FreightCar America, Inc. (Form: 8-K, Received: 10/19/2020 17:16:05)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________

FORM 8-K

_________________

CURRENT REPORT

Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 13, 2020

_______________________________

FREIGHTCAR AMERICA, INC.

(Exact name of registrant as specified in its charter)

_______________________________

Delaware	000-51237	25-1837219
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

125 S. Wacker Drive, Suite 1500

Chicago, Illinois 60606

(Address of Principal Executive Offices) (Zip Code)

(800) 458-2235

(Registrant's telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

_______________________________

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

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.01 per share	RAIL	Nasdaq Global Market

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. ☐

Section 1 – Registrant’s Business and Operations

Item 1.01. Entry into a Material Definitive Agreement.

Equity Purchase Agreement

On October 16, 2020, FreightCar America, Inc. (the “Company”), through its wholly owned subsidiary, FreightCar North America, LLC (f/k/a FCAI Holdings, LLC) (“FreightCar North America”) entered into an equity purchase agreement (the “Equity Purchase Agreement”) with Fasemex, Inc. (the “US Seller”), Fabricaciones y Servicios de México, S.A. de C.V. (“Fasemex Mexico”) and Agben de Mexico, S.A. de C.V. (“Agben” and, together with Fasemex Mexico, the “MX Sellers”, and the MX Sellers, together with the US Seller, the “Sellers”). Pursuant to the Equity Purchase Agreement, FreightCar North America acquired from Sellers 50% of the outstanding equity interests (the “Seller Interests”) of FCA-Fasemex, LLC, a Delaware limited liability company (the “ US JV”), FCA-Fasemex, S. de R.L. de C.V., an entity organized under the laws of Mexico (“Production JV”), and FCA-Fasemex Enterprise, S. de R.L. de C.V., an entity organized under the laws of Mexico (“ Services JV,” and, collectively, with the Production JV and the US JV, the “ JV Companies”).

The JV Companies collectively represented the Company’s joint venture with the Sellers to manufacture railcars in Castaños, Mexico, which was formed in September 2019. Prior to the execution of the Equity Purchase Agreement, FreightCar North America owned a 50% interest in each of the JV Companies and, as a result of the acquisition of the Seller Interests, the JV Companies are now wholly-owned by FreightCar North America.

The consideration for the Seller Interests includes $172,500 in cash and the issuance of an aggregate of 2,257,234 shares of the Company’s common stock, par value $0.01 per share (the “EPA Shares”), to the Sellers. In addition, the Company and certain of its subsidiaries entered into several ancillary agreements as discussed in this Form 8-K.

The Equity Purchase Agreement contains certain customary representations, warranties, indemnities and covenants, including a non-competition covenant from the Sellers and their affiliates until the later of three years after closing and such time that the Sellers cease to beneficially own, in the aggregate, common stock of the Company equal to at least 5% of the issued and outstanding shares of the Company’s common stock.

The issuance of the EPA Shares by the Company is being made in reliance on the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), because the offer and sale of such securities do not involve a “public offering” as defined in Section 4(a)(2) of the Securities Act.

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

Investor Rights Agreement

In connection with the Equity Purchase Agreement, the Company entered into an investor rights agreement on October 16, 2020 (the “Investor Rights Agreement”) with the Sellers. Pursuant to the Investor Rights Agreement, the Sellers have the right to designate one nominee for election to the Company’s board of directors (the “Board”) for so long as the Sellers beneficially own in the aggregate, common stock of the Company equal to at least 5% of the issued and outstanding shares of the Company’s common stock. The director nominee initially designated by the Sellers is Mr. Jesus Salvador Gil Benavides and the Board will appoint him to serve as a Class II director effective on or before October 26, 2020. Pursuant to the Investor Rights Agreement, Mr. Jesus Gil will also be retained as the Vice President of Operations of the Company.

In addition, the Investor Rights Agreement provides the Sellers with the right to designate a non-voting observer to attend meetings of the Board and of committees of the Board, subject to customary limitations, for so long as the Sellers beneficially own, in the aggregate, common stock of the Company equal to at least 5% of the issued and outstanding shares of the Company’s common stock. The non-voting board observer initially appointed is Mr. Alejandro Gil.

The foregoing description of the Investor Rights Agreement does not purport to be complete and is qualified by reference to the full text of the Investor Rights Agreement, which is filed as Exhibit 10.2 hereto and is incorporated herein by reference.

Lease Agreement

On October 16, 2020, Fasemex Mexico entered into a restated lease agreement (the “Lease Agreement”), as lessor, with the Production JV, as lessee, with respect to the Production JV’s manufacturing facility in Castaños, Mexico (the “Facility”). The Lease Agreement replaces the current lease in place between such parties since September 19, 2019. The Lease Agreement has a term through September 30, 2040. All obligations under the Lease Agreement are guaranteed by the Company. The Lease Agreement has an expansion option for the Production JV to expand the Facility, at its discretion. The Lease Agreement contains certain customary representations, covenants, and events of default.

The foregoing description of the Lease Agreement does not purport to be complete and is qualified by reference to the full text of the Lease Agreement, which is filed as Exhibit 10.3 hereto and is incorporated herein by reference.

Royalty Agreement

In connection with the Equity Purchase Agreement, on October 16, 2020, the Company entered into a royalty agreement with the Sellers and certain affiliates thereof (the “Royalty Agreement”). Under the Royalty Agreement, the Company will pay to the Sellers certain royalties on amounts received from sales or leases of new railcars or tank cars built (or refurbished or repaired) at the Facility by the Company for a period of 17 years with respect to each of the first four production lines established by the Company at the Facility. The Royalty Agreement shall end upon the termination of the last applicable 17-year royalty period with respect to a production line, unless terminated earlier in connection with a breach of the Royalty Agreement or the Lease Agreement. In addition, for so long as the Royalty Agreement remains in effect, the Company will pay to the Sellers certain royalties on amounts received from similar railcar production, refurbishing or repair to the extent conducted in the future by the Company in any other manufacturing location in Mexico other than the Facility.

The foregoing description of the Royalty Agreement does not purport to be complete and is qualified by reference to the full text of the Royalty Agreement, which is filed as Exhibit 10.4 hereto and is incorporated herein by reference.

Term Loan Credit Agreement

On October 13, 2020, the Company entered into a Credit Agreement (the “Term Loan Credit Agreement”) by and among the Company, as guarantor, FreightCar North America (“Borrower” and together with the Company and certain other subsidiary guarantors, collectively, the “Loan Parties”), CO Finance LVS VI LLC, as lender (the “Lender”), an affiliate of a corporate credit fund for which Pacific Investment Management Company LLC serves as investment manager, and U.S. Bank National Association, as disbursing agent and collateral agent (“Agent”). Pursuant to the Term Loan Credit Agreement, the Lender extended a term loan credit facility in the principal amount of $40.0 million, consisting of a single term loan to be funded upon the satisfaction of certain conditions precedent set forth in the Term Loan Credit Agreement, including stockholder approval of the issuance of the common stock underlying the Warrant described below (the funding date of such term loan, the “Closing Date”).

The Term Loan Credit Agreement has a term ending five years following the Closing Date. The commitment of the Lender to fund the term loan will terminate if the Closing Date has not occurred by December 31, 2020. The term loan outstanding under the Term Loan Credit Agreement will bear interest, at Borrower’s option and subject to the provisions of the Term Loan Credit Agreement, at Base Rate (as defined in the Term Loan Credit Agreement) or Eurodollar Rate (as defined in the Term Loan Credit Agreement) plus the Applicable Margin for each such interest rate set forth in the Term Loan Credit Agreement.

The Term Loan Credit Agreement has both affirmative and negative covenants, including, without limitation, limitations on indebtedness, liens and investments. The Term Loan Credit Agreement also provides for customary events of default. Pursuant to the terms and conditions set forth in the Term Loan Credit Agreement and the related loan documents, each of the Loan Parties granted to Agent a continuing lien upon all of such Loan Parties’ assets to secure the obligations of the Loan Parties under the Term Loan Credit Agreement.

The foregoing description of the Term Loan Credit Agreement does not purport to be complete and is qualified by reference to the full text of the Term Loan Credit Agreement, which is filed as Exhibit 10.5 hereto and is incorporated herein by reference.

Warrant

In connection with the entry into the Term Loan Credit Agreement, the Company will issue to an affiliate of the Lender (the “Warrantholder”) a warrant (the “Warrant”), issued pursuant to that certain warrant acquisition agreement, dated as of October 13, 2020 (the “Warrant Acquisition Agreement”), by and between the Company and the Lender to purchase a number of shares of the Company’s common stock, par value $0.01 per share, equal to 23% of the outstanding common stock on a fully-diluted basis at the time the Warrant is exercised. The Warrant will be exercisable for a term of ten years from the date of the issuance of the Warrant. The issuance of the Warrant will occur on the Closing Date and is subject to, among other things, approval of the issuance of the Warrant by the Company’s stockholders.

Pursuant to the Warrant Acquisition Agreement, for so long as the Warrantholder or its affiliates hold (a) at least 50% of the Warrant or (b) at least 50% of the shares issuable pursuant to the exercise of the Warrant, the Warrantholder shall be entitled to designate for nomination to the Board a director to the Board and a non-voting observer. The Warrantholder will provide, in writing, the name of the initial director nominee (the “Warrantholder Director”) prior to the Closing Date and the Board will appoint him or her to serve as a Class III director effective on the Closing Date.

The issuance of the Warrant by the Company to the Warrantholder and the issuance of the common stock issuable upon exercise of the Warrant will be made in reliance on the exemption from registration contained in Section 4(a)(2) of the Securities Act, because the offer and sale of such securities do not involve a “public offering” as defined in Section 4(a)(2) of the Securities Act.

The foregoing description of the Warrant and the Warrant Acquisition Agreement do not purport to be complete and are qualified in their entirely by reference to Warrant Acquisition Agreement and form of Warrant that are filed as Exhibits 10.6 and 10.7 to hereto and are incorporated herein by reference.

Registration Rights Agreement

In connection with the issuance of the Warrant, the Company and the Lender will enter into a registration rights agreement (the “Registration Rights Agreement”) as of the Closing Date. Pursuant to the Registration Rights Agreement, the Warrantholder may deliver to the Company a written notice (a “Demand”) requiring the Company as soon as reasonably practicable after receiving the Demand, but not more than sixty calendar days following the receipt of the Demand, to file a registration statement (the “Demand Registration Statement”) with respect to all or a portion of the Company’s common stock issuable upon the exercise of the Warrant (referred herein as “Registrable Securities”) with the Securities and Exchange Commission (the “SEC”). The Company will use commercially reasonable efforts to keep the Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the date on which the Warrantholder consummates the sale of all of the Registrable Shares registered for resale under the Demand Registration Statement or such earlier date on which all Registrable Shares held by the Warrantholder or its affiliates are freely tradeable in a single transaction pursuant to Rule 144.

In certain circumstances, and as described in the Registration Rights Agreement, the Warrantholder will have (i) piggyback registration rights with respect to the Registrable Securities and (ii) the right to request that the Company initiate an Underwritten Offering (as defined in the Registration Rights Agreement) of Registrable Securities.

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified by reference to the full text of the form of Registration Rights Agreement, which is filed as Exhibit 10.8 hereto and is incorporated herein by reference.

Section 2 – Financial Information

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 above in Item 1.01 under “Term Loan Credit Agreement” is hereby incorporated by reference into this Item 1.02.

Section 3 – Securities and Trading Markets

Item 3.02. Unregistered Sales of Equity Securities.

The disclosure set forth above in Item 1.01 is hereby incorporated by reference into this Item 3.02.

Section 5 – Corporate Governance and Management

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

The disclosure set forth above in Item 1.01 is hereby incorporated by reference into this Item 5.02.

In connection with the Investor Rights Agreement described in Item 1.01 hereof, on or before October 26, 2020, the Board will increase its size from six to seven directors and appoint Mr. Jesus Gil as a Class II director. Mr. Gil’s term will expire at the 2022 annual meeting of stockholders.

Pursuant to the Investor Rights Agreement described in Item 1.01 hereof, the Company retained Mr. Jesus Gil as its Vice President of Operations. Mr. Gil is presently employed by the Production JV. The Company expects to modify Mr. Gil’s employment arrangement to a base salary of $265,000 with performance incentives and employee welfare benefits commensurate with individuals having a similar level of responsibility. Mr. Jesus Gil is subject to a non-compete obligation during the term of his employment and for three years thereafter.

Mr. Jesus Gil has over 30 years of experience in metal fabrications, and over 20 years of experience in the railcar manufacturing industry. Prior to his appointment, Mr. Jesus Gil held various roles with Grupo Industrial Monclova, S.A. de C.V. (“Grupo Industrial”), a corporation operating in railcar manufacturing, offshore platform fabrication, mining, industrial gases and energy, from 2005 to 2017. These roles included Director of the Industrial Division, Chief Operating Officer and Chief Executive Officer. During this time, he also served as a member of Grupo Industrial’s board of directors. From 1997 to 2005, Mr. Jesus Gil worked for Trinity Industries de Mexico as Plant Manger at the Monclova plant and the General Manager of Monclova-Sabinas. In 2018, he finished a one-year Advanced Executive Management Program (AD-2) at the Instituto Panamericano de Alta Dirección de Empresa (IPADE) in Monterrey, Mexico. In 1988, he obtained a master’s degree in electrical engineering from Washington University, Saint Louis, Missouri, and in 1986 he received his bachelor’s degree in electronic engineering from the Instituto Tecnológico de Monterrey.

Other than the arrangements disclosed above in Item 1.01 hereof and in this Item 5.02, there are no other arrangements or understandings between Mr. Jesus Gil and any other persons to which he was elected as a director of the Company.

With respect to Item 404(a) of Regulation S-K, there are no relationships or related transactions between Mr. Jesus Gil and the Company that would be required to be reported that are not otherwise reported in this Form 8-K.

Section 8 – Other Events

Item 8.01. Other Events.

On October 19, 2020, the Company issued a press release announcing the Company’s entry into the Equity Purchase Agreement and related documents, the Term Loan Credit Agreement and the Warrant Acquisition Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Section 9 – Financial Statements and Exhibits

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

Exhibit 10.1		Equity Purchase Agreement, dated October 16, 2020, by and among the Company, FreightCar North America, LLC (f/k/a/ FCAI Holdings, LLC) and Fabricaciones y Servicios de México, S.A. de C.V., Agben de Mexico, S.A. de C.V. and Fasemex, Inc.
Exhibit 10.2		Investor Rights Agreement, dated October 16, 2020, by and between the Company and Fabricaciones y Servicios de México, S.A. de C.V., Agben de Mexico, S.A. de C.V. and Fasemex, Inc..
Exhibit 10.3		Lease Agreement, dated October 16, 2020, by and between Fabricaciones y Servicios de México, S.A. de C.V., as lessor, and FCA-Fasemex, S. de R.L. de C.V., as lessee.
Exhibit 10.4		Royalty Agreement, dated October 16, 2020, by and among the Company and Fabricaciones y Servicios de México, S.A. de C.V., Agben de Mexico, S.A. de C.V. and Fasemex, Inc.
Exhibit 10.5		Term Loan Credit Agreement, dated October 13, 2020, by and among the Company, FreightCar North America, LLC, CO Finance LVS VI LLC and U.S. Bank National Association.*
Exhibit 10.6		Warrant Acquisition Agreement, dated October 13, 2020, by and between the Company and CO Finance LCS VI LLC.*
Exhibit 10.7		Form of Warrant issued by the Company to CO Finance LVS VI LLC.
Exhibit 10.8		Form of Registration Rights Agreement, to be entered into as of the Closing Date, by and between the Company and CO Finance LVS VI LLC.
Exhibit 99.1		Press release of FreightCar America, Inc., dated October 19, 2020.
Exhibit 104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

*Portions of this document have been redacted pursuant to Item 601(b)(10)(iv) or Item 601(a)(6) of Regulation S-K.

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.

	FREIGHTCAR AMERICA, INC.


Date: October 19, 2020	By:	/s/ Christopher J. Eppel
		Christopher J. Eppel
		Vice President, Finance, Chief Financial Officer, Treasurer and Corporate Secretary

Exhibit 10.1

Execution Copy

EQUITY PURCHASE AGREEMENT

This Equity Purchase Agreement (this “Agreement”) is entered into as of October 16, 2020, by and among FreightCar North America, LLC (f/k/a FCAI Holdings, LLC), a Delaware limited liability company (“Buyer”), Fasemex, Inc. a Texas corporation (“US Seller”), Fabricaciones y Servicios de México, S.A. de C.V., an entity organized under the laws of Mexico (“Fasemex Mexico”), and Agben de Mexico, S.A. de C.V., an entity organized under the laws of Mexico (“Agben” and, together with Fasemex Mexico, “MX Sellers”). US Seller and MX Sellers are sometimes referred to herein individually as “Seller” and collectively as “Sellers,” and Buyer and Sellers are sometimes referred to individually as “Party” and collectively as “Parties.” FreightCar America, Inc., a Delaware corporation (“Parent”), is made party hereto solely for the purposes of Article V, Section 6.2(e) (subject to the limitations and other provisions of Article VI), and Article IX. Capitalized terms used and not otherwise defined herein have the meanings set forth in Annex A. Unless otherwise indicated, Article, Section and Annex references in this Agreement are references to Sections, Articles and Annexes contained in this Agreement.

RECITALS

A. The JV Companies (as defined below), collectively, carry out the manufacture, assembly, distribution and production of railcars, railcar parts, or railcar components in the United States of America, Canada and Mexico for commercialization and sale in the Territory (the “Business”).

B. Parent presently owns 100% of the membership interests in Buyer.

C. US Seller presently owns a 50% ownership interest (the “US JV Equity”) in FCA-Fasemex, LLC, a Delaware limited liability company (the “US JV”).

D. Fasemex Mexico presently owns a 43% ownership interest and Agben owns a 7% ownership interest (collectively, the “MX JV Equity” and, together with the US JV Equity, the “JV Equity Interests”) in FCA-Fasemex, S. de R.L. de C.V., an entity organized under the laws of Mexico (“Production JV”), and FCA-Fasemex Enterprise, S. de R.L. de C.V., an entity organized under the laws of Mexico (“Services JV,” and, collectively, with the Production JV, the “MX JV Companies” and, together with the US JV, the “JV Companies”).

E. Buyer desires to acquire from Sellers all of the JV Equity Interests owned by them and each Seller desires to sell, assign, transfer and convey to Buyer all of such Seller’s JV Equity Interest, pursuant to the terms and conditions of this Agreement.

AGREEMENT

Now, therefore, in consideration of the premises and the representations and warranties and mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:

Article I
SALE AND PURCHASE

1.1 Sale and Purchase of JV Equity Interests. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Sellers shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire from Sellers, all of the JV Equity Interests presently owned by Sellers, comprising 50% of the outstanding equity interests of each of the JV Companies, free and clear of all Liens, in exchange for the delivery by Buyer, in accordance with Section 1.2, of the aggregate purchase price consisting of (a) $172,500 (the “Closing Cash”), by wire transfer of immediately available funds within one business day after Closing, and (b) 2,257,234 shares of Parent Common Stock (the “Consideration Shares”), such Closing Cash and Consideration Shares to be allocated to Sellers in proportion to the agreed relative fair market value of the respective JV Equity Interest presently held by each Seller as set forth on Section 1.1 of the Disclosure Schedule.

1.2 Consideration Shares. At the Closing, upon the terms and subject to the conditions set forth in this Agreement, Buyer shall (at its election) deliver, or cause to be delivered to each Seller, such Seller’s respective portion of the Consideration Shares by (i) issuance of Consideration Shares in book entry form, or (ii) delivery of an irrevocable instruction letter to Parent’s transfer agent for the delivery of the Consideration Shares in the manner requested by Sellers.

1.3 Closing. The closing (the “Closing”) of the purchase and sale of the JV Equity Interest and the other transactions contemplated by this Agreement shall occur on the date hereof, at such time as shall be determined by the Parties, or on such other date and at such other time determined by the Parties (the “Closing Date”). Absent another determination of the Parties, the Closing shall take place at 10:00 a.m., Chicago time, at the offices of Kelley Drye & Warren LLP, 333 W. Wacker, Suite 2600, Chicago, Illinois 60606.

1.4 Closing Deliveries.

(a) At or prior to Closing, Sellers shall deliver the following to Buyer, unless waived by Buyer:

(i) Execution of assignments of the JV Equity Interests in such form agreed by the Parties;

(ii) Resolutions of the boards of managers of each of the JV Companies approving the transactions contemplated in this Agreement and the Associated Agreements and approval of amended and restated operating agreements (or comparable governing documents) of each of the JV Companies, each in such form reasonably acceptable to Buyer (the “JV Company Board Resolutions”), executed by each of the Sellers’ designees on the boards of managers of the JV Companies;

(iii) Resignations of each of each Seller’s designees on the boards of managers of the JV Companies in such form reasonably acceptable to Buyer;

(iv) The Investor Rights Agreement, duly executed by each of the Sellers, in such form agreed by the Parties (the “IRA”);

(v) The Amended and Restated Lease, duly executed by Fasemex Mexico, as landlord thereunder, in such form agreed by the Parties (the “A/R Lease”); and

(vi) The Royalty Agreement, duly executed by each of the Sellers, in such form agreed by the Parties (the “Royalty Agreement”); and

(vii) Such other agreements or instruments agreed by the Parties.

(b) At or prior to Closing (except as set forth below), Buyer (or Parent as applicable) shall deliver the following to the Sellers, unless waived by Seller:

(i) Evidence of delivery of the Consideration Shares consistent with Section 1.2;

(ii) The Closing Cash in accordance with the wire instruction furnished by Sellers, within one business day after Closing;

(iii) The JV Company Board Resolutions executed by each of Buyer’s designees on the boards of managers of the JV Companies;

(iv) The IRA, duly executed by Parent;

(v) The Royalty Agreement, duly executed by Parent; and

(vi) The A/R Lease, duly executed by Projection JV, as tenant; and

(vii) Such other agreements or instruments agreed by the Parties.

1.5 Purchase Price Allocation; Tax. The Consideration Shares shall be allocated to each of Sellers in the amounts specified on Section 1.1 of the Disclosure Schedule, which proportions reflect the Parties’ agreement as to the relative fair market values of the JV Equity Interests of Sellers. Any tax (transfer or otherwise) related to the transfer of the JV Equity Interests, if any, shall be borne by Sellers.

Article II
REPRESENTATIONS AND WARRANTIES REGARDING EACH SELLER

As a material inducement to Buyer and Parent to enter into this Agreement and to consummate the transactions contemplated by this Agreement, each Seller, separately, hereby represents and warrants to Buyer, as of the date of this Agreement, as follows:

2.1 Organization and Authority. Each Seller is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite entity power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. Each Seller has all requisite power and authority to enter into this Agreement and the Associated Agreements to which it is a party and to perform its obligations hereunder and thereunder. Each Seller is qualified to do business and is in good standing as a foreign corporation, partnership or other entity, as applicable, in all jurisdictions in which it conducts its business, except where the failure to be so qualified does not and will not, individually or in the aggregate, have a Material Adverse Effect on such Seller or the transactions contemplated by this Agreement.

2.2 Authorization. The execution, delivery and performance by each Seller of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by each Seller of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of each Seller. This Agreement and each of the Associated Agreements have been, in each case to which each Seller is a party, duly executed and delivered by each Seller and constitutes or, in the case of the Associated Agreements, upon execution thereof by all other appropriate parties will constitute, a valid and legally binding obligation of each Seller, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding at equity or at law).

2.3 Consents and Approvals; No Conflicts. Except for any consents or approvals contemplated under this Agreement, the execution, delivery and performance by each Seller of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by each Seller of the transactions contemplated hereby and thereby will not: (i) conflict with or result in a breach of any provision of the certificate of formation, operating agreement, certificate of incorporation or bylaws (or equivalent governing documents) of such Seller, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body, (iii) require the consent or approval of any Person (other than a Governmental Body) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets of the JV Companies under, any of the terms, conditions or provisions of any contract or license to which such Seller is a party or by which it or its assets or property are bound, or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to such Seller.

2.4 Ownership. Each Seller has good and marketable title to its respective JV Equity Interests, and is the sole owner of record and beneficial owner of such JV Equity Interests. Such JV Equity Interests are free and clear of any Liens. Each Seller has the full and unrestricted right, power, and authority to sell and transfer such JV Equity Interests to Buyer. Upon delivery of the JV Equity Interests to Buyer and payment by Parent to Sellers of the Consideration Shares therefor, Buyer will acquire good and marketable title to the JV Equity Interests, free and clear of all Liens. Sellers do not own, or have any other ownership interest in the JV Companies, beneficial or otherwise, or possess any right entitling Sellers to receive any such ownership interest in the JV Companies, other than the JV Equity Interests that are being sold to Buyer at the Closing, which in the aggregate comprise 50% of the outstanding equity interests of the JV Companies, on the terms and subject to the conditions contemplated by this Agreement.

2.5 No Brokers or Finders. No Seller nor any officers, directors, agents, representatives or employees of, or on behalf of, any Seller, has employed any broker or finder or incurred any other liability for any brokerage fees, commissions or finders’ fees in connection with transactions contemplated hereby.

2.6 No Pending Proceedings. There is no pending, or to any Seller’s Knowledge threatened, Proceeding against any Seller or any of its Affiliates that challenges, or seeks to restrain, delay, or prohibit the execution, delivery, and performance of this Agreement or the Associated Agreements. There is not in effect any order, judgment, or decree of any Governmental Body against any Seller or any of its Affiliates enjoining, barring, suspending, prohibiting, or otherwise limiting the right of any Seller to execute and deliver this Agreement and the Associated Agreements to which any Seller will be a party or to perform its material obligations hereunder or thereunder.

2.7 Legal Matters. There are no Proceedings or Claims pending or, to any Seller’s Knowledge, threatened against any Seller or any Seller’s JV Equity Interest or other assets or properties, or any Orders outstanding against any Seller, in each case that would, either individually or in the aggregate, delay, hinder, prevent or otherwise adversely affect any Seller’s ability to perform any Seller’s obligations under this Agreement and the Associated Agreement to which any Seller will be a party or to consummate the transactions contemplated hereby or thereby.

2.8 Securities Representations. Each Seller hereby represents and warrants, and undertakes as follows:

(a) Private Placement. Such Seller is acquiring the Consideration Shares as principal for its own account and not with a view to or for distributing or reselling such Consideration Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Consideration Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute, or regarding the distribution of, such Consideration Shares in violation of the Securities Act or any applicable state securities law (this representation and warranty shall not limit such Seller’s right to sell such Consideration Shares in compliance with applicable US federal and state securities laws).

At the time such Seller was offered the Consideration Shares, it was, and as of the date hereof it is, either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

(b) Sophisticated Investor. Such Seller, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Consideration Shares, and has so evaluated the merits and risks of such investment. Such Seller is able to bear the economic risk of an investment in the Consideration Shares and, at the present time, is able to afford a complete loss of such investment.

(c) Restricted Securities. Each Seller acknowledges that the Consideration Shares are “restricted securities” that have not been registered under the Securities Act or any applicable state securities law. Each Seller further acknowledges that, absent an effective registration statement under the Securities Act covering the resale of the Consideration Shares, the Consideration Shares may only be offered, sold or otherwise transferred (i) to Parent, (ii) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, if applicable, or (iii) pursuant to an exemption from registration under the Securities Act.

(d) Access to Information. Each Seller acknowledges that it has had the opportunity to review this Agreement and any Associated Agreements to which it will be a party (including all exhibits and schedules thereto) and the SEC Documents and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Buyer and Parent concerning the terms and conditions of the offering to it of the Consideration Shares and the merits and risks of investing in the Consideration Shares; (ii) access to information about Buyer and Parent and its financial condition, results of operations, business, properties, management, and prospects sufficient to enable it to evaluate its investment in the Consideration Shares; and (iii) the opportunity to obtain such additional information that Buyer and Parent possesses or can acquire without unreasonable effort or expense that was necessary to make an informed investment decision with respect to the investment in the Consideration Shares.

(e) General Solicitation. The Consideration Shares are not being purchased by any Seller as a result of any advertisement, article, notice or other communication regarding the Consideration Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to such Seller’s Knowledge, any other general solicitation or general advertisement.

2.9 No Prohibited Transactions. Each Seller has not engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any United States, Mexico, or to each Seller’s Knowledge, international or other anti-money laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto (including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as amended, or any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or (ii) in contravention of Executive Order No. 13224 issued by the President of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time (“Executive Order 13224”) or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time. Such Seller is not a Person (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most current list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to such Seller’s Knowledge, has not been associated with or is otherwise affiliated with any Person listed above.

2.10 Compliance with Anti-Bribery Laws. Each Seller has not engaged in any dealing or transactions, directly or indirectly, (i) in contravention of any applicable United States, Mexico, or to each Seller’s Knowledge, international or other anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by the U.S. Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or other export controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).

2.11 Disclosures. No representation or warranty made by any Seller in this Agreement (including this Article II) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.

Article III
REPRESENTATIONS AND WARRANTIES REGARDING THE JV COMPANIES

As a material inducement to Buyer and Parent to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Sellers, separately, hereby represent and warrant to Buyer and Parent, as of the date of this Agreement, as follows:

3.1 Organization and Authority. To Sellers’ Knowledge, the US JV and the MX JV Companies are duly organized, validly existing and in good standing under the laws of their jurisdiction of organization, and have the requisite entity power and authority to own, lease and operate their properties and to conduct their business as now conducted by them. To Sellers’ Knowledge the US JV and the MX JV Companies are qualified to do business and are in good standing as foreign corporations, partnerships or other entities, as applicable, in all jurisdictions in which they conducts their business, except where the failure to be so qualified does not and will not, individually or in the aggregate, have a Material Adverse Effect on the JV Companies or the transactions contemplated by this Agreement.

3.2 Undisclosed Liabilities. To the Sellers’ Knowledge, the MX JV Companies have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise (“Liabilities”), except (a) those which are adequately reflected or reserved against in the MX JV Companies’ balance sheets as of June 30, 2020, (b) those which have been incurred in the ordinary course of business consistent with past practice since such date and which are not, individually or in the aggregate, material in amount, and (c) those which do not and will not, individually or in the aggregate, have a Material Adverse Effect on the MX JV Companies or the transactions contemplated by this Agreement.

3.3 Contracts.

(a) Section 3.3 of the Disclosure Schedule lists each of the Contracts that are material to any MX JV Company (collectively, the “Material Contracts”).

(b) Each Material Contract is valid and binding on the MX JV Company that is party thereto in accordance with its terms and is in full force and effect. None of the MX JV Companies or, to Sellers’ Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.

3.4 Compliance with Laws; Permits and Licenses. Except as set forth in Section 3.4 of the Disclosure Schedule, each of the MX JV Companies is in possession of the franchises, authorizations, accreditations, licenses, permits, certificates, approvals, clearances, consents, registrations, certificates of authority, Orders or similar rights issued, granted or obtained by or from any Governmental Body listed in Section 3.4 of the Disclosure Schedule (collectively, “Permits”). Each of the MX JV Companies is currently in possession of all Permits required under applicable Law, and has complied, and is now complying, with all Laws applicable to their business, properties or assets, except where any failure has not and will not, individually or in the aggregate, have a Material Adverse Effect on the MX JV Companies or the transactions contemplated by this Agreement.

3.5 Transactions with Related Persons. Except as set forth in Section 3.5 of the Disclosure Schedule, or as related to the Parent or any of the Parent’s Affiliates, no officer, director, employee or equityholder of any MX JV Company or any of their respective Affiliates, and no member of the “immediate family”, as such term is defined under Rule 16a-1(e) of the Exchange Act of any such person, nor any corporation, partnership, limited liability company or other entity in which any of such Persons has a direct or indirect interest, has, directly or indirectly:

(a) any interest (other than as a holder of not more than one percent (1%) of the issued and outstanding securities of a corporation whose securities are traded on a national securities exchange in which such Person is a passive investor with no involvement in the management or operations thereof) in any Person engaged in the Business;

(b) any interest (other than as a holder of not more than one percent (1%) of the issued and outstanding securities of a corporation whose securities are traded on a national securities exchange in which such Person is a passive investor with no involvement in the management or operations thereof) in any Person which purchases any goods or services from, or sells or furnishes any goods or services to, any JV Company;

(c) a beneficial interest in any Contract to which any MX JV Company is a party or by which any MX JV Company or any of their respective assets or properties may be bound or affected (except, with respect to employees of the MX JV Companies, for written employment contracts listed in Section 3.5(c) of the Disclosure Schedule); or otherwise receives any rights or benefits from, or is the beneficiary of any obligations of, any MX JV Company (except, with respect to employees of the MX JV Companies, for employment-related obligations incurred in the Ordinary Course of Business on arms-length terms that are fair to such JV Company); or

(d) any interest or Claim against any of the MX JV Companies or any of their respective assets or properties which could materially and adversely affect such MX JV Company’s assets or properties or title to or right to use its assets or properties, or to conduct the Business. No assets or properties (whether tangible or intangible) of any of the Persons described in this subsection (d) are used by the MX JV Companies in the conduct of the Business except as set forth in Schedule 3.5(d).

3.6 No Unauthorized Actions. No Seller has, and to the Sellers’ Knowledge, no officers, directors, employees, agents or other representatives of the MX JV Companies has taken any action with respect to the MX JV Companies without first obtaining the necessary consent in accordance with such MX JV Company’s certificate of formation, operating agreement, certificate of incorporation, bylaws or corresponding powers of attorney (or equivalent governing documents).

3.7 Condition and Sufficiency of Assets. To the Sellers’ Knowledge, except as set forth in Section 3.7 of the Disclosure Schedule, the furniture, fixtures, vehicles and other items of tangible personal property of the MX JV Companies are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such furniture, fixtures, vehicles and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The furniture, fixtures, vehicles and other items of tangible personal property currently owned or leased by the MX JV Companies are sufficient for the continued conduct of the MX JV Companies’ business after the Closing in substantially the same manner as conducted prior to the Closing.

3.8 No Pending Proceedings. There is no pending, or to any Seller’s Knowledge, threatened, Proceeding against any of the MX JV Companies. There is not in effect any order, judgment, or decree of any Governmental Body against any of the MX JV Companies.

3.9 Disclosures. No representation or warranty made by any Seller in this Agreement (including this Article III) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.

3.10 Disclaimer of Other Representations and Warranties. BUYER ACKNOWLEDGES THAT NONE OF SELLERS OR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING SELLERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING SELLERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.

Article IV
REPRESENTATIONS AND WARRANTIES REGARDING BUYER

As a material inducement to Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Buyer hereby represents and warrants to Sellers, as of the date of this Agreement, as follows:

4.1 Organization and Authority. Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. Buyer has all requisite power and authority to enter into this Agreement and the Associated Agreements to which it is a party and to perform its obligations hereunder and thereunder. Buyer is qualified to do business and is in good standing as a foreign corporation, partnership or other entity, as applicable, in all jurisdictions in which it conducts its business, except where the failure to be so qualified does not and will not, individually or in the aggregate, have a Material Adverse Effect on Buyer.

4.2 Authorization. The execution, delivery and performance by Buyer of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Buyer. This Agreement and each of the Associated Agreements have been, in each case to which it is a party, duly executed and delivered by Buyer and constitutes or, in the case of the Associated Agreements, upon execution thereof by all other appropriate parties will constitute, a valid and legally binding obligation of Buyer, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding at equity or at law).

4.3 Consents and Approvals; No Conflicts. Except for any consents or approvals contemplated under this Agreement, the execution, delivery and performance by Buyer of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by Buyer of the transactions contemplated hereby and thereby will not: (i) conflict with or result in a breach of any provision of the certificate of formation or operating agreement of Buyer, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body, (iii) require the consent or approval of any Person (other than a Governmental Body) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets attributed to the JV Companies under, any of the terms, conditions or provisions of any contract or license to which Buyer is a party or by which it or its assets or property are bound, or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer.

4.4 No Brokers or Finders. Neither Buyer nor any of its officers, directors or employees, on behalf of Buyer, has employed any broker or finder or incurred any other liability for any brokerage fees, commissions or finders’ fees in connection with transactions contemplated hereby.

4.5 No Pending Proceedings. There is no pending, or to Buyer’s Knowledge, threatened, Proceeding against Buyer or any of its Affiliates that challenges, or seeks to restrain, delay, or prohibit the execution, delivery, and performance of this Agreement. There is not in effect any order, judgment, or decree of any Governmental Body against Buyer or any of its Affiliates enjoining, barring, suspending, prohibiting, or otherwise limiting the right of Buyer to execute and deliver this Agreement or to perform its material obligations hereunder.

4.6 No Prohibited Transactions. Buyer has not engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any United States, Mexico, or to Buyer’s Knowledge, international or other anti-money laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto (including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as amended, or any order issued with respect to anti-money laundering by OFAC, or (ii) in contravention of Executive Order No. 13224 or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time. Buyer is not a Person (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most current list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to Buyer’s Knowledge, has not been associated with or is otherwise affiliated with any Person listed above.

4.7 Compliance with Anti-Bribery Laws. Buyer has not engaged in any dealing or transactions, directly or indirectly, (i) in contravention of any applicable United States, Mexico, or to Buyer’s Knowledge, international or other anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by the U.S. Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or other export controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).

4.8 Disclosure. No representation or warranty made by Buyer in this Agreement (including this Article IV) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.

4.9 Disclaimer of Other Representations and Warranties. SELLERS ACKNOWLEDGE THAT NONE OF BUYER OR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND SELLERS ARE NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.

Article V
REPRESENTATIONS AND WARRANTIES REGARDING PARENT

As a material inducement to Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Parent hereby represents and warrants to Sellers, as of the date of this Agreement, as follows:

5.1 Issuance of the Consideration Shares. The Consideration Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable.

5.2 Capitalization. As of October 16, 2020, without giving effect to the Closing, Parent’s authorized capital stock consists of 50,000,000 authorized shares of Parent Common Stock, of which 13,277,845 shares are issued and outstanding, 2,500,000 authorized shares of preferred stock, par value of $0.01, of which none are issued and outstanding. The Consideration Shares represent, in the aggregate, 17% of the issued and outstanding shares of Parent Common Stock immediately prior to Closing. All of the outstanding shares of capital stock of the Parent have been validly issued and are fully paid and non-assessable.

5.3 Exchange Act Registration; Trading Market. Parent Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Trading Market, and other than as disclosed in the SEC Documents, Parent has taken no action designed to, or likely to have the effect of, terminating the registration of Parent Common Stock under the Exchange Act or delisting Parent Common Stock from the Trading Market, nor has Parent received any notification that the SEC or the Trading Market is contemplating terminating such registration or listing.

5.4 Securities Representations.

(a) Regulation S.

(i) Parent is a “reporting issuer” (as defined in Regulation S).

(ii) Neither Buyer nor Parent, nor any of their affiliates (as defined in Rule 501 under the Securities Act) nor any person acting on its or their behalf, has engaged in any directed selling efforts (as defined in Regulation S) in the United States in connection with the offering of the Consideration Shares to MX Sellers and Parent has complied with the offering restriction requirements of Regulation S.

(iii) Assuming the accuracy of the representations and warranties of MX Sellers contained in Section 2.8 and their compliance with their agreements set forth in this Agreement, no registration of the Consideration Shares under the Securities Act is required for the offer and sale of the Consideration Shares to MX Sellers in the manner contemplated by this Agreement.

(b) Regulation D.

(i) Assuming the accuracy of the representations and warranties of US Seller contained in Section 2.8 and its compliance with its agreements set forth in this Agreement, no registration of the Consideration Shares under the Securities Act is required for the offer and sale of the Consideration Shares to US Seller in the manner contemplated by this Agreement.

(ii) None of Parent, its affiliates (as defined in Rule 501(b) of Regulation D promulgated under the Securities Act) or any person acting on its or their behalf (other than US Seller, as to which no representation or warranty is given) has, directly or indirectly, made offers or sales of any security or solicited offers to buy any security which is or would be integrated with the sale of the Consideration Shares in a manner that would require the Consideration Shares to be registered under the Securities Act.

(iii) None of Parent, its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) or any person acting on its or their behalf (other than US Seller, as to which no representation or warranty is given) has made offers or sales of the Consideration Shares or solicited offers to buy the Consideration Shares by means of any form of “general solicitation” or “general advertising” (within the meaning of Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.

5.5 Organization and Authority. The Parent is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. The Parent has all requisite power and authority to enter into this Agreement and the Associated Agreements, if applicable, to which it is a party and to perform its obligations hereunder and thereunder. The Parent is qualified to do business and is in good standing as a foreign corporation, partnership or other entity, as applicable, in all jurisdictions in which it conducts its business, except where the failure to be so qualified does not and will not, individually or in the aggregate, have a Material Adverse Effect on the Parent.

5.6 Authorization. The execution, delivery and performance by the Parent of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by the Parent of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Parent. This Agreement and each of the Associated Agreements have been, in each case to which each Seller is a party, duly executed and delivered by the Parent and constitutes or, in the case of the Associated Agreements, upon execution thereof by all other appropriate parties will constitute, a valid and legally binding obligation of the Parent, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding at equity or at law).

5.7 Consents and Approvals; No Conflicts. Except as set forth on Section 5.7 of the Disclosure Schedule or any consents or approvals contemplated in this Agreement, the execution, delivery and performance by the Parent of this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by the Parent of the transactions contemplated hereby and thereby will not: (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws of the Parent, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body, by Parent, (iii) require the consent or approval of any Person (other than a Governmental Body) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets attributed to the JV Companies under, any of the terms, conditions or provisions of any contract or license to which Parent is a party or by which it or its assets or property are bound, or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to the Parent.

5.8 Valid Issuance of Consideration Shares. The Consideration Shares have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, the Consideration Shares will be validly issued, fully paid and non-assessable, and the Consideration Shares shall be free and clear of any Liens granted by Parent or its Affiliates.

5.9 Right of First Refusal; Stockholders Agreement; Voting and Registration Rights. Except as described in the SEC Documents or as provided in federal or state securities laws or the Delaware General Corporation Law, or as contemplated in this Agreement or the Associated Agreements, there are no provisions of the charter or incorporation documents of Parent, and no material contracts that may: (a) alter or restrict the voting rights of the Sellers with respect to the Consideration Shares in their capacity as stockholders of Parent, (b) require the vote of more than a simple majority of the Parent’s issued and outstanding common stock, voting together as a single class, with respect to any corporate matter to be brought before the holders of common stock for a vote, or (d) entitle any party to nominate or elect any director of Parent or require any of Parent’s stockholders to vote for any such nominee or other person as a director of Parent.

5.10 No General Solicitation. Neither the Parent nor any other Person acting on Parent’s behalf, has directly or indirectly engaged in any form of general solicitation or general advertising with respect to the Consideration Shares, nor have any of such Persons made any offers or sales of any security of Parent or solicited any offers to buy any security of the Parent under circumstances that would require registration of the Consideration Shares under the Securities Act.

5.11 SEC Documents. Parent has timely filed, or cured any defect relating to timely filing, all SEC Documents since January 1, 2017. None of Parent’s subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act. Each SEC Document (a) as of the time it was filed (or if subsequently amended, when amended), complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and (b) did not, at the time it was filed (or if subsequently amended or superseded by an amendment or other SEC Document, then, on the date of such subsequent filing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. All agreements to which the Parent is a party or to which the property or assets of Parent are subject, which are required to be described in or filed as exhibits to an SEC report, have been so described or filed.

5.12 Financial Statements. The financial statements of the Company included in the SEC Documents comply in all material respects with the rules and regulations of the Securities and Exchange Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Parent as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

5.13 Absence of Litigation. There is no claim, action, suit, arbitration, investigation or other proceeding pending against, or to Parent’s Knowledge, threatened against or affecting, Parent, any of its subsidiaries or any of their respective properties or, to Parent’s Knowledge, any of their respective officers or directors before any Governmental Body, except for any claim, action, suit, arbitration, investigation or other proceeding that is not expected to have a Material Adverse Effect on the Parent.

5.14 Taxes. Parent has properly filed all federal, foreign, state, local, and other tax returns and reports which are required to be filed by them, which returns and reports were properly completed and are true and correct in all material respects, and all material taxes, interest, and penalties due and owing have been timely paid. There are no outstanding waivers or invalid extensions of time with respect to the assessment or audit of any tax or tax return of Parent, or claims now pending or matters under discussion between Parent and any taxing authority in respect of any tax of Parent.

5.15 Employee Matters. Parent has disclosed in the SEC Documents any “employee benefit plan” subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which it maintains for employees and is required to be disclosed in the SEC Documents under applicable Law.

5.16 Compliance with Laws. The Parent is in material compliance with the terms of, all franchises, permits, licenses and other rights and privileges necessary to conduct its present businesses and is in compliance with and has not violated, in any material respect, (a) any judgments, orders, decrees, injunctions or writs applicable to the Parent, or (b) any applicable provisions of any laws, statutes, ordinances, rules or regulations applicable to the conduct of its business.

5.17 Absence of Changes. Since the date of the latest SEC Documents and except as contemplated by, or in connection with, this Agreement and the Associated Agreements, there has not been any Material Adverse Effect or any event or events that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect on the Parent.

5.18 [Reserved].

5.19 No Prohibited Transactions. The Parent has not engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any United States, Mexico, or to Parent’s Knowledge, international or other anti-money laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto (including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as amended, or any order issued with respect to anti-money laundering by OFAC, or (ii) in contravention of Executive Order No. 13224 or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time. Such Seller is not a Person (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most current list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to Parent’s Knowledge, has not been associated with or is otherwise affiliated with any Person listed above.

5.20 Compliance with Anti-Bribery Laws. The Parent has not engaged in any dealing or transactions, directly or indirectly, (i) in contravention of any applicable United States, Mexico, or to Parent’s Knowledge, international or other anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by the U.S. Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or other export controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).

5.21 No Brokers or Finders. Neither Parent, nor any officers, directors, agents, representatives or employees of, or on behalf of, Parent, has employed any broker or finder or incurred any other liability for any brokerage fees, commissions or finders’ fees in connection with transactions contemplated hereby.

5.22 Disclosure. No representation or warranty made by Parent in this Agreement (including this Article V) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.

5.23 Disclaimer of Other Representations and Warranties. EACH SELLER ACKNOWLEDGES THAT NONE OF BUYER, PARENT OR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING BUYER OR PARENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND SUCH SELLER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING BUYER OR PARENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.

Article VI
INDEMNIFICATION

6.1 Survival of Representations and Warranties. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is two (2) years from the Closing Date; provided, that the representations and warranties in Sections 2.1, 2.2, 2.4, 2.5, 3.1, 4.1, 4.2, 4.4, 5.1, 5.2, 5.5, 5.6, and 5.8 (collectively, the “Fundamental Representations”) shall survive indefinitely. All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

6.2 Indemnification of the Parties.

(a) From and after the Closing (but subject to the terms and conditions of this Article VI), each Seller shall indemnify, defend and hold harmless, Buyer, each of Buyer’s Affiliates (including Parent) and each of its and their respective officers, directors, managers, members, partners, equityholders, employees, representatives, agents, successors and assigns (collectively, the “Buyer Indemnitees”) from and against, and pay on behalf of and reimburse each Buyer Indemnitee in respect of all Losses incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, any Buyer Indemnitee arising out of, resulting from or relating to:

(i) any breach of any representation or warranty of such Seller (but not the other Sellers) set forth in Article II;

(ii) any breach of any representation or warranty of such Seller (but not the other Sellers) set forth in Article III;

(iii) the breach of any covenant or agreement made by or to be performed by such Seller (but not the other Sellers) under this Agreement, other than those set forth in Article VIII which shall be governed by Section 6.2(a)(iv) below; and

(iv) the nonperformance or breach of any restrictive covenants of such Seller (but not the other Sellers) set forth in Article VIII.

(b) Sellers’ liability under Section 6.2(a) shall be subject to the following limitations and conditions:

(i) Sellers shall only be liable for 50% of any Losses under Section 6.2(a)(ii);

(ii) Sellers shall be liable under Section 6.2(a)(i) or 6.2(a)(ii) only after the amount of a Loss claimed by Buyer exceeds $25,000, and then only to the extent of such excess per such particular case (after incorporating the limitation set forth in Section 6.2(b)(i));

(iii) Sellers shall be liable under Section 6.2(a)(i) or 6.2(a)(ii) only after the aggregate amount of all Losses claimed under Section 6.2(a)(i) and 6.2(a)(ii), in the aggregate, exceeds $250,000, and then only to the extent of such excess (after incorporating the limitations set forth in Section 6.2(b)(i) and 6.2(b)(ii));

(iv) Fasemex Mexico shall be liable on a joint and several basis with the other Sellers for any Losses under 6.2(a)(ii) or 6.2(a)(iii);

(v) Each Seller’s aggregate liability under Section 6.2(a) (after incorporating the other conditions set forth in this Section 6.2(b)) shall be limited to 50% of the Closing Value of the Consideration Shares allocated such Seller at Closing under Section 1.1; provided that with respect to Fasemex Mexico, such limitation shall be equal to 50% of the Closing Value of the Consideration Shares allocated to all Sellers at Closing; and

(vi) Notwithstanding anything contained in this Section 6.2(b):

(A) the limitations under Section 6.2(b)(ii), 6.2(b)(iii), and 6.2(b)(v) shall not apply in the case of any inaccuracy or breach of any Fundamental Representation; provided, that each Seller’s aggregate liability shall be limited to 100% of the Closing Value of the Consideration Shares allocated such Seller at Closing under Section 1.1; provided, further, that with respect to Fasemex Mexico, such limitation shall be equal to 100% of the Closing Value of the Consideration Shares allocated to all Sellers at Closing; and

(B) none of the limitations under this Section 6.2(b) shall apply in the case of fraud by the Sellers (as determined by a court of competent jurisdiction).

(c) From and after the Closing (but subject to the terms and conditions of this Article VI), Buyer shall indemnify, defend and hold harmless, each Seller and each of the Sellers’ Affiliates and each of its and their respective officers, directors, managers, members, partners, equityholders, employees, representatives, agents, successors and assigns (collectively, the “Seller Indemnitees”) from and against, and pay on behalf of and reimburse each Seller Indemnitee in respect of, all Losses incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, any Seller Indemnitee arising out of, resulting from or relating to:

(i) any breach of any representation or warranty of Buyer set forth in Article IV; and

(ii) the breach of any covenant or agreement made by or to be performed by Buyer under this Agreement.

(d) Buyer’s liability under Section 6.2(c) shall be limited as follows:

(i) Buyer shall be liable under Section 6.2(c)(i) only after the amount of a Loss claimed by any or all Sellers exceeds $25,000, and then only to the extent of such excess per such particular case;

(ii) Buyer shall be liable under Section 6.2(c)(i) only after the aggregate amount of all Losses claimed under Section 6.2(c)(i) exceeds $250,000 (after incorporating the limitation set forth in Section 6.2(d)(i)), and then only to the extent of such excess;

(iii) Parent shall be liable on a joint and several basis with Buyer for any Losses under 6.2(c)(i) or 6.2(c)(ii);

(iv) Notwithstanding anything contained in this Section 6.2(d), none of the limitations set forth in this Section 6.2(d) shall apply to any breach by Buyer of one or more Fundamental Representations.

(e) From and after the Closing (but subject to the terms and conditions of this Article VI), Parent shall indemnify, defend and hold harmless each Seller Indemnitee from and against, and pay on behalf of and reimburse each Seller Indemnitee in respect of, any and all Losses incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, any Seller Indemnitee arising out of, resulting from or relating to:

(i) any breach of any representation or warranty of Parent set forth in Article V; and

(ii) the breach of any covenant or agreement made by or to be performed by Parent under this Agreement.

(f) Parent’s liability under Section 6.2(e) shall be limited as follows:

(i) Parent shall be liable under Section 6.2(e)(i) only after the amount of a Loss claimed by any or all Sellers exceeds $25,000), and then only to the extent of such excess per such particular case;

(ii) Parent shall be liable under Section 6.2(e)(i) only after the aggregate amount of all Losses claimed under Section 6.2(e)(i) (after incorporating the limitation set forth in Section 6.2(f)(i) exceeds $250,000), and then only to the extent of such excess;

(iii) Notwithstanding the foregoing, none of the limitations set forth in this Section 6.2(f) shall apply to any breach by Parent of one or more Fundamental Representations.

(g) In addition to the limitations set forth in Section 6.2(d) and Section 6.2(f), the aggregate liability of Buyer under Section 6.2(c) and Parent under Section 6.2(e) shall be limited to 50% of the aggregate Closing Value of the Consideration Shares issued at Closing under Section 1.1, except in the case of a breach of a Fundamental Representation by Buyer or Parent, in which the aggregate liability of Buyer and Parent shall be limited to 100% of the aggregate Closing Value of the Consideration Shares issued at Closing. None of the limitations under Section 6.2(d) and Section 6.2(f) shall apply in the case of fraud by Buyer or Seller (as determined by a court of competent jurisdiction).

6.3 Indemnification Claim Procedure.

(a) If any Buyer Indemnitee or Seller Indemnitee, as applicable (in the capacity as a Person seeking indemnification under this Article VI, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third Party Claim that the Indemnified Party believes will entitle the Indemnified Party to indemnification from Buyer or any Seller or Sellers under this Article VI (in the capacity as a Person against whom indemnification is sought under this Article VI, the “Indemnifying Party”), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a notice thereof (a “Notice of Claim”) describing such matter in reasonable detail and, to the extent reasonably estimable, the estimated Losses resulting therefrom; provided, however, that any failure to give such notification on a timely basis or to provide any particular details therein shall not relieve the Indemnifying Party of its obligation to indemnify any Indemnified Party hereunder except to the extent that such failure to provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party to defend against such matter.

(b) The Indemnifying Party shall respond to the Indemnified Party within thirty (30) days following the date that the Notice of Claim is delivered to pursuant to Section 6.3(a) (the “Response Period”), specifying whether or not the Indemnifying Party disputes the claim(s) described in the Notice of Claim, describe in reasonable detail the basis for each such dispute and include reasonable supporting materials (a “Claim Response”). If Indemnifying Party fails to give a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) described in the related Notice of Claim. If the Indemnifying Party gives a Claim Response within the Response Period but does not in such Claim Response dispute all of the claim(s) made in the related Notice of Claim, the Indemnifying Party shall be deemed not to dispute the undisputed claim(s) described in the related Notice of Claim. If the Indemnifying Party elects not to dispute any claim described in a Notice of Claim, whether by failing to give a timely Claim Response or otherwise, then the amount of Losses alleged in such Notice of Claim shall be conclusively deemed to be an obligation of the Indemnifying Party and the Indemnified Party shall be paid the amount specified in the Notice of Claim as provided in Section 6.5 (it being acknowledged that the amount of any estimated Losses may be revised by the Indemnified Party from time to time as the same are determined, all of which Losses shall be indemnified by the Indemnifying Party). If the Indemnifying Party delivers a Claim Response within the Response Period indicating that the Indemnifying Party disputes one or more of the matters identified in the Notice of Claim, Buyer or Parent, as the case may be, and the applicable Seller or Sellers (with respect to any claim by the Buyer Indemnitees for indemnification pursuant to Section 6.2(a)) shall promptly meet in good faith to resolve the dispute. If Buyer or Parent, as the case may be, and the Sellers, as applicable, do not resolve a dispute regarding a claim within thirty (30) days after the delivery of the Claim Response, either the Indemnifying Party or the Indemnified Party may submit the dispute to a court of competent jurisdiction set forth in Section 9.3(a) for resolution. Upon resolution of such dispute, whether by agreement or by a court of competent jurisdiction, if it is determined that any indemnification payment is required pursuant to this Article VI such amount shall be paid to the Indemnified Party as provided in Section 6.5.

6.4 Procedures Relating to Indemnification for Third Party Claims. With respect to any matter for which an Indemnified Party is entitled to indemnification from an Indemnifying Party under this Article VI that relates to a Proceeding or Claim by a third party (a “Third Party Claim”), the Indemnified Party shall provide to the Indemnifying Party a Notice of Claim relating to such Third Party Claim promptly after receiving written notification of such Proceeding or Claim; provided, however, that any failure to give such notification on a timely basis shall not relieve the Indemnifying Party of its obligation to indemnify any Indemnified Party hereunder except to the extent that such failure to provide or delay in providing actually and materially prejudices the ability of the Indemnifying Party to defend against such Third Party Claim. The Indemnifying Party will be entitled to participate in the defense of any Third Party Claim that is the subject of a notice given by the Indemnified Party pursuant to this Section 6.4. In addition, upon written notice given by the Indemnified Party twenty (20) days of the notice of such Third Party Claim, the Indemnifying Party will have the right to defend the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party. In such event, the Indemnified Party may retain separate co-counsel at the cost of the Indemnifying Party and participate in the defense of the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party unless such judgment, compromise or settlement (i) provides for the payment of money as sole relief for the claimant and (ii) subject to the making of such payment, results in the full and general release of all Indemnified Parties from all liabilities arising from or relating to the Third Party Claim. The Indemnifying Party will not be bound by the entry of any judgment consent to, or any compromise or settlement effected, without its prior written consent. If the Indemnifying Party does not deliver the notice contemplated by this Section 6.4 within twenty (20) days after the Indemnifying Party has received notice of the Third Party Claim pursuant to this Section 6.4, the Indemnified Party may defend, and may consent to the entry of any judgment or enter into any compromise or settlement with respect to, the Third Party Claim, and the Indemnifying Party shall be permitted to participate in such defense at its sole cost and expense.

6.5 Payment of Amounts Due. Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VI, the Indemnifying Party shall satisfy its obligations within five (5) business days of such final, non-appealable adjudication by wire transfer of immediately available funds. The Parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such five (5) business day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to but excluding the date such payment has been made at a rate equal to the prime rate in effect from time to time (as published in The Wall Street Journal) plus two (2) percentage points, until paid in full.

6.6 Additional Limitations. Notwithstanding anything contained in this Article VI, in no event will any Indemnified Party be entitled to recover or make a claim for any amounts in respect of, and in no event will “Losses” be deemed to include consequential, exemplary or punitive damages, lost profits or revenues, or business interruption. Furthermore, no Indemnified Party shall be entitled to indemnification or reimbursement under any provisions of this Agreement for any amount to the extent such party has been indemnified or reimbursed for such amount under any other provision of this Agreement or the Ancillary Agreements, or to the extent that recovery has already been made under this Agreement or the Ancillary Agreements in respect of the same subject matter and in the amount of the Loss claimed.

6.7 Exclusive Remedy. Notwithstanding anything to the contrary in this Agreement, the indemnification rights set forth in this Article VI shall be the sole and exclusive remedies of: (a) the Buyer Indemnitees for any breach of or inaccuracy in any of the representations and warranties of the Sellers, or any of them, contained in this Agreement; and (b) the Seller Indemnitees for any breach of or inaccuracy in any of the representations and warranties of Buyer or Parent contained in this Agreement. For the avoidance of doubt, (y) the limitation set forth in this Section 6.7 shall not apply to (i) any of the Associated Agreements other than this Agreement, (ii) any breach of this Agreement resulting from fraud, or (iii) any injunctive or equitable remedies of any Party; and (z) to the extent that any matter is subject to indemnification under alternative provisions of this Agreement, an Indemnified Party may seek such indemnification under such alternative provisions of this Agreement, but it may not recover duplicate amounts for its Losses relating to such matter.

Article VII
OTHER AGREEMENTS AND POST-CLOSING COVENANTS

7.1 Fasemex Mexico Supply Agreement. From and after the Closing, Fasemex Mexico and their Affiliates shall have the opportunity to bid to supply fabricated steel component parts and other items to the JV Companies and the Parties shall negotiate in good faith regarding such opportunities.

7.2 Restrictions on Consideration Shares; Legends.

(a) The Consideration Shares have not been registered under the Securities Act, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an effective registration or in accordance with Regulation S, if applicable, or pursuant to another exemption from the registration requirements of the Securities Act. Each Seller undertakes that it, its affiliates (as defined in Rule 501 under the Securities Act), and any persons acting on its or their behalf will comply with the restrictions regarding transfers of the Consideration Shares under Rule 144 or another applicable exemption, with respect to US Seller, or Regulation S, with respect to MX Sellers.

(b) The Consideration Shares, when issued and delivered pursuant to this Agreement, will be “restricted securities” as that term is defined in Rule 144 and a restrictive legend or notation in substantially the following form will be placed on the Consideration Shares:

For Consideration Shares issued to US Seller:

“The securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with applicable state securities laws as evidenced by a legal opinion of counsel to the transferor to such effect, the substance of which shall be reasonably acceptable to the issuer of such securities.”

For Consideration Shares issued to MX Sellers:

“The securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until six (6) months after the Closing Date, except in either case in accordance with Regulation S under the Securities Act. No hedging transaction can be conducted with regard to the securities except as permitted by the Securities Act. Terms used above have the meanings given to them by Regulation S.”

7.3 Further Assurances. From time to time, as and when requested by Buyer, on the one hand, or any of Sellers, on the other hand, each Party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as the requesting Party may reasonably deem necessary or desirable (and at the expense of such requesting Party) to evidence and effectuate the transactions contemplated by this Agreement.

7.4 Seller Undertakings. If, after the Closing, any Seller or any Affiliate of such Seller identifies any tangible or intangible asset, property or right in its possession that is property of the JV Companies, then such Seller shall convey and deliver, or cause such Affiliate to convey and deliver, such asset, property or right to the appropriate JV Company (or to such JV Company as Buyer may designate), accompanied by appropriate instruments of transfer, but without any further consideration being required from Buyer or any of the JV Companies in connection with such conveyance and delivery.

7.5 Release. Except as otherwise set forth in the Termination Agreement, each Party, on its own behalf and on behalf of its Affiliates and any other Person that may claim by, through or under such Party, and/or any its respective Affiliates (each, a “Releasing Party”), hereby irrevocably waives, releases and discharges, as of Closing, each other Party, and their Affiliates (each, a “Released Party”) from any and all Liabilities to such Releasing Party arising prior to the Closing Date, in each case whether arising under any agreement, instrument or understanding or otherwise at law or equity (other than the breach of any of the representations and warranties or the performance of any of the obligations of the Parties arising under this Agreement and the Associated Agreements), and such Releasing Party shall not seek to recover any amounts in connection therewith or thereunder from any Released Party. Notwithstanding the foregoing, no owner of any Seller who continues as an employee in the employment of the Parent or an Affiliate from the Closing Date releases or discharges the Buyer, Parent or any of their Affiliates from (a) any rights to any payments, benefits or reimbursements under such Person’s employment agreement (to the extent such employment agreement is not terminated or superseded) or any Contract with Buyer, Parent, or any of their Affiliates; (b) any rights to vested benefits as a participant under any employee benefit plan; and (c) any statutory claims arising out of or relating to such Persons employment by Buyer or Parent, or any of their Affiliates. For the avoidance of doubt, nothing in this Section 7.5 shall limit the representations, warranties, covenants or indemnification obligations of any Party under this Agreement or the Associated Agreements.

Article VIII
RESTRICTIVE COVENANTS

8.1 Confidentiality.

(a) All disclosures of trade secrets, know-how, financial information, or other information of a type that is known to be, or that a reasonable person would recognize it to be, confidential made by Buyer or any of its affiliates (as applicable, the “Discloser”) under or in connection with this Agreement or the Associated Agreements, as well as the terms of this Agreement and all Associated Agreements (collectively, the “Confidential Information”), shall be received and maintained in confidence by the recipient (the “Recipient”) and each Recipient shall treat all such Confidential Information as the confidential property of the Discloser and keep it confidential and secure and protect it from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid unauthorized use or disclosure of its own Confidential Information of similar nature, but in no event less than reasonable care. Notwithstanding the foregoing, (1) a Recipient shall be permitted to disclose any Confidential Information if required by applicable law, provided the Recipient provides the Discloser reasonable prior opportunity to comment upon such disclosure to the extent permitted by law and agree to cooperate to take reasonable steps to minimize the extent of any such required disclosure, and (2) Buyer, Parent and their Affiliates may disclose information to the extent required under law in connection with reports, filings, and other documents filed by its Affiliates (including Parent) with the SEC or any other securities regulator, or otherwise required under the rules or regulations of The Nasdaq Stock Market LLC or any other securities exchange or market (each as determined by Buyer or its Affiliates in their sole discretion).

(b) The term “Confidential Information” does not include information that (i) was in the public domain prior to the time it was furnished to Recipient or is at the time of the alleged breach (through no willful or improper action or inaction by such Recipient) generally available to the public, (ii) was or becomes available to a Recipient on a non-confidential basis from a source other than Buyer or its Affiliates, provided such other source is not be known by the Recipient to be bound by a confidentiality obligation, (iii) is lawfully known to a Recipient prior to disclosure of the Confidential Information by Buyer or its Affiliates or (iv) is independently developed by a Recipient without any use of any Confidential Information.

(c) Each Recipient’s obligations with respect to the Confidential Information shall continue for a term of three (3) years following the Closing Date.

8.2 Restrictive Covenants of Sellers. As a material inducement to Buyer and Parent to enter into this Agreement and to consummate the transactions contemplated by this Agreement, the Sellers hereby agrees as follows:

(a) Competitive Activities. Each Seller shall not, and shall cause each of such Seller’s Affiliates (other than the JV Companies and Buyer) to not, at any time during the Restrictive Period, directly or indirectly in any part of the Territory:

(i) engage in or assist other in engaging in, own, control, manage, or participate in the ownership, control or management of, or have a material financial interest in, any business engaged in, in whole or in part, the Competitive Activity within the Territory;

(ii) solicit, or assist in the solicitation of, any person having an office or conducting business anywhere within the Territory and to which the JV Companies sold goods or provided services in connection with the Business, for the purpose of selling goods or providing services related to the Competitive Activity or diverting business from the JV Companies; or

(iii) solicit, or assist in the solicitation of, any person employed or engaged by the Parent or the JV Companies in any capacity (as an employee, independent contractor or otherwise) to terminate such employment or other engagement, whether or not such employment or engagement is pursuant to a contract and whether or not such employment or engagement is at will; provided, however, that the advertisement of job openings and use of employee search firms, newspapers, magazines, the internet and other media not directed at the foregoing shall not constitute a breach of this Section 8.2(a)(iii).

Except as set forth in this Section 8.2 or as provided under applicable Law, Parent and Buyer shall not restrict each Seller from engaging in any other businesses or activities and to receive the income and benefits thereof (and Parent and the JV Companies shall have no interest therein by reason of this Agreement or the Associated Agreements), regardless of whether such businesses or activities are similar or competitive to the Parent and/or the JV Companies businesses; provided, that nothing in this paragraph shall limit the fiduciary duties of any designee or representative of one or more of the Sellers on the board of directors of Parent.

(b) Authority for Judicial Enforcement and Revision. Each Seller agrees and acknowledges that the scope, duration and geographical area of the covenants of such Seller set forth in this Section 8.2: are reasonable and necessary to protect the Parent and Buyer. However, the Parties agree that if a court finds the covenants of the Sellers set forth in this Section 8.2 unenforceable due to restrictions unreasonable in scope, duration, geographical area or remedies, then such court shall be allowed to reform the covenants of such Seller set forth in this Section 8.2 so that the restrictions herein are reasonable and this Agreement, and the covenants of such Seller set forth in this Section 8.2, are enforceable.

(c) Remedies. The Sellers acknowledge that if they violate the terms of this Section 8.2 it would be impossible to determine with any reasonable accuracy the amount of damages to the Buyer and its Affiliates, which cannot be adequately compensated in monetary damages. Therefore, Buyer shall have, in addition to, and not in lieu of, any of the other rights and remedies available hereunder, the right to have the provisions of this Section 8.2 specifically enforced by any court of competent jurisdiction by way of an injunction or other equitable relief. Buyer shall not be required to post a bond or other security or to prove actual damages or the inadequacy of monetary damages in connection with its efforts to obtain equitable relief concerning this Section 8.2. The Parties agree that any breach or attempted breach of this Section 8.2 would cause substantial and irreparable damage which would be adequately compensated for by damages. As a result the Buyer and its Affiliates shall be entitled to injunctive relief in the Territory in addition to the monetary damages.

Article IX
MISCELLANEOUS

9.1 Notices. Any notice or communication required or permitted to be given be any provisions of this Agreement, including but not limited to any consents, shall be in writing and shall be deemed to have been given and received by the Person to whom directed, if properly addressed: (a) when delivered personally to such Person or to an officer or partner of the Person to which directed, (b) upon confirmation of receipt of transmission by email, or (c) two (2) days after being deposited with an internationally recognized overnight courier, delivery charges prepaid for delivery the following day. The addresses for notice are as follows:

	If to Buyer or Parent:	FreightCar North America, LLC c/o FreightCar America, Inc. 125 South Wacker Drive Suite 1500 Chicago, Illinois 60606 Attn: Christopher Eppel Email: CEppel@freightcar.net
	with a copy to (which shall not constitute notice):	Kelley Drye & Warren LLP 333 West Wacker Drive, 26th Floor Chicago, IL 60606 Attn: Andrew Pillsbury Email: APillsbury@kelleydrye.com
	If to Sellers or any Seller:	c/o Fabricaciones y Servicios de Mexico SA de CV. Carretera 57 Km 178 Castaños Coahuila, 25780 Mexico Email: jgil@fasemex.com.mx
	with a copy to (which shall not constitute notice):	Romero, Ramos, Quintanilla y Bortoni S.C. Lazaro Cardenas 435 Despacho 410 Colonia Loma Larga, 66266 San Pedro Garza Garcia, Nuevo Leon, Mexico. Attn: Francisco Romero Email: fromero@rrqb.mx

Any Party may change its address, email, facsimile number or individual for receiving notice for the purpose of this Section 9.1 by notice to the other given in the manner set forth above.

9.2 Governing Law. This Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the internal laws of the State of Delaware applicable to contracts made in that state, without giving effect to any law, provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware.

9.3 Consent to Jurisdiction; Waiver of Jury Trial.

(a) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL PROCEEDINGS (IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS LOCATED IN THE CITY OF CHICAGO, COUNTY OF COOK, AND ANY APPELLATE COURT THEREFROM OR THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS AND ANY APPELLATE COURT THEREFROM (COLLECTIVELY, THE “Illinois Courts”). EACH PARTY HERE-BY IRREVOCABLY AND UNCONDITIONALLY CONSENTS AND SUBMITS, FOR IT-SELF AND ITS ASSETS, TO THE EXCLUSIVE JURISDICTION OF ANY OF THE ILLINOIS COURTS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

(b) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING IN ANY OF THE ILLINOIS COURTS. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH PROCEEDING IN ANY OF THE ILLINOIS COURTS. EACH OF THE PARTIES AGREES THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

(c) EACH PARTY AGREES THAT ANY PROCEEDING (IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING WILL INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH PROCEEDING.

(d) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT, SEEK TO ENFORCE THE FOREGOING WAIVERS, (ii) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) SUCH PARTY MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATION IN THIS SECTION 9.3(d).

(e) EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LAWSUIT, ACTION OR PROCEEDING SEEKING ENFORCEMENT OF SUCH PARTY’S RIGHTS UNDER THIS AGREEMENT.

9.4 Further Assurance. In connection with this Agreement and the transactions contemplated hereby, the Parties shall execute and deliver such further documents, and perform such further acts, as may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated hereunder, as reasonably requested by the other Parties.

9.5 Waivers. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

9.6 Rights and Remedies Cumulative. Except as specifically set forth in this Agreement, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any Party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Parties may have by law, statute, ordinance or otherwise.

9.7 Severability. If any provision of this Agreement or the application thereof to any Person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

9.8 Assignment. Except as expressly set forth in this Agreement, no Party may assign or transfer any of its rights or obligations hereunder without the prior written consent of all of the Parties; provided that Buyer or Parent may assign any rights or obligations hereunder to an Affiliate of either Buyer or Parent. Any proposed assignment in contravention of this Section 9.8 shall be null and void.

9.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

9.10 Terminology and Construction. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; and the singular shall include the plural and vice versa. Titles of Articles, Sections, Exhibits, and Disclosure Schedule are for convenience only, and neither limit nor amplify the provisions of this Agreement. Except as specifically provided, references to Articles, Sections, Exhibits, and Disclosure Schedule in this Agreement refer to Articles, Sections, Exhibits, and Disclosure Schedule to, this Agreement. The use herein of the word “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation,” or “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. The word “or” shall mean “and/or” unless the context requires otherwise. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. Any reference to a statute shall include and shall be deemed to be a reference to such statute and to the regulations made pursuant thereto, and all amendments made thereto and enforced from time to time, and to any statute or regulation that may be passed which has the effect of supplementing the statute so referred to or the regulations made pursuant thereto. The Parties agree that the terms and conditions of this Agreement and the Associated Agreements are the result of negotiations between and among them and that neither this Agreement nor any of the Associated Agreements shall be construed in favor of or against any Party by reason of the extent to which such Party or its professional advisors participated in the preparation of such agreements. All references to “$” or “dollar” in this Agreement refer to the currency of the United States.

9.11 Expenses. Each Party shall be responsible for its own legal, accounting, and other expenses incurred in connection with the negotiations and transactions contemplated by this Agreement and the Associated Agreements.

9.12 Entire Agreement. This Agreement and each of the Associated Agreements and exhibits and schedules attached hereto set forth all (and are intended by all Parties hereto to be an integration of all) of the promises, agreements, conditions, understandings, warranties, and representations among the Parties hereto; and there are no promises, agreements, conditions, understandings, warranties, or representations, oral or written, expressed or implied, among them other than as set forth herein. Any amendment to this Agreement must be in writing and will not be effective until it is executed and approved by an authorized representative of each Party.

[signature page follows]

The Parties have executed and delivered this Equity Purchase Agreement as of the date first written above.

	BUYER:

	FREIGHTCAR NORTH AMERICA, LLC


	By: /s/ James R. Meyer
	Name: James R. Meyer
	Title: President



	For purposes of Article V and Article IX and Section 6.2(e) (subject to the limitations and other provisions of Article VI) only:

	PARENT:

	FREIGHTCAR AMERICA, INC.


	By: /s/ James R. Meyer
	Name: James R. Meyer
	Title: President and Chief Executive Officer

[Signature Page to Equity Purchase Agreement]

	SELLERS:

	FASEMEX, INC.

	By: /s/ Jesus S. Gil
	Name: Jesus S. Gil
	Title: President

	FABRICACIONES Y SERVICIOS DE MÉXICO, S.A. DE C.V.

	By: /s/ Alejandro Gil
	Name: Alejandro Gil
	Title: Legal Representative

	AGBEN DE MEXICO, S.A. DE C.V.

	By: /s/ Jesus S. Gil
	Name: Jesus S. Gil
	Title: Owner

[Signature Page to Equity Purchase Agreement]

EXHIBIT A

DEFINITIONS

“Affiliate” means, with respect to a specified Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person. For the purposes of this definition, the term “control” means (a) the possession, directly or indirectly, of the power to vote ten percent (10%) or more of the securities or other equity interests of a Person having ordinary voting power, (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, by contract or otherwise or (c) being a director, officer, executor, trustee or fiduciary (or their equivalent positions) of a Person or a Person that controls such Person. Notwithstanding the foregoing, the JV Companies shall not be considered Affiliates of any of the Parties prior to Closing, and upon Closing, the JV Companies shall be deemed Affiliates of Buyer and Parent.

“Agben” has the meaning set forth in the preamble.

“Agreement” has the meaning set forth in the preamble.

“Associated Agreements” means all documents and certificates referenced herein to which any of the Parties is a party and which is required to be delivered hereunder, or which is delivered by any Party to another contemporaneously with Closing in connection with the transactions contemplated hereunder.

“Business” has the meaning set forth in the recitals.

“Buyer” has the meaning set forth in the preamble.

“Buyer Indemnitees” has the meaning set forth in Section 6.2(a).

“Buyer’s Knowledge” means the actual knowledge of James R. Meyer and Christopher J. Eppel, in each case after reasonable inquiry of their respective direct reports.

“Claim” means any complaint, allegation, charge, petition, appeal, demand, notice, filing or claim of any kind that commences, alleges a basis to commence or threatens to commence any Proceeding by or before any Governmental Body, or that asserts, alleges a basis to assert or threatens to assert any right, breach, default, violation, noncompliance, termination, cancellation or other action or omission that would reasonably be expected to result in a Loss.

“Claim Response” has the meaning set forth in Section 6.3(b).

“Closing” has the meaning set forth in Section 1.3.

“Closing Date” has the meaning set forth in Section 1.3.

“Closing Value” means, with respect to shares of Parent Common Stock, the aggregate value of such shares based on the closing price of the Parent Common Stock on the Trading Market on the Closing Date (or the next applicable trading day).

Exhibit A-1

“Common Stock” has the meaning set forth in Section 5.2.

“Competitive Activities” means the manufacture, assembly, distribution or sales of railcars, railcar parts, or railcar components; provided, however, that the sale of railcar parts or railcar components by Fasemex Mexico or its Affiliates to certain parties as mutually agreed from time to time shall not be considered a “Competitive Activity”. For clarity, “Competitive Activity” includes the assembly or manufacture of any type of railcar.

“Confidential Information” has the meaning set forth in Section 8.1(a).

“Consideration Shares” has the meaning set forth in Section 1.1.

“Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.

“Discloser” has the meaning set forth in Section 8.1(a).

“Disclosure Schedule” means the disclosure schedule of Sellers, which is incorporated by reference into and made a part of this Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Executive Order 13224” has the meaning set forth in Section 2.9.

“Fasemex Mexico” has the meaning set forth in the preamble.

“Fundamental Representations” has the meaning set forth in Section 6.1.

“GAAP” means generally accepted accounting principles as used in the United States as in effect at the time any applicable financial statements were or are prepared.

“Governmental Body” means any federal, state, regional, county, city, local, municipal, foreign or other government or quasi-governmental entity or authority or any department, branch, agency, commission, board, subdivision, bureau, agency, official, political subdivision or other instrumentality of any of the foregoing, any administrative or regulatory body obtaining authority from any of the foregoing, and any court, tribunal, judicial or arbitral body, mediation or conciliation or self-regulatory authority.

“Indemnified Party” has the meaning set forth in Section 6.3(a).

“Indemnifying Party” has the meaning set forth in Section 6.3(a).

“JV Companies” has the meaning set forth in the recitals.

“JV Equity Interests” has the meaning set forth in the recitals.

“Law” means any constitutional provision, statute, ordinance, law (including common law), rule, regulation, code, plan, decree, injunction, judgment, Order, ruling, assessment or writ of any Governmental Body, or any legally binding regulatory policy statement (whether or not publicly available), binding standard or guidance or policy, binding directive, or decree of any Governmental Body, in each case as any of the foregoing may be in effect from time to time.

Exhibit A-2

“Liabilities” has the meaning set forth in Section 3.2.

“Lien” means any lien (including any tax lien), mortgage, security interest, pledge, deposit, option, infringement, charge, claim, deed of trust, hypothecation, mortgage, contingent sale, title retention, lease or sublease, building or use restriction, adverse claim, right or intent, covenant, easement, encroachment, defect, or other matter affecting title, conditional sales agreement, community property interest, or other encumbrance or restriction (including a restriction on transfer such as a right of first refusal) of any nature or kind, whether voluntarily or involuntarily incurred, arising by operation of Law, by contract or otherwise, and including any contract to give any of the foregoing in the future.

“Losses” means any and all liabilities, Proceedings, Claims, losses, demands, assessments, adjustments, awards, judgments, settlement payments, fines, penalties, taxes, interest, damages, costs, deficiencies, fees, charges and expenses, including any and all reasonable expenses incurred in connection with investigating, defending or asserting any of the foregoing (including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, consultants, expert witnesses, accountants and other professionals).

“Material Adverse Effect” means any change or effect that has a material and adverse effect on (a) the business, operations, financial condition, or assets of the applicable company and its wholly-owned subsidiaries taken as a whole, or (b) the ability of applicable company to perform its obligations under this Agreement.

“MX JV Equity” has the meaning set forth in the recitals.

“MX Sellers” has the meaning set forth in the preamble.

“Notice of Claim” has the meaning set forth in Section 6.3(a).

“OFAC” has the meaning set forth in Section 2.9.

“Order” means any judgment, writ, decree, directive, decision, injunction, ruling, stipulation, award, order (including any consent decree or cease and desist order) or determination of any kind issued, promulgated or entered by or with any Governmental Body.

“Ordinary Course of Business” means, with respect to any action take or omitted to be taken by the JV Companies or by any JV Company, as applicable in the context, that: (a) is consistent in nature, scope and magnitude with the past practices of the JV Companies or such JV Company and is taken in the ordinary course of the normal, day-to-day operations of the JV Companies or such JV Company; (b) does not require authorization by the board of directors or managers or equityholders of the JV Companies or such JV Company (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature; and (c) is similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are engaged in the Business.

Exhibit A-3

“Parent” has the meaning set forth in the recitals.

“Parent Common Stock” means common stock, par value $0.01 per share, of Parent.

“Parent’s Knowledge” means the actual knowledge of James R. Meyer and Christopher J. Eppel, in each case after reasonable inquiry of their respective direct reports.

“Party” and “Parties” has the meaning set forth in the preamble.

“Permits” has the meaning set forth in Section 3.4.

“Person” means a natural person, a partnership, a corporation, a company, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business enterprise or a Governmental Body.

“Proceeding” means any suit, action, cause of action (whether at law or in equity), arbitration, audit, hearing, investigation, litigation, claim, complaint, administrative or similar proceeding (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body.

“Production JV” has the meaning set forth in the recitals.

“Recipient” has the meaning set forth in Section 8.1(a).

“Regulation S” means Regulation S promulgated under the Securities Act.

“Response Period” has the meaning set forth in Section 6.3(b).

“Restrictive Period” means the period beginning at Closing and ending the later of (a) three (3) years after the Closing Date, and (b) such time when the Sellers and their Affiliates cease to beneficially own, in the aggregate, 5% (five percent) of the issued and outstanding shares of Parent Common Stock (after giving effect to any stock splits, combinations or similar transactions).

“Rule 144” means Rule 144 promulgated under the Securities Act.

“SEC” means the U.S. Securities and Exchange Commission.

“SEC Documents” means all reports, schedules, forms, proxy statements, statements and other documents filed or required to be filed by Parent with the SEC pursuant to the reporting requirements of the Exchange Act (including all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein) during the three (3) years prior to the date hereof.

“Securities Act” means the Securities Act of 1933, as amended.

Exhibit A-4

“Seller” and “Sellers” each has the meaning set forth in the preamble.

“Seller Indemnitees” has the meaning set forth in Section 6.2(b).

“Seller’s Knowledge” means the actual knowledge of Jesús Gil Benavides, Alejandro Gil Benavides, and Salvador Gil Benavides, in each case after reasonable inquiry of their respective direct reports.

“Territory” means the United States of America (including Puerto Rico), Canada and Mexico.

“Third Party Claim” has the meaning set forth in Section 6.4.

“Trading Market” means the Nasdaq Global Market.

“US JV” has the meaning set forth in the recitals.

“US JV Equity” has the meaning set forth in the recitals.

“US Seller” has the meaning set forth in the preamble.

Exhibit A-5

Exhibit 10.2

Execution Copy

INVESTOR RIGHTS AGREEMENT

This Investor Rights Agreement (this “Agreement”) is made effective as of October 16, 2020, by and among FreightCar America, Inc., a Delaware corporation (“FCA”), Fabricaciones y Servicios de México, S.A. de C.V., an entity organized under the laws of Mexico (“Fasemex Mexico”), Agben de México, S.A. de C.V., an entity organized under the laws of Mexico (“Agben”) and Fasemex, Inc., a Texas corporation (“US Seller”; each of US Seller, Fasemex Mexico and Agben, an “Investor” and collectively, the “Investors”). FCA and each Investor are referred to hereto as “Party” and collectively, the “Parties”.

WHERAS, FCA has agreed to acquire (the “Strategic Transaction”) from the Investors all of the equity interests currently owned by the Investors (collectively, the “Purchased Equity Interests”) of (i) FCA-FASEMEX, S. de R.L., de C.V., an entity organized under the laws of Mexico (“Production JV”), FCA-FASEMEX Enterprise, S. de. R.L., de C.V., an entity organized under the laws of Mexico (“Services JV” and, together with Production JV, the “MX-JV Companies”) and (ii) FCA-Fasemex, LLC, a Delaware limited liability company (the “US JV” and, together with the MX-JV Companies, the “JV Companies”); and

WHEREAS, in consideration for the Investors’ agreement to sell the Purchased Equity Interests to FCA, FCA has agreed to provide the Investors with the rights set forth in this Agreement.

NOW, THEREFORE, in consideration of the respective covenants and agreements of the Parties herein contained and for other good and valuable consideration (the receipt and sufficiency of which are acknowledged by each Party), the Parties hereby agree as follows:

1. Defined Terms

For the purposes of this Agreement, unless the context otherwise requires, the following terms shall have the meanings set forth below and grammatical variations of such terms shall have the corresponding meanings:

(a)

“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. For the purposes of this definition, “control” when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of Person, whether through the ownership of voting securities, by contract, or otherwise;

(b)

“Agben” has the meaning given to such term in the preamble;

(c)

“Agreement” means this Investor Rights Agreement;

(d)

“Appointment Date” has the meaning given to such term in Section 3(d);

(e)

“Board” means the board of directors of FCA;

(f)

“Business Day” means any day, other than (a) a Saturday, Sunday or statutory holiday in the State of Illinois and (b) a day on which banks are generally closed in the State of Illinois;

(g)

“Closing” has the meaning given to such term in Section 3(a);

(h)

“Common Stock” means the Common Stock of the Company, par value $0.01 per share;

(i)

“Confidential Information” means any and all information, in any form or medium, written or oral, whether concerning or relating to FCA, its Affiliates, its and their officers and employees or any third party (whether prepared by FCA or on behalf of FCA or otherwise, and irrespective of the form or means of communication and whether it is labeled or otherwise identified as confidential), that is furnished to or on behalf of the Investors or by or on behalf of FCA at any time, whether before, upon or after the execution of this Agreement, including all oral and written information relating to financial statements, projections, evaluations, plans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and development, trade secrets, knowhow, patent applications that that have not been published, technology and other confidential information and intellectual property of FCA and its Affiliates. “Confidential Information” shall be deemed to include all notes, analyses, studies, interpretations, memoranda and other documents, material or reports (in any form or medium) prepared by the Investors that contain, reflect or are based upon, in whole or part, the information furnished to or on behalf of FCA;

(a)

“Consideration Shares” means 2,257,234 shares of Common Stock issued to the Investors as part of the consideration for the Strategic Transaction.

(b)

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as the same may hereafter be amended from time to time or replaced;

(c)

“Fasemex Mexico” has the meaning given to such term in the preamble;

(d)

“FCA” has the meaning given to such term in the preamble;

(e)

“Investor” or “Investors” have the meanings given to such terms in the preamble;

(f)

“Investors Director” has the meaning given to such term in Section 3(a);

(g)

“Investors Observer” has the meaning given to such term in Section 5(a);

(h)

“JV Companies” has the meaning given to such term in the recitals;

(i)

“Laws” means any and all federal, state, provincial, regional, local, municipal or other laws, statutes, constitutions, principles of common law, resolutions, ordinances, proclamations, directives, codes, edicts, orders, rules, regulations, rulings or requirements issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental entity and includes Securities Laws;

(j)

“Minimum Percentage” has the meaning given to such term in Section 7.

(k)

“MX-JV Companies” has the meaning given to such term in the recitals;

(l)

“Party” or “Parties” have the meanings given to such terms in the preamble;

(m)

“Person” means and includes any individual, company, limited partnership, general partnership, joint stock company, limited liability company, joint venture, association, company, trust, bank, trust company, pension fund, business trust or other organization, whether or not a legal entity and any governmental entity;

(n)

“Production JV” has the meaning given to such term in the recitals;

(o)

“Purchased Equity Interests” has the meaning given to such term in the recitals;

(p)

“SEC” means the United States Securities and Exchange Commission;

(q)

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as the same may hereafter be amended from time to time or replaced;

(r)

“Securities Laws” means the Securities Act and the Exchange Act;

(s)

“Services JV” has the meaning given to such term in the recitals;

(t)

“Strategic Transaction” has the meaning given to such term in the recitals;

(u)

“US-JV” has the meaning given to such term in the recitals; and

(v)

“US Seller” has the meaning given to such term in the preamble.

2. Rules of Construction

Except as may be otherwise specifically provided in this Agreement and unless the context otherwise requires, in this Agreement:

(a)

The terms “Agreement”, “this Agreement”, “hereto”, “hereof”, “hereby”, “hereunder” and similar expressions refer to this Agreement in its entirety and not to any particular provision hereof and include any schedules or exhibits thereto;

(b)

The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction of this Agreement;

(c)

Words importing the singular number only shall include the plural and vice versa and words importing the use of any gender shall include all genders;

(d)

The word “including” is deemed to mean “including without limitation”;

(e)

Any reference to this Agreement means this Agreement as amended, modified, replaced or supplemented from time to time;

(f)

Any reference to a statute, regulation or rule shall be construed to be a reference thereto as the same may from time to time be amended, re-enacted or replaced, and any reference to a statute shall include any regulations or rules made thereunder;

(g)

Whenever any action is required to be taken or period of time is to expire on a day other than a Business Day, such action shall be taken or period shall expire on the next following Business Day; and

(h)

Unless otherwise indicated, section references in this Agreement are references to sections contained in this Agreement.

3. Board Member Designation Rights

(a)

At the closing of the Strategic Transaction (the “Closing”) and for so long as the Minimum Percentage is satisfied, the Investors collectively shall be entitled to designate one nominee (the “Investors Director”) for election to the Board. The Investors Director must be an individual reasonably acceptable to FCA eligible to serve as a director of FCA pursuant to applicable Law and to FCA’s applicable corporate governance guidelines. “Reasonably acceptable to FCA” for purposes of the foregoing sentence shall mean that the Investors’ designee for an Investors Director shall satisfy a background check and a prospective board member evaluation customary for corporate board members for U.S. public companies, consistent with FCA’s past practices for the onboarding of new board members (it being understood that Mr. Jesús Gil shall be deemed to satisfy this standard).

(b)

FCA shall use commercially reasonable efforts to ensure that the nominee for Investors Director is elected to the Board, including soliciting proxies in support of his or her election and taking the same actions taken FCA to ensure the election of the other nominees selected by the Board for election to the Board.

(c)

In the event the Investors elect an Investors Director other than Mr. Jesús Gil, they shall advise FCA of the identity of the nominee for Investors Director at least 60 (sixty) calendar days prior to any meeting of the stockholders at which the directors of FCA are to be elected or within 10 (ten) calendar days of being notified of the record date for such meeting. If the Investors do not advise FCA of the identity of the nominee for Investors Director prior to such deadline, then the Investors will be deemed to have nominated Mr. Jesús Gil as their incumbent Investors Director.

(d)

As stated above, the Parties acknowledge that the initial Investors Director shall be Mr. Jesús Gil, who will be appointed to the Board as a Class II Director no later than October 26, 2020 (the “Appointment Date”). FCA acknowledges and agrees that Mr. Jesus Gil satisfies the eligibility requirements set forth in Section 3(a).

(e)

The Board shall, effective as of the Appointment Date, (i) increase the size of the Board by one director to seven directors and (B) appoint Mr. Jesus Gil as a Class II Director of FCA with a term expiring at the 2022 annual meeting of stockholders.

(f)

FCA will, at the 2022 annual meeting of stockholders and at each subsequent annual meeting of stockholders at which Class II Directors are up for election, recommend for nomination and nominate the Investors Director, together with the other persons included in the FCA’s slate of nominees, for election as Class II Directors at such annual meeting.

(g)

In the event that the Investors Director shall cease to serve as a director of FCA, whether due to his or her death, disability, resignation or removal, FCA shall cause the Board to promptly appoint a replacement Investors Director (who shall be a different person) designated by the Investors to fill the vacancy created by such death, disability, resignation or removal, provided that the Investor remains eligible to designate the Investors Director and that the replacement Investors Director satisfies the eligibility requirements set forth in Section 3(a).

(h)

The Investors Director shall not be compensated for serving on the Board so long as he or she is an employee or independent contractor of FCA or one of its Affiliates; provided that if the Investors Director’s employment or independent contractor status is terminated for any reason, the Investors Director shall be compensated in an amount equal to the compensation paid to other similarly situated directors on the Board for serving on the Board.

(i)

FCA shall provide the same indemnification and maintain the same coverage under any policies of directors’ and officers’ insurance, in favor of the Investors Director in his capacity of director to the Board and as the Vice President of Operations of FCA, as stated in Section 4.

4. Vice President of Operations. Jesus Gil shall be retained as the Vice President of Operations of FCA effective as of the Closing, in accordance with the economic terms and provisions similar to such terms and provisions afforded to Jesus Gil as the Vice President of Operations of the JV Companies or FCA, as applicable, as well as other customary provisions to such officer’s positions.

5. Board Observer Designation Rights

(a)

At the Closing and for so long as the Minimum Percentage is satisfied, the Investors shall be entitled collectively to designate Mr. Alejandro Gil or another individual (the “Investors Observer”) who is reasonably acceptable to FCA to attend meetings of the Board, committee meetings of the Board (to the extent such committee meetings are otherwise open to attendance by members of the Board not sitting on such committees and non-independent members of the Board), if permitted by the Chief Executive Officer of FCA, any executive sessions and, if permitted by the Chairman of the Board, any private sessions, as a non-voting observer. The Investors Observer shall not have the right to vote at any meeting of the Board or any committee or be counted towards determining whether there is quorum for such meeting, but shall be entitled to participate in the discussions of the Board or such committee during such meetings.

(b)

FCA shall:

Provide the Investors Observer with notice, if any, of each meeting of the Board (telephonic or otherwise), in the same manner and at the same time as provided to the Board;

ii.

Provide to the Investors Observer copies of all materials provided to the Board, in the same manner and at the same time as provided to the Board;

iii.

Provide to the Investors Observer drafts of all resolutions proposed for signature by the Board (in lieu of a meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board; and

iv.

Permit the Investors Observer to attend each meeting of the Board (telephonic or otherwise), including, without limitation, any committee meeting of the Board (to the extent such committee meetings are otherwise open to attendance by members of the Board not sitting on such committees and non-independent members of the Board) or, if permitted, executive or private sessions, as an observer;

except with respect to material or resolutions, or attendance at such portions of any such meeting, in which (A) the subject matter relates to a transaction, proceeding or matter in which the Investors or their Affiliates are or may be interested parties, and where the participation in such portion of any such meeting by the Investors Observer or access to the Confidential Information relating to FCA would, upon the advice of counsel, give rise to a conflict of interest between the Investors and FCA, as determined by the Board in its sole discretion, (b) the Board determines, upon the advice of counsel, that such exclusion is reasonably necessary to preserve attorney-client privilege or (C) the Board determines, upon the advice of counsel, that such exclusion is reasonably necessary for FCA or its subsidiaries to comply with their respective confidentiality obligations.

(c)

The Investors shall advise FCA of the identity of the Investors Observer that they have designated, other than Mr. Alejandro Gil, from time to time (and in each such case, sufficiently in advance to permit FCA to confirm that such proposed Investors Observer satisfies the eligibility requirements of Section 5(a)). As stated above, the Parties acknowledge that the initial Investors Observer shall be Mr. Alejandro Gil.

(d)

FCA shall not be required to (i) pay any compensation to the Investors Observer at any time or (ii) provide any indemnification, or maintain coverage under any policies of directors’ and officers’ insurance, in favor of the Investors Observer.

(e)

The Investors Observer will have the right to attend all meetings of the Board and receive all information provided to members of the Board (including minutes of the board meetings) as if the Investors Observer was a member of the Board; provided that the Investors Observer will only be permitted to attend the executive sessions of the Board at the discretion of the Chief Executive Officer of FCA and the private sessions at the discretion of the Chairman of the Board.

Compliance with Securities Laws and FCA Insider Trading Policy. Each of the Investors hereby acknowledges and agrees that, from and after the Closing: (a) it is subject to restrictions on its ability to trade in FCA’s securities under the Securities Laws; (b) it is bound by, and agrees to comply with, the Securities Laws as they relate to trading in FCA’s securities; and (c) it will comply with the FCA Insider Trading Policy to the same extent that such policy applies to directors and executive officers of FCA.

Term. For so long as the Investors collectively hold at least 50% of the Consideration Shares (the “Minimum Percentage”), the Investors collectively shall be entitled to designate (a) the Investor Director for election to the Board pursuant Section 3(a), and (b) the Investors Observer pursuant to Section 5(a).

Miscellaneous

(a)

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to principles of conflict of laws. This Agreement may be executed in any number of counterparts (including via facsimile or other electronic transmission), each of which shall be an original, but all of which together shall constitute one instrument. All notices and other communications that are required to be or may be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person or by courier or by a national overnight courier services to the relevant Party at the address or facsimile number provided by the Parties from time to time. This Agreement and all the obligations and benefits hereunder shall inure to the successors and permitted assigns of the Parties. No Party may assign any rights or obligations hereunder to any other person without the prior written consent of each other Party. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Parties hereto. This Agreement shall be terminated in all respects if the Closing does not occur for any reason.

(b)

Time of Essence. Times shall be of the essence of this Agreement.

(c)

Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by Parties hereto.

(d)

Further Assurances. Each Party agrees to take or cause to be taken further actions, and to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and to obtain such consents, as may be reasonably required or requested by the other Parties in order to effectuate fully the purposes, terms and conditions of this Agreement.

(e)

Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party hereto. Upon such determination that any term or provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties hereto as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

[Signatures on following pages]

IN WITNESS WHEREOF, the undersigned Parties have duly executed this Investor Rights Agreement effective as of the date first written above.

	Fabricaciones y servicios de México, S.a. de c.v.


	By:	/s/ Alejandro Gil Name: Alejandro Gil Title: Legal Representative

	Address:		Carretera 57 Km 178

			Castaños Coahuila, 25780 Mexico

	Phone:		[____________]
	Email:		[____________]

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]

	Agben de México, S.a. de c.v.


	By:	/s/ Jesus S. Gil Name: Jesus S. Gil Title: Owner

	Address:		Carretera 57 Km 178 Int B

			Castaños Coahuila, 25780 Mexico

	Phone:		[____________]
	Email:		[____________]

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]

	fasemex, inc.


	By:	/s/ Jesus S. Gil Name: Jesus S. Gil Title: President

	Address:		10205 Oasis St

			Ste 320

			San Antonio, TX 78216

	Phone:		[____________]
	Email:		[____________]

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]

Accepted and agreed to as
of the date first above written:

FREIGHTCAR AMERICA, INC.

By: /s/ James R. Meyer

Name: James R. Meyer

Title: President and Chief Executive Officer

Address:		125 S. Wacker Drive, Suite 1500
		Chicago, Illinois 60606
Phone:		800-458-2235
Email:		jmeyer@freightcar.net

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]

Exhibit 10.3

Execution Version

CONTRATO DE NOVACIÓN Y REEXPRESIÓN DE CONTRATO DE ARRENDAMIENTO (EL “CONTRATO”) QUE CELEBRAN POR UNA PARTE FABRICACIONES Y SERVICIOS DE MÉXICO, S.A. DE C.V., REPRESENTADA POR EL SEÑOR ALEJANDRO GIL BENAVIDES, EN SU CARÁCTER DE REPRESENTANTE LEGAL DE DICHA SOCIEDAD (INDISTINTAMENTE EL “ARRENDADOR” O LA “ARRENDADORA”), Y FCA-FASEMEX, S. DE R.L. DE C.V., REPRESENTADA POR EL SEÑOR JAMES R. MEYER, EN SU CARÁCTER DE REPRESENTANTE LEGAL DE DICHA SOCIEDAD (INDISTINTAMENTE EL “ARRENDATARIO” O LA “ARRENDATARIA”), AMBAS PARTES CON CAPACIDAD LEGAL PARA OBLIGARSE EN LOS TÉRMINOS DE ESTE CONTRATO, CON LA COMPARECENCIA DE LOS SRES. JESUS SALVADOR GIL BENAVIDES, ALEJANDRO GIL BENAVIDES Y SALVADOR GIL BENAVIDES COMO COPROPIETARIOS Y ARRENDADORES DEL SEGUNDO TERRENO (COMO DICHO TÉRMINO SE DEFINE MÁS ADELANTE), DE CONFORMIDAD CON LAS SIGUIENTES DECLARACIONES Y CLÁUSULAS:

NOVATION AGREEMENT AND RESTATED LEASE AGREEMENT (THE “AGREEMENT”) ENTERED INTO BY AND BETWEEN FABRICACIONES Y SERVICIOS DE MÉXICO, S.A. DE C.V., REPRESENTED HEREIN BY MR. ALEJANDRO GIL BENAVIDES, IN HIS CAPACITY AS LEGAL REPRESENTATIVE OF SUCH ENTITY (THE “LESSOR”), AND FCA-FASEMEX, S. DE R.L. DE C.V., REPRESENTED HEREIN BY MR. JAMES R. MEYER, IN HIS CAPACITY AS LEGAL REPRESENTATIVE OF SUCH ENTITY (THE “LESSEE”), BOTH PARTIES WITH LEGAL CAPACITY TO BE BOUND PURSUANT TO THE TERMS SET FORTH IN THIS AGREEMENT, WITH THE APPEARANCE OF MESSRS. JESÚS SALVADOR GIL BENAVIDES, ALEJANDRO GIL BENAVIDES AND SALVADOR GIL BENAVIDES AS CO-OWNERS AND LESSORS OF THE SECOND PLOT (AS SUCH TERM IS DEFINED BELOW), PURSUANT TO THE FOLLOWING RECITALS, REPRESENTATIONS AND CLAUSES:

A N T E C E D E N T E S:

W I T N E S S E T H:

I. Con fecha 13 de septiembre de 2019 (la “Fecha del Primer Contrato de Arrendamiento”), el Arrendador y el Arrendatario celebraron un contrato de arrendamiento, por medio del cual el Arrendador dio en Arrendamiento a la Arrendataria la Propiedad Arrendada (el “Contrato de Arrendamiento”).

I. On September 13, 2019 (the “First Lease Date”), Lessor and Lessee entered into a lease agreement, by means of which Lessor leased in favor of Lessee the Leased Property (the “Lease Agreement).

II. Con fecha 27 de abril de 2020, el Arrendador y el Arrendatario celebraron el primer convenio modificatorio al Contrato de Arrendamiento, con el objeto de aclarar su intención original en relación a la definición de Propiedad Arrendada y la superficie de los terrenos y el edificio que la comprenden.

II. On April 27, 2020, Lessor and Lessee entered into the first amendment of the Lease Agreement, in order to clarify its original intention as to the definition of Leased Property, and the surface of the plots and building that comprehend it.

D E C L A R A C I O N E S:

R E P R E S E N T A T I O N S:

I. El Arrendador declara, a través de su representante legal, lo siguiente:

I. Lessor hereby represents, through its legal representative, that:

A. Que es una sociedad anónima de capital variable, legalmente constituida en México, según consta en la escritura pública número 93, de fecha 15 de marzo de 1996, otorgada ante la fe del licenciado Rafael Treviño Garza, notario público número 2, con ejercicio en la ciudad de Monclova, Coahuila e inscrita en el Registro Público de la Propiedad de Monclova, Coahuila, bajo el número de partida 3245, folio número 670, libro 51-3º, con fecha 22 de abril de 1996.

A. It is a variable stock corporation (sociedad anónima de capital variable), legally incorporated in Mexico, as shown in public deed number 93, dated March 15, 1996, granted before Mr. Rafael Treviño Garza, notary public number 2, with authority in the city of Monclova Coahuila and recorded before the Public Registry of Property of Monclova, Coahuila, under “partida” number 3245, folio number 670, book 51-3º on April 22, 1996.

B. Que su representante legal goza de las facultades necesarias para la celebración de este Contrato, sin que las mismas le hayan sido limitadas o modificadas de forma alguna, según consta en el poder general para actos de administración, otorgado mediante la escritura pública número 107, de fecha 28 de septiembre de 2004, otorgada ante la fe del licenciado Alejandro Coronado Rodríguez, notario público número 1, en ejercicio en la ciudad de Monclova, Coahuila.

B. Its legal representative has the necessary authority to enter into and execute this Agreement, and that such authority has not been limited or modified in any manner whatsoever, as shown in the general power of attorney for acts of administration, granted by means of public deed number 107, dated September 28, 2004, granted before Mr. Alejandro Coronado Rodríguez, notary public number 1, with authority in the city of Monclova, Coahuila.

C. Que (a) es propietario de un predio identificado como fracción 2, con una superficie de 212,793 m2 (doscientos doce mil setecientos noventa y tres metros cuadrados), con domicilio en Tepic 1100, Colonia California, Coahuila, México, C.P. 25870 según consta en la escritura pública número 464, de fecha 12 de junio de 2015 otorgada ante la fe del licenciado Jesús Gilberto Saracho Navarro, notario público número 23 de Monclova, Coahuila, registrada bajo el Folio 107920, libro 1080, sección I, ante el Registro Público de la Propiedad de Monclova, Coahuila (b) mediante el Contrato de Arrendamiento y su convenio modificatorio dio en arrendamiento al Arrendatario, entre otros inmuebles, un terreno que forma parte del inmueble descrito en el inciso (a) que antecede con superficie de 95,072 m2 (noventa y cinco mil setenta y dos metros cuadrados) (el “Primer Terreno”) mismo que se identifica en el plano adjunto al presente Contrato como Anexo “A”, (c) en virtud de cierto contrato de arrendamiento (el “Contrato de Arrendamiento Gil”) es poseedor y tiene autorización de subarrendar un predio identificado como fracción 3, con una superficie de 212,793 m2 (doscientos doce mil setecientos noventa y tres metros cuadrados), con domicilio en Tepic 1100, Colonia California, Coahuila, México, C.P. 25870, según consta (i) en la escritura pública número 1,157, de fecha 14 de diciembre de 2018, otorgada ante la fe del licenciado Jesús Gilberto Saracho Navarro, notario público número 23, con ejercicio en la ciudad de Monclova, Coahuila e inscrita ante el Registro Público de la Propiedad de Monclova, Coahuila bajo el folio número 107907, libro1080, sección I, y (ii) en el Contrato de Arrendamiento Gil, y (d) mediante el Contrato de Arrendamiento y su convenio modificatorio subarrendó al Arrendatario, entre otros inmuebles, un terreno que forma parte del inmueble descrito en el inciso (c) que antecede con superficie de 69,572 m2 (sesenta y nueve mil quinientos setenta y dos metros cuadrados) (el “Segundo Terreno”) mismo que se identifica en el plano adjunto al presente Contrato como Anexo “B”.

C. It is (a) the owner of a plot of land identified as fraction 2, with a surface of 212,793 m2 (two hundred and twelve thousand seven hundred ninety three square meters), located at Tepic 1100, Colonia California, Coahuila, México, C.P. 25870, pursuant to public deed number 464, dated June 12, 2015, granted before Mr. Jesús Gilberto Saracho Navarro, Notary Public Number 23 in Monclova, Coahuila, registered under Folio 107920, Book 1080, Section I before the Public Registry of the Property in Monclova, Coahuila, (b) through Lease Agreement and its amendment agreement it leased to Lessee, among other properties, a plot of land that is part of the property described in the preceding paragraph (a), with a surface of 95,072 m2 (ninety five thousand seventy two square meters) (the “First Plot”) which is identified on the blueprint attached to this Agreement as Exhibit “A”, (c) by virtue of a certain lease agreement (the “Gil Lease Agreement”), it is the legal possessor and is authorized to sublease a plot of land identified as fraction 3, with a surface of 212,793 m2 (two hundred and twelve thousand seven hundred ninety three square meters), located at Tepic 1100, Colonia California, Coahuila, México, C.P. 25870, as shown (i) in public deed number 1,157, dated December 14, 2018, granted before Mr. Jesús Gilberto Saracho Navarro, notary public number 23, with authority in the city of Monclova, Coahuila and recorded before the Public Registry of Property of Monclova, Coahuila, under folio number 107907, book 1080, section I, and (ii) in the Gil Lease Agreement, and (d) through Lease Agreement and its amendment agreement it sublet to Lessee, among other properties, a plot of land that is part of the property described in the preceding paragraph (c), with a surface of 69,572 m2 (sixty nine thousand five hundred seventy two square meters) (the “Second Plot”) which is identified on the blueprint attached to this Agreement as Exhibit “B”.

D. (a) Es propietario del edificio construido sobre el Primer Terreno y el Segundo Terreno, con una superficie actual aproximada de 28,060.12 m2 (veinte mil ciento sesenta) metros cuadrados equivalente a 302,036.60 ft2 (trescientos dos mil treinta y seis punto sesenta pies cuadrados), con domicilio en Tepic 1100, Colonia California, Coahuila, México, C.P. 25870, dicho edificio identifica en el plano adjunto al presente Contrato como Anexo “C” (el “Edificio”) y (b) mediante el Contrato de Arrendamiento y su convenio modificatorio dio en arrendamiento al Arrendatario, entre otros inmuebles, el Edificio. El Edificio, el Primer Terreno y el Segundo Terreno se denominarán conjuntamente en el presente como la “Propiedad Arrendada”.

D. (a) It owns the building built on the First Plot and the Second Plot, with a current surface of approximately 28,060.12 m2 (twenty eight thousand and sixty point twelve) square meters equivalent to 302,036.60 ft2 (three hundred two thousand and thirty six point sixty square feet), located at Tepic 1100, Colonia California, Coahuila, México, C.P. 25870, such building is identified on the blueprint attached to this Agreement as Exhibit “C” (the “Building”) and (b) through the Lease Agreement and its amendment agreement it leased to Lessee the Building, among other properties. The Building, the First Plot and the Second Plot shall be jointly referred hereto as the “Leased Property”.

E. Que la Propiedad Arrendada se encuentra libre de gravámenes, cargas, afectaciones o limitaciones de posesión o dominio de cualquier tipo, y al corriente en el pago de todas las contribuciones gubernamentales que le son aplicables.

E. The Leased Property is free from any liens, encumbrances, affectations or limitations of possession or domain of any kind, and is current in the payment of all applicable governmental contributions.

F. Que está registrada ante la Secretaria de Hacienda y Crédito Público, con el Registro Federal de Contribuyentes número FSM960315HU0.

F. It is registered before the Ministry of Finance and Public Credit, with a taxpayer ID number FSM960315HU0.

G. Tiene el derecho de subarrendar el Segundo Terreno, bajo los términos y condiciones establecidos en el presente instrumento.

G. It has the right to sublease the Second Plot under the terms and conditions set forth in this instrument.

H. La Propiedad Arrendada tiene un uso de suelo autorizado para fines industriales, de conformidad con las normas aplicables en Colonia California, Estado de Coahuila de Zaragoza.

H. The Leased Property has an authorized use of land for industrial purposes in accordance with the applicable regulations in Colonia California, State of Coahuila de Zaragoza.

I. Que la veracidad y exactitud de las declaraciones del Arrendatario contenidas en el capítulo de Declaraciones de este Contrato es uno de sus motivos determinantes para la celebración de este Contrato.

I. That the truthfulness and accuracy of the representations by Lessee, contained in the Representations section of this Agreement is one of its fundamental motives to enter into this Agreement.

II. Declara el Arrendatario, a través de su representante legal, lo siguiente:

II. Lessee hereby represents, through its legal representative, that:

A. Que es una sociedad anónima de capital variable, legalmente constituida en México, según consta en la escritura pública número 31,100, de fecha 13 de septiembre de 2019, otorgada ante la fe del licenciado Emilio Cárdenas Estrada, notario público número 3, con ejercicio en la ciudad de Monterrey, Nuevo León, e inscrita en el Registro Público de Comercio de la Ciudad de México, bajo el folio número N-2019075492, con fecha 20 de septiembre de 2019.

A. It is a variable stock corporation (sociedad anónima de capital variable), legally incorporated in Mexico, as shown in public deed number 31,100, dated September 13, 2019, granted before Mr. Emilio Cárdenas Estrada, notary public number 3, with authority in the city of Monterrey, Nuevo León, and recorded before the Public Registry of Commerce of México City, under folio number N-2019075492, on September 20, 2019.

B. Que su representante legal goza de las facultades necesarias para la celebración de este Contrato, sin que las mismas le hayan sido limitadas o modificadas de forma alguna.

B. Its legal representative has the necessary authority to enter into and execute this Agreement, and that such authority has not been limited or amended in any manner whatsoever.

C. Que para cumplir con su objeto social desea que el Arrendador le arriende la Propiedad Arrendada en los términos de este Contrato.

C. In order to comply with its corporate purpose, it wishes for Lessor to lease the Leased Property pursuant to the terms hereof.

D. Los recursos con los que hará frente a sus obligaciones derivadas del presente Contrato provienen de fuentes lícitas conforme a lo establecido en la Ley Nacional de Extinción de Dominio y en los artículos 17 y 18 de la Ley Federal para la Prevención e Identificación de Operaciones con Recursos de Procedencia Ilícita.

D. The resources with which it shall pay for its obligations arising out of this Agreement come from licit sources pursuant to the provisions set forth in the National Law for Extinction of Domain and articles 17 and 18 of the Federal Law for the Prevention and Identification of Operations with Resources from Illicit Origin.

E. Que está registrada ante la Secretaria de Hacienda y Crédito Público, con el Registro Federal de Contribuyentes número FCA190913BC9.

E. It is registered before the Ministry of Finance and Public Credit, with a taxpayer ID number FCA190913BC9.

F. Conoce y ha revisado la Propiedad Arrendada y es su voluntad tomarla en arrendamiento de conformidad con los términos y condiciones del presente Contrato.

F. It knows and it has inspected the Leased Property and it agrees to lease it pursuant to the terms and conditions set forth in this Agreement.

G. Que la veracidad y exactitud de las declaraciones del Arrendador contenidas en el capítulo de Declaraciones de este Contrato es uno de sus motivos determinantes para la celebración de este Contrato.

G. That the truthfulness and accuracy of the representations by Lessor, contained in the Representations section of this Agreement is one of its fundamental motives to enter into this Agreement.

III. Declaran las partes, a través de sus representantes legales, lo siguiente:

III. The parties hereby represent, through their legal representatives, the following:

A. Que es condición esencial y uno de los motivos determinantes de la voluntad de las partes al celebrar el presente Contrato que la Renta se denomine en Dólares.

A. That it is a condition precedent and one of the fundamental motives for the parties to enter into and execute this Agreement, for the Rent to be payable in Dollars.

B. Que reconocen que, no obstante, el hecho de que la Renta se denomina y expresa en Dólares, conforme al artículo 8 de la Ley Monetaria de los Estados Unidos Mexicanos, el Arrendatario podrá liberarse de su obligación de pago de la Renta entregando al Arrendador (o a quién sus derechos represente) el equivalente en Pesos al Tipo de Cambio.

B. That they acknowledge that, notwithstanding the fact that the Rent is denominated and expressed in Dollars, pursuant to article 8 of the Monetary Law of the United Mexican States, Lessee may be released from its obligation to pay the Rent by delivering Lessor (or to whom may represent its rights) the equivalent in Pesos at the Exchange Rate.

C. Que expresamente reconocen que existe novación de contrato, en virtud de que los acuerdos pactados en este Contrato alteran substancialmente el Contrato de Arrendamiento y su convenio modificatorio, y porque las obligaciones pactadas en el presente instrumento sustituyen las pactadas anteriormente en el mencionado Contrato de Arrendamiento y su convenio modificatorio.

D. Que expresamente reconocen que en virtud de la novación se extinguen las obligaciones principales del Contrato de Arrendamiento y su convenio modificatorio; en el entendido que ninguna de las partes hace reserva expresa para impedir la extinción de las obligaciones accesorias del Contrato de Arrendamiento y su convenio modificatorio.

E. Que reconocen que es condición esencial y uno de los motivos determinantes de la voluntad de las partes al celebrar el presente Contrato, la capacidad del Arrendatario para dar cumplimiento a sus obligaciones conforme a este Contrato y que el Garante firma y otorga la Garantía en favor del Arrendador.

C. That they expressly acknowledge that there is a novation of agreement, since the terms entered into in this Agreement substantially modify the Lease Agreement and its amendment agreement, and because the obligations entered into in this Agreement replace those agreed to previously in the aforementioned Lease Agreement and its amendment agreement.

D. That they expressly acknowledge that by virtue of the novation the main obligations of the Lease Agreement and its amendment agreement are extinguished; provided however that none of the parties makes an expressed reservation to prevent the extinction of the ancillary obligations of the Lease Agreement and its amendment agreement.

E. That they acknowledge that it is a condition precedent and one of the fundamental motives for the parties to enter into and execute this Agreement, the capacity of Lessee to fulfill its obligations hereunder and that Guarantor signs and delivers the Guaranty in favor of Lessor.

C L A U S U L A S:

C L A U S E S:

Cláusula 1. Definiciones.

Clause 1. Definitions.

Los términos definidos que se utilizan con mayúscula inicial en este Contrato, tienen el significado que se les atribuye a continuación:

The defined terms used with initial capital letter in this Agreement, shall have the meaning ascribed to them below:

“Acciones de Remediación” significa todas las acciones y conjunto de medidas necesarias para cumplir con las Leyes, mismas que pueden contemplar (sujeto a que la Ley lo requiera) en (a) eliminar, reducir, limpiar, remover, tratar, restaurar, contener, abatir, cubrir o de cualquier otra forma ajustar el volumen o cantidad de contaminantes ya sean Materiales Peligrosos, residuos peligrosos o cualesquier otras sustancias contaminantes que hubieran sido liberados al ambiente ocasionando la contaminación de suelos, ya sea al interior o exterior de la Propiedad Arrendada y/o de mantos acuíferos; (b) prevenir o controlar la Emisión de Materiales Peligrosos de tal forma que no migren o pongan en peligro o amenacen poner en peligro la salud pública o el bienestar de las personas o el medio ambiente; y (c) realizar estudios de caracterización de sitio, programas y planes de remediación, investigaciones, restauración y estudios post-remediatorios (o atención de post-limpieza), evaluaciones, pruebas, investigaciones y monitoreo respecto de cualquier inmueble.

“Remedial Actions” means all the actions and set of measures that are necessary to comply with the Laws, which may include (as expressly requested by the Laws) to (a) eliminate, reduce, clean, remove, treat, restore, contain, abate, cover or in any other way adjust the volume or amount of pollutants whether Hazardous Materials, hazardous wastes or any other polluting substances- that had been released to the environment causing the pollution of land, whether the interior or exterior of the Leased Property and/or aquifers; (b) prevent or control the Emission of Hazardous Materials in such a way that they do not migrate or pose danger or threat to pose danger to the public health or wellbeing of the persons or the environment; and (c) carry out site characterization studies, repair programs and plans, investigations, restoration and post-repair studies (or attention of post-cleaning), evaluations, testing, investigations and monitoring with respect to any plot of land.

“Arrendador o Arrendadora”, tiene el significado que se le atribuye a dicho término en el proemio de este Contrato.

“Lessor” has the meaning ascribed to such term in the preamble of this Agreement.

“Arrendatario o Arrendataria”, tiene el significado que se le atribuye a dicho término en el proemio de este Contrato.

“Lessee” has the meaning ascribed to such term in the preamble of this Agreement.

“Autoridad Gubernamental” significa cualquier gobierno federal, estatal, municipal, centralizado o descentralizado, con jurisdicción para ejercer funciones formalmente o materialmente administrativas, legislativas o jurisdiccionales (incluyendo cualquier tribunal).

“Governmental Authority” means any federal, state, municipal, centralized, decentralized government, with jurisdiction to formally and materially exercise administrative, legislative or judicial functions (including any court of law).

“Caso de Fuerza Mayor” tiene el significado que se le atribuye a dicho término en la cláusula 11.3 de este Contrato.

“Force Majeure Event” has the meaning ascribed to such term in clause 11.3 of this Agreement.

“Condición Contaminante” significa, respecto de la Propiedad Arrendada, desde la Fecha de Inicio, actos u omisiones en violación a las Leyes que resulten en una Emisión o Daños Ambientales.

“Contamination Condition” or “Polluting Condition” means, with respect to the Leased Property, from the Commencement Date, acts or omissions in violation of the Laws that result in an Emission or Environmental Damage.

“Contingencias Ambientales” tiene el significado que se le atribuye a dicho término en la cláusula 18.4 de este Contrato.

“Environmental Matters” has the meaning ascribed to such term in clause 18.4 of this Agreement.

“Daños Ambientales” significa cualesquier pérdida, cambio, deterioro, menoscabo, afectación o modificación adversa de los elementos y recursos naturales, sus condiciones físicas, químicas o biológicas o las relaciones de interacción entre dichos elementos y recursos naturales, así como de los servicios ambientales que proporcionan, cuando éstos sean causados por el Arrendatario (o sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad), a partir de la Fecha del Primer Arrendamiento (o antes si tuvo acceso a la Propiedad Arrendada para instalar maquinaria o equipo), y al amparo de las Leyes, consistiendo en, o relacionados con, (a) cualquier Contingencia Ambiental o Condición Contaminante, incluyendo contaminación interna o externa, y el manejo integral de Materiales Peligrosos, residuos peligrosos, materiales tóxicos, sustancias o productos químicos e incluyendo, además, lesiones corporales (incluyendo lesión, enfermedad o muerte); (b) multas, sanciones, sentencias, laudos arbitrales, convenios, procedimientos legales o administrativos, daños, pérdidas, reclamaciones, demandas y contestaciones, así como costos y gastos de investigación, remedición o inspección, que deriven de las Leyes; (c) responsabilidad financiera conforme a las Leyes por costos asociados con cualquier investigación, caracterización, Acción de Remediación, limpieza, extracción, contención, u otro remedio o acción requerido por las Leyes aplicables y por cualesquier daños por desastres naturales; y (d) cualquier otra medida de cumplimiento, correctiva, investigativa o remedial requerida al amparo de las Leyes.

“Environmental Damage” means any loss, change, deterioration, detriment, affectation or adverse modification of the elements and natural resources, their physical, chemical or biological conditions, or the interaction relations among such elements and natural resources, as well as the environmental services rendered, when these are caused by Lessee (or its Affiliates, successors, sublessees, contractors, subcontractors, employees, visitors, agents, or any other Person under its responsibility), as of the First Lease Date (or earlier if it had access to the Leased Property to install machinery or equipment) and pursuant to the Laws, consisting in, or related to, (a) any Environmental Matters or Polluting Condition, including internal and external pollution, and the comprehensive management of Hazardous Materials, hazardous wastes, toxic materials, chemical products and substances and including, additionally, bodily injuries (including injuries, sickness or death); (b) fines, sanctions, judicial resolutions, arbitral awards, agreements, legal or administrative procedures, damages, losses, claims, lawsuits and statements of defense, as well as costs and expenses for investigation, repair or inspection, derived from the Laws; (c) financial liability pursuant to the Laws for costs associated with any investigation, characterization, Repair Action, cleaning, extraction, contention, or another remedy or action required by the Applicable Laws or for any damages for natural disasters and; (d) any other measures of compliance, correction, investigation or remediation required pursuant to the Laws.

“Daños y Perjuicios” significa cualesquier pasivos, directos o contingentes, demandas, reclamaciones, acciones, multas, penalizaciones, responsabilidades, actos u omisiones, pérdidas, costos, gastos y, en general, cualesquier daños y perjuicios, de cualquier naturaleza, incluyendo, sin limitar, los honorarios y gastos razonables de sus asesores legales.

“Damages” means any liabilities, direct or contingent, lawsuits, claims, actions, fines, penalties, responsibilities, acts or omissions, losses, costs, expenses and, in general, any damage or loss or profit, of any nature, including without limitation, the reasonable fees and expenses of attorneys.

“Depósito de Garantía A” significa una cantidad igual a 3 (tres) meses de Renta, más el IVA correspondiente.

“Depósito en Garantía B” significa USD $2’250,000 menos el Depósito en Garantía A.

“Depósitos en Garantía” significa conjuntamente el Depósito en Garantía A y el Depósito en Garantía B.

“Security Deposit A” means the amount equal to three (3) months of Rent, plus the corresponding VAT.

Security Deposit B” means USD $2’250,000 less Security Deposit A.

“Security Deposits” means the Security Deposit A and the Security Deposit B.

“Dólares” o “USD$” significa la moneda de curso legal de los Estados Unidos de América.

“Dollars” or “USD$” means legal currency in the United States of America.

“Edificio” tiene el significado que se le atribuye a dicho término en la declaración I, apartado D.

“Building” has the meaning ascribed to such term in recital I, section D hereto.

“Emisión” significa cualquier tipo de liberación o transferencia de contaminantes al ambiente, propiciados de manera enunciativa por el derrame, fuga, descarga, escape, bombeo, vertido, inyección, depósito, disposición, dispersión, filtración o migración o cualquier otro tipo de Emisión, sea intencional o no, de cualquier Material Peligroso o residuo peligroso, hacia o a través de la atmósfera, aire, suelo, superficie, agua, aguas subterráneas o bienes inmuebles (incluyendo estructuras, edificios y construcciones) y maquinaria y equipos.

“Emission” means any type of release or transfer or pollutants into the environment, caused without limitation by the spillage, leak, discharge, escape, bombing, pouring, injection, deposit, disposition, dispersion, filtration or migration or any other kind of Emission, whether intentional or not, of any Hazardous Material or hazardous wastes, unto or through the atmosphere, air, soil, surface, water, subterraneous waters or real estate properties (including structures, buildings and constructions) and machinery and equipment.

“Expropiación” significa cualquier evento o acción que resulte en la privación del derecho de propiedad del Arrendador con respecto a toda o una parte de la Propiedad Arrendada, por cualquier Autoridad Gubernamental, por causa de utilidad pública conforme a la Ley Aplicable.

“Condemnation” means any event or action resulting in the deprivation of the Lessor, by any Governmental Authority, of the property right with respect to all or portion of the Leased Property by virtue of a cause of public utility pursuant to the Applicable Law.

“Fecha de Inicio” significa retroactivamente el 1º de octubre de 2020.

“Commencement Date” means retroactively October 1^st, 2020.

“Fecha del Primer Arrendamiento” tiene el significado que se le atribuye en el antecedente I de este Contrato.

“First Lease Date” has the meaning ascribed to such term in recital I of this Agreement.

“Fecha de Terminación” tiene el significado que se le atribuye a dicho término en la cláusula 17.1 de este Contrato.

“Filial” significa, respecto de cualquier Persona, cualquier otra Persona que (a) directa o indirectamente controle, sea controlada por, o se encuentre bajo el control común con dicha primera Persona, (b) directa o indirectamente sea titular del 50% (cincuenta por ciento) o más del capital social o derechos como beneficiario de dicha primera Persona, o (c) sea un familiar en relación directa con dicha primera Persona (incluyendo cualquier Persona que directa o indirectamente esté controlada por dicho familiar directo). Para efectos de esta definición, “control” (incluyendo “controlada por” y “bajo control común”), cuando se utilice respecto de cualquier Persona, significará la posesión, directa o indirecta, del poder de dirigir o causar que se dirija la administración y políticas de dicha Persona, ya sea a través de la propiedad de las acciones con derecho a voto, por contrato o de cualquier otra forma.

“Termination Date” has the meaning ascribed to such term in clause 17.1 of this Agreement.

“Affiliate” means, with respect to any Person, any other Person that (a) directly or indirectly controls, is controlled by, or is under common control with such first Person, (b) directly or indirectly holds 50% (fifty percent) or more of the capital stock or beneficiary rights of such first Person, or (c) is a person related by kinship in straight line with such first Person (including any Person that is directly or indirectly controlled by such straight-line related person). For purposes of this definition, “control” (including “controlled by” and “under common control”), when used with respect to any Person, shall mean the possession, directly or indirectly, of the power to conduct or cause the conduction of the management and policies of such Person, whether through ownership of the shares with voting right, or by contract or in any other way.

“Garante” significa la empresa FreightCar America, Inc.

“Guarantor” means the company FreightCar America, Inc.

“Garantía” significa la garantía corporativa, suscrita y otorgada por el Garante en esta fecha, en términos sustancialmente similares al formato adjunto al presente Contrato como Anexo “D”.

“Guaranty” means the corporate guaranty, executed and granted by the Guarantor on this date, in terms substantially similar to the form attached hereto as Exhibit “D”.

“Interés Moratorio” tiene el significado que se le atribuye a dicho término en la cláusula 4.3 de este Contrato.

“Default Interest” has the meaning ascribed to such term in clause 4.3 of this Agreement.

“IVA” significa el Impuesto al Valor Agregado o el impuesto que lo sustituya en el futuro.

“VAT” means the Value Added Tax or the tax that substitutes in the future.

“Legislación Ambiental” significa cualquier ley federal, estatal, local y otras disposiciones, regulaciones, acuerdos, reglamentos, decretos, ordenes, requerimientos, reglas, lineamientos, procedimientos internos, política, estipulación, parámetros, criterios, estándares y normas oficiales mexicanas, así como cualesquier obligaciones derivadas de permisos, sentencias, laudos, licencias, autorizaciones o concesiones, emitidas por cualesquiera autoridades gubernamentales, en cada caso en relación con salud pública, seguridad e higiene, emisión de ruidos, emisiones luminosas u olores en al medio ambiente, aire, suelo, subsuelo, aguas, aguas subterráneas en la Propiedad Arrendada, contaminación o protección al medio ambiente o a los recursos naturales en general, así como la contaminación (o prevención de la contaminación) de aire, agua, aguas subterráneas, suelo y subsuelo (incluyendo todas aquellas relacionadas con la presencia, uso, producción, generación, manejo, transporte, tratamiento, almacenaje, disposición, distribución, etiquetado, procesamiento, descarga, liberación, control, remediación o limpieza de cualquier Material Peligroso) en vigor durante el Plazo aplicables a la Propiedad Arrendada. Incluye sin limitación alguna la Ley General del Equilibrio Ecológico y la Protección al Ambiente, la Ley Federal de Responsabilidad Ambiental, la Ley de Asentamientos Humanos, Ordenamiento Territorial y Desarrollo Urbano del Estado de Coahuila de Zaragoza, la Ley General para la Prevención y Gestión Integral de los Residuos, Ley para la Prevención y Gestión Integral de Residuos para el Estado de Coahuila de Zaragoza, la Ley de Aguas Nacionales, Ley de Aguas para los Municipios del Estado de Coahuila de Zaragoza, la Ley General de Salud, Ley Estatal de Salud del Estado de Coahuila, Ley de Equilibrio Ecológico y Protección al Ambiente del Estado de Coahuila de Zaragoza, Ley para la Adaptación y Mitigación a los Efecto del Cambio Climático en el Estado de Coahuila de Zaragoza, Ley para Combatir el Ruido en el Estado de Coahuila de Zaragoza, Ley de Protección Civil para el Estado de Coahuila de Zaragoza, y sus correspondientes reglamentos (en su caso), así como las Normas Oficiales Mexicanas: NOM-001-SEMARNAT-1997, NOM-002-SEMARNAT-1996, NOM-052-SEMARNAT-2005, NOM-053-SEMARNAT-1993, NOM-081-SEMARNAT- 1994, NOM-138-SEMARNAT/SSA1-2012, NOM-010-STPS-1999 y NOM-147-SEMARNAT-SSA1-2004 (así como los lineamientos internos utilizados por la Procuraduría Federal de Protección al Ambiente para suelos contaminados y su remediación), así como las modificaciones, reformas y adiciones a las mismas.

“Environmental Law” means any federal, state, local and other regulations, acts, decrees, orders, requirements, rules, guidelines, internal proceedings, policies, stipulations, parameters, criteria, standards and Mexican official norms, as well as any obligations derived from permits, judgements, awards, licenses, authorizations or concessions, issued by any governmental authority, in each case related to public health, security and hygiene, noise emissions, luminous emissions or odor emissions to the environment, air, soil, subsoil, water, underground water, at the Leased Property, contamination or protection to the environment or to the natural resources in general, as well as, the contamination (or pollution prevention) to air, water, underground water, soil and subsoil (including those related to the presence, use, production, generation, handling, transport, treatment, labeling, process, release, control, remediation or cleaning of any Hazardous Materials) in place during the Term and applicable to the Leased Property. Includes without limitation, the General Law of Ecological Equilibrium and Protection of the Environment, Federal Environmental Responsibility Law, Human Settlements, Territorial Organization and Urban Development Law for the State of Coahuila de Zaragoza, the General Law for the Prevent and Integral Action of the Residues, the Law for Integral Action of Residues for the State of Coahuila de Zaragoza, the National Waters Law, the Waters Law for the State of Coahuila de Zaragoza, the General Law of Health, Health Law for the State of Coahuila de Zaragoza, Law of Ecological Balance and Environmental Protection of the State of Coahuila de Zaragoza, Law for Adaptation and Mitigation to the Effects of Climate Change in the State of Coahuila de Zaragoza, Law to Combat Noise in the State of Coahuila de Zaragoza, Civil Protection Law for the State of Coahuila de Zaragoza and its corresponding regulations as applicable), as well as the following Mexican Official Norms: NOM-002-SEMARNAT-1996, NOM-052-SEMARNAT-2005, NOM-053-SEMARNAT-1993, NOM-081-SEMARNAT-1994, NOM-138-SEMARNAT/SS-2003, NOM-010-STPS-1999 y NOM-147-SEMARNAT-SSA1-2004, (as well as the internal regulations used by the Federal Environmental Protection Prosecutor for contaminated soils and its remediation), as well as the modifications, amendments and additions to the same.

“Leyes” o “Legislación Aplicable” o “Ley Aplicable” o “Leyes Aplicables” significa todas las leyes, reglamentos, normas oficiales mexicanas, ordenamientos, resoluciones, órdenes, reglas, normas, preceptos, circulares, decretos y cualesquier otras disposiciones emitidas por alguna Autoridad Gubernamental.

“Laws” or “Applicable Law” or “Applicable Laws” means all the laws, regulations, Mexican official standards, ordinances, resolutions, orders, rules, norms, precepts, circulars, decrees and any other provisions issued by any Governmental Authority.

“Materiales Peligrosos” significa cualquier elemento, sustancia, compuesto, residuo o mezclas de ellos, que independientemente de su estado físico y de acuerdo a la Ley Aplicable represente un riesgo para el ambiente, la salud o los recursos naturales, por sus características corrosivas, reactivas, explosivas, inflamables o biológico-infecciosas, independientemente de que éstas se encuentren comprendidas dentro de los listados de sustancias sujetas a reporte que publica la Secretaría del Medio Ambiente y Recursos Naturales o su equivalente, incluyendo cualquier mezcla o solución de las mismas, incluyendo particularmente petróleo y todos los derivados del mismo o sus sustitutos sintéticos, asbestos o materiales que contengan asbestos y bifenilos policlorados.

“Hazardous Materials” means any element, substance, compound, waste or mixture of them, that regardless of their physical state and according to the Applicable Law, represents a risk for the environment, health or natural resources, due to their corrosive, reactive, explosive, flammable or biological-infectious characteristics contained in the list of substances subject to a report published by the Ministry of Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales) or its equivalent, including any mixture or solution of the same including particularly petroleum and all derivatives thereof or their synthetic substitutes, asbestos or materials that contain asbestos and polychlorinated biphenyl.

“Mejoras del Arrendatario” tiene el significado que se le atribuye a dicho término en la cláusula 9.1 de este Contrato.

“Lessee Improvements” has the meaning ascribed to such term in clause 9.1 of this Agreement.

“Monto Recibido” significa la indemnización recibida por el Arrendador o el Arrendatario (solo en la medida y por el valor de las Mejoras del Arrendatario o expansiones construidas por el Arrendatario), como resultado de una Expropiación, libre de cualquier pago a terceros y de todos los gastos relacionados con el procedimiento de expropiación e indemnización, incluyendo, sin limitar, los honorarios de abogados.

“Amount Received” means the indemnification received by Lessor or Lessee (only to the extent of the value of the Improvements and expansions built by Lessee) as a result of a Condemnation, free of any payments to third parties and all the costs related to the expropriation and compensation process, including without limitation, attorneys’ fees.

“Persona” significa cualquier individuo, sociedad, compañía, asociación, sociedad civil, sociedad de responsabilidad limitada, asociación en participación, fideicomiso, entidad, Autoridad Gubernamental u otra entidad de cualquier naturaleza que tenga personalidad jurídica.

“Person” means any individual, corporation, entity, company, association, civil entity, limited liability company, joint venture, trust, Governmental Authority or other entity of any nature with legal capacity.

“Plazo” tiene el significado que se le atribuye a dicho término en la cláusula 3.1 de este Contrato.

“Term” has the meaning ascribed to such term in clause 3.1 of this Agreement.

“Propiedad Arrendada” tiene el significado que se le atribuye a dicho término en la declaración I, apartado D de este Contrato.

“Leased Property” has the meaning ascribed to such term in recital I, section D of this Agreement.

“Renta”, tiene el significado que se le atribuye a dicho término en la cláusula 4.1 de este Contrato.

“Rent” has the meaning ascribed to such term in clause 4.1 of this Agreement.

“Primer Terreno” tiene el significado que se le atribuye a dicho término en la declaración I, apartado C de este Contrato.

“First Plot” has the meaning ascribed to such term in recital I, section C of this Agreement.

“Segundo Terreno” tiene el significado que se le atribuye a dicho término en la declaración I, apartado C de este Contrato.

“Second Plot” has the meaning ascribed to such term in recital I, section C of this Agreement.

“Tipo de Cambio” significa el llamado tipo de cambio libre emitido por el Banco de México en la fecha de pago.

“Exchange Rate” means the denominated free-floating exchange rate issued by the Bank of Mexico on the date of payment.

“Usos Permitidos” tiene el significado que se le atribuye a dicho término en la cláusula 5.1 de este Contrato.

“Permitted Uses” has the meaning ascribed to such term in clause 5.1 of this Agreement.

Cláusula 2. Objeto.

2.1 Contrato de Novación. En este acto, las partes expresamente novan el Contrato de Arrendamiento y su convenio modificatorio, alterando substancialmente sus acuerdos, por lo que las obligaciones pactadas en el presente instrumento sustituyen las pactadas anteriormente en el mencionado Contrato de Arrendamiento y su convenio modificatorio.

Así mismo, en virtud de la novación pactada, las partes extinguen las obligaciones principales y accesorias del Contrato de Arrendamiento y su convenio modificatorio.

2.2 Reexpresión de Contrato. En este acto, en virtud de la novación anteriormente pactada, las partes acuerdan expresamente reexpresar el Contrato de Arrendamiento y su convenio modificatorio, conforme a lo pactado a partir de la cláusula 2.3 y subsecuentes del presente Contrato.

Clause 2. Purpose.

2.1 Novation Agreement. The parties hereby expressly novate the Leasing Agreement and its amendment agreement, substantially altering their terms, so that the obligations agreed to in this Agreement replace those previously agreed to in the aforementioned Lease Agreement and its amendment agreement.

Likewise, by virtue of the agreed to novation, the parties extinguish the main and the ancillary obligations of the Lease Agreement and its amendment agreement

2.2. Restatement of Agreement. By virtue of the previously agreed to novation, the parties hereby expressly agree to restate the Lease Agreement and its amendment agreement, pursuant to the provisions set forth from clause 2.3 and the subsequent clauses of this Agreement.

2.3 Arrendamiento. Sujeto a los términos y condiciones de este Contrato, en este acto, el Arrendador le da al Arrendatario el uso y goce temporal de la Propiedad Arrendada, y el Arrendatario, a su vez, se obliga a pagar al Arrendador la Renta a partir de la Fecha de Inicio.

2.3 Lease. Subject to the terms and conditions of this Agreement, Lessor hereby grants Lessee the temporary use and enjoyment of the Leased Property, and Lessee hereby agrees to pay Lessor the Rent as of the Commencement Date.

2.4 Entrega de Posesión. El Arrendador, por medio del presente entrega al Arrendatario la posesión de la Propiedad Arrendada. Las partes acuerdan expresamente que la aceptación por parte del Arrendatario de la posesión de la Propiedad Arrendada es prueba suficiente de que el Arrendatario ha inspeccionado, recibido y aceptado la posesión de la Propiedad Arrendada en su condición actual y que la Propiedad Arrendada está en buen estado; sin embargo, las partes quedan en el entendido que (a) dentro de 1 (un) año contado a partir de la Fecha de Inicio, el Arrendador deberá haber obtenido los permisos para construir y operar una espuela que conecte la Propiedad Arrendada con las líneas de ferrocarril y haber concluido la construcción de dicha espuela de manera razonablemente satisfactoria para el Arrendatario, y (b) en un plazo de 30 (treinta) días naturales contados a partir de este fecha, el Arrendador preparará y entregará al Arrendatario un certificado de terminación sustancial con una lista de pendientes que deberá construir el Arrendador cuando ambas partes lo determinen.

2.4 Delivery of Possession. Lessor hereby delivers to Lessee the possession of the Leased Property. The parties expressly agree that the acceptance by the Lessee of the possession of the Leased Property is sufficient proof that the Lessee has inspected, received and accepted the possession of the Leased Property in its “as is” condition and that the Leased Property is in good condition; provided however that (a) within 1 (one) year from the Commencement Date Lessor shall have obtained all permits to build and operate a spur to connect the Leased Property to the railroad lines and have completed the construction thereof to Lessee’s reasonable satisfaction, and (b) within 30 (thirty) calendar days from the date hereof, Lessor shall prepare and deliver to Lessee a substantial completion certificate, which shall include a punch list of pending items that shall be built by Lessor when the parties so agree.

Cláusula 3. Plazo y No Prórroga.

Clause 3. Term and No Renewal Period.

3.1 Plazo. Las partes acuerdan que el presente Contrato es vinculatorio desde esta fecha. El plazo del arrendamiento comenzará en la Fecha de Inicio y concluirá en 20 (veinte) años (el “Plazo”). Dicho Plazo será forzoso para ambas partes.

3.1 Term. The parties hereby agree that this Agreement shall be binding from the date hereof. The lease term shall commence on the Commencement Date and will terminate in 20 (twenty) years (the “Term”). Such Term shall be mandatory for both parties.

3.2 Prórroga. La Arrendadora no otorga a la Arrendataria derecho a prorrogar el Plazo.

Cláusula 4. Renta y Depósito en Garantía.

3.2 Renewal Period. Lessor grants Lessee no option to extend the Term.

Clause 4. Rent and Security Deposit.

4.1 Monto, Forma y Fecha de Pago de la Renta. (a) A partir de la Fecha de Inicio, el Arrendatario pagará al Arrendador como contraprestación por el uso y goce de la Propiedad Arrendada una renta anual por la cantidad de USD $6.72 (seis Dólares 72/100) por pie cuadrado del Edificio, más el IVA, equivalente a USD $2’028,848.00 (dos millones veintiocho mil ochocientos cuarenta y ocho Dólares 00/100), más el IVA, la cual será pagadera mensualmente por el monto de USD $169,070.66 (ciento sesenta y nueve mil setenta Dólares 66/100), más el IVA (la “Renta”), (b) a partir del 5º (quinto) aniversario de la Fecha de Inicio, el Arrendatario pagará como contraprestación por el uso y goce de la Propiedad Arrendada una renta anual por la cantidad de USD $7.21 (siete Dólares 21/100) por pie cuadrado del Edificio, más el IVA, la cual será pagadera mensualmente, (c) a partir del 10º (décimo) aniversario de la Fecha de Inicio, el Arrendatario pagará como contraprestación por el uso y goce de la Propiedad Arrendada una renta anual por la cantidad de USD $7.64 (siete Dólares 64/100) por pie cuadrado del Edificio, más el IVA, la cual será pagadera mensualmente, y (d) a partir del 15º (décimo quinto) aniversario de la Fecha de Inicio, el Arrendatario pagará como contraprestación por el uso y goce de la Propiedad Arrendada una renta anual por la cantidad de USD $8.10 (ocho Dólares 10/100) por pie cuadrado del Edificio, más el IVA, la cual será pagadera mensualmente (las cantidades pagaderas bajo los incisos (a), (b), (c) y (d) anteriores, según se apliquen en cada uno de los cuatro periodos, en adelante la “Renta”). Las partes acuerdan que, en el caso de cualquier expansión futura al Edificio, el Arrendador cobrará cuando menos la misma renta pagadera por pie cuadrado, en los términos arriba indicados, dependiendo cual Renta sea la aplicable cuando la expansión se termine de construir; en el entendido que en caso que la expansión termine de construirse dentro de los primeros 5 (cinco) años de vigencia, la renta pagadera se calculará a USD $6.80 (seis Dólares 80/100), y no USD $6.72 (seis Dólares 72/100)

4.1 Amount, Form and Date of Payment of the Rent. (a) Starting on the Commencement Date, Lessee shall pay Lessor, as consideration for the use and enjoyment of the Leased Property an annual rent of USD$6.72 (six Dollars 72/100) per square foot of the Building, plus the VAT, equivalent to USD $2’028,848.00 (two million twenty eight thousand eight hundred forty eight Dollars 00/100), plus the VAT, which shall be payable on a monthly basis in the amount of USD $169,070.66 (one hundred sixty nine thousand seventy Dollars 66/100), plus the VAT, (the “Rent”), (b) starting on the 5^th (fifth) anniversary of the Commencement Date, Lessee shall pay, as consideration for the use and enjoyment of the Leased Property an annual rent of USD$7.21 (seven Dollars 21/100) per square foot of the Building, plus the VAT, which shall be payable on a monthly basis, (c) starting on the 10^th (tenth) anniversary of the Commencement Date, Lessee shall pay, as consideration for the use and enjoyment of the Leased Property an annual rent of USD$7.64 (seven Dollars 64/100) per square foot of the Building, plus the VAT, which shall be payable on a monthly basis, and (d) starting on the 15^th (fifteenth) anniversary of the Commencement Date, Lessee shall pay, as consideration for the use and enjoyment of the Leased Property an annual rent of USD$8.10 (eight Dollars 10/100) per square foot of the Building, plus the VAT, which shall be payable on a monthly basis (the amounts payable under (a), (b), (c) and (d) above, as they apply in each of the four periods, hereinafter the “Rent”). The parties agree that for any future expansion Lessor shall charge at least the same rent payable per square footage, as stated above, depending on the Rent payable at the time such expansion is finally built; provided that with respect to such expansion finally being built in the first 5 (five) year period, such rent amount shall be calculated off of USD $6.80 (six Dollars 80/100), as opposed to USD $6.72 (six Dollars 72/100).

Toda Renta la pagará el Arrendatario por mensualidades adelantadas, contra la entrega de la factura con los requisitos fiscales aplicables y dentro de los primeros 10 (diez) días hábiles del mes por pagar; con excepción de la Renta del primer mes que se pagará en la fecha del presente Contrato.

All Rents shall be paid by Lessee in advance every month against the delivery of the invoice in compliance with the applicable tax regulations and within the first 10 (ten) business days of the month to pay; with the exception of the first month which shall be payable on the date hereof.

Las partes entienden que históricamente han existido devaluaciones significativas en el valor del Peso frente al Dólar, por lo que, es previsible que, en el futuro existan nuevos cambios en la paridad. En esa eventualidad, el Arrendatario será responsable de tomar las providencias y medidas que, a su juicio, estime convenientes con el fin de minimizar su riesgo ante el supuesto previsible de una devaluación cambiaria, de tal forma que si el Arrendatario decide pagar en Pesos, en los términos de la Ley Monetaria, el Arrendatario pagará la cantidad necesaria para que el Arrendador adquiera los mismos Dólares al tipo de cambio vigente en la fecha de cada pago, aunque tenga que pagar cantidades adicionales necesarias para compensar el diferencial en el Tipo de Cambio, de manera que el Arrendador reciba en la fecha de pago la cantidad de Dólares convenida.

The parties understand that historically there have been significant devaluations in the value of the Peso versus the Dollar, so it is expected that in the future, there may be new changes in such exchange rates. In this eventuality, Lessee shall be responsible for taking the providences and actions that, to its judgment, deems appropriate in order to minimize the risk in the predictable event of a currency devaluation, so that if Lessee chooses to pay in Pesos, in terms of the Monetary Law, Lessee shall pay the amount required by Lessor to acquire the same amount of Dollars at the exchange rate prevailing on the date of each payment, even if it needs to pay additional necessary amounts to compensate the difference in the Exchange Rate, so that Lessor shall receive, at the date of payment, the amount of Dollars agreed herein.

Por otra parte, es la intención de las partes que la Renta pagadera conforme al presente Contrato sea absolutamente neta para el Arrendador a efecto que el presente Contrato produzca durante el Plazo, los rendimientos que éste ha calculado; por lo tanto, las partes expresamente convienen en que el Arrendatario (a) deberá cubrir el gasto y cualquier costo en relación con la propiedad y mantenimiento de la Propiedad Arrendada, (b) deberá pagar el impuesto predial de la Propiedad Arrendada, (c) deberá pagar las pólizas de seguro pactadas en la cláusula 13, y (d) no tendrá derecho a compensar o deducir cualquier cantidad de los pagos de Renta, con excepción de los montos establecidos en el presente instrumento referentes a la reducción de la Renta para reembolsar los Depósitos en Garantía, en los términos pactados en la cláusula 4.5. El Arrendatario en este acto renuncia, de manera expresa e irrevocable, a cualquier derecho a pedir reducciones de Renta o a retener el pago de la Renta previsto en el Código Civil Federal.

Moreover, it is the purpose of the parties that the Rent payable hereunder shall be absolutely net to Lessor so that this Agreement shall yield the calculated income during the Term; therefore, it is expressly agreed to by the parties that Lessee shall (a) bear the cost and any and all costs and expenses relating the ownership and maintenance of the Leased Property, (b) pay the real estate tax of the Leased Property, (c) pay the insurance policies agreed to in clause 13, and (d) not be entitled to compensate or deduct any amount from the Rent, other than such amounts set forth herein with respect to the reduction of the Rents to reimburse the Security Deposits as discussed in clause 4.5. Lessee hereby expressly and irrevocably waives the right to request reductions of the Rent or withhold the payment of the Rent established in the Federal Civil Code.

4.2 Lugar de Pago. La Arrendataria pagará la Renta a través de transferencia electrónica de fondos a la cuenta a nombre de la Arrendadora, conforme a las siguientes instrucciones:

4.2 Place of Payment. Lessee shall pay the Rent by electronic transfer of funds to Lessor’s account, pursuant to the following instructions:

Beneficiary Account: 145580177610002010

Beneficiary Bank: Banco Base SA, IBM

Beneficiary Bank Account: 8900111615

Beneficiary Bank SWIFT: BBSEMXMX

Intermediary Bank: The Bank of New York Mellon

Intermediary Bank ABA: 021000018

Intermediary Bank SWIFT: IRVTUS3N

Intermediary Bank Branch: New York, NY

El Arrendatario depositará en esa misma cuenta los Depósitos en Garantía.

Beneficiary Account: 145580177610002010

Beneficiary Bank: Banco Base SA, IBM

Beneficiary Bank Account: 8900111615

Beneficiary Bank SWIFT: BBSEMXMX

Intermediary Bank: The Bank of New York Mellon

Intermediary Bank ABA: 021000018

Intermediary Bank SWIFT: IRVTUS3N

Intermediary Bank Branch: New York, NY

Lessee shall deposit in the same account the Security Deposits.

La Renta será pagada al Arrendador sin necesidad de aviso ni demanda y sin deducciones, retenciones o diferimientos de especie alguna.

The Rent shall be paid to the Lessor without prior notice or demand and without deductions, withholdings or deferrals of any kind.

El Arrendador no está obligado a aceptar pagos parciales de Renta y en caso de que lo hiciera, tal circunstancia no significará que hubiera habido modificación respecto de la forma y tiempo de pago convenida en este Contrato. Así mismo, si por cualquier eventualidad el Arrendatario paga al Arrendador la Renta en forma distinta a la estipulada en esta cláusula, las partes no deberán entender por ello la modificación o novación del Contrato, el cual permanecerá en pleno vigor y efecto.

Lessor shall not have to accept partial Rent payments and if it does, such circumstance will not imply an amendment regarding the form and time of payment agreed to in this Agreement. Likewise, in the event Lessee pays the Rent to Lessor in a different way than that agreed to in this clause, the parties shall not interpret this as an amendment or novation of the Agreement, which will remain in full force and effect.

El Arrendatario está obligado a pagar la Renta y las demás contraprestaciones pactadas, a pesar de que no pueda ocupar o usar la Propiedad Arrendada por cuestiones fiscales, laborales, administrativas u otras que le sean atribuibles o hayan sido decididas por el Arrendatario.

Lessee shall continue paying the Rent and any other fees agreed, even in the event it does not occupy or use the Leased Property for tax, labor, administrative or other reasons whatsoever that are attributable to or have been decided by Lessee.

4.3 Intereses Moratorios. El Arrendatario pagará un interés moratorio por cada día de retraso en el pago de la Renta o cualquier otra cantidad debida a favor del Arrendador, en los términos del presente Contrato, conforme a la siguiente fórmula: (a) el monto adeudado se multiplicará por el 5% (cinco por ciento) (el “Interés Moratorio”), (b) el resultado de dicha multiplicación se dividirá entre 360 (trescientos sesenta), y (c) el resultado de la división se multiplicará por el número de días de retraso.

4.3 Late Payment Interest. Lessee will pay a penalty interest for each day of delay in the payment of the Rent or any other amount due in favor de Lessor, under the terms of this Agreement, according to the following formula: (a) the amount owed shall be multiplied by 5% (five percent) (the “Default Interest”), (b) the result of said multiplication will be divided by 360 (three hundred sixty), and (c) the result of the division will be multiplied by the number of days of delay.

El Arrendatario conviene que el cargo por mora que aquí se establece es justo y razonable, cumple con las Leyes Aplicables y constituye un acuerdo expreso entre el Arrendador y el Arrendatario en cuanto a que la compensación que se estima es justa en virtud de los costos y gastos administrativos en que incurrirá el Arrendador en caso de demora en el pago de la Renta u otros gastos por el Arrendatario. El pago de los intereses moratorios es independiente del pago de los Daños y Perjuicios o cualquier pena convencional que aplique conforme a lo dispuesto en este Contrato.

Lessee agrees that the penalty interest established herein is fair and reasonable, complies with Applicable Laws and constitutes an express agreement between Lessor and Lessee, since the compensation that is estimated is fair by virtue of the costs and administrative expenses that Lessor will incur in case of delay in the payment of the Rent or other expenses by Lessee. Payment of this penalty interest is independent of payment of Damages or any contractual penalty that applies in accordance with the provisions of this Agreement.

4.5 El Depósito en Garantía. En o antes de los setenta y cinco (75) días contados a partir de la fecha del presente Contrato, el Arrendatario depositará al Arrendador los Depósitos en Garantía. El Arrendatario autoriza expresamente al Arrendador a utilizar discrecionalmente los Depósitos en Garantía, y además a usarlos para cubrir, entre otros gastos, razonablemente documentados y previamente notificados al Arrendatario (a) el pago de servicios, (b) las reparaciones que se tengan que realizar a la terminación del presente Contrato en caso de que el Contrato termine antes de la terminación del Plazo del Depósito en Garantía, (c) el pago de las pólizas de seguros, y (d) el pago de las cuotas de mantenimiento, si lo hubiere. Los Depósitos en Garantía en ningún momento deberán considerarse como pago de Renta futura, ni como pago por adelantado de servicios o cualquier otro adeudo que pudiere tener el Arrendatario, en los términos del presente Contrato.

4.5 The Security Deposits. On or before seventy-five (75) days from the date of this Agreement, Lessee shall deposit to Lessor, the Security Deposits. Lessee expressly authorizes Lessor to use the Security Deposits at its own discretion and also to use them to cover, among other expenses, that are reasonably documented and following notice to Lessee (a) the payment of services, (b) the repairs that must be made at the termination of this Agreement in the event the Agreement terminates prior to the expiration of the Security Deposit Term, (c) the payment of insurance policies, and (d) the payment of maintenance fees, if any. The Security Deposits shall not be considered at any time as payment of future Rent, nor as advance payment for services or any other debt that the Lessee may have, under the terms of this Agreement.

Sin perjuicio del uso de los Depósitos de Garantía por parte del Arrendador para cualquier fin o para pagar los gastos establecidos en el párrafo anterior: (a) el Arrendador reembolsará al Arrendatario el Depósito de Garantía A en 60 (sesenta) meses, a partir de noviembre de 2020, descontando cada mes el mismo monto (esto es, 1/60º del Depósito en Garantía A) de la Renta pagadera mensualmente durante dicho período y (b) el Arrendador reembolsará el Depósito de Garantía B conforme a los términos del Anexo 4.5(b). En el caso de que el Arrendador aplique una parte del Depósito de Garantía para pagar cualquiera de los gastos establecidos en el párrafo anterior, el monto reembolsable del Depósito de Garantía se reducirá en consecuencia.

Without prejudice to the use of the Security Deposits by Lessor to any end or to pay the expenses set forth above: (a) Lessor shall reimburse Lessee Security Deposit A in 60 (sixty) months, starting on November, 2020, by deducting each month the corresponding equal amount (i.e., 1/60^th of Security Deposit A) from the Rent payable monthly during such period, and (b) Lessor shall reimburse Security Deposit B pursuant to the terms of Schedule 4.5(b). In the event that Lessor applies a portion of the Security Deposit to pay any of the expenses set forth in the previous paragraph, the reimbursable amount of the Security Deposit shall be reduced accordingly.

Cláusula 5. Destino; Maquinaria y Equipo; Seguridad.

Clause 5. Use of Leased Property; Machinery and Equipment; Security.

5.1 Destino de la Propiedad Arrendada. La Arrendataria solamente podrá usar y ocupar la Propiedad Arrendada como una instalación para la fabricación, ensamblado y producción de vagones de tren, partes y componentes de vagones de tren, incluyendo, oficinas administrativas, diseño, ingeniería, empaquetado, ventas, exhibición de productos, prestación de servicios, entrenamiento de personal, almacén, bodega, estacionamiento y/o cualquier otro uso legal, ya sea accesorio o incidental a los anteriores (los “Usos Permitidos”). Sin embargo, las partes quedan en el entendido que dichos usos no podrán (a) estar relacionados con la manufactura, procesamiento, uso, almacenamiento o liberación de Materiales Peligrosos, (b) estar relacionados con la liberación de humos, gases, vapores u olores nocivos, (c) ocasionar la emisión de cualquier ruido más allá del perímetro del Edificio, en cada caso más allá de los parámetros máximos permitidos por las Leyes Aplicables, (d) estar destinados a almacenar, ocultar y/o mezclar bienes de procedencia ilícita o producto de actividades ilícitas que sean instrumento, objeto o producto de un delito (producto de delitos patrimoniales o de delincuencia organizada), que estén siendo utilizados para la comisión de un delito o de cualquier manera relacionados o vinculados con delitos, y (e) violar sustancialmente cualquier Ley Aplicable.

5.1 Use of Leased Property. Lessee shall use and occupy the Leased Property as a facility for manufacture, assembly and production of railcars and railcar parts and components, including administrative offices, design, engineering packaging, sales, product showcase, service, staff training, store, warehouse, parking lots and other lawful uses accessory and incidental to the foregoing (the “Permitted Uses”. Provided however that such uses do not and shall not (a) involve the manufacture, processing, use, storage or release of Hazardous Materials, (b) involve the release of any noxious fumes, vapors or odors, (c) cause the emission of any noise beyond the perimeter of the Building, in each case beyond the maximum permitted parameters allowed by Applicable Law, (d) be to keep, hide and/or mix goods coming from or product of illegal activities, that may be an instrument, the subject matter of or the result of a crime (product of white-collar or patrimonial-related crimes or organized criminal activities), that are being used for committing a crime or in any manner related or connected to crimes, and (e) violate any Applicable Law in material respects.

En esta fecha, el Arrendador manifiesta que la Propiedad Arrendada actualmente cuenta con todos los permisos, licencias y/o autorizaciones relevantes conforme a la Ley Aplicable para que el Arrendador haya podido construir una nave industrial en el Primer Terreno y en el Segundo Terreno.

As of the date hereof, Lessor hereby represents that the Leased Property currently has all relevant permits, licenses, and/or authorizations required by Applicable Law in order for Lessor to build an industrial facility on the First Plot and the Second Plot.

El Arrendatario no deberá utilizar u ocupar la Propiedad Arrendada para cualquier actividad u operación distinta sin el consentimiento previo y por escrito del Arrendador, el cual podrá ser rechazado o condicionado, a entera discreción del Arrendador. Las Partes acuerdan que el incumplimiento de esta cláusula 5.1 por el Arrendatario será considerado como causal rescisión del presente Contrato, obligándose el Arrendatario a desocupar y entregar la Propiedad Arrendada al Arrendador sin necesidad de requerimiento alguno.

Lessee shall not use or occupy the Leased Property for any other purpose or business without the prior written consent of Lessor, which consent may be withheld or conditioned in Lessor’s reasonable discretion. The Parties hereby agree that the breach of this clause 5.1 by Lessee shall be considered as a cause for termination of this Agreement, Lessee shall vacate and deliver the Leased Property to Lessor with no further requirements.

5.2 Legalidad de las Actividades Comerciales. El Arrendatario no realizará ni permitirá ningún acto que pudiese constituir una molestia pública o privada, o que cause daño al Arrendador o a otras personas o que pudiera invalidar cualesquiera pólizas de seguros que actualmente existan o posteriormente se contraten para el Edificio.

5.2 Lawfulness of Commercial Activities. Lessee shall not cause or permit any act that may constitute a public or private nuisance, or cause damage to Lessor or other persons or that may invalidate any current insurance policies or those subsequently contracted for the Building.

El Arrendatario se obliga a no utilizar la Propiedad Arrendada para fines ilícitos, tales como lavado de dinero u otras actividades delictuosas, o a utilizar la Propiedad Arrendada para la comisión de actividades tipificadas como delitos o ilegales, ni cualquier actividad que pudiera ser objeto del procedimiento de extinción de dominio al que se refiere los artículos 7 y 8 de la Ley Nacional de Extinción de Dominio o cualquier otra ley análoga, liberando desde este momento al Arrendador de cualquier responsabilidad penal, civil o de cualquier otra índole en que pudiera incurrir el Arrendatario por sus actividades desempeñadas en la Propiedad Arrendada.

Lessee hereby agrees not to use the Leased Property for illegal purposes such as money laundering, or other criminal activities, or to use the Leased Property to commit criminal or illegal activities, nor any activity that could cause the asset to be the object of forfeiture proceedings referred to in Articles 7 and 8 of the Federal Asset Recovery Law “Ley Nacional de Extinción de Dominio” or any similar law, releasing Lessor in this act from any criminal civil or any other responsibilities that may be incurred by Lessee for its activities in the Leased Property.

5.3 Indemnización. En todo caso, el Arrendatario se obliga a indemnizar y mantener al Arrendador en paz y a salvo de cualquier responsabilidad, demanda, acción, Daños y Perjuicios, penas, gastos y/o erogaciones que se le impongan a la Propiedad Arrendada y/o al Arrendador por actos u omisiones del Arrendatario que constituyan una violación a lo dispuesto en esta cláusula 5.

5.3 Indemnity. In any case, Lessee agrees to indemnify and hold Lessor harmless from any liability, claims, actions, Damages, penalties, costs and/or expenses that may be imposed to the Leased Property and/or Lessor for acts or omissions of Lessee that constitute a breach to the provisions of clause 5 herein.

5.4. Maquinaria y Equipo Introducida a la Propiedad Arrendada. El Arrendatario reconoce y conviene que toda maquinaria, equipo, mobiliario, vehículo y demás bienes que introduzca o instale en la Propiedad Arrendada, los introduce a su propio riesgo y en todo momento serán responsabilidad única y exclusiva del Arrendatario. Por consiguiente, el Arrendador no asume responsabilidad alguna por cualquier daño, robo o extravío que pudiera sufrir cualquiera de dichos bienes. El Arrendador reconoce que el Arrendatario es el propietario, o tiene la titularidad legal (de conformidad con los arrendamientos financieros y otro financiamiento en el curso normal de operaciones, u otro), sobre dicha maquinaria y equipo y, por lo tanto, el Arrendador no tiene ningún derecho sobre la maquinaria y el equipo, o cualquier otro bien introducido por el Arrendatario en la Propiedad Arrendada, incluso si dicha maquinaria y equipo está adherido al piso. El Arrendador proporcionará inmediatamente, previa solicitud, las certificaciones necesarias y comunes que manifiesten que no existen gravámenes u otras cargas sobre dichos bienes, según lo solicite cualquier fuente de financiamiento del Arrendatario.

5.4 Machinery and Equipment. Lessee acknowledges and agrees that all machinery, equipment, furniture, vehicles, manufactured goods and any other goods introduced to or installed by Lessee at the Leased Property, are introduced at its own risk and at all times they shall be the exclusive responsibility of Lessee. Therefore, Lessor shall not assume any liability whatsoever for any damage, theft or loss of any of such goods. Lessor acknowledges that Lessee is the owner, or has legal title (pursuant to capital leases and other financing in the ordinary course of business, or other), on such machinery and equipment and thus, Lessor does not have any right on the machinery and equipment, or any other goods introduced by Lessee in the Leased Property, even if such machinery and equipment is attached to the floor. Lessor shall provide promptly upon request customary acknowledgements of having no liens or other encumbrances on such assets, as may be requested by any financing source of Lessee.

5.5 Seguridad de la Propiedad Arrendada. A partir de esta fecha, el Arrendatario será la única parte responsable de contratar los servicios de seguridad que requiera de acuerdo a sus necesidades para el resguardo de la Propiedad Arrendada y de sus contenidos.

5.5 Security of the Leased Property. Starting on this date, Lessee shall be the only party responsible for hiring the security services required per its own needs to secure the Leased Property and its contents.

Cláusula 6. Otras Erogaciones.

Clause 6. Other Expenditures.

6.1 Cuotas de Mantenimiento. Las partes quedan en el entendido que en este momento no existen cuotas de mantenimiento pagaderas al Arrendador. Sin embargo, en la eventualidad que en el futuro el Arrendador desarrolle los predios contiguos a la Propiedad Arrendada y construye un desarrollo industrial que requiera el pago de cuotas de mantenimiento, además de la Renta, el Arrendatario deberá pagar mensualmente al Arrendador una cuota de mantenimiento de la Propiedad Arrendada por la cantidad que en ese momento acuerden las partes, más el Impuesto al Valor Agregado. La forma, fecha y lugar de pago de la cuota de mantenimiento, si la hubiere, sería el mismo que el de la Renta. La cuota de mantenimiento, si la hubiere, sería incrementada anualmente.

6.1 Maintenance Fees. The parties understand that at this moment there are no maintenance fees payable to Lessor. However, in the event that in the future Lessor develops the contiguous plots of land to the Leased Property and creates an industrial development that requires the payment of maintenance fees, in addition to the Rent, Lessee shall pay to Lessor the monthly fee for the maintenance of the Leased Property if agreed to at that moment between the parties, plus Value Added Tax. The form, date and place of payment would be the same as the Rent. The maintenance fee, if any, would be increased annually.

En caso que las partes acuerden una cuota de mantenimiento, si el Arrendatario no la paga oportunamente, pagará al Arrendador el interés moratorio pactado en la cláusula 4.3.

In the event the parties agree on a maintenance fee and Lessee does not pay it on time, he shall pay Lessor the penalty interest agreed upon in clause 4.3.

6.2 Impuestos. Cada una de las partes será responsable por el cumplimiento de las obligaciones fiscales que les correspondan por la celebración y ejecución de este Contrato, de acuerdo con lo dispuesto por las Leyes Aplicables durante el Plazo; sin embargo, (a) la Arrendataria pagará el impuesto predial (o su equivalente) que se cause por la Propiedad Arrendada, y (b) el IVA que cause la Renta será trasladado a la Arrendataria en términos de las disposiciones aplicables.

6.2 Taxes. Each party shall be responsible for the compliance of the tax obligations imposed on them for the execution and signing of this Agreement, pursuant with the provisions of the Applicable Laws during the Term; however, (a) Lessee shall pay the property tax (or its equivalent) caused by the Leased Property, and (b) the VAT caused by the Rent shall be transferred to Lessee in terms of the applicable provisions.

6.3 Servicios Públicos. El Arrendatario será responsable de todos y cada uno de los pagos por el consumo y la contratación de cualesquier servicios públicos (incluyendo, sin limitar, servicios de energía eléctrica, teléfono, gas y agua y drenaje) en la Propiedad Arrendada, así como cualesquier otros servicios contratados por el Arrendatario en la Propiedad Arrendada, incluyendo, sin limitar, cualesquier cuotas de aportación, cuotas por conexión, cuotas por capacidad, depósitos o garantías y el costo incurrido por prolongar las líneas de servicio desde su ubicación existente hasta el punto de conexión al Edificio. El Arrendador no será responsable en ningún caso ante el Arrendatario por la falla en la conexión o suministro de los servicios mencionados anteriormente o por la calidad de los mismos. Al término de este Contrato, el Arrendatario entregará al Arrendador una copia de los recibos correspondientes y, si el Arrendador lo requiere, un certificado de no adeudo emitido por la compañía de servicios que proporcione el servicio.

6.3 Utilities. Lessee shall be responsible for any and all payments of the consumption and contracting of any public services (including but not limited to electricity, telephone, gas, water and sewer services) in the Leased Property, and any other services contracted by Lessee in the Leased Property, including, but not limited to any contribution fee, hook-up fees, capacity fees, deposits and guaranties and the cost to extend the service lines from its existing location to the point of connection to the Building. Lessor shall not be responsible in any case before Lessee for the failure in the connection or supply of the utilities above mentioned or for the quality thereof. Upon termination of this Agreement, Lessee shall deliver to Lessor a copy of the corresponding receipts and if Lessor requires it, a non-debt certificate issued by the utility company that provides the service.

Cláusula 7. Licencias, Permisos y Autorizaciones.

Clause 7. Licenses, Permits and Authorizations.

7.1 Permiso de Descargas de Aguas Residuales. El Arrendatario se obliga a obtener a su propio costo el permiso de descargas de aguas residuales (o su equivalente), en caso de ser necesario, y a cumplir con todas las obligaciones al amparo de las Leyes respecto de la descarga de aguas residuales. Así mismo, el Arrendatario se obliga a preparar y entregar al Arrendador y a cualquier Autoridad Gubernamental, según sea razonablemente requerido por el Arrendador o por cualquier Autoridad Gubernamental, reportes sobre el contenido de las aguas residuales descargadas por el Arrendatario.

7.1 Discharge of Residual Waters. Lessee agrees to obtain, at its own cost, the residual water discharge license (or its equivalent), if needed, and to comply with each and every obligation contained in the Laws with respect to the discharge of residual waters. Furthermore, Lessee agrees to prepare and deliver to the Lessor or any Governmental Authority, as may be reasonably required by Lessor or by any Governmental Authority, reports on the content of the residual waters discharged by Lessee.

El Arrendador tendrá derecho a su costo, de tomar muestras, llevar a cabo estudios o verificaciones de las descargas de aguas residuales del Arrendatario, previa notificación por escrito al Arrendatario, a efecto de cerciorarse que la descarga de aguas residuales no exceda los parámetros máximos permitidos por las Leyes, de manera sustancial, respecto de cualquier elemento, compuesto o sustancia normada o regulada; en el entendido que, si a causa de dichas verificaciones el Arrendador descubre un exceso en los parámetros máximo permitidos por las Leyes, en las aguas residuales, causado por Arrendatario, sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad, el Arrendatario deberá reembolsar al Arrendador todos los costos y gastos incurridos conforme a este párrafo, dentro de los 10 (diez) días naturales siguientes a la entrega del recibo y resultados correspondientes, y el Arrendatario inmediatamente deberá implementar, a su costo y gasto, todas las Acciones de Remediación a fin de reducir los parámetros a niveles aceptables conforme a las Leyes.

Lessor shall have the right, at its own cost, to take samples, perform studies or verifications of Lessee’s residual water discharges, upon reasonable previous written notice given to Lessee, in order to verify that the residual water discharges do not exceed the maximum parameters permitted by the Laws, in all material respects, with regard to any element, compound or normed or controlled substance; provided that if due to such verifications, Lessor discovers and demonstrates to Lessee an excess in the maximum parameters permitted by the Laws in the residual waters, caused by Lessee, its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility, Lessee shall reimburse Lessor all reasonable and necessary costs and expenses incurred in terms of this paragraph, within the 10 (ten) calendar days following to the delivery of the corresponding receipt and results and Lessee shall immediately implement at its own cost and expense, all Remedial Actions in order to reduce the parameters to an acceptable level according to the Laws.

7.2 Licencias Ambientales. El Arrendatario se obliga a obtener las licencias y permisos ambientales y a cumplir con todas y cada una de las obligaciones al amparo de las Leyes en materia ambiental. Así mismo, el Arrendatario se obliga a preparar y entregar al Arrendador y a cualquier Autoridad Gubernamental, según sea razonablemente requerido por el Arrendador o por cualquier Autoridad Gubernamental, reportes sobre las Emisiones a la atmósfera, la calidad del suelo, la generación de residuos peligrosos por parte del Arrendatario, entre otros temas ambientales.

7.2 Environmental Permits. Lessee agrees to obtain all environmental licenses and permits and to comply with each and every obligation under the environmental Laws Furthermore, Lessee agrees to prepare and deliver to the Lessor or any Governmental Authority, as may be reasonably required by Lessor or by any Governmental Authority, reports regarding the Emissions into the atmosphere, soil quality, and hazardous waste generation by Lessee, among other environmental issues.

Mediante notificación por escrito al Arrendatario con al menos 3 (tres) días hábiles de anticipación, el Arrendador podrá tomar muestras, llevar a cabo inspecciones periódicas, estudios o verificaciones en la Propiedad Arrendada, a fin de verificar que la Propiedad Arrendada esté libre de Materiales Peligrosos, cuyo manejo integral no se adecúe y realice en total cumplimiento con la Ley. Los costos relacionados con dichas inspecciones, estudios o verificaciones, deberán ser pagados por el Arrendador; en el entendido, sin embargo, que si por virtud de dichas inspecciones, estudios o verificaciones el Arrendador descubre una Condición Contaminante en la Propiedad Arrendada o el Edificio, y demuestra que fue causada por el Arrendatario, sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad, el Arrendatario deberá reembolsar al Arrendador todos los costos y gastos razonables y necesarios incurridos conforme a esta cláusula, dentro de los 10 (diez) días naturales siguientes a la entrega del recibo y resultados correspondientes. Adicionalmente, si por virtud de dicha inspección, el Arrendador descubre una Condición Contaminante, causada durante la ocupación del Arrendatario de la Propiedad Arrendada, el Arrendatario deberá implementar de inmediato, a su propio costo y gasto, toda Acción de Remediación a fin de eliminar cualquier Condición Contaminante, causada por el Arrendatario o sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad, y el Arrendatario acuerda en someterse a programas de autorregulación y de auditoría ambiental o de naturaleza similar ante la Procuraduría Federal de Protección al Ambiente o ante cualquier autoridad que sustituya a la anterior, como el programa de “Industria Limpia” u otro de naturaleza similar, a fin de cumplir con las Leyes y, de ser el caso, con las Acciones de Remediación que fueren necesarias para restablecer las condiciones de la Propiedad Arrendada, incluyendo el pago de multas y otras sanciones administrativas, la implementación de medidas de seguridad, la corrección de irregularidades u otras faltas u omisiones en las que el Arrendatario haya incurrido de acuerdo con las Leyes.

Upon not less than 3 (three) business day prior notice to Lessee, Lessor may take samples, perform periodical inspections, studies or verifications at the Leased Property, in order to verify that the Leased Property is free of Hazardous Materials whose integrated management does not fully comply in with the Law. The costs related to the above inspections, studies or verifications, shall be paid by the Lessor; provided, however, that if due to such inspections, studies or verifications Lessor discovers a Contamination Condition in the Leased Property or the Building and demonstrates that it was caused by Lessee or its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility, Lessee shall reimburse Lessor all reasonable and necessary costs and expenses incurred pursuant to this clause, within the 10 (ten) calendar days following to the delivery of the corresponding receipt and results. Additionally, if due to such inspection, Lessor discovers a Contamination Condition, caused by Lessee during Lessee’s occupation of the Leased Property, Lessee shall immediately implement at its own cost and expense, all Remedial Actions in order to eliminate any Contamination Condition caused by Lessee or its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility, and Lessee further agree, to submit to the self-regulation and environmental audit programs or any other similar program thereof before the Federal Bureau for Environmental Protection (Procuraduría Federal de Protección al Ambiente) or any substituting authority thereof, such as “Clean Industry” or any other similar program, in order to fulfill the Laws and, if such is the case, the Remedial Actions that may be necessary to restore the conditions of the Leased Property, including the remediation of fines or other administrative charges, the implementation of security measures, the correction of irregularities or other omissions or failures in which the Lessee might have incurred pursuant to the Laws.

7.3 Otras Licencias, Permisos y Autorizaciones para la Operación de la Propiedad Arrendada. Además de lo pactado en las cláusulas 7.1 y 7.2, la Arrendataria será total y exclusivamente responsable de obtener y mantener vigentes durante el tiempo que ocupe la Propiedad Arrendada todos los permisos, licencias y/o autorizaciones que conforme a la Legislación Aplicable sean necesarias para la operación de sus actividades industriales conforme a los Usos Permitidos. Para tal efecto, el Arrendador facilitará al Arrendatario cualquier tipo de documentación solicitada por las autoridades competentes necesaria para efectuar los trámites a que se refiere esta cláusula.

7.3 Other Licenses, Permits and Authorizations for the Operation of the Leased Property. In addition to the covenants included in clauses 7.1 and 7.2 hereof, Lessee shall be fully and solely responsible for obtaining and maintaining in full force and effect, during the time occupying the Leased Property, all permits, licenses and authorizations that under the Applicable Laws are necessary for the operation of its industrial activities pursuant to the Permitted Uses. For such purpose, Lessor shall provide to Lessee any documentation requested by the competent authorities necessary to complete the filings referred herein.

El Arrendatario por este medio se obliga a entregar al Arrendador, en un plazo no mayor de diez (10) días naturales siguientes a la solicitud por escrito del Arrendador, copia simple de cada uno de sus permisos, licencias y/o autorizaciones, incluyendo, en su caso, cualquier permiso de tipo ambiental. En caso de que los permisos, licencias y/o autorizaciones aún no hayan sido expedidos, el Arrendatario se considerará en cumplimiento con lo previsto en esta cláusula 7, mediante la presentación de evidencia de que, dichos todos los permisos, licencias y/o autorizaciones están en trámite y que ha presentado toda la documentación y llenado los requisitos correspondientes.

Lessee hereby agrees to deliver to Lessor, within a term not exceeding 10 (ten) calendar days following the Landlord’s written request, a copy of each and all permits, licenses and authorizations, including in its case, any permit of environmental nature. In the case that the permits, licenses and authorizations have not yet been issued, Lessee shall be considered in compliance with that set forth in this clause 7, by delivering evidence that said permits, licenses and authorizations have been filed and that it has submitted all corresponding documents and requirements in that regard.

7.4 Gastos. Los gastos incurridos para la obtención de las licencias, permisos y/o autorizaciones señaladas en esta cláusula serán por cuenta del Arrendatario.

7.4 Expenses. Expenses incurred for obtaining licenses, permits and/or authorizations mentioned in this clause shall be borne by the Lessee.

7.5 Incumplimiento. Las partes convienen en que cualquier incumplimiento, sustancial y no subsanado, a lo previsto en esta cláusula 7 por parte del Arrendatario será considerado como una causal de recisión de este Contrato, sin necesitad de resolución judicial alguna y sin liberar al Arrendatario de su responsabilidad. Lo anterior no libera al Arrendatario de sus responsabilidades u obligaciones con cualquier Autoridad Gubernamental respecto a la descarga de sus aguas residuales que puedan ser impuestas por alguna Ley Aplicable; por lo tanto, el Arrendatario será la única parte responsable del cumplimiento de dichas responsabilidades y obligaciones y se obliga a indemnizar y a sacar en paz y a salvo al Arrendador de cualquier responsabilidad o Daños y Perjuicios en relación con las obligaciones del Arrendatario previstas en esta cláusula.

7.5 Breach. The parties hereby agree that a material and uncured breach of this clause 7 by Lessee shall be considered as a rescission cause of this Agreement, with no further requirements for a judicial resolution and without releasing Lessee from being liable. The above does not release Lessee from its responsibilities and obligations to any Governmental Authority with respect to the discharge of its residual waters which may be imposed by any Applicable Laws; therefore, Lessee shall be the only responsible party for the fulfillment of these obligations and shall indemnify Lessor and hold it harmless from any liability or Damages derived from or related to the obligations of Lessee under this clause.

Cláusula 8. Mantenimiento.

Clause 8. Maintenance.

8.1 Mantenimiento del Arrendador. El Arrendador, a su propio costo y gasto, llevará a cabo todas las reparaciones, la estructura de muros, la estructura del techo (incluyendo los miembros de soporte, pero excluyendo el aislamiento de techos y la membrana) del Edificio, que sean necesarios; siempre y cuando dichas reparaciones (a) no sean imputables al Arrendatario o sus Filiales, causahabientes, subarrendatarios, contratistas subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad, por haber sometido estas áreas estructurales a cargas por encima de las cargas de diseño, y que el uso de estos elementos estructurales están siendo estrictamente utilizadas para el propósito para el cual fueron diseñadas, y (b) no sean imputables a la negligencia o mala fe del Arrendatario o de sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad. El Arrendatario deberá notificar por escrito al Arrendador en un plazo que no excederá de 10 (días) días naturales a la fecha en que tenga conocimiento de los daños a la Propiedad Arrendada, la necesidad de que realice algún mantenimiento o reparación conforme a lo dispuesto por esta cláusula.

8.1 Maintenance by Lessor. Lessor shall, at its own cost and expense, provide all repairs and replacements of Building foundations, the structure of walls and the structure of the roof (including the support members but without including the ceiling insulation and the membrane) that may be needed; provided that such repairs (a) are not imputable to Lessee, its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility, for subjecting this structural areas to loads over the designed loads, and that the use of these structural elements has been strictly used for the purpose for which they were designed, and (b) are not imputable to the gross negligence or bad faith of the Lessee, its Lessee or its Affiliates, or Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility. Lessee must notify Lessor in writing within a period not exceeding 10 (ten) calendar days from the date it becomes aware of damage to the Leased Property, the need to perform any maintenance or repair in accordance with the provisions of this clause.

El Arrendador realizará los esfuerzos razonables para minimizar la interferencia con la actividad comercial del Arrendatario en relación con el desempeño de cualquier trabajo descrito en esta cláusula.

Lessor shall use reasonable efforts to minimize interference with Lessee’s conduct of business in connection with Lessor’s performance of any work described in this clause.

8.2 Mantenimiento del Arrendatario. El Arrendatario, a su propio costo y gasto, deberá mantener y llevar a cabo todas las reparaciones y remplazos no estructurales, incluyendo, los techos, canales y tubos de desagüe limpios y pintados, la pintura interior y exterior del Edificio, la membrana, los sistemas eléctricos, hidráulicos y de aire acondicionado, el aislamiento del Edificio y el sistema de prevención de fuego interior desde la fecha de celebración este Contrato y hasta la desocupación y entrega del Edificio a la entera satisfacción del Arrendador. En el caso de la membrana, en virtud de que esta tiene una garantía por plazo determinado, es necesario que el Arrendatario notifique al Arrendador inmediatamente cualquier problema que observe durante inspecciones rutinarias o mantenimiento del techo. Por último, el Arrendatario no podrá perforar el techo sin el consentimiento previo y por escrito del Arrendador.

8.2 Maintenance by Lessee. Lessee shall maintain and carry out, at its own cost and expense, all non-structural repairs and replacements, including keeping the roof, gutters and downspouts clean and painted, the interior and exterior paint of the Building, the membrane, all electric, hydraulic and air conditioning systems and the insulation of the Building, the fire prevention system and the interior from the date of execution of this Agreement until its vacancy and delivery at Lessor’s total satisfaction. Regarding the membrane, as it is guaranteed for a determined term, Lessee must immediately notify Lessor any problems detected during its routine inspections or the maintenance of the roof. Finally, the Lessee may not drill the ceiling without the prior written consent of Lessor.

Además de lo anterior, el mantenimiento por parte del Arrendatario se sujetará a lo siguiente: (a) el Arrendatario llevará a cabo todos los mantenimientos necesarios, utilizando personal cualificado por los fabricantes de las instalaciones o equipos, a efecto de mantener vigentes las garantías otorgadas por dichos fabricantes, y (b) si en cualquier momento durante el Plazo el Arrendatario incumple con cualquiera de sus obligaciones de mantenimiento al amparo de este Contrato, previa notificación por escrito con 15 (quince) días naturales de anticipación al Arrendatario (o sin notificación en caso de emergencia) el Arrendador podrá, sin estar obligado a ello y sin liberar al Arrendatario de sus obligaciones, llevar a cabo los actos a los que el Arrendatario está obligado conforme al presente Contrato (exclusivamente a costo y gasto del Arrendatario), para lo cual tendrá derecho a ingresar a la Propiedad Arrendada y llevar a cabo todos los actos necesarios para el caso en particular. Todas las cantidades pagadas por el Arrendador respecto del cumplimiento de dichas obligaciones del Arrendatario deberán ser pagadas por el Arrendatario, en cuanto las mismas sean solicitadas por el Arrendador.

Furthermore, the maintenance by Lessee shall be subject to the following: (a) Lessee shall provide such maintenance with personnel qualified by the equipment and installations fabricators that required so, in order to maintain in force the guaranties granted by the fabricators, and (b) if at any time during the Term, Lessee fails to perform any of its maintenance obligations hereunder, Lessor, after 15 (fifteen) calendar days of having given written notice to Lessee to this effect (or without notice in the case of emergency), and without waiving or releasing Lessee from any of its obligations contained in this Agreement, may, but without being obligated to do so, perform acts which Lessee is obligated to perform (at Lessee’s sole cost and expense), and shall be able to enter the Leased Property for such purpose, and to carry out all acts that are necessary in the particular case. Likewise, all sums paid by the Lessor with respect to the performance of said obligations of the Lessee shall be payable by Lessee to Lessor on demand.

8.3 Limpieza de la Propiedad Arrendada. En todo caso el Arrendatario será responsable de mantener la Propiedad Arrendada limpia y en buen estado, así como de contratar los servicios de recolección de basura y residuos peligrosos que se requieran de acuerdo a las actividades del Arrendatario en la Propiedad Arrendada.

8.3 Cleanliness of the Leased Property. In any case, Lessee shall be responsible of keeping the Leased Property clean and in good condition, as well as to hire those garbage and dangerous residuals generated by the activities of the Lessee at the Leased Property.

Cláusula 9. Mejoras.

Clause 9. Modifications.

9.1 Mejoras Realizadas por el Arrendatario. El Arrendatario podrá, a su propio costo y gasto, llevar a cabo mejoras menores o cambios a la Propiedad Arrendada, a su propio costo y riesgo, previa notificación por escrito al Arrendador describiendo dichas mejoras, siempre y cuando éstas (a) no alteren o deterioren la estructura de la Propiedad Arrendada, y (b) en suma durante el Plazo, no excedan la cantidad de USD $1’000,000.00 (un millón de Dólares 00/100), siempre y cuando dichas modificaciones o alteraciones no incrementen la superficie bajo techo del Edificio (las “Mejoras del Arrendatario”).

9.1 Modifications made by Lessee. Lessee is hereby authorized to make minor modifications or alterations to the Leased Property, at its own cost and risk, with prior written notice to Lessor describing said modifications and so long as said modifications (a) do not alter or deteriorate the structure of the Leased Property, and (b) in the aggregate throughout each calendar year, do not exceed the amount of USD $1’000,000.00 (one million Dollars 00/100) so long as such modification or alterations do not increase the size of Building (“Lessee Improvements”).

Salvo por lo expresamente dispuesto anteriormente, el Arrendatario no podrá hacer ninguna otra mejora o cambio a la Propiedad Arrendada, sin el consentimiento previo y por escrito del Arrendador; en el entendido que dicho consentimiento podrá ser denegado por el Arrendador a su entera discreción.

Except as expressly provided above, Lessee shall not make any other modifications or alterations to the Leased Property without the written consent of Lessor; in the understanding that such consent may be denied by Lessor in its sole discretion.

Cualquier mejora o cambio realizado a la Propiedad Arrendada por parte del Arrendatario deberá llevarse a cabo de manera profesional de primera clase, utilizando únicamente materiales de primera clase, consistentes con el Edificio, y deberá cumplir con todas las reglas del Arrendador y las Leyes.

Any modifications or alterations made by Lessee shall be performed in a first-class workmanlike manner, using only first-class grades of materials, consistent with the Building, and shall comply with all of Lessor’s rules and the Laws.

El Arrendatario en este acto renuncia, de manera expresa e irrevocable, todos los derechos a solicitar al Arrendador el reembolso por cualquier mejora que realice, incluyendo sin limitar el de las Mejoras del Arrendatario, en los términos previstos en el Código Civil Federal.

Lessee hereby expressly and irrevocably waives all rights to request a refund to Lessor for any improvement made, including but not limited to the Lessee Improvements, in accordance with the Federal Civil Code.

Las partes convienen que el Arrendador no estará obligado a realizar ninguna inversión, mejora, mantenimiento o adaptación en la Propiedad Arrendada, por lo que la misma será tomado por el Arrendatario en las condiciones que se encuentra, y será el Arrendatario, quién con la previa autorización del Arrendador conforme a los términos de este Contrato, llevará a cabo por su cuenta, costo y responsabilidad todas las mejoras y adecuaciones que la Propiedad Arrendada requiera para el establecimiento de su negocio.

The parties agree that Lessor shall not be obligated to make any investment, improvements, maintenance or adaptation to the Leased Property, for it will be delivered to Lessee as is, and the Lessee, with the previous authorization of the Lessor according to the terms set forth in this Agreement, shall carry out at its sole cost, expense and responsibility each and every one of the improvements and modifications required by the Leased Property for the installation of its business.

9.2 Remoción de Mejoras del Arrendatario a la Terminación del Contrato. Las mejoras e instalaciones construidas en la Propiedad Arrendada por el Arrendatario, incluyendo sin limitar las Mejoras del Arrendatario, que incorpore permanentemente, deberán ser removidas por el Arrendatario a la Fecha de Terminación. El Arrendatario deberá pagar cualquier gasto, erogación o daño causado a la Propiedad Arrendada al momento de demoler o remover dichas mejoras de las instalaciones, incluyendo sin limitar las Mejoras del Arrendatario. Así mismo, deberá sellar, cortar y cubrir adecuadamente todos los cables, tuberías o ductos con relación a cualquier mejora que el Arrendador instruya al Arrendatario remover. En caso que existan cables, tuberías o ductos incorporados a las paredes o techos, el Arrendatario deberá proporcionar al Arrendador los planos que detallen la ubicación de dichos cables, tuberías o ductos.

9.2 Removal of Lessee Improvements upon Termination of the Agreement. All the modifications and installations built in the Leased Property by Lessee, including but not limited to the Lessee Improvements, which are permanently affixed, shall be removed by Lessee at the Expiration Date. Lessee shall pay any expense, expenditure or damage caused to the Leased Property upon demolition or removal of the improvements, the facilities and/or equipment including but not limited to the Lessee Improvements. Likewise, Lessee shall adequately seal, cut and cover all wires, piping or ducts related to any improvement that the Lessor orders to be removed. If any wire, piping or duct is incorporated into the walls or roofs, the Lessee shall provide Lessor with blueprints detailing the location of such wiring, piping or duct.

9.3 Letreros. El Arrendador autoriza al Arrendatario a colocar cualquier letrero relacionado con su negocio con la condición de que dichos letreros cumplan con la ley local.

9.3 Signs. Lessor hereby authorizes Lessee the right to erect or place any sign related to its business on the condition that such signs comply with local law.

9.4 Ampliaciones del Edificio. En caso que el Arrendatario desee construir alguna ampliación en el Edificio que implique la construcción de pies cuadrados cubiertos bajo techo, las partes acuerdan someterse a lo siguiente:

9.4 Expansions to the Building. In the event Lessee wishes to build an expansion to the Building that imply the construction of under roof square footage, the parties hereto agree as follows:

(a) El Arrendatario deberá notificarlo por escrito al Arrendador, para que el Arrendador, en un plazo de 30 (treinta) días naturales contados a partir de la fecha en que reciba la notificación, le comunique al Arrendatario si tiene interés en fondear y construir la ampliación,

(a) Lessee shall give written notice to Lessor, so that Lessor, in a term of 30 (thirty) calendar days from the date it receives such notice, may let Lessee know if it intends to fund and build such expansion,

(b) En caso que el Arrendador decida construir la ampliación, las partes deberán negociar de buena fe los términos y condiciones comunes a esta clase de obras, por un periodo que no exceda los treinta (30) días, en el entendido que, la construcción será con las mismas características del Edificio actual para la manufactura de carros de ferrocarril. Además, en este caso el Arrendador será responsable de obtener todas las licencias, permisos y autorizaciones requeridas por las autoridades federales, estatales o municipales para realizar las construcciones mencionadas, incluyendo sin limitar, manifestaciones de impacto ambiental, informes preventivos, licencias de construcción, terminación de obra, avisos, autorización sanitaria de las autoridades laborales y cualquier otro estudio, permiso, licencia o autorización que requiera la Ley Aplicable a la Propiedad Arrendada o al tipo de obra o instalación a realizar por el Arrendatario en la Propiedad Arrendada, y las pólizas de seguros de responsabilidad y riesgo adecuadas para este tipo de obras. Antes del inicio de las obras correspondientes, el Arrendador entregará al Arrendatario copias de la póliza de seguro y demás documentos antes mencionados. Asimismo, el Arrendador mantendrá dichas licencias, permisos y autorizaciones, pólizas de seguro y demás documentos, vigentes durante el tiempo necesario para realizar las obras o instalaciones relacionadas a la ampliación del Edificio,

(b) In the event Lessor decides to build the expansion, the parties shall negotiate in good faith the terms and conditions common to these types of works for a period not to exceed thirty (30) days, provided however that, the construction shall be, of the same characteristics of the current Building for the manufacture of railcars. In addition, in this case Lessor shall be responsible to obtain all licenses, permits and authorizations required by the federal, state or municipal authorities to carry out the related constructions, including without limitation, environmental impact reports, preventive reports, construction licenses, construction termination notices, sanitary authorization by labor authorities and any other study, permit, license or authorization required by Applicable Law to the Leased Property or to the type of work or installation to be carried out by the Lessee at the Leased Property, and the liability and risk insurance policies adequate for such kind of works. Before the commencement of the corresponding works, Lessor shall deliver to Lessee copies of the insurance policy and other documents mentioned above. Likewise, Lessor shall maintain such licenses, permits and authorizations, certificate of insurance and other documents, in effect during the time necessary to carry out the related works or installations for the expansion of the Building,

(c) El Arrendatario pagará al Arrendador, de conformidad con la cláusula 4.1, la cantidad anual de Renta por pie cuadrado de la superficie total de la expansión, pagadera en el momento en que dicha expansión esté terminada,

(c) Lessee shall pay Lessor, pursuant to clause 4.1, the annual amount of Rent per square foot of the total surface of the expansion, payable in the time such expansion is finished,

(d) El Arrendatario le pagará al Arrendador la renta por la ampliación de la misma forma pactada en la cláusula 4 de este Contrato, aplicable para el pago de la Renta,

(d) Lessee shall pay Lessor the rent payable for the expansion under the same terms set forth in clause 4 of this Agreement, applicable to the payment of the Rent,

(e) El Arrendador no está obligado a construir la ampliación, en cuyo caso, después del periodo de treinta (30) días siguientes a la recepción de la notificación anterior referida en el inciso (a) anterior, el Arrendatario estará automáticamente autorizado para construir la ampliación directamente. El Arrendatario no pagará renta alguna sobre la ampliación del Edificio y las obras que construya serán transferidas por accesión al Arrendador a la terminación por cualquier causa, y el Arrendador no estará obligado a pagar la ampliación o a reembolsar los gastos incurridos por el Arrendatario en la edificación de dichas obras.

(e) Lessor shall not be obligated to build the expansion, in which case, following the first thirty (30) day period following receipt of notice in subsection (a) above, Lessee shall be automatically authorized to build the expansion directly. Lessee shall pay no rent whatsoever over the expansion of the Building and the works that builds shall be transferred to Lessor at the termination hereof for any reason whatsoever, and Lessor shall not be obligated to pay the expansion or to reimburse any expenses or costs incurred by Lessee when building such works.

(f) En caso de que el Arrendatario construya la ampliación de conformidad con esta cláusula será responsable de obtener todas las licencias, permisos y autorizaciones que se requieran de parte de las autoridades federales, estatales y/o municipales para llevar a cabo las construcciones de que se trate, incluyendo sin limitar, manifestaciones de impacto ambiental, informes preventivos, informes continuos, licencias de construcción, avisos de terminación de obra, licencias sanitarias, autorizaciones de autoridades laborales y cualquier tipo de estudio, permiso, licencia o autorización requerido por la Legislación Aplicable a la Propiedad Arrendada o al tipo de obra o instalación que el Arrendatario pretenda llevar a cabo dentro de ésta, así como de los seguros de responsabilidad y riesgos que sean adecuados a los trabajos de que se trate. Previo al inicio de los trabajos correspondientes, el Arrendatario se obliga a entregar al Arrendador, copias de las pólizas de seguros y demás documentos antes mencionados. Asimismo, el Arrendatario será responsable de mantener dichas licencias, permisos, autorizaciones, seguros y demás documentos vigentes durante el tiempo que sea necesario para llevar a cabo las obras o instalaciones de la ampliación del Edificio.

(f) In the event that Lessee builds the expansion pursuant to this clause, then it shall be responsible to obtain all licenses, permits and authorizations required by the federal, state or municipal authorities to carry out the related constructions, including without limitation, environmental impact reports, preventive reports, construction licenses, construction termination notices, sanitary authorization by labor authorities and any other study, permit, license or authorization required by Applicable Law to the Leased Property or to the type of work or installation to be carried out by the Lessee at the Leased Property, and the liability and risk insurance policies adequate for such kind of works. Before the commencement of the corresponding works, the Lessee shall deliver to Lessor copies of the insurance policy and other documents mentioned above. Likewise, Lessee shall maintain such licenses, permits and authorizations, certificate of insurance and other documents, in effect during the time necessary to carry out the related works or installations for the expansion of the Building.

Cláusula 10. Expropiación.

Clause 10. Condemnation.

10.1 Expropiación Total de la Propiedad Arrendada. En caso que la Propiedad Arrendada se vea afectada en su totalidad a causa de una Expropiación, este Contrato terminará sin necesidad de resolución judicial a partir de la fecha de desposesión de la Propiedad Arrendada por parte de la Autoridad Gubernamental. El Arrendatario en este acto renuncia expresamente a exigir al Arrendador el pago de Daños y Perjuicios con motivo de dicha terminación.

10.1 Total Condemnation of the Leased Property. In the event that all of the Leased Property shall be subject to Condemnation, this Agreement shall automatically terminate, with no further requirements for a judicial resolution, as of the date of dispossession of the Leased Property by the Governmental Authority. Lessee hereby expressly waives the right to require Lessor the payment of Damages resulting from such termination.

10.2 Expropiación Parcial de la Propiedad Arrendada. (a) En caso que el 50% (cincuenta por ciento) o menos de la superficie arrendable del Edificio sea afectada a causa de una Expropiación y el Arrendatario pueda utilizar el Edificio para los mismos fines previos a dicha Expropiación, sin afectación material a sus operaciones comerciales (según sea determinado por un perito neutral designado por las partes), este Contrato continuará en pleno vigor y efecto con las siguientes consecuencias: (i) la superficie arrendada de la Propiedad Arrendada y el Edificio se modificará en la medida en que fue afectada cada una de ellas con motivo de la Expropiación, (ii) la Renta deberá ser ajustada en proporción únicamente a la parte del Edificio afectada a causa de la Expropiación, y (iii) el Plazo terminará respecto de la parte del Edificio afectada a causa de dicha Expropiación, a partir de la fecha de desposesión al Arrendatario. El Arrendatario en este acto renuncia expresamente a exigir al Arrendador el pago de Daños y Perjuicios con motivo de la afectación parcial en el uso y goce de la cosa.

10.2 Partial Condemnation of the Leased Property. (a) In the event that 50% (fifty percent) or less of the rentable area of the Building is taken by Condemnation and Lessee can use the Building for the same purpose as prior thereto without material impairment to its business operations (as determined by a neutral, third party expert, reasonably agreed upon by the parties), this Agreement shall continue in full force and effect with the following consequences: (i) the leased area of the Leased Property and the Building shall be amended to the extent that was affected by such Condemnation, (ii) the Rent shall be adjusted in proportion to that portion of the Building taken by such Condemnation, and (iii) the Term shall expire only as to the portion of the Building so taken, effective on the date of dispossession of Lessee. Lessee hereby expressly waives the right to require Lessor the payment of Damages resulting from the partial impairment in the use and enjoyment of the Leased Property.

Una vez que el Arrendador reciba la indemnización por Expropiación, deberá hacer todas las reparaciones y mejoras necesarias al Edificio para restaurar el Edificio y la Propiedad Arrendada, a una condición similar a la condición previa a dicha Expropiación, según sea posible y tan pronto como sea posible (en un plazo que no podrá exceder de 6 (seis) meses contados a partir de la fecha en que el Arrendador reciba dicha indemnización por Expropiación). Sin embargo, el Arrendador no estará obligado a gastar en dichas mejoras una cantidad mayor al Monto Recibido por el Arrendador a causa de la Expropiación, y

Lessor shall, upon receipt of the award in Condemnation, make all necessary repairs or alterations to the Building to restore the Building and Leased Property to a condition that is as similar to the condition that existed immediately prior to such Condemnation as is reasonably possible as promptly as possible (within a period that may not exceed 6 (six) months from the date on which Lessor receives such Condemnation award). However, Lessor shall not be required to spend for such work an amount in excess of the Amount Received by Lessor due to the Condemnation, and

(b) En caso que más del 50% (cincuenta por ciento) de la superficie arrendable del Edificio sea afectada a causa de una Expropiación o que el Arrendatario no puede utilizar el Edificio para los mismos fines previos a dicha Expropiación, sin afectación material a sus operaciones comerciales (según sea determinado por un perito neutral, razonablemente designado por las partes), este Contrato terminará sin necesidad de resolución judicial a partir de la fecha de desposesión de la Propiedad Arrendada por parte de la Autoridad Gubernamental. El Arrendatario en este acto renuncia expresamente a exigir al Arrendador el pago de Daños y Perjuicios con motivo de dicha terminación.

(b) In the event that more than 50% (fifty percent) of the rentable area of the Building is taken by Condemnation or Lessee cannot use the Building for the same purpose as before without material impairment to its business operations (as determined by a neutral third party expert, reasonably agreed upon by the parties), this Agreement shall automatically terminated, with no further requirements for a judicial resolution, as of the date of dispossession of the Leased Property by the Governmental Authority. Lessee hereby expressly waives the right to require Lessor the payment of Damages resulting from such termination.

10.3 Propiedad del Monto Recibido. El Monto Recibido pertenecerá al Arrendador y al Arrendatario, solo en la medida y por el valor de cualquier expansión que construya, de conformidad con los términos del Código Civil Federal y las Leyes Aplicables, excepto en el caso de la cláusula 10.2 (a) del presente.

10.3 Property of the Amount Received. The Amount Received will belong to Lessor and Lessee, only to the extent and for the value of any expansions built by Lessee, pursuant to the terms of the Federal Civil Code and related Applicable Laws, except in case of clause 10.2(a) hereof.

Cláusula 11. Siniestros.

Clause 11. Casualties.

11.1 Siniestros Responsabilidad del Arrendador. El Arrendador solamente será responsable de los daños causados por algún siniestro cuya causa sea un vicio oculto de la Propiedad Arrendada que impidan el uso de ella, en los términos establecidos en la Ley Aplicable.

11.1 Casualties that are Lessor’s Responsibility. Lessor will only be liable for damages caused by a casualty derived from a hidden defect of the Leased Property that prevent the use of it, under the terms established in the Applicable Law.

En el caso de algún siniestro de esta naturaleza las partes se someterán a las siguientes reglas:

In the event of any incident of this nature, the parties are subject to the following rules:

(a) En un plazo que no excederá de 3 (tres) días hábiles, el Arrendatario notificará el evento al Arrendador y a la compañía de seguros.

(a) Within a period not to exceed three (3) business days, Lessee shall notify the incident to the Lessor and the insurance company.

(b) Las partes tomarán toda medida preventiva para proteger vidas y prevenir mayores daños a la Propiedad Arrendada, y apoyarán a las Autoridades Gubernamentales y a la compañía de seguros en todo lo que sea necesario para esclarecer y resolver el siniestro.

(b) The parties shall take any preventive measure to protect lives and prevent further damages to the Leased Property, and shall support the Governmental Authorities and the insurance company in whatever is necessary to clarify and resolve the incident.

(d) Cuando las causas del siniestro sean atribuibles al Arrendador, dentro de un plazo que no excederá de 6 (seis) meses, éste deberá realizar todas las construcciones y/o mejoras necesarias para que el Arrendatario pueda operar como está contemplado en este Contrato, una vez que la compañía de seguros cubra el siniestro. En este caso en que las causas del siniestro sean atribuibles al Arrendador, el pago de la Renta se suspenderá durante todo el tiempo en que dure la construcción de las mejoras para resolver el siniestro, siempre y cuando (i) el Arrendatario suscriba un convenio confirmando la validez de este Contrato y ampliando el Plazo, por el mismo número de días requeridos para restaurar la Propiedad Arrendada a la condición que tenía antes del siniestro, y (ii) el Arrendador obtenga el consentimiento de sus acreedores para dicha restauración, en su caso. Exclusivamente en caso que el siniestro sea resuelto por el Arrendador conforme a esta cláusula, a satisfacción del Arrendatario, el Arrendatario en este acto éste renuncia expresamente a exigir al Arrendador el pago de Daños y Perjuicios con motivo del siniestro.

(d) When the causes of the loss are attributable to Lessor, within a period not to exceed six (6) months, it shall carry out all construction and/or improvements necessary for Lessee to operate as contemplated herein, once the insurance company have covered the loss. In this case where the causes of the loss are attributable to Lessor, the Rent shall be suspended throughout the period in which the improvements are being built to resolve the casualty, provided however (i) Lessee shall sign an agreement confirming the validity of this Agreement and extending the Term by the same number of days required to restore the Leased Property to the condition it had prior to the casualty, and (ii) Lessor shall have received its creditors consent for such restoration, if any. Exclusively in the case that the casualty is resolved by Lessor pursuant to this clause at satisfaction to Lessee, then Lessee hereby expressly waives the right to require Lessor the payment of Damages resulting from the loss.

11.2 Siniestros Responsabilidad del Arrendatario. Salvo que el Arrendador sea el responsable de los daños causados por vicios ocultos de la Propiedad Arrendada en los términos de la Ley Aplicable o sean atribuibles a un Caso de Fuerza Mayor, el Arrendatario será responsable por cualquier daño causado a la Propiedad Arrendada.

11.2 Casualties that are Lessee’s Responsibilities. Unless Lessor is responsible for the damage caused by hidden defects of construction in terms of Applicable Law or are attributable to a Force Majeure Event, Lessee shall be liable for any damage caused to the Leased Property.

En el caso de algún siniestro de esta naturaleza las partes se someterán a las siguientes reglas:

In the event of any incident of this nature, the parties are subject to the following rules:

(a) En un plazo que no excederá de 3 (tres) días hábiles, el Arrendatario notificará el evento al Arrendador y a la compañía de seguros.

(a) Within a period not to exceed three (3) business days, Lessee shall notify the incident to Lessor and the insurance company.

(d) Cuando las causas del siniestro sean atribuibles al Arrendatario, dentro de un plazo que no excederá de 6 (seis) meses, éste deberá contratar al Arrendador para que realice todas las construcciones y/o mejoras necesarias para que el Arrendatario pueda operar como está contemplado en este Contrato, una vez que la compañía de seguros cubra el siniestro, siempre y cuando el Arrendador obtenga el consentimiento de sus acreedores para dicha restauración.

(d) When the causes of the loss are attributable to Lessee, within a period not to exceed six (6) months, it shall hire Lessor to perform all necessary construction and/or improvements for Lessee to operate as contemplated herein, once the insurance company have cover the loss, provided Lessor should have received its creditors consent for such restoration, if any.

En cualquiera de los casos señalados en esta cláusula 11.2, el pago de la Renta no se suspenderá durante todo el tiempo necesario para resolver el siniestro.

In any of the events contemplated in this clause 11.2, the payment of the Rent shall not be suspended throughout the period needed to resolve the incident caused by Lessee.

11.3 Siniestros Causados por Caso de Fuerza Mayor. En el caso que los daños a la Propiedad Arrendada sean atribuibles a un caso fortuito o caso de fuerza mayor, ninguna de las partes será responsable por cualquier daño causado a la Propiedad Arrendada. Se entiende como caso fortuito o caso de fuerza mayor cualquier evento imprevisible o inevitable causado por la naturaleza o el hombre bajo la Ley Aplicable, siempre que no sea atribuible a ninguna de las partes o sus subsidiarias, sucesores, subarrendatarios, contratistas, subcontratistas, empleados, visitantes, agentes o cualquier Persona bajo su responsabilidad (el "Caso de Fuerza Mayor").

11.3 Force Majeure. In the event that the damage of the Leased Property is attributable to an act of god or force majeure event, no party shall be responsible for any damage caused to the Leased Property. Act of god or force majeure is understood as any unforeseeable or unavoidable event caused by nature or man under Applicable Law, as long as it is not attributable to any of the parties or their subsidiaries, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under their responsibility (the “Force Majeure Event”).

En el caso de algún siniestro de esta naturaleza las partes se someterán a las siguientes reglas:

In the event of any incident of this nature, the parties are subject to the following rules:

(a) Las partes se regirán por las reglas establecidas en los incisos (a), (b) y (c) de la cláusula 11.2.

(a) The parties shall be subject to the rules to set forth in paragraphs (a), (b) and (c) of clause 11.2.

(b) En caso que la Propiedad Arrendada se vea afectada en su totalidad a causa de un siniestro por Caso de Fuerza Mayor, este Contrato terminará sin necesidad de resolución judicial a partir de la fecha en que el perito determine la pérdida total del Edificio. Ninguna de las partes podrá exigir el pago de Daños y Perjuicios con motivo de dicha terminación.

(b) If all the Leased Property is affected because of a Force Majeure Event, this Agreement shall terminate with no further requirements for a judicial resolution, from the date in which the expert determines the total loss of the Building. The parties will not have the right to require the payment of Damages resulting from such termination.

(c) En caso que el 50% (cincuenta por ciento) o menos de la superficie arrendable del Edificio sea afectada a causa de un siniestro por Caso de Fuerza Mayor y el Arrendatario pueda utilizar el Edificio para los mismos fines previos a dicho siniestro, sin afectación a sus operaciones (según sea determinado por un perito neutral designado por las partes), este Contrato continuará en pleno vigor y efecto conforme a lo siguiente: (i) el Arrendador deberá corregir los daños para restaurar la Propiedad Arrendada, incluyendo el Edificio, a una condición similar a su condición previa a dicho siniestro, según sea posible física y técnicamente y en un plazo que no excederá de 6 (seis) meses contado a partir de la fecha en que el Arrendador reciba la indemnización del seguro, (ii) la Renta deberá ser reducida mensualmente en proporción a la parte inutilizable de la Propiedad Arrendada, siempre y cuando la Renta esté cubierta por la póliza de seguro a que se refiere la cláusula 13 de este Contrato, (iii) en la medida que se hagan reparaciones a la Propiedad Arrendada, mismas que incrementen la parte utilizable de ésta, la Renta deberá ser incrementada en proporción, (iv) la obligación del Arrendador de aplicar la indemnización del seguro a la reconstrucción de la Propiedad Arrendada estará sujeta (i’) a la obligación del Arrendatario consistente en suscribir un convenio confirmando la validez de este Contrato y ampliando el Plazo por el mismo número de días requeridos para restaurar la Propiedad Arrendada a la condición que tenía previo al siniestro, y (ii’) en la medida requerida el Arrendador obtenga la autorización de sus acreedores para dicha restauración, si hubiera, y (v) el Arrendador no estará obligado a gastar en las reparaciones una cantidad mayor a la indemnización de seguros recibida por la compañía aseguradora.

(c) In the event that 50% (fifty percent) or less of the leasable area of the Building is affected because of a loss by a Force Majeure Event and Lessee may use the building for the same purpose prior to that sinister, without affecting its operations (as determined by an expert neutral appointed by the parties), this Agreement shall continue in full force and effect, as follows: (i) Lessor must correct the damage in order to restore the Leased Property, including the Building, similar to its condition before de incident such as physically and technically possible and within a period not exceeding six (6) months from the date Lessor receives the insurance compensation (ii) the Rent shall be reduced on a monthly basis in proportion to the unusable part of the Leased Property, as long as the Rent is covered by the insurance policy referred to in clause 13 of this Agreement, (iii) as repairs are made to the Leased Property, which increase the surface of the usable area, the Rent shall be increased accordingly, (iv) Lessor’s obligation to apply the insurance proceeds for the reconstruction of the Leased Property to such effect, is contingent (i’) with Lessee’s obligation of signing an agreement confirming the validity of this Agreement, and extending the Term by the same number of days required to restore the Leased Property to the condition it had prior to the casualty, (ii’) to the extent required, Lessor should have received creditor’s consent for such restoration, if any, and (v) Lessor shall not be required to spend for such work an amount in excess of the amount received as indemnity by the insurance company.

(d) En caso que el 50% (cincuenta por ciento) o más de la superficie arrendable del Edificio sea afectada a causa de un siniestro por Caso de Fuerza Mayor y el Arrendatario ya no pueda utilizar el Edificio para los mismos fines previos a dicho siniestro por la afectación a sus operaciones según sea determinado por un perito neutral designado por las partes, (a) cualquiera de las partes podrá notificar por escrito a la otra parte la terminación del presente Contrato y este Contrato terminará sin necesidad de resolución judicial a partir de la fecha en que la otra parte reciba dicha notificación, sin que ninguna de las partes pueda exigir el pago de Daños y Perjuicios con motivo de dicha terminación, o (b) el Arrendatario podrá solicitar por escrito al Arrendador la reconstrucción del Edificio, en cuyo caso aplicarán las reglas establecidas en esta cláusula 11.3, inciso (c), sub-incisos (i), (ii), (iii), (iv) y (v).

(d) If 50% (fifty percent) or more of the leasable area of the Building is affected because of a loss by a Force Majeure Event and Lessee cannot use the Building for the same purpose prior to that sinister, as determined by an expert designated by both parties, (a) any of the parties may written notify to its counterpart the termination of this Agreement, with no further requirements for a judicial resolution, as of the date of in which the counterpart receives such notification, without having the right to require the payment of Damages as a result of such termination, or (b) Lessee may request in writing to the Lessor the reconstruction of the Building, in which case the rules set out in this clause 11.3, sections (c), sub-sections (i), (ii), (iii), (iv) and (v) shall apply.

11.4 Valor de Reposición. El valor de reposición de cualquier daño o destrucción causados por algún siniestro deberá ser determinados de buena fe por el perito que haya sido designado por ambas partes para este Contrato y en coordinación con la compañía de seguros.

11.4 Replacement Value. The replacement value of any damage or destruction shall be determined in good faith by an expert appointed by both parties to this Agreement and in coordination with the insurance company.

11.5 Pago de Daños al Arrendador. Cualquier cantidad pagadera al Arrendador por daños causados a la Propiedad Arrendada deberá ser reducida de cualquier cantidad pagada al Arrendador por la compañía de seguros.

11.5 Payment of Damages to Lessor. Any amounts payable to Lessor for damages caused to the Leased Property shall be reduced by the amount recovered by Lessor from the insurance company.

Cláusula 12. RESERVADA.

Clause 12. RESERVED.

Cláusula 13. Seguros.

Clause 13. Insurance.

13.1 Las Coberturas. El Arrendatario deberá obtener y mantener en pleno vigor pólizas de seguros que cubran la Propiedad Arrendada del tipo y por las cantidades que se señalan más adelante; en el entendido que, el Arrendatario deberá comprobar al Arrendador todo pago hecho a la(s) compañía(s) de seguros por primas, deducibles y coaseguros en un plazo que no excederá 5 (cinco) días hábiles contados a partir de la fecha en que el Arrendador se lo solicite al Arrendatario.

13.1 Coverages. Lessee shall obtain and maintain in force, insurance policies covering the Leased Property of the type and in the amounts referred to hereinafter; provided that Lessee shall prove Lessor for the payment of any premium, deductible and co-insurance to the insurance company within a period not exceeding five (5) working days from the date Lessor requests such information from Lessee.

(a) Seguro que cubra cualquier pérdida o daño de la Propiedad Arrendada incendios, relámpagos, explosiones, inundaciones, huracanes y granizo, aviones, vehículos y humo, terremoto o erupciones volcánicas, huelgas, manifestaciones y vandalismo, incluyendo las cimentaciones, la remoción de escombro y cualesquier otros siniestros que actualmente o más adelante sean cubiertos dentro de la póliza denominada en México como “Cobertura Amplia”, por cantidades suficientes para evitar que el Arrendador se convierta en coasegurado conforme a los términos de las pólizas aplicables, pero en cualquier caso y en todo momento, por cantidades no menores al 100% (cien por ciento) del “valor total asegurable” del Edificio, el cual para efectos de este Contrato será considerado como el costo de reposición del Edificio, equivalente al monto que las partes acuerden por separado dentro de los 30 (treinta) días naturales contados a partir de la fecha de firma del presente instrumento, y dicha cantidad deberá ajustarse anualmente de tal forma que en todo momento represente la totalidad del costo de reposición del Edificio.

(a) Insurance that covers any loss or damage to the Leased Property caused by fire, lightning, explosion, flooding, hurricanes and hail, airplanes, vehicles and smoke, earthquakes or volcanic eruptions, strikes, riots and vandalism, including the foundations, the rubbish removal and any other risks now or hereinafter embraced by the so-called “Extended Coverage” in Mexico, in amounts sufficient to prevent the Lessor or the Lessee from becoming a co-insurer under the terms of the applicable policies, but in any case and at all times, in amounts not less than 100% (one hundred percent) of the “full insurable value” of the Building, which for purposes hereof shall be considered as the replacement cost of the Building equal to such amount that the parties agree on separately within the next 30 (thirty) calendar days from the date hereof, and such amount shall be annually adjusted in such form that represents at all time the total replacement cost of the Building.

(b) Seguro General de Responsabilidad Civil que cubra reclamaciones por lesiones a personas, muerte o daño a propiedad que sucedan en o en los límites de la Propiedad Arrendada por la cantidad mínima que las partes acuerden por separado dentro de los 30 (treinta) días naturales contados a partir de la fecha de firma del presente instrumento, en caso de lesiones o muerte, y por la cantidad mínima que las partes acuerden por separado dentro de los 30 (treinta) días naturales contados a partir de la fecha de firma del presente instrumento, en caso de daño en propiedad.

(b) General Public Liability Insurance, which covers claims for injury to persons or death or property damage that occur in or on the boundaries of the Leased Property for up to that minimum amount that the parties agree on separately within the next 30 (thirty) calendar days from the date hereof for injury or death events, and for that minimum amount that the parties agree on separately within the next 30 (thirty) calendar days from the date hereof for damage to the property.

(c) Seguro por daños o pérdidas por el mal funcionamiento de los calentadores (o compresores) o por la explosión interna de los calentadores de alta presión (o compresores) instalados en el Edificio, que forma parte de la Propiedad Arrendada, por las cantidades que el Arrendador ocasional y razonablemente requiera.

(c) Insurance against loss or damage caused by malfunction of a boiler (or compressor) or for the internal explosion of a high-pressure boiler (or compressor) installed in the Building, which is part of the Leased Property, in such amounts as the Lessor from time to time reasonably requires.

13.2 Reglas Comunes a los Seguros. Las partes se someten a las siguientes reglas en materia de seguros:

13.2 Common Rules for Insurance. The parties submit to the following insurance rules:

(a) Las pólizas de seguro deberán obtenerse y acreditarse conforme a pólizas de seguro válidas y vigentes, emitidas por aseguradoras autorizadas para operar en México y razonablemente aceptables para el Arrendador.

(a) Any the insurance provided in this clause shall be obtained and evidenced under valid and enforceable policies issued by insurers authorized to do business in Mexico and reasonably acceptable to Lessor.

(b) Todas las pólizas de seguro citadas en esta Cláusula deberán designar al Arrendador como asegurado y/o beneficiario preferente en primer lugar, y el Arrendatario como asegurado adicional o beneficiario preferente en segundo lugar; siendo en cada caso cubiertos sus intereses en la medida del interés asegurable de cada una de las partes.

(b) All insurance policies provided in this clause shall designate the Lessor as insured or beneficiary in first place and Lessee as additional insured or beneficiary in second place limited; in each case, as their interests may appear and to the extent of said party insurable interest.

(d) Cada póliza de seguro deberá incluir (i) un compromiso de la compañía de seguros previendo que dicha póliza no será cancelada sin previo aviso al Arrendador con al menos 30 (treinta) días naturales de anticipación, (ii) que cualquier pérdida pagadera al Arrendador será totalmente pagada, no obstante que el Arrendador haya actuado de manera negligente o dolosa y que como resultado de dicha conducta se cancele total o parcialmente la póliza respectiva, y (iii) una renuncia a ejercer el derecho de subrogación por parte de la compañía de seguros, en favor del Arrendador.

(d) Each insurance certificate shall contain (i) an agreement made by the insurance company, stating that such policy shall not be canceled without at least 30 (thirty) calendar days’ prior notice to the Lessor, (ii) any loss payable to the Lessor will be fully paid, even though Lessor has acted negligently or intentionally and as a result of such conduct the respective policy is canceled in whole or in part, and (iii) a waiver to exercise the right of subrogation by the insurance company, in favor of the Lessor.

(e) En caso de siniestro en la Propiedad Arrendada, que resulte en daños o destrucción al Edificio, el Arrendatario inmediatamente deberá notificar por escrito al Arrendador e inmediatamente iniciar con el procedimiento de ajuste de daños.

(e) In case of casualty to the Leased Property, which results in damage or destruction to the Building, Lessee shall immediately give written notice to the Lessor and immediately begin damage adjustment proceedings.

(f) La suma de la indemnización del seguro, que se pagará como resultado por dicho daño o destrucción se pagará como se establece en el presente a fin de restaurar, reparar, reconstruir o remplazar la Propiedad Arrendada, en la medida de lo posible, a su valor, condición y característica original, inmediatamente antes de los daños o destrucción.

(f) The sum of the insurance moneys that are to be paid as a result of such damage or destruction shall be paid as set forth herein for the purpose of restoring, replacing, rebuilding or repairing the Leased Property as nearly as possible to its original value, condition and character, existing immediately prior to such damage or destruction.

Cláusula 14. Enajenación, Cesión y Subarrendamiento.

Clause 14. Transfers, Assignment and Subleasing.

14.1 Enajenación, Cargas y Gravámenes. La Arrendadora se reserva la facultad de enajenar, cargar y/o gravar la Propiedad Arrendada a (a) los Sres. Jesús Salvador Gil Benavides, Alejandro Gil Benavides y Salvador Gil Benavides, (b) Filiales, o (c) después de un periodo de 5 (cinco) años, a terceros con el consentimiento del Arrendatario, el cual no deberá ser negado sin razón (en el entendido que transmisiones de propiedad a competidores y sus filiales, cuyo negocio principal es la manufactura de carros de tren y partes para los mismos, deberá considerarse razón suficiente para negar dicho consentimiento).

En todos los casos, el Arrendador notificará por escrito a la Arrendataria con 30 (treinta) días naturales de anticipación a la fecha en que surtirá efectos la transacción. En los casos señalados en los incisos (a) y (b), la notificación bastará para que el Arrendador ejecute la operación. En el caso del inciso (c), dentro de ese plazo, el Arrendatario deberá otorgar su consentimiento o negarlo sustentando fundadamente las razones de su negativa.

En los casos en que proceda la celebración de la transacción, la Arrendadora incluirá en el documento donde se haga constar la operación una disposición que reconozca la existencia y duración del presente Contrato.

14.1 Transfers, Charges and Levies. Lessor reserves the right to transfer, charge and/or encumber the Leased Property to (a) Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides, (b) Affiliates, or (c) following an initial period of 5 (five) years, to third parties upon consent of Lessee, which shall not be unreasonable withheld (provided that transfer to competitors and affiliates thereof, whose primary business is the manufacture of railcars and parts thereof, shall be consider reasonable reasons for withholding such consent).

In all cases, Lessor shall give Lessee in writing with thirty (30) calendar days prior to the date on which it shall take effect the transaction. In those cases set forth in parentheticals (a) and (b) above, the written notice shall suffice for Lessor to enter into the transaction. In the event set forth in parenthetical (c) above, within that term, Lessee shall grant its consent or deny it properly supporting the reasons of its denial.

In those cases that the transaction takes place, Lessor shall include in the corresponding instrument documenting the transaction a provision recognizing the existence and the duration of this Agreement.

Si lo solicita el Arrendador, el Arrendatario deberá, dentro de los 10 (diez) días hábiles siguientes a que el Arrendador se lo solicite por escrito, suscribir, reconocer y entregar al Arrendador un documento certificando que (a) una copia fiel y exacta de este Contrato se adjunta a dicho documento; (b) el presente Contrato se encuentra en pleno vigor y efecto y sin modificación alguna (o, en su caso, especificando la naturaleza de dicha modificación y adjuntando una copia de la misma); (c) la última fecha de pago de Renta realizado por el Arrendatario; (d) la ausencia de incumplimientos sin subsanar por parte del Arrendador (o, en su caso, una especificación de dichos incumplimientos, si los hubiere); y (e) cualquier otro asunto razonablemente requerido por el Arrendador, cualquier acreedor o posible acreedor del Arrendador o posible adquirente de la Propiedad Arrendada.

If requested by Lessor, Lessee shall, within ten (10) business days following the Lessor written request, execute, acknowledge and deliver to Lessor a document certifying that (a) a true and correct copy of this Agreement is attached to such document; (b) this Agreement is in full force and effect without amendment (or, where applicable, specifying the nature of the change and attaching a copy thereof); (c) the last date of payment of Rent by Lessee; (d) the absence of uncured defaults by Lessor (or, where appropriate, a specification of such breaches, if any); and (e) any other matter reasonably required by Lessor, any creditor or potential creditor of Lessor or potential purchaser of the Leased Property.

Así mismo, el Arrendatario conviene, a solicitud del Arrendador, en subordinar este Contrato en términos mutuamente aceptables para las partes a toda garantía constituida sobre la Propiedad Arrendada (o cualquier parte de la misma), y deberá celebrar un convenio de subordinación razonablemente aceptable para el Arrendador, según lo solicite por escrito cualquier acreedor o beneficiario de dicha garantía, dentro de los 15 (quince) días hábiles siguientes a dicha solicitud; en el entendido que dicho acreedor o beneficiario convenga en reconocer los derechos del Arrendatario conforme a este Contrato, así como en no interrumpir la posesión, el uso y el goce del Arrendatario respecto de la Propiedad Arrendada, en los términos del presente Contrato, sujeto a la condición consistente en que el Arrendatario esté en total cumplimiento de sus obligaciones conforme a este Contrato.

Lessee agrees, at the request of Lessor, to subordinate this Agreement under mutually acceptable terms to the parties to any guarantee placed upon the Leased Property (or any portion thereof), and shall execute into a subordination agreement reasonably acceptable to the Lessor, as requested in writing by any creditor or beneficiary of said guarantee, within 15 (fifteen) business days following said request; provided that such creditor or beneficiary agrees to recognize the Lessee’s rights under this Agreement and to not disturb the possession, use and enjoyment of Lessee with respect to the Leased Property, under this Agreement subject to the condition that Lessee continues to perform its obligations hereunder.

En todo caso, las partes quedan en el entendido que, de conformidad con las Leyes, este Contrato subsistirá en pleno vigor y efecto sobre cualquier transmisión de propiedad respecto de la Propiedad Arrendada o la ejecución de cualquier gravamen, a cargo del Arrendador, sobre la misma, y cualquier incumplimiento de pago de dichos gravámenes no afectará de modo alguno los términos de este Contrato. En caso que algún acreedor o beneficiario de garantía o cualquier otra Persona adquiera la Propiedad Arrendada derivado de algún procedimiento de ejecución o de cualquier otra forma, el acreedor, beneficiario o la Persona correspondiente deberá asumir las obligaciones del Arrendador conforme al presente Contrato, como propietario de la Propiedad Arrendada y el Arrendatario conviene en reconocer al nuevo propietario de la Propiedad Arrendada.

In any case, the parties are in the understanding that in accordance with the Laws, this Agreement shall remain in full force and effects regarding any transfer of ownership of the Leased Property or the execution of any charge, by Lessor thereon, and any default on those charges shall not affect in any way the terms of this Agreement. If any creditor or beneficiary of a guarantee or any other Person acquires the Leased Property as a result of an enforcement proceeding or otherwise, the creditor, beneficiary or Person concerned must assume the obligations of Lessor hereunder as owner of the Leased Property and Lessee agrees to recognize the new owner of the Leased Property.

Las partes quedan en el entendido que los Sres. Jesús Salvador Gil Benavides, Alejandro Gil Benavides y Salvador Gil Benavides se encuentran actualmente en negociaciones con el Arrendador para adquirir el Primer Terreno y el Edificio y asumir determinadas cuentas por pagar del Arrendador con su contratista Filial Fabricación de Cubiertos, SA de CV, que ha estado construyendo partes del Edificio. En caso de que celebren un contrato de compraventa del Primer Terreno y del Edificio (a) el Contrato de Arrendamiento Gil quedará automáticamente terminado porque los arrendadores y arrendatarios de dicho contrato serán los señores Jesús Salvador Gil Benavides, Alejandro Gil Benavides y Salvador Gil Benavides, y (b) el Arrendador y los Sres. Jesús Salvador Gil Benavides, Alejandro Gil Benavides y Salvador Gil Benavides darán aviso al Arrendatario para que se apliquen las reglas establecidas en esta cláusula 14.1 para el reconocimiento de los nuevos arrendadores.

The parties understand that Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides currently are in negotiations with Lessor to acquire the First Plot and the Building and to assume certain accounts payable of Lessor with its Affiliate contractor Fabricación de Cubiertos, S.A de C.V, which has been building portions of the Building. In the event they enter into a purchase and sale agreement of the First Plot and the Building (a) the Gil Lease Agreement will be automatically terminated because the lessors and the lessees under that lease will be Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides, and (b) Lessor and Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides shall give notice to Lessee so that the rules set forth in this clause 14.1 apply for the recognition of the new lessors hereof.

14.2 Cesión del Arrendador. El Arrendador se reserva el derecho de ceder, en todo o en parte, sus derechos bajo este Contrato a (a) los Sres. Jesús Salvador Gil Benavides, Alejandro Gil Benavides y Salvador Gil Benavides, (b) Filiales, o (c) después de un periodo de 5 (cinco) años, a terceros, incluyendo sin limitar fideicomisos patrimoniales, con el consentimiento del Arrendatario, el cual no deberá ser negado sin razón (en el entendido que transmisiones de propiedad a competidores y sus filiales, cuyo negocio principal es la manufactura de carros de tren y partes para los mismos, deberá considerarse razón suficiente para negar dicho consentimiento).

14.2 Assignment by Lessor. Lessor reserves the right to assign, in whole or in part, its rights under this Agreement to (a) Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides, (b) Affiliates, or (c) following an initial period of 5 (five) years, to third parties, including without limitation, estate trusts, upon consent of Lessee, which shall not be unreasonable withheld (provided that transfer to competitors and affiliates thereof, whose primary business is the manufacture of railcars and parts thereof, shall be considered reasonable reasons for withholding such consent).

14.3 Cesión y Subarrendamiento del Arrendatario. La Arrendataria se reserva la facultad de ceder los derechos derivados de este Contrato y/o subarrendar la Propiedad Arrendada a Filiales de la Arrendataria, bastando para ello una previa notificación por escrito a la Arrendadora con 30 (treinta) días naturales de anticipación a la fecha en que la transacción surta efectos; en el entendido que (a) la Garantía deberán permanecer en pleno vigor y efecto, (b) el Arrendatario deberá constituirse como obligado solidario de todas y cada una de las obligaciones relevantes del cesionario o subarrendatario correspondiente, como Arrendatario conforme al presente Contrato, (c) el uso de la Propiedad Arrendada deberá ser consistente con este Contrato, (d) el Arrendatario no podrá otorgar en subarrendamiento la Propiedad Arrendada o ceder sus derechos y obligaciones conforme a este Contrato, a cualquier persona, por un plazo mayor al Plazo remanente, y (e) el Arrendatario no podrá imponer al Arrendador obligación adicional alguna.

14.3 Assignment and Subletting by Lessee. Lessee reserves the right to assign its rights under this Agreement and/or sub-lease the Leased Property to Affiliates, with prior written notice to Lessor with thirty (30) calendar days prior to the date on which the transaction shall take effect; in the understanding that (a) the Guarantee shall remain in full force and effect, (b) Lessee shall be established as joint obligor of each and every one of the relevant obligations of the assignee or subtenant, as Lessee under this Agreement, (c) the use of the Leased Property shall be consistent with this Agreement, (d) Lessee shall not sublease the Leased Property or assign its rights and obligations under this Agreement to any person for a period greater than the remaining Term of this Agreement, and (e) Lessee may not impose additional duty to Lessor.

El Arrendatario en este acto renuncia, de manera expresa e irrevocable, a sus derechos de subarrendar la Propiedad Arrendada o solicitar la rescisión del presente Contrato si el Arrendador se opone a que el Arrendatario otorgue en subarrendamiento la misma, previstos en el Código Civil Federal. En ese sentido, a menos que la cesión o subarrendamiento sea de los autorizados en el primer párrafo de esta cláusula 14.3, la Arrendataria no podrá ceder los derechos derivados de este contrato y/o subarrendar la Propiedad Arrendada a terceros sin el consentimiento del Arrendador otorgado por escrito. En caso que la Arrendador lo autorice, la Arrendataria se obliga a incluir en el documento donde se haga constar la transacción una disposición que reconozca la existencia y Plazo del presente Contrato.

Lessee hereby, expressly and irrevocably waives its right to sublease the Leased Property or request the termination of this Agreement if Lessor opposes to the sublease by Lessee established in the Federal Civil Code. In that regard, unless the assignment or sublease is authorized per the first paragraph of this clause 14.3, Lessee shall not assign the rights under this contract and/or sublease the Leased Property to third parties without the written consent of Lessor. If authorized by Lessor, Lessee shall include in the document where the transaction shall be executed, a provision recognizing the existence and the Term of this Agreement.

En todo caso, la Arrendadora se reserva el derecho de optar porque este Contrato se dé por terminado y firmar un nuevo contrato de arrendamiento con el cesionario o el subarrendador, según sea el caso. En esa eventualidad, el Arrendatario no tendrá obligación futura alguna conforme a la nueva relación contractual.

In any case, Lessor reserves the right to opt for the termination of this Agreement and the execution of a new lease agreement with the assignee or subtenant, as the case may be. In that event, Lessee shall have no further obligation under the new contractual relationship.

14.4 Nulidad. La violación a lo dispuesto en esta cláusula 14, hará nulo cualquier acto ejecutado en contra de lo antes estipulado y dará derechos a la otra parte a rescindir el Contrato sin necesidad de declaración judicial al respecto, y la parte que incumpla responderá por las obligaciones a su cargo.

14.4 Severability. The violation of the provisions of this clause 14 shall nullify any act performed against the stipulations set forth herein and shall give rights to the other party to terminate the Agreement without any judicial resolution to that effect, and the breaching party shall be liable to fulfill its obligations.

Cláusula 15. Derecho de Preferencia por el Tanto.

Clause 15. Right of First Refusal.

El Arrendatario en este acto mantiene expresamente al derecho de preferencia por el tanto cuando el Arrendador enajene la Propiedad Arrendada, total o parcialmente, a tercero alguno.

Lessee hereby expressly retains the right of first refusal if Lessor transfers the Leased Property, in whole or in part, to a third party.

Cláusula 16. Acceso a la Propiedad Arrendada.

Clause 16. Access to the Leased Property.

En todo momento el Arrendatario deberá permitir al Arrendador y a sus representantes autorizados el acceso a la Propiedad Arrendada, durante días y horas hábiles, a fin de inspeccionar y realizar las obras y reparaciones que sean necesarias, siempre y cuando el Arrendador entregue al Arrendatario una notificación por escrito con al menos 3 (tres) días hábiles de anticipación. El Arrendador deberá tener libre acceso a la Propiedad Arrendada, durante horas hábiles, dentro de los 6 (seis) meses previos a la Fecha de Terminación de este Contrato a fin de mostrar la Propiedad Arrendada a posibles futuros arrendatarios.

At all times, Lessee shall permit the Lessor and its authorized representatives access to the Leased Property during business days and hours, with the aim of inspecting and carrying out work and repairs that were necessary, provided that the Lessor has delivered to the Lessee written communication with a minimum anticipation of 3 (three) business days. The Lessor shall have the right to enter the Leased Property at any reasonable time during the usual business hours and at any time within the six (6) months prior to the Termination Date of this Agreement, with the goal of showing the Leased Property to possible future lessees.

El Arrendador conviene en que cada uno de dichos accesos se llevarán a cabo de manera razonable y obstruyendo en la menor medida posible las operaciones de negocio del Arrendatario. El Arrendatario tendrá el derecho de tener un representante para acompañar al Arrendador dentro de la Propiedad Arrendada. El acceso del Arrendador conforme a lo dispuesto en esta cláusula no constituirá el desalojo, ya sea total o parcial, del Arrendatario y, por lo tanto, la Renta no será disminuida mientras se realice cualquier obra, mejora, adición o reparación, ya sea por motivo de pérdida, interrupción de las operaciones de negocio del Arrendatario o por cualquier otro motivo.

Lessor agrees that each such entry shall be conducted in a reasonable manner and that shall be the least intrusive to Lessee’s business operations. Lessee shall have the right to have a representative accompany Lessor throughout the Leased Property. Lessor’s entry pursuant hereto shall not constitute an eviction of Lessee, in whole or in part, and the Rent shall in no way abate while any alterations, repairs, improvements or additions are being made, whether by reason of loss or interruption of Lessee’s business or otherwise.

Cláusula 17. Devolución de la Propiedad Arrendada.

Clause 17. Restitution of the Lease Property.

17.1 Entrega de la Propiedad Arrendada. Al vencimiento del Plazo o en la fecha de cualquier terminación anticipada (la “Fecha de Terminación”), según sea el caso, la Arrendataria devolverá y entregará el uso y goce de la Propiedad Arrendada a la Arrendadora, sin demora alguna, y en las mismas condiciones de orden y mantenimiento en que el Arrendatario la recibió, salvo por el uso y desgaste.

17.1 Restitution of the Leased Property. Upon the expiration of the Term or on the date of any early termination (the “Termination Date”), as applicable, Lessee shall return and deliver the use and enjoyment of the Leased Property to the Lessor, without any delay, under the same conditions of order and maintenance Lessee received, wear and tear except.

17.2 Inspección Previa a la Devolución y Acta Entrega - Devolución. Las partes se reunirán en el Edificio dentro de los 30 (treinta) días naturales previos a la Fecha de Terminación, o en la fecha que señale el Arrendador o el Arrendatario, según sea el caso, en caso de terminación anticipada, a fin de verificar la condición de la Propiedad Arrendada. En la Fecha de Terminación, el Arrendatario deberá entregar al Arrendador (a) la evidencia que acredite que todos los servicios de la Propiedad Arrendada han sido debidamente pagados en su totalidad, (b) el estado físico en que el Arrendatario devuelve la Propiedad Arrendada, (c) una memoria fotográfica de la Propiedad Arrendada al momento de la devolución, (d) un inventario detallado de la Propiedad Arrendada y de sus accesorios, (e) la descripción de cualquier reparación que el Arrendatario deba de hacer de la Propiedad Arrendada previa devolución de la misma conforme a lo previsto en este Contrato, (f) la forma en que se cubrirán los gastos derivados de dicha reparación, (g) aquellas obligaciones que subsistirán a la terminación de este Contrato, si hubiera alguna, (h) el monto que el Arrendador mantiene de los Depósitos en Garantía, si los hubiere, (i) la descripción de cualquier ampliación o Mejora del Arrendatario previamente autorizada conforme al presente Contrato y que, en su caso, las partes hubieren previamente acordado por escrito que se quedaran en beneficio de la Propiedad Arrendada, así como un plano de ubicación de dichas ampliaciones o Mejoras del Arrendatario y, en su caso, los manuales, verificaciones, inspecciones, mantenimientos, autorizaciones, pólizas de garantía y servicio y cualquier documento relacionado con lo anterior, y (j) las solicitudes para obtener los certificados emitidos por la Procuraduría Federal de Protección al Ambiente y la Secretaría del Medio Ambiente y Recursos Naturales, por virtud del cual se acredite la baja de las actividades u operaciones del Arrendatario a causa del cierre de sus instalaciones o por cualquier otro motivo.

17.2 Inspection prior to the Restitution and Delivery Certificate. The parties shall meet in the Building within 30 (thirty) calendar days prior to Termination Date or on the date specified by Lessor or Lessee, as the case may be, in case of an early termination, to verify the condition of the Leased Property. On the Termination Date, Lessee shall deliver Lessor (a) evidence that all the utility services to the Leased Property have been duly and fully paid, (b) the physical condition in which Lessee is returning the Leased Property, (c) a photographic memory of the Leased Property at the time of being returned, (d) a detailed inventory of the Leased Property and its accessories, (e) the description of any repair that Lessee must make after returning the Leased Property pursuant to that set forth in this Agreement, (f) the manner in which the expenses derived from such repairs shall be covered, (g) those obligations subsisting to the termination of this Agreement, if any, (h) the amount of the Security Deposits being held by the Lessor, if any, (i) the description of any expansion or Lessee’s Improvement previously authorized pursuant to this Agreement and that, if applicable, the parties have previously agreed to in writing to leave as a benefit to the Leased Property, as well as a location plan of such expansion or Lessee’s Improvements, and if applicable, the manuals, verifications, inspections, maintenance, authorizations, guarantees and service policies and any other document related to the above, and (j) the applications to obtain the certificates issued by the Environmental Protection Federal Department (Procuraduría Federal del Medio Ambiente) and the Ministry of Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales, that proves the cancelation of Lessee's business or operations due to the closure of its facilities or for any other reason.

Así mismo, al finalizar la inspección, el Arrendatario y el Arrendador elaborarán y firmarán un acta de devolución – recepción de la Propiedad Arrendada que contemple el estado en que se devuelve y recibe ésta. Una vez que se firme dicha acta, el Arrendador tomará plena posesión y responsabilidad de la Propiedad Arrendada.

Likewise, at the end of the inspection, Lessor and Lessee shall and sign a delivery certificate of the Leased Property which will contemplate the state in which the Leased Property is returned and received. Once such certificate is signed, Lessor will take full possession and responsibility of the Leased Property.

17.3 Mejoras y Otras Instalaciones. Las mejoras, incluyendo las Mejoras del Arrendatario y las ampliaciones del Edificio construidas por el Arrendatario, serán removidas en los términos de la cláusula 9 de mejoras del presente Contrato, salvo que el Arrendador acepte que alguna o todas se mantengan. No obstante lo anterior, si por cualquier motivo el Arrendatario abandona cualquier bien o propiedad suya en la Propiedad Arrendada después de la terminación, ya sea anticipada o programada, de este Contrato, se entenderán abandonadas a favor del Arrendador. El Arrendatario reconoce que el Arrendador no incurrirá en responsabilidad alguna frente al Arrendatario o frente a cualquier tercero, al determinar el destino de los bienes abandonados en los términos de este párrafo.

17.3 Modification and other Installations. The modifications, including the Lessee Improvements and extensions to the Building built by Lessee, shall be removed pursuant to clause 9 herein, unless Lessor agrees that one or all of them remain. Notwithstanding the foregoing, if for any reason whatsoever Lessee abandons any goods or property at the Leased Property after the termination, whether scheduled or anticipated, of this Agreement, shall be considered abandoned in favor of Lessor. Lessee acknowledges that the Lessor will not incur in any liability before the Lessee or any third party, in determining the destiny of the abandoned property in the terms of this paragraph.

A menos que las partes acuerden lo contrario, todos los letreros, inscripciones, celosías e instalaciones de naturaleza similar instalados por el Arrendatario deberán ser removidos antes de la Fecha de Terminación. Igualmente, a menos que las partes acuerden lo contrario, cualquier mobiliario, maquinaria y equipo instalado por el Arrendatario será retirado por el Arrendatario en cualquier momento o a la Fecha de Terminación debiendo el Arrendatario, a su propio costo, reparar los daños causados por la instalación o remoción de los letreros, inscripciones, celosías e instalaciones de naturaleza similar, la instalación o remoción del mobiliario, maquinaria y equipo.

Unless otherwise agreed by the parties, all signs, inscriptions, lattices and installations of a similar nature set up by the Lessee shall be removed before the Termination Date. Also, unless otherwise agreed by the parties, all furniture, machinery and business equipment installed by the Lessee shall be removed by Lessee at any time or at the Termination Date and Lessee shall, at its own cost, repair the damage resulting from the installation or removal of said signs, inscriptions, lattices and installations of a similar nature, the installation or removal of furniture, machinery and business equipment.

17.4 Ocupación Indebida. Para efectos de este Contrato, las partes considerarán como ocupación indebida la falta de devolución de la Propiedad Arrendada a la Arrendadora a partir del vencimiento o de la Fecha de Terminación del presente Contrato, independientemente de la causa (la “Ocupación Indebida”).

17.4 Improper Occupation. For purposes of this Agreement, the parties shall consider as unlawful occupation the failure to vacate and deliver the Leased Property to Lessor at the Termination Date of this Agreement, regardless of the cause (the “Improper Occupation”).

17.5 Pena Convencional Por Ocupación Indebida. En caso de Ocupación Indebida de la Propiedad Arrendada el Arrendatario deberá (a) pagar al Arrendador mensualmente la renta vigente hasta que el Arrendatario devuelva y entregue la Propiedad Arrendada al Arrendador, con los incrementos de Renta aplicables en términos de este Contrato, y (b) pagar al Arrendador, como pena convencional, a partir de la fecha en que inicie la Ocupación Indebida, en efectivo, mensualmente, en la cuenta bancaria de pago de la Renta, una cantidad equivalente al 100% (cien por ciento) de la Renta mensual en vigor durante los meses que dure la Ocupación Indebida. La forma y lugar de pago de dicha pena convencional serán las mismas acordadas para la Renta. La aceptación de dicho pago por parte del Arrendador no implicará en forma alguna la renuncia del Arrendador a su derecho de recuperar la Propiedad Arrendada.

17.5 Contractual Penalty for Improper Occupation. In the event of Improper Occupation of the Leased Property Lessee shall (a) pay the Lessor each month the current Rent until Lessee returns and delivers the Leased Property to Lessor, with the applicable Rent increases agreed to in this Agreement, and (b) pay Lessor, from the day the Improper Occupation begins, as a contractual penalty, in cash, monthly, in the Rent payment bank account, an amount equal to 100% (one hundred percent) of the Rent in effect during the months that the Improper Occupation lasts. The form and place of payment of such contractual penalty shall be the same as the Rent. The receipt of such payment by Lessor shall not imply in any manner whatsoever a waiver by Lessor of any right to recover the Leased Property.

17.6 Tácita Reconducción. El Arrendatario en este acto renuncia, de manera expresa e irrevocable, a la operación de la tácita reconducción prevista en el Código Civil Federal.

17.6 Automatic Renewal. Lessee hereby, expressly and irrevocably, waives to the automatic renewal of the Agreement “tácita reconducción” established in the Federal Civil Code.

Cláusula 18. Responsabilidad General de las Partes.

Clause 18. General Liability of the Parties.

18.1 Cumplimiento de Ley Aplicable. Cada una de las partes se obliga a cumplir y respetar la Ley Aplicable, sea está presente o futura, que regula las actividades que pretenden realizar en los términos de este Contrato.

18.1 Compliance with Applicable Law. Each party agrees to observe and respect the Applicable Law, whether present or future, which regulate the activities that intend to carry out pursuant to this Agreement.

18.2 Responsabilidad de las Partes. Cada una de las partes será responsable por cualquier Daño o Perjuicio que, con motivo de su conducta, negligente o dolosa, y/o de las actividades contempladas en este Contrato cause cualquier Persona, la Propiedad Arrendada, el material, maquinaria, equipo o herramientas localizados en la Propiedad Arrendada y a las propiedades adyacentes.

18.2 Liability of the parties. Each party shall be responsible for any Damage or injury as a result of their behavior, negligent or intentional, and/or activities contemplated by this Agreement caused to any Person, the Leased Property, material, machinery, equipment or tools located in the Leased Property and adjacent properties.

No obstante, cualquier disposición en contrario de este Contrato, la responsabilidad del Arrendador (y de cualquiera de sus causahabientes) hacia el Arrendatario estará limitada al valor de la Propiedad Arrendada. Los accionistas, socios, funcionarios, directores, representantes o empleados del Arrendador no serán responsables en ningún caso.

Notwithstanding any provision to the contrary in this Agreement the responsibility of Lessor (and any of his successors) to Lessee shall be limited to the value of the Leased Property. Shareholders, partners, officers, directors, representatives or employees of the Lessor shall not be liable in any case.

18.3 Responsabilidad de las Partes con Relación a Actos de Terceros. Cada una de las Partes asume todas las responsabilidades derivadas en sus relaciones con sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad.

18.3 Responsibility of the Parties with respect to acts of Third Parties. Each Party shall assume all liabilities arising in its dealings with its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility.

18.4 Indemnización. Cada una de las partes se obliga a no perturbar a la otra parte, a sus accionistas, socios, representantes, consejeros, funcionarios y empleados, así como a indemnizarlo y mantenerlo en paz y a salvo de cualesquiera, Daños y Perjuicios, demandas, reclamaciones, juicios, acciones, restituciones y sentencias de cualquier naturaleza, promovidas en su contra con motivo de cualesquier actos u omisiones de la contraparte, sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad.

18.4 Indemnity. Each party agrees not to disturb the other party, its shareholders, partners, directors, officers and employees, and to indemnify and hold harmless from any, Damages, demands, claims, suit, action, refunds and statements of any kind, promoted against by reason of any act or omission of the other party, its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility.

El Arrendatario en este acto conviene en utilizar la Propiedad Arrendada conforme a las Leyes y se obliga a no perturbar, a indemnizar y sacar en paz y a salvo al Arrendador de cualesquier Daños y Perjuicios, demandas, reclamaciones, juicios, acciones, restituciones y sentencias derivados de Daños Ambientales causados por el Arrendatario, sus Filiales, causahabientes, subarrendatarios, contratistas, subcontratistas, empleados, visitas, agentes, o cualquier Persona bajo su responsabilidad, durante la vigencia del presente Contrato y dentro de, o afectando a, la Propiedad Arrendada o al Arrendador.

Lessee hereby agrees to use the Leased Property in accordance with the Laws and agrees not to disturb and to indemnify and hold harmless from any, Damages, demands, claims, suit, action, refunds and statements of any Environmental Damage caused by Lessee, its Affiliates, successors, sub-lessees, contractors, subcontractors, employees, visitors, agents, or any Person under its responsibility, during the term of this Agreement and within or affecting the Leased Property or Lessor.

El Arrendatario tendrá la obligación de notificar al Arrendador y mantener al Arrendador informado por escrito (a) de cualquier violación a las leyes ambientales, y (b) del desarrollo y los resultados de cualquier procedimiento judicial o administrativo en el cual el Arrendatario sea una parte relacionado con autorizaciones, permisos, verificaciones, multas, daños, pérdidas, sanciones o acciones en general relacionadas con contingencias ambientales, ya sea de carácter federal, estatal o municipal, incluyendo pero no limitado a impacto ambiental, riesgo ambiental, contaminación del aire, agua o suelo, ruido, Materiales Peligrosos, así como el uso, beneficio o descarga de aguas residuales (conjuntamente, las “Contingencias Ambientales”).

Lessee shall have the obligation to notify Lessor and keep Lessor informed in writing of (a) any substantial violation of the environmental laws and (b) the development and results of any judicial or administrative proceeding in which either Lessee is a party related with authorizations, permits, verifications, fines, damages, losses or general actions relating to environmental issues, whether federal, state or municipal, including, but not limited to environmental impact, air, water or soil pollution, noise, Hazardous Materials and use, benefit or discharge of sewage waters (collectively, the “Environmental Matters”).

Si cualquier Acción de Remediación es necesaria o conveniente con respecto de alguna Contingencia Ambiental atribuible al Arrendatario bajo este Contrato, el Arrendatario deberá tomar las Acciones de Remediación necesarias o requeridas a efecto que la Propiedad Arrendada cumpla con las leyes ambientales. El Arrendatario deberá llevar a cabo dichas Acciones de Remediación con base en el proceso propuesto por algún laboratorio ambiental de buena reputación en México, con al menos 5 (cinco) años de experiencia relevante en México, y que se encuentre debidamente acreditado por la Procuraduría Federal de Protección al Ambiente, el cual será propuesto por el Arrendatario y previamente aprobado por el Arrendador, cuya aprobación no podrá ser injustificadamente retenida o denegada. El Arrendatario deberá indemnizar, defender y sacar en paz y a salvo al Arrendador y/o a cualquier acreedor del Arrendador de cualquier Daño Ambiental surgiendo de, o en relación con, cualquier Contingencia Ambiental.

If any Remedial Action is necessary or appropriate with respect to any Environmental Matters for which Lessee is responsible under this Agreement, Lessee undertakes all such Remedial Actions to have the Leased Property to comply with the environmental laws. Lessee shall develop said Remedial Actions based on the process proposed by a reputable environmental laboratory in Mexico and dully certified by the Federal Bureau for Environmental Protection (Procuraduría Federal de Protección al Ambiente), with at least 5 (five) years of relevant experience in Mexico, which environmental laboratory shall be proposed by Lessee and previously approved by Lessor, which approval shall not be unreasonably denied or withheld. Lessee shall indemnify, defend and hold harmless Lessor and/or any Lessor creditor from any Environmental Damages for, arising out of, or in connection with, any Environmental Matter.

Cláusula 19. Responsabilidad Laboral de las Partes.

Clause 19. Labor Responsibility of the Parties

19.1 Responsabilidad Laboral. Cada una de las partes asumirá la responsabilidad laboral sobre el personal que asigne a la realización de sus obligaciones, conforme a este Contrato, y conviene en cumplir estrictamente con sus respectivas obligaciones como patrón respecto de dicho personal, de conformidad con la Ley Federal del Trabajo, la Ley del Instituto Mexicano del Seguro Social, la Ley del Instituto del Fondo Nacional de la Vivienda para los Trabajadores y todos los reglamentos y disposiciones de orden laboral aplicables. Cada una de las Partes deberá mantener en el sitio de la construcción copia de los documentos que demuestren el cumplimiento de sus obligaciones pactadas en esta cláusula.

19.1 Labor Responsibility. Each party shall assume its labor responsibility over its personnel assigned to carry out its obligations under this Agreement and agrees to comply strictly with its obligations as employer with respect to such personnel in accordance with the Federal Labor Law, the Mexican Social Security Institute Law Institute of the National Housing Fund for Workers Law and all applicable rules and regulations of labor order applicable. Each Party shall keep in the construction site copy of the documents proving the fulfillment of its obligations agreed in this clause.

19.2 Indemnización Laboral. El Arrendador conviene en indemnizar y en sacar al Arrendatario en paz y a salvo en caso de cualquier demanda laboral que interponga cualquier trabajador o empleado del Arrendador, así como de cualquier reclamación presentada por el Instituto Mexicano del Seguro Social o el Instituto del Fondo Nacional de la Vivienda para los Trabajadores, por omisión del Arrendador en el pago de las cuotas respectivas. Por su parte, el Arrendatario conviene en indemnizar y en sacar al Arrendador en paz y a salvo en caso de cualquier demanda laboral que interponga cualquier trabajador o empleado del Arrendatario, así como de cualquier reclamación presentada por el Instituto Mexicano del Seguro Social o el Fondo Nacional de la Vivienda para los Trabajadores, por omisión del Arrendatario en el pago de las cuotas respectivas.

19.2 Labor Indemnity. Lessor agrees to indemnify and hold Lessee harmless in case of any labor demand claimed by any worker or employee of Lessor, and any complaint by the Mexican Social Security Institute or the Institute of National Fund Workers' Housing, arising from a default of Lessor in the payment of the respective fees. For its part, Lessee agrees to indemnify and hold Lessor harmless in case of any labor demand claimed any worker or employee of Lessee, as well as any complaint by the Mexican Social Security Institute or the National Fund Housing for Workers, arising from a default of Lessee in the payment of the respective fees.

Cláusula 20. Garantía.

Clause 20. Guarantee.

20.1 Fianza Solidaria. Simultáneamente con la firma del presente Contrato, el Arrendador, el Arrendatario y el Garante firmarán la Garantía en los términos del contrato que se adjunta a este instrumento como Anexo “D”. Dicha Garantía deberá ser exigible hasta la Fecha de Terminación.

20.1 Guarantee. Simultaneously with the execution of this Agreement, Lessor, Lessee and Guarantor shall sign the Guaranty attached hereto as Exhibit “D”. This guarantee shall be enforceable up to the Termination Date.

20.2 Estados Financieros. A petición razonable por escrito del Arrendador, especialmente cuando se lo requiera al Arrendador alguna institución financiera mexicana o del extranjero, el Arrendatario deberá entregar al Arrendador una copia de los estados financieros auditados del Arrendatario y del Garante, correspondientes al año inmediato anterior.

20.2 Financial Statements. At Lessor’s reasonable request in writing, especially when required to Lessor by any Mexican or foreign financial institution, Lessee shall deliver to Lessor a copy of the audited financial statements of Lessee and Guarantor, corresponding to the preceding year.

Cláusula 21. Incumplimiento de las Partes.

Clause 21. Events of Default.

21.1 Incumplimiento del Arrendador. En caso que el Arrendador incumpla la Ley Aplicable o las obligaciones pactadas en el texto del Contrato, el Arrendatario podrá (a) demandar el cumplimiento forzoso de las obligaciones y el pago de Daños y Perjuicios o de la pena convencional pactada, si la hubiere, o (b) rescindir el presente Contrato y exigir el pago de Daños y Perjuicios o de la pena convencional pactada, si la hubiere; a menos que el Arrendador subsane el incumplimiento en un término de 30 (treinta) días naturales contados a partir de la notificación del incumplimiento por parte del Arrendatario. En caso que el Arrendador no subsane el incumplimiento, la rescisión operará de pleno derecho sin necesidad de declaración judicial.

21.1 Defaults by Lessor. If Lessor fails to comply with Applicable Law or the obligations agreed to herein, Lessee may (a) claim the enforceability of the obligations and payment of Damages, or the agreed contractual penalty, if any or (b) early terminate this Agreement and require payment of Damages or the agreed contractual penalty, if any; unless Lessor cures the breach within a term of 30 (thirty) calendar days following the notification of breach by Lessee. If Lessor does not cure the default, the termination will operate with no further requirements and no need of a judicial resolution.

Las partes acuerdan que, para efectos de este Contrato, se consideran como causales de rescisión a favor del Arrendatario, entre otras, las siguientes:

The parties agree that for purposes of this Agreement, the following are considered events of default in favor of Lessee, among others:

(a) La insolvencia del Arrendador o si realiza algún acto en fraude de acreedores o realiza alguna cesión para el beneficio de acreedores o admite por escrito su incapacidad de hacer frente a sus obligaciones vencidas, incluyendo pero no limitado a lo siguiente: que el Arrendador incumpla generalizadamente con el pago de sus obligaciones, conforme al Artículo 9 de la Ley de Concursos Mercantiles y su equivalente de la Legislación Aplicable de los Estados Unidos de América, o admita expresamente su inhabilidad para liquidar la mayoría de sus deudas en lo general; o lleve a cabo una cesión en beneficio de acreedores, o el Arrendador sea declarado en concurso mercantil o suspensión de pagos, entre en estado liquidación o disolución, o que pretenda una orden de suspensión o designación de un síndico, fiduciario, o cualquier otro funcionario interventor del Arrendador o de cualquier parte substancial de sus activos; o el Arrendador, a través de su asamblea de accionistas o consejo de administración o de cualquier otra forma, resuelva mediante los actos corporativos necesarios autorizar cualquiera de los eventos que se describen en este párrafo (a); o cualquier autoridad competente declare una moratoria o suspensión de pagos, por cualquier causa, de las deudas del Arrendador.

(a) If Lessor becomes insolvent, makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts when due or admits in writing its inability to meet its overdue obligations, including but not limited to the following: Lessor’s general failure to pay its obligations, as defined in Article 9 of the Commercial Reorganization and Bankruptcy Law or its equivalent under Applicable Law in the United States of America, or expressly admits its inability to pay its debts in general, or makes an assignment for the benefit of its creditors; or the Lessor is declared in bankruptcy, commercial insolvency, liquidation or dissolution, or that it requests an order of suspension or designation of a trustee, fiduciary or any other intervening officer of the Lessor or any substantial part of its property; or the Lessor, through its shareholders meeting or board of directors or in any other manner, resolves through the necessary corporate acts, to authorize any of the events described in this paragraph (a); or any competent authority declares a stay or payment stop, for any reason, of the Lessor’s debts.

(b) En caso que el Contrato de Arrendamiento Gil sea terminado antes del Plazo resultando en una perturbación o daño para el Arrendatario o la imposibilidad de continuar con este Contrato en sus términos. En este caso el Arrendador se compromete a pagar al Arrendatario los daños correspondientes y aplicables, además de todos los demás derechos bajo este Contrato o la Ley Aplicable.

(b) In the event that the Gil Lease Agreement is terminated before the Term resulting in any disturbance or damage to Lessee, or the impossibility to continue this Agreement in its terms. In this case Lessor hereby agrees to pay to Lessee the corresponding and applicable liquidated damages, in addition to all other rights and remedies under this Agreement or Applicable Law.

(c) Si el Arrendatario no logra construir la espuela para conectar la Propiedad Arrendada a las líneas de ferrocarril y no ha recibido todos los permisos necesarios para esos efectos dentro de un plazo de 12 (doce) meses contados a partir de la fecha de este instrumento.

(c) If Lessor fails to build the spur to connect the Leased Property to the railroad lines and receive all necessary permits related thereto within 12 (twelve) months of the date hereof.

21.2 Incumplimiento del Arrendatario. En caso que el Arrendatario incumpla la Ley Aplicable o las obligaciones pactadas en el texto del Contrato, el Arrendador podrá (a) demandar el cumplimiento forzoso de las obligaciones y el pago de la pena convencional pactada, si la hubiere, o (b) rescindir el presente Contrato y exigir la pena convencional pactada; a menos que el Arrendatario subsane el incumplimiento en un término de 90 (noventa) días naturales contados a partir de la notificación del incumplimiento por parte del Arrendador. En caso que no se subsane el incumplimiento, la rescisión operará de pleno derecho sin necesidad de declaración judicial.

21.2 Defaults by Lessee. If Lessee fails to comply with Applicable Law or the obligations agreed to herein, Lessor may (a) claim the enforceability of the obligations and payment of the agreed contractual penalty, if any, or (b) early terminate this Agreement and require payment of the agreed contractual penalty; unless Lessee cures the breach within a term of 90 (ninety) calendar days following the notification of breach by Lessor. If Lessee does not cure the default, the termination will operate with no further requirements and no need of a judicial resolution.

Las partes acuerdan que, para efectos de este Contrato, se consideran como causales de rescisión a favor del Arrendador, entre otras, las siguientes:

The parties agree that for purposes of this Agreement, the following are considered events of default in favor of Lessor, among others:

(a) Si el Arrendatario no cubre al Arrendador, total o parcialmente, algún adeudo, incluyendo sin limitar la Renta, dentro de los treinta (30) días naturales siguientes a su fecha de vencimiento.

(a) If Lessee fails to pay Lessor, in whole or in part, any debt, including without limitation the Rent, within thirty (30) calendar days following the due date.

(b) La insolvencia del Arrendatario y/o del Garante o si realiza algún acto en fraude de acreedores o realiza alguna cesión para el beneficio de acreedores o admite por escrito su incapacidad de hacer frente a sus obligaciones vencidas, incluyendo sin limitar lo siguiente: que el Arrendatario o el Garante incumplan generalizadamente con el pago de sus obligaciones, conforme al Artículo 9 de la Ley de Concursos Mercantiles o su equivalente de la Legislación Aplicable de los Estados Unidos de América, o admita expresamente su inhabilidad para liquidar la mayoría de sus deudas en lo general; o lleve a cabo una cesión en beneficio de acreedores, o el Arrendatario o el Garante sea declarado en concurso mercantil o suspensión de pagos, entre en estado liquidación o disolución, o que pretenda una orden de suspensión o designación de un síndico, fiduciario, o cualquier otro funcionario interventor del Arrendatario, del Garante o de cualquier parte substancial de sus activos; o el Arrendatario o el Garante, a través de su asamblea de accionistas o consejo de administración o de cualquier otra forma, resuelva mediante los actos corporativos necesarios autorizar cualquiera de los eventos que se describen en este párrafo (b); o cualquier autoridad competente declare una moratoria o suspensión de pagos, por cualquier causa, de las deudas del Arrendatario o del Garante.

(b) If Lessee and/or the Guarantor becomes insolvent, makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts when due or admits in writing its inability to meet its overdue obligations, including but not limited to the following: Lessee’s or Guarantor’s general failure to pay its obligations, as defined in Article 9 of the Commercial Reorganization and Bankruptcy Law or its equivalent under Applicable Law in the United States of America, or expressly admits its inability to pay its debts in general, or makes an assignment for the benefit of its creditors; or the Lessee or Guarantor is declared in bankruptcy, commercial insolvency, liquidation or dissolution, or that it requests an order of suspension or designation of a trustee, fiduciary or any other intervening officer of the Lessee, Guarantor or any substantial part of its property; or the Lessee or Guarantor, through its shareholders meeting or board of directors or in any other manner, resolves through the necessary corporate acts, to authorize any of the events described in this paragraph (b); or any competent authority declares a stay or payment stop, for any reason, of the Lessee’s or Guarantor’s debts.

(c) La pérdida de la posesión a causa de algún proceso o disposición al amparo de las Leyes, en cuyo caso el Arrendatario inmediatamente deberá devolver al Arrendador la Propiedad Arrendada.

(c) The loss of the Leased Property’s possession arising out of a process or provision contemplated in the Laws, in which case Lessee shall immediately return to Lessor the Leased Property.

(d) Si el Arrendatario desocupa o abandona la Propiedad Arrendada por más de 3 (tres) meses, sin el previo consentimiento del Arrendador, independientemente de que continúe pagando la Renta y cumpla con el resto de sus obligaciones.

(d) If Lessee vacates or abandons the Leased Property for more than 3 (three) months, without the prior written consent of Lessor, regardless of whether it continues to pay the Rent and complies with the rest of its obligations.

(e) Si el Arrendatario subarrienda la Propiedad Arrendada a terceros sin la autorización previa y por escrito del Arrendador.

(e) If Lessee subleases the Leased Property to third parties, without the prior written consent of Lessor.

Salvo por lo expresamente dispuesto en este Contrato, la reposición o el reingreso de la totalidad o cualquier parte de la Propiedad Arrendada no liberará al Arrendatario de sus responsabilidades y obligaciones al amparo de este Contrato.

Except as expressly provided in this Agreement, replacement or reinstatement of all or any part of the Leased Property shall not relieve Lessee of their responsibilities and obligations under this Agreement.

La omisión o demora del Arrendador en el ejercicio de cualquiera de sus derechos y recursos conforme a este Contrato de ninguna manera deberá interpretarse como una renuncia de los mismos. Así mismo, el ejercicio único o parcial del Arrendador o del Arrendatario, según sea aplicable, de cualquiera de sus derechos y recursos conforme a este Contrato no impedirá el ejercicio futuro de los mismos o el ejercicio de cualquier otro derecho o recurso.

The failure or delay by Lessor or Lessee, as applicable, in exercising any of its rights and remedies under this Agreement in no way shall be construed as a waiver thereof. Likewise, the single or partial exercise of Lessor or Lessee, as applicable, of any of its rights and remedies under this Agreement shall preclude the future exercise thereof or the exercise of any other right or remedy.

21.3 Pena Convencional en Caso de Rescisión. En caso de incumplimiento del Arrendatario y dicho incumplimiento no ha sido subsanado en el plazo concedido en el primer párrafo de la cláusula 21.2, además del derecho del Arrendador a rescindir el presente Contrato, el Arrendatario pagará como pena convencional al Arrendador, en la fecha de la rescisión, en la cuenta bancaria de pago de la Renta, una cantidad equivalente al (a) 100% (cien por ciento) de la Renta mensual en vigor multiplicada por el número de meses remanentes del Plazo, si los Contratos terminan durante los primeros 10 (diez) años del Plazo, y (b) 80% (ochenta por ciento) de la Renta mensual en vigor multiplicado por el número de meses restantes del Plazo, si los Contratos terminan durante los segundos 10 (diez) años del Plazo.

21.3 Contractual Penalty in Case of Termination. In the event that Lessee breaches this Agreement and such breach remains uncured after the period granted to cure such breach set forth in the first paragraph of clause 21.2, besides the right of Lessor to terminate this Agreement, then Lessee shall pay as a contractual penalty to Lessor, on the date of the termination, at the bank account set forth as the place of payment of the Rent, an amount equivalent to (a) 100% (one hundred percent) of the monthly current Rent multiplied by the number of remaining months of the Term, if the Agreements terminates during the first 10 (ten) years of the Term, and (b) 80% (eighty percent) of the monthly current Rent multiplied by the number of remaining months of the Term, if the Agreements terminates during the second 10 (ten) years of the Term.

21.4 Posesión en caso de Abandono. Las partes convienen que el hecho de que el Arrendatario abandone la Propiedad Arrendada, conforme a lo pactado en la cláusula 21.2(d), autorizará al Arrendador para que de inmediato y sin necesidad de declaración judicial alguna, tome posesión de la Propiedad Arrendada, con el propósito de evitar deterioro y daños al mismo; así como un perjuicio mayor al Arrendador al quedar la Propiedad Arrendada abandonada y susceptible de ser poseída por cualquier persona sin título legítimo para dicho fin.

21.4 Possession in Case of Abandonment. The parties agree that the fact that the Lessee abandons the Leased Property, in terms of clause 21.2(d), shall authorize the Lessor to immediately take possession of the same, without any judicial declaration, in order to avoid damages to the same; as well as to avoid future damages to the Lessor for having the Leased Property abandoned and in conditions of being possessed by any third party without right to do so.

Queda convenido que la toma de posesión de la Propiedad Arrendada conforme a lo aquí previsto no relevará al Arrendatario de sus respectivas responsabilidades derivadas de cualquier daño causado a la Propiedad Arrendada hasta la fecha en que el Arrendador tome posesión de la Propiedad Arrendada, pero si respecto de daños causados con posterioridad a la fecha en que el Arrendador hubiere tomado la posesión de la Propiedad Arrendada. Para tales efectos, queda convenido que el Arrendador deberá solicitar la presencia de un fedatario público que haga constar en un instrumento público, el estado en que se encuentra la Propiedad Arrendada al momento en que el Arrendador toma posesión del mismo y un inventario de los bienes existentes dentro de la Propiedad Arrendada en esa fecha. Igualmente, los gastos incurridos por el Arrendador al tomar la posesión de la Propiedad Arrendada en los términos establecidos en esta cláusula 21.4, correrán a cargo del Arrendatario, quien deberá reembolsar dichos costos y gastos al Arrendador dentro de los tres (3) días siguientes a la fecha en que el Arrendatario reciba los comprobantes correspondientes de pago. Las partes reconocen que la obligación de reembolso al Arrendador aquí contenida, se encuentra garantizada también por el Depósito de Garantía.

It is hereby agreed that the possession of the Leased Property as set forth herein shall not release the Lessee from its responsibility for any damages suffered by the Leased Property until the date in which the Lessor takes possession of the same, but will do so from those damages caused after such date. To that end, the parties agree that the Lessor must request the presence of a notary public to evidence the state in which the Leased Property are at that time, and to make an inventory of any goods existing within it at such date. Likewise, the expenses incurred by the Lessor in taking possession of the Leased Property in the terms set forth in this clause 21.4 shall be borne by the Lessee, who shall reimburse all such costs and expenses to the Lessor within the three (3) days following the date in which Lessee receives the corresponding proofs of payment. The parties acknowledge that the obligation to reimburse the Lessor contained herein is also covered by the Security Deposit.

La toma de posesión de la Propiedad Arrendada por parte del Arrendador conforme a esta cláusula, no liberará al Arrendatario de sus responsabilidades ni de aquellas derivadas del incumplimiento de sus demás obligaciones conforme a este Contrato.

The possession of the Leased Property by the Lessor pursuant to this clause, shall not release Lessee from its responsibilities and from those arising out of any breach to its obligations hereunder.

Para efectos de esta cláusula se entenderá que la Propiedad Arrendada ha sido “abandonada” cuando no haya presencia física de empleados, contratistas, representantes (incluyendo personal de seguridad) o persona alguna que dependa o tenga cualquier tipo de relación contractual o laboral con el Arrendatario dentro de la Propiedad Arrendada por un periodo mayor a 3 (tres) meses. La Propiedad Arrendada se considerará como “abandonada” aunque el Arrendatario continúe pagando la Renta.

For the purposes of this clause, the Leased Property shall be considered as “abandoned” when there is no physical presence of employees, contractors, representatives (including security personnel) or any other person depending or having any type of contractual or labor relationship with the Lessee within the Leased Property for a term exceeding 3 (three) months. The Leased Property shall not be considered “abandoned” even if Lessee continues paying the Rent.

Cláusula 22. Obligaciones Ambientales.

Clause 22. Environmental Obligations.

22.1 Obligaciones Ambientales del Arrendatario. El Arrendatario, a su costa, se obliga a, y garantiza que, durante el Plazo la Propiedad Arrendada será mantenida y las operaciones del Arrendatario en la Propiedad Arrendada serán conducidas de acuerdo a la Legislación Ambiental aplicable al Arrendatario, que el Arrendatario, dentro de los límites permitidos por la Ley Aplicable, no procesará, combinará, de ninguna forma utilizará, almacenará, desechará, derramará, reciclará, introducirá ni permitirá que se introduzca a la Propiedad Arrendada ningún Material Peligroso o considerado como contaminante por la Legislación Ambiental.

22.1 Lessee´s Environmental Obligations. Lessee covenants and agrees that, at its own cost, that throughout the Term the Leased Property will be maintained and Lessee’s operation will be conducted in accordance with the Environmental Law applicable to the Lessee, that Lessee, within the limits permitted by the Applicable Law will not process, combine, in any manner use, keep, dispose, spill, recycle or introduce or allow to be introduced at the Leased Property, any Hazardous Materials or any material considered as contaminant by the Environmental Law.

El almacenamiento temporal o permanente de Materiales Peligrosos utilizados en la operación ordinaria del Arrendatario o mantenimiento o limpieza de la Propiedad Arrendada, no implicarán un incumplimiento del Arrendatario conforme a esta cláusula 22.1, siempre y cuando, dichas sustancias sean manejadas con el cuidado debido y se encuentren en volúmenes acordes para su uso, en términos de la Legislación Ambiental.

The use or temporary or permanent storage of Hazardous Materials in the ordinary operations of the Lessee, or for maintenance and cleaning of the Leased Property, will not imply a breach by Lessee to this clause 22.1, as long as, such substances are being managed with the due care and in reasonable volumes for their intended use and in accordance with the Environmental Law.

En caso de así requerirlo la Ley Aplicable al negocio o industria del Arrendatario a ser instalado en la Propiedad Arrendada, éste realizará a su cargo todos y cada uno de los estudios de riesgo ambiental, impacto ambiental, reportes previos, reportes continuos, permisos para emisiones al ambiente de cualquier tipo, como generador de residuos y aquellos otros que de conformidad con la Legislación Ambiental se requieran, y deberá entregar al Arrendador copias de dichos documentos dentro de los 10 (diez) días naturales siguientes al requerimiento escrito del Arrendador.

In case it is required by the Applicable Law to the business or industry of the Lessee to be conducted in the Leased Property, the Lessee will perform at its expense each and all of the studies of environmental risk and environmental impact, previous or continuous reports, permits for emissions to the environment, as generator of residues, and those others required pursuant to the Environmental Law, and must deliver to Lessor copies of all of said studies within the ten (10) calendar days following the written request of the Lessor.

Asimismo, el Arrendatario se obliga a contratar por su cuenta y riesgo, los servicios de disposición de desechos peligrosos que su negocio o industria requiera, debiendo entregar al Arrendador, previa solicitud por escrito de este último, evidencia de que los desechos peligrosos según dicho término se definen en la Legislación Ambiental han sido dispuestos en términos de la Legislación Ambiental.

Likewise, the Lessee hereby agrees to hire and maintain, at its own cost and expense, collection services for hazardous waste that its business or industry requires, having to deliver to Lessor, upon written request by the latter, evidence that hazardous wastes, as they are defined in Environmental Law, have been disposed according to the Environmental Law.

El Arrendatario, a su costa, se obliga a entregar al Arrendador dentro de los 30 (treinta) días naturales siguientes a la fecha de terminación, ya sea anticipada o programada, del presente Contrato un estudio ambiental denominado Environmental Site Assessment pase 1, elaborado con base en la norma ASTM E 1527 – 13 en su última edición, emitido por un auditor ambiental independiente, que refleje que durante el Plazo el Arrendatario dio cumplimiento a sus obligaciones derivadas de la Legislación Ambiental, permitiendo en su caso el Arrendador al Arrendatario el acceso a la Propiedad Arrendada únicamente para este fin. En caso de que dicho estudio refleje la necesidad de llevar a cabo estudios adicionales y/o Acciones de Remediación debido a las actividades del Arrendatario durante el Plazo y en su caso la Prorroga, el Arrendatario se obliga a llevar a cabo todos dichos estudios adicionales y/o Acciones de Remediación sólo si son necesarias para que la Propiedad Arrendada cumpla con lo previsto en la Legislación Ambiental.

Lessee agrees, at its cost, to provide to Lessor, within the 30 (thirty) calendar days following the termination, whether scheduled or anticipated, of this Agreement, an environmental report known as Environmental Site Assessment phase 1, based on norm ASTM E 1527 – 13 in its last edition, issued by and independent environmental auditor, that will evidence that during the Term the Lessee complied with its obligations derived from the Environmental Law, allowing the Lessee the access to the Leased Property for such purposes. In case that such assessment reflects the need to carry out additional studies and/or Remedial Actions due to the activities of Lessee during the Term and the Renewal Period, Lessee binds itself to make those additional studies and /or Remedial Actions only as necessary for the Leased Property to comply with the Environmental Law.

En la medida en que lo exija la Legislación Ambiental, será responsabilidad del Arrendatario el informar a las autoridades ambientales acerca de la terminación, ya sea anticipada o programada, de este Contrato y la suspensión de sus actividades en la Propiedad Arrendada, dando para ello los avisos de abandono de sitio que sean necesarios (en caso de que se requieran), copias de los cuales, junto con los acuerdos de archivo emitidos por las autoridades ambientales, deberán ser entregados al Arrendador.

To the extent required by Environmental Law, Lessee shall be responsible for notifying the environmental authorities of the termination, whether scheduled or anticipated of this Agreement and the termination of its activities at the Leased Property, by giving the site abandonment notices that may be necessary (if required), copies of which, along with the corresponding resolutions issued by the environmental authorities, shall be delivered to the Lessor.

Además de todo lo anteriormente mencionado, el Arrendatario se obliga a cumplir con las disposiciones referentes a licencias ambientales establecidas en la cláusula 7.2 del presente Contrato y con las disposiciones referentes a indemnización y demás temas ambientales establecidas en la cláusula 18.4 del presente Contrato.

In addition to all of the aforementioned, Lessee agrees to comply with the provisions regarding environmental permits established in clause 7.2 of this Agreement and indemnity and other environmental issues established in clause 18.4 of this Agreement.

Cláusula 23. Disposiciones Generales.

Clause 23. Miscellaneous.

23.1 Unidad de Contrato. Este Contrato y sus anexos incorporan todos los acuerdos de las partes respecto al objeto del presente Contrato. Las partes convienen que los anexos forman parte integral de este Contrato como si se hubieran incluido en el mismo y que este Contrato deberá interpretarse tomando en cuenta el contenido de dichos Anexos.

23.1 Entire Agreement. This Agreement and the exhibits attached hereto contain the entire agreement between the parties regarding the subject matter hereof. The parties hereby agree that the exhibits shall be considered as an integral part of this Agreement as if they were included in it and that this Agreement shall be interpreted taking into account the content of those Exhibits.

23.2 Modificaciones. El presente Contrato únicamente podrá ser modificado mediante instrumento por escrito debidamente firmado por las partes.

23.2 Amendments. This Agreement may be amended only by a written instrument duly executed by all of the parties.

23.3 Efecto Vinculatorio; Beneficio. Todos los términos de este Contrato se firman en beneficio de, y será obligatorios, para las partes del mismo y sus respectivos causahabientes y cesionarios. Nada en este instrumento, expreso o implícito, tiene el propósito de conferir a cualquier Persona, excepto a las partes de este instrumento, al Garante y a sus respectivos causahabientes y cesionarios, derecho, obligación, recurso o responsabilidad alguna.

23.3 Successors and Assignees. All of the terms of this Agreement shall inure to the benefit of and shall be binding upon the parties and their respective permitted successors and assignees. Nothing in this instrument, express or implied, is intended to confer on any person except the parties to this instrument, the Guarantor and their respective successors and assigns, right, obligation, or liability.

23.4 Notificaciones. Las partes señalan como sus respectivos domicilios convencionales para toda clase de avisos y notificaciones, incluyendo sin limitar interpelaciones judiciales y emplazamientos a juicio relacionados o derivados de este Contrato, mismas que solamente surtirán efectos si se efectúan en persona, por correo certificado con acuse de recibido o de manera fehaciente por conducto de un fedatario público o de la autoridad judicial competente, los siguientes:

23.4 Notices. The parties hereby provide as their conventional domicile for any kind of communications and notices, including but not limited to judicial inquiries and emplacements to trial related or under this Agreement, which shall only be binding if delivered in person, by certified mail return receipt requested, or evidenced by a “Fedatario Público” or competent judicial authority, the following:

El Arrendador:

Fabricaciones y Servicios de México SA de CV.

Carretera 57 Km 178

Castaños, Coahuila, 25780 México

Lessor:

Fabricaciones y Servicios de México SA de CV.

Carretera 57 Km 178

Castaños, Coahuila, 25780 México

El Arrendatario:

FCA-FASEMEX, S. DE R.L. DE C.V

Tepic 1100, Colonia California, Coahuila, México, C.P. 25870

Attn:

Lessee:

FCA-FASEMEX, S. DE R.L. DE C.V

Tepic 1100, Colonia California, Coahuila, México, C.P. 25870

Attn:

Con copia a:

c/o FreightCar America, Inc.

125 South Wacker Drive

Suite 1500, Chicago, IL 60606 USA

Attn: Director Jurídico

With a copy to:

c/o FreightCar America, Inc.

125 South Wacker Drive

Suite 1500, Chicago, IL 60606 USA

Attn: General Counsel

Mientras las partes no se notifiquen por escrito un cambio de domicilio, las notificaciones o cualquier otra comunicación regular que se hagan en los domicilios indicados, surtirán plenos efectos legales.

Unless the parties notify in writing to their counterparts any change of domicile, the service of process or any other regular communication perfected in the above-mentioned domiciles, shall have full force and effect.

23.5 Ley Aplicable. Este Contrato estará sujeto y se regirá por la legislación federal mexicana, incluyendo sin limitar el Código Civil Federal.

23.5 Governing Law. This Agreement shall be subject to and governed by the Mexican federal law, including the Federal Civil Code.

23.6 Tribunales Competentes. Para la interpretación, cumplimiento y exigibilidad de este Contrato, las partes del presente Contrato se someten de manera irrevocable a la exclusiva jurisdicción de los tribunales competentes de Monclova, Coahuila y renuncian a cualquier otra jurisdicción que por razón de su domicilio presente o futuro o por cualquier otra causa pudiera corresponderles.

23.6 Applicable Jurisdiction. For matter related to the interpretation and compliance of this Agreement, the parties hereby expressly submit to the jurisdiction of the Civil Courts of Monclova, Coahuila, waiving any other jurisdiction which might be applicable by reason of their present of future domiciles or otherwise.

En cualquier procedimiento legal relacionado con este Contrato, la parte vencedora tendrá derecho de recuperar de la parte vencida los gastos y costos razonables y documentados en que hubiera incurrido con motivo del ejercicio de cualesquiera derechos conforme a este Contrato. Ambas partes reconocen que esta constituye una obligación independiente, válida y exigible y que cualquier resolución que sea dictada en relación con cualquiera dicha controversia o procedimiento deberá incluir provisiones al respecto.

In any legal proceeding related to this Agreement, the prevailing party shall have the right to recover from the defeated party the reasonable and documented costs and expenses incurred because of the exercise of any rights pursuant to this Agreement. Both parties acknowledge that this is an independent, valid and binding obligation and that any resolution issued about any said controversy or proceeding, must include provisions on this regard.

23.7 Ilegalidad de Disposiciones. Si una o más de las disposiciones contenidas en este Contrato o cualquier documento celebrado en relación con el mismo resultan inválidas, ilegales o inaplicables en cualquier aspecto bajo cualquier Ley Aplicable, la validez, legalidad y aplicabilidad de las disposiciones restantes contenidas en el presente de ninguna manera serán afectadas.

23.7 Severability. If any one or more of the provisions contained in this Agreement or any document executed in connection herewith shall be invalid, illegal, or unenforceable in any respect under any Applicable Law, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected.

23.8 Gastos. Los gastos incurridos por las partes en la negociación y elaboración del presente instrumento, así como en la elaboración y negociación de los demás actos jurídicos y materiales contemplados en este Contrato, incluyendo honorarios de asesores legales y cualesquiera otro, correrán exclusivamente por cuenta de la parte que hubiera incurrido dichos gastos y que hubiera contratado a dichos asesores, sin que exista responsabilidad alguna a cargo de las otras partes.

23.8 Expenses. The expenses incurred by the parties in the negotiation and drafting of this instrument as well as in the preparation and negotiation of legal and material acts referred to herein, including legal fees and any other, shall be borne solely by the part that incurred in such expenses and had hired these consultants, without any liability to the other parties.

23.9 Ejemplares. Este Contrato se firma en 2 (dos) ejemplares, cada uno de los cuales se considerará como un original.

23.9 Counterparts. This Agreement is executed in 2 (two) counterparts, each one shall be deemed to be an original.

23.10 Encabezados. Las partes convienen en que los encabezados contenidos en este Contrato se insertan exclusivamente para referencia y no se considerarán como parte del mismo ni se utilizarán para definir, interpretar o limitar el contenido del Contrato.

23.10 Headings. The parties hereby agree that the headings contained herein are provided for convenience only and they shall not be deemed to be part, define, interpret or limit the content of the Agreement.

23.11 Idioma. Este Contrato se celebra en inglés y en español; sin embargo, las partes acuerdan que en caso de duda acerca de la interpretación y sentido de este Contrato, la versión en español prevalecerá.

23.11 Language. This Agreement is executed both in English and Spanish; nevertheless, the parties agree that in the event of any dispute the Spanish version shall prevail and control.

23.12 Lugar de Cumplimiento de Obligaciones. Las partes señalan como lugar de cumplimiento de las obligaciones pactadas en este Contrato, los domicilios convencionales mencionados en la cláusula 23.4; en el entendido que el Arrendatario deberá cumplir sus obligaciones en el domicilio del Arrendador, y el Arrendador deberá cumplir sus obligaciones en el domicilio del Arrendatario, sin necesidad de requerimiento o interpelación judicial.

23.12 Place to Fulfill Obligations. The parties hereby designate as a place of fulfillment of the obligations agreed herein, the conventional addresses mentioned in clause 23.4; in the understanding that Lessee shall fulfill its obligations in the address of Lessor, and Lessor must fulfill its obligations in the address of Lessee, without request or judicial interpellation

23.13 Reglas de Interpretación. (a) Los títulos o encabezados que aparecen frente a cada cláusula, inciso o párrafo de este Contrato aparecen sólo para la conveniencia de las partes y no afectarán de modo alguno la interpretación del mismo o el contenido de cada una de dichas cláusulas e incisos, (b) las palabras definidas en singular incluirán el plural y viceversa, los términos definidos en masculino incluyen el femenino y el neutro según el contexto lo requiera, (c) Cuando algún plazo establecido en este Contrato se especifique en días hábiles, se entenderá por estos, cualquier día que: (i) no sea un sábado o un domingo, o (ii) no sea un día en que los bancos que operan en México o en los Estados Unidos de América estén autorizados para cerrar, o (iii) no sea uno de los días marcados como inhábiles por las leyes aplicables en México o de los Estados Unidos America, (d) cualquier referencia a cláusulas, incisos, numerales o párrafos, se refieren a cláusulas, incisos, numerales o párrafos de este Contrato, a menos que expresamente se especifique lo contrario, (e) cualquier referencia a "a este Contrato", "en este Contrato" o "de este Contrato", o similares, significa una referencia al presente Contrato en su totalidad y no a una porción del mismo, a menos que expresamente así se establezca, (f) cualquier referencia a “satisfactorio para”; significa en fondo y forma satisfactorio para la parte a quien se refiera la expresión, a su exclusiva discreción, en cada caso, actuando de forma razonable, (g) Cuando no se establezca un plazo específico para el cumplimiento de alguna obligación contenida en el presente Contrato, se entenderá que el plazo es de 15 (quince) días hábiles, y (h) los plazos conforme a este Contrato comenzarán a correr al día hábil siguiente del acto, hecho, aviso, comunicación o notificación que haya dado comienzo al plazo de que se trate, y terminará a las 12:00 a.m., del día establecido como el último de dicho plazo de acuerdo a este Contrato.

23.13 Interpretation Rules. (a) The titles or headings of each cause, section or paragraph herein appear only for the convenience of the parties and will not affect in any manner the legal interpretation of this Agreement or the contents of such clauses and sections, (b) words defined in singular shall include the plural form, and vice versa, terms defined in masculine gender, include the feminine gender and neuter gender, as the context so requires, (c) when any term set forth in this Agreement is specified in business days, it shall be understood as any day that: (i) is not a Saturday or a Sunday, or (ii) is not a day in which the banking institutions that operate in Mexico or the United States of America are authorized to close, or (iii) not a day classified as non-business day by the applicable Mexican or U.S. Laws, (d) any reference to clauses, sections, numbers or paragraphs, refers to clauses, sections, numbers or paragraphs of this Agreement, unless otherwise specifically stated, (e) Any reference to "this Agreement", "in this Agreement", or "from this Agreement", or similar, means a reference to this Agreement as a whole and not to a portion of the same, unless otherwise expressly stated, (f) any reference to “satisfactory to” means in form and substance satisfactory to the party subject matter of the reference, at its exclusive discretion, but in any case, acting reasonably, (g) whenever there is not a mention of a specific term for fulfilling any obligation hereunder, it shall be understood that the term is of 15 (fifteen) business days, and (h) the terms pursuant to this Agreement shall commence on the business day following to the action, fact, notice or communication that started said term and will finish at 12:00 a.m. of the last day of the term pursuant to this Agreement

El presente Contrato se firma a los 16 días del mes de octubre de 2020.

The parties sign and execute this Agreement on October 16, 2020.

EL ARRENDADOR/LESSOR /s/ Alejandro Gil Benavides FABRICACIÓN Y SERVICIOS DE MÉXICO, S.A. DE C.V. Representado por / Represented by: Alejandro Gil Benavides	EL ARRENDATARIO/LESEE /s/ James R. Meyer FCA-FASEMEX, S. DE R.L. DE C.V. Representado por / Represented by: James R. Meyer



	With the appearance, acknowledgement and agreement of Messrs. Jesús Salvador Gil Benavides, Alejandro Gil Benavides and Salvador Gil Benavides.
	Por/By: /s/ Jesús Salvador Gil Benavides Nombre/Name: Jesús Salvador Gil Benavides
	Por/By: /s/ Alejandro Gil Benavides Nombre/Name: Alejandro Gil Benavides
	Por/By: /s/ Salvador Gil Benavides Nombre/Name: Salvador Gil Benavides

Exhibit 10.4

Execution Copy

ROYALTY AGREEMENT

THIS ROYALTY AGREEMENT (the “Agreement”) is made as of October 16, 2020 (the “Effective Date”) by and among FreightCar America, Inc., a Delaware corporation with offices at 125 S. Wacker Drive, Suite 1500, Chicago, Illinois 60606 (“FCA”), Fabricaciones y Servicios de México, S.A. de C.V., an entity formed under the laws of Mexico, with offices at Carretera 57 Km 178, Castaños Coahuila, 25780, Mexico (“Fasemex MX”), Agben de Mexico, S.A. de C.V., an entity organized under the laws of Mexico, with offices at Carretera 57 Km 178, Castaños Coahuila, 25780, Mexico (“Agben”), Industrial Mexicana Fasemex, S.A. de C.V., an entity formed under the laws of Mexico, with offices at Carretera 57 Km 178, Castaños Coahuila, 25780, Mexico (“IM Fasemex”), Proveedora Industrial para el Manejo de Materiales, S.A. de C.V., an entity formed under the laws of Mexico, with offices at Carretera 57 Km 178, Castaños Coahuila, 25780, Mexico (“Proveedora”), and Fasemex, Inc., a Texas corporation with offices at Carretera 57 Km 178, Castaños Coahuila, 25780, Mexico (“Fasemex US”). Fasemex MX, Agben, and Fasemex US are collectively referred to herein as the “Strategic Partners,” and FCA and the Strategic Partners are collectively referred to herein as the “Parties.”

RECITALS

A. The Strategic Partners have entered into that certain Equity Purchase Agreement dated as of October 16, 2020 with FreightCar North America, LLC (f/k/a FCAI Holdings, LLC), a Delaware limited liability company (“FCNA”), a wholly-owned subsidiary of FCA (the “EPA”).

B. Pursuant to the EPA, FCNA, will purchase all of the Strategic Partners’ interests in the JV Companies (as such term is defined in the EPA), such that the JV Companies will be indirect wholly owned subsidiaries of FCA following such purchase.

C. As part of consideration for the transactions contemplated under the EPA, FCA shall pay certain royalties, directly or indirectly, to the Strategic Partners, as contemplated herein.

AGREEMENT

Now, therefore, in consideration of the mutual promises and covenants herein contained, the Parties hereto agrees as follows:

ROYALTY.

(a) During each applicable Production Line Period (as defined below), FCA will pay to IM Fasemex, Agben and Proveedora (the “Royalty Payees”) (i) 1.2% of FCA’s Railcar Sales Net Revenue (as defined below) and (ii) 1.5% of FCA’s Tank Car Sales Net Revenue (as defined below; the payment specified in this clause (ii) and clause (i) of this sentence, collectively, the “Royalty”) on and subject to the terms and conditions of this Agreement. The Royalty shall be paid to the account specified on Exhibit I attached hereto (the “Account”) for further remittance to the Royalty Payees in the proportions also specified on Exhibit I. FCA’s obligations with respect to any such payment shall be complete when paid to the Account.

(b) During each applicable Production Line Period (as defined below), a Royalty obligation shall accrue, with respect to each Railcar or Tank Car (as such terms are defined below), upon the sale of (i) such new railcar or converted, modified, refurbished or repaired railcar, other than tank cars, to third parties or to FCA for its own leasing fleet (the “Railcars”), or (ii) such new tank car or converted, modified, refurbished or repaired tank car, to third parties or to FCA for its own leasing fleet (the “Tank Cars”) (the Railcars and the Tank Cars, collectively, the “Products”). A Product shall be considered “sold” when such Product is shipped and FCA is paid in full for such Product when sold to third parties or when shipped to FCA when it will use them for its own leasing fleet and “repaired” shall mean programmed repair work, excluding under warranty repair works and normal course field repairs.

Execution Copy

(c) With respect to (i) the first and second production lines that have been constructed to produce railcars or tank cars at the Castaños facility in Castaños, Mexico (the “Castaños Facility”), a Royalty shall only accrue for a period of seventeen (17) years, commencing retroactively on September 1^st, 2020; (ii) the third and fourth production lines, if and when constructed by FCA to produce railcars or tank cars at the Castaños Facility, a Royalty shall only accrue for a period of seventeen (17) years, commencing on the first day of the month during which production commences on the third or fourth lines, whichever is earlier; and (iii) any other production lines constructed by FCA at the Castaños Facility or elsewhere within Mexico, a Royalty shall only accrue for a period of years, commencing on the first day of the month during which production commences on such additional line(s) and ending on the same date that the Royalty obligation for the first and second production lines ended ((i), (ii) and (iii) together, the “Production Line Periods”). It is the understanding of the parties that the third and fourth production lines, if and when constructed by FCA, shall be built at the Castaños Facility if all reasonable conditions necessary to construct and operate these lines are met with the reasonable cooperation of the Parties.

(d) The Royalty shall be calculated in accordance with Sections 1(a) and 1(b) on a calendar quarter basis (the “Royalty Period”) by FCA and shall be payable by FCA no later than thirty (30) calendar days after the end of the preceding full quarterly period. For purposes of clarity, the Royalty calculated for any given Royalty Period will include any deemed sales (pursuant to Section 1(b)), during such Royalty Period.

(e) For each Royalty Period, within fifteen (15) business days of the end of such period, FCA shall provide the Royalty Payees with a written royalty statement. Such royalty statement shall be certified as accurate by a duly authorized officer of FCA reciting (i) the number and types of Railcars or Tank Cars sold (or deemed sold pursuant to Section 1(b)) during the applicable Royalty Period, (ii) the applicable end customers gross invoice, and (iii) the costs of freight, insurance and/or custom duties and fees excluded from Railcar Sales Net Revenue or Tank Car Sales Net Revenue for each shipment.

(f) “Railcar Sales Net Revenue” shall mean the gross selling price or other consideration received by FCA from the sale of newly manufactured or converted, modified, refurbished or repaired railcars, other than tank cars, sold to third parties or to FCA for its own leasing fleet. Railcar Sales Net Revenue shall not include out-of-pocket costs of freight, insurance and/or custom duties and fees.

(g) “Tank Car Sales Net Revenue” shall mean the gross selling price or other consideration received by FCA from the sale of newly manufactured or converted, modified, refurbished or repaired tank cars sold to third parties or to FCA for its own leasing fleet. Tank Car Sales Net Revenue shall not include out-of-pocket costs of freight, insurance and/or custom duties and fees.

Execution Copy

(h) All payments due to the Royalty Payees shall be made in United States currency by wire transfer to the Account, unless otherwise specified by them to FCA.

TERM

(a) The term of this Agreement (the “Term”) shall commence on the Effective Date and end upon the termination of the last applicable Production Line Period, unless terminated earlier pursuant to this Agreement.

(b) FCA shall have the right to immediately terminate this Agreement upon written notice to the Strategic Partners and the Royalty Payees in the event that:

i. any of the Strategic Partners or the Royalty Payees commits a material breach of any of its obligations under this Agreement, and such breach is not cured within ninety (90) days after written notice to such Party of such breach; or

ii. Fasemex MX commits a material breach of any of its obligations under that certain Lease Agreement, dated as of even date herewith, by and between Fasemex MX as Lessor and FCA-Fasemex, S. de R.L. de C.V. as Lessee, and such breach is not cured within ninety (90) days after written notice to Fasemex MX of such breach; provided, however, that this Agreement shall not terminate in the event that such Lease Agreement is terminated by mutual agreement of the parties thereto, for any reason whatsoever, prior to its expiration date.

REPRESENTATIONS AND WARRANTIES

(a) FCA represents and warrants that (i) it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, (ii) has full power and authority to enter into this Agreement and perform its obligations hereunder, and (iii) understands that entering into this Agreement is a condition precedent and one of the fundamental motives for the Strategic Partners to enter into the Associated Agreements.

(b) Each Strategic Partner and Royalty Payee represents and warrants that such Strategic Partner and Royalty Payee: (i) is an entity duly incorporated or organized, as applicable, validly existing, and in good standing under the laws of the State of Texas or under the laws of Mexico, as applicable, and (ii) has full power and authority to enter into this Agreement and perform its obligations hereunder.

RECORD INSPECTION AND AUDIT

(a) The Royalty Payees shall have the right, upon reasonable notice, to inspect FCA’s books, records, accounts, and all other documents and material in FCA’s possession or control with respect to the subject matter of this Agreement, subject to appropriate confidentiality restrictions, including all information leading to, derived from or related to the Royalties, the Railcar Sales Net Revenue and the Tank Cars Sales Net Revenue. FCA shall maintain proper books, records and accounts with entries that are full, true and correct in all material respects and in conformity with GAAP consistently applied regarding the Royalties, the Railcar Sales Net Revenue and the Tank Cars Sales Net Revenue. FCA will permit any representatives or advisors of the Royalty Payees, upon reasonable prior notice, to inspect, examine and make extracts from its books, records, accounts, and all other documents and material in FCA’s possession or control with respect to the subject matter of this Agreement, and to discuss its calculations, entries and records with its officers and independent accountants, all at such reasonable times and as often as reasonably requested, in each case at the Royalty Payees’ expense; provided that, the Royalty Payees shall not exercise such rights more often than two (2) times during any calendar year absent the existence of an event of default by FCA, in which case the inspection and works related thereto can take place at any reasonable time and shall be at FCA’s expense.

Execution Copy

(b) All books and records relative to FCA’s obligations hereunder shall be maintained and made accessible to the Royalty Payees for inspection at a location in the United States for at least two (2) years after termination or expiration of this Agreement.

CONFIDENTIALITY

(a) All disclosures of trade secrets, know-how, financial information, or other information of a type that is known to be, or that a reasonable person would recognize it to be, confidential made by FCA or any of its affiliates (as applicable, the “Discloser”) under or in connection with this Agreement, as well as the terms of this Agreement (collectively, the “Confidential Information”), shall be received and maintained in confidence by the recipient (the “Recipient”) and each Recipient shall treat all such Confidential Information as the confidential property of the Discloser and keep it confidential and secure and protect it from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid unauthorized use or disclosure of its own Confidential Information of similar nature, but in no event less than reasonable care. Notwithstanding the foregoing, a Recipient shall be permitted to disclose any Confidential Information if required by applicable law, provided the Recipient provides the Discloser reasonable prior opportunity to comment upon such disclosure to the extent permitted by law and agree to cooperate to take reasonable steps to minimize the extent of any such required disclosure.

(b) The term “Confidential Information” does not include information that (i) was in the public domain prior to the time it was furnished to Recipient or is at the time of the alleged breach (through no willful or improper action or inaction by such Recipient) generally available to the public, (ii) was or becomes available to a Recipient on a non-confidential basis from a source other than FCA or its affiliates, provided such other source is not be known by the Recipient to be bound by a confidentiality obligation, (iii) is lawfully known to a Recipient prior to disclosure of the Confidential Information by FCA or its affiliates, or (iv) is independently developed by a Recipient without any use of any Confidential Information.

(c) Each Recipient’s obligations with respect to the Confidential Information shall continue for a term of three (3) years following the termination of this Agreement.

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COMPLIANCE WITH LAWS

Notwithstanding anything to the contrary, the obligations of the Parties hereto shall be subject to all laws, present and future (including export control laws and regulations) of any government having jurisdiction over the Parties hereto, and to orders, regulations, directions, or requests of any such government. Each Party shall undertake to comply with and be solely responsible for complying with such laws applicable to such Party.

TAXES

Each Party shall otherwise remain responsible for all taxes applicable to such Party and its operations in connection with this Agreement.

NOTICE AND PAYMENT

Any notice or communication required or permitted to be given be any provisions of this Agreement, including any consents, shall be in writing and shall be deemed to have been given and received by the person to whom directed, if properly addressed: (1) when delivered personally to such person or to an officer of the person to which directed, (2) upon confirmation of receipt of transmission by email, or (3) two days after being deposited with an internationally recognized overnight courier, delivery charges prepaid for delivery the following day. The addresses for notice are as follows:

	If to Licensor:	FreightCar America, Inc. 125 S. Wacker Drive, Suite 1500 Chicago, IL 60606 Attn: Christopher Eppel Email: CEppel@freightcar.net
	with a copy to (which shall not constitute notice):	Kelley Drye & Warren LLP 333 W. Wacker Dr., 26^th Floor Chicago, IL 60606 Attn: Andrew Pillsbury APillsbury@kelleydrye.com
	If to Strategic Partners and Royalty Payees:	Fabricaciones y Servicios de Mexico SA de CV. Carretera 57 Km 178 Castaños Coahuila, 25780 Mexico Email: jgil@fasemex.com.mx
	with a copy to (which shall not constitute notice):	Romero, Ramos, Quintanilla y Bortoni S.C. Lazaro Cardenas 435 Despacho 410 Colonia Loma Larga, 66266 San Pedro Garza Garcia, Nuevo Leon, Mexico. Attn: Francisco Romero Email: fromero@rrqb.mx

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Any Party may change its address, email or individual for receiving notice for the purpose of this Section by notice to the other given in the manner set forth above.

GOVERNING LAW

This Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the internal laws of the State of Illinois applicable to contracts made in that state, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Illinois.

10.

CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.

(a) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL PROCEEDINGS (IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS LOCATED IN THE CITY OF CHICAGO, COUNTY OF COOK, AND ANY APPELLATE COURT THEREFROM OR THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS AND ANY APPELLATE COURT THEREFROM (COLLECTIVELY, THE “Illinois Courts”). EACH PARTY HERE-BY IRREVOCABLY AND UNCONDITIONALLY CONSENTS AND SUBMITS, FOR IT-SELF AND ITS ASSETS, TO THE EXCLUSIVE JURISDICTION OF ANY OF THE ILLINOIS COURTS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 8. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

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(e) EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LAWSUIT, ACTION OR PROCEEDING SEEKING ENFORCEMENT OF SUCH PARTY’S RIGHTS UNDER THIS AGREEMENT.

11.

SURVIVAL

If this Agreement terminates or expires, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive, including Sections 1, 4, 5, and 7 through 21.

12.

FURTHER ASSURANCES

In connection with this Agreement and the transactions contemplated hereby, each Party shall execute and deliver such further documents, and perform such further acts, as may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated hereunder, as reasonably requested by another Party.

13.

ENTIRE AGREEMENT

This Agreement, together with the EPA, contain all agreements among the Parties relating to its subject matter and supersedes and cancels any and all previous contracts or agreements among the Parties with respect thereto. Any other understanding about this Agreement, including additional terms or provisions contained in invoices, shipping papers, or other documents, will be of no force or effect. Any amendment to this Agreement must be in writing and will not be effective until it is executed and approved by an authorized representative of each Party.

14.

SEVERABILITY

If any provision of this Agreement is determined by any legislature, court, or administrative agency to be invalid or unenforceable, every other provision will remain in full force and effect, unless the purposes of this Agreement cannot be achieved. The Parties will use commercially reasonable efforts to substitute a valid, legal, and enforceable provision, which insofar as practical implements the purposes of any provision held invalid, illegal, or unenforceable.

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15.

WAIVERS

No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16.

ASSIGNMENT

This Agreement is deemed to be of a personal nature and neither party may assign, convey, or transfer this Agreement or any right or interest in this Agreement, or delegate or subcontract performance of any obligations hereunder, in whole or in part, to any third party, without the prior written consent of FCA. Any attempt to do so shall be void ab initio.

17.

NO THIRD-PARTY BENEFICIARIES

This Agreement is solely for the benefit of the Parties and their respective permitted successors and assigns. There are no other third-party beneficiaries to this Agreement.

18.

RELATIONSHIP OF THE PARTIES

The relationship between and among the Parties is solely that of independent contractors. Nothing in this Agreement creates a partnership, joint venture, or principal-agent relationship. The Strategic Partners and the Royalty Payees shall not have any authority to create or assume in FCA’s name or on its behalf any obligation, expressed or implied, or to act or purport to act as FCA’s agent or legally empowered representative for any purpose whatsoever. No Party shall be liable to any third party in any way for any engagement, obligation, commitment, contract, representation, transaction, or act or omission to act of another other Party, except as expressly provided herein.

19.

TERMINOLOGY AND CONSTRUCTION

All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; and the singular shall include the plural and vice versa. Titles of Articles, Sections, Exhibits, and Schedules are for convenience only, and neither limit nor amplify the provisions of this Agreement. Except as specifically provided, references to Articles, Sections, Exhibits, and Schedules in this Agreement refer to Articles, Sections, Exhibits, and Schedules to, this Agreement. The use herein of the word “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation,” or “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. The word “or” shall mean “and/or” unless the context requires otherwise. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between them and that this Agreement shall be construed in favor of or against either Party by reason of the extent to which such Party of its professional advisors participated in the preparation of such agreements.

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20.

LIMITATIONS OF LIABILITY

Neither Party to this Agreement shall be entitled to recover from the other any special, incidental, consequential or punitive damages.

21.

COUNTERPARTS

This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which together shall constitute a single instrument.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

	FCA:
	FREIGHTCAR AMERICA, INC. By: /s/ James R. Meyer Name: James R. Meyer Title: President and Chief Executive Officer

	STRATEGIC PARTNERS AND ROYALTY PAYEES:
	FABRICACIONES Y SERVICIOS DE MÉXICO, S.A. DE C.V. By: /s/ Alejandro Gil Name: Alejandro Gil Title: Legal representative
	AGBEN DE MEXICO, S.A. DE C.V. By: /s/ Jesus S. Gil Name: Jesus S. Gil Title: Owner
	INDUSTRIAL MEXICANA FASEMEX, S.A. DE C.V. By: /s/ Alejandro Gil Name: Alejandro Gil Title: Legal Representative PROVEEDORA INDUSTRIAL PARA EL MANEJO DE MATERIALES, S.A. DE C.V. By: /s/ Salvador Gil Benavides Name: Salvador Gil Benavides Title: Legal Representative

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FASEMEX, INC.

By: /s/ Jesus S. Gil

Name: Jesus S. Gil

Title: President

Exhibit 10.5

Execution Version

Certain identified information in this document has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed, and has been marked with “[***]” to indicate where omissions have been made.

U.S. $40,000,000

CREDIT AGREEMENT,

dated as of October 13, 2020,

among

FREIGHTCAR AMERICA, INC.,
as Holdings,

FREIGHTCAR NORTH AMERICA, LLC,
as Borrower,

THE LENDERS PARTY HERETO FROM TIME TO TIME

and

U.S. BANK NATIONAL ASSOCIATION,
as Disbursing Agent and Collateral Agent

TABLE OF CONTENTS

Page

Article I DEFINITIONS	1
Section 1.01 Defined Terms	1
Section 1.02 Other Interpretive Provisions	39
Section 1.03 Accounting Terms	40
Section 1.04 Rounding	41
Section 1.05 Times of Day	41
Section 1.06 Currency Equivalents Generally	41
Section 1.07 Rates	41
Section 1.08 Cashless Rolls	42
Section 1.09 Divisions	42
Article II LOANS	42
Section 2.01 Commitments	42
Section 2.02 Procedure for Borrowing	43
Section 2.03 Repayment of Loans	43
Section 2.04 Lenders’ Evidence of Debt; Register; Notes	43
Section 2.05 Fees	44
Section 2.06 Voluntary Prepayments; Call Protection	44
Section 2.07 Mandatory Prepayments	46
Section 2.08 Application of Prepayments	47
Section 2.09 Conversion and Continuation Options	47
Section 2.10 Minimum Amounts and Maximum Number of Eurodollar Tranches	47
Section 2.11 Interest Rates and Payment Dates	48
Section 2.12 Illegality	49
Section 2.13 Inability to Determine Interest Rate; Effect of Benchmark Transition Event	49
Section 2.14 Payments Generally	52
Section 2.15 Increased Costs; Capital Adequacy	53
Section 2.16 Taxes	54
Section 2.17 Breakage Payments	58
Section 2.18 Pro Rata Treatment	58
Section 2.19 Mitigation Obligations; Replacement of Lenders	58
Article III REPRESENTATIONS AND WARRANTIES	60
Section 3.01 Existence, Qualification and Power	60
Section 3.02 Authorization; Enforceability	60
Section 3.03 No Conflicts	60
Section 3.04 Financial Statements; Projections; No Material Adverse Effect	61
Section 3.05 Intellectual Property	62

Section 3.06 Properties	63
Section 3.07 Equity Interests and Subsidiaries	64
Section 3.08 Compliance with Laws and Contracts	64
Section 3.09 Litigation	65
Section 3.10 Investment Company Act	65
Section 3.11 Federal Reserve Regulations	65
Section 3.12 Taxes	65
Section 3.13 No Material Misstatements	66
Section 3.14 Labor Matters	66
Section 3.15 ERISA	66
Section 3.16 Environmental Matters	67
Section 3.17 Insurance	68
Section 3.18 Security Documents	68
Section 3.19 Solvency	68
Section 3.20 Anti-Money Laundering and Anti-Corruption	68
Section 3.21 International Trade Laws	69
Section 3.22 Use of Proceeds	69
Section 3.23 Brokers	70
Article IV CONDITIONS PRECEDENT	70
Section 4.01 Conditions to Effectiveness	70
Section 4.02 Conditions to Loans	71
Article V AFFIRMATIVE COVENANTS	75
Section 5.01 Financial Statements	75
Section 5.02 Certificates; Other Information	76
Section 5.03 Notices	78
Section 5.04 Payment of Obligations	80
Section 5.05 Preservation of Existence, Etc	80
Section 5.06 Maintenance of Property	80
Section 5.07 Maintenance of Insurance	80
Section 5.08 Books and Records; Inspection Rights	81
Section 5.09 Compliance with Laws	81
Section 5.10 Compliance with Environmental Laws; Preparation of Environmental Reports	81
Section 5.11 Use of Proceeds	82
Section 5.12 Covenant to Guarantee Obligations and Give Security	82
Section 5.13 Further Assurances	84
Section 5.14 Post-Closing Undertakings	84
Article VI NEGATIVE COVENANTS	84
Section 6.01 Limitation on Indebtedness	84
Section 6.02 Limitation on Liens	87
Section 6.03 Limitation on Fundamental Changes	89

Section 6.04 Limitation on Dispositions	90
Section 6.05 Limitation on Restricted Payments	92
Section 6.06 Limitation on Investments	93
Section 6.07 Limitation on Prepayments; Modifications of Debt Instruments, Certain Material Agreements and Organizational Documents	96
Section 6.08 Limitation on Transactions with Affiliates	96
Section 6.09 Limitation on Sale and Leasebacks	97
Section 6.10 Limitation on Changes in Fiscal Periods	98
Section 6.11 Limitation on Burdensome Agreements	98
Section 6.12 Limitation on Lines of Business	99
Section 6.13 Limitation on Activities of Holdings	99
Section 6.14 Minimum Liquidity Covenant	100
Section 6.15 Limitation on Capital Expenditures	100
Article VII EVENTS OF DEFAULT AND REMEDIES	101
Section 7.01 Events of Default	101
Section 7.02 Remedies Upon Event of Default	103
Section 7.03 Application of Funds	104
Article VIII THE DISBURSING AGENT AND THE COLLATERAL AGENT	104
Section 8.01 Appointment and Authority	104
Section 8.02 Rights as a Lender	105
Section 8.03 Exculpatory Provisions	106
Section 8.04 Reliance by Disbursing Agent	109
Section 8.05 Delegation of Duties	110
Section 8.06 Resignation of the Disbursing Agent or the Collateral Agent	110
Section 8.07 Non-Reliance on Disbursing Agent and Other Lenders	111
Section 8.08 No Other Duties, Etc.	112
Section 8.09 Disbursing Agent May File Proofs of Claim	112
Section 8.10 Collateral and Guaranty Matters	112
Section 8.11 Withholding Tax	115
Section 8.12 No Reliance on Agents’ Customer Identification Program	115
Article IX MISCELLANEOUS	116
Section 9.01 Amendments and Waivers	116
Section 9.02 Notices	117
Section 9.03 No Waiver by Course of Conduct; Cumulative Remedies	120
Section 9.04 Survival of Representations, Warranties, Covenants and Agreements	121
Section 9.05 Payment of Expenses; Indemnity	121
Section 9.06 Successors and Assigns; Participations and Assignments	123
Section 9.07 Sharing of Payments by Lenders; Set-off	126
Section 9.08 Counterparts; Electronic Signatures	127
Section 9.09 Severability	128

iii

Section 9.10 Section Headings	128
Section 9.11 Integration	129
Section 9.12 Governing Law	129
Section 9.13 Submission to Jurisdiction; Waivers	129
Section 9.14 Acknowledgments	130
Section 9.15 Confidentiality	130
Section 9.16 Waiver of Jury Trial	131
Section 9.17 PATRIOT Act Notice	132
Section 9.18 Usury Savings Clause	132
Section 9.19 Payments Set Aside	132
Section 9.20 No Advisory or Fiduciary Responsibility	133
Section 9.21 Judgment Currency	133
Section 9.22 No Publicity	134
Section 9.23 Intercreditor Agreement	134

ANNEXES:

Annex A

Commitments

SCHEDULES:

Schedule 1.01(a)		Closing Date Scheduled Material Agreements
Schedule 3.05		Closing Date Intellectual Property Licenses
Schedule 3.06		Closing Date Owned and Leased Real Property
Schedule 3.07		Closing Date Equity Interests
Schedule 3.15		Closing Date ERISA Matters
Schedule 3.16		Closing Date Environmental Matters
Schedule 3.17		Closing Date Insurance
Schedule 3.18		UCC Filing Jurisdictions
Schedule 4.02(a)		Closing Date Security Documents
Schedule 5.14		Post-Closing Undertakings
Schedule 6.01		Closing Date Existing Indebtedness
Schedule 6.02		Closing Date Existing Liens
Schedule 6.06		Closing Date Existing Investments
Schedule 6.08		Closing Date Existing Affiliate Transactions
Schedule 6.11		Closing Date Existing Restrictive Agreements
Schedule 6.13		Closing Date Existing Activities of Holdings

EXHIBITS:

Exhibit A		Form of Compliance Certificate
Exhibit B		Reserved
Exhibit C		Form of Assignment and Assumption
Exhibit D		Form of Note
Exhibit E-1		Form of U.S. Tax Compliance Certificate
Exhibit E-2		Form of U.S. Tax Compliance Certificate
Exhibit E-3		Form of U.S. Tax Compliance Certificate
Exhibit E-4		Form of U.S. Tax Compliance Certificate
Exhibit F		Form of Borrowing Notice
Exhibit G		Form of Solvency Certificate
Exhibit H		Form of Subordinated Intercompany Note

CREDIT AGREEMENT, dated as of October 13, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among FreightCar America, Inc., a Delaware corporation (“Holdings”), FreightCar North America, LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to time parties hereto (the “Lenders”) and U.S. Bank National Association, as disbursing agent for the Lenders (together with its permitted successors and assigns in such capacity, the “Disbursing Agent”) and as collateral agent for the Secured Parties (together with its successors and permitted assigns in such capacity, the “Collateral Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower has requested that the Lenders extend credit in the form of Loans on the Closing Date in an aggregate principal amount equal to $40,000,000. The proceeds of the Loans may be used on the Closing Date solely to fund, in part, the Transactions, the Transaction Expenses, to purchase machinery and equipment, to provide for ongoing working capital requirements of the Borrower and its Subsidiaries and for other general corporate purposes, including distributions, of the Borrower and its Subsidiaries;

WHEREAS, the Borrower and each other Loan Party desire to secure all of the Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a security interest in and Lien upon substantially all of the property and assets of the Borrower and the other Loan Parties, subject to the limitations described herein and in the Security Documents; and

WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:

Article I
DEFINITIONS

Section 1.01 Defined Terms. As used in this Agreement, the terms listed in this Section 1.01 shall have the respective meanings set forth in this Section 1.01.

“AAR” shall mean The Association of American Railroads (or any successor).

“Accounting Change” shall mean any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.

“Administrative Questionnaire” shall mean an administrative questionnaire in a form supplied by the Disbursing Agent.

“Affiliate” shall mean, with respect to a specified 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; provided, however, that, the term “Affiliate” shall also include any Person that directly or indirectly owns 10% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified. For the avoidance of doubt, no Lender, solely in its capacity as a holder of Warrants, shall constitute an Affiliate of the Borrower.

“Agents” shall mean the collective reference to the Disbursing Agent and the Collateral Agent.

“Agreement” shall have the meaning set forth in the preamble hereto.

“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to Holdings, the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, the Mexican Ley General del Sistema Nacional Anticorrupción, the Mexican Ley General de Responsabilidades Administrativas, and the Mexican Federal Criminal Code and other similar legislation in any other jurisdictions.

“Anti-Money Laundering Laws” shall mean all applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any Governmental Authority having jurisdiction over the Borrower or any other Loan Party. For the avoidance of doubt, the term “Anti-Money Laundering Laws” shall include, but shall not be limited to, all laws, rules and regulations of the United States, the United Nations Security Council, the European Union or its Member States, the United Kingdom and Her Majesty’s Treasury, and Germany, relating to bribery, corruption, money laundering or terrorist financing, including, without limitation, the Bank Secrecy Act, 31 U.S.C. section 5311 et seq.; Title III of the USA Patriot Act; 18 U.S.C. section 1956; 18 U.S.C. section 1957; the Financial Recordkeeping and Reporting of Currency and Foreign Transactions Regulations, 31 C.F.R. Part 103; the United Kingdom Proceeds of Crime Act 2002; and the United Kingdom Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and the Mexican Ley Federal para la Prevención e Identificación de Operaciones con Recursos de Procedencia Ilícita and its applicable regulations.

“Applicable Margin” shall mean a percentage per annum equal to (i) for Eurodollar Loans, 12.5% and (ii) for Base Rate Loans, 11.5%.

“Applicable Prepayment Premium” shall mean, as of any date of determination, an amount equal to (a) during the period of time from and after the third anniversary of the Closing Date through the fourth anniversary of the Closing Date, 4.0% of the principal amount prepaid or accelerated (including, without limitation, automatic acceleration upon an Event of Default under Section 7.01(f) or Section 7.01(g) or operation of law upon the occurrence of a bankruptcy or insolvency event) and (b) during the period of time from and after the fourth anniversary of the Closing Date, 3.0% of the principal amount prepaid or accelerated (including, without limitation, automatic acceleration upon an Event of Default under Section 7.01(f) or Section 7.01(g) or operation of law upon the occurrence of a bankruptcy or insolvency event).

“Approved Electronic Communications” shall mean, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to any Agent or Lender by means of electronic communications pursuant to Section 9.02(b) or Section 9.02(d), including through the Platform.

“Approved Fund” shall mean any Person that is engaged in making, purchasing, holding or investing in loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Sale” shall mean any Disposition of Property or series of related Dispositions of Property (excluding any Disposition pursuant to Section 6.04(a), Section 6.04(b), Section 6.04(c), Section 6.04(d), Section 6.04(e), Section 6.04(g), Section 6.04(i), Section 6.04(j), Section 6.04(k), Section 6.04(l), Section 6.04(m), Section 6.04(n), Section 6.04(o) or Section 6.04(p)) which yields gross proceeds (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $500,000 with respect to any Disposition or series of related Dispositions and $1,000,000 in the aggregate during any fiscal year of Holdings.

“Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.06), and acknowledged by the Disbursing Agent, in substantially the form of Exhibit C or any other form approved by the Disbursing Agent.

“Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback, as at the time of determination, the present value (discounted at a rate equivalent to the Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided that, if such Sale and Leaseback results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capital Lease Obligation.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.13(b)(iv).

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

“Base Rate” shall mean, for any day, a per annum rate of interest equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50%, (c) the Eurodollar Rate (after giving effect to any Eurodollar Rate “floor”) that would be payable on such day for a Eurodollar Loan with a one-month interest period plus 1.00% and (d) 2.50%; provided that, if the Base Rate determined based on the foregoing is less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate, respectively.

“Base Rate Loan” shall mean a Loan bearing interest at a rate determined by reference to the Base Rate.

“Benchmark” shall mean, initially, LIBOR; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.13(b)(i).

“Benchmark Replacement” shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Required Lenders for the applicable Benchmark Replacement Date:

(a) the sum of: (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

(b) the sum of: (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment;

(c) the sum of: (i) the alternate benchmark rate that has been selected by the Required Lenders (in consultation with the Disbursing Agent and the Borrower) as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment;

provided that, in the case of clause (a), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Required Lenders in their reasonable discretion and notified to the Disbursing Agent; provided further, that in each case, such Benchmark Replacement shall be administratively feasible for the Disbursing Agent. If the Benchmark Replacement as determined pursuant to clause (a), (b) or (c) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(a) for purposes of clauses (a) and (b) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Required Lenders and is administratively feasible for the Disbursing Agent:

(i) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

(ii) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

(b) for purposes of clause (c) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Required Lenders (in consultation with the Borrower) for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities;

provided that, in the case of clause (a) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Required Lenders in their reasonable discretion and notified to the Disbursing Agent; provided further, that any such screen or other information service shall be administratively feasible for the Disbursing Agent.

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

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:

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

(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or

(c) in the case of an Early Opt-in Election, the first Business Day after the Rate Election Notice is provided to each of the other parties hereto.

For the avoidance of doubt, (x) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (y) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:

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

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

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors o such Benchmark (or such component thereof) are no longer representative.

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

“Benchmark Unavailability Period” shall mean the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13(b) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document pursuant to Section 2.13(b).

“Beneficial Ownership Certification” shall mean a certificate regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.

“Board of Governors” shall mean the Board of Governors of the Federal Reserve System of the United States of America, or any successor thereto.

“Borrower” shall have the meaning set forth in the preamble hereto.

“Borrowing Notice” shall mean, with respect to any request for borrowing of Loans hereunder, a notice from the Borrower, substantially in the form of, and containing the information prescribed by, Exhibit F, delivered to the Disbursing Agent.

“Business Day” shall mean (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Loans, any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“Capital Expenditure Carryover Amount” shall have the meaning set forth in Section 6.15.

“Capital Expenditures” shall mean, for any period, without duplication, with respect to any Person, (a) any expenditure or commitment to expend money for any purchase or other acquisition of any asset, including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of such Person prepared in accordance with GAAP and (b) Capital Lease Obligations; provided that, in any event, “Capital Expenditures” shall exclude (a) any such expenditure made in accordance with the terms of this Agreement (i) to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation, or (ii) with the proceeds of the Disposition of any assets, equity proceeds, or insurance proceeds, (b) any such expenditure to the extent resulting from the trade-in of equipment or other assets, and (c) any Investment permitted hereunder.

“Capital Lease” shall mean, with respect to any Person, any lease of, or other arrangement conveying the right to use, any property by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such person prepared in accordance with GAAP. For the avoidance of doubt, no operating lease (as determined in accordance with GAAP) shall be considered a Capital Lease.

“Capital Lease Obligations” shall mean, with respect to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease, any lease entered into as part of any Sale and Leaseback or any Synthetic Lease, or a combination thereof, which obligations are (or would be, if such Synthetic Lease or other lease were accounted for as a Capital Lease) required to be classified and accounted for as Capital Leases on a balance sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof (or the amount that would be capitalized, if such Synthetic Lease or other lease were accounted for as a Capital Lease) determined in accordance with GAAP.

“CARES Act” shall mean, the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act and applicable rules and regulations, as amended from time to time.

“Cash Equivalents” shall mean, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the government of the United States of America or (ii) issued by any agency of the United States of America and the obligations of which are backed by the full faith and credit of the United States of America, in each case maturing within one year from the date of acquisition; (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after the date of acquisition and having a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) certificates of deposit, time deposits, Eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), (ii) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000 and (iii) has a rating of at least AA- from S&P and Aa3 from Moody’s; (d) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (c) of this definition; and (g) shares of money market, mutual or similar funds which (i) invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; (ii) has net assets of not less than $500,000,000 and (iii) has the highest rating obtainable from either S&P or Moody’s.

“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” shall mean the occurrence of any of the following events:

(a) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) shall have (x) acquired beneficial ownership or control of 50.1% or more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of Holdings or (y) obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Holdings;

(b) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of each class of outstanding Equity Interests of the Borrower free and clear of all Liens (other than Permitted Equity Liens); or

(c) any “change of control” or similar event (however denominated) shall occur under any indenture or other agreement with respect to Material Indebtedness of any Loan Party.

“Closing Date” shall mean the date on which the conditions precedent set forth in Section 4.02 shall have been satisfied or waived.

“Closing Date Lender” shall mean CO Finance LVS VI LLC.

“Code” shall mean the Internal Revenue Code of 1986, as amended (unless otherwise provided herein).

“Collateral” shall mean all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document, but in any event excluding Excluded Assets.

“Collateral Agent” shall have the meaning set forth in the recitals hereto.

“Commitment” shall mean, as to any Lender, the obligation of such Lender to make a Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Commitment” opposite such Lender’s name on Annex A or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate principal amount of the Commitments on the Closing Date is $40,000,000.

“Common Stock” shall mean the common stock of Holdings, par value $0.01 per share.

“Common Stock Deemed Outstanding” shall mean the sum of, without duplication, (a) the number of shares of Common Stock actually outstanding at such time, plus (b) the number of shares of Common Stock reserved for issuance at such time under any equity incentive plans approved by the board of directors of Holdings, regardless of whether the shares of Common Stock are actually subject to outstanding options or other rights to acquire shares, plus (c) the number of shares of Common Stock issuable upon exercise of any other options, warrants or rights to acquire shares actually outstanding at such time, plus (d) the number of shares of Common Stock issuable upon conversion or exchange of convertible securities actually outstanding at such time, in each case, regardless of whether the options or convertible securities are actually exercisable at such time.

“Compliance Certificate” shall mean a certificate duly executed by a Responsible Officer of Holdings, substantially in the form of Exhibit A.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Contractual Obligation” shall mean, with respect to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Credit Extension” shall mean the making of a Loan.

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

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

“Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

“Disbursing Agent” shall have the meaning set forth in the preamble hereto.

“Disinterested Director” shall have the meaning set forth in Section 6.08.

“Disposition” shall mean, with respect to any Property, any sale, lease, sublease, assignment, conveyance, transfer, exclusive license or other disposition thereof (including (i) by way of merger or consolidation, (ii) any Sale and Leaseback and (iii) any Synthetic Lease); and the terms “Dispose” and “Disposed of” shall have correlative meanings.

“Disqualified Equity Interests” shall mean any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition, (a) require the payment of any dividends (other than dividends payable solely in shares of Qualified Equity Interests), (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof (other than solely for Qualified Equity Interests), in each case in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on a fixed date or otherwise (including as the result of a failure to maintain or achieve any financial performance standards) or (c) are or become convertible into or exchangeable for, automatically or at the option of any holder thereof, any Indebtedness, Equity Interests or other assets other than Qualified Equity Interests, in the case of each of clauses (a), (b) and (c), prior to the date that is 91 days after the Maturity Date at the time of issuance of such Equity Interests (other than (i) following Payment in Full or (ii) upon a “change in control”; provided that any payment required pursuant to this clause (ii) is subject to the prior Payment in Full); provided, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of Holdings, the Borrower or their Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by a Group Member in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

“Disqualified Lender” shall mean (a) any Person that is a competitor of Holdings and its Subsidiaries, which Person has been designated as a “Disqualified Lender” by written notice to Disbursing Agent and the Lenders by Borrower prior to the Closing Date and (b) Affiliates of Persons described in clause (a) above (other than such Affiliates that are bona fide fixed income investors, debt funds, regulated bank entities or unregulated lending entities generally engaged in making, purchasing, holding or otherwise investing in commercial loans, debt securities or similar extensions of credit in the ordinary course of business) that are identified in writing by Borrower to Disbursing Agent and the Lenders prior to the Closing Date; provided, that the inclusion of such Persons as Disqualified Lenders shall not retroactively apply to disqualify any Persons that have previously acquired an assignment or participation in the Loans; provided, further, that the term “Disqualified Lender” shall exclude any Person that Borrower has designated as no longer being a “Disqualified Lender” by written notice delivered to Disbursing Agent and the Lenders from time to time. Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that Disbursing Agent will not have any responsibility or obligation of any kind to determine whether any Lender or potential Lender is a Disqualified Lender and Disbursing Agent will have no liability for, or any duty to ascertain or inquire into, monitor or enforce, compliance with assignment or participation provisions with respect to any assignment or participation made to a Disqualified Lender. Disbursing Agent may deliver or furnish the list of Disqualified Lenders to any Lender upon its request.

“Dollars” or “$” shall mean lawful money of the United States of America.

“Domestic Foreign Holding Company” shall mean any Domestic Subsidiary that holds no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“Domestic Subsidiary” shall mean any Subsidiary of Holdings organized under the laws of the United States of America, any State thereof, the District of Columbia, or any other jurisdiction within the United States of America.

“Early Opt-in Election” shall mean, if the then-current Benchmark is LIBOR, the occurrence of: (a) a notification by the Required Lenders to the Disbursing Agent (with a copy to the Borrower) that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (b) the joint election by the Borrower and the Required Lenders by affirmative vote to trigger a fallback from LIBOR and the provision by the Borrower of written notice of such election to each of the other parties hereto (the “Rate Election Notice”).

“Eligible Assignee” shall mean any Person (other than a Disqualified Lender) that meets the requirements to be an assignee under Section 9.06(b).

“Eligible Inventory” shall mean, at any time of determination, Inventory owned by a Loan Party which satisfies the general criteria set forth below and which is otherwise acceptable to the Required Lenders in their reasonable discretion (provided, that the Required Lenders may, in their reasonable discretion, change the general criteria for acceptability of Eligible Inventory and shall notify the Borrower of such change promptly thereafter). Inventory shall be deemed to meet the current general criteria if:

(a) it consists of raw materials;

(b) it is in good, new and saleable condition;

(c) it is not slow-moving (defined as inventory units with no usage for 12 months), obsolete, damaged, contaminated, unmerchantable, returned, rejected, discontinued or repossessed;

(d) it is not in the possession of a processor, consignee or bailee, or located on premises leased or subleased to the applicable Loan Party, or on premises subject to a mortgage in favor of a Person other than the Collateral Agent, unless such processor, consignee, bailee or mortgagee or the lessor or sublessor of such premises, as the case may be, has executed and delivered all documentation which the Required Lenders shall require to evidence the subordination or other limitation or extinguishment of such Person’s rights with respect to such Inventory and the Collateral Agent’s right to gain access thereto;

(e) it does not consist of labels, pallets, consigned items, supplies or packaging;

(f) it meets all standards imposed by any Governmental Authority;

(g) it is at all times subject to the Collateral Agent’s duly perfected, first priority security interest and no other Lien except a Permitted Lien;

(h) it is not purchased or manufactured pursuant to a license agreement that is not assignable to the Collateral Agent or any of its permitted assignees, unless such license agreement is satisfactory to the Required Lenders; and

(i) it is located at the Mexico Facility.

“Environmental Laws” shall mean any and all applicable laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or other legally binding requirements (including, without limitation, principles of common law) of any Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning pollution, the preservation or protection of the environment, natural resources or human or employee health and safety (as it relates to exposure to Materials of Environmental Concern), or the generation, manufacture, use, labeling, treatment, storage, handling, transportation or release of, or exposure to, Materials of Environmental Concern.

“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties, attorney or consultant fees or indemnities) resulting from or based upon (a) non-compliance with any Environmental Law or any Environmental Permit, (b) exposure to any Materials of Environmental Concern, (c) Release or threatened Release of any Materials of Environmental Concern, (d) any investigation, remediation, removal, clean-up or monitoring required under Environmental Laws or required by a Governmental Authority (including without limitation Governmental Authority oversight costs that the party conducting the investigation, remediation, removal, clean-up or monitoring is required to reimburse) or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permits” shall mean any and all Permits required under any Environmental Law.

“Equity Interest” shall mean, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), if such Person is a limited liability company, membership interests, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, dividends or distributions of property of, such partnership, whether outstanding on the Closing Date or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity interests.

“Equity Offering” shall mean, the sale or issuance (or reissuance) by Holdings or any of its Subsidiaries of any Equity Interests or beneficial interests (common stock, preferred stock, partnership interests, member interests or otherwise) or any options, warrants, convertible securities or other rights to purchase such Equity Interests or beneficial interests.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Group Member, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is treated as a single employer under Section 414 of the Code. Any former ERISA Affiliate of the Group Members shall continue to be considered an ERISA Affiliate of the Group Members within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of any Group Member and with respect to liabilities arising after such period for which any Group Member could be liable under the Code or ERISA.

“ERISA Event” shall mean (a) a “reportable event” within the meaning of Section 4043(c) of ERISA and the regulations issued thereunder with respect to any Single Employer Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation in effect on the Closing Date); (b) the material failure to meet the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Single Employer Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Single Employer Plan; (d) the termination of any Single Employer Plan or the withdrawal or partial withdrawal of any Group Member from any Single Employer Plan or Multiemployer Plan; (e) a determination that any Single Employer Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (f) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (g) the receipt by any Group Member or any of their respective ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan; (h) the adoption of any amendment to a Single Employer Plan that would require the provision of security pursuant to Section 436(f) of the Code; (i) the receipt by any Group Member or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (j) the material failure by any Group Member or any of their respective ERISA Affiliates to make a required contribution to a Multiemployer Plan; (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in material liability to any Group Member; (l) the imposition of a lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Single Employer Plan; (m) the assertion of a material claim (other than routine claims for benefits) against any Plan other than a Multiemployer Plan or the assets thereof, or against any Group Member or any of their respective ERISA Affiliates in connection with any Plan; or (n) the occurrence of an act or omission which could give rise to the imposition on any Group Member or any of their respective ERISA Affiliates of any material fine, penalty, tax or related charge under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Plan.

“Eurodollar Base Rate” shall mean, with respect to any Eurodollar Loan for any Interest Period, LIBOR as published by ICE Benchmark Administration Limited, a United Kingdom company (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period), at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that, if such rate is not so published at such time for such Interest Period (an “Impacted Interest Period”) then the Eurodollar Base Rate shall be the Interpolated Rate; provided that, if the Eurodollar Base Rate or any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Eurodollar Loan” shall mean a Loan bearing interest at a rate determined by reference to the Eurodollar Rate.

“Eurodollar Rate” shall mean, subject to the implementation of a Benchmark Replacement Rate in accordance with Section 2.13(b), with respect to any Eurodollar Loan for any Interest Period, a per annum rate of interest (rounded upward, if necessary, to the next 1/100^th of 1.00%) equal to the greater of (a) (i) the Eurodollar Base Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate and (b) 1.50%.

“Eurodollar Tranche” shall mean the collective reference to Eurodollar Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date.

“Event of Default” shall mean any of the events specified in Section 7.01; provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Excluded Assets” shall mean:

(a) any fee owned Real Property (other than Material Owned Real Property) and any leasehold rights and interests in Real Property;

(b) commercial tort claims where the amount of damages claimed by the applicable Loan Party is less than $500,000;

(c) governmental licenses, state or local franchises, charters and authorizations and any other property and assets to the extent that the Collateral Agent may not validly possess a security interest therein under applicable Requirements of Law (including, without limitation, rules and regulations of any Governmental Authority or agency) or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization that has not been obtained after the applicable Loan Party has used commercially reasonable efforts to do so, other than to the extent such prohibition or limitation on possessing a security interest therein is rendered ineffective under the UCC or other applicable Requirements of Law notwithstanding such prohibition or limitation;

(d) any lease, license, Permit or agreement to the extent that a grant of a security interest therein (i) is prohibited by applicable Requirements of Law other than to the extent such prohibition is rendered ineffective under the UCC or other applicable Requirements of Law notwithstanding such prohibition or (ii) to the extent and for so long as it would violate or invalidate the terms thereof (in each case, after giving effect to the relevant provisions of the UCC or other applicable Requirements of Law) or would give rise to a termination right of an unaffiliated third party thereunder or require consent of an unaffiliated third party thereunder (except to the extent such provision is overridden by the UCC or other Requirements of Law), in each case, only to the extent that such limitation on such pledge or security interest is otherwise permitted under Section 6.11;

(e) (i) Margin Stock (to the extent a security interest therein would violate the provisions of the regulations of the Board of Governors, including Regulation T, Regulation U or Regulation X) and (ii) Equity Interests in any Person other than Wholly Owned Subsidiaries that cannot be pledged without the consent of unaffiliated third parties (unless such consent has been obtained);

(f) (i) voting Equity Interests in excess of 65% (or such greater percentage that could not reasonably be expected to cause any material adverse Tax consequences) of the total voting Equity Interests in any Excluded Foreign Subsidiary and (ii) any assets of any Excluded Foreign Subsidiary (including 100% of the Equity Interests in any Subsidiary whose immediate parent is an Excluded Foreign Subsidiary);

(g) any intent-to-use trademark or service mark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto and acceptance thereof by the United States Patent and Trademark Office, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of or void such intent-to-use trademark or service mark application or any registration that may issue therefrom under applicable federal law;

(h) machinery and equipment located at the Shoals Facility that is transferred to the landlord or otherwise disposed of in connection with the Shoals Facility Lease Termination (including any such disposition made by the Mexican Subsidiaries if any of such machinery and equipment is first transferred to them); and

(i) particular assets if and for so long as, if reasonably agreed by the Required Lenders and the Borrower, the cost of creating a pledge or security interest in such assets exceed the practical benefits to be obtained by the Lenders therefrom;

provided, however, that Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (a) through (i) (unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (a) through (i)).

“Excluded Foreign Subsidiary” shall mean, for so long as any such Subsidiary’s status as a Guarantor (or the pledge of such Subsidiary’s Equity Interests or assets) could reasonably be expected to cause material adverse Tax consequences, (a) each Foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code, and (b) each Domestic Foreign Holding Company. For the avoidance of doubt, the definition of Excluded Foreign Subsidiary shall include any Foreign Subsidiaries in existence on the Closing Date (other than the Mexican Subsidiaries).

“Excluded Perfection Assets” shall mean:

(a) (i) rail cars (other than any rail cars owned by any Loan Party that are leased, or intended to be leased, to third parties, which are required to be perfected), (ii) motor vehicles and other assets (other than rail cars) subject to certificates of title with a book value of less than $100,000 individually and $200,000 in the aggregate and (iii) airplanes;

(b) letter of credit rights, except to the extent constituting support obligations for other Collateral as to which perfection of the security interest in such other Collateral is accomplished solely by the filing of a UCC financing statement or another method that is required by the Security Documents for such other Collateral; and

(c) particular assets if and for so long as, if reasonably agreed by the Required Lenders and the Borrower, the cost of perfecting a pledge or security interest in such assets exceed the practical benefits to be obtained by the Lenders therefrom.

“Excluded Subsidiary” shall mean (a) any Subsidiary that is not a Wholly Owned Subsidiary of a Loan Party, (b) any Immaterial Subsidiary, (c) any special purpose securitization vehicle (or similar entity), (d) any captive insurance Subsidiary, (e) any not-for-profit Subsidiary and (f) any Excluded Foreign Subsidiary.

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or in this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.19) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Existing Credit Facility” shall mean that certain Credit and Security Agreement dated as of April 12, 2019 among Holdings, JAC Operations, Inc., Freight Car Services, Inc., Johnstown America, LLC, FreightCar Rail Services, LLC, FreightCar Roanoke, LLC and FreightCar Alabama, LLC, as borrowers, FreightCar Short Line, Inc. and the Borrower (f/k/a FCAI Holdings, LLC), as guarantors, and BMO Harris Bank N.A., as Lender, as it may have been amended, restated, supplemented or otherwise modified prior to the Closing Date.

“Extraordinary Receipts” shall mean any cash received by any Group Member not in the ordinary course of business (and not consisting of Net Cash Proceeds) including, without limitation, pension plan reversions, judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, purchase price adjustments, and indemnity payments to the extent not made to reimburse a payment made by a Group Member, in each case, in excess of $500,000 individually and $1,000,000 in the aggregate during any fiscal year of Holdings.

“FASB ASC” shall mean the Accounting Standards Codification of the Financial Accounting Standards Board.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Effective Rate” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Disbursing Agent on such day on such transactions as determined by the Disbursing Agent.

“Fee Letter” shall mean that certain fee proposal letter provided by U.S. Bank National Association and executed by the Borrower on the Signing Date, as it may be amended, restated, supplemented or otherwise modified.

“Floor” shall mean the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurodollar Rate.

“Foreign Lender” shall mean a Lender that is not a U.S. Person.

“Foreign Subsidiary” shall mean any Subsidiary of Holdings that is not a Domestic Subsidiary.

“Funded Debt” shall mean, with respect to any Person, all Indebtedness of such Person of the types described in clauses (a) through (e) and, solely with respect to letters of credit, bankers’ acceptances and similar facilities that have been drawn but not yet reimbursed, clause (f) of the definition of “Indebtedness”.

“GAAP” shall mean generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States of America, that are applicable to the circumstances as of the date of determination, consistently applied.

“Gil Family” shall mean, individually or collectively, as the context may require, Jesus Gil, Alejandro Gil and Salvador Gil and any of their Affiliates.

“Governmental Authority” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Grantor” shall mean any Loan Party that is party to the Guarantee and Collateral Agreement.

“Group Member” shall mean each of Holdings, the Borrower and their Subsidiaries (other than any Railcar Leasing Subsidiary) and “Group Members” shall refer to each such Person, collectively.

“Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement, to be dated as of the Closing Date and executed and delivered by Holdings, the Borrower and each Subsidiary Guarantor in favor of the Collateral Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Guarantee Obligation” shall mean, with respect to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit), if to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (1) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (2) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“Guarantors” shall mean the collective reference to Holdings, the Borrower and the Subsidiary Guarantors.

“Holdings” shall have the meaning set forth in the preamble hereto.

“Highest Lawful Rate” shall mean the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

“Historical Audited Financial Statements” shall mean the audited consolidated balance sheets of Holdings and its Subsidiaries as at the end of the fiscal years ended December 31, 2017, 2018 and 2019 and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal years, including the notes thereto.

“Immaterial Subsidiary” shall mean any Subsidiary designated by the Borrower as an Immaterial Subsidiary if and for so long as such Immaterial Subsidiary, together with all other Immaterial Subsidiaries so designated as Immaterial Subsidiaries, does not have (a) total assets at such time exceeding 2.5% of the total assets of Holdings and its Subsidiaries, on a consolidated basis, or (b) total revenues and operating income for the most recent 12-month period for which financial statements are available exceeding 2.5% of the total revenues and operating income for the most recent 12-month period of Holdings and its Subsidiaries, on a consolidated basis; provided that any Subsidiary would not be an Immaterial Subsidiary to the extent the above required terms are not satisfied; provided, further, that the Borrower may undesignate any Immaterial Subsidiary in order to cause the above required terms to be satisfied.

“Impacted Interest Period” shall have the meaning set forth in the definition of “Eurodollar Base Rate”.

“Indebtedness” shall mean, of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services, including seller notes or earn-out obligations appearing on such Person’s balance sheet in accordance with GAAP (other than trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures, loan agreements or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property), (e) all Capital Lease Obligations, Purchase Money Obligations or Attributable Indebtedness of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under bankers’ acceptance, letter of credit or similar facilities, (g) all obligations of such Person in respect of Disqualified Equity Interests of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, but if such obligation has not been assumed, then such obligation shall be valued at the lesser of the amount of such obligation and the fair market value of the property securing such obligation at any time of determination and (j) for the purposes of Section 6.01 and Section 7.01(e) only, all obligations of such Person in respect of Swap Contracts.

“Indemnified Liabilities” shall have the meaning set forth in Section 9.05(b).

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

“Indemnitee” shall have the meaning set forth in Section 9.05(b).

“Intellectual Property” shall mean all rights, priorities, and privileges relating to intellectual property, whether arising under United States of America, state, multinational or foreign laws or otherwise, including, without limitation, copyrights, patents, trademarks, service marks, moral rights, technology, software, source code, know-how, processes, recipes, formulas, trade secrets, confidential information, domain names, and social media accounts; all rights, licenses, and covenants relating to any of the foregoing; and all rights to sue at law or in equity for any infringement, misappropriation, or other impairment of any of the foregoing, including the right to receive all proceeds and damages therefrom.

“Intellectual Property Security Agreements” shall have the meaning set forth in the Guarantee and Collateral Agreement.

“Intercreditor Agreement” shall mean that certain Intercreditor Agreement to be dated as of the Closing Date between the Revolving Loan Lender and the Collateral Agent, and acknowledged by the Loan Parties, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Interest Payment Date” shall mean (a) as to any Eurodollar Loan, the last day of each Interest Period applicable to such Eurodollar Loan and the final maturity date of such Eurodollar Loan; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding and the Maturity Date.

“Interest Period” shall mean, with respect to any Eurodollar Loan, the period commencing on the date such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on the date that is three months thereafter, as selected by the Borrower in its Borrowing Notice; provided that (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such next succeeding Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period pertaining to a Eurodollar Loan that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no Interest Period shall extend beyond the Maturity Date.

“International Trade Laws” shall mean (a) Sanctions; (b) export control and/or import laws and regulations of the United States and other jurisdictions applicable to the Borrower or any of its Affiliates, including the Arms Export Control Act (22 U.S.C. 2778), the International Traffic in Arms Regulations (ITAR) (22 CFR 120-130), the Export Administration Regulations (EAR) (15 CFR 730-774), and the laws and regulations administered by Customs and Border Protection (19 CFR Parts 1-199); and (c) Anti-Corruption Laws.

“Interpolated Rate” shall mean, at any time, for any Impacted Interest Period, the rate per annum (rounded to the same number of decimal places as the rate published by ICE Benchmark Administration Limited) equal to the rate that results from interpolating on a linear basis between: (a) the rate published by ICE Benchmark Administration Limited for the longest period (for which such rate is available) that is shorter than the Impacted Interest Period and (b) the rate published by ICE Benchmark Administration Limited for the shortest period (for which such rate is available) that exceeds the Impacted Interest Period, in each case, at such time.

“Inventory” shall have the meaning assigned to such term in Article 9 of the Uniform Commercial Code.

“Investment” shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

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

“ISDA Definitions” shall mean 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 any successor thereto.

“Johnstown Facility” shall mean that certain facility located at 129 Industrial Park Rd., Johnstown, Pennsylvania 15904.

“Junior Indebtedness” shall mean, collectively, any Indebtedness of any Group Member that is (x) secured by a Lien that is junior in priority to the Lien securing the Obligations, (y) by its terms subordinated in right of payment to all or any portion of the Obligations pursuant to subordination terms reasonably satisfactory to the Required Lenders or (z) unsecured.

“Lenders” shall have the meaning set forth in the preamble hereto.

“LIBOR” shall mean the London interbank offered rate for Dollars.

“Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien (statutory or other), judgment lien, pledge, encumbrance, claim, charge, assignment, hypothecation, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference in the nature of a security interest or any filing of any financing statement under the UCC or any other similar notice of Lien under any similar notice or recording statute of any Governmental Authority, including any easement, servitude, right-of-way or other encumbrance on title to real property, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, and any agreement to give any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Lien Waiver Agreement” shall mean an agreement which is executed in favor of the Collateral Agent and, in certain cases, the Revolving Loan Lender by a Person who owns or occupies premises at which any Collateral may be located from time to time, in form and substance reasonably satisfactory to the Collateral Agent and the Required Lenders.

“Liquidity” shall mean the aggregate amount of (a) all Unrestricted Cash of the Loan Parties, (b) the undrawn and available portion of the commitments under the Revolving Loan Agreement and any other revolving credit facility of the Borrower and (c) to the extent not constituting collateral with respect to the Revolving Loan Agreement or any other revolving credit facility of the Borrower, an amount equal to the lesser of (i) (A) $5,000,000 through December 31, 2021 and (B) $10,000,000 thereafter or (ii) 45% of the net book value of Eligible Inventory of the Loan Parties located in Mexico and earmarked for firm orders.

“Loan” shall mean a loan made by a Lender pursuant to Section 2.01.

“Loan Documents” shall mean, collectively, (i) this Agreement, (ii) the Notes, (iii) the Security Documents, (iv) the Intercreditor Agreement, (v) the Fee Letter, and (vi) all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Loan Party for the benefit of any Agent or Lender in connection herewith on or after the Signing Date.

“Loan Parties” shall mean, collectively, the Borrower and each Guarantor. For the avoidance of doubt, no Railcar Leasing Subsidiary shall be a Loan Party.

“Make Whole Amount” shall mean an amount equal to the sum of (i) the present value, as determined by the Borrower and certified by a Responsible Officer of the Borrower to the Lenders, of all required interest payments due on the Loans that are prepaid from the date of prepayment, acceleration, satisfaction or release through and including the third anniversary of the Closing Date (excluding accrued interest) (assuming that the interest rate applicable to all such interest is equal to (x) the Eurodollar Rate for an Interest Period of three months in effect on the third Business Day prior to such prepayment or acceleration plus (y) the Applicable Margin for Eurodollar Rate Loans in effect as of such prepayment date) plus (ii) the prepayment premium that would be due under Section 2.06(b) if such prepayment, acceleration, satisfaction or release were made on the day after the third anniversary of the Closing Date, in each case discounted to the date of prepayment or acceleration on a quarterly basis (assuming a 360-day year and actual days elapsed) at a rate equal to the sum of the Treasury Rate plus 0.50%.

“Margin Stock” shall have the meaning assigned to such term in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto.

“Master Agreement” shall have the meaning set forth in the definition of “Swap Contract.”

“Material Adverse Effect” shall mean a material adverse effect on and/or material adverse developments with respect to (a) (i) from the period beginning on the Signing Date through the Closing Date, the business, operations, properties, assets, financial condition or prospects of the Group Members taken as a whole and (ii) after the Closing Date, the business, operations, properties, assets or financial condition of the Group Members taken as a whole; (b) the ability of any Loan Party to fully and timely perform its Obligations; (c) the legality, validity, binding effect or enforceability against any Loan Party of this Agreement or any other Loan Document to which it is a party; or (d) the rights, remedies and benefits available to, or conferred upon, any Agent, any Lender or any other Secured Party under any Loan Document.

“Material Agreement” shall mean any agreement, contract or instrument (other than (x) agreements, contracts or instruments with customers of any Loan Party and (y) the Shoals Facility Lease) to which any Loan Party is a party or by which any Loan Party or any of its properties is bound (other than the Loan Documents) (i) pursuant to which any Loan Party is required to make payments or other consideration, or will receive payments or other consideration, in excess of $5,000,000 in any 12-month period, (ii) governing, creating, evidencing or relating to Material Indebtedness of any Loan Party or (iii) the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, could reasonably be expected to have a Material Adverse Effect.

“Material Indebtedness” shall mean Indebtedness (other than the Obligations) of any Group Member in an individual principal amount of $5,000,000 or more.

“Material Owned Real Property” shall mean any Real Property, or group of related tracts of Real Property, acquired (whether in a single transaction or a series of transactions) or owned in fee by any Loan Party, in each case, in respect of which the fair market value (including the fair market value of improvements owned or leased by such Loan Party and located thereon) on such date of determination exceeds $1,000,000.

“Materials of Environmental Concern” shall mean any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant under applicable Environmental Law, or which could give rise to liability under any Environmental Laws, including but not limited to petroleum (including crude oil or any fraction thereof), petroleum by-products, toxic mold, polychlorinated biphenyls, urea-formaldehyde insulation, per- or poly-fluoroalkyl substances, asbestos or asbestos-containing material.

“Maturity Date” shall mean the earlier of (i) the fifth anniversary of the Closing Date and (ii) the date on which all Loans shall become due and payable in full hereunder, whether by acceleration or otherwise; provided that, if any such day is not a Business Day, the Maturity Date shall be the Business Day immediately succeeding such day.

“Mexican ABL Credit Facility” shall mean the revolving credit facility evidenced by a revolving credit agreement in form and substance satisfactory to the Required Lenders, which may be entered into after the Closing Date by one or more of the Mexican Subsidiaries, as borrowers, and the lenders from time to time party thereto, as amended, restated, supplemented, refinanced, replaced or otherwise modified from time to time, and which shall (i) have revolving credit commitments in an aggregate principal amount reasonably satisfactory to the Required Lenders and (ii) be secured only by inventory and related assets owned by one or more of the Mexican Subsidiaries and located in Mexico.

“Mexican Security Documents” shall have the meaning set forth in the Guarantee and Collateral Agreement.

“Mexican Subsidiaries” shall mean, collectively, (a) FCA-Fasemex, S. de R.L., de C.V., an entity organized under the laws of Mexico, and (b) FCA-Fasemex Enterprise, S. de R.L., de C.V., an entity organized under the laws of Mexico.

“Mexico Facility” shall mean that certain facility located at Tepic 1100, Colonia California, Coahuila, México, C.P. 25870.

“Mexico Facility Landlord” shall mean Fabricaciones y Servicios de México, S.A. de C.V.

“Mexico Facility Lease” shall mean that certain Amended and Restated Lease Agreement to be entered into on or prior to the Closing Date by FCA-Fasemex, S. de R.L., de C.V., as lessee, and the Mexican Facility Landlord, as lessor, in connection with the lease of the Mexico Facility.

“Mexico JV Acquisition Agreement” shall mean, that certain Equity Purchase Agreement, to be entered into on or prior to the Closing Date by and among the Borrower, Fasemex, Inc., a Texas corporation, Fabricaciones y Servicios de México, S.A. de C.V., and Agben México, S.A. de C.V., an entity organized under the laws of Mexico.

“Mexico JV Transaction” shall mean, the acquisition by Borrower of 50% of each of the outstanding equity interests in (a) FCA-Fasemex, LLC, a Delaware limited liability company, (b) FCA-Fasemex, S. de R.L., de C.V., an entity organized under the laws of Mexico, and (c) FCA-Fasemex Enterprise, S. de R.L., de C.V., an entity organized under the laws of Mexico, pursuant to the Mexico JV Acquisition Agreement.

“Moody’s” shall mean Moody’s Investor Service, Inc. and any successor thereto.

“Mortgaged Properties” shall mean any Material Owned Real Property as to which the Collateral Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages.

“Mortgages” shall mean each of the mortgages and deeds of trust made by any Loan Party, if any, in form and substance reasonably satisfactory to the Required Lenders (with such changes thereto as shall be advisable under the laws of the jurisdiction in which such mortgage or deed of trust is to be recorded), in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, supplemented, replaced or otherwise modified from time to time.

“Multiemployer Plan” shall mean a Plan that is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

“Net Cash Proceeds” shall mean (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) received by any Group Member, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, consulting fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document or any Lien on all or any part of the Collateral), and other customary fees and expenses actually incurred by any Group Member in connection therewith (in each case other than to the extent payable to an Affiliate); (ii) taxes paid or reasonably estimated to be payable by any Group Member as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements); (iii) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (ii) above) (A) associated with the assets that are the subject of such event and (B) retained by any Group Member, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such event occurring on the date of such reduction; and (iv) the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of any Group Member as a result thereof and (b) in connection with any issuance of any Equity Interests or issuance or sale of debt securities or instruments or the incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, consulting fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith (in each case other than to the extent payable to an Affiliate).

“Next Available Term SOFR” shall mean, at any time, for any Interest Period, Term SOFR for the longest tenor that can be determined by the Required Lenders that is shorter than the applicable Corresponding Tenor.

“Non-Consenting Lender” shall mean any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of each Lender or each affected Lender, in each case, in accordance with the terms of Section 9.01 and (ii) has been approved by the Required Lenders.

“Non-Public Information” shall mean information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD promulgated by the SEC under the Securities Act and the Exchange Act.

“Note” shall mean any promissory note evidencing any Loan.

“Obligations” shall mean the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any proceeding under any Debtor Relief Law, relating to any Group Member, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities owed by any Group Member to any Agent or any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, Prepayment Premium, all fees, charges and disbursements of counsel to the Agents or any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.

“OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Organizational Documents” shall mean, collectively, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation or articles of incorporation and by-laws (or similar constitutive documents) of such Person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constitutive documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constitutive documents) of such Person (and, where applicable, the equity holders or shareholders registry of such Person), (iv) in the case of any general partnership, the partnership agreement (or similar constitutive document) of such Person, (v) in any other case, the functional equivalent of the foregoing, and (vi) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such Person.

“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).

“Parent Expenses” shall mean:

(a) costs (including all professional fees and expenses) incurred by Holdings in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, or any indenture or other agreement or instrument relating to Indebtedness of the Borrower or any Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder;

(b) customary indemnification obligations of Holdings owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with any such Person to the extent relating to the Borrower and its Subsidiaries;

(c) obligations of Holdings in respect of director and officer insurance (including premiums therefor) to the extent relating to the Borrower or any of its Subsidiaries;

(d) general corporate overhead expenses, including professional fees and expenses and other operational expenses of Holdings related to the ownership or operation of the business of the Borrower or any of its Subsidiaries; and

(e) expenses incurred by Holdings in connection with any public offering or other sale of Equity Interests or Indebtedness:

(i)

where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or any Subsidiary;

(ii)

in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be received by or contributed to the Borrower or any Subsidiary; or

(iii)

otherwise on an interim basis prior to completion of such offering, so long as Holdings shall cause the amount of such expenses to be repaid to the Borrower or the relevant Subsidiary out of the proceeds of such offering promptly if completed.

“Participant” shall have the meaning set forth in Section 9.06(d).

“Participant Register” shall have the meaning set forth in Section 9.06(d).

“PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“Payment in Full” shall mean (a) the termination of all Commitments and (b) the payment in full in cash of all Loans and other amounts owing to any Lender or any Agent in respect of the Obligations (other than contingent or indemnification obligations not then due).

“Payment Office” shall mean the office specified from time to time by the Disbursing Agent as its payment office by notice to the Borrower and the Lenders.

“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Perfection Certificate” shall mean a certificate in form satisfactory to the Required Lenders that provides information with respect to the assets of each Loan Party.

“Permits” shall mean any and all licenses, permits, approvals, certifications, registrations, notifications, exemptions or authorizations of or from any Governmental Authority.

“Permitted Equity Issuance” shall mean the sale or issuance of any Equity Interests (a) pursuant to any employee stock or stock option compensation plan, (b) pursuant to the exercise of the Warrants by the Lenders or their Affiliates in accordance with the terms thereof and (c) by Holdings in connection with the Mexico JV Transaction.

“Permitted Equity Liens” shall mean Liens permitted under Section 6.02(a), Section 6.02(c), Section 6.02(r), and Section 6.02(t).

“Permitted Liens” shall mean the collective reference to Liens permitted by Section 6.02.

“Permitted Prior Liens” shall mean Liens permitted pursuant to Section 6.02 (other than Section 6.02(a) and Section 6.02(t)).

“Permitted Refinancing Debt” shall mean any modification, refinancing, refunding, renewal or extension of any Indebtedness; provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness being modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder; (ii) such modification, refinancing, refunding, renewal or extension has a maturity no earlier and a Weighted Average Life to Maturity no shorter than the Indebtedness being modified, refinanced, refunded, renewed or extended; (iii) at the time thereof, no Default or Event of Default shall have occurred and be continuing; (iv) if the Indebtedness being modified, refinanced, refunded, renewed or extended is unsecured, such modification, refinancing, refunding, renewal or extension is unsecured; (v) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended; (vi) if the Indebtedness being modified, refinanced, refunded, renewed or extended is secured, such modification, refinancing, refunding, renewal or extension is secured by no more collateral than the Indebtedness being modified, refinanced, refunded, renewed or extended; and (vii) the primary obligors and guarantors in respect of such Indebtedness being modified, refinanced, refunded, renewed or extended remain the same (or constitute a subset thereof); provided that one or more new obligors and/or guarantors may be added if they are already Loan Parties, are contemporaneously added as Loan Parties at the time of such modification, refinancing, refunding, renewal or extension, or are not required to be Loan Parties because they are Excluded Subsidiaries.

“Person” shall mean any natural Person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“PIK Interest” shall have the meaning set forth in Section 2.11(d).

“Plan” shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, Holdings, the Borrower or any of their respective ERISA Affiliates or with respect to which Holdings, the Borrower or any of their respective ERISA Affiliates has or could reasonably be expected to have liability, contingent or otherwise, under ERISA.

“Platform” shall mean IntraLinks or a substantially similar electronic transmission system.

“Pledged Equity Interests” shall have the meaning set forth in the Guarantee and Collateral Agreement.

“Prepayment Premium” shall have the meaning set forth in Section 2.06(b).

“Prime Rate” shall mean the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Disbursing Agent or any Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“Pro Forma Financial Statements” shall have the meaning set forth in Section 3.04(b).

“Projections” shall have the meaning set forth in Section 3.04(c).

“Property” shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests.

“Public Lender” shall mean any Lender that does not wish to receive Non-Public Information with respect to Holdings, the Borrower or their Subsidiaries or their respective securities.

“Purchase Money Obligation” shall mean, for any Person, the obligations of such Person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets or the cost of installation, construction or improvement of any fixed or capital assets; provided, however, that (i) such Indebtedness is incurred within 30 days after such acquisition, installation, construction or improvement of such fixed or capital assets by such Person and (ii) the amount of such Indebtedness does not exceed the lesser of 100% of the fair market value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

“Qualified Equity Interests” shall mean Equity Interests that are not Disqualified Equity Interests.

“Railcar Leasing Subsidiary” shall mean each of FreightCar America Leasing, LLC, a Delaware limited liability company, FreightCar America Leasing 1, LLC, a Delaware limited liability company, FreightCar America Capital Leasing, LLC, a Delaware limited liability company, and FreightCar America Railcar Management, LLC, a Delaware limited liability company.

“Real Property” shall mean all real property held or used by any Group Member, which relevant Group Member owns in fee or in which it holds a leasehold interest as a tenant, including as of the Closing Date.

“Recipient” shall mean (a) each Agent and (b) any Lender, as applicable.

“Recovery Event” shall mean the receipt by any Group Member of any cash payments or proceeds under any casualty insurance policy in respect of a covered loss thereunder or as a result of the taking of any assets of any Group Member by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, in each case, in excess of $500,000 individually or $1,000,000 in the aggregate during any fiscal year of Holdings.

“Reference Time” with respect to any setting of the then-current Benchmark shall mean (a) if the Benchmark is LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (b) if the Benchmark is not LIBOR, the time determined by the Required Lenders in their reasonable discretion and notified to the Disbursing Agent.

“Refinancing” shall mean the repayment in full and termination of the Indebtedness under the Existing Credit Agreement on or prior to the Closing Date.

“Register” shall have the meaning set forth in Section 9.06(c).

“Regulation D” shall mean Regulation D of the Board of Governors as in effect from time to time.

“Regulation T” shall mean Regulation T of the Board of Governors as in effect from time to time.

“Regulation U” shall mean Regulation U of the Board of Governors as in effect from time to time.

“Regulation X” shall mean Regulation X of the Board of Governors as in effect from time to time.

“Related Parties” shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release” shall mean, with respect to Materials of Environmental Concern, any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration into or through the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Materials of Environmental Concern).

“Relevant Governmental Body” means the Board of Governors or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors or the Federal Reserve Bank of New York, or any successor thereto.

“Required Lenders” shall mean, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.

“Requirement of Law” shall mean, as to any Person, such Person’s Organizational Documents, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

“Responsible Officer” shall mean, as to any Person, the chief executive officer, president or chief financial officer of such Person, but in any event, with respect to financial matters, the chief financial officer or other officer with similar responsibilities of such Person; and with respect to the Disbursing Agent or the Collateral Agent, any officer assigned to the corporate trust office of such Disbursing Agent or Collateral Agent, as applicable, including any managing director, principal, vice president, assistant vice president, assistant treasurer, assistant secretary, or any other officer of such Disbursing Agent or Collateral Agent, as applicable, customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. Unless otherwise qualified, all references to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.

“Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.

“Revolving Loan Agreement” shall mean that certain Loan and Security Agreement dated as of October 8, 2020 by and among Revolving Loan Lender and the Loan Parties (other than FCA-Fasemex, LLC, a Delaware limited liability company, and the Mexican Subsidiaries, who will be joined as guarantors under the Revolving Loan Agreement following consummation of the Mexican JV Transaction), as amended, restated, amended and restated, supplemented or otherwise modified from time to time to the extent not prohibited by the Intercreditor Agreement.

“Revolving Loan Documents” shall mean, collectively, the following (as the same may be amended, restated, refinanced or otherwise modified from time to time to the extent not prohibited by the Intercreditor Agreement): (a) the Revolving Loan Agreement, all exhibits, schedules and disclosure letters referred to therein or delivered pursuant thereto, if any, (b) all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof, and (c) all of the other agreements, documents and instruments executed and delivered in connection therewith or related thereto.

“Revolving Loan Indebtedness” shall mean “Obligations” (or any such similar term) (as defined in the Revolving Loan Agreement) of the Loan Parties owing to the Revolving Loan Lender under the Revolving Loan Documents.

“Revolving Loan Lender” shall mean Siena Lending Group LLC.

“SBA PPP Loan” shall mean a loan incurred by Holdings under 15 U.S.C. 636(a) (36) (as added to the Small Business Act by Section 1102 of the CARES Act).

“S&P” shall mean S&P Global Ratings and any successor thereto.

“Sale and Leaseback” shall have the meaning set forth in Section 6.09.

“Sanctioned Country” shall mean, at any time, a country or territory that is subject to comprehensive Sanctions (as of the Closing Date, Cuba, Iran, North Korea, Syria, and the Crimea region).

“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or the U.S. Department of Commerce (including the Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List, the Foreign Sanctions Evaders List, the Entity List, the Denied Persons List, or the Unverified List), or by the United Nations Security Council, the European Union or any EU member state; (b) any Person domiciled, organized or resident in a Sanctioned Country; (c) any Person owned or controlled by, or acting on behalf of, any such Person; or (d) any Person that is otherwise targeted by Sanctions.

“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC pursuant to various statutes, the Foreign Assets Control Regulations (31 CFR Parts 500-598) and all executive orders promulgated thereunder or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

“Scheduled Material Agreements” shall mean, as of the Closing Date, the Material Agreements described on Schedule 1.01(a).

“SEC” shall mean the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“Secured Parties” shall have the meaning set forth in the Guarantee and Collateral Agreement.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Documents” shall mean the collective reference to the Guarantee and Collateral Agreement, the Mortgages (if any), the Perfection Certificate, the Intellectual Property Security Agreements, the Mexican Security Documents, any control agreements or any other security documents required to be delivered pursuant to the Guarantee and Collateral Agreement or any other Loan Document and all other security documents hereafter delivered to any Agent for the purpose of granting or perfecting a Lien on any Property of any Loan Party to secure the Obligations.

“Shoals Facility” shall mean the railcar manufacturing facility located at 1200 Haley Drive, Cherokee, Alabama 35616.

“Shoals Facility Lease” shall mean that certain Industrial Facility Lease dated as of September 29, 2011 between Teachers’ Retirement Systems of Alabama and Employees’ Retirement System of Alabama, as landlord, and Navistar, Inc., as tenant, which lease was assigned to FreightCar Alabama, LLC pursuant to that certain Assignment and Assumption of Lease dated as of February 28, 2018.

“Shoals Facility Lease Termination” shall mean the termination of the Shoals Facility Lease in a manner that does not require any additional cash payment by the Loan Parties and is otherwise in form and substance reasonably satisfactory to the Lenders.

“Signing Date” shall mean the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied or waived, which date is October 13, 2020.

“Signing Date Loan Documents” shall have the meaning set forth in Section 4.01(a).

“Single Employer Plan” shall mean any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

“SOFR” shall mean, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” shall mean the website of the Federal Reserve Bank of New York currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Solvent” shall mean, with respect to any Person, as of any date of determination, on a consolidated basis (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, (b) the “present fair saleable value” of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, (d) such Person will be able to pay its debts as they mature and (e) such Person is not insolvent within the meaning of any applicable Requirements of Law. For purposes of this definition, (i) “debt” shall mean liability on a “claim,” (ii) “claim” shall mean any (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) such other quoted terms used in this definition shall be determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors.

“Spot Rate” shall have the meaning set forth in Section 1.06.

“Statutory Reserve Rate” shall mean a fraction (expressed as a decimal), (a) the numerator of which is the number one and (b) the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors to which the Disbursing Agent is subject with respect to the Eurodollar Rate for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of, or credit for, proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Subordinated Intercompany Note” shall mean the Subordinated Intercompany Note, substantially in the form of Exhibit H.

“Subsidiary” shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.

“Subsidiary Guarantor” shall mean each existing and subsequently acquired or organized direct or indirect Wholly Owned Subsidiary of Holdings (other than the Borrower and any Excluded Subsidiary) which has guaranteed the Obligations.

“Swap Contract” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement, in each case for the purpose of hedging the foreign currency, interest rate or commodity risk associated with the operations of the Group Members.

“Swap Termination Value” shall mean, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) have been determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“Synthetic Lease” shall mean, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes or (b) (i) a synthetic, off-balance sheet or tax retention lease or (ii) an agreement for the use or possession of property (including a Sale and Leaseback), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Tax Distribution Amount” shall mean any Taxes measured by income of Holdings, the Borrower or any Subsidiary for which Holdings (or another member of any group filing a consolidated, unitary or combined tax return with Holdings) is liable, up to an amount not to exceed the amount of any such Taxes that Holdings and its Subsidiaries would have been required to pay on a separate group basis if Holdings and its Subsidiaries had paid tax on a consolidated, combined, group, affiliated or unitary basis on behalf of an affiliated group consisting only of Holdings and its Subsidiaries, taking into account any net operating losses or other attributes of Holdings or its Subsidiaries.

“Taxes” shall mean 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” shall mean, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Title Company” shall have the meaning set forth in Section 5.12(c).

“Title Policy” shall have the meaning set forth in Section 5.12(c).

“Total Credit Exposure” shall mean, as to any Lender at any time, the unused Commitments and outstanding Loans of such Lender at such time.

“Transaction Expenses” shall mean any fees or expenses incurred or paid by Holdings or any of the Subsidiaries in connection with the Transactions (including payments to officers, employees and directors as payouts or special or retention bonuses to be paid on or prior to the Closing Date), this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.

“Transactions” shall mean collectively, the transactions to occur on or prior to the Closing Date pursuant to the Loan Documents, including (a) the execution, delivery and performance of the Loan Documents, the initial borrowings hereunder and the use of proceeds thereof; (b) the Refinancing; (c) the execution, delivery and performance of the Revolving Loan Documents; (d) the consummation of the Mexico JV Transaction; and (e) the payment of Transaction Expenses.

“Treasury Rate” shall mean, at any determination date, the yield to maturity as of such date of constant maturity United States Treasury securities (as compiled and published in the most recent Federal Reserve Statistical Release H. 15 (519) that has become publicly available at least two Business Days prior to such date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to the third anniversary of the Closing Date; provided, however, that if no published maturity exactly corresponds with such date, then the Treasury Rate shall be interpolated or extrapolated on a straight-line basis from the arithmetic mean of the yields for the next shortest and next longest published maturities; provided further, however, that if the period from such date to the third anniversary of the Closing Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

“Type” shall mean, as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.

“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code, as in effect from time to time in any applicable jurisdiction.

“Unrestricted Cash” shall mean, as of any date of determination, the aggregate amount of all cash and Cash Equivalents on the consolidated balance sheet of the Loan Parties that are not “restricted” for purposes of GAAP and in which the Collateral Agent has a perfected first-priority security interest (subject only to Permitted Liens); provided, however, that the aggregate amount of Unrestricted Cash shall not (i) include any cash or Cash Equivalents that are subject to a Lien (other than any Permitted Lien) or (ii) include any cash or Cash Equivalents that are restricted by contract, law or material adverse tax consequences from being applied to repay any Funded Debt.

“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.16(g).

“Warrants” shall have the meaning set forth in Section 4.02(r).

“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“Wholly Owned Subsidiary” of any Person shall mean a subsidiary of such Person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, Controlled or held by such Person or one or more wholly owned subsidiaries of such Person or by such Person and one or more wholly owned subsidiaries of such Person. Unless otherwise qualified, all references to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” in this Agreement shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of Holdings.

“Withdrawal Liability” shall mean any liability to a Multiemployer Plan as a result of a “complete withdrawal” or “partial withdrawal” from such Multiemployer Plan, as such terms are defined in Section 4201(b) of ERISA.

“Withholding Agent” shall mean any Loan Party and the Disbursing Agent.

Section 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s permitted successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, recitals, Annexes, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and recitals, Annexes, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) In the computation of periods of time from a specified date to a later specified date, the word “from” shall mean “from and excluding”, the words “to” and “until” each mean “to but excluding” and the word “through” shall mean “to and including”.

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

Section 1.03 Accounting Terms.

(a) Generally. All accounting terms not specifically defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Historical Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

(b) Accounting Change. If at any time any Accounting Change shall occur and such change results in a change in the method of calculation of any financial covenant, standard or term in this Agreement, then upon the written request of the Borrower or the Required Lenders, the Borrower and the Lenders shall negotiate in good faith in order to amend such provisions so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating Holdings’ and the Borrower’s financial condition shall be the same after such Accounting Change as if such Accounting Change had not occurred; provided that, until such time as an amendment shall have been executed and delivered by Holdings, the Borrower and the Required Lenders, (A) all such financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred and (B) the Borrower shall provide to the Disbursing Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such financial covenants, standards and terms made before and after giving effect to such Accounting Change. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Historical Audited Financial Statements for all purposes of this Agreement, notwithstanding any Accounting Change relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of Holdings and its Subsidiaries or to the determination of any amount for Holdings and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that Holdings is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

Section 1.04 Rounding. Any financial ratios determined pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

Section 1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.06 Currency Equivalents Generally. Any amount specified in this Agreement (other than in Article II, Article VIII and Article IX) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Disbursing Agent at such time on the basis of the Spot Rate for the purchase of such currency with Dollars. The “Spot Rate” for a currency means the rate determined by the Disbursing Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such determination; provided that the Disbursing Agent may obtain such spot rate from another financial institution designated by the Disbursing Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

Section 1.07 Rates. The Disbursing Agent does not warrant, nor accept responsibility, nor shall the Disbursing Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any comparable or successor rate thereto. The Disbursing Agent shall not be under any obligation to (i) monitor, determine or verify the unavailability or cessation of LIBOR (or other applicable benchmark index), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event, Benchmark Replacement Date or Benchmark Unavailability Period, or (ii) to select, determine or designate any alternative reference rate or Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing.

Section 1.08 Cashless Rolls. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, any Lender may exchange, continue or roll over all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower and such Lender.

Section 1.09 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

Article II
LOANS

Section 2.01 Commitments. Subject to the terms and conditions set forth herein, each Lender agrees, severally and not jointly, to make a Loan to the Borrower on the Closing Date in an amount equal to (a) the Commitment of such Lender less (b) the original issue discount applicable to such Lender as set forth on Annex A. Moreover, the Borrower and the Lenders agree and acknowledge that each term loan and the associated Warrant comprise an “investment unit” within the meaning of Treasury Regulations Section 1.1273-2(h), and that the fair market value of each Warrant is specified on Annex A hereto; provided that Annex A shall be modified on the Closing Date to reflect the fair market value of each Warrant as of the Closing Date. The sum of the discount specified in the foregoing clause (b) and the fair market value of the Warrants will be treated as original issue discount on the Loan for U.S. federal income tax purposes and will reduce the issue price of the Loan.

The Borrower may make only one borrowing under the Commitments, which shall be on the Closing Date. Any amount borrowed under this Section 2.01 and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.07 and Section 2.08, all amounts owed hereunder with respect to the Loans shall be paid in full no later than the Maturity Date. Each Lender’s Commitment shall terminate immediately and without further action on the earlier of (i) the Closing Date after giving effect to the funding of such Commitment on the Closing Date or (ii) December 31, 2020.

Section 2.02 Procedure for Borrowing.

(a) The Borrower shall deliver to the Disbursing Agent a fully executed Borrowing Notice no later than 2:00 p.m. (x) one Business Day in advance of the Closing Date in the case of Base Rate Loans and (y) three Business Days in advance of the Closing Date in the case of Eurodollar Loans (or such shorter period as may be acceptable to the Lenders and the Disbursing Agent). If no election as to the Type of Borrowing is specified in any such notice, then the requested borrowing shall be a Base Rate Borrowing. The Disbursing Agent shall promptly advise the Lenders of any notice given pursuant to this Section 2.02 (and the contents thereof), and of each Lender’s portion of the requested borrowing.

(b) Upon receipt of written confirmation by the Lenders of the satisfaction or waiver of the conditions precedent specified herein, each Lender shall make its Loan available to the Disbursing Agent not later than 12:00 p.m. on the Closing Date by wire transfer of same day funds in Dollars, at the principal office designated by the Disbursing Agent. Upon satisfaction or waiver of the conditions precedent specified herein and receipt of funds from each Lender sufficient to make the Loans, the Disbursing Agent shall make the proceeds of the Loans available to the Borrower on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Disbursing Agent from the Lenders to be credited to such account(s) as may be designated in writing to the Disbursing Agent by the Borrower.

Section 2.03 Repayment of Loans. The Borrower shall repay to the Lenders the aggregate principal amount of all Loans outstanding on the Maturity Date.

Section 2.04 Lenders’ Evidence of Debt; Register; Notes.

(a) Lenders’ Evidence of Debt. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Obligations of the Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on the Borrower, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or the Borrower’s Obligations in respect of any applicable Loans; provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b) Register. The Disbursing Agent (or its agent or sub-agent appointed by it) shall maintain the Register pursuant to Section 9.06(c), in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Disbursing Agent hereunder from the Borrower and each Lender’s share thereof. The entries made in the Register shall be conclusive and binding on the Borrower and each Lender, absent manifest error, and the Disbursing Agent and Lenders may treat each Person whose name is recorded in the Register as the owner of the Loans recorded therein for the purposes of this Agreement; provided that failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s Obligations in respect of any Loans. The Borrower hereby designates the Disbursing Agent to serve as the Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.04(b), and the Borrower hereby agrees that, to the extent the Disbursing Agent serves in such capacity, the Disbursing Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”

(c) Notes. The Borrower agrees that, upon request by any Lender, the Borrower will promptly execute and deliver to such Lender a promissory note of the Borrower evidencing any Loans of such Lender, substantially in the form of Exhibit D (a “Note”), with appropriate insertions as to date and principal amount; provided that the obligations of the Borrower in respect of each Loan shall be enforceable in accordance with the Loan Documents whether or not evidenced by any Note.

Section 2.05 Fees.

(a) The Borrower agrees to pay on the Closing Date to each Lender party to this Agreement as a Lender on the Closing Date, as fee compensation for the availability of such Lender’s Commitment, a closing fee in an amount equal to 1.00% of the aggregate principal amount of such Lender’s Commitment, payable to such Lender from the proceeds of Loans as and when funded on the Closing Date. Such closing fees shall be in all respects fully earned, due and payable on the Closing Date and non-refundable and non-creditable thereafter.

(b) The Borrower agrees to pay to the Agents the fees in the amounts and on the dates from time to time set forth in the Fee Letter and as otherwise agreed to in writing by the Borrower and the Agents.

Section 2.06 Voluntary Prepayments; Call Protection.

(a) Voluntary Prepayments.

(i) Any time and from time to time (subject to the payment of any Prepayment Premium set forth in Section 2.06(b)):

(A) the Borrower may prepay Base Rate Loans on any Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of that amount; and

(B) the Borrower may prepay Eurodollar Loans on any Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of that amount.

(ii) All such prepayments shall be made:

(A) upon not less than one Business Day’s prior written notice in the case of Base Rate Loans; and

(B) upon not less than three Business Days’ prior written notice in the case of Eurodollar Rate Loans;

in each case given to the Disbursing Agent by 12:00 p.m. on the date required (and the Disbursing Agent will promptly transmit such original notice to each Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. The Borrower’s notice may state that such notice is conditioned upon the effectiveness of other credit facilities or one or more other events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Disbursing Agent on or prior to the specified effective date) if such condition is not satisfied; provided that the Borrower shall make any payments required to be made pursuant to Section 2.17.

(b) Call Protection. In the event all or any portion of the principal of the Loans is (i) voluntarily prepaid under Section 2.06(a), (ii) prepaid under Section 2.07(a), Section 2.07(b), Section 2.07(c), Section 2.07(d) or Section 2.07(e), (iii) accelerated in accordance with Article VII (including, without limitation, automatic acceleration upon an Event of Default under Section 7.01(f) or Section 7.01(g) or operation of law upon the occurrence of a bankruptcy or insolvency event) or (iv) satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means, the Borrower shall be required to pay (A) the Make Whole Amount if such prepayment, acceleration, satisfaction or release occurs on or prior to the third anniversary of the Closing Date or (B) the Applicable Prepayment Premium if such prepayment, acceleration, satisfaction or release occurs after the third anniversary of the Closing Date (the Make Whole Amount and the Applicable Prepayment Premium, as the case may be, the “Prepayment Premium”); provided, that prepayments of outstanding PIK Interest that have been accrued and capitalized pursuant to Section 2.11(d) shall not be subject to any Prepayment Premium. It is understood and agreed that the Prepayment Premium applicable at the time of a prepayment, acceleration, satisfaction or release shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable under the terms of this Agreement shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination, and the Borrower agrees that it is reasonable under the circumstances currently existing. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH SUCH PREPAYMENT OR ACCELERATION. The Borrower expressly agrees (to the fullest extent that it may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then-prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that its agreement to pay the Prepayment Premium to the Lenders as herein described is a material inducement to the Lenders to provide the Commitments and make the Loans. For the avoidance of doubt, the Disbursing Agent shall have no obligation to calculate, or to verify the Borrower’s or any Lender’s calculation of, any Prepayment Premium due under this Agreement.

Section 2.07 Mandatory Prepayments.

(a) Asset Sales. Subject to the reinvestment right described in the proviso, no later than the fifth Business Day following the date of receipt by any Loan Party of any Net Cash Proceeds of any Asset Sale, the Borrower shall prepay the Loans (subject to the payment of any prepayment premium set forth in Section 2.06(b)) as set forth in Section 2.08 in an aggregate amount equal to such Net Cash Proceeds; provided that so long as no Event of Default shall have occurred and be continuing, if Borrower delivers to the Disbursing Agent a certificate of a Responsible Officer to the effect that the Borrower or its relevant Subsidiaries intend to apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificate), within 365 days of receipt thereof in assets of the type used in the business of Holdings and its Subsidiaries, then no prepayment shall be required pursuant to this paragraph with respect to the Net Cash Proceeds specified in such certificate. In the event that such Net Cash Proceeds are not so reinvested prior to the last day of such 365 day period, the Borrower shall prepay the Loans in an amount equal to such Net Cash Proceeds as set forth in Section 2.08.

(b) Recovery Events. Subject to the reinvestment right described in the proviso, no later than the fifth Business Day following the date of receipt by any Loan Party, or the Collateral Agent as loss payee, of any Net Cash Proceeds of any Recovery Event, the Borrower shall prepay (subject to the payment of any prepayment premium set forth in Section 2.06(b)) the Loans as set forth in Section 2.08 in an aggregate amount equal to such Net Cash Proceeds; provided that so long as no Event of Default shall have occurred and be continuing, if Borrower delivers to the Disbursing Agent a certificate of a Responsible Officer to the effect that the Borrower or its relevant Subsidiaries intend to apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificate), within 365 days of receipt thereof in assets of the type used in the business of Holdings and its Subsidiaries, which investment may include the repair, restoration or replacement of the affected assets, then no prepayment shall be required pursuant to this paragraph with respect to the Net Cash Proceeds specified in such certificate. In the event that such Net Cash Proceeds are not so reinvested prior to the last day of such 365 day period, the Borrower shall prepay the Loans in an amount equal to such Net Cash Proceeds as set forth in Section 2.08.

(c) Equity Offerings. No later than the first Business Day following the date of receipt by Holdings of any Net Cash Proceeds with respect to any Equity Offering (other than a Permitted Equity Issuance), the Borrower shall prepay (subject to the payment of any prepayment premium set forth in Section 2.06(b)) the Loans as set forth in Section 2.08 in an aggregate amount equal to 100% of such Net Cash Proceeds.

(d) Issuance of Debt. No later than the first Business Day following the date of receipt by any Loan Party of any Net Cash Proceeds from the incurrence of any Indebtedness of any Loan Party (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.01), the Borrower shall prepay (subject to the payment of any prepayment premium set forth in Section 2.06(b)) the Loans as set forth in Section 2.08 in an aggregate amount equal to 100% of such Net Cash Proceeds.

(e) Extraordinary Receipts. No later than the fifth Business Day following the date of receipt by any Loan Party of any Extraordinary Receipts, the Borrower shall prepay the Loans as set forth in Section 2.08 in an aggregate amount equal to such Extraordinary Receipts (net of all reasonable out-of-pocket expenses or other amounts required to be paid in connection therewith and reserves for income taxes and indemnities); provided that so long as no Event of Default shall have occurred and be continuing, if Borrower delivers to the Disbursing Agent a certificate of a Responsible Officer to the effect that the Borrower or its relevant Subsidiaries intend to apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificate), within 365 days of receipt thereof in assets of the type used in the business of Holdings and its Subsidiaries, then no prepayment shall be required pursuant to this paragraph with respect to the Extraordinary Receipts specified in such certificate. In the event that such Extraordinary Receipts are not so reinvested prior to the last day of such 365 day period, the Borrower shall prepay the Loans in an amount equal to such Extraordinary Receipts as set forth in Section 2.08.

Section 2.08 Application of Prepayments. Any prepayment shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 2.17.

Section 2.09 Conversion and Continuation Options. ~~(a)~~(a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Disbursing Agent at least one Business Day’s prior irrevocable notice of such election; provided that any such conversion of Eurodollar Loans may be made only on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Disbursing Agent at least three Business Days’ prior irrevocable notice of such election; provided that no Base Rate Loan may be converted into a Eurodollar Loan (i) when any Event of Default has occurred and is continuing and the Required Lenders have determined not to permit such conversions or (ii) after the date that is one month prior to the Maturity Date. Upon receipt of any such notice, the Disbursing Agent shall promptly notify each relevant Lender thereof.

(b) The Borrower may elect to continue any Eurodollar Loan as such upon the expiration of the then current Interest Period with respect thereto by giving irrevocable notice to the Disbursing Agent; provided that no Eurodollar Loan may be continued as such (i) when any Event of Default has occurred and is continuing and the Required Lenders have determined not to permit such continuations or (ii) after the date that is one month prior to the Maturity Date; provided, further, that if the Borrower shall fail to give any required notice as described above in this Section 2.09(b) or if such continuation is not permitted pursuant to the preceding proviso, such Loans shall be converted automatically to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Disbursing Agent shall promptly notify each relevant Lender thereof.

Section 2.10 Minimum Amounts and Maximum Number of Eurodollar Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of Eurodollar Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than four (4) Eurodollar Tranches shall be outstanding at any one time.

Section 2.11 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin in effect for such day.

(b) Each Base Rate Loan shall bear interest for each day on which it is outstanding at a rate per annum equal to the Base Rate in effect for such day plus the Applicable Margin in effect for such day.

(c) (i) Automatically, after the occurrence and during the continuance of an Event of Default described in Section 7.01(a), Section 7.01(f) or Section 7.01(g) and (ii) after notice to the Borrower from the Required Lenders, after the occurrence and during the continuance of any other Event of Default, the Borrower shall pay interest on all amounts (whether or not past due) owing by it hereunder at a rate per annum at all times, after as well as before judgment, equal to (x) in the case of principal, at the rate otherwise applicable to such Loan pursuant to Section 2.11(a) or Section 2.11(b), as applicable, plus 2.00% per annum and (y) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the rate that would be applicable to Base Rate Loans plus 2.00% per annum, in each case, from the date of such Event of Default or if later, the date specified in any such notice until such Event of Default is cured or waived.

(d) Interest shall be due and payable by the Borrower in arrears on each Interest Payment Date; provided that interest accruing pursuant to Section 2.11(c) shall be due and payable upon demand. On each Interest Payment Date, the Borrower shall have the option of paying a portion of the interest due in an amount up to 2.5% per annum in cash or in kind (“PIK Interest”) by capitalizing such amount and adding it to the principal amount of the Loans. If the Borrower elects to make payments of interest in cash pursuant to the immediately preceding sentence, the Borrower shall notify the Disbursing Agent of such election at least three Business Days prior to the applicable Interest Payment Date.

(e) Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

(f) All computations of interest for Base Rate Loans determined by reference to the “Prime Rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, bear interest for one day. Each determination by the Disbursing Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 2.12 Illegality. If any Lender determines that any 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 or to make, maintain or fund or charge interest with respect to any Loan or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower (with a copy to the Disbursing Agent), (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Loan or continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on such Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Disbursing Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Disbursing Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Disbursing Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Disbursing Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Disbursing Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Disbursing Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued and unpaid interest on the amount so prepaid or converted.

Section 2.13 Inability to Determine Interest Rate; Effect of Benchmark Transition Event.

(a) Temporary Inability to Determine Interest Rate. Unless and until a Benchmark Replacement is implemented in accordance with Section 2.13(b), if, in connection with any request for a Eurodollar Loan or a conversion to or continuation thereof, (a) the Disbursing Agent or the Required Lenders determine that (i) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Eurodollar Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Loan or in connection with an existing or proposed Base Rate Loan, or (b) the Disbursing Agent or the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Loan, the Disbursing Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Loans shall be suspended (to the extent of the affected Eurodollar Loans or Interest Periods) and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Disbursing Agent, upon the instruction of the Required Lenders, revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Loans (to the extent of the affected Eurodollar Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for Base Rate Loans in the amount specified therein.

(b) Effect of Benchmark Transition Event.

(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (A) if a Benchmark Replacement is determined in accordance with clause (a) or (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the first Business Day after the Rate Election Notice is provided to each of the other parties hereto.

(ii) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Required Lenders (in consultation with the Borrower) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that the Disbursing Agent shall not be bound to follow or agree to any amendment or supplement to this Agreement (including, without limitation, any Benchmark Replacement Conforming Changes) that would increase or materially change or affect the duties, obligations or liabilities of the Disbursing Agent (including without limitation the imposition or expansion of discretionary authority), or reduce, eliminate, limit or otherwise change any right, privilege or protection of the Disbursing Agent, or would otherwise materially and adversely affect the Disbursing Agent, in each case in its reasonable judgment, without the Disbursing Agent’s express written consent.

(iii) Notices; Standards for Decisions and Determinations. The Required Lenders will promptly notify the Borrower, the Disbursing Agent and the Lenders of (A) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.13(b)(iv) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Lenders pursuant to this Section 2.13(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.13(b). In the event that LIBOR or applicable Benchmark is not available on any determination date, then unless the Disbursing Agent is notified of a replacement Benchmark in accordance with the provisions of this Agreement within two (2) Business Days, the Disbursing Agent shall use the interest rate in effect for the immediately prior Interest Period.

(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement) (A) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Required Lenders may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Required Lenders may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor, and the Required Lenders shall notify the Disbursing Agent of any such modification. In the event that the applicable Benchmark is not available on any determination date, then unless the Disbursing Agent is notified of a replacement Benchmark in accordance with the provisions of this Agreement within two (2) Business Days, the Disbursing Agent shall use the interest rate in effect for the immediately prior Interest Period.

(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice from the Required Lenders of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

Section 2.14 Payments Generally.

(a) General. All payments to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. All payments by the Borrower hereunder shall be made to the Disbursing Agent, for the account of the respective Lenders to which such payment is owed, at the Payment Office, in Dollars and in immediately available funds prior to 1:00 p.m. on the date specified herein. Any payment made by the Borrower hereunder that is received by the Disbursing Agent after 1:00 p.m. on any Business Day shall be deemed to have been received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. The Disbursing Agent shall distribute such payments to the Lenders by wire transfer promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

(b) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 9.05(c) are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 9.05(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Section 9.05(c).

(c) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

(d) Insufficient Funds. Subject to Section 7.03, if at any time insufficient funds are received by and available to the Disbursing Agent to pay fully all amounts of principal, interest, Prepayment Premium and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and Prepayment Premium then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Prepayment Premium then due to such parties.

Section 2.15 Increased Costs; Capital Adequacy.

(a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate);

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, Loan principal, Commitments or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such other Recipient of participating in, issuing or maintaining any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon the request of such Lender or other Recipient, the Borrower will promptly pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(b) If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’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 capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time after submission by such Lender to the Borrower (with a copy to the Disbursing Agent) of a written request therefor the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered on an after-tax basis.

(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.15(a) or Section 2.15(b) and delivered to the Borrower (with a copy to the Disbursing Agent), shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.15 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’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).

(e) The obligations of the Borrower pursuant to this Section 2.15 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.16 Taxes.

(a) Defined Terms. For purposes of this Section 2.16, the term “applicable law” includes FATCA.

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Disbursing Agent timely reimburse it for the payment of, any Other Taxes.

(d) Indemnification by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.16) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses (including reasonable fees and disbursements of counsel) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or Agent (with a copy to the Disbursing Agent), or by the Disbursing Agent on its own behalf or on behalf of a Lender or Agent, shall be conclusive absent manifest error.

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Disbursing Agent, within 30 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Disbursing Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Disbursing Agent in connection with any Loan Document, and any reasonable expenses (including reasonable fees and disbursements of counsel) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Disbursing Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Disbursing Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Disbursing Agent to the Lender from any other source against any amount due to the Disbursing Agent under this Section 2.16(e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.16, such Loan Party shall deliver to the Disbursing Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Disbursing Agent.

(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Disbursing Agent, at the time or times reasonably requested by the Borrower or the Disbursing Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Disbursing Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Disbursing Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Disbursing Agent as will enable the Borrower or the Disbursing Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.16(g)(ii)(A), Section 2.16(g)(ii)(B) and Section 2.16(g)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing,

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Disbursing Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Disbursing Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Disbursing Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Disbursing Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) executed copies of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W-9 and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Disbursing Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Disbursing Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Disbursing Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Disbursing Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Disbursing Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Disbursing Agent as may be necessary for the Borrower and the Disbursing Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(g)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Disbursing Agent in writing of its legal inability to do so.

(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.16 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.16(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.16(h) in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.16(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.16(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival. Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Disbursing Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 2.17 Breakage Payments. In the event of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment after the Borrower has given a notice thereof in accordance with the provisions of this Agreement (which notice has not been revoked in accordance with the provisions of this Agreement), (c) the making of a prepayment or conversion of Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto or (d) the assignment of any Eurodollar Loan on a day that is not the last day of an Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for Dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A certificate as to any amounts payable pursuant to this Section 2.17 submitted to the Borrower (with a copy to the Disbursing Agent) by any Lender shall be conclusive in the absence of manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within three Business Days after receipt thereof. This Section 2.17 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.18 Pro Rata Treatment.

(a) Each borrowing of Loans by the Borrower shall be allocated pro rata as among the Lenders in accordance with their respective Commitments.

(b) Each repayment by the Borrower in respect of principal or interest on the Loans and each payment in respect of Prepayment Premium, fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Lenders entitled thereto pro rata in accordance with the respective amounts then due and owing to such Lenders.

(c) The application of any payment of Loans shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans shall be accompanied by accrued interest to the date of such payment on the amount paid.

Section 2.19 Mitigation Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall (at the request of the Borrower) use reasonable efforts (subject to overall policy considerations of such Lender) to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or Section 2.16, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders. If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.19(a), or if any Lender is a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Disbursing Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.06), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or Section 2.16) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that any Non-Consenting Lender shall be deemed to have consented to the assignment and delegation of its interests, rights and obligations if it does not execute and deliver an Assignment and Assumption to the Disbursing Agent within one Business Day after having received a request therefor; provided, further, that:

(i) the Borrower shall have paid to the Disbursing Agent the assignment fee (if any) specified in Section 9.06;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.06(b) and Section 2.17) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable law; and

(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

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 Borrower to require such assignment and delegation cease to apply. This Section 2.19(b) shall only apply if there is a Lender other than the Closing Date Lender.

Article III
REPRESENTATIONS AND WARRANTIES

To induce the Agents and the Lenders to enter into this Agreement and to make the Loans, each of Holdings and the Borrower hereby jointly and severally represents and warrants to each Agent and each Lender on the Closing Date that:

Section 3.01 Existence, Qualification and Power. Each Group Member (a) is duly incorporated or organized, validly existing and, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to own or lease its assets and carry on its business as now conducted and (c) is duly qualified and licensed and, as applicable, in good standing under the laws of each jurisdiction where such qualification or license or, if applicable, good standing is required; except, in the case of clauses (b) and (c) above, where such failure could not reasonably be expected to have a Material Adverse Effect.

Section 3.02 Authorization; Enforceability. The execution, delivery, and performance by each Loan Party of this Agreement and the other Loan Documents to which it is a party are within such Loan Party’s powers and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party. This Agreement has been duly executed and delivered by each Loan Party party hereto and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.

Section 3.03 No Conflicts. The Transactions (i) do not require any consent, exemption, authorization or approval of, registration or filing with, or any other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect, (B) filings necessary to perfect or maintain the perfection or priority of the Liens created by the Security Documents and (C) consents, approvals, exemptions, authorizations, registrations, filings, permits or actions the failure of which to obtain or perform could not reasonably be expected to have a Material Adverse Effect, (ii) will not violate the Organizational Documents of any Group Member, (iii) will not violate or result in a default or require any consent or approval under any indenture, instrument, agreement, or other document binding upon any Group Member or its property or to which any Group Member or its property is subject, or give rise to a right thereunder to require any payment to be made by any Group Member, except for violations, defaults or the creation of such rights that could not reasonably be expected to have a Material Adverse Effect, (iv) will not violate any Requirement of Law that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect and (v) will not result in the creation or imposition of any Lien on any property of any Group Member, except Liens created by the Security Documents.

Section 3.04 Financial Statements; Projections; No Material Adverse Effect.

(a) The Borrower has heretofore delivered to the Agents and the Lenders (i) the Historical Audited Financial Statements, audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent public accountants, (ii) the consolidated and consolidating balance sheets of Holdings, the Borrower and their Subsidiaries and the related consolidated and consolidating statements of income or operations, changes in stockholders’ equity and cash flows as of and for the six-month period ended June 30, 2020 and for the comparable period of the preceding fiscal year and (iii) the consolidated and consolidating balance sheets of Holdings, the Borrower and their Subsidiaries and the related consolidated and consolidating statements of income or operations, changes in stockholders’ equity and cash flows with respect to the months ended July 31, 2020 and August 31, 2020, in each case, certified by the chief financial officer of Holdings. Such financial statements, and all financial statements delivered pursuant to Section 5.01(a), Section 5.01(b) and Section 5.01(c), have been prepared in accordance with GAAP consistently applied throughout the applicable period covered thereby and present fairly and accurately in all material respects the consolidated financial condition and results of operations and cash flows of Holdings as of the dates and for the periods to which they relate (subject to normal year-end audit adjustments and the absence of footnotes). Except as set forth in such financial statements, there are no material liabilities of Holdings, the Borrower or any of their Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability.

(b) The Borrower has heretofore delivered to the Lenders the unaudited pro forma consolidated balance sheet and statements of income and cash flows of Holdings for the fiscal year ended December 31, 2019, and as of and for the six-month period ended June 30, 2020, in each case after giving effect to the Transactions as if they had occurred on such date in the case of the balance sheet and as of the beginning of all periods presented in the case of the statements of income and cash flows (the “Pro Forma Financial Statements”). The Pro Forma Financial Statements (A) have been prepared in good faith by Holdings based upon (i) the assumptions stated therein (which assumptions are believed by it on the date of delivery thereof and on the Closing Date to be reasonable), (ii) accounting principles consistent with the Historical Audited Financial Statements delivered pursuant to Section 3.04(a) and (iii) the best information available to Holdings, the Borrower and their Subsidiaries as of the date of delivery thereof, (B) accurately reflect all adjustments required to be made to give effect to the Transactions, (C) have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) consistently applied throughout the applicable period covered thereby and (D) present fairly in all material respects the pro forma consolidated financial position and results of operations of Holdings as of such date and for such periods, assuming that the Transactions had occurred at such dates.

(c) The Borrower has heretofore delivered to the Lenders the forecasts of financial performance of Holdings, the Borrower and their Subsidiaries for the fiscal years ended December 31, 2020 through December 31, 2024 (the “Projections”). The Projections have been prepared in good faith by Holdings based upon (i) the assumptions stated therein (which assumptions are believed by the Loan Parties on the date of delivery thereof and on the Closing Date to be reasonable), (ii) accounting principles consistent with the Historical Audited Financial Statements delivered pursuant to Section 3.04(a) above consistently applied throughout the fiscal years covered thereby and (iii) the best information available to Holdings, the Borrower and their Subsidiaries as of the date of delivery and the Closing Date (it being recognized that such Projections are not to be viewed as facts and that no assurance can be given that any particular financial projections (including the Projections) will be realized, that actual results may differ significantly from projected results and that such Projections are not a guarantee of performance).

(d) Since December 31, 2019, there has been no event, change, circumstance, condition, development or occurrence that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 3.05 Intellectual Property.

(a) Each Group Member owns or is licensed to use, free and clear of all Liens (other than Permitted Liens), all Intellectual Property, necessary for the conduct of its business as currently conducted, except for those which the failure to own or license, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(b) No claim (limited to the Loan Parties’ knowledge in the case of any Intellectual Property referred to in Section 3.05(a) that is licensed to any Group Member) has been asserted and is pending by any person challenging or questioning the use of any such Intellectual Property referred to in Section 3.05(a) or the validity or effectiveness of any such Intellectual Property, nor does any Loan Party know of any valid basis for any such claim. The use of such Intellectual Property (limited to the Loan Parties’ knowledge in the case of any such Intellectual Property that is licensed to any Group Member) does not infringe the rights of any person, except for such claims and infringements which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except pursuant to licenses and other user agreements entered into by each Group Member in the ordinary course of business which, in the case of licenses and user agreements, are listed in Schedule 3.05, no Group Member has granted any license or other right to authorize or enable any other person to use any such Intellectual Property. Each Group Member has taken commercially reasonable actions to protect the secrecy, confidentiality and value of all material trade secrets used in such Group Member’s business.

(c) (i) To the Loan Parties’ knowledge, there is no violation by others of any right of any Group Member with respect to any Intellectual Property, other than such violations that, individually or in the aggregate, could not reasonably be expected to materially adversely affect the value or utility of the Intellectual Property or any portion thereof material to the use and operation of the Collateral, (ii) no Group Member is infringing upon or misappropriating any copyright, patent, trademark, trade secret or other intellectual property right of any other person, except where such infringement or misappropriation, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (iii) no Group Member is in breach of, or in default under, any license of Intellectual Property by any other person to such Group Member, except where such breach or default, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iv) no proceedings have been instituted or are pending against any Group Member or, to the knowledge of the Loan Parties, are threatened in writing, and no written claim against any Group Member has been received by any Group Member, alleging any such infringement or misappropriation, except to the extent that such proceedings or claims, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(d) Neither the execution, delivery or performance of this Agreement and the other Loan Documents, nor the consummation of the Transactions and the other transactions contemplated hereby and thereby, will alter, impair or otherwise affect or require the consent, approval or other authorization of any other person in respect of any right of any Group Member in any Intellectual Property, except to the extent that such alteration, impairment, affect, or requirement to obtain any such consent, approval or other authorization, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(e) No Group Member is subject to any settlement, covenant not to sue or other instrument, agreement or other document, or any outstanding order, which may materially affect the validity or enforceability or restrict in any manner such Group Member’s use, licensing or transfer of any of the Intellectual Property (limited to the Loan Parties’ knowledge in the case of any Intellectual Property that is licensed to any Group Member).

Section 3.06 Properties.

(a) Each Group Member has good and valid title to, or valid leasehold interests in, all its property material to its business, free and clear of all Liens and irregularities, deficiencies and defects in title, except for Permitted Liens and minor irregularities, deficiencies and defects in title that, individually or in the aggregate, do not, and could not reasonably be expected to, interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose.

(b) The property of the Group Members, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted) for the business and operations of the Group Members as presently conducted, and (ii) constitutes all the property which is required for the business and operations of the Group Members as presently conducted.

(c) As of the Closing Date, Schedule 3.06 contains a true, accurate and complete list of each ownership and leasehold interest in Real Property (i) owned by any Group Member and describes the type of interest therein held by such Group Member and (ii) leased, subleased or otherwise occupied or utilized by any Group Member, as lessee, sub-lessee, franchisee or licensee and describes the type of interest therein held by such Group Member and whether such lease, sublease or other instrument requires the consent of the landlord thereunder or other parties thereto to the Transactions.

(d) Each Group Member owns or has rights to use all of its property and all rights with respect to any of the foregoing which are required for the business and operations of the Group Members as presently conducted. The use by each Group Member of its property and all such rights with respect to the foregoing do not infringe on the rights or other interests of any person, other than any infringement that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No claim has been made and remains outstanding that any Group Member’s use of any of its property does or may violate the rights of any third party that, individually or in the aggregate, has had, or could reasonably be expected to result in, a Material Adverse Effect. The Real Property is zoned in all material respects to permit the uses for which such Real Property is currently being used. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the present uses of the Real Property and the current operations of each Group Member’s business do not violate any provision of any applicable building codes, subdivision regulations, fire regulations, health regulations or building and zoning by-laws.

(e) Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no pending or threatened condemnation or eminent domain proceeding with respect to, or that could affect, any of the Real Property of any Group Member.

(f) Each parcel of Real Property is taxed as a separate tax lot(s) and is currently being used in a manner that is consistent with and in compliance in all material respects with the property classification assigned to it for real estate tax assessment purposes.

(g) No Group Member is obligated under, or a party to, any option, right of first refusal or other contractual right to sell, assign or dispose of any Material Owned Real Property or any portion thereof or interest therein.

Section 3.07 Equity Interests and Subsidiaries. Schedule 3.07 sets forth (i) each Group Member and its jurisdiction of incorporation or organization as of the Closing Date and (ii) the number of each class of its Equity Interests authorized, and the number outstanding, on the Closing Date and the number of Equity Interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights on the Closing Date. All Equity Interests of each Group Member are duly and validly issued and are fully paid and non-assessable, and, other than the Equity Interests of Holdings, are owned by Holdings, directly or indirectly, through Wholly Owned Subsidiaries. All Equity Interests of the Borrower are owned directly by Holdings. Each Loan Party is the record, legal and beneficial owner of, and has good and valid title to, the Equity Interests pledged by (or purported to be pledged by) it under the Security Documents, free of any and all Liens, rights or claims of other persons (other than Permitted Equity Liens), and, as of the Closing Date, there are no outstanding warrants (other than the Warrants), options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such Equity Interests (or any economic or voting interests therein).

Section 3.08 Compliance with Laws and Contracts. Each Group Member:

(a) holds Permits necessary for the conduct of its business and is in compliance with all applicable laws relating thereto, except where the failure to do so would not have a Material Adverse Effect;

(b) is in compliance with all Requirements of Law except, in any case, where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect; and

(c) is not in violation of or in default under any agreement to which it is a party or by which its assets are subject or bound, except with respect to any violation or default that would not have a Material Adverse Effect.

Section 3.09 Litigation. There are no actions, suits, claims, disputes or proceedings at law or in equity by or before any Governmental Authority now pending or, to the best of the knowledge of Holdings, or the Borrower, threatened against or affecting any Group Member or any business, property or rights of any Group Member (i) that purport to affect or involve any Loan Document or any of the Transactions or (ii) that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Section 3.10 Investment Company Act. No Group Member is an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

Section 3.11 Federal Reserve Regulations.

(a) No Group Member is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock.

(b) No part of the proceeds of any Credit Extension will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for purchasing or carrying Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or for any other purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Board of Governors, including Regulation T, Regulation U or Regulation X.

Section 3.12 Taxes. Each Group Member has (a) filed or caused to be filed all material Tax returns that are required to be filed by it (or has filed timely extensions with respect to such Tax returns) and (b) paid or caused to be paid all material Taxes required to be paid by it, except Taxes that are being contested in good faith by appropriate proceedings and for which such Group Member has set aside on its books adequate reserves in accordance with GAAP. Each Group Member has made adequate provisions in accordance with GAAP for all Taxes not yet due and payable. No Group Member has knowledge of any proposed or pending Tax assessments, deficiencies, audits or other proceedings with respect to Taxes or Tax returns of such Group Member. No Group Member has ever “participated” in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4 for any period not closed by the applicable statutes of limitations. No Group Member is party to any tax sharing or similar agreement, other than any agreement entered into in the ordinary course of business that is not primarily related to Taxes to the extent tax sharing or similar provisions are typically included in that type of agreement. Each Group Member has withheld all material Taxes required to be withheld under any Requirement of Law.

Section 3.13 No Material Misstatements.

(a) The Borrower has disclosed to the Disbursing Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it, Holdings or any of their Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. At the time furnished, the reports, financial statements, certificates or other information furnished (other than the Projections, forecasts and other forward-looking information, budgets, estimates and information of a general economic or industry-specific nature) by or on behalf of any Loan Party to the Disbursing Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished) are complete and correct in all material respects and do not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(b) As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.

Section 3.14 Labor Matters.

(a) There are no strikes, lockouts, stoppages or slowdowns or other labor disputes affecting any Group Member pending or, to the knowledge of Holdings or the Borrower, threatened that have had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(b) The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Group Member is bound.

(c) All payments due from any Group Member, or for which any claim may be made against any Group Member, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Group Member except to the extent that the failure to do so has not had, and could not reasonably be expected to have, a Material Adverse Effect.

(d) The hours worked by and payments made to employees of any Group Member have not been in violation of the Fair Labor Standards Act of 1938, as amended, except to the extent that any such violation could not reasonably be expected to have a Material Adverse Effect.

Section 3.15 ERISA. Each Plan and, with respect to each Plan, each of Holdings, the Borrower and their respective ERISA Affiliates are in compliance in all material respects with the applicable provisions of ERISA and the Code. Each Plan which is intended to qualify under Section 401(a) of the Code can rely on a favorable determination letter from the IRS indicating that such Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter which would cause such Plan to lose its qualified status. No material liability to the PBGC (other than required premium payments), the IRS, any Plan (other than in the ordinary course) or any trust established under Title IV of ERISA has been or is expected to be incurred by Holdings, the Borrower or any of their respective ERISA Affiliates with respect to any Plan. No ERISA Event has occurred or is reasonably expected to occur. Except as provided on Schedule 3.15, the present value of all accrued benefit obligations under each Single Employer Plan (based on those assumptions used to fund such Single Employer Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Single Employer Plan allocable to such accrued benefit obligations by a material amount. Except as provided on Schedule 3.15, none of Holdings, the Borrower or any of their respective ERISA Affiliates contributes to, or has any liability with respect to, any Multiemployer Plan or has any contingent liability with respect to any post-retirement welfare benefit under a Plan that is subject to ERISA, other than liability for continuation coverage described in Part 6 of Title I of ERISA. None of Holdings, the Borrower or any of their respective ERISA Affiliates maintains or contributes to any employee benefit plan that is subject to the laws of any jurisdiction outside the United States of America.

Section 3.16 Environmental Matters. As of the Closing Date and except as set forth in Schedule 3.16 or other than exceptions to any of the following that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect:

(a) the Loan Parties are, and have been, in compliance with all applicable Environmental Laws including obtaining, maintaining and complying with all Environmental Permits required for their current operations or for any property owned, leased, or otherwise operated by any of them;

(b) Materials of Environmental Concern have not been Released at, on, under, in, or about any real property now or formerly owned, leased or operated by any Loan Party (including, without limitation, any location to which Materials of Environmental Concern have been sent for re-use, recycling, treatment, storage, or disposal);

(c) there are no pending or, to the knowledge of Holdings or the Borrower, threatened actions, suits, claims, disputes, or proceedings at law or in equity, administrative or judicial, by or before any Governmental Authority (including any notice of violation or alleged violation or seeking to revoke, cancel, or amend any Environmental Permit) under or relating to any Environmental Law or with respect to Materials of Environmental Concern to which any Group Member is, or to the knowledge of Holdings or the Borrower, will be, named as a party or affecting any Loan Party or any business, property or rights of any Loan Party;

(d) no Loan Party has received or, to the knowledge of the Loan Parties, been threatened with any written request for information, or currently has liability as a potentially responsible party, in either case, under or relating to the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or with respect to any Release of Materials of Environmental Concern;

(e) no real property currently owned, operated or leased by any Group Member is subject to any Lien imposed pursuant to Environmental Law and, to the knowledge of the Loan Parties, there are no existing facts, circumstances or conditions that would reasonably be expected to result in any such Lien attaching to any such property;

(f) no Loan Party has entered into or agreed to any consent decree, order, or settlement or other agreement, or is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum for dispute resolution, relating to compliance with Environmental Law or any Environmental Liability; and

(g) no Loan Party has assumed or retained, by contract or operation of law, any liability, under Environmental Law or with respect to Materials of Environmental Concern, of any kind, whether fixed or contingent, known or unknown.

Section 3.17 Insurance. Schedule 3.17 sets forth a true, complete and accurate description in reasonable detail of all insurance maintained by each Group Member as of the Closing Date. Each Group Member is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged. No Group Member has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers. As of the Closing Date, each insurance policy listed on Schedule 3.17 is in full force and effect and all premiums in respect thereof that are due and payable have been paid.

Section 3.18 Security Documents. The Guarantee and Collateral Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein and proceeds and products thereof. In the case of (i) Pledged Equity Interests represented by certificates, (x) when such certificates are delivered to the Collateral Agent and registered under the relevant stock ledgers registry book or (y) when financing statements in appropriate form are filed in the offices specified on Schedule 3.18, and (ii) the other Collateral described in the Guarantee and Collateral Agreement, when financing statements in appropriate form are filed in the offices specified on Schedule 3.18 and such other filings as are specified on Schedule 3 to the Guarantee and Collateral Agreement have been completed, the Lien created by the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds and products thereof, as security for the Secured Obligations (as defined in the Guarantee and Collateral Agreement), in each case, prior and superior in right to any other Person (except, with respect to priority only, Permitted Prior Liens and, in the case of collateral constituting Equity Interests, Permitted Equity Liens).

Section 3.19 Solvency. The Group Members, on a consolidated basis, both immediately before and immediately after the consummation of the Transactions to occur on the Closing Date, will be Solvent. No transfer of property has been or will be made by any Loan Party and no obligation has been or will be incurred by any Loan Party in connection with the Transactions with the intent to hinder, delay, or defraud either present or future creditors of any Loan Party.

Section 3.20 Anti-Money Laundering and Anti-Corruption.

(a) Each Loan Party, each Subsidiary, and each director, officer and employee of any Loan Party or an Affiliate of any Loan Party and, to the knowledge of such Loan Party or Affiliate, each agent of such Loan Party or Affiliate is in compliance with all applicable Anti-Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Loan Party or any Affiliate with respect to Anti-Money Laundering Laws is (or has ever been) pending and to such Loan Party’s knowledge, no such actions, suits or proceedings are threatened or contemplated.

(b) Each Loan Party has instituted and maintains policies and procedures designed to ensure continued compliance with all applicable Anti-Money Laundering Laws.

(c) Each Loan Party, each Subsidiary, and each director, officer and employee of any Loan Party or an Affiliate of any Loan Party and, to the knowledge of such Loan Party or Affiliate, each agent of such Loan Party or Affiliate has been during the last five years, and continues to be, in compliance with the applicable Anti-Corruption Laws. No part of the proceeds of the Loans will be used, directly or indirectly, for any payment to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the applicable Anti-Corruption Laws.

Section 3.21 International Trade Laws.

(a) Each of Holdings and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by Holdings, the Borrower, their Subsidiaries and their respective directors, officers, employees and agents with all applicable International Trade Laws. Each Group Member and each of their respective officers, directors, employees and, to the knowledge of the Borrower, each of the agents and representatives of each Group Member, is in compliance with International Trade Laws in all respects.

(b) None of the Loan Parties or any Subsidiary or any of their respective officers, directors or employees or, to the knowledge of the Borrower, the agents or representatives of any Loan Party have, within the past five years, (i) engaged in any activity or transaction, directly or indirectly, with or involving a Sanctioned Country or a Sanctioned Person (including but not limited to services provided by validators), or (ii) engaged in any activity or transaction otherwise prohibited by applicable International Trade Laws.

(c) None of the Loan Parties or any Subsidiary has or is engaged in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any International Trade Laws.

(d) None of the Loan Parties or any Subsidiary or their respective agents acting or benefiting in any capacity in connection with the Loans, the Transactions or the other transactions hereunder, is a Sanctioned Person or located in a Sanctioned Country.

Section 3.22 Use of Proceeds. The Borrower will use the proceeds of the Loans only for the purposes specified in the recitals to this Agreement. The Borrower will not, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Sanctioned Country or Sanctioned Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or (ii) in any other manner that would result in a violation of Anti-Corruption Laws, Anti-Money Laundering Laws or International Trade Laws by any Person (including any Person participating in the Loans, whether as an Agent, Lender, advisor, investor or otherwise).

Section 3.23 Brokers. No broker or finder brought about the obtaining, making or closing of the Loans or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.

Article IV
CONDITIONS PRECEDENT

Section 4.01 Conditions to Effectiveness. This Agreement shall become effective on the Signing Date upon the satisfaction (or waiver) of each of the following conditions precedent:

(a) Signing Date Loan Documents. The Disbursing Agent and the Lenders shall have received the following documents (the “Signing Date Loan Documents”):

(i) this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, each Agent and each Lender; and

(ii) the Fee Letter, executed and delivered by a duly authorized officer of the Borrower.

(b) Bank Regulatory Information.

(i) At least five Business Days prior to the Signing Date, the Agents and the Lenders shall have received all documentation and other information required by bank regulatory authorities or reasonably requested by any Agent or any Lender under or in respect of applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that was requested at least 10 Business Days prior to the Signing Date.

(ii) At least five Business Days prior to the Signing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification to the Agents and the Lenders.

(c) Permits and Consents. The Loan Parties shall have obtained all Permits and all consents of other Persons, in each case that are necessary to be obtained to authorize the Loan Parties to execute the Signing Date Loan Documents, and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Required Lenders.

(d) Representations and Warranties. Each of the representations and warranties set forth in Section 3.01, Section 3.02, Section 3.03, Section 3.20 and Section 3.21 made by any Loan Party shall be true and correct in all material respects on and as of the Signing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.

Section 4.02 Conditions to Loans. The obligation of each Lender to make the Loans requested to be made by it hereunder on the Closing Date is subject to the satisfaction (or waiver), prior to or concurrently with the making of such Credit Extension on the Closing Date, of each of the following conditions precedent:

(a) Loan Documents. (i) The Disbursing Agent and the Lenders shall have received (A) the schedules to this Agreement, which shall be satisfactory to the Lenders, (B) the Intercreditor Agreement and (C) each Security Document set forth on Schedule 4.02(a) (including delivery of any ancillary documents, entries, records, or special irrevocable powers of attorney as required thereunder), executed and delivered by a duly authorized officer of each party thereto and (ii) each Lender shall have received a Note, executed and delivered by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date.

(b) Pro Forma Financial Statements; Financial Statements. The Lenders shall have received the Pro Forma Financial Statements, the financial statements described in Section 3.04(a) and the Projections.

(c) Revolving Loan Documents. The Borrower shall have received no greater than $20,000,000 of total commitments under the Revolving Loan Agreement, of which no more than $10,000,000 shall be outstanding on the Closing Date. The Lenders shall have received true, correct and complete copies of the Revolving Loan Documents, all of which shall be in form and substance reasonably satisfactory to the Lenders.

(d) Repayment and Termination of Existing Indebtedness. The Disbursing Agent and the Lenders shall have received (i) evidence satisfactory to the Required Lenders that all Indebtedness under the Existing Credit Facility shall have been terminated and all amounts thereunder shall have been repaid in full and (ii) evidence that arrangements satisfactory to the Required Lenders shall have been made for the termination and release of guarantees, Liens and security interests granted in connection therewith in a form reasonably satisfactory to the Required Lenders.

(e) Personal Property Collateral. Each Loan Party shall have delivered to the Collateral Agent:

(i) a completed Perfection Certificate, dated as of the Closing Date, executed by a duly authorized officer of each Loan Party, together with all attachments contemplated thereby;

(ii) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including adoption of relevant corporate authorizations and any amendments to the articles of incorporation or other constitutional documents or agreements of such Loan Party pursuant to which any restrictions or inhibitions relating to the enforcement of any Lien created by the Security Documents are removed) and authorized, made or caused to be made any other filing and recording required under the Security Documents, and each UCC financing statement shall have been filed, registered or recorded or shall have been delivered to the Collateral Agent and shall be in proper form for filing, registration or recordation;

(iii) (1) the certificates and/or stock ledgers registry entries representing the shares of certificated Equity Interests pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power or other instrument of transfer for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, (2) an acknowledgement and consent, substantially in the form of Annex A to the Guarantee and Collateral Agreement, duly executed by any issuer of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement that is not itself a party to the Guarantee and Collateral Agreement, (3) each promissory note pledged (endosado en garantía) pursuant to the Guarantee and Collateral Agreement duly executed (without recourse) in blank (or accompanied by an undated instrument of transfer executed in blank and satisfactory to the Collateral Agent and the Required Lenders) by the pledgor thereof and (4) the Subordinated Intercompany Note executed by the parties thereto accompanied by an undated instrument of transfer duly executed in blank and satisfactory to the Collateral Agent and the Required Lenders; and

(iv) Lien Waiver Agreements with respect to the Borrower’s headquarters, the Johnstown Facility and the Mexico Facility.

(f) Fees and Expenses. The Lenders and the Agents shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least one Business Day prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including reasonable and documented fees, disbursements and other charges of counsel) required to be reimbursed or paid under any Loan Document for which invoices have been presented on or prior to the Closing Date.

(g) Solvency Certificate. The Lenders shall have received a solvency certificate (a “Solvency Certificate”) substantially in the form attached hereto as Exhibit G, dated the Closing Date and signed by the chief financial officer, chief accounting officer or other officer with equivalent duties of Holdings acceptable to the Required Lenders.

(h) Searches. The Lenders shall have received the results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices (including, without limitation, in the United States Patent and Trademark Office and the United States Copyright Office) in which UCC financing statement or other filings or recordations should be made to evidence or perfect security interests in all assets of the Loan Parties (or would have been made at any time during the five years immediately preceding the Closing Date to evidence or perfect Liens on any assets of the Loan Parties) (including the search and certificate issued by the Sole Registry of Liens over Movable Assets of the Ministry of Economy (Registro Único de Garantías Mobiliarias de la Secretaria de Economía) applicable under Mexican law), and such search shall reveal no Liens or judgments on any of the assets of the Loan Parties, except for Permitted Liens or Liens and judgments to be terminated on the Closing Date pursuant to documentation satisfactory to the Required Lenders.

(i) Closing Certificate. The Disbursing Agent and the Lenders shall have received a certificate of Holdings, dated the Closing Date, confirming satisfaction of the conditions set forth in Section 4.02(l), Section 4.02(m), Section 4.02(n) and Section 4.02(t).

(j) Secretary’s Certificates. The Disbursing Agent and the Lenders shall have received with respect to the Borrower and each other Loan Party:

(i) copies of the Organizational Documents of such Loan Party (including each amendment thereto) certified as of a date reasonably near the Closing Date as being a true and complete copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized;

(ii) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the Organizational Documents of such Loan Party as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of such Loan Party (and, if applicable, any parent company of such Loan Party) approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation, formation or organization, as applicable, of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iv) below and (D) as to the incumbency and specimen signature of each Person authorized to execute any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party;

(iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (ii) above; and

(iv) a copy of the long-form (if available) a certificate of good standing (or, as applicable, the electronic commercial folio (folio mercantil electrónico) issued by the relevant Public Registry of Commerce (Registro Público de Comercio) under Mexican law) of such Loan Party from the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized (dated as of a date reasonably near the Closing Date).

(k) Legal Opinions. The Agents and the Lenders shall have received the following executed legal opinions:

(i) the legal opinion of Winston & Strawn LLP, special counsel to the Loan Parties; and

(ii) the legal opinion of local counsel in each jurisdiction in which a Loan Party is organized, to the extent such Loan Party is not covered by the opinion referenced in Section 4.02(k)(i), as may be required by the Required Lenders.

Each such legal opinion shall (a) be dated as of the Closing Date, (b) be addressed to the Agents and the Lenders and (c) cover such matters relating to the Loan Documents and the Transactions as the Required Lenders may reasonably require. Each Loan Party hereby instructs such counsel to deliver such opinions to the Agents and the Lenders.

(l) No Material Adverse Effect. Since December 31, 2019, no Material Adverse Effect shall have occurred.

(m) Representations and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.

(n) No Default. No Default or Event of Default shall exist or would result from such Credit Extension or from the application of the proceeds thereof.

(o) Borrowing Notice. The Disbursing Agent shall have received a fully executed and delivered Borrowing Notice in accordance with the requirements hereof.

(p) Insurance. The Lenders shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.06 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgage endorsement (as applicable) and shall name the Collateral Agent, on behalf of the Secured Parties, as additional insured or loss payee, as applicable, in form and substance reasonably satisfactory to the Required Lenders and the Collateral Agent.

(q) Letter of Direction. The Disbursing Agent and the Lenders shall have received a funds flow memorandum and duly executed letter of direction from the Borrower (which may be included as part of the Borrowing Notice) addressed to the Disbursing Agent, on behalf of itself and the Lenders, directing the disbursement on the Closing Date of the proceeds of the Loans made on such date.

(r) Warrants. The Lenders and/or their Affiliates shall have received warrants issued by Holdings in form and substance satisfactory to the Lenders to purchase 23.0% of the Common Stock Deemed Outstanding on the date of any partial or full exercise of the warrants at the agreed purchase price (the “Warrants”).

(s) No Litigation. There shall not exist any action, suit, investigation, litigation, proceeding, injunction, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that individually or in the aggregate materially impairs the Transactions, the financing thereof or any of the other transactions contemplated by the Loan Documents.

(t) Minimum Liquidity. Liquidity shall be at least $15,000,000.

(u) Permits and Consents. The Loan Parties shall have obtained (i) AAR M-1003 certification for the Mexico Facility (or other written confirmation from the AAR in form and substance reasonably satisfactory to the Required Lenders that the Loan Parties are authorized to ship rail cars from the Mexico Facility); provided that if the Loan Parties shall not have obtained AAR M-1003 certification, they shall obtain it within the timeframe set forth in Schedule 5.14; and (ii) all Permits and all consents of other Persons, in each case that are necessary in connection with the financing contemplated by the Loan Documents and the issuance of the Warrants (including any such Permits or consents that may be required under Mexican law in connection with the granting, securing and pledging of the Loan Parties’ respective rights under the Mexican Security Documents) and to maintain the benefit of Material Agreements and leases, and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Required Lenders.

(v) Shoals Facility Lease Termination. The Lenders shall have received a true, correct and complete copy of a fully-executed termination agreement with respect to the Shoals Facility Lease Termination.

(w) Mexico JV Acquisition. The Mexico JV Acquisition shall have been consummated, or substantially simultaneously with the making of the Loans hereunder shall be consummated, in accordance with the Mexico JV Acquisition Agreement.

(x) No Market Events. No material disruption of the loan, banking or capital markets which, in the Required Lenders’ reasonable opinion, adversely impacts in any material respect the availability of credit generally shall have occurred since the Signing Date.

Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date, shall be deemed to have consented to, approved or accepted or to be satisfied with, each Loan Document and each other document required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender.

Article V
AFFIRMATIVE COVENANTS

Each of Holdings and the Borrower hereby jointly and severally agrees that, on and after the Closing Date until Payment in Full, each of Holdings and the Borrower shall, and shall (except in the case of the covenants set forth in Section 5.01, Section 5.02 and Section 5.03) cause each of its Subsidiaries (other than any Railcar Leasing Subsidiary) to:

Section 5.01 Financial Statements. Deliver to each Lender, in form and detail reasonably satisfactory to the Required Lenders:

(a) as soon as available, but in any event within 90 days after the end of each fiscal year of Holdings (commencing with the fiscal year ended December 31, 2020), a copy of the consolidated balance sheet of Holdings, the Borrower and their Subsidiaries as at the end of such fiscal year and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of Deloitte & Touche LLP or any other independent certified public accounting firm of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

(b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings (commencing with the fiscal quarter ended September 30, 2020), a copy of the consolidated balance sheet of Holdings, the Borrower and their Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal quarter and the portion of the fiscal year through the end of such fiscal quarter, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Holdings, the Borrower and their Subsidiaries in accordance with GAAP (subject only to normal year-end audit adjustments and the absence of footnotes); and

(c) as soon as available, but in any event within 30 days after the end of each of the first two months of each fiscal quarter of Holdings, a copy of the consolidated balance sheet of Holdings, the Borrower and their Subsidiaries as of the end of such month and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such month and for the portion of the fiscal year through the end of such month, setting forth in each case in comparative form the figures for the corresponding month of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings; and

(d) as soon as available, and in any event within 30 days after the end of each fiscal year of Holdings, a budget in form reasonably satisfactory to the Required Lenders (including budgeted statements of income for each of Holdings’, the Borrower’s and their Subsidiaries’ business units and sources and uses of cash and balance sheets) prepared by Holdings for (i) each fiscal quarter of such fiscal year prepared in detail and (ii) each fiscal quarter in the five years immediately following such fiscal year prepared in summary form, in each case, of Holdings, the Borrower and their Subsidiaries, with appropriate presentation and discussion in reasonable detail of the principal assumptions upon which such budget is based, accompanied by a certificate of a Responsible Officer certifying that such budget is a reasonable estimate for the period covered thereby.

Section 5.02 Certificates; Other Information. Deliver to the Disbursing Agent and each Lender, in form and detail reasonably satisfactory to the Required Lenders:

(a) [reserved];

(b) (i) concurrently with the delivery of the financial statements pursuant to Section 5.01(a), Section 5.01(b) and, commencing on December 31, 2020, Section 5.01(c), a duly completed Compliance Certificate containing all information and calculations necessary for determining compliance by Holdings, the Borrower and their Subsidiaries with the provisions of this Agreement referred to therein as of the last day of the month, fiscal quarter or fiscal year of Holdings, as the case may be and (ii) concurrently with the delivery of the financial statements pursuant to Section 5.01(a) and Section 5.01(b), a copy of management’s discussion and analysis of the financial condition and results of operations of Holdings, the Borrower and their Subsidiaries for such fiscal quarter or fiscal year, as compared to the previous fiscal quarter or fiscal year, as applicable, and the portion of the projections covering such periods (including commentary on (x) any material developments or proposals affecting Holdings, the Borrower and their Subsidiaries or their businesses and (y) the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous fiscal year);

(c) promptly after any request by the Required Lenders, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Holdings, the Borrower or any of their Subsidiaries by independent accountants in connection with the accounts or books of Holdings, the Borrower or any of their Subsidiaries or any audit of any of them;

(d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Holdings, and copies of all annual, regular, periodic and special reports and registration statements which Holdings may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Lenders pursuant hereto;

(e) promptly after the same are available, copies of any borrowing base certificates delivered under the Revolving Loan Agreement;

(f) [reserved];

(g) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of Holdings, the Borrower or any of their Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 5.01 or any other clause of this Section 5.02;

(h) as soon as available, but in any event within 30 days after the end of each fiscal year of Holdings, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for Holdings, the Borrower and their Subsidiaries and containing such additional information as the Required Lenders may reasonably specify;

(i) promptly, and in any event within five Business Days after receipt thereof by Holdings, the Borrower or any of their Subsidiaries, copies of each notice or other correspondence received from the SEC (or any comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Loan Party or such Subsidiary;

(j) promptly, and in any event within five Business Days after receipt thereof by Holdings, the Borrower or any of their Subsidiaries, copies of all notices, requests and other documents (including amendments, waivers and other modifications) received under or pursuant to any instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any other event that could materially impair the value of the interests or the rights of Holdings, the Borrower or any of their Subsidiaries and, from time to time upon request by the Required Lenders, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Required Lenders may reasonably request;

(k) as soon as available, but in any event within 30 days after the end of each fiscal year of the Borrower, an updated Perfection Certificate reflecting all changes since the date of the information most recently received by the Lenders pursuant to the Perfection Certificate delivered on the Closing Date or this paragraph (k), as the case may be; and

(l) promptly, (i) such additional information regarding the business, financial, legal or corporate affairs of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of the Loan Documents, as the Disbursing Agent or any Lender may from time to time reasonably request and (ii) information and documentation reasonably requested by the Disbursing Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws.

Documents required to be delivered pursuant to Section 5.01(a), Section 5.01(b) or Section 5.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings or Borrower posts such documents, or provides a link thereto on Holdings’ website; or (ii) on which such documents are posted on Holdings’ or Borrower’s behalf on IntraLinks/IntraAgency or another relevant website to which each Lender has access; provided that: (i) Holdings and Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Agents or such Lender and (ii) the Borrower shall notify the Agents and the Lenders of the posting of any such documents. The Agents shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Holdings or Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

Section 5.03 Notices. Promptly give written notice to the Disbursing Agent, the Collateral Agent and each Lender of:

(a) the occurrence of any Default or Event of Default;

(b) any development or event that has had, or could reasonably be expected to have, a Material Adverse Effect, including without limitation (i) any breach or non-performance of, or any default under, a Contractual Obligation of Holdings, the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between Holdings, the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting Holdings, the Borrower or any Subsidiary;

(c) the occurrence of any of the following events, as soon as possible and in any event within 30 days after any Group Member knows or has reason to know thereof: (i) any ERISA Event, (ii) the adoption of any new Single Employer Plan by any Group Member or any of their respective ERISA Affiliates, (iii) the adoption of an amendment to a Single Employer Plan if such amendment results in a material increase in benefits or unfunded liabilities or (iv) the commencement of contributions by any Group Member or any of their respective ERISA Affiliates to a Multiemployer Plan or Single Employer Plan other than any Single Employer Plan in existence as of the Closing Date, which, in the case of each of the foregoing clauses (i) through (iv), shall specify the nature thereof, what action such Group Member or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the IRS, the Department of Labor or the PBGC with respect thereto;

(d) any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof;

(e) the (i) occurrence of any Disposition of Property or assets for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.07(a), (ii) occurrence of any sale of capital stock or other Equity Interests for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.07(c), (iii) incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.07(d), (iv) receipt of any Net Cash Proceeds of any Recovery Event for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.07(b) and (v) receipt of any Extraordinary Receipts for which the Borrowers are required to make a mandatory prepayment pursuant to Section 2.07(e);

(f) promptly after the assertion or occurrence thereof, notice of any action or proceeding against, or of any noncompliance by, Holdings, the Borrower or any of their Subsidiaries in respect of or with any Environmental Law or Environmental Permit that could (i) reasonably be expected to result in a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;

(g) the termination (other than in accordance with its terms) or amendment in any manner materially adverse to the interests of the Lenders of any Material Agreement; and

(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 in parts (c) or (d) of such certification.

Each notice pursuant to this Section 5.03 (other than Section 5.03(e)) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken or proposes to take with respect thereto. Each notice pursuant to Section 5.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

Section 5.04 Payment of Obligations. (a) Pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property, except, in each case, (i) to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, or (ii) if such failure to pay or discharge such obligations and liabilities would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (b) timely and accurately file all federal, state and other material Tax returns required to be filed.

Section 5.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization, except in a transaction permitted by Section 6.03 and Section 6.04; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

Section 5.06 Maintenance of Property. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.

Section 5.07 Maintenance of Insurance.

(a) Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or a similar business of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, and all such insurance shall (i) provide for not less than 30 days’ (10 days’ in the case of failure to pay premium) prior notice to the Collateral Agent of termination, lapse or cancellation of such insurance, (ii) name the Collateral Agent as loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance) and (iii) be reasonably satisfactory in all other respects to the Required Lenders.

(b) If any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect) or any successor act thereto, then the Borrower shall, or shall cause the applicable Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Disaster Protection Act and the National Flood Insurance Act of 1968 and (ii) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the Required Lenders.

Section 5.08 Books and Records; Inspection Rights.

(a) (i) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Holdings, the Borrower or such Subsidiary, as the case may be; and (ii) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Holding, the Borrower or such Subsidiary, as the case may be.

(b) Permit representatives and independent contractors of the Lenders to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours not more than once per year, upon reasonable advance notice to the Borrower; provided, however, that when an Event of Default exists any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours as often as may be desired and without advance notice.

Section 5.09 Compliance with Laws. Comply with all Requirements of Law and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such Requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

Section 5.10 Compliance with Environmental Laws; Preparation of Environmental Reports.

(a) (i) Comply, and cause all lessees and other Persons operating or occupying its properties to comply, with all applicable Environmental Laws and Environmental Permits; (ii) obtain and renew all Environmental Permits necessary for its operations and properties; (iii) conduct any investigation, study, sampling and testing, and undertake any cleanup, response or other corrective action necessary to address any Releases of Materials of Environmental Concern at, on, under or emanating from any property owned, leased or operated to the extent required by and in accordance with Environmental Laws, and as necessary to avoid any material restrictions on ownership, occupancy, use or transferability or any material impairment of the value of the impacted property and (iv) make an appropriate response to any investigation, notice, demand, claim, suit or other proceeding asserting Environmental Liability against Holdings, the Borrower or any of their Subsidiaries and discharge any obligations it may have to any Person thereunder, except in the case of each of clauses (i) through (iv), where the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided that none of Holdings, the Borrower or any of their Subsidiaries shall be required to undertake any such investigation, study, sampling, testing, cleanup, removal, remedial or other responsive action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

(b) At the reasonable request of the Required Lenders, based upon a reasonable belief that Holdings, the Borrower or any of their Subsidiaries is in material breach of its obligations under this Section 5.10 or at any other time if an Event of Default has occurred and is continuing provide to the Lenders within 60 Business Days after such request, at the expense of the Borrower, an environmental site assessment report for any properties owned, leased or operated by it described in such request, prepared by an environmental consulting firm reasonably acceptable to the Required Lenders, describing the Release and any response or other corrective action to address any Materials of Environmental Concern on such properties and the estimated cost thereof; without limiting the generality of the foregoing, if the Borrower has not provided such environmental site assessment report within the time referred to above, the Lenders may retain an environmental consulting firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that owns or leases any property described in such request to grant the Lenders, such firm and any agents or representatives thereof reasonable access, subject to the rights of tenants or necessary consent of landlords, to enter onto their respective properties to undertake such an assessment.

Section 5.11 Use of Proceeds. Use the proceeds of the Loans only for the purposes specified in the recitals to this Agreement. The Borrower will not request any Credit Extension, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Credit Extension (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto or (d) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock.

Section 5.12 Covenant to Guarantee Obligations and Give Security.

(a) Execute any and all further documents, financing statements, agreements and instruments, and take all further action (including filing Uniform Commercial Code and other financing statements, Mortgages and deeds of trust) that may be required under applicable Requirements of Law, or that the Required Lenders or the Collateral Agent may reasonably request, in order to effectuate the Transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Documents.

(b) In the event that (x) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Borrower or any other Loan Party or (y) any Subsidiary of the Borrower or any other Loan Party that previously was an Excluded Subsidiary ceases to be an Excluded Subsidiary, each of Holdings and the Borrower shall, and shall cause each other such Person to (a) within 30 days after such event (or such longer period of time reasonably acceptable to the Required Lenders), cause such Person referred to in clause (x) or (y), as applicable, to become a Guarantor and a Grantor under (and as defined in) the Guarantee and Collateral Agreement by executing and delivering to the Collateral Agent a counterpart agreement or supplement to the Guarantee and Collateral Agreement in accordance with its terms and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates necessary or as may be reasonably requested by the Collateral Agent or the Required Lenders in order to cause the Collateral Agent, for the benefit of the Secured Parties, to have a Lien on all assets of such Person (other than Excluded Assets), which Lien shall (other than with respect to assets constituting Excluded Perfection Assets) be perfected and shall be of first priority (subject to (i) in the case of all such assets constituting Equity Interests, Permitted Equity Liens and (ii) in the case of all such other assets, Permitted Liens) and shall deliver or cause to be delivered to the Collateral Agent, items as are similar to those described in Section 4.02(e), Section 4.02(h), Section 4.02(j) and Section 4.02(k) hereof, Section 5.14 hereof and Section 5 of the Guarantee and Collateral Agreement and, to the extent applicable, any additional Mexican Security Documents. With respect to each such Subsidiary of the Borrower or any other Loan Party, the Borrower shall, within 30 days of such event (or such longer period of time reasonably acceptable to the Required Lenders), send to the Lenders and the Collateral Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary (that is not an Excluded Subsidiary) of the Borrower or any other Loan Party or ceased to be an Excluded Subsidiary and (ii) all of the data required to be set forth in Schedule 3.18 with respect to all Subsidiaries of Holdings, and such written notice shall be deemed to supplement Schedule 3.18 for all purposes hereof. Notwithstanding anything to the contrary set forth herein, in no event shall this Section 5.12(b) require the granting of any Lien on any Excluded Assets or the perfection of any Lien on any Excluded Perfection Assets.

(c) In the event that (i) any Loan Party acquires any Material Owned Real Property, (ii) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Borrower or any other Loan Party and such Person owns any Material Owned Real Property at such time, (iii) any Subsidiary ceases to be an Excluded Subsidiary and such Subsidiary owns any Material Owned Real Property at such time or (iv) any Real Property of a Loan Party becomes Material Owned Real Property after the Closing Date, and such interest in such Material Owned Real Property has not otherwise been made subject to the Lien of the Security Documents in favor of Collateral Agent for the benefit of the Secured Parties, then each of Holdings and the Borrower shall, or shall cause such Subsidiary to, within 90 days of such event (or such longer period of time reasonably acceptable to the Required Lenders), take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages, documents, instruments, agreements and certificates with respect to each such Material Owned Real Property necessary or that the Required Lenders or the Collateral Agent shall reasonably request to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid first-priority security interest (subject to Permitted Prior Liens) in such Material Owned Real Property and shall deliver to the Collateral Agent title reports, surveys necessary to provide a Title Policy (defined below), ALTA mortgagee extended coverage title insurance policies or commitments therefor issued by one or more title companies (the “Title Company”) reasonably satisfactory to the Required Lenders with respect to each Mortgaged Property (each, a “Title Policy”), in amounts not less than 110% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first-priority Lien on the Mortgaged Property encumbered thereby, together with all endorsements reasonably requested by the Required Lenders, legal opinions, flood certificates, flood insurance (if required) and other items with respect to such Material Owned Real Property. In addition to the foregoing, the Borrower shall, at the request of the Collateral Agent or the Required Lenders, deliver, from time to time, to the Collateral Agent such appraisals as are required by law or regulation of any Material Owned Real Property with respect to which the Collateral Agent has been granted a Lien.

Section 5.13 Further Assurances. Promptly upon request by any Agent, or any Lender, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Disbursing Agent, the Collateral Agent or any Lender may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party.

Section 5.14 Post-Closing Undertakings. Within the time periods specified on Schedule 5.14 (or such later date to which the Required Lenders consent), comply with the provisions set forth in Schedule 5.14.

Article VI
NEGATIVE COVENANTS

Each of Holdings and the Borrower hereby jointly and severally agrees that, on and after the Closing Date until Payment in Full, each of Holdings and the Borrower shall not, and shall not permit any Subsidiary (other than any Railcar Leasing Subsidiary) to, directly or indirectly:

Section 6.01 Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:

(a) Indebtedness of any Loan Party created hereunder and under the other Loan Documents;

(b) unsecured Indebtedness of the Borrower owing to any Subsidiary, and of any Subsidiary owing to the Borrower or any other Subsidiary, to the extent constituting an Investment permitted by Section 6.06(c); provided that (i) any such Indebtedness owed to a Loan Party shall be evidenced by a promissory note that shall be pledged to the Collateral Agent in accordance with the terms of the Guarantee and Collateral Agreement and (ii) all such Indebtedness of any Loan Party owed to any Subsidiary that is not a Loan Party shall be subject to and evidenced by the Subordinated Intercompany Note;

(c) Indebtedness in respect of Capital Lease Obligations and Purchase Money Obligations financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary within 270 days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding;

(d) Indebtedness outstanding on the Closing Date and listed on Schedule 6.01 and any Permitted Refinancing Debt in respect thereof;

(e) Guarantee Obligations by Holdings, the Borrower or any Subsidiary in respect of any Indebtedness of the Borrower or any Subsidiary otherwise permitted to be incurred by the Borrower or such Subsidiary hereunder; provided that (A) no Guarantee Obligations in respect of any Junior Indebtedness shall be permitted unless the guaranteeing party shall have also provided a guarantee of the Obligations on the terms set forth in the Guarantee and Collateral Agreement and (B) if the Indebtedness being guaranteed is subordinated to the Obligations, such guarantee shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;

(f) Indebtedness in respect of Swap Contracts entered into in the ordinary course of business, and not for speculative purposes, to protect against (i) changes in interest rates or (ii) changes in commodity prices or foreign exchange rates; provided however, that the aggregate amount of all such Indebtedness under this clause (ii) at any one time outstanding shall not exceed $1,000,000;

(g) Indebtedness of the Borrower or any Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or such Subsidiary in the ordinary course of business against insufficient funds, so long as such Indebtedness is repaid within five Business Days;

(h) (i) Indebtedness of the Borrower or any Subsidiary in the form of earn-outs, indemnification, incentive, non-compete, consulting or other similar arrangements and other contingent obligations in respect of any Investments permitted by Section 6.06 (before any liability associated therewith becomes fixed) and (ii) Indebtedness incurred by the Borrower or any Subsidiary arising from agreements providing for indemnification related to sales of goods or adjustment of purchase price or similar obligations in any case incurred in connection with the Disposition of any business, assets or Subsidiary;

(i) Indebtedness of the Borrower or any Subsidiary in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments created or issued in the ordinary course of business in connection with workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof (or within such longer period as is permitted without interest or other charges under the benefit plan under which reimbursement is to be made);

(j) obligations in respect of performance, bid, customs, government, appeal and surety bonds, performance and completion guaranties and similar obligations provided by the Borrower or any Subsidiary, in each case in the ordinary course of business;

(k) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;

(l) (i) Indebtedness representing deferred compensation or stock-based compensation to employees of Holdings or any Subsidiary incurred in the ordinary course of business and (ii) Indebtedness consisting of obligations of Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred in connection with the Transactions and any Investment permitted hereunder;

(m) to the extent constituting Indebtedness, take-or-pay obligations contained in supply arrangements;

(n) the Revolving Loan Indebtedness (and any refinancing in respect of such Revolving Loan Indebtedness that is incurred in accordance with the terms of the Intercreditor Agreement);

(o) Indebtedness in connection with treasury management and commercial credit card, merchant card and purchase or procurement card services entered into in the ordinary course of business;

(p) additional Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount not to exceed $2,500,000 at any one time outstanding;

(q) unsecured Indebtedness in the form of the SBA PPP Loan the aggregate principal amount of which does not exceed $10,000,000 at any time;

(r) (i) Indebtedness and (ii) Guarantee Obligations or letters of credit, bank guaranties, surety bonds and similar instruments, in each case (x) incurred in the ordinary course of business in respect of obligations owed to suppliers, customers, franchisees, lessors, licensees or sublicensees or (y) otherwise constituting Investments permitted by Section 6.06(w);

(s) Indebtedness of the Mexican Subsidiaries under the Mexican ABL Credit Facility (and any refinancing in respect thereof); and

(t) all premium (if any), interest (including post-petition interest), fees, expenses, charges, amortization of original issue discount, interest paid in kind and additional or contingent interest on obligations described in Section 6.01(a) through Section 6.01(s) above.

Section 6.02 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, except for:

(a) Liens pursuant to any Loan Document;

(b) Liens in existence on the Closing Date and listed on Schedule 6.02, and any Lien granted as a replacement or substitute therefor; provided that any such replacement or substitute Lien (i) does not secure an aggregate amount of Indebtedness or other obligations, if any, greater than that secured on the Closing Date (minus the aggregate amount of any permanent repayments and prepayments thereof since the Closing Date but only to the extent that such repayments and prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or a portion of such Indebtedness) and (ii) does not encumber any Property other than the Property subject thereto on the Closing Date (plus improvements and accessions to such Property);

(c) Liens for Taxes not yet due or that are being contested in good faith by appropriate proceedings diligently conducted; provided that adequate reserves with respect thereto are maintained on the books of Holdings or the applicable Subsidiary, in conformity with GAAP;

(d) statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than 30 days (or, if more than 30 days overdue, that are unfiled and no other action has been taken to enforce such Lien) or that are being contested in good faith by appropriate proceedings diligently conducted; provided that adequate reserves with respect thereto are maintained on the books of Holdings or the applicable Subsidiary, in conformity with GAAP;

(e) (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for 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 Holdings, the Borrower or any of their Subsidiaries;

(f) deposits and other Liens to secure the performance of bids, trade contracts, governmental contracts and other similar contracts (other than Indebtedness for borrowed money), leases (other than Capital Leases), subleases, statutory obligations, surety, stay, judgment and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(g) encumbrances shown as exceptions in the title insurance policies insuring the Mortgages, easements, zoning restrictions, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not materially detract from the value, or materially interfere with the use, of the Property subject thereto or materially interfere with the ordinary conduct of the business of Holdings, the Borrower or any of their Subsidiaries, taken as a whole;

(h) Liens securing Indebtedness permitted under Section 6.01(c); provided that (i) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed, at the time of incurrence thereof, the lesser of the cost or fair market value of the Property secured by such Lien;

(i) Liens on insurance policies and proceeds thereof securing the financing of the premiums with respect thereto;

(j) any interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sublease, license or sublicense entered into by Holdings, the Borrower or any of their Subsidiaries in the ordinary course of its business and covering only the assets so leased or licensed;

(k) Liens on equipment arising from precautionary UCC financing statements regarding operating leases of equipment;

(l) (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure the payment of customs duties in connection with the importation of goods in the ordinary course of business and (ii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit permitted under Section 6.01 issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;

(m) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by Holdings, the Borrower and their Subsidiaries in the ordinary course of business permitted by this Agreement;

(n) Liens on cash or Cash Equivalents used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is permitted by this Agreement;

(o) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(p) (i) Liens that are contractual or common law rights of set-off relating to (A) the establishment of depository relations in the ordinary course of business with banks not given in connection with the issuance of Indebtedness or (B) pooled deposit or sweep accounts of Holdings, the Borrower and any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings, the Borrower and their Subsidiaries and (ii) other Liens securing cash management obligations (that do not constitute Indebtedness) in the ordinary course of business;

(q) Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC on items in the course of collection;

(r) Liens on Equity Interests in joint ventures securing obligations of such joint venture;

(s) judgment Liens in respect of judgments not constituting an Event of Default under Section 7.01(i);

(t) Liens on the assets of the Loan Parties (other than the Mexican Subsidiaries) created under the Revolving Loan Documents to secure the Revolving Loan Indebtedness, which are subject to the Intercreditor Agreement;

(u) Liens securing the Mexican ABL Credit Facility, which are subject to an intercreditor agreement in form and substance satisfactory to the Required Lenders and the Collateral Agent; provided, that such Liens only encumber inventory and related assets owned by the Mexican Subsidiaries and located in Mexico and other assets acceptable to the Required Lenders; and

(v) Liens not otherwise permitted by this Section 6.02 on assets not otherwise constituting Collateral so long as (i) the aggregate outstanding principal amount of the obligations secured thereby and (ii) the aggregate fair market value (determined, in the case of each such Lien, as of the date such Lien is incurred) of the assets subject thereto does not exceed $1,000,000 at any one time.

Section 6.03 Limitation on Fundamental Changes. Enter into any merger, acquisition, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its Property or business (whether now owned or hereafter acquired) or less than all of the Equity Interests of any Subsidiary (except to qualified directors if required by law), except that:

(a) so long as no Default or Event of Default exists or would result therefrom, any Subsidiary may be merged, amalgamated or consolidated with or into the Borrower or any Subsidiary Guarantor (provided that the Borrower or a Subsidiary Guarantor shall be the continuing or surviving corporation or simultaneously with such merger, amalgamation or consolidation, the continuing or surviving Person shall become a Subsidiary Guarantor and the Borrower shall comply with Section 5.12 in connection therewith);

(b) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party;

(c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Holdings, the Borrower or any Subsidiary Guarantor;

(d) any Subsidiary that is not a Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Subsidiary that is not a Loan Party;

(e) so long as no Default or Event of Default exists or would result therefrom, any Disposition permitted by Section 6.04 and any merger, amalgamation, consolidation, dissolution, liquidation, investment or Disposition the purpose of which is to effect a Disposition permitted by Section 6.04 may be consummated;

(f) Holdings, the Borrower and their Subsidiaries may consummate the Transactions as contemplated by, and in compliance with, the Loan Documents;

(g) Holdings, the Borrower and their Subsidiaries may consummate the Mexico JV Transaction as contemplated by, and in compliance with, the Mexico JV Acquisition Agreement; and

(h) any Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interest of the Borrower and the Subsidiaries and is not materially disadvantageous to the Lenders and (ii) if such Subsidiary is a Loan Party, any assets or business of such Subsidiary not otherwise disposed of or transferred in accordance with this Section 6.03 and Section 6.04 or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Loan Party after giving effect to such liquidation or dissolution.

Section 6.04 Limitation on Dispositions. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Person, except:

(a) Dispositions of surplus, obsolete or worn out Property and Property no longer used or useful in the conduct of the business of the Borrower or any Subsidiary in the ordinary course of business;

(b) the lapse, abandonment, cancellation or non-exclusive license of any immaterial Intellectual Property in the ordinary course of business;

(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h));

(e) any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;

(f) any Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;

(g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement;

(h) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;

(i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);

(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;

(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries;

(l) Dispositions of Cash Equivalents;

(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

(n) the unwinding of any Swap Contract in accordance with its terms;

(o) to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and

(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries.

To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing.

Section 6.05 Limitation on Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(a) the Borrower or any Subsidiary may make Restricted Payments to another Loan Party;

(b) the Borrower or any Subsidiary may make Restricted Payments to Holdings the proceeds of which will be used to pay the Tax Distribution Amount or any Parent Expenses;

(c) Holdings may declare and make Restricted Payments on any class of Equity Interests of Holdings payable solely in the form of Qualified Equity Interests of Holdings;

(d) the Borrower or any Subsidiary may make Restricted Payments to, directly or indirectly, purchase the Equity Interests of Holdings from present or former officers, directors, consultants, agents or employees (or their estates, trusts, family members or former spouses) of Holdings, the Borrower or any Subsidiary upon the death, disability, retirement or termination of the applicable officer, director, consultant, agent or employee; provided that the aggregate amount of payments under this Section 6.05(d) shall not exceed $1,000,000 in any calendar year; provided, further, that such amount in any calendar year may be increased by an amount not to exceed the sum of:

(i) the net cash proceeds received from key man life insurance policies received by Holdings or any Subsidiary; plus

(ii) to the extent contributed to the Borrower as common equity, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings to directors, consultants, officers or employees of Holdings, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements, to the extent the net cash proceeds from the sale of such Equity Interests have not otherwise been applied for another purpose; minus

(iii) the amount of any Restricted Payments previously made with the net cash proceeds described in the foregoing clauses (i) and (ii);

(e) non-cash repurchases of Equity Interests of Holdings deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of such options or warrants or similar equity incentive awards;

(f) the Borrower or any Subsidiary may make Restricted Payments to consummate the Transactions;

(g) the Borrower may make Restricted Payments to allow Holdings to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of any such Person;

(h) to the extent constituting Restricted Payments, the Borrower or any Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 6.03, Section 6.04 (other than Section 6.04(o)) and Section 6.08 (other than Section 6.08(b));

(i) to the extent constituting Restricted Payments, the Borrower may make Investments permitted by Section 6.06(v);

(j) to the extent constituting Restricted Payments, the Borrower may make (i) payments to the Mexico Facility Landlord in accordance with the Mexico Facility Lease, including any security deposits required thereby, and (ii) payments, including royalty payments, made to the Gil Family in connection with the Mexico JV Transaction;

(k) any non-Wholly Owned Subsidiary may declare and pay cash dividends to its equity holders generally so long as Holdings, the Borrower or the applicable Subsidiary which owns the Equity Interests in the Subsidiary paying such dividend receives at least its proportional share thereof (based upon its relative holding of the class of Equity Interests in the Subsidiary paying such dividends); and

(l) Holdings may issue the Warrants on the Closing Date in accordance with Section 4.02(r).

Any loan or advance made by the Borrower to Holdings pursuant to Section 6.06(s) shall be in lieu of, and shall correspondingly reduce, the amount of the applicable Restricted Payment that the Borrower would otherwise have been permitted to make pursuant to the applicable clause of this Section 6.05.

Section 6.06 Limitation on Investments. Make or hold, directly or indirectly, any Investments, except:

(a) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;

(b) Investments by Holdings, the Borrower or any of their Subsidiaries in cash and Cash Equivalents and Investments in assets that were Cash Equivalents when such Investment was made;

(c) Investments by Holdings or any of the Subsidiaries in the Borrower or any of the Subsidiaries; provided that (x) any Investment made by any Subsidiary that is not a Loan Party in any Loan Party pursuant to this Section 6.06(c) shall be subordinated in right of payment to the Loans pursuant to the Subordinated Intercompany Note and (y) the aggregate amount of such Investments in Subsidiaries that are not Loan Parties shall not exceed $1,000,000 at any one time outstanding;

(d) guarantees by Holdings or any of its Subsidiaries of leases (other than Capital Leases) or of other obligations of the Borrower or any of the Subsidiaries that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

(e) loans or advances to officers, directors, managers and employees of Holdings or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of Equity Interests of Holdings directly from such issuing entity (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity) and (iii) for any other purpose not described in the foregoing clauses (i) and (ii); provided that the aggregate principal amount of all loans and advances outstanding at any time under this Section 6.06(e) shall not exceed $500,000;

(f) Investments to the extent that payment for such Investments is made solely with Equity Interests (other than Disqualified Equity Interests) of Holdings;

(g) Investments by the Borrower or any of the Subsidiaries in joint ventures or similar arrangements in an aggregate amount at any one time outstanding not to exceed $1,000,000 (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

(h) Investments (including debt obligations and Equity Interests) received in the ordinary course of business by the Borrower or any Subsidiary in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, suppliers and customers arising out of the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

(i) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party;

(j) Investments (i) existing or contemplated pursuant to legally binding written commitments on the Closing Date and set forth on Schedule 6.06 and any modification, replacement, renewal or extension thereof and (ii) existing on the Closing Date by Holdings or any Subsidiary in the Borrower or any other Subsidiary and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such original Investment as set forth on Schedule 6.06 or as otherwise permitted by this Section 6.06;

(k) Investments in Swap Contracts permitted under Section 6.01(f);

(l) Investments arising as a result of payments permitted by Section 6.07(a);

(m) consummation of the Transactions pursuant to and in accordance with the Loan Documents;

(n) Investments arising directly out of the receipt by the Borrower or any Subsidiary of non-cash consideration for any sale of assets permitted under Section 6.04; provided that, in the case of any sale made in reliance on Section 6.04(f), such non-cash consideration shall in no event exceed 25% of the total consideration received for such sale;

(o) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other persons;

(p) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;

(q) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property, in each case in the ordinary course of business;

(r) advances of payroll payments to employees in the ordinary course of business;

(s) loans or advances by the Borrower to Holdings in an aggregate amount not to exceed the amount of Restricted Payments permitted to be made to Holdings in accordance with Section 6.05;

(t) so long as no Event of Default shall have occurred and be continuing or would result therefrom, additional Investments in an aggregate amount at any one time outstanding not to exceed $3,000,000; provided that no Investment may be made pursuant to this Section 6.06(t) in any Subsidiary for the purpose of making a Restricted Payment prohibited pursuant to Section 6.05;

(u) Investments in FreightCar (Shanghai) Trading Co., Ltd. to fund operations and overhead expenses in an aggregate amount not to exceed $500,000 in any fiscal year;

(v) [reserved];

(w) Investments (i) funded solely with deposits from customers or (ii) funded partially with deposits from customers; provided, that any portion of such Investment not funded by customer deposits shall be required to be permitted under another clause of this Section 6.06;

(x) to the extent constituting Investments, guarantee obligations of the Borrower or any Subsidiary of leases (other than Capital Lease Obligations), customer contracts or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business.

Section 6.07 Limitation on Prepayments; Modifications of Debt Instruments, Certain Material Agreements and Organizational Documents.

(a) Make or offer to make (or give any notice in respect thereof) any payment, prepayment, repurchase or redemption of, or voluntarily or optionally defease, or otherwise satisfy prior to the scheduled maturity thereof in any manner, any Junior Indebtedness, or segregate funds for any such payment, prepayment, repurchase, redemption or defeasance, except:

(i) any Permitted Refinancing Debt in respect thereof; and

(ii) the Borrower or any Subsidiary may convert any Junior Indebtedness to Qualified Equity Interests of Holdings;

(b) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, (i) any of the terms of the Revolving Loan Documents other than in accordance with the Intercreditor Agreement or (ii) any of the terms of any Junior Indebtedness or any Scheduled Material Agreement, other than any such amendment, modification, waiver, change or consent which is not, and could not reasonably be expected to be, adverse in any material respect to the interests of the Lenders; or

(c) amend, restate, supplement or otherwise modify any of its Organizational Documents or any agreement to which it is a party with respect to its Equity Interests (including any stockholders’ agreement), or enter into any new agreement with respect to its Equity Interests, other than any such amendments, modifications or changes or such new agreements which are not, and could not reasonably be expected to be, adverse in any material respect to the interests of the Lenders.

Section 6.08 Limitation on Transactions with Affiliates.

Enter into, directly or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of Holdings, the Borrower or any Subsidiary (other than between or among Loan Parties), unless such transaction is (i) otherwise not prohibited under this Agreement and (ii) upon fair and reasonable terms no less favorable to Holdings, the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate, except that the following shall be permitted:

(a) the Transactions as contemplated by, and in accordance with, the Loan Documents;

(b) Restricted Payments permitted under Section 6.05 (other than Section 6.05(h));

(d) employment and severance arrangements between Holdings, the Borrower and their Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans, stock incentive plans and employee benefit plans and arrangements in the ordinary course of business;

(e) payment of reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the board of directors (or equivalent governing body) of Holdings, the Borrower or any Subsidiary, as applicable;

(f) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is an Affiliate solely as a result of Investments by Holdings, the Borrower or any Subsidiary in such joint venture) in the ordinary course of business to the extent otherwise permitted under Section 6.06;

(g) [reserved];

(h) payments to the Mexico Facility Landlord made pursuant to the Mexico Facility Lease, including any security deposits required thereby;

(i) payments, including royalty payments, made to the Gil Family in connection with the Mexico JV Transaction; and

(j) transactions pursuant to agreements, instruments or arrangements in existence on the Closing Date and set forth in Schedule 6.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect.

For the avoidance of doubt, this Section 6.08 shall not apply to employment, bonus, retention and severance arrangements with, and payments of compensation or benefits to or for the benefit of, current or former employees, consultants, officers or directors of the Group Members in the ordinary course of business. For purposes of this Section 6.08, any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in clause (ii) of the first sentence of this Section 6.08 if such transaction is approved by a majority of the Disinterested Directors of the board of directors (or equivalent governing body) of Holdings, the Borrower or such Subsidiary, as applicable. “Disinterested Director” shall mean, with respect to any Person and transaction, a member of the board of directors (or equivalent governing body) of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.

Section 6.09 Limitation on Sale and Leasebacks.

Enter into any arrangement, directly or indirectly, with any Person whereby it shall Dispose of any Property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such Property or other Property which it intends to use for substantially the same purpose or purposes as the Property being sold or transferred (any such transaction, a “Sale and Leaseback”), unless (i) the Disposition of such Property is entered into in the ordinary course of business and is made for cash consideration in an amount not less than the fair market value of such Property, (ii) the Disposition of such Property is permitted by Section 6.04 and is consummated within 10 Business Days after the date on which such Property is sold or transferred, (iii) any Liens arising in connection therewith are permitted under Section 6.02, and (iv) such Sale and Leaseback would be permitted under Section 6.01, assuming the Attributable Indebtedness with respect to such Sale and Leaseback constituted Indebtedness under Section 6.01.

Section 6.10 Limitation on Changes in Fiscal Periods.

Permit the fiscal year of Holdings to end on a day other than December 31 or change Holdings’ method of determining fiscal quarters.

Section 6.11 Limitation on Burdensome Agreements. Enter into or suffer to exist or become effective any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues, whether now owned or hereafter acquired, to secure the Obligations or (b) the ability of any Subsidiary to (i) make Restricted Payments in respect of any Equity Interests of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary, (ii) make loans or advances to, or other Investments in, Holdings, the Borrower or any other Subsidiary or (iii) transfer any of its properties to Holdings, the Borrower or any other Subsidiary, except for any such restrictions that:

(a) exist under this Agreement and the other Loan Documents;

(b) (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 6.11) are listed on Schedule 6.11 hereto and (y) to the extent restrictions permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any Permitted Refinancing Debt in respect thereof, so long as such restrictions are not (taken as a whole) materially less favorable to the Lenders than those in the original Indebtedness;

(c) are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary, so long as such restrictions were not entered into solely in contemplation of such Person becoming a Subsidiary;

(d) are customary restrictions and conditions contained in any agreement relating to any Disposition permitted by Section 6.04 pending the consummation of such Disposition; provided that such restrictions and conditions apply only to the property that is the subject of such Disposition and not to the proceeds to be received by the Group Members in connection with such Disposition;

(e) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 6.06 and applicable solely to such joint venture;

(f) are restrictions on Liens in favor of any holder of Indebtedness permitted under Section 6.01(c) (solely to the extent such restriction relates to assets the acquisition, construction, repair, replacement, lease or improvement of which was financed by such Indebtedness);

(g) are customary restrictions in leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate solely to the assets subject thereto;

(h) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any Subsidiary;

(i) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business;

(j) exist under the Revolving Loan Documents or the Mexican ABL Credit Facility; and

(k) are amendments, modifications, restatements, refinancings or renewals of the agreements, contracts or instruments referred to in Section 6.11(a) through Section 6.11(i) above; provided that such amendments, modifications, restatements, refinancings or renewals, taken as a whole, are not materially more restrictive with respect to such encumbrances and restrictions than those contained in such predecessor agreements, contracts or instruments.

Section 6.12 Limitation on Lines of Business. Enter into any material line of business, except for those lines of business in which Holdings, the Borrower and their Subsidiaries are engaged on the Closing Date or that are reasonably related thereto or are reasonable extensions thereof.

Section 6.13 Limitation on Activities of Holdings. In the case of Holdings, notwithstanding anything to the contrary in this Agreement or any other Loan Document:

(a) conduct, transact or otherwise engage in, or commit to conduct, transact or otherwise engage in, any business or operations or own any assets other than (i) its ownership of the Equity Interests of its Subsidiaries and activities incidental thereto and Investments by or in Holdings permitted hereunder and activities incidental thereto, (ii) activities incidental to the maintenance of its existence and compliance with applicable laws and legal, tax and accounting matters related thereto and activities relating to its employees, (iii) activities relating to the performance of obligations under the Loan Documents and the documentation governing other permitted Indebtedness to which it is a party, (iv) the making of Restricted Payments permitted to be made by Holdings pursuant to Section 6.05, (v) the receipt of Restricted Payments permitted to be made to Holdings under Section 6.05, (vi) activities related to the Transactions and in connection with the Loan Documents, (vii) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (viii) holding any other property received by it as a distribution from any of its Subsidiaries and making further distributions with such property, (ix) providing indemnification to officers, managers and directors, (x) holding director and shareholder meetings, preparing organizational records and other organizational activities required to maintain its separate organizational structure or to comply with Requirements of Law, (xi) filing tax reports and paying taxes and other customary obligations related thereto in the ordinary course (and contesting any taxes), (xii) entering into and performance of obligations with respect to contracts and other arrangements in connection with the activities contemplated by this Section 6.13, (xiii) the preparation of reports to any Governmental Authority and to its shareholders, (xiv) the performance of obligations under and compliance with its Organizational Documents, any demands or requests from or requirements of a Governmental Authority or any Requirement of Law, order, judgment, decree or permit, including as a result of or in connection with the activities of its Subsidiaries; (xv) any activities incidental to the foregoing or customary for passive holding companies, and (xvi) transactions pursuant to agreements, instruments or arrangements in existence on the Closing Date and set forth on Schedule 6.13; or

(b) incur, create, assume or suffer to exist any Indebtedness or other liabilities or financial obligations, except (i) the Obligations, (ii) Guarantee Obligations in respect of Indebtedness incurred under Section 6.01(d), (iii) Indebtedness specifically permitted to be incurred by Holdings under Section 6.01, (iv) obligations with respect to its Equity Interests, (v) non-consensual obligations imposed by operation of law, and (vi) obligations pursuant to agreements, instruments or arrangements in existence on the Closing Date and set forth on Schedule 6.13.

Section 6.14 Minimum Liquidity Covenant. Commencing on December 31, 2020, maintain as of the last day of each month, Liquidity of not less than $20,000,000.

Section 6.15 Limitation on Capital Expenditures. Make any Capital Expenditures of the Borrower or any Subsidiary in the ordinary course of business for any fiscal year of Holdings (or, for the fiscal year in which the Closing Date occurs, the period from the Closing Date to the end of such fiscal year) ending with the last day of any fiscal year set forth below to exceed the amount set forth below opposite such fiscal year of Holdings:

Fiscal Year	Capital Expenditures
From the Closing Date to December 31, 2020	$6,000,000
2021	$7,500,000
2022	$2,000,000
2023	$13,000,000
2024	$1,000,000
2025	$1,000,000

provided, however, that (a) up to 25% of any such amount specified above for any such fiscal year may be used in the immediately preceding fiscal year, in which case the amount specified above for such fiscal year shall be reduced by the amount used in the prior year, (b) any such amount specified above for any such fiscal year, if not expended in the fiscal year for which it is permitted, may be carried over for expenditure in the immediately following fiscal year and not in any subsequent fiscal year (the “Capital Expenditure Carryover Amount”), (c) any Capital Expenditures made in a particular fiscal year shall first be deemed to have been made with the portion of Capital Expenditures permitted for such fiscal year before the Capital Expenditure Carryover Amount is applied to such fiscal year, and (d) with respect to any unused amounts for the 2020 fiscal year, the Capital Expenditure Carryover Amount shall not exceed 50% of the unused amount for the 2020 fiscal year, and no portion of the Capital Expenditures amount with respect to the 2021 fiscal year may be added to the amount with respect to the 2020 fiscal year.

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Article VII
EVENTS OF DEFAULT AND REMEDIES

Section 7.01 Events of Default. On and after the Closing Date, each of the following events shall constitute an Event of Default:

(a) the Borrower or any other Loan Party shall fail to pay (i) any principal of any Loan or any Prepayment Premium with respect thereto when due in accordance with the terms hereof, whether at the due date thereof or at a fixed date for payment thereof or by acceleration thereof or otherwise or (ii) any interest on any Loan or any fee or other amount (other than an amount referred to in clause (i)) payable hereunder or under any other Loan Document within three Business Days after any such interest or other amount becomes due in accordance with the terms hereof or thereof; or

(b) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document or in any document or certificate delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

(c) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(a), Section 5.01(b), Section 5.03(a), Section 5.05(a) Section 5.11, or Article VI; or

(d) any Loan Party shall fail to observe or perform any other covenant, condition or agreement contained in this Agreement or any other Loan Document (other than as provided in Section 7.01(a), Section 7.01(b) or Section 7.01(c)), and such failure continues unremedied or unwaived for a period of 30 days after the earlier of (i) the date an officer of such Loan Party becomes aware of such default and (ii) receipt by the Borrower of notice from the Disbursing Agent or the Required Lenders of such default; or

(e) (i) any Loan Party shall (A) fail to pay any principal or interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable beyond any applicable grace period in respect thereof; or (B) fail to observe or perform any other term, covenant, agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holders or beneficiaries of such Material Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) to cause, with or without the giving of notice, the lapse of time or both, such Material Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined, or as such comparable term may be used and defined, in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any Loan Party is the “Defaulting Party” (as defined, or as such comparable term may be used and defined, in such Swap Contract) or (B) any “Termination Event” (as defined, or as such comparable term may be used and defined, in such Swap Contract) under such Swap Contract as to which any Loan Party is an Affected Party (as defined, or as such comparable term may be used and defined, in such Swap Contract) and, in either event, the Swap Termination Value owed by any Loan Party as a result thereof is greater than $5,000,000; or

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(f) (i) a court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any Loan Party under any Debtor Relief Laws now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged; or

(g) (i) any Loan Party shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party shall make any assignment for the benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7.01(f); or

(h) there occurs one or more ERISA Events which has resulted or could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or

(i) one or more judgments shall be rendered against any Loan Party and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $5,000,000 (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect; or

(j) at any time after the execution and delivery thereof, (i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement for any reason other than Payment in Full shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Security Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or Payment in Full) or shall be declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien on any material portion of the Collateral purported to be covered by the Security Documents with the priority required by the relevant Security Document, in each case, for any reason other than (x) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or (y) as a result of the Collateral Agent’s failure to maintain possession of any stock certificates or other instruments delivered to it under the Security Documents, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Loan Document to which it is a party or shall contest the validity or perfection of any Lien on any Collateral (other than, solely with respect to perfection, any Excluded Perfection Assets) purported to be covered by the Security Documents; or

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(k) any Change of Control shall occur; or

(l) there shall have occurred the termination of, or the receipt by any Loan Party of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Material Agreements of any Loan Party;

(m) any Junior Indebtedness or any guarantees thereof shall cease for any reason to be validly subordinated to the Obligations as provided in the documentation governing such Junior Indebtedness or any Loan Party shall contest the subordination of any Junior Indebtedness or any guarantees thereof; or

(n) at any time after the execution and delivery thereof, any Intercreditor Agreement shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared null and void; or

(o) there shall have occurred any changes in tariffs or trade conditions applicable to the Loan Parties’ products or businesses that could reasonably be expected to result in a Material Adverse Effect.

Section 7.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Disbursing Agent shall, at the request of, or may, with the consent of, the Required Lenders take any or all of the following actions:

(a) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable (including any Prepayment Premium which shall be due and payable as a result of the acceleration of such principal amounts within the time periods specified in Section 2.06(b)), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and

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(b) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or at law or in equity;

provided, however, that upon the occurrence of any Event of Default described in Section 7.01(f) or Section 7.01(g), the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid (including any Prepayment Premium which shall be due and payable as a result of the acceleration of such principal amounts within the time periods specified in Section 2.06(b)) shall automatically become due and payable without further act of the Disbursing Agent or any Lender.

Section 7.03 Application of Funds. Subject to the Intercreditor Agreement, after the exercise of remedies provided for in Section 7.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 7.02), any amounts received on account of the Obligations shall be applied by the Disbursing Agent or the Collateral Agent, as the case may be, in the following order:

first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Disbursing Agent and Collateral Agent) payable to the Disbursing Agent and the Collateral Agent in their capacities as such;

second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, Prepayment Premium and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause Second payable to them;

third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations arising under the Loan Documents, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth payable by them; and

last, the balance, if any, after Payment in Full, to the Borrower or as otherwise required by Requirements of Law.

Article VIII
THE DISBURSING AGENT AND THE COLLATERAL AGENT

Section 8.01 Appointment and Authority.

(a) Each Lender hereby designates and appoints U.S. Bank National Association to act as Disbursing Agent and Collateral Agent for such Lender under this Agreement and the other Loan Documents, and U.S. Bank National Association hereby accepts such appointment on the Closing Date subject to the terms hereof. Each Lender hereby irrevocably authorizes the Disbursing Agent and the Collateral Agent in such capacities, through their agents or employees, to take such actions on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to the Disbursing Agent and the Collateral Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Concurrently herewith, each Lender directs the Disbursing Agent and the Collateral Agent, and the Disbursing Agent and the Collateral Agent are authorized, to enter into this Agreement and the other Loan Documents and any other related agreements in the forms presented to such Agent. For the avoidance of doubt, each Lender agrees that it will be subject to and bound by the terms of this Agreement and the other Loan Documents. The provisions of this Section 8.01(a) are solely for the benefit of the Agents and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any such provisions (other than with respect to the Borrower’s consent rights under Section 8.06).

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(b) Each Lender agrees that in any instance in which this Agreement provides that an Agent’s consent may not be unreasonably withheld, provide for the exercise of an Agent’s reasonable discretion, or provides to a similar effect, it shall not in its instructions (or, by refusing to provide instruction) to such Agent withhold its consent or exercise its discretion in an unreasonable manner. It is expressly agreed and acknowledged that each Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Security Documents. No Agent shall have liability for any failure, inability or unwillingness on the part of any party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement or any other Loan Document, and shall have no liability for any inaccuracy or error in the performance or observance on any Agent’s part of any of its duties hereunder or under any other Loan Document that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.

(c) For purposes of clarity, and without limiting any rights, protections, immunities or indemnities afforded to either Agent hereunder (including without limitation this Section 8.01(c)), phrases such as “satisfactory to the [Disbursing] [Collateral] Agent,” “approved by the [Disbursing] [Collateral] Agent,” “acceptable to the [Disbursing] [Collateral] Agent,” “as determined by the [Disbursing] [Collateral] Agent,” “in the [Disbursing] [Collateral] Agent’s discretion,” “selected by the [Disbursing] [Collateral] Agent,” “elected by the [Disbursing] [Collateral] Agent,” “requested by the [Disbursing] [Collateral] Agent,” and phrases of similar import that authorize and permit an Agent to approve, disapprove, determine, act or decline to act in its discretion shall be subject to such Agent receiving written direction from the Lenders or Required Lenders, as applicable, to take such action or to exercise such rights. Nothing contained in this Agreement shall require any Agent to exercise any discretionary acts.

Section 8.02 Rights as a Lender. Any Person serving as the Disbursing Agent or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Disbursing Agent or the Collateral Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include any Person serving as the Disbursing Agent or the Collateral Agent hereunder in its capacity as a Lender. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any of its Subsidiaries or other Affiliate thereof as if such Person were not the Disbursing Agent or the Collateral Agent hereunder and without any duty to account therefor to the Lenders.

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Section 8.03 Exculpatory Provisions.

(a) Neither the Disbursing Agent nor the Collateral Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents to which it is a party, and no implied covenants, duties, obligations or liabilities shall be read into this Agreement or any other Loan Documents on the part of either Agent. The duties of the Disbursing Agent and the Collateral Agent hereunder and in each other Loan Document shall be administrative in nature. Without limiting the generality of the foregoing, the Disbursing Agent and the Collateral Agent:

(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(ii) except as to any matters not expressly provided for in this Agreement (including collection of any promissory notes) or any matter that would require the Disbursing Agent or the Collateral Agent to exercise any discretion hereunder or under any other Loan Document, shall not have any duty to take any discretionary action or exercise any discretionary powers, and shall not be required to exercise any discretion or take any action, but shall be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), and such instructions shall be binding; provided that neither the Disbursing Agent nor the Collateral Agent shall be required to take any action (i) unless it is furnished with an indemnification satisfactory to such Agent with respect thereto or (ii) that, in its opinion or the opinion of its counsel, may expose the Disbursing Agent or the Collateral Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law; and

(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as the Disbursing Agent or the Collateral Agent or any of its Affiliates in any capacity.

(b) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Disbursing Agent or the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided herein or under the other Loan Documents), or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a final judgment issued by a court of competent jurisdiction no longer subject to appeal). The Disbursing Agent and the Collateral Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to an officer of the Disbursing Agent and the Collateral Agent with direct responsibility for administration of this Agreement in writing by the Borrower or a Lender.

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(c) The Disbursing Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document.

(d) Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Disbursing Agent and the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Requirements of Law. Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

(e) Each party to this Agreement acknowledges and agrees that the Collateral Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to this Agreement or the other Loan Documents and the notification to the Collateral Agent, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of the Borrower. The Collateral Agent shall not be liable for any action taken or not taken by any such service provider.

(f) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including without limitation for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of any Lender to provide, written instruction to exercise such discretion or grant such consent from any such Lender, as applicable). Neither the Disbursing Agent nor the Collateral Agent shall be liable for any error of judgment made by it in good faith (or by any officer or other employee of such Agent) unless it shall be determined pursuant to a non-appealable judgment of a court of competent jurisdiction that such Agent was grossly negligent in ascertaining the relevant facts. Nothing herein or in any other Loan Document or related documents shall obligate any Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not indemnified to its satisfaction.

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(g) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any indirect, special, punitive or consequential damages (including but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. Any permissive grant of power to any Agent hereunder shall not be construed to be a duty to act. Before acting hereunder, the Disbursing Agent and the Collateral Agent shall be entitled to request, receive and rely upon such certificates and opinions as either of them may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action. In no event shall the Disbursing Agent or the Collateral Agent be responsible or liable for: (i) delays or failures in performance resulting from acts beyond its control, including but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters, the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, (ii) any delay, error omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. Neither the Disbursing Agent nor the Collateral Agent shall be liable for interest on any money received by it. For the avoidance of doubt, the Disbursing Agent’s and the Collateral Agent’s rights, protections, indemnities and immunities provided herein shall apply to such Agent for any actions taken or omitted to be taken under this Agreement or any other Loan Documents and any other related agreements in any of their respective capacities. The Disbursing Agent and the Collateral Agent shall not be required to take any action under this Agreement, the other Loan Documents or any related document if taking such action (A) would subject the Disbursing Agent and the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax, or (B) would require the Disbursing Agent and the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.

(h) Neither the Disbursing Agent nor the Collateral Agent shall have any liability for any failure, inability or unwillingness on the part of any Lender or Loan Party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall not have any liability for any inaccuracy or error in the performance or observance on such Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.

(i) The Disbursing Agent and the Collateral Agent may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents such Agent is permitted or required to take or to grant. Without limiting Section 8.03(a)(ii), if the Disbursing Agent or the Collateral Agent shall request any such instructions, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, the Lenders shall not have any right of action whatesoever against the Disbursing Agent or the Collateral Agent as a result of its acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents).

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(j) The Disbursing Agent shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of LIBOR, Term SOFR (or other applicable Benchmark), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing. The Disbursing Agent shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Agreement as a result of the unavailability of LIBOR, Term SOFR (or other applicable Benchmark) and absence of a designated replacement Benchmark, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, including without limitation the Required Lenders and the Borrower, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties. The Disbursing Agent shall not have any liability for any interest rate published by any publication that is the source for determining the interest rates of the Loans, including but not limited to the Reuters Screen (or any successor source), or for any rates compiled by the ICE Benchmark Administration or any successor thereto, or for any rates published on any publicly available source, including without limitation the Federal Reserve Bank of New York's Website, or in any of the foregoing cases for any delay, error or inaccuracy in the publication of any such rates, or for any subsequent correction or adjustment thereto.

Section 8.04 Reliance by Disbursing Agent. Each of the Disbursing Agent and the Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Disbursing Agent may presume that such condition is satisfactory to such Lender unless the Disbursing Agent shall have received written notice to the contrary from such Lender prior to the making of such Loan. Each of the Disbursing Agent and the Collateral Agent may consult, at the expense of the Borrower, with legal counsel of its own choosing (who may, but need not, be counsel for the Borrower or any Lender), independent accountants and other experts and advisors selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants, advisors or experts. Neither Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any of the other Loan Documents, except for its or their own gross negligence or willful misconduct (as determined by a final judgment issued by a court of competent jurisdiction no longer subject to appeal). Without limiting the generality of the foregoing, each Agent: (i) makes no warranty or representation to any Lender or any other Person and shall not be responsible to any Lender or any other Person for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or the other Loan Documents; (ii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, the other Loan Documents or any related documents on the part of the Loan Parties or any other Person or to inspect the property (including the books and records) of the Loan Parties; (iii) shall not be responsible to any Lender or any other Person for the due execution, legality, validity, enforceability, genuineness, sufficiency, ownership, transferability, perfection, priority or value of any Collateral, this Agreement, the other Loan Documents, any related document or any other instrument or document furnished pursuant hereto or thereto; and (iv) shall incur no liability under or in respect of this Agreement or any other Loan Document by relying on, acting upon (or by refraining from action in reliance on) any notice, consent, certificate, instruction or waiver, report, statement, opinion, direction or other instrument or writing (which may be delivered by telecopier, email, cable or telex, if acceptable to it) believed by it to be genuine and believed by it to be signed or sent by the proper party or parties. Neither Agent shall have any liability to any of the Loan Parties or any Lender or any other Person for any of the Loan Parties’ or any Lender’s, as the case may be, performance of, or failure to perform, any of their respective obligations and duties under this Agreement or any other Loan Document. Each of the Disbursing Agent and the Collateral Agent shall be afforded all of the rights, powers, immunities and indemnities set forth in this Agreement in all of the other Loan Documents to which it is a signatory as if such rights, powers, immunities and indemnities were specifically set out in each such other Loan Document.

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Section 8.05 Delegation of Duties. Each of the Disbursing Agent and the Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by the Disbursing Agent or the Collateral Agent, as applicable. The Disbursing Agent and the Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the Related Parties of the Disbursing Agent and the Collateral Agent and any such sub-agent, and shall apply, without limiting the foregoing, to their respective activities as the Disbursing Agent and the Collateral Agent. The Disbursing Agent and the Collateral Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that the Disbursing Agent or the Collateral Agent acted with gross negligence or willful misconduct in the selection of such sub-agents