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors. “Sanction”: a sanction administered or enforced by the U.S. government, Canadian government, UN Security Council, European Union, U.K. government or other applicable sanctions authority, including restrictions imposed with respect to the specially designated nationals list maintained by the U.S. Treasury Office of Foreign Assets Control (“OFAC”). “SEC”: the Securities and Exchange Commission or any other Governmental Authority succeeding to any of the principal functions thereof. “Secured Bank Product Obligations”: Debt, obligations and other liabilities with respect to Bank Products owing by on Obligor or an Affiliate of an Obligor to a Secured Bank Product Provider; provided that Secured Bank Product Obligations of an Obligor or an Affiliate of an Obligor shall not include its Excluded Swap Obligations. “Secured Bank Product Provider”: (a) Bank of America or any of its Affiliates; and (b) any other Lender or Affiliate of a Lender that is providing a Bank Product, provided such provider delivers written notice to Agent, in form and substance satisfactory to Agent, within 10 days (or such later date acceptable to the Agent in its discretion) following the later of the Closing Date or creation of the Bank Product, describing the Bank Product and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount. “Secured Parties”: collectively, the Agent, Issuing Bank, Lenders and Secured Bank Product Providers, and “Secured Party” means any one of them. “Security Documents”: the Guaranties, Deposit Account Control Agreements, the Canadian Security Documents, the Closing Date Collateral Assignment of R&W Insurance and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations. “Senior Officer”: each of the chairman of the board, president, chief executive officer, chief operating officer, chief financial officer, secretary or treasurer of an Obligor. “Settlement Report”: a report summarizing Revolver Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Revolver Commitments. “SOFR”: the secured overnight financing rate as administered by FRBNY (or a successor administrator). “SOFR Adjustment”: 0.10% (10 basis points) per annum. “Solvent”: as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such


 
34 AmericasActive:19586302.10 Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; and (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage. “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase. “Spot Rate”: the exchange rate, as determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency. “Subordinated Debt”: any Debt incurred by an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) satisfactory to Agent. “Subordination Agreements”: all subordination agreements executed by a holder of Subordinated Debt in favor of Agent and the other Secured Parties from time to time on or after the Closing Date. “Subsidiary”: any Person (other than a natural person) at least 50% of whose voting securities or Equity Interests is owned by a Borrower or any combination of an Obligor (including indirect ownership by an Obligor through other Persons in which such Obligor directly or indirectly owns 50% of the voting securities or Equity Interests). “Successor Rate”: as defined in Section 3.6(b). “Swap”: as defined in §1a(47) of the Commodity Exchange Act. “Swap Obligations”: obligations under an agreement relating to a Swap. “Swingline Loan”: any Borrowing of Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among Lenders or repaid by Borrowers. “Synthetic Lease Obligation”: the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). “Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term SOFR”: (a) for any Interest Period relating to a Loan (other than a Base Rate Loan), the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period, provided that if such rate is not published prior to 11:00 a.m. on such determination date, then the Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and (b) for any interest calculation relating


 
35 AmericasActive:19586302.10 to a Base Rate Loan on any day, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such date with a term of one month commencing that day, provided that if the rate is not published prior to 11:00 a.m. on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such term; provided, that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) would otherwise be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement. “Term SOFR Loan”: a Loan that bears interest based on clause (a) of the definition of Term SOFR. “Term SOFR Screen Rate”: the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time). “Titan’s Financial Statements”: as defined in Section 9.1.7. “Transferee”: any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations. “Trigger Period (Dominion)”: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Availability has been less than the greater of $17,000,000 and 10.0% of the Line Cap for a period of three consecutive Business Days; and (b) continuing until (i) no Event of Default exists and (ii) Availability during each of the preceding 30 consecutive days has been more than the greater of $17,000,000 and 10.0% of the Line Cap. “Trigger Period (FCCR)”: the period (a) commencing on any day that Availability has been less than the greater of $17,000,000 and 10.0% of the Line Cap at any time; and (b) continuing until Availability during each of the preceding 30 consecutive days has been more than the greater of $17,000,000 and 10.0% of the Line Cap. “Trigger Period (Field Exams & Appraisals)”: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Availability has been less than the greater of $22,000,000 and 12.5% of the Line Cap for a period of three consecutive Business Days; and (b) continuing until (i) no Event of Default exists and (ii) Availability during each of the preceding 30 consecutive days has been more than the greater of $22,000,000 and 12.5% of the Line Cap. “Trigger Period (Monthly Financial Reporting)”: the period (a) commencing on any day that Availability has been less than the greater of $22,000,000 and 12.5% of the Line Cap for a period of three consecutive Business Days; and (b) continuing until Availability during each of the preceding 30 consecutive days has been more than the greater of $22,000,000 and 12.5% of the Line Cap. “Trigger Period (Reporting)”: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Availability has been less than the greater of $17,000,000 and 10.0% of the Line Cap for a period of three consecutive Business Days; and (b) continuing until (i) no Event of Default exists and (ii) Availability during each of the preceding 30 consecutive days has been more than the greater of $17,000,000 and 10.0% of the Line Cap. “Type”: any type of a Loan (i.e., Base Rate Loan or Term SOFR Loan) that has the same interest option and, in the case of Term SOFR Loans, the same Interest Period.


 
36 AmericasActive:19586302.10 “UCC”: the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction. “UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unenhanced Accounts”: Eligible Accounts that are not Investment Grade Accounts or Credit Insured Accounts. “Unused Line Fee Rate”: a per annum rate equal to 0.25%. “U.S. Government Securities Business Day”: any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law. “U.S. Person”: “United States Person” as defined in Section 7701(a)(30) of the Code. “Value”: (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis (it being understood that Obligors’ consolidated financial statements may be prepared on a last-in, first-out basis with respect to raw materials, with applicable reserves related thereto), and excluding any portion of cost attributable to intercompany profit among Obligors and their Affiliates; and (b) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person. “Write-Down and Conversion Powers”: (a) the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for such EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers. 1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified herein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrowers’ certified public accountants concur in such change and the change is disclosed to Agent. Under the Loan Documents (except as otherwise specified herein), all references to the “Obligors on a Consolidated basis” or the “Obligors” for purposes of determining any financial calculation shall exclude each Subsidiary that is not an Obligor.


 
37 AmericasActive:19586302.10 1.3 Uniform Commercial Code; PPSA. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time or the PPSA, as applicable: “Chattel Paper”, “Commercial Tort Claim”, “Document” (as defined in the UCC) or “Document of Title” (as defined in the PPSA), “Equipment”, “General Intangibles” (as defined in the UCC) or “Intangibles” (as defined in the PPSA), “Goods”, “Instrument”, “Inventory”, “Investment Property”, “Letter-of-Credit Right”, “Securities Account” and “Supporting Obligation”. 1.4 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section means, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors and assigns; (f) time of day mean time of day at Agent’s notice address under Section 14.3.1; or (g) discretion of Agent, Issuing Bank or any Lender means the sole and absolute discretion of such Person (unless the word discretion is otherwise expressly qualified herein). All references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation used by Obligors in the Ordinary Course of Business, and otherwise satisfactory to Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. A reference to Obligors’ “knowledge” or similar concept means actual knowledge of a Senior Officer of any Obligor. 1.5 Division. Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division of or by a limited liability company or limited partnership, or an allocation of assets to a series of any such entity (or the unwinding of a Division or allocation) as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any Division of a Person shall constitute a separate Person hereunder. 1.6 Currency Equivalents. 1.6.1. Calculations. All references in the Loan Documents to Loans, Letters of Credit, Obligations, Borrowing Base components and other amounts shall be denominated in Dollars, unless expressly provided otherwise. The Dollar equivalent of any amounts denominated or reported under a Loan Document in a currency other than Dollars shall be determined by Agent on a daily basis, based on the current Spot Rate. Obligors shall report Value and other Borrowing Base components to Agent in the currency invoiced by Obligors (for Accounts) or shown in Obligors’ financial records (for all other assets), and unless expressly provided otherwise, shall deliver financial statements and calculate financial covenants


 
38 AmericasActive:19586302.10 in Dollars. Notwithstanding anything herein to the contrary, if an Obligation is funded or expressly denominated in a currency other than Dollars, Obligors shall repay such Obligation in such other currency. 1.6.2. Judgments. If, in connection with obtaining judgment in any court, it is necessary to convert a sum from the currency provided under a Loan Document into another currency, the Spot Rate shall be used as the rate of exchange. Notwithstanding any judgment in a currency different from that specified in a Loan Document, an Obligor shall discharge its obligation in respect of the sum due under the Loan Document only if, on the Business Day following Agent’s receipt of the payment in the judgment currency, Agent can use the amount paid to purchase the sum originally due in the Loan Document currency. If the purchased amount is less than the sum originally due, Obligors agree, as a separate obligation and notwithstanding any such judgment, to indemnify Agent, Issuing Bank and Lenders against such loss. If the purchased amount is greater than the sum originally due, Agent shall return the excess amount to the applicable Obligor (or to the Person legally entitled thereto). 1.7 Limited Condition Transactions. (a) When (i) calculating the availability under any basket set forth in this Agreement, (ii) determining compliance with any provision of this Agreement that requires the calculation of any financial ratio or test, (iii) determining compliance with any provision of this Agreement that requires that no Default or Event of Default has occurred, is continuing or would result therefrom or (iv) making or determining the accuracy of any representations and warranties, in each case, in connection with the consummation of any Limited Condition Transaction and any actions or transactions related thereto undertaken solely in order to consummate such Limited Condition Transaction in accordance with its terms (including Acquisitions, Investments, the incurrence or issuance of Debt and the use of the proceeds thereof, the incurrence of Liens, repayments and Distributions) (such actions or transactions related thereto, the “Limited Condition Related Transactions”), in each case, at the option of the Obligors (the Obligors’ election to exercise such option, an “LCT Election”), the date of determination for availability under any such basket, ratio or test and whether any such action or transaction is permitted under this Agreement shall be deemed to be the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction are entered into (or, if applicable, the date of delivery of an irrevocable notice, declaration of a dividend or similar event) and if, after giving pro forma effect to the Limited Condition Transaction and any Limited Condition Related Transactions, the Obligors or any of their Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such basket, ratio or test (and any related requirements and conditions), such basket, ratio or test (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied); provided that compliance with such baskets, ratios or tests (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date and at or prior to the consummation of such Limited Condition Transaction and any Limited Condition Related Transactions. (b) For the avoidance of doubt, if the Obligors’ have made an LCT Election, (1) if any of the baskets, ratios or tests for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in any such basket, ratio or test at or prior to the consummation of the applicable Limited Condition Transaction and any Limited Condition Related Transactions, such baskets, ratios or tests will be deemed not to have been exceeded or failed to have been complied with as a result of such fluctuations (and no Default or Event of Default shall be deemed to have occurred due to such failure to comply), and (2) in calculating the availability under any basket, ratio or test in connection with any action or transaction unrelated to such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated and the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable


 
39 AmericasActive:19586302.10 notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction, any such basket, ratio or test shall be determined or tested giving pro forma effect to such Limited Condition Transaction. (c) Notwithstanding anything in this Section 1.7 to the contrary, (i) the funding of any Loans and the issuance of any Letters of Credit shall remain subject to the conditions precedent set forth in Section 6.2 irrespective of whether used in connection with any Limited Condition Transaction (whether at the time of consummation of such Limited Condition Transaction or otherwise), (ii) the date of determination of whether any applicable condition requiring a minimum amount of Availability (including the calculation of the Borrowing Base) has been satisfied under this Agreement in connection with any Limited Condition Transaction or any Limited Condition Related Transaction shall be the LCT Test Date and the date of consummation of such Limited Condition Transaction and each such Limited Condition Related Transaction, and (iii) solely with respect to Events of Default under Sections 11.1(a) and 11.1(j) hereof, the date of determination of whether any such Event of Default has occurred, is continuing or would result therefrom, shall be the LCT Test Date and the date of consummation of such Limited Condition Transaction and each such Limited Condition Related Transaction. 1.8 Quebec Interpretation. For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) security interest” and “mortgage” shall be deemed to include a “hypothec”, (vi) all references to filing, registering or recording under the UCC or PPSA shall be deemed to include publication by registration under the Civil Code of Quebec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) “foreclosure” shall be deemed to include the “exercise of a hypothecary right”, (xii) “lease” shall be deemed to include a “lease” or a “contract of leasing (crédit-bail)”, as applicable, (xiii) “deposit account” shall be deemed to include a “financial account” (within the meaning of Article 2713.6 of the Civil Code of Quebec), (xiv) “construction liens” shall be deemed to include “legal hypothecs”, (xv) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily,” (xvi) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xvii) “beneficial ownership” shall be deemed to include “ownership”, (xviii) “easement” shall be deemed to include “servitude”, (xix) “priority” shall be deemed to include “rank” or “prior claim”, as applicable, (xx) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”, (xxi) “survey” shall be deemed to include “certificate of location and plan”, (xxii) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (xxiii) ”foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (xxiv) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (xxv) “guarantee” and “guarantor” shall include “suretyship” and “surety”, and (xxvi) “account” and “receivable” shall be deemed to include “claim” (including “monetary claim” within the meaning of the Civil Code of Quebec). The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Each party hereto hereby confirms


 
40 AmericasActive:19586302.10 that it was represented by legal counsel and has had the opportunity to negotiate the terms of this Agreement and any other Loan Documents, including the essential stipulations thereof, with the assistance of its legal counsel. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable). Chaque partie aux présentes confirme qu’elle a été représentée par des conseillers juridiques et a eu l’opportunité de négocier les termes de cette convention et des autres documents de crédit, y compris leurs stipulations essentielles, avec l’aide de ses conseillers juridiques. SECTION 2. CREDIT FACILITIES 2.1 Revolver Commitment. 2.1.1. Revolver Loans. Each Lender agrees, severally on a Pro Rata basis up to its Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers from time to time through the Commitment Termination Date. The Revolver Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any obligation to honor a request for a Revolver Loan if the Revolver Usage at such time, plus the requested Loan, would exceed the Line Cap. 2.1.2. Revolver Notes. The Revolver Loans made by each Lender and interest accruing thereon shall be evidenced by the records of Agent and such Lender. At the request of any Lender, Borrowers shall deliver to such Lender a promissory note evidencing its Revolver Loans. 2.1.3. Use of Proceeds. The proceeds of Revolver Loans shall be used by Borrowers solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility and the Closing Date Acquisition; (c) to pay Obligations in accordance with this Agreement; and (d) for lawful corporate purposes of Borrowers, including working capital. Borrowers shall not, directly or indirectly, use any Letter of Credit or Loan proceeds, nor use, lend, contribute or otherwise make available any Letter of Credit or Revolver Loan proceeds to any Subsidiary, joint venture partner or other Person, (i) to purchase or carry, or to reduce or refinance any debt incurred to purchase or carry, any margin stock or for any related purpose as governed by any regulation (including Regulation U) of the Federal Reserve Board of Governors; (ii) to directly or indirectly, fund any activities of or business with any Person, or in any country or territory, that, at the time of issuance of the Letter of Credit or funding of the Loan, is the target of any Sanction; or (iii) in any manner that would result in a violation of a Sanction, Anti-Corruption Law, Anti-Terrorism Law or other Applicable Law by any Person (including any Secured Party or other individual or entity participating in any transaction). 2.1.4. Voluntary Reduction or Termination of Revolver Commitments. (a) The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this Agreement. Upon at least 90 days (or such shorter period as agreed to by Agent in writing) prior written notice to Agent at any time, Borrowers may, at their option, terminate the Revolver Commitments and this credit facility without premium or penalty. Any notice of termination given by Borrowers shall specify the termination date and shall be irrevocable. On the termination date, Borrowers shall make Full Payment of all Obligations. (b) Borrowers may permanently reduce the Revolver Commitments, without premium or penalty, on a Pro Rata basis for each Lender, upon at least five Business Days (or such shorter period as agreed to in writing by Agent) prior written notice to Agent delivered at any time, which notice shall specify (i) the amount of the reduction and (ii) the effective date of the reduction and shall be irrevocable once


 
41 AmericasActive:19586302.10 given. Each reduction shall be in a minimum amount of $10,000,000, or an increment of $1,000,000 in excess thereof. 2.1.5. Overadvances. If the outstanding aggregate Revolver Loans and L/C Obligations exceed the Line Cap (“Overadvance”) at any time, the excess amount shall be payable by Borrowers on demand, in writing, by Agent, and shall constitute an Obligation secured by the Collateral, entitled to all benefits of the Loan Documents. Agent may require Lenders to fund Base Rate Loans that cause or constitute an Overadvance and to forbear from requiring Borrowers to cure an Overadvance, so long as (a) the aggregate outstanding amount of Overadvance, together with the aggregate outstanding amount of Protective Advances, does not exceed 10% of the Line Cap, (b) such Overadvance does not continue for more than 30 consecutive days without the consent of Required Lenders, (c) unless otherwise consented to by the Required Lenders, after all outstanding Overadvances have been repaid, Agent shall not make or permit any additional Overadvances unless 10 days or more have expired since the last date on which any Overadvances were outstanding and (d) such Overadvance does not cause Revolver Usage to exceed the aggregate Commitments. The Required Lenders may at any time revoke Agent’s authority to make further Overadvances by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Overadvance is appropriate shall be conclusive. In no event shall Loans be required that would cause Revolver Usage to exceed the aggregate Commitments. No funding or sufferance of an Overadvance shall constitute a waiver by Agent or Lenders of the Event of Default caused thereby. No Obligor shall be a beneficiary of this Section nor authorized to enforce any of its terms. 2.1.6. Protective Advances. Agent shall be authorized, in its discretion, at any time that any conditions in Section 6 are not satisfied to make Base Rate Loans (“Protective Advances”) if Agent, in its Permitted Discretion, deems that Protective Advances are necessary or desirable (a) to preserve or protect all or any portion of the Collateral, (b) to enhance the likelihood, or maximize the amount of, repayment of the Loans and the other Obligations or (c) to pay any other amount chargeable to the Obligors pursuant to this Agreement, so long as (i) the aggregate outstanding amount of Protective Advances, together with the aggregate outstanding amount of Overadvances, does not exceed 10% of the Line Cap and (ii) such Protective Advance does not cause Revolver Usage to exceed the aggregate Commitments. The Required Lenders may at any time revoke Agent’s authority to make further Protective Advances by written notice to Agent; provided that existing Protective Advances shall not be subject to such revocation and any such revocation must be in writing and shall become effective prospectively upon Agent’s receipt thereof. Absent such revocation, Agent’s determination that funding of a Protective Advances is appropriate shall be conclusive. No funding or sufferance of a Protective Advance shall constitute a waiver by Agent or Lenders of any Event of Default relating thereto. No Obligor shall be a beneficiary of this Section nor authorized to enforce any of its terms. 2.1.7. Increase in Revolver Commitments. Borrowers, through Borrower Agent, may request an increase in Revolver Commitments from time to time upon notice to Agent, as long as (a) such increase is approved by Agent in its Permitted Discretion and is subject to terms and conditions mutually agreed upon by Agent and Borrower Agent, (b) the requested increase is in a minimum amount of $20,000,000 (or such lesser amount which would, when added to all previously authorized increases pursuant hereto, cause such increase to reach the maximum amount set forth below) and is offered on the same terms as existing Revolver Commitments, except for a closing fee specified by Borrowers, (c) increases under this Section do not collectively exceed $50,000,000 in the aggregate and no more than three (3) increases are made, (d) no reduction in Commitments pursuant to Section 2.1.4 has occurred prior to the requested increase and (e) the requested increase does not cause the Commitments to exceed 90% of any applicable cap under any Subordinated Debt agreement or the 2028 Note Indenture (or to the extent such indenture is refinanced, the indenture or other credit document governing such applicable Refinancing Debt). Agent shall promptly notify Lenders of the requested increase and, within 10 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its


 
42 AmericasActive:19586302.10 Revolver Commitment. Agent shall promptly notify Borrower Agent of each Lender’s response. Any Lender not responding within such period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Revolver Commitments and become Lenders hereunder so as to bring the Revolver Commitment up to the amount requested by Borrower Agent. Agent may allocate, in its discretion, the increased Revolver Commitments among committing Lenders and, if necessary, Eligible Assignees. If the full increase requested by Borrower’s Agent is not committed to by the Lenders after taking into account the participation of Eligible Assignees, then the Revolving Commitment nonetheless shall be increased to the extent any Lender or Lenders and/or Eligible Assignees expressly commit thereto pursuant to this Section 2.1.7. Provided the conditions set forth in Section 6.2 are satisfied, total Revolver Commitments shall be increased by the requested amount (or such lesser amount committed by any Lender or Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent. Agent, Borrowers, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolver Commitments. On the effective date of an increase, all outstanding Revolver Loans, LC Obligations and other exposures under the Revolver Commitments shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments. 2.2 [Reserved]. 2.3 Letter of Credit Facility. 2.3.1. Issuance of Letters of Credit. Issuing Bank shall issue Letters of Credit from time to time until 30 days prior to the earlier of the Revolver Termination Date or the Commitment Termination Date, on the terms set forth herein, including the following: (a) Each Borrower acknowledges that Issuing Bank’s issuance of any Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; (ii) each of the LC Conditions is satisfied; and (iii) if a Defaulting Lender exists, such Lender or Borrowers have entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any Fronting Exposure associated with such Lender. If, in sufficient time to act, Issuing Bank receives written notice from Required Lenders that one or more of the LC Conditions has not been satisfied, Issuing Bank shall not issue the requested Letter of Credit. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions. (b) Letters of Credit may be requested by a Borrower to support obligations incurred in the Ordinary Course of Business, or as otherwise approved by Agent. The renewal or extension of any Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that delivery of a new LC Application may be required at the discretion of Issuing Bank. (c) Obligors assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary except for errors by the Issuing Bank in payment or honoring of any draws thereupon due to its gross negligence or willful misconduct as determined in a final, non-appealable judgment by a court of competent jurisdiction. In connection with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any LC Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any LC Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any LC Documents or of any endorsements thereon; the time, place, manner or order in which shipment of


 
43 AmericasActive:19586302.10 goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or LC Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and an Obligor; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of Issuing Bank under the Loan Documents shall be cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Obligors are discharged with proceeds of any Letter of Credit. (d) In connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care. (e) Letters of Credit may be issued or outstanding hereunder in support of any obligations of, or is for the account of, any Guarantor; provided that the Borrowers shall be obligated to reimburse, indemnify and compensate the Issuing Bank hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issues solely for the account of a Borrower. The Borrowers irrevocably waive any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of a Guarantor inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of such Guarantor. 2.3.2. Reimbursement; Participations. (a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Loans from the day after the Reimbursement Date until payment by Borrowers. The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees to fund its Pro Rata share of such Borrowing whether or not the Commitments have terminated, an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied. (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit. If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not reimburse such payment on the


 
44 AmericasActive:19586302.10 Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment. Upon request by a Lender, Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its possession at such time. (c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Borrower may have with respect to any Obligations. Issuing Bank does not assume any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Documents. Issuing Bank does not make to Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, LC Documents or any Borrower. Issuing Bank shall not be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Borrower. (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any Letter of Credit or LC Document except as a result of its gross negligence or willful misconduct. Issuing Bank may refrain from taking any action with respect to a Letter of Credit until it receives written instructions from Required Lenders. 2.3.3. Cash Collateral. If any LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that Availability is less than zero, (c) after the Commitment Termination Date, or (d) within 10 Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding Letters of Credit and pay to Issuing Bank the amount of all other LC Obligations. Borrowers shall, on demand, in writing, by Issuing Bank or Agent from time to time, Cash Collateralize the Fronting Exposure of any Defaulting Lender. 2.3.4. Resignation of Issuing Bank. Issuing Bank may resign at any time upon notice to Agent and Borrowers. On and after the effective date of such resignation, Issuing Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any Letter of Credit, but shall continue to have all rights and other obligations of an Issuing Bank hereunder relating to any Letter of Credit issued by it prior to such date. Agent shall promptly appoint a replacement Issuing Bank, which, as long as no Default or Event of Default exists, shall be reasonably acceptable to Borrower Agent. 2.3.5. Existing Letter of Credit. On and after the Closing Date, the Existing Letter of Credit shall be deemed issued and outstanding as a Letter of Credit hereunder, subject to the requirements of this Agreement. JPMCB, as the Issuing Bank in respect of the Existing Letter of Credit shall promptly return and release all cash collateral supporting the Existing Letter of Credit within ten (10) Business Days of the Closing Date, and fees and charges in respect of the Existing Letter of Credit shall hereafter be governed by, and accrue in accordance with, this Agreement. 2.3.6. Issuing Bank Reports to Agent. Unless otherwise agreed by Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to


 
45 AmericasActive:19586302.10 Agent (i) periodic activity (for such period or recurrent periods as shall be requested by Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which any Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement, and (v) on any other Business Day, such other information as Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank. SECTION 3. INTEREST, FEES AND CHARGES 3.1 Interest. 3.1.1. Rates and Payment of Interest. (a) The Obligations shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a Term SOFR Loan, at Term SOFR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Loans. (b) During an Insolvency Proceeding with respect to any Obligor, or during any other Event of Default, but only for as long as it continues, if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate (whether before or after any judgment). (c) Interest shall accrue from the date a Loan is advanced or Obligation is incurred or payable, until paid in full by Borrowers. If a Loan is repaid on the same day made, one day’s interest shall accrue. Interest accrued on the Loans shall be due and payable in arrears, (i) on each Interest Payment Date; (ii) on any date of prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the Commitment Termination Date. Interest accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no payment date is specified, shall be due and payable on demand, in writing. Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and payable on demand, in writing. 3.1.2. Application of Term SOFR to Outstanding Loans. (a) Borrowers may on any Business Day, subject to delivery of a Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any Term SOFR Loan at the end of its Interest Period as, a Term SOFR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a Term SOFR Loan. (b) Whenever Borrowers desire to convert or continue Loans as Term SOFR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least three Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or


 
46 AmericasActive:19586302.10 continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, upon the expiration of any Interest Period in respect of any Term SOFR Loans, Borrowers shall have failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate Loans effective on the last day such Interest Period. Agent does not warrant or accept responsibility for, nor shall it have any liability with respect to, administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternate, replacement or successor to such rate (including any Successor Rate), or any component thereof, or the effect of any of the foregoing, or of any Conforming Changes. The Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Obligors. Agent may select information source(s) in its discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Successor Rate), or any component thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, Obligor or other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and whether at law or in equity) for any error or other act or omission related to or affecting the selection, determination or calculation of any rate (or component thereof) provided by such information source(s). 3.1.3. Interest Periods. In connection with making, converting or continuing any Term SOFR Loans, Borrowers shall select an interest period (“Interest Period”) to apply to such Loans, which Interest Period shall be one month, three months or six months (in each case, subject to availability); provided, however, that: (a) the Interest Period shall begin on the date the Loan is made or continued as, or converted into, a Term SOFR Loan, and shall expire on the numerically corresponding day in the calendar month at its end; (b) if any Interest Period begins on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month; and if any Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the Revolver Termination Date. 3.2 Fees. 3.2.1. Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Unused Line Fee Rate times the amount by which the Revolver Commitments exceed the average daily Revolver Usage. Such fee shall be payable in arrears, on the first day of each Fiscal Quarter and on the Commitment Termination Date. 3.2.2. LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Applicable Margin in effect for Term SOFR Loans times the average daily stated amount of Letters of Credit, which fee shall be calculated and payable quarterly in arrears, on the first day of each Fiscal Quarter; (b) to Agent, for its own account, a fronting fee equal to 0.125% per annum computed on the stated amount of each Letter of Credit, which fee shall be payable quarterly in arrears, on the first day of each Fiscal Quarter; and (c) to Issuing Bank, for its own account, all customary charges


 
47 AmericasActive:19586302.10 associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (a) shall be increased by 2% per annum. 3.2.3. [Reserved]. 3.2.4. Fee Letters. Borrowers shall pay all fees set forth in the Agent Fee Letter and the Joint Fee Letter. 3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days, except that for purposes of any Base Rate Loan (including Base Rate Loans determined by reference to Term SOFR) interest shall be calculated on the basis of a year of 365/366 days. Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error; provided that Agent shall, upon a written request of Borrower Agent, deliver to Borrower Agent a statement showing the computations or calculations used by Agent in determining any such fee, interest amount, or interest rate. All fees shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by Borrowers under Section 3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrower Agent by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within 10 days following receipt of the certificate. Notwithstanding anything set forth in this Section 3.3 to the contrary, any Lender that shall have a Change in Law (solely for purposes hereof, “Change in Law” shall be a Change in Law as defined in clause (c) of the definition thereof, without having the force of law) imposed upon it that shall, in the reasonable determination of such Lender, result in any payment amounts owing by Borrowers to such Lender pursuant to Sections 3.7 or 3.9, such Lender shall give Borrower Agent prior written notice of the implementation of such Change in Law. Borrower shall then have the right to remove such Lender, as permitted pursuant to Section 13.4, prior to the implementation of such Change in Law. Otherwise, Borrower shall make any amounts payable therefrom as set forth in this Section 3.3 and either Section 3.7 or 3.9, as applicable. 3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary Expenses. Borrowers shall also reimburse Agent for all legal, accounting, field examination, appraisal, consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation and preparation of any Loan Documents, including any amendment or other modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; (c) all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Obligations, and (d) subject to the limits of Section 10.1.1(b), each inspection, examination, audit or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party. All legal, accounting and consulting fees shall be charged to Borrowers by Agent’s professionals based on actual time expended and charged- out at their then applicable hourly rates for like matters, regardless of any reduced or alternative fee billing arrangements that Agent, any Lender or any of their Affiliates may have with such professionals with respect to this or any other transaction. Borrowers acknowledge that counsel may provide Agent with a benefit, such as a discount, credit or other accommodation, based on counsel’s overall relationship with Agent, including fees paid hereunder. If, for any reason (including inaccurate reporting on financial statements or a Borrowing Base Certificate), it is determined that a higher or lower Applicable Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and if a higher Applicable Margin should have applied, then Borrowers shall immediately pay


 
48 AmericasActive:19586302.10 to Agent, for the Pro Rata benefit of Lenders, an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid. All amounts payable by Borrowers under this Section shall be due on demand, in writing, from Agent. 3.5 Illegality. If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to perform any of its obligations hereunder, to make, maintain, issue, fund or commit to, participate in, or charge applicable interest or fees with respect to any Loan or Letter of Credit, or to determine or charge interest or fees based on SOFR or Term SOFR, then, on notice thereof by such Lender to Agent, (a) any obligation of such Lender to perform such obligations, to make, maintain, issue, fund, commit to or participate in the Loan or Letter of Credit (or to charge interest or fees otherwise applicable thereto), or to continue or convert Loans as Term SOFR Loans, shall be suspended and Borrowers shall make such appropriate accommodations regarding affected Letters of Credit as Agent or such Lender may reasonably request, as applicable, (b) if such notice asserts the illegality of such Lender to make or maintain Base Rate Loans whose interest rate is determined by reference to Term SOFR, the interest rate applicable to such Lender’s Base Rate Loans shall, as necessary to avoid such illegality, be determined by Agent without reference to the Term SOFR component of Base Rate, in each case until such Lender notifies Agent that the circumstances giving rise to Lender’s determination no longer exist. Upon delivery of such notice, Borrowers shall prepay or convert Term SOFR Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain the Loan and charge applicable interest to such day, or immediately, if such Lender cannot so maintain the Loan. Upon any prepayment or conversion of a Loan pursuant to this Section, Borrowers shall also pay accrued interest on the amount so prepaid or converted. 3.6 Inability to Determine Rates. (a) If in connection with any request for a Term SOFR Loan or a conversion to or continuation thereof, as applicable, (a) Agent determines (which determination shall be conclusive absent manifest error) that (i) no Successor Rate has been determined in accordance with Section 3.6(b), and the circumstances under Section 3.6(a)(i) or the Scheduled Unavailability Date has occurred (as applicable), or (ii) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (b) Agent or Required Lenders determine that for any reason Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Agent will promptly so notify Borrower Agent and Lenders. Thereafter, (x) the obligation of Lenders to make, maintain, or convert Base Rate Loans to, Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of Base Rate, the utilization of such component in determining Base Rate shall be suspended, in each case until Agent (or, in the case of a determination by Required Lenders described above, until Agent upon instruction of Required Lenders) revokes such notice. Upon receipt of such notice, (I) Borrowers may revoke any pending request for a Borrowing, conversion or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for Base Rate Loans, and (II) any outstanding Term SOFR Loans shall convert to Base Rate Loans at the end of their respective Interest Periods. (b) Notwithstanding anything to the contrary in any Loan Document, if Agent determines (which determination shall be conclusive absent manifest error), or Borrower Agent or Required Lenders notify Agent (with, in the case of the Required Lenders, a copy to Borrower Agent) that Borrowers or Required Lenders (as applicable) have determined, in the case of the Required Lenders, that Borrowers or Required Lenders (as applicable) have determined, that:adequate and reasonable means do not exist for


 
49 AmericasActive:19586302.10 ascertaining one, three and six month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative or made available or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor administrator satisfactory to Agent that will continue to provide such representative interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, “Scheduled Unavailability Date”); then, on a date and time determined by Agent (any such date, “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment, for any payment period for interest calculated that can be determined by Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document (“Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (x) if Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date or (y) if the events or circumstances of the type described in clauses (a) or (b) above have occurred with respect to the Successor Rate then in effect, then in each case, Agent and Borrower Agent may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such benchmarks in similar U.S. dollar denominated credit facilities syndicated and agented in the United States. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent posts such proposed amendment to all Lenders and Borrowers unless, prior to such time, Required Lenders deliver to Agent written notice that Required Lenders object to the amendment. Agent will promptly (in one or more notices) notify Borrower Agent and Lenders of implementation of any Successor Rate. A Successor Rate shall be applied in a manner consistent with market practice; provided, that to the extent market practice is not administratively feasible for Agent, the Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for all purposes of the Loan Documents. 3.7 Increased Costs; Capital Adequacy. 3.7.1. Change in Law. If any Change in Law shall:


 
50 AmericasActive:19586302.10 (a) impose, modify or deem applicable any reserve, liquidity, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank; (b) subject any Recipient to Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (iii) Connection Income Taxes) with respect to any Loan, Letter of Credit, Commitment or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (c) impose on any Lender, Issuing Bank or interbank market any other condition, cost or expense affecting any Loan, Loan Document, Letter of Credit, participation in LC Obligations, or Commitment; and the result thereof shall be to increase the cost to such Lender of making or maintaining any Loan or Commitment, or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank (which, subject to Section 3.3, such request shall be accompanied by, if requested in writing by the Borrower Agent, a statement setting forth the basis for such request), Borrowers will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered. 3.7.2. Capital Adequacy. If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or holding company’s capital as a consequence of this Agreement, or such Lender’s or Issuing Bank’s Commitments, Loans, Letters of Credit or participations in LC Obligations, to a level below that which such Lender, Issuing Bank or holding company could have achieved but for such Change in Law (taking into consideration such Lender’s, Issuing Bank’s and holding company’s policies with respect to capital adequacy or liquidity), then from time to time Borrowers will pay to such Lender or Issuing Bank upon such Lender’s or Issuing Bank’s request which request, subject to Section 3.3, shall be accompanied by, if requested in writing by the Borrower Agent, a calculation of the amount thereof in reasonable detail, as the case may be, such additional amount or amounts as will compensate it or its holding company for any such reduction suffered. 3.7.3. Compensation. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). 3.8 Mitigation. If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if Obligors are required to pay additional amounts with respect to a Lender under Section 5.9, then such Lender shall use reasonable efforts to designate a different Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) would not subject the Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to it or unlawful. Obligors shall pay all reasonable


 
51 AmericasActive:19586302.10 costs and expenses incurred by any Lender in connection with any such designation or assignment. In addition, each Lender agrees as soon as practicable after it becomes aware of any circumstances prompting the giving of notice under Section 3.5 or a request for payment from Borrowers under Section 3.7 or 3.9, that such Lender shall use reasonable commercial efforts to minimize costs and expenses incurred by it and payable by Borrowers pursuant thereto and shall instruct Agent to revoke the notice or suspend Borrowers’ payment/compensation as soon as possible after the circumstance giving rise thereto shall cease or pass with respect to such Lender. 3.9 Funding Losses. If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a Loan occurs on a day other than the end of its Interest Period, (c) Borrowers fail to repay a Loan when required hereunder, or (d) a Lender (other than a Defaulting Lender) is required to assign a Loan prior to the end of its Interest Period pursuant to Section 13.4, then Borrowers shall pay to Agent, upon notice to Borrower Agent from Agent and subject to Section 3.3, if requested in writing by the Borrower Agent, accompanied by a statement setting forth the basis for the amount being claimed, its customary administrative charge and to each Lender all resulting losses and expenses, including loss of anticipated profits and any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds. 3.10 Maximum Interest. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (including, without limitation, the Criminal Code (Canada), to the extent applicable) (“Maximum Rate”). If Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Obligations or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 3.11 Interest Act (Canada). For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. Obligors confirm that they fully understand and are able to calculate the rate of interest applicable to loans, advances, liabilities and obligations under this Agreement based on the methodology for calculating per annum rates provided for in this Agreement. Obligors hereby irrevocably agree not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to this Agreement or any Loan Documents, that the interest payable under this Agreement and the calculation thereof has not been adequately disclosed to Obligors as required pursuant to Section 4 of the Interest Act (Canada). SECTION 4. LOAN ADMINISTRATION 4.1 Manner of Borrowing and Funding Revolver Loans. 4.1.1. Notice of Borrowing.


 
52 AmericasActive:19586302.10 (a) Whenever Borrowers desire funding of a Borrowing of Revolver Loans, Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 12:00 noon (i) on the Business Day of the requested funding date, in the case of Base Rate Loans, and (ii) at least two Business Days prior to the requested funding date, in the case of Term SOFR Loans. Notices received after 12:00 noon shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Loans or Term SOFR Loans, and (D) in the case of Term SOFR Loans, the duration of the applicable Interest Period (which shall be deemed to be one month if not specified). (b) Unless payment is otherwise timely made by Obligors (when due) any Obligations (whether principal, interest, fees or other charges, including any Swingline Loan, Overadvance, Protective Advance, Extraordinary Expenses and LC Obligations but excluding Cash Collateral and Secured Bank Product Obligations) shall be deemed to be a request for Base Rate Loans on the due date, in the amount of such Obligations. The proceeds of such Revolver Loans shall be disbursed as direct payment of the relevant Obligation. In addition, Agent may, at its option, charge such Obligations against any operating, investment or other account of a Borrower maintained with Agent or any of its Affiliates. (c) If Borrowers maintain any disbursement account with Agent or any Affiliate of Agent, then presentation for payment of any Payment Item when there are insufficient funds to cover it shall be deemed to be a request for a Base Rate Loan on the date of such presentation, in the amount of the Payment Item. The proceeds of such Revolver Loan may be disbursed directly to the disbursement account. 4.1.2. Fundings by Lenders. Each Lender shall (by making its funds available in accordance with the Notice of Borrowing) timely honor its Revolver Commitment by advancing its Pro Rata share of each Borrowing of Revolver Loans that is properly requested hereunder. Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 1:00 p.m. on the proposed funding date for Base Rate Loans or by 3:00 p.m. at least two Business Days before any proposed funding of Term SOFR Loans. Each Lender shall fund to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in immediately available funds not later than 2:30 p.m. on the requested funding date, unless Agent’s notice is received after the times provided above, in which case Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from Lenders, Agent shall disburse the proceeds of the Revolver Loans as directed by Borrower Agent. Unless Agent shall have received (in sufficient time to act) written notice from a Lender that it does not intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lender’s share of any Borrowing or of any settlement pursuant to Section 4.1.3(b) is not received by Agent, then Borrowers agree to repay to Agent on demand, in writing, the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to the Borrowing. 4.1.3. Swingline Loans; Settlement. (a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an aggregate outstanding amount of $20,000,000, unless the funding is specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account prior to its settlement among Lenders. After settlement, payment on what was prior thereto a Swingline Loan, but upon settlement becomes a Base Rate Loan, shall be made for the Pro Rata benefit of Lenders. The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any


 
53 AmericasActive:19586302.10 promissory note. Each Lender hereby purchases, without recourse or warranty, an undivided Pro Rata participation in all Swingline Loans outstanding from time to time. (b) Settlement of Swingline Loans, Protective Advances and other Revolver Loans among Lenders and Agent shall take place on a date determined from time to time by Agent (but at least weekly), in accordance with the Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline Loans and Protective Advances, regardless of any designation by any Obligor or any provision herein to the contrary. Each Lender’s obligation to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other defense, and whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 6 are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata participation in such Loan and shall transfer the amount of such participation to Agent, in immediately available funds, within one Business Day after Agent’s request therefor. (c) Unless Agent receives notice from Borrowers prior to the date on which a payment is due to Agent for the account of Lenders or Issuing Bank hereunder that Borrowers will not make such payment, Agent may assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance on such assumption, distribute to Lenders or Issuing Bank, as applicable, the amount due. With respect to any payment that Agent makes for the account of Lenders or Issuing Bank hereunder as to which Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment, a “Rescindable Amount”): (1) Borrowers have not in fact made such payment, (2) Agent has made a payment in excess of the amount so paid by Borrowers (whether or not then owed), or (3) Agent has for any reason otherwise erroneously made such payment, then each Lender or Issuing Bank, as applicable, severally agrees to repay to Agent forthwith on demand the Rescindable Amount so distributed to or otherwise made for the account of such Lender or Issuing Bank, in immediately available funds with interest thereon for each day from and including the date such amount is distributed to it to but excluding the date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation. A notice by Agent to Issuing Bank, any Lender or any Borrower with respect to any amount owing under this clause (c) shall be conclusive, absent manifest error. 4.1.4. Notices. Borrowers may request, convert or continue Loans, select interest rates, Interest Periods, Type of Loan and transfer funds based on telephonic or e-mailed instructions to Agent. Borrowers shall confirm each such request by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs materially from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to be a Person authorized to give such instructions on a Borrower’s behalf. 4.1.5. Conforming Changes. Agent may make Conforming Changes from time to time with respect to SOFR, Term SOFR or any Successor Rate. Notwithstanding anything to the contrary in any Loan Document, any amendment implementing such changes shall be effective without further action or consent of any party to any Loan Document. Agent shall post or provide each such amendment to Lenders and Borrower Agent reasonably promptly after it becomes effective. 4.2 Defaulting Lender.


 
54 AmericasActive:19586302.10 4.2.1. Reallocation of Pro Rata Share; Amendments. For purposes of determining Lenders’ obligations to fund or participate in Loans or Letters of Credit, Agent may exclude the Commitments and Loans of any Defaulting Lender(s) from the calculation of Pro Rata shares. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 14.1.1(c). 4.2.2. Payments; Fees. Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may apply such amounts to the Defaulting Lender’s defaulted obligations, use the funds to Cash Collateralize such Lender’s Fronting Exposure, or readvance the amounts to Borrowers hereunder. A Lender shall not be entitled to receive any fees accruing hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its Commitment shall be disregarded for purposes of calculating the unused line fee under Section 3.2.1. If any LC Obligations owing to a Defaulting Lender are reallocated to other Lenders, fees attributable to such LC Obligations under Section 3.2.2 shall be paid to such Lenders. Agent shall be paid all fees attributable to LC Obligations that are not reallocated. Subject to Section 14.18, no reallocation hereunder shall constitute a waiver or release of any claim of any non-defaulting Lender hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-defaulting Lender as a result of such non-defaulting Lender’s increased exposure following such reallocation. 4.2.3. Cure. Agent may determine in its discretion that a Lender constitutes a Defaulting Lender and the effective date of such status shall be conclusive and binding on all parties, absent manifest error. Borrowers, Agent and Issuing Bank may agree in writing that a Lender is no longer a Defaulting Lender. At such time, Pro Rata shares shall be reallocated without exclusion of such Lender’s Commitments and Loans, and the Revolver Usage and other exposures under the Revolver Commitments shall be reallocated among Lenders and settled by Agent (with appropriate payments by the reinstated Lender, including its payment of breakage costs for Reallocated Term SOFR Loans) in accordance with the readjusted Pro Rata shares. Unless expressly agreed to by Borrowers, Agent and Issuing Bank, or as expressly provided herein with respect to Bail-In Actions and related matters, no reallocation of Revolving Commitments and Loans to non-Defaulting Lenders and no reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible for default by another Lender. 4.2.4. Termination of Defaulting Lender. The Borrowers may terminate the unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than five (5) Business Days’ prior notice to the Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 4.2.2 will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrowers, the Agent, any Issuing Bank, or any Lender may have against such Defaulting Lender. 4.3 Number and Amount of Term SOFR Loans; Determination of Rate. Each Borrowing of Term SOFR Loans when made shall be in a minimum amount of $1,000,000, plus any increment of $100,000 in excess thereof. No more than 8 Borrowings of Term SOFR Loans may be outstanding at any time, and all Term SOFR Loans having the same Interest Periods and beginning on the same date shall be aggregated together and considered one Borrowing for this purpose. Upon determining Term SOFR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof telephonically or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.


 
55 AmericasActive:19586302.10 4.4 Borrower Agent. Each Borrower hereby designates Titan International (“Borrower Agent”) as its representative and agent for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, Interest Periods, Types of Loans, delivery or receipt of communications, preparation and delivery of Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of Borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it. 4.5 One Obligation. The Loans, LC Obligations and other Obligations constitute one general obligation of Borrowers and are secured by Agent’s Lien on all Collateral; provided, however, that Agent and each other Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower. 4.6 Effect of Termination. On the Commitment Termination Date, the Obligations shall be immediately due and payable, and any Lender may terminate its and its Affiliates’ Bank Products (including, only with the consent of Agent, any Cash Management Services). Until Full Payment of the Obligations, all undertakings of Obligors contained in the Loan Documents shall continue, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents. Agent shall not be required to terminate its Liens unless it receives Cash Collateral or a written agreement, in each case satisfactory to it, protecting Agent and Lenders from the dishonor or return of any Payment Items previously applied to the Obligations. Sections 2.3 (to the extent of, and for so long as, any Letter of Credit remains issued and outstanding hereunder), 3.4, 3.6, 3.7, 3.9, 4.1.3(c), 5.6, 5.9, 5.10, 12, 14.2, this Section, and each other provision of a Loan Document that by its express terms survives the Full Payment of the Obligations each indemnity or waiver given by an Obligor or Lender in any Loan Document, shall survive Full Payment of the Obligations for the applicable statutes of limitation periods with respect thereto. SECTION 5. PAYMENTS 5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars, without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes, and in immediately available funds, not later than 12:00 noon on the due date. Any payment after such time shall be deemed made on the next Business Day. Any payment of a Term SOFR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section 3.9. Borrowers agree that Agent shall have the continuing, exclusive right to apply and reapply payments and proceeds of Collateral against the Obligations, in such manner as Agent deems advisable, but whenever possible, any prepayment of Loans shall be applied first to Base Rate Loans and then to Term SOFR Loans. All payments by a Borrower shall be made to Agent except for payments in discharge of amounts due a specific Lender to the extent expressly set forth and permitted herein, in which instance payment shall be made by such Borrower directly to the Lender to which such payment is due or owed. 5.2 Repayment of Revolver Loans. Revolver Loans may be prepaid from time to time, without penalty or premium, pursuant to a notice of prepayment (in form satisfactory to Agent), delivered to Agent concurrently with prepayment of a Swingline Loan and at least three Business Days prior to prepayment of other Loans; provided, that no such notice shall be required for payments applied pursuant to Section 5.6.


 
56 AmericasActive:19586302.10 Revolver Loans shall be due and payable in full on the Revolver Termination Date, unless payment is sooner required hereunder. Notwithstanding anything herein to the contrary, if an Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an amount sufficient to reduce the principal balance of Revolver Loans to the Line Cap. 5.3 Mandatory Payments. (a) During any Trigger Period (Dominion), all funds deposited into any Dominion Account shall automatically be dispersed to repay the outstanding Revolving Loans (for the avoidance of doubt, it being understood and agreed that, after such repayment and subject to the other terms herein, Borrowers may reborrow hereunder in accordance with the terms herein). (b) Concurrently with the receipt by any Obligor of any net cash proceeds from any Asset Disposition of any Collateral in an amount over $1,000,000 (other than with respect to a Permitted Asset Disposition), Borrowers shall prepay Revolver Loans in an amount equal to 100% of such Asset Disposition. (c) Concurrently with the receipt by any Obligor of any proceeds of insurance paid in respect of any Collateral in an amount over $1,000,000, Borrowers shall prepay Revolver Loans in an amount equal to the net cash proceeds thereof, subject to Section 8.6.2. (d) Concurrently with the receipt of any net cash proceeds from the issuance of any Debt of any Obligor (excluding Debt permitted by Section 10.2.1) Borrowers shall prepay the Revolver Loans in an amount equal to 100% of such net cash proceeds, solely to the extent not used for Acquisitions by a Borrower consummated within one hundred eighty (180) days thereafter. 5.4 Payment of Other Obligations. Obligations other than Loans, including LC Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan Documents or, if no payment date is specified, on demand, in writing, by Agent. 5.5 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any payment by or on behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or Agent, Issuing Bank or any Lender exercises a right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, Issuing Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then to the extent of such recovery, the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred. 5.6 Application and Allocation of Payments. 5.6.1. Application. Payments made by Borrowers hereunder shall be applied (a) first, as specifically required hereby; (b) second, to Obligations then due and owing; (c) third, to other Obligations specified by Borrowers; and (d) fourth, as determined by Agent in its discretion. If funds received by or available to Agent under clause (b) are insufficient to pay fully all Obligations then due and owing, such funds shall be applied (i) ratably to pay interest and fees until paid in full, and then (ii) ratably to pay unreimbursed draws under Letters of Credit and Loan principal then due and owing.


 
57 AmericasActive:19586302.10 5.6.2. Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, during an Event of Default, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows: (a) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent; (b) second, to all amounts owing to Agent on Swingline Loans, Protective Advances, and Loans and participations that a Defaulting Lender has failed to settle or fund; (c) third, to all amounts owing to Issuing Bank; (d) fourth, to all Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Lenders; (e) fifth, to all Obligations (other than Secured Bank Product Obligations) constituting interest; (f) sixth, to Cash Collateralization of LC Obligations; (g) seventh to all Loans and to Secured Bank Product Obligations arising under Swaps (including Cash Collateralization thereof) up to the amount of Availability Reserves existing therefor; (h) eighth, to all other Secured Bank Product Obligations; and (i) last, to all remaining Obligations. Amounts shall be applied to payment of each category of Obligations only after Full Payment of all preceding categories. If amounts are insufficient to satisfy a category, Obligations in the category shall be paid on a pro rata basis. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in each category. Amounts distributed with respect to any Secured Bank Product Obligations shall be calculated using the methodology reported to Agent for such Obligations (but no greater than the maximum amount reported to Agent). Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligations and may request a reasonably detailed calculation thereof from the applicable Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is equal to the amount most recently reported to the Agent. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement among them without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Obligor, and each Obligor irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section. 5.6.3. Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by any Lender, such Lender hereby agrees to return such amount to Agent). 5.7 Dominion Account. The ledger balance in the main Dominion Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day, during any


 
58 AmericasActive:19586302.10 Trigger Period (Dominion). If, as a result of such application, a credit balance exists, the balance shall not accrue interest in favor of Obligors and shall be made available to Obligors as long as no Default or Event of Default exists. 5.8 Account Stated. The Agent shall maintain in accordance with its usual and customary practices account(s) evidencing the Debt of Borrowers hereunder. Any failure of Agent to record anything in a loan account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Entries made in a loan account shall constitute presumptive evidence of the information contained therein. If any information contained in a loan account is provided to or inspected by any Person, the information shall be conclusive and binding on such Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing within 30 days after receipt or inspection that specific information is subject to dispute. 5.9 Taxes. 5.9.1. Payments Free of Taxes. All payments by Obligors of Obligations shall be free and clear of and without reduction for any Taxes. If Applicable Law requires any Borrower or Agent to withhold or deduct any Tax (including backup withholding or withholding Tax), the withholding or deduction shall be based on information provided pursuant to Section 5.10 and Agent shall pay the amount withheld or deducted to the relevant Governmental Authority. If the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by Borrowers shall be increased so that Agent, Lender or Issuing Bank, as applicable, receives an amount equal to the sum it would have received if no such withholding or deduction (including deductions applicable to additional sums payable under this Section) had been made. Without limiting the foregoing, Borrowers shall timely pay all Other Taxes to the relevant Governmental Authorities. 5.9.2. Payment. Borrowers shall indemnify, hold harmless and reimburse (within 10 days after demand therefor) Agent, Lenders and Issuing Bank for any Indemnified Taxes or Other Taxes (including those attributable to amounts payable under this Section) withheld or deducted by any Borrower or Agent, or paid by Agent, any Lender or Issuing Bank, with respect to any Obligations, Letters of Credit or Loan Documents, whether or not such Taxes were properly asserted by the relevant Governmental Authority, and including all penalties, interest and reasonable expenses relating thereto, as well as any amount that a Lender or Issuing Bank fails to pay indefeasibly to Agent under Section 5.10. A certificate as to the amount of any such payment or liability delivered to Borrower Agent by Agent, or by a Lender or Issuing Bank (with a copy to Agent), shall be conclusive, absent manifest error. As soon as practicable after any payment of Taxes by a Borrower pursuant to this Section 5.9, Borrower Agent shall deliver to Agent a receipt from the Governmental Authority or other evidence of payment satisfactory to Agent. 5.9.3. Survival. Each party’s obligations under this Section 5.9 shall survive the resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments, the expiration or cancellation of all Letters of Credit and the repayment, satisfaction or discharge of all obligations under any Loan Document. 5.10 Lender Tax Information. 5.10.1. Status of Lenders. Each Lender shall deliver documentation and information to Agent and Borrower Agent, at the times and in form required by Applicable Law or reasonably requested by Agent or Borrower Agent, sufficient to permit Agent or Borrowers to determine (a) whether or not payments made with respect to Obligations are subject to Taxes, (b) if applicable, the required rate of withholding or deduction, and (c) such Lender’s entitlement to any available exemption from, or reduction


 
59 AmericasActive:19586302.10 of, applicable Taxes for such payments or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. 5.10.2. Documentation. If a Borrower is resident for tax purposes in the United States, any Lender that is a “United States person” within the meaning of section 7701(a)(30) of the Code shall deliver to Agent and Borrower Agent, on the Closing Date or on or prior to the date such Person becomes a Lender, IRS Form W-9 or such other documentation or information prescribed by Applicable Law or reasonably requested by Agent or Borrower Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. If any Foreign Lender is entitled to any exemption from or reduction of withholding tax for payments with respect to the Obligations, it shall deliver to Agent and Borrower Agent, on or about the date on which it becomes a Lender hereunder (and from time to time thereafter upon request by Agent or Borrower Agent, but only if such Foreign Lender is legally entitled to do so), (a) IRS Form W-8BEN or IRS Form W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States is a party; (b) IRS Form W-8ECI; (c) IRS Form W-8IMY and all required supporting documentation; (d) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, IRS Form W-8BEN or IRS Form W-8BEN-E and a certificate showing such Foreign Lender is not (i) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (ii) a “10 percent shareholder” of any Borrower within the meaning of section 871(h)(3)(B) of the Code, or (iii) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code; or (e) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in withholding tax, together with such supplementary documentation necessary to allow Agent and Borrowers to determine the withholding or deduction required to be made. 5.10.3. Lender Obligations. Each Lender and Issuing Bank shall promptly notify Borrowers and Agent of any change in circumstances that would change any claimed Tax exemption or reduction. Each Lender and Issuing Bank shall indemnify, hold harmless and reimburse (within 10 days after demand therefor) Borrowers and Agent for any Taxes, losses, claims, liabilities, penalties, interest and expenses (including reasonable attorneys’ fees) incurred by or asserted against a Borrower or Agent by any Governmental Authority due to such Lender’s or Issuing Bank’s failure to deliver, or inaccuracy or deficiency in, any documentation required to be delivered by it pursuant to this Section. Each Lender and Issuing Bank authorizes Agent to set off any amounts due to Agent under this Section against any amounts payable to such Lender or Issuing Bank under any Loan Document. 5.11 Nature and Extent of Each Obligor’s Liability. 5.11.1. Joint and Several Liability. Each Obligor agrees that it is jointly and severally liable for, and absolutely obligated to Agent and other Secured Parties for, and guarantees in favor of Agent, for the prompt payment and performance of, all Obligations and all agreements of Obligors under the Loan Documents. Each Borrower agrees that its obligations hereunder shall not be discharged until Full Payment of the Obligations, and such Obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement related thereto which any Borrower is or may become a party or be bound; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for the Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any other Applicable Law; (f) any borrowing or grant of a Lien by any other Obligor, as debtor-in-possession under Section 364 of the Bankruptcy Code (or any similar provision of any other Applicable Law) or otherwise;


 
60 AmericasActive:19586302.10 (g) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code (or any similar provision of any other Applicable Law) or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of all Obligations. 5.11.2. Waivers. (a) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or nonjudicial sale or enforcement, without affecting any rights and remedies under this Section 5.11. If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Obligor or other Person, whether because of any Applicable Laws pertaining to “election of remedies” or otherwise, each Obligor consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that any Obligor might otherwise have had. Any election of remedies that results in denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any Obligor shall not impair any other Obligor’s obligation to pay the full amount of the Obligations. Each Obligor waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for the Obligations, even though that election of remedies destroys such Obligor’s rights of subrogation against any other Person. Agent may bid all or a portion of the Obligations at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Agent but shall be credited against the Obligations. The amount of the successful bid at any such sale completed in accordance with Applicable Law, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral (other than a private sale where Agent was the successful bidder, which shall be prima facie evidence of such fair market value of the Collateral), and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be (other than a private sale where Agent was the successful bidder, which shall be prima facie evidence of) the amount of the Obligations owing by the Obligors under this Section 5.11. (b) Each Obligor expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel any Secured Party to marshal assets or to proceed against any Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Obligor. Each Obligor waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of Obligations as long as it is an Obligor. It is agreed among each Obligor and Secured Party that the provisions of this Section are of the essence of the transaction contemplated by the Loan Documents and that, but for such provisions, Agent and Lenders would decline to make Loans and issue Letters of Credit. Each Obligor acknowledges that its guaranty pursuant to this Section is necessary to the conduct and promotion of its business, and can be expected to benefit such business. 5.11.3. Extent of Liability; Contribution. (a) Notwithstanding anything herein to the contrary, each Obligor’s liability under this Section shall not exceed the greater of (i) all amounts for which such Obligor is primarily liable, as described in clause (c) below, or (ii) such Obligor’s Allocable Amount. (b) If any Obligor makes a payment under this Section of any Obligations (other than amounts for which such Obligor is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Obligor, exceeds the amount that such Obligor would otherwise have paid if each Obligor had paid the aggregate Obligations satisfied by


 
61 AmericasActive:19586302.10 such Guarantor Payments in the same proportion that such Obligor’s Allocable Amount bore to the total Allocable Amounts of all Obligors, then such Obligor shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Obligor for the amount of such excess, ratably based on their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Obligor shall be the maximum amount that could then be recovered from such Obligor under this Section without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law. (c) Nothing contained in this Section 5.11 shall limit the liability of any Obligor to pay Loans made directly or indirectly to that Obligor (including Loans advanced to any other Obligor and then re-loaned or otherwise transferred to, or for the benefit of, such Obligor), LC Obligations relating to Letters of Credit issued to support such Obligor’s business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Obligor shall be primarily liable for all purposes hereunder. (d) Each Obligor that is a Qualified ECP when its guaranty of or grant of Lien as security for a Swap Obligation becomes effective hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide funds or other support to each Specified Obligor with respect to such Swap Obligation as may be needed by such Specified Obligor from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP’s obligations and undertakings under this Section voidable under any applicable fraudulent transfer or conveyance act). The obligations and undertakings of each Qualified ECP under this Section shall remain in full force and effect until Full Payment of all Obligations. Each Obligor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support or other agreement” for the benefit of, each Obligor for all purposes of the Commodity Exchange Act. 5.11.4. Joint Enterprise. Each Obligor has requested that Agent and Lenders make this credit facility available to Obligors on a combined basis, in order to finance Obligors’ business most efficiently and economically. Obligors’ business is a mutual and collective enterprise, and the successful operation of each Obligor is dependent upon the successful performance of the integrated group. Obligors believe that consolidation of their credit facility will enhance the borrowing power of each Obligor and ease administration of the facility, all to their mutual advantage. Obligors acknowledge that Agent’s and Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to Obligors and at Obligors’ request. Each Obligor shall receive substantial direct and indirect benefit from the consolidation of the credit facility of Obligors. All of the Obligors acknowledge and agree that Agent’s and Lenders’ willingness to extend credit to Obligors and to administer the Collateral on a combined basis is conditioned on the foregoing agreement of the Obligors to be jointly and severally liable therefor. 5.11.5. Subordination. Each Obligor hereby subordinates any claims, including any rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it may have at any time against any other Obligor, howsoever arising, to the Full Payment of all Obligations. SECTION 6. CONDITIONS PRECEDENT 6.1 Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Obligors hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:


 
62 AmericasActive:19586302.10 (a) Each Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and PPSA Lien searches, other customary searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. (c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent. (d) Agent shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Obligor certifying that (in such Senior Officer’s capacity as a Senior Officer and not in any individual capacity), after giving effect to the initial Loans and transactions hereunder, (i) no Default or Event of Default exists; (ii) the representations and warranties set forth in Section 9 are true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which shall be true and correct in all respects) as of the date hereof (unless such representation speaks only as of another date certain, in which case such representation or warranty shall be true and correct in all material respects as of such other date); and (iii) such Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents (including any shareholders’ agreement, if any, in respect of such Obligor) are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; (iii) that an attached copy of such Obligor’s shareholder register is true and complete; and (iv) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) Agent shall have received customary written opinions of Bodman PLC, Gardiner Roberts LLP and of any local counsel to Obligors as reasonably requested by Agent, in form and substance reasonably satisfactory to Agent. (g) Agent shall have received copies of the charter documents of each Obligor (other than any Obligor organized under the laws of Canada or any province or territory thereof), certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates (or the equivalent thereof) for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification. (h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Obligors, all in compliance with the Loan Documents and in form and substance satisfactory to Agent in its discretion. (i) Agent shall have completed its business, financial and legal due diligence of the Obligors (other than the Initial Collateral Examination) with results reasonably satisfactory to Agent. No material adverse change has occurred (i) in the financial condition of any Obligor since December 31, 2023; or (ii) in the quality, quantity or value of any Collateral since December 31, 2023.


 
63 AmericasActive:19586302.10 (j) Each Obligor shall have provided, in form and substance satisfactory to Agent and each Lender, all documentation and other information as Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act, Canadian AML Legislation and Beneficial Ownership Regulation. If any Obligor 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 Obligor. (k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date. (l) The conditions precedent to the consummation of the Closing Date Acquisition shall have been satisfied and the Closing Date Acquisition shall have been consummated, or substantially concurrently with the funding of the initial Loans on the Closing Date will be consummated, in all material respects in accordance with the Closing Date Acquisition Agreement, and Lender shall have received a fully executed copy of each of the Closing Date Acquisition Documents. (m) Obligors shall have provided satisfactory evidence that no action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s discretion (i) could reasonably be expected to result in a Material Adverse Effect; or (ii) could reasonably be expected to materially and adversely affect this Agreement or the transactions contemplated hereby. (n) Agent shall have received customary payoff letters in respect of any Debt of the Obligors that is being repaid in full as of the Closing Date, in each case in form and substance satisfactory to Agent, and substantially concurrently with the borrowing under this Agreement, the Obligors shall have repaid and terminated all outstanding Debt under the Existing Credit Agreements. (o) Agent shall have received a Borrowing Base Certificates with respect to each Obligor as delivered under the applicable Existing Credit Agreement for the month ended January 31, 2024. Agent shall be satisfied that after giving effect to (i) the initial Borrowing hereunder, (ii) consummation of the transactions contemplated hereby (including the consummation of the Closing Date Acquisition) and payment of all fees and expenses in connection therewith and (iii) any payables stretched beyond their customary payment practices, Availability shall be at least $40,000,000. (p) Agent shall have received (i) audited financial statements of Titan International and its Subsidiaries for each of the three fiscal years immediately preceding the Closing Date, (ii) unaudited interim Titan Financial Statements as of December 31, 2023, (iii) audited financial statements of the Target and its Subsidiaries for each of the three fiscal years immediately preceding the Closing Date and (iv) financial projections of Titan International and its Subsidiaries (including the Target and its Subsidiaries) for the next five (5) fiscal years. 6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Obligors, on or after the Closing Date, unless the following conditions are satisfied: (a) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant; (b) The representations and warranties of each Obligor in the Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are


 
64 AmericasActive:19586302.10 conditioned by materiality, which shall be true and correct in all respects) on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date); (c) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied. Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation shall constitute a representation by Borrowers that the foregoing conditions are satisfied on the date of such request and on the date of such funding, issuance or grant. SECTION 7. COLLATERAL 7.1 Grant of Security Interest. To secure the prompt payment and performance of all Obligations, each Obligor hereby grants to Agent, for the benefit of Secured Parties, a continuing Lien upon the following Property (other than Excluded Property) of such Obligor whether now owned or hereafter acquired, and wherever located: (a) all Accounts; (b) all Inventory; (c) all Deposit Accounts into which any proceeds of Accounts or Inventory are deposited (including all cash and other funds on deposit therein); (d) solely to the extent evidencing, governing, securing, arising out of, or otherwise related to Accounts and Inventory: (i) all Instruments, Chattel Paper, including electronic chattel paper, and other contracts; (ii) all guarantees, letters of credit, Letter-of-Credit Rights, Supporting Obligations, security and other credit enhancements; (iii) all claims and causes of action (including without limitation Commercial Tort Claims); (iv) all Documents; and (v) all General Intangibles (other than Intellectual Property); (e) all monies, whether or not in the possession or under the control of Agent, a Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral; (f) all indebtedness owed to Obligors that arises from advances from the Lenders and any notes or other Instruments evidencing the same; (g) all substitutions, replacements, accessions, products or proceeds (including without limitation, insurance proceeds) arising out of or relating to the foregoing clauses (a)-(f); and (h) all books and records arising out or relating to the foregoing clauses (a)-(g). 7.2 Lien on Deposit Accounts; Cash Collateral.


 
65 AmericasActive:19586302.10 7.2.1. Deposit Accounts. To further secure the prompt payment and performance of all Obligations, each Obligor hereby grants to Agent a continuing Lien upon all amounts credited to any Deposit Account (other than Excluded Accounts) of such Obligor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Each Obligor hereby authorizes and directs each bank or other depository to deliver to Agent, upon request during a Trigger Period (Dominion), all balances in any such Deposit Account maintained by such Obligor, without inquiry into the authority or right of Agent to make such request. 7.2.2. Cash Collateral. Cash Collateral may be invested, at Agent’s discretion (and with the consent of Obligors, as long as no Event of Default exists), but Agent shall have no duty to do so, regardless of any agreement or course of dealing with any Obligor, and shall have no responsibility for any investment or loss, unless determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of Agent. Each Obligor hereby grants to Agent, as security for the Obligations, a Lien in all Cash Collateral held from time to time and all proceeds thereof, whether held in a Cash Collateral Account or otherwise. Agent may apply Cash Collateral to the payment of Obligations as they become due, in such order as Agent may elect; provided, that during the term of this Agreement Cash Collateral received pursuant to Section 2.3.3 may only be applied to the payment of Obligations while a Default or Event of Default exists. Each Cash Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent, and no Obligor or other Person shall have any right to any Cash Collateral, until Full Payment of all Obligations. 7.3 [Reserved]. 7.4 Other Collateral. 7.4.1. Commercial Tort Claims. Obligors shall promptly notify Agent in writing if any Obligor has a Commercial Tort Claim related to any Collateral (other than, as long as no Default or Event of Default exists, such a Commercial Tort Claim for less than $10,000,000), shall promptly amend Schedule 9.1.16 to include such claim, and shall take such actions as Agent deems appropriate to subject such claim to a duly perfected, first priority Lien in favor of Agent. For the avoidance of doubt, (a) so long as no Trigger Period (Dominion) is in effect, the Obligors shall retain any proceeds received from the resolution of a Commercial Tort Claim and (b) Agent shall release any Lien granted in favor of Agent with respect to a Commercial Tort Claim upon receipt of evidence that such claim has been extinguished. 7.4.2. Certain After-Acquired Collateral. Obligors shall promptly notify Agent in writing if, after the Closing Date, any Obligor obtains any interest in any Deposit Accounts, Chattel Paper, Documents, Instruments, or Letter-of-Credit Rights, in each case, relating to the Collateral, and, upon Agent’s request, shall promptly take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral, including obtaining any appropriate possession, control agreement (other than with respect to all Excluded Accounts) or Lien Waiver. If any Collateral is in the possession of a third party, at Agent’s request, the applicable Obligor shall obtain an acknowledgment in form and substance satisfactory to Agent that such third party holds the Collateral for the benefit of Agent. 7.5 No Assumption of Liability. The Lien on Collateral granted hereunder is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of any Obligor relating to any Collateral. 7.6 Further Assurances. All Liens granted to Agent under the Loan Documents are for the benefit of Secured Parties. Promptly upon request, Obligors shall deliver such instruments and agreements, and shall take such actions, as Agent deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes


 
66 AmericasActive:19586302.10 Agent to file any financing statement covering the Collateral of such Obligor, and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral. SECTION 8. COLLATERAL ADMINISTRATION 8.1 Borrowing Base Certificates. By the 15th day of the month following the end of each calendar month, Borrowers shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the just ended calendar month or, after an Event of Default, at such other times as Agent may request; provided, that during any Trigger Period (Reporting), Borrowers shall deliver to Agent by the third (3rd) Business Day of each week following the end of the prior week a Borrowing Base Certificate prepared as of the close of business for the week just ended. All calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrower Agent and certified by a Senior Officer; provided that Agent may from time to time in its Permitted Discretion review and adjust any such calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in quality, mix and other factors affecting Collateral; and (c) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve; provided, further that, if Agent shall make any such adjustment to any such calculation Agent shall provide Borrower Agent with a statement setting forth the basis for such adjustment. Concurrently with any transaction that is outside of the Ordinary Course of Business and would cause 5% or more of the assets reflected in the then-current Borrowing Base to become ineligible, the Borrower Agent shall deliver to Agent a new Borrowing Base Certificate giving effect to such transaction. 8.2 Administration of Accounts. 8.2.1. Records and Schedules of Accounts. Each Obligor shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent, on each date that a Borrowing Base Certificate is due to be delivered pursuant to Section 8.1, sales, collection, and, if requested by Agent to the extent that there are any variances between the detailed aged trial balances and the Obligors’ Financial Statements or general ledger, reconciliation reports in form satisfactory to Agent, and a detailed aged trial balance of all Accounts as of the end of the preceding month (or more frequently at the Agent’s request during the continuation of a Trigger Period (Reporting)), containing such information and documentation consistent with Obligors’ past practices; provided, however, if a Trigger Period (Reporting) exists, such aged trial balance shall, to the extent it does not already do so, specify each Account’s Account Debtor name and address, amount, invoice date and due date, show any discount, allowance, credit, authorized return or dispute, and include such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate face amount of $10,000,000 or more cease to be Eligible Accounts, Obligors shall notify Agent of such occurrence promptly (and in any event within one Business Day) after any Obligor has knowledge thereof. 8.2.2. Taxes. If an Account of any Obligor includes a charge for any Taxes, Agent is authorized, in its discretion to the extent Obligors have not done so or are not Properly Contesting such Tax, to pay the amount thereof to the proper taxing authority for the account of such Obligor and to charge Obligors therefor; provided, however, that neither Agent nor Lenders shall be liable for any Taxes that may be due from Obligors or with respect to any Collateral. 8.2.3. Account Verification. If an Event of Default exists, Agent shall have the right at any time, in the name of Agent or any designee of Agent or any Obligor to verify the validity, amount or any other matter relating to any Accounts of Obligors by mail, telephone or otherwise. Obligors shall cooperate fully with Agent in its effort to facilitate and promptly conclude any such verification process.


 
67 AmericasActive:19586302.10 8.2.4. Maintenance of Dominion Account. Obligors shall maintain collection accounts and other cash management services (including Dominion Accounts and lockboxes) of a type and on terms reasonably acceptable to Agent. Borrowers shall obtain Deposit Account Control Agreements and lockbox agreements (which may take the form of Deposit Account Control Agreements or other agreements in form and substance satisfactory to Agent) from each Dominion Account bank and lock box servicer, establishing Agent’s control over and Lien in any Dominion Account and lockbox, which may be exercised by Agent during any Trigger Period (Dominion), requiring immediate deposit of all remittances received in such Dominion Account or lockbox to the main Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America then so long as Bank of America is a Lender hereunder, Agent may, during any Trigger Period (Dominion), require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Agent and Lenders assume no responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank. 8.2.5. Proceeds of Collateral. Each Obligor shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If any Obligor or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account. 8.3 Administration of Inventory. 8.3.1. Records and Reports of Inventory. Each Obligor shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent on each date that a Borrowing Base Certificate is due to be delivered pursuant to Section 8.1, inventory reports and, if requested by Agent to the extent that there are any variances between the inventory reports and the Obligors’ Financial Statements or general ledger, reconciliation reports in form satisfactory to Agent. Each Obligor shall conduct a physical inventory at least once per calendar year or, for any calendar year in which a Trigger Period (Field Exams & Appraisals) has occurred, two times per calendar year (and, in any event, on a more frequent basis if requested by Agent when an Event of Default exists) and periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request in its Permitted Discretion. Agent may participate in and observe each physical count (Agent’s charges, costs and expenses reimbursed to the extent permitted pursuant to Section 10.1.1(b)). 8.3.2. Returns of Inventory. No Obligor shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or would result therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds $15,000,000; and (d) any payment received by an Obligor for returned Inventory is used to purchase replacement Inventory for that Inventory returned or such payment is deposited in a Deposit Account. 8.3.3. Acquisition, Sale and Maintenance. No Obligor shall acquire or accept any Inventory on consignment or approval, and shall take all steps to assure that all Inventory is produced in accordance with Applicable Law, including the FLSA. Obligors shall use, store and maintain all Inventory, in accordance with applicable standards of any insurance and in conformity with all Applicable Law, and shall make current rent payments (within applicable grace periods provided for in leases) at all locations leased where any Collateral is located. 8.4 [Reserved].


 
68 AmericasActive:19586302.10 8.5 Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts (including Dominion Accounts) maintained by Obligors. Each Obligor shall take all actions (including maintaining Deposit Account Control Agreements) necessary to Agent’s first priority Lien on each Deposit Account (including Dominion Accounts, but excluding Excluded Accounts) into which proceeds of Accounts or Inventory are deposited. An Obligor shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Agent) to have control over a Deposit Account or any Property deposited therein. Each Obligor shall promptly notify Agent of any opening or closing of a Deposit Account (other than any Excluded Accounts) and will amend Schedule 8.5 to reflect same. 8.6 General Provisions. 8.6.1. Location of Collateral. All tangible items of Collateral, other than Inventory in transit, shall at all times be kept by Obligors at the business locations set forth in Schedule 8.6.1, except that Obligors may (a) make sales or other dispositions of Collateral in accordance with Section 10.2.6; and (b) move Collateral from one location in the United States to another location in the United States or from one location in Canada to another location in Canada, upon at least 10 Business Days prior written notice to Agent. 8.6.2. Insurance of Collateral. (a) Each Obligor shall maintain insurance with respect to the Collateral, covering casualty, hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and with insurers (with a Best’s Financial Strength Rating of at least A-VII, unless otherwise approved by Agent) satisfactory to Agent. All proceeds under each policy related to Collateral shall be payable to Borrower Agent, subject to clause (b) below and Section 5.3(c). From time to time upon request, Obligors shall deliver to Agent the originals or certified copies of its insurance policies. Each policy shall include satisfactory endorsements (i) showing Agent as Lenders’ loss payee; (ii) requiring 30 days (or 10 days with respect to non-payment of premium) prior written notice to Agent in the event of cancellation of the policy for any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by any act or neglect of any Obligor or the owner of the Property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy. If any Obligor fails to provide and pay for any insurance, Agent may, at its option, but shall not be required to, procure the insurance and charge Obligors therefor. While no Event of Default exists, Obligors may settle, adjust or compromise any insurance claim, and, subject to clause (b) below and Section 5.3(c), the proceeds will be delivered to Borrower Agent. If an Event of Default exists, only Agent shall be authorized to settle, adjust and compromise such claims. (b) After and for so long as a Trigger Period (Dominion) exists, any proceeds of insurance (other than proceeds from workers’ compensation or D&O insurance) arising from or related to any Collateral shall be paid to Agent. Any such proceeds shall be applied to payment of the Revolver Loans, and then to any other Obligations outstanding. 8.6.3. Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Obligors. Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Obligors’ sole risk.


 
69 AmericasActive:19586302.10 8.6.4. Defense of Title. Each Obligor shall defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands, except Permitted Liens. 8.7 Power of Attorney. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Obligor’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without notice and in either its or an Obligor’s name, but at the cost and expense of Obligors: (a) during a Trigger Period (Dominion), endorse an Obligor’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; (b) during an Event of Default, (i) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv) collect, liquidate and receive balances in Deposit Accounts or investment accounts consisting of Collateral, and take control, in any manner, of proceeds of Collateral; (v) prepare, file and sign an Obligor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail addressed to an Obligor (which Agent shall use commercially reasonable efforts to limit to mail relating to the Collateral), and notify postal authorities to deliver any such mail to an address designated by Agent; (vii) endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral; (viii) use an Obligor’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix) use information contained in any data processing, electronic or information systems relating to Collateral; (x) make and adjust claims under insurance policies related to Collateral; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which an Obligor is a beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill any Obligor’s obligations under the Loan Documents. SECTION 9. REPRESENTATIONS AND WARRANTIES 9.1 General Representations and Warranties. To induce Agent and Lenders to enter into this Agreement and to make available the Commitments, Loans and Letters of Credit, each Obligor represents and warrants that: 9.1.1. Organization and Qualification. Each Obligor and its Domestic Subsidiaries are duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Obligor and its Domestic Subsidiaries are duly qualified, authorized to do business and in good standing as a foreign corporation or limited liability company in each jurisdiction where failure to be so qualified could reasonably be expected to have a Material Adverse Effect. No Obligor is an Affected Financial Institution. The information included in each Beneficial Ownership Certification delivered hereunder is true and correct in all material respects as of the date thereof. 9.1.2. Power and Authority. Each Obligor is duly authorized to execute, deliver and perform its Loan Documents. The execution, delivery and performance of the Loan Documents (including through electronic means) have been duly authorized by all necessary action, and do not (a) require any consent or approval of any holders of Equity Interests of any Obligor, except those already obtained; (b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under any Applicable


 
70 AmericasActive:19586302.10 Law or Material Contract; or (d) result in or require the imposition of any Lien (other than Permitted Liens) on any Obligor’s Property. 9.1.3. Enforceability. Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is considered in a proceeding in law or equity). 9.1.4. Capital Structure. Schedule 9.1.4(a) shows, for each Obligor and, as of the Closing Date, each Obligor’s Domestic Subsidiaries, if any, its name, jurisdiction of organization, the holders of its Equity Interests (except for in the case of Titan International), and, in the case of Titan International, its authorized and issued Equity Interests. Except as disclosed on Schedule 9.1.4, in the five years preceding the Closing Date, no Obligor or Domestic Subsidiary has acquired any substantial assets from any other Person nor been the surviving (or continuing) entity in a merger, amalgamation or combination. Each Obligor has good title to its Equity Interests in its Domestic Subsidiaries, and all such Equity Interests are duly issued, fully paid and non-assessable. Except as provided in or as a result of Obligors’ Stock Option Plans set forth on Schedule 9.1.4(b), there are no outstanding purchase options, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to Equity Interests of any Obligor or its Domestic Subsidiaries. 9.1.5. Title to Properties; Priority of Liens. Each Obligor has (i) (a) good and marketable title to (or valid leasehold interests in) all of its Real Estate and (b) good title to all of its Property (other than Collateral), except, in each case, where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (ii) good title to all of its Collateral, including all Collateral reflected in any financial statements delivered to Agent or Lenders, in each case, i.e., (i) – (ii), free of Liens except Permitted Liens. Each Obligor has paid and discharged all lawful claims that, if unpaid, could become a Lien on its Collateral, other than Permitted Liens except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. 9.1.6. Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Obligors with respect thereto. Each Obligor warrants, with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that: (a) it is genuine and in all respects what it purports to be, and is not evidenced by a judgment; (b) it arises out of a completed, bona fide sale and delivery of goods or rendition of services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto; (c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition of services, a copy of which is available to Agent on request; (d) it is not subject to any known offset, Lien (other than Agent’s Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect;


 
71 AmericasActive:19586302.10 (e) no purchase order, agreement, document or Applicable Law restricts assignment of the Account to Agent (regardless of whether, under the UCC or PPSA, the restriction is ineffective), and the applicable Obligor is the sole payee or remittance party shown on the invoice; (f) no extension, compromise, settlement, modification, credit, deduction or return has been authorized with respect to the Account, except discounts or allowances granted in the Ordinary Course of Business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to Agent hereunder; and (g) to the best of Obligors’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Obligor’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions threatened, in writing, or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Account Debtor’s financial condition. 9.1.7. Financial Statements; Solvency. The (a) consolidated balance sheets, and related statements of income, cash flow and shareholder’s equity, of Titan International and its Subsidiaries (“Titan’s Financial Statements”) and (b) the consolidated balance sheet and related statements of income and cash flow of Titan International and the other Obligors (the “Obligors’ Financial Statements”) that have been and are hereafter delivered to Agent, are prepared in accordance with GAAP, and fairly present, in all material respects, the financial positions and results of operations of Titan and its Subsidiaries or the Obligors, as the case may be, at the dates and for the periods indicated, subject, in the case of the unaudited statements, to the absence of footnotes and to normal year-end adjustments. All projections delivered from time to time to Agent have been prepared based upon good faith estimates and assumptions believed by management of Titan and its Subsidiaries to be reasonable in light of the circumstances at such time, it being recognized and acknowledged by the Lenders that such projections and financial information are subject to a number of risks and uncertainties which are beyond Borrowers’ control and that there is no assurance that such projections will, in fact, transpire, and that such projections and financial information as it relates to future events are not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ materially from the projected results set forth therein. No financial statement delivered to Agent at any time contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading. Since December 31, 2023, there has been no change in the condition, financial or otherwise, of the Obligors that could reasonably be expected to have a Material Adverse Effect. (a) Titan and its Subsidiaries are Solvent on a consolidated basis, (b) the Obligors are Solvent on a consolidated basis and (c) no Obligor that is organized under the laws of Canada or any province or territory thereof is an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada). 9.1.8. Surety Obligations. No Obligor or its Domestic Subsidiaries is obligated as surety or indemnitor under any bond or other contract that assures payment or performance of any obligation of any Person, except as permitted hereunder. 9.1.9. Taxes. Each Obligor and its Subsidiaries have timely filed all federal, state, provincial and local tax returns and other reports that it is required by law to file, and has timely paid, or made provision for the payment of, all Taxes upon it, its income and its Properties that are due and payable, except to the extent being Properly Contested or except as would not reasonably be expected to have a Material Adverse Effect.


 
72 AmericasActive:19586302.10 9.1.10. Brokers. There are no brokerage commissions, finder’s fees or investment banking fees payable in connection with any transactions contemplated by the Loan Documents. 9.1.11. [Reserved]. 9.1.12. Governmental Approvals. Each Obligor and its Domestic Subsidiaries has, are in compliance with, and are in good standing with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Obligors and their Domestic Subsidiaries have complied with all Applicable Laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. 9.1.13. Compliance with Laws. Each Obligor and its Subsidiaries have duly complied, and their Properties and business operations are in compliance, in all material respects with all Applicable Law, including Environmental Laws, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. Except which could reasonably be expected to have a Material Adverse Effect, (i) there have been no citations, notices or orders of material noncompliance issued to any Obligor or its Subsidiaries under any Applicable Law; (ii) no Inventory has been produced in violation of the FLSA or other Applicable Law; (iii) no Obligor or its Subsidiaries has received any Environmental Notice; and (iv) no Obligor or its Domestic Subsidiaries has any known contingent liability with respect to any Environmental Release, environmental pollution or hazardous material on any Real Estate now or previously owned, leased or operated by it. 9.1.14. [Reserved]. 9.1.15. Burdensome Contracts. No Obligor or its Domestic Subsidiaries is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.15, as such schedule may be updated from time to time to add Restrictive Agreements entered into by an Obligor or such Subsidiary after the Closing Date; provided, that any such Restrictive Agreement shall be otherwise permitted to be entered into pursuant to the terms hereunder. No such Restrictive Agreement prohibits the execution, delivery or performance of any Loan Document by an Obligor. 9.1.16. Litigation. Except as shown on Schedule 9.1.16, there are no proceedings or investigations pending or, to any Obligor’s knowledge, non-frivolous proceedings or investigations threatened, in writing, against any Obligor or its Subsidiaries, or any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined adversely to any Obligor or its Subsidiaries. No Obligor or its Subsidiaries is in default with respect to any order, injunction or judgment of any Governmental Authority that would reasonably be expected to have a Material Adverse Effect. 9.1.17. No Defaults. No event or circumstance has occurred or exists that constitutes a Default or Event of Default. Except as would not be reasonably expected to have a Material Adverse Effect, no Obligor is in default, and no event or circumstance has occurred or exists that with the passage of time or giving of notice would constitute a default, under any Material Contract. 9.1.18. ERISA. Except as disclosed on Schedule 9.1.18: (a) Each Benefit Plan sponsored, maintained or contributed to by an Obligor or any of its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA, the


 
73 AmericasActive:19586302.10 Code, and other federal and state laws. Each Benefit Plan but excluding any Multiemployer Plan, sponsored, maintained, or contributed to by an Obligor or any of its ERISA Affiliates that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or is entitled to rely on a favorable determination letter issued to a preapproved plan sponsor and, to the knowledge of Obligors, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Obligor and ERISA Affiliate has met all applicable requirements under the Code, ERISA and the Pension Protection Act of 2006, and no application for a waiver of the minimum funding standards or an extension of any amortization period has been made with respect to any Pension Plan. (b) There are no pending or, to the knowledge of Obligors, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Benefit Plan maintained, sponsored, or contributed to by an Obligor or any of its ERISA Affiliates that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Benefit Plan maintained, sponsored or contributed to by an Obligor or any of its ERISA Affiliates that has resulted in or could reasonably be expected to have a Material Adverse Effect. No Obligor or any of its ERISA Affiliates is or will be using “plan assets” (within the meaning of 29 C.F.R. §2510.3-101, as modified by ERISA Section 3(42) or otherwise) of one or more Benefit Plans with respect to its entrance into, participation in, administration of and performance of the Loans, Letters of Credit, Commitments or Loan Documents. (c) No ERISA Event has occurred or is reasonably expected. As of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and no Obligor or ERISA Affiliate knows of any reason that such percentage could reasonably be expected to drop below 60%. No Obligor or ERISA Affiliate has incurred any liability to the PBGC except for the payment of premiums, and no premium payments are due and unpaid. No Obligor or ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. No Pension Plan has been terminated by its plan administrator or the PBGC, and no fact or circumstance exists that could reasonably be expected to cause the PBGC to institute proceedings to terminate a Pension Plan. (d) With respect to any Foreign Plan (including any Canadian Pension Plan), (i) all employer and employee contributions required by law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) it has been registered as required and has been maintained in good standing with applicable regulatory authorities. No Obligor sponsors, maintains, contributes to, or has any liability under, a Canadian Defined Benefit Pension Plan. No Canadian Pension Event has occurred or is reasonably expected to occur. 9.1.19. [Reserved]. 9.1.20. [Reserved]. 9.1.21. [Reserved]. 9.1.22. Not a Regulated Entity. No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of


 
74 AmericasActive:19586302.10 the Investment Company Act of 1940, as amended; or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code. 9.1.23. Margin Stock. No Obligor or its Domestic Subsidiaries is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds or Letters of Credit will be used by Obligors to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors. 9.1.24. Sanctions. No Obligor, Subsidiary, nor, to the knowledge of any Obligor and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals or entities that are (a) currently the subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions authority or (c) located, organized or resident in a Designated Jurisdiction. The Obligors and their Subsidiaries have conducted their businesses in compliance in all material respects with all applicable Sanctions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such Sanctions. 9.1.25. Anti-Corruption Laws; Anti-Terrorism Laws. Each Obligor and Subsidiary has conducted its business in compliance with all applicable Anti-Corruption Laws and Anti-Terrorism Laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 9.1.26. Accuracy of Borrowing Base. The information set forth in each Borrowing Base Certificate is true and correct in all material respects as of the date such Borrowing Base Certificate is submitted to Agent. The Accounts that are identified as Eligible Accounts and the Inventory that is identified as Eligible Inventory, in each Borrowing Base Certificate submitted to Agent, at the time of submission, comply in all material respects with the criteria set forth in the definitions thereof. 9.2 Complete Disclosure. No Loan Document contains any untrue statement of a material fact relating to an Obligor, nor fails to disclose any material fact relating to an Obligor necessary to make the statements contained therein not materially misleading. There is no fact or circumstance that any Obligor has failed to disclose to Agent in writing that could reasonably be expected to have a Material Adverse Effect. SECTION 10. COVENANTS AND CONTINUING AGREEMENTS 10.1 Affirmative Covenants. As long Full Payment of the Obligations has not occurred, each Obligor shall: 10.1.1. Inspections; Appraisals. (a) Permit Agent from time to time, subject (except when a Default or Event of Default exists) to reasonable notice and during normal business hours, to visit and inspect the Collateral of any Obligor or its Domestic Subsidiaries, inspect, audit and make extracts from any Obligor’s or such Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants, and, after and for as long as an Event of Default continues, Obligors authorize such independent accountants to discuss such financial matters with the Agent or any authorized representative thereof, such Obligor’s or such Subsidiary’s business, financial condition, assets, prospects and results of operations. Lenders may participate in any such visit or inspection, at their own expense. Neither Agent


 
75 AmericasActive:19586302.10 nor any Lender shall have any duty to any Obligor to make any inspection, nor to share any results of any inspection, appraisal or report with any Obligor. Obligors acknowledge that all inspections, appraisals and reports are prepared by Agent and Lenders for their purposes, and Obligors shall not be entitled to rely upon them. (b) Reimburse Agent for all charges, costs and expenses of Agent in connection with (i) examinations of any Obligor’s books and records or any other financial or Collateral matters as Agent reasonably deems appropriate and (ii) appraisals of Inventory, in each case, up to one time per calendar year or, for any calendar year in which a Trigger Period (Field Exams & Appraisals) has occurred, two times per calendar year; provided, however, that if an examination or appraisal is initiated during a Default or Event of Default, all charges, costs and expenses therefor shall be reimbursed by Obligors without regard to such limits. Obligors agree to pay Agent’s then standard charges for examination activities, including the standard charges of Agent’s internal examination and appraisal groups, as well as the charges of any third party used for such purposes. Subject to the last paragraph of the definition of Borrowing Base, no Borrowing Base calculation shall include Collateral acquired in a Permitted Acquisition or otherwise outside the Ordinary Course of Business until completion of applicable field examinations and appraisals reasonably satisfactory to Agent. 10.1.2. Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent, except with respect to such information that is available to the public by disclosures required by the SEC: (a) as soon as available, and in any event within 90 days after the close of each Fiscal Year: (i) Titan’s Financial Statements prepared, on a consolidated basis, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrower Agent and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent and (ii) Obligors’ Financial Statements for the Fiscal Year ended which shall not be audited, shall be prepared on a consolidating basis, and shall contain a reconciliation to the audited Titan’s Financial Statements. For the avoidance of doubt, annual audited Financial Statements shall only be provided for Titan International and its Subsidiaries and no audited financial statements shall be provided for the Obligors, but rather, as to the latter only unaudited financial statements prepared on a consolidating basis with a reconciliation to the audited Titan’s Financial Statements; (b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter, Titan’s Financial Statements and Obligors’ Financial Statements unaudited, in each case, as of the end of such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the former and a consolidating basis for the latter (with an appropriate reconciliation to the unaudited Titan’s Financial Statements) and certified, in each instance, by a Senior Officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes; (c) during any Trigger Period (Monthly Financial Reporting), as soon as available, and in any event no later than the 15th day (or, if such date is not a Business Day, the next succeeding Business Day) of the calendar month that begins at least 30 days after the commencement of the Trigger Period (Monthly Financial Reporting) and continuing on the 15th day (or, if such date is not a Business Day, the next succeeding Business Day) of each succeeding calendar month until the Trigger Period (Monthly Financial Reporting) terminates, Titan’s Financial Statements and Obligors’ Financial Statements unaudited, in each case, as of the end of such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the former and a consolidating basis for the latter (with an appropriate reconciliation


 
76 AmericasActive:19586302.10 to the unaudited Titan’s Financial Statements) and certified, in each instance, by a Senior Officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes; (d) a Compliance Certificate executed by the chief financial officer of Titan International which certifies compliance with Section 10.3 and provides a reasonably detailed calculation of the Consolidated Fixed Charge Coverage Ratio delivered (i) concurrently with delivery of financial statements under Sections 10.1.2(a) for Fiscal Years and 10.1.2(b) for Fiscal Quarters, whether or not a Trigger Period (FCCR) then exists and (ii) on the first day of any Trigger Period (FCCR) (certifying compliance as of the last day of the Measurement Period most recently ended prior to the start of such Trigger Period (FCCR)); (e) promptly following receipt, copies of any material notices (including any notices of default or acceleration) received from any holder or trustee of, under or with respect to the 2028 Notes, Material Debt or any other Material Contract of an Obligor; (f) if not otherwise prohibited by Applicable Law, concurrently with delivery of Titan’s Financial Statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their independent certified public accountants in connection with such Titan’s Financial Statements; (g) not later than 45 days after the commencement of each Fiscal Year, projections of Titan’s Financial Statements, Obligors’ Financial Statements and Availability for such Fiscal Year prepared in a manner consistent with past practices; (h) at Agent’s request, a listing of each Obligor’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent; (i) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Person; (j) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Obligor’s or any Domestic Subsidiary’s thereof, financial condition or business, including, without limitation, copies of any annual report to be filed in connection with each Plan; and (k) information and documentation reasonably requested by Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable Anti-Terrorism Laws. 10.1.3. Notices. Notify Agent in writing, promptly after an Obligor’s obtaining knowledge thereof, of any of the following that affects an Obligor: (a) the commencement or written threat of any proceeding or investigation, whether or not covered by insurance, if an adverse determination could have a Material Adverse Effect; (b) [reserved]; (c) any default under or termination of a Material Contract; (d) the existence of any Default or Event of Default; (e) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Sanction or Environmental Laws), if an adverse resolution could


 
77 AmericasActive:19586302.10 have a Material Adverse Effect or an Obligor using “plan assets” (within the meaning of 29 C.F.R. §2510.3- 101, as modified by ERISA Section 3(42) or otherwise) of one or more Benefit Plans with respect to its entrance into, participation in, administration of and performance of the Loans, Letters of Credit, Commitments or Loan Documents; (f) receipt of any material Environmental Notice; (g) the occurrence of any ERISA Event that could reasonably be expected to have a Material Adverse Effect; or (h) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein. 10.1.4. Landlord and Storage Agreements. Upon request, provide Agent with copies of all existing agreements, and promptly after execution thereof, provide Agent with copies of all future written agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that, individually or collectively, owns any premises at which any Collateral in excess of $10,000,000 in the aggregate may be kept or that otherwise may possess or handle any Collateral. 10.1.5. Compliance with Laws. And shall cause each of its Subsidiaries, to (a) comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, Anti-Corruption Laws and laws regarding collection and payment of Taxes, (b) maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect, (c) conduct its businesses in compliance in all material respects with applicable Anti-Corruption Laws in other jurisdictions and with all applicable Sanctions and (d) maintain policies and procedures designed to promote compliance with applicable Anti-Corruption Laws, Sanctions and Anti-Terrorism Laws. 10.1.6. Taxes. And shall cause each of its Subsidiaries, to pay and discharge all Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested, except to the extent that the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 10.1.7. Insurance. In addition to the insurance required hereunder with respect to Collateral, maintain insurance with financially sound and reputable insurance companies, (a) with respect to the Properties and business of Obligors and Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts and with such coverages and deductibles (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Obligors and their Subsidiaries) as are customary for companies similarly situated; and (b) business interruption insurance in an amount reasonably satisfactory to the Agent, in each case with deductibles, endorsements and assignments as are customary for companies similarly situated. In addition to the foregoing, the Obligors shall maintain the Closing Date R&W Insurance, as in effect on the Closing Date and shall not permit any amendments to any such R&W Insurance except for immaterial changes that do not adversely affect the rights of Agent or the Lenders. 10.1.8. Licenses. Keep each License affecting any Collateral (including the manufacture, distribution or disposition of Inventory) of Obligors in full force and effect; promptly notify Agent of any proposed material modification to any such License, or entry into any new License, in each case no more than 30 days after its effective date; and pay all Royalties when due, except if the failure to do so could not reasonably be expected to have a Material Adverse Effect; and notify Agent of any material default or breach asserted by any Person to have occurred under any License. 10.1.9. Future Subsidiaries. Promptly notify Agent upon any Person becoming a Domestic Subsidiary (pursuant to a Permitted Acquisition, a Division or otherwise) and, at the election of Borrower


 
78 AmericasActive:19586302.10 Agent, cause such Subsidiary to be joined as either a Borrower or Guarantor hereto by executing and delivering such documents, instruments and agreements (including without limitation a joinder to this Agreement and, to the extent applicable, any Security Documents and any amendments to this Agreement) and to take such other actions as Agent shall reasonably require to evidence and perfect a Lien in favor of Agent on all Collateral of such Person, including delivery of such legal opinions, in form and substance reasonably satisfactory to Agent, as it shall deem appropriate (it being understood and agreed that if the Borrower Agent desire to add the Property of any Subsidiary to the Borrowing Base hereunder, then such Subsidiary shall first be joined to this Agreement pursuant to the terms hereto) and deliver to Agent all documentation and other information regarding such newly formed or acquired Subsidiary for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable Anti-Terrorism Laws; provided that, if any Subsidiary of an Obligor that is not an Obligor (x) becomes a guarantor of any Material Debt of an Obligor or (y) grants Liens on Property to support any Material Debt of an Obligor then such Subsidiary shall become either a Borrower or Guarantor in accordance with this Section 10.1.9. 10.1.10. Post-Closing Obligations. Execute and deliver the documents and complete the tasks, as the case may be, set forth on Schedule 10.1.10, in each case within the time limits specified on such schedule (or such later times as determined by Agent in its sole discretion). 10.1.11. Canadian Pension Plans. (a) For each existing, or hereafter adopted, Canadian Pension Plan, each Obligor will, in a timely fashion comply with and perform in all material respects all of its obligations under and in respect of such Canadian Pension Plan and any joined Canadian MEPP, including, if applicable, under any funding agreements and all Applicable Laws (including any fiduciary, funding, investment and administration obligations), unless any failure to so comply or perform would not reasonably be expected to have a Material Adverse Effect. (b) All employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Canadian Pension Plan and Canadian MEPP shall be remitted or paid by each Obligor in a timely fashion in accordance with the terms thereof, any funding agreements and all Applicable Laws, unless any failure to so would not reasonably be expected to have a Material Adverse Effect. 10.2 Negative Covenants. As long Full Payment of the Obligations has not occurred, no Obligor shall: 10.2.1. Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except: (a) the Obligations; (b) Subordinated Debt; (c) Purchase Money Debt of Obligors so long as the aggregate amount outstanding at any time does not exceed $50,000,000; (d) Debt outstanding on the Closing Date (other than the Obligations, Subordinated Debt and Purchase Money Debt) set forth on Schedule 10.2.1, to the extent not satisfied with proceeds of the initial Loans; (e) Debt with respect to Bank Products incurred in the Ordinary Course of Business;


 
79 AmericasActive:19586302.10 (f) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by an Obligor, as long as such Debt was not incurred in contemplation of such Person becoming a Subsidiary or such acquisition; (g) Debt: (i) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (ii) relating to Swaps entered into in the Ordinary Course of Business and not for speculative purposes; (iii) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers compensation claims; (iv) arising from unpaid insurance premiums (not in excess of one year’s premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums; (v) arising from guarantees of the obligations of suppliers, customers, franchisees and licensees of the Borrowers and their Subsidiaries and take-or-pay obligations contained in supply arrangements, and warranties of products or services; and (vi) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of Equipment permitted hereunder; (h) intercompany Debt permitted under Section 10.2.5(a); (i) Debt arising as a direct result of judgments, orders, awards or decrees against the Borrowers or any of their Subsidiaries, in each case not constituting an Event of Default (j) Refinancing Debt as long as each Refinancing Condition is satisfied; (k) the 2028 Notes; (l) Employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under Applicable Law and only up to the limits allowable under Applicable Law; (m) Debt in respect of Taxes, assessments, governmental charges or levies and claims for labor, materials, and supplies to the extent payment thereof shall not at the time be required by Section 10.1.5; (n) Debt in an aggregate amount not to exceed $75,000,000; provided that such Debt (i) is either (A) unsecured or (B) solely secured by a Lien on Property not constituting Collateral and (ii) has a maturity date no sooner than the date that is 91 days after the Revolver Termination Date; (o) Contingent Obligations not to exceed $50,000,000 in the aggregate at any time; and


 
80 AmericasActive:19586302.10 (p) additional Debt in an aggregate amount not to exceed $35,000,000. 10.2.2. Permitted Liens. Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”): (a) Liens in favor of Agent; (b) Purchase Money Liens securing Purchase Money Debt permitted under Section 10.2.1(c); (c) Liens for Taxes not yet due or being Properly Contested; (d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Obligor or its Domestic Subsidiaries; (e) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts, licenses, statutory obligations and other similar obligations (including (i) workers’ compensation, unemployment insurance and other social security legislation and (ii) reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrowers or any of their Subsidiaries); (f) Liens arising in the Ordinary Course of Business that are subject to Lien Waivers; (g) Liens securing judgments for the payment of money not constituting an Event of Default; (h) easements, rights-of-way, restrictions, covenants or other agreements of record, and other similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business; (i) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection; (j) existing Liens shown on Schedule 10.2.2; (k) the replacement, extension or renewal of any Lien permitted by clause (j), above upon or in the same property subject thereto arising out of the extension, renewal or replacement of the Debt secured thereby (without increase in the principal amount thereof); (l) Liens on Property not constituting Collateral that secured Debt permitted under Section 10.2.1(n); (m) Liens existing on Property (other than Accounts and Inventory) at the time of its acquisition by an Obligor pursuant to a Permitted Acquisition, so long as such Liens are not created in contemplation of such Acquisition; (n) Liens arising from precautionary UCC financing statements or similar filings;


 
81 AmericasActive:19586302.10 (o) Liens arising as a result of any Permitted Supply Chain Transaction; provided that such Liens encumber solely the Accounts and the Related Assets sold in connection with such Permitted Supply Chain Transaction; (p) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course of Business that are not overdue for a period of more than 30 days or that are being Properly Contested; (q) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the Ordinary Course of Business; and (r) Liens on Property (other than Collateral) securing Debt and other obligations in an aggregate amount not exceeding $10,000,000 at any time outstanding. 10.2.3. [Reserved]. 10.2.4. Distributions. Declare or make any Distributions or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make Distributions, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15, except: (a) any Subsidiary of the Obligors may pay Distributions or return capital or make dividends and other similar payments with regard to its Equity Interests to the Obligors; (b) the Obligors and each of their Subsidiaries may declare and make Distributions or dividend payments solely in the common Equity Interests of such Person so long as in the case of such Distributions by a Subsidiary, parent or a Subsidiary receives at least its pro rata share of such dividend or distribution; (c) repurchases of Equity Interests deemed to occur upon exercise of stock options, warrants or similar equity incentive awards and cash payments made under management incentive plans; provided that the aggregate amount of such Distributions shall not exceed $5,000,000 in any Fiscal Year; (d) the Obligors and their Subsidiaries may pay withholding or similar taxes payable by the Obligors and their Subsidiaries with respect to any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Equity Interests or the exercise of stock options; provided that the aggregate amount of such Distributions shall not exceed $5,000,000 in any Fiscal Year; (e) additional Distributions in an amount not to exceed $25,000,000 in any Fiscal Year; provided that no Default or Event of Default exists or would result therefrom; and (f) additional Distributions may be made so long as the Payment Conditions are satisfied. 10.2.5. Investments. Make any Investment, except: (a) (i) Investments in Subsidiaries to the extent existing on the Closing Date, (ii) Investments by any Obligor in another Obligor, (iii) additional Investments by Subsidiaries of the


 
82 AmericasActive:19586302.10 Borrowers that are not Obligors in other Subsidiaries that are not Obligors and (iv) additional Investments by the Obligors in Subsidiaries that are not Obligors; provided that (A) the aggregate amount of such investments shall not exceed $35,000,000 at any time and (B) no Default or Event of Default exists or would result therefrom; provided further that, (I) upon Agent’s request, any such intercompany loan or advance referred to in clause (iv) above in excess of $10,000,000 shall be evidenced by a promissory note executed by the appropriate debtor and, to the extent included in the Collateral, delivered to Agent, with appropriate assignment provisions, (II) with respect to such promissory notes evidencing loans and advances referred to in clause (iv), such promissory notes shall be subordinated and junior in right and payment to the Full Payment of the Obligations and (III) for the avoidance of doubt, clause (iv) above shall not limit non-cash availability neutral ledger entries by the Obligors; (b) cash and Cash Equivalents; (c) Permitted Acquisitions; (d) advances to an officer or employee for salary, travel expenses, relocation/moving costs, commissions and similar items in the Ordinary Course of Business; (e) to the extent constituting an Investment, prepaid expenses and extensions of trade credit made in the Ordinary Course of Business; (f) deposits with financial institutions permitted hereunder; (g) additional Investments (other than Acquisitions) in an amount not to exceed $35,000,000 in any Fiscal Year; provided that no Default or Event of Default exists or would result therefrom; and (h) additional Investments (other than Acquisitions) so long as the Payment Conditions are satisfied. 10.2.6. Disposition of Assets. Make any Asset Disposition, except (collectively, “Permitted Asset Dispositions”): (a) a sale of Inventory in the Ordinary Course of Business; (b) a disposition of Equipment or Real Estate; (c) a disposition of (i) Inventory that is obsolete, unmerchantable or otherwise unsalable and (ii) other property that is obsolete or worn out, in each case, in the Ordinary Course of Business; (d) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from an Obligor’s default.; (e) Asset Dispositions of Accounts purchase by a Supply Chain Provider pursuant to any Permitted Supply Chain Transaction and the Related Assets; (f) a transfer of Property by an Obligor or any of its Subsidiaries to an Obligor; provided that, if Collateral is transferred, then such transfer shall only be permitted if Agent maintains a first priority perfected security interest in the Collateral transferred;


 
83 AmericasActive:19586302.10 (g) Dispositions permitted by Section 10.2.4 and Section 10.2.5; (h) leases, licenses, subleases or sublicenses (including the provision of open source software under an open source license) granted in the Ordinary Course of Business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrowers and their Subsidiaries; (i) Dispositions of intellectual property rights that are no longer used or useful in the business of the Borrowers and their Subsidiaries; (j) the discount, write-off or Disposition of accounts receivable overdue by more than 120 days or the sale of any such accounts receivable for the purpose of collection to any collection agency, in each case in the Ordinary Course of Business; (k) Dispositions (other than in respect of Accounts and Inventory) not to exceed $35,000,000 in any Fiscal Year; provided that no Default or Event of Default exists or would result therefrom; and (l) additional Asset Disposition so long as the Payment Conditions are satisfied. 10.2.7. [Reserved]. 10.2.8. Restrictions on Payment of Certain Debt. (a) Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) optionally prepay, redeem, retire, defease or acquire Material Debt, except: (i) payments with Refinancing Debt so long as the Refinancing Conditions are satisfied; and (ii) payments so long as the Payment Conditions are satisfied. 10.2.9. Fundamental Changes. (a) Change its name (or adopt a new version of its name in another language) or, in the case of any Obligor organized under the laws of Canada or any province or territory thereof, change the location of its registered office or its chief executive office, in each case, without providing Agent written notice thereof within ten (10) Business Days before such change (or such shorter time that Agent may agree); (b) change its tax, charter or other organizational identification number; (c) change its form or jurisdiction of organization; (d) liquidate, wind up its affairs, consummate a Division, or dissolve itself; or (e) merge, amalgamate, combine or consolidate with any Person, whether in a single transaction or in a series of related transactions, except for (i) mergers, amalgamations or consolidations of a wholly-owned Subsidiary (other than an Obligor) with another wholly-owned Subsidiary or into an Obligor; or (ii) Permitted Acquisitions; provided, that, in each case, if such merger, amalgamation or consolidation involves a Borrower, the Borrower shall be the surviving entity. 10.2.10. [Reserved].


 
84 AmericasActive:19586302.10 10.2.11. Organic Documents. Amend, modify or otherwise change any of its Organic Documents, except in connection with a transaction permitted under Section 10.2.9 or in a manner which could not reasonably be expected to adversely affect the interests of the Lenders (as determined by Lenders in their Permitted Discretion). 10.2.12. Tax Consolidation. File or consent to the filing of any consolidated income tax return with any Person other than Titan International and its Domestic Subsidiaries. 10.2.13. Accounting Changes. Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.2; or change its Fiscal Year. 10.2.14. Restrictive Agreements. Become a party to any Restrictive Agreement, except a Restrictive Agreement (a) in effect on the Closing Date; (b) relating to secured Debt permitted hereunder, as long as the restrictions apply only to collateral for such Debt; or (c) constituting customary restrictions on assignment in leases and other contracts. 10.2.15. Swaps. Enter into any Swaps, except to hedge risks arising in the Ordinary Course of Business and not for speculative purposes. 10.2.16. Conduct of Business; Issuance of Equity. (a) Engage in any business, other than its business as conducted on the Closing Date and any activities incidental thereto or (b) issue any Equity Interests other than (i) any issuance of shares of Titan International’s Common Stock pursuant to (X) a stock split approved by Titan International’s Board or (Y) any employee or director option program, benefit plan or compensation program; (ii) any issuance by a Subsidiary to Titan International or another Subsidiary in accordance with Section 10.2.4; (iii) any issuance of shares of Titan International’s Common Stock in connection with an Acquisition permitted hereunder, and (iv) any issuance of shares of Titan International’s Common Stock to make a Distribution otherwise permitted to be made under Section 10.2.4(a) and 10.2.4(b). 10.2.17. Affiliate Transactions. Enter into or be party to any transaction with an Affiliate, except (a) transactions expressly permitted by the Loan Documents; (b) payment of reasonable compensation to officers and employees for services actually rendered, and payment of customary directors’ fees and indemnities; (c) transactions solely among Obligors; (d) transactions with Affiliates that were consummated prior to the Closing Date, as shown on Schedule 10.2.17; (e) Investments made by Obligors to Subsidiaries which are not Obligors in an aggregate amount not to exceed $35,000,000 at any time outstanding; (f) Investments made by Obligors to Subsidiaries that are not Obligors so long as the Payment Conditions are satisfied at the time of such Investment; and (g) transactions with Affiliates in the Ordinary Course of Business, upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate. In addition, if any such transaction or series of related transactions involves payments in excess of $35,000,000 in the aggregate, the terms of these transactions if not previously disclosed in Schedule 10.2.17 must be disclosed in advance to Agent. No Obligor or any of its Domestic Subsidiaries shall enter into any lending or borrowing transaction with any employees of any such Person, except loans to their respective employees on an arm’s- length basis in the Ordinary Course of Business consistent with past practices for travel expenses, relocation costs and similar purposes and stock option financing up to a maximum of $10,000,000 in the aggregate at any one time outstanding. 10.2.18. Plans; Canadian Defined Benefit Pension Plans. (i) Become party to any Multiemployer Plan, other than any in existence on the Closing Date; or (ii) establish, sponsor, maintain, contribute to, or incur any liability under, any Canadian Defined Benefit Pension Plan or cause or allow


 
85 AmericasActive:19586302.10 any Person that sponsors, maintains, contributes to, or has an ongoing obligation to or in respect of, a Canadian Defined Benefit Pension Plan to be acquired by an Obligor or to merge, amalgamate, or consolidate with any Obligor. 10.2.19. Amendments to Subordinated Debt or Indenture. Amend, supplement or otherwise modify the 2028 Note Indenture or any document, instrument or agreement relating to any Subordinated Debt, if such modification (a) increases the principal balance of such Debt, or increases any required payment of principal or interest; (b) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (c) shortens the final maturity date or otherwise accelerates amortization; (d) increases the interest rate; (e) increases or adds any fees or charges; (f) modifies any covenant in a manner or adds any representation, covenant or default that is more onerous or restrictive in any material respect for any Obligor or Subsidiary, or that is otherwise materially adverse to any Obligor, any Subsidiary or Lenders; or (g) results in the Obligations (i) not constituting “Senior Debt” or the equivalent with respect to any Subordinated Debt or (ii) otherwise not being fully benefited by the subordination provisions of any Subordinated Debt. 10.2.20. Access and Use Rights. (a) Grant a Lien on any Material Assets owned by any Obligor to Secure Material Debt or (b) invest, contribute or otherwise transfer any Material Assets owned by any Obligor to any Subsidiary that is not an Obligor, in each case unless such Material Assets are subject to collateral access and use right consistent with Section 11.3 and otherwise reasonably satisfactory to Agent. “Material Asset” means any Equipment, Real Property, fixtures and Intellectual Property that is reasonably necessary or appropriate for purposes of disposing, collecting, collecting, handling, manufacturing or otherwise realizing on any of the Collateral and achieving realization on the Collateral consistent with the field examinations and appraisals thereof. 10.3 Financial Covenant. 10.3.1. Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio, determined (i) as of the last day of the Measurement Period, i.e., the Fiscal Quarter most recently ended, before, or concurrent with, the commencement of a Trigger Period (FCCR) and (ii) on the last day of each Measurement Period thereafter during the continuance of any Trigger Period (FCCR), to be less than 1.00 to 1.00 for such Measurement Period. SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT 11.1 Events of Default. Each of the following shall be an “Event of Default” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise: (a) Any Borrower or other Obligor fails to pay (i) any principal on any Loan when due (whether at stated maturity, on demand, upon acceleration or otherwise) or (ii) any interest, fees or any other Obligations when due (whether at stated maturity, on demand, upon acceleration or otherwise) and, in the case of this clause (ii), such failure continues for three (3) Business Days; (b) Any representation, warranty or other written statement of an Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given; (c) Any Obligor breaches or fail to perform any covenant contained in Section 7.2, 8.1, 8.2.4, 8.2.5, 10.1.1, 10.2, 10.3, 10.1.3(d), or 10.1.5 (solely with respect to Anti-Corruption Laws, Anti- Terrorism laws and Sanctions);


 
86 AmericasActive:19586302.10 (d) An Obligor breaches or fails to perform any (x) covenant contained in Section 8.6.2 or 10.1.2 and such breach or failure is not cured within five (5) Business Days or (y) other covenant contained in any Loan Documents, and such breach or failure is not cured within 30 days, in each case, i.e. (x) and (y), after a Senior Officer of such Obligor has knowledge thereof or receives notice thereof from Agent, whichever is sooner; (e) an Obligor or any Affiliate thereof denies or contests in writing the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Agent and the applicable Lenders); (f) Any breach or default of an Obligor occurs under any Swap, or under any instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating to any Debt (other than the Obligations) in excess of $25,000,000, if the maturity of or any payment with respect to such Debt may be accelerated or demanded due to such breach; (g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $25,000,000 (net of insurance coverage therefor that has not been denied by the insurer), unless a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal or otherwise; (h) [Reserved]; (i) An Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material part of its business for a material amount of time; an Obligor suffers the loss, revocation or termination of any material license, permit, lease or agreement necessary to its business which is not promptly (as determined by the Agent in good faith) restored; there is a cessation of any material part of an Obligor’s business for a material period of time; any material Collateral or the other Property material to the operation of an Obligor’s business of an Obligor is taken or impaired through condemnation in a manner reasonably likely to have a Material Adverse Effect; an Obligor agrees to or commences any liquidation, dissolution or winding up of its affairs; or a default which is not cured within any applicable cure period in the payment when due, or in the performance or observance of, any material obligation of, or condition agreed to by, any Obligor with respect to any material purchase or lease of goods or services where such default, singly or in the aggregate with all other such defaults, would reasonably be expected to have a Material Adverse Effect; (j) An Insolvency Proceeding is commenced by an Obligor; an Obligor makes an offer of material settlement, extension or composition to its unsecured creditors generally; a trustee is appointed to take possession of any substantial Property of or to operate any of the business of an Obligor; or an Insolvency Proceeding is commenced against an Obligor and the Obligor consents to institution of the proceeding, the petition commencing the proceeding is not timely contested by the Obligor, the petition is not dismissed within 60 days after filing, or an order for relief is entered in the proceeding; (k) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has resulted or could reasonably be expected to result in liability of an Obligor to a Pension Plan, Multiemployer Plan or PBGC, in each case, that could reasonably be expected to have a Material Adverse Effect or (ii) or (ii) a Canadian Pension Event occurs or any Lien arises (save for contribution amounts not yet due) with respect to any Canadian Pension Plan that could reasonably be expected to have a Material Adverse Effect; (l) [reserved];


 
87 AmericasActive:19586302.10 (m) Any subordination provision in any document or instrument governing Subordinated Debt, or any subordination provision in any guaranty by any Subsidiary of any Subordinated Debt, shall cease to be in full force and effect in any material respect, or any Obligor or any other Person (including the holder of any applicable Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision in writing; or (n) A Change of Control occurs. 11.2 Remedies upon Default. If an Event of Default (taking into account any applicable cure period) described in Section 11.1(j) occurs with respect to any Obligor, then to the extent permitted by Applicable Law, all Obligations (other than Secured Bank Product Obligations) shall become automatically due and payable and all Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time: (a) declare any Obligations (other than Secured Bank Product Obligations) immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligors to the fullest extent permitted by law; (b) terminate, reduce or condition any Commitment, or make any adjustment to the Borrowing Base; (c) require Borrowers to Cash Collateralize LC Obligations, Secured Bank Product Obligations and other Obligations that are contingent or not yet due and payable; and (d) exercise any other rights or remedies afforded under any Loan Document, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC and the PPSA. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Obligors to assemble Collateral, at Obligors’ expense, and make it available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by an Obligor, Obligors agree not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof (subject to Section 11.3(b)), at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems advisable. Each Obligor agrees that 10 days’ notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable, and that any sale conducted on the internet or to a licensor of Intellectual Property (such sale only permitted to the extent such Intellectual Property is part of or related to Collateral) shall be commercially reasonable. Agent may conduct sales on any Obligor’s premises, without charge, and any sale may be adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may credit bid and set off the amount of such price against the Obligations. 11.3 License; Right to Use. (a) Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of Obligors or their Subsidiaries, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise


 
88 AmericasActive:19586302.10 exercising any rights or remedies with respect to, any Collateral. Each Obligor’s and its Subsidiaries’ rights and interests under Intellectual Property shall inure to Agent’s benefit. (b) Notwithstanding anything to the contrary contained herein, for the purpose of enabling Agent to exercise rights and remedies with respect to the Collateral under this Agreement at such time as Agent shall be lawfully entitled to exercise such rights and remedies, Agent shall have the right to utilize, at no cost or expense to Agent (other than as set forth below), any Property of the Obligors, including without limitation any of the Obligors’ plant and Equipment, solely to the extent necessary or appropriate in order to sell, lease or otherwise dispose of any of the Collateral (notwithstanding the foregoing, Obligors’ Obligations shall be reduced by (and to the extent not satisfied, Agent shall reimburse to Obligors an amount equal to) any reasonable costs to repair any physical damage (wear and tear excepted) caused by Agent to such plant and Equipment of Obligors during such utilization period, solely to the extent such damage is determined to result from the negligence or willful misconduct of Agent). 11.4 Setoff. At any time during an Event of Default, Agent, Issuing Bank, Lenders, and any of their Affiliates and branches are authorized, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by Agent, Issuing Bank, such Lender or such Affiliate or branch to or for the credit or the account of an Obligor against any Obligations, irrespective of whether or not Agent, Issuing Bank, such Lender or such Affiliate or branch shall have made any demand under this Agreement or any other Loan Document although such Obligations are owed to a branch or office of Agent, Issuing Bank, such Lender or such Affiliate or branch different from the branch or office holding such deposit or obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and each such Affiliate or branch under this Section are in addition to other rights and remedies (including other rights of setoff) that such Person may have. 11.5 Remedies Cumulative; No Waiver. 11.5.1. Cumulative Rights. All agreements, warranties, guaranties, indemnities and other undertakings of Obligors under the Loan Documents are cumulative and not in derogation of each other. The rights and remedies of Agent and Lenders are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies available by agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full force and effect until Full Payment of all Obligations. 11.5.2. Waivers. No waiver or course of dealing shall be established by (a) the failure or delay of Agent or any Lender to require strict performance by Obligors with any terms of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan or issuance of any Letter of Credit during a Default, Event of Default or other failure to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or performance by an Obligor under any Loan Documents in a manner other than that specified therein. Any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date. SECTION 12. AGENT 12.1 Appointment, Authority and Duties of Agent. 12.1.1. Appointment and Authority. Each Secured Party appoints and designates Bank of America as Agent under all Loan Documents. Agent may, and each Secured Party authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents,


 
89 AmericasActive:19586302.10 for the benefit of Secured Parties. Any action taken by Agent in accordance with the provisions of the Loan Documents, and the exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral or under any Loan Documents, Applicable Law or otherwise. The duties of Agent ministerial and administrative in nature only, and Agent shall not have a fiduciary relationship with any Secured Party, Participant or other Person, by reason of any Loan Document or any transaction relating thereto. Agent, in its Permitted Discretion, shall be authorized to determine whether any Account or Inventory meets the criteria for an Eligible Account or Eligible Inventory in accordance with the definitions thereof set out in Section 1 hereof; whether to impose or release any reserve; or whether any of the conditions to funding or to issuance of a Letter of Credit set out herein have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Secured Party for any error in judgment. In addition, and without limiting any of the foregoing, each of the Secured Parties hereby irrevocably appoints and authorizes Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec, and, to the extent necessary, ratifies the appointment and authorization of Agent, to act as the hypothecary representative (within the meaning of Article 2692 of the Civil Code of Quebec) for the Secured Parties, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec as security for any of the Obligations, and to exercise such powers and duties that are conferred upon Agent in its capacity as hypothecary representative under any related deed of hypothec. Agent in its capacity as hypothecary representative shall have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to Agent pursuant to any such deed of hypothec and applicable law. Any Person who becomes a Secured Party shall be deemed to have consented to and confirmed Agent as the Person acting as hypothecary representative for the Secured Parties holding the aforesaid hypothecs as aforesaid and to have ratified all actions taken by Agent in such capacity. Agent acting in its capacity as hypothecary representative shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of Agent in this Agreement, which shall apply mutatis mutandis. The substitution of Agent pursuant to the provisions of this Section 12 also constitutes the substitution of Agent as hypothecary representative as aforesaid. Each such successor Agent appointed in accordance with the terms of this Agreement shall automatically and without any further formality or action (subject to the registration of a notice of replacement as required by Article 2692 of the Civil Code of Quebec) become the successor hypothecary representative for the purposes of each deed of hypothec that was executed prior to the time of the appointment of such successor Agent. 12.1.2. Duties. The title of “Agent” is used solely as a matter of market custom and the duties of Agent are administrative in nature only. Agent has no duties except those expressly set forth in the Loan Documents, and in no event does Agent have any agency, fiduciary or implied duty to or relationship with any Secured Party or other Person by reason of any Loan Document or related transaction, even if a Default exists. The conferral upon Agent of any right shall not imply a duty to exercise such right, unless instructed to do so by Lenders in accordance with this Agreement. 12.1.3. Agent Professionals. Agent may perform its duties through agents and employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be


 
90 AmericasActive:19586302.10 fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care. 12.1.4. Instructions of Required Lenders. The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joinder of any other party, unless required by Applicable Law. In determining compliance with a condition for any action hereunder, including satisfaction of any condition in Section 6, Agent may presume that the condition is satisfactory to a Secured Party unless Agent has received notice to the contrary from such Secured Party before Agent takes the action. Agent may request instructions from Required Lenders or other Secured Parties with respect to any act (including the failure to act) in connection with any Loan Documents or Collateral, and may seek assurances to its satisfaction from Secured Parties of their indemnification obligations against Claims that could be incurred by Agent. Agent may refrain from any act until it has received such instructions or assurances, and shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Secured Parties, and no Secured Party shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting pursuant to instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of specific parties shall be required to the extent provided in Section 14.1.1. In no event shall Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to personal liability. 12.2 Agreements Regarding Collateral and Borrower Materials. 12.2.1. Lien Releases; Care of Collateral. Secured Parties authorize Agent to (a) release any Lien with respect to any Collateral (i) upon Full Payment of the Obligations; (ii) that is the subject of a disposition or Lien that Obligors certify in writing is a Permitted Asset Disposition or a Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without further inquiry); (iii) that does not constitute a material part of the Collateral; or (iv) subject to Section 14.1, with the consent of Required Lenders and (b) notwithstanding Section 14.1.1(d) hereof, release any Obligor from its guaranty under the Guaranty (i) upon Full Payment of the Obligations, or (ii) if such party was sold or is to be sold or disposed of as part of or in connection with any disposition permitted hereunder (including by consent, waiver or amendment and it being agreed and understood that Agent may conclusively rely without further inquiry on a certificate of an officer of the Obligors as to the sale or other disposition being made in compliance with this Agreement); provided that, notwithstanding the foregoing or anything in this Agreement or any other Loan Document to the contrary, a Guarantor shall not cease to be a Guarantor solely by virtue of no longer being a Subsidiary of an Obligor unless, at the time such Guarantor ceases to be a Subsidiary, the primary purpose (as determined by the Borrower Agent in good faith) of such transaction was not to evade the guarantee required under the Loan Documents. Secured Parties authorize Agent to subordinate its Liens to any Purchase Money Lien or other Lien entitled to priority hereunder. Agent shall have no obligation to assure that any Collateral exists or is owned by an Obligor, or is cared for, protected or insured, nor to assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. In each case as specified in this Section 12.2.1, Agent will, at Borrower’s sole expense, execute and deliver to Borrower such documents as Borrower may reasonably request to evidence the release of such item of Collateral from the Liens granted under the Security Documents or to subordinate its interest in such item, or to release such Obligor from its guarantee, in each case in accordance with the terms of the Loan Documents and this Section 12.2.1. To the extent required under the laws of any foreign jurisdiction, each Secured Party hereby grants to Agent any required power of attorney to take any action with respect to Collateral or to execute any Loan Document on the Secured Party’s behalf.


 
91 AmericasActive:19586302.10 12.2.2. Possession of Collateral. Agent and Secured Parties appoint each Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with it in accordance with Agent’s instructions. 12.2.3. Reports. Agent shall promptly forward to Lenders, when received from Obligors and when complete, any field audit, examination or appraisal report prepared for Agent with respect to any Obligor or Collateral (collectively “Reports”) and any financial statements, notifications or reports required under Section 10.1.2. Reports and other Borrower Materials may be made available to Lenders by providing access to them on the Platform, but Agent shall not be responsible for system failures or access issues that may occur from time to time. Each Lender agrees (a) that Reports are not intended to be comprehensive audits or examinations, and that Agent or any other Person performing an audit or examination will inspect only specific information regarding the Obligations or Collateral and will rely significantly upon Obligors’ books, records and representations; (b) that Agent makes no representation or warranty as to the accuracy or completeness of any Borrower Materials and shall not be liable for any information contained in or omitted from any Borrower Materials, including any Report; and (c) to keep all Borrower Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or other Borrower Materials (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants), and to use all Borrower Materials solely for administration of the Obligations. Each Lender shall indemnify and hold harmless Agent and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Borrower Materials, as well as from any Claims arising as a direct or indirect result of Agent furnishing same to such Lender, via the Platform or otherwise. 12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of time to act upon any instruction, notice or other communication under any Loan Document, and shall not be liable for any delay in acting. 12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has received written notice from a Borrower or Required Lenders specifying the occurrence and nature thereof If any Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each Secured Party (other than Agent) agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations (other than Secured Bank Product Obligations), or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC or PPSA sales or other dispositions of Collateral, or to assert any rights relating to any Collateral. 12.5 Ratable Sharing. If any Lender obtains any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its share of such Obligation, determined on a Pro Rata basis or in accordance with Section 5.6.2, as applicable, such Lender shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in the affected Obligation as are necessary to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 5.6.2, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall immediately turn over the amount thereof to Agent for application under Section 4.2.2 and it shall


 
92 AmericasActive:19586302.10 provide a written statement to Agent describing the Obligation affected by such payment or reduction. No Lender shall set off against any Dominion Account without Agent’s prior consent. 12.6 Indemnification. EACH SECURED PARTY SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES AND ISSUING BANK INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE, PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE CAPACITY OF AGENT). In Agent’s discretion, it may reserve for any Claims made against an Agent Indemnitee or Issuing Bank Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Secured Parties. If Agent is sued by any receiver, trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Secured Party to the extent of its Pro Rata share. 12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to any Secured Party for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor, Lender or other Secured Party of any obligations under the Loan Documents. Agent does not make any express or implied representation, warranty or guarantee to Secured Parties with respect to any Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Secured Parties for any recitals, statements, information, representations or warranties contained in any Loan Documents or Borrower Materials; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the observance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents. 12.8 Successor Agent and Co-Agents. 12.8.1. Resignation; Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required Lenders shall have the right to appoint a successor Agent which shall be (a) a Lender or an Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required Lenders and (provided no Default or Event of Default exists) Borrowers. If no successor Agent is appointed prior to the effective date of Agent’s resignation, then Agent may appoint a successor Agent that is a financial institution acceptable to it, which shall be a Lender unless no Lender accepts the role, or, in the absence of such appointment, Required Lenders shall automatically assume all rights and duties of Agent. Upon acceptance by a successor Agent of its appointment hereunder, such successor Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Agent without further act, and the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s resignation, the provisions of this Section 12 shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while Agent. Any successor to Bank of America by merger or acquisition of stock or its Loans, hereunder, shall continue to be Agent hereunder without further act on the part of any Secured Party or Borrower.


 
93 AmericasActive:19586302.10 12.8.2. Co-Collateral Agent. If necessary or appropriate under Applicable Law, Agent may appoint a Person to serve as a co-collateral agent or separate collateral agent under any Loan Document. Each right and remedy intended to be available to Agent under the Loan Documents shall also be vested in such agent. Secured Parties shall execute and deliver any instrument or agreement that Agent may request to effect such appointment. If the agent so appointed shall die, dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new agent. 12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations hereunder. Each Secured Party has made such inquiries as it feels necessary concerning the Loan Documents, Collateral and Obligors. Each Secured Party acknowledges and agrees that the other Secured Parties have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each Secured Party will, independently and without reliance upon any other Secured Party, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Secured Party with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or its Affiliates. Each Lender represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility, and (b) it is engaged in making, acquiring or holding commercial loans in the ordinary course, is sophisticated with respect to making such decisions and holding such loans, and is entering into this Agreement for the purpose of making, acquiring or holding commercial loans and providing other facilities as set forth herein, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument. Each Lender agrees not to assert any claim in contravention of the foregoing. 12.10 Remittance of Payments and Collections. 12.10.1. Remittances Generally. All payments by any Lender to Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by Agent and request for payment is made by Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on such day, and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Secured Party shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such payee under the Loan Documents. 12.10.2. Erroneous Payments. Without limitation of any other provision herein, if at any time Agent makes a payment hereunder in error to any Secured Party, whether or not in respect of an Obligation due and owing by Borrowers at such time, where such payment is a Rescindable Amount, then in any such event each Secured Party receiving a Rescindable Amount severally agrees to repay to Agent forthwith on demand the Rescindable Amount received by such Secured Party in immediately available funds in the currency so received, with interest thereon for each day from and including the date such Rescindable Amount is received by it to but excluding the date of repayment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation. Each Secured Party irrevocably waives any and all defenses, including any defense of


 
94 AmericasActive:19586302.10 discharge for value (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. Agent shall inform each Secured Party promptly upon determining that any payment made to such Secured Party was comprised, in whole or in part, of a Rescindable Amount. 12.10.3. Distributions. If Agent determines that an amount received by it must be returned or paid to an Obligor or other Person pursuant to Applicable Law or otherwise, then Agent shall not be required to distribute such amount to any Secured Party. 12.11 Recovery of Payments. If Agent pays an amount to a Secured Party in the expectation that a related payment will be received by Agent from a Borrower and such related payment is not received, then Agent may recover such amount from the Secured Party. If Agent determines that an amount received by it must be returned or paid to a Borrower or other Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document, Agent shall not be required to distribute such amount to any Secured Party. If any amounts received and applied by Agent to any Obligations are later required to be returned by Agent pursuant to Applicable Law, each Lender shall pay to Agent, on demand, such Lender’s Pro Rata share of the amounts required to be returned. 12.12 Individual Capacities. As a Lender, Bank of America shall have the same rights and remedies under the Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders”, “Required Supermajority Lenders” or any similar term shall include Bank of America in its capacity as a Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, provide Bank Products to, act as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and shall have no obligation to provide such information to any Secured Party. Titles. Each Lender, other than Bank of America, that is designated (on the cover page of this Agreement or otherwise) by Bank of America as an “Arranger,” “Bookrunner” or “Agent” of any type shall have no right, power or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event have any fiduciary duty to any Secured Party. 12.13 [Reserved]. 12.14 Bank Product Providers. Each Secured Bank Product Provider, by delivery of a notice to Agent of a Bank Product, agrees to be bound by Section 5.6 and this Section 12. Each Secured Bank Product Provider shall indemnify and hold harmless Agent Indemnitees, to the extent not reimbursed by Obligors, against all Claims that may be incurred by or asserted against any Agent Indemnitee in connection with such provider’s Secured Bank Product Obligations. 12.15 No Third Party Beneficiaries. This Section 12 is an agreement solely among Secured Parties and Agent, and shall survive Full Payment of the Obligations. This Section 12 does not confer any rights or benefits upon Obligors or any other Person. As between Obligors and Agent, any action that Agent may take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to have been authorized and directed by Secured Parties.


 
95 AmericasActive:19586302.10 SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS 13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Obligors, Agent, Lenders, Secured Parties, and their respective successors and assigns, except that (a) no Obligor shall have the right to assign its rights or delegate its obligations under any Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3. Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender. 13.2 Participations. 13.2.1. Permitted Participants; Effect. Subject to Section 13.3.3, any Lender may sell to a financial institution (“Participant”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, it shall remain solely responsible to the other parties hereto for performance of such obligations, it shall remain the holder of its Loans and Commitments for all purposes, all amounts payable by Borrowers shall be determined as if it had not sold such participating interests, and Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or liability to any such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.9 unless Borrowers agree otherwise in writing. 13.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of a Loan Document other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Commitment in which such Participant has an interest, postpones the Commitment Termination Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Commitment, or releases any Borrower or substantially all Collateral. 13.2.3. Benefit of Set-Off. Borrowers agree that each Participant shall have a right of set- off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if such Participant were a Lender. 13.2.4. Participant Register. Each Lender that sells a participation shall, acting as a non- fiduciary agent of Borrowers (solely for tax purposes), maintain a register in which it enters the Participant’s name, address and interest in Commitments, Loans (and stated interest) and LC Obligations. Entries in the register shall be conclusive, absent manifest error, and such Lender shall treat each Person recorded in the register as the owner of the participation for all purposes, notwithstanding any notice to the contrary. No Lender shall have an obligation to disclose any information in such register except to the extent necessary to establish that a Participant’s interest is in registered form under the Code. 13.3 Assignments. 13.3.1. Permitted Assignments. A Lender may assign to an Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless otherwise agreed


 
96 AmericasActive:19586302.10 by Agent in its discretion) and integral multiples of $1,000,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Commitments retained by the transferor Lender is at least $5,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment. Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to secure obligations of such Lender, including a pledge or assignment to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release the Lender from its obligations hereunder nor substitute the pledge or assignee for such Lender as a party hereto. 13.3.2. Effect; Effective Date. Upon delivery to Agent of a fully executed and completed Assignment accompanied by a processing fee of $3,500 (unless otherwise agreed by Agent in its discretion), the assignment shall become effective as specified in the notice, if it complies with this Section 13.3. From such effective date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder. Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make appropriate arrangements for issuance of replacement and/or new notes, if applicable. The transferee Lender shall comply with Section 5.10 and deliver, upon request, an administrative questionnaire satisfactory to Agent. 13.3.3. Certain Assignees. No assignment or participation may be made to a Borrower, Affiliate of a Borrower, Defaulting Lender or natural person. Any assignment by a Defaulting Lender shall be effective only upon payment by the Eligible Assignee or Defaulting Lender to Agent of an aggregate amount sufficient, upon distribution (through direct payment, purchases of participations or other compensating actions as Agent deems appropriate), to satisfy all funding and payment liabilities then owing by the Defaulting Lender hereunder. If an assignment by a Defaulting Lender shall become effective under Applicable Law for any reason without compliance with the foregoing sentence, then the assignee shall be deemed a Defaulting Lender for all purposes until such compliance occurs. 13.3.4. Register. Agent, acting as a non-fiduciary agent of Borrowers (solely for tax purposes), shall maintain (a) a copy of each Assignment delivered to it, and (b) a register for recordation of the names, addresses and Commitments of, and the Loans, interest and LC Obligations owing to, each Lender. Entries in the register shall be conclusive, absent manifest error, and Borrowers, Agent and Lenders shall treat each lender recorded in such register as a Lender for all purposes under the Loan Documents, notwithstanding any notice to the contrary. The register shall be available for inspection by Borrowers or any Lender, from time to time upon reasonable notice. 13.4 Replacement of Certain Lenders. If a Lender (a) fails to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, (b) requests compensation or payment of additional amounts from any Borrower under either Section 3.7 or 3.9, or if any Obligor is required to pay any Indemnified Taxes or additional amounts to such Lender pursuant to Section 5.9 or (c) is a Defaulting Lender, then, in addition to any other rights and remedies that any Person may have, Agent or Borrower Agent may, by notice to such Lender, require such Lender to assign all of its rights and obligations under the Loan Documents to Eligible Assignee(s), pursuant to appropriate Assignment(s), within five (5) Business Days after the notice; provided, that, a Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Agent or Borrower Agent to require such assignment and delegation cease to apply. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment if the Lender fails to execute it. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents through the date of assignment; provided, that notwithstanding the foregoing sentence, Borrowers shall not be required to reimburse any departing Lender for any compensation or payment of additional amounts incurred pursuant to Section 3.7


 
97 AmericasActive:19586302.10 or 3.9 to the extent such compensation or amounts resulted from a Change in Law (solely for purposes hereof, “Change in Law” shall be a Change in Law as defined in clause (c) of the definition thereof, without having the force of law) and either (x) such Lender did not give prior written notice to Borrower Agent of the implementation of such Change in Law resulting in such compensation or amounts or (y) Borrowers shall have removed such Lender pursuant to the terms of this Section 13.4 prior to the implementation of such Change in Law following the delivery of written notice by such Lender to Borrower Agent thereof pursuant to the terms of Section 3.3; provided, further, that following delivery to Borrower Agent of such notice, the Borrowers shall be required to reimburse Lenders for any such compensation or amounts incurred from the period of implementation of such Change in Law until the date of any such permitted assignment pursuant to this Section 13.4. SECTION 14. MISCELLANEOUS 14.1 Consents, Amendments and Waivers. 14.1.1. Amendment. No modification of any Loan Document, including any extension or amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of the Agent, Required Lenders (or by Agent with the consent of Required Lenders) and each Obligor party to such Loan Document; provided, however, that: (a) without the prior written consent of Agent, no modification shall be effective with respect to any provision in a Loan Document that relates to any rights, duties or discretion of Agent; (b) without the prior written consent of Issuing Bank, no modification shall be effective with respect to any LC Obligations, Section 2.3 or any other provision in a Loan Document that relates to any rights, duties or discretion of Issuing Bank; (c) without the prior written consent of each affected Lender, including a Defaulting Lender, no modification shall be effective that would (i) increase the Commitment of such Lender; (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender (except as provided in Section 4.2); (iii) extend the Revolver Termination Date applicable to such Lender’s Obligations; (iv) change Section 5.6.2 or any other provision hereof in a manner that alters any pro rata sharing of payments or ratable reduction of Commitments; or (v) amend this clause (c); (d) without the prior written consent of all Lenders (except any Defaulting Lender), no modification shall be effective that would (i) alter Section 5.6.2, 7.1 (except to add Collateral), 12.5 or 14.1.1; (ii) amend the definition of Pro Rata (alter the pro rata application required thereby), Required Supermajority Lenders or Required Lenders; (iii) release Agent’s Liens in all or substantially all Collateral in any transaction or series of related transactions; (iv) subordinate, or have the effect of subordinating, the Agent’s Liens or the Obligations hereunder to any other Debt (other than (A) the subordination of Agent’s Liens contemplated by clauses (b) and (c) of Section 12.2.1 (and the sections referenced thereby)) as in effect on the Closing Date and (B) in connection with any “debtor-in-possession” financing or the use of cash collateral in any bankruptcy proceeding of the Borrowers; (v) except in connection with a merger, amalgamation, disposition or similar transaction expressly permitted hereby, release any Obligor from liability for any Obligations; or (vi) change any Loan Document provision requiring consent or action by all Lenders; and (e) without the prior written consent of Required Supermajority Lenders, (i) amend the definition of Borrowing Base (or any defined term used in such definition) if the effect of such amendment is to increase borrowing availability or (ii) increase the advance rate;


 
98 AmericasActive:19586302.10 (f) without the prior written consent of a Secured Bank Product Provider, no modification shall be effective that affects its relative payment priority under Section 5.6.2. Notwithstanding anything to the contrary herein, (i) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement, (ii) if the Agent and the Borrowers acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Agent and the Borrowers shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mist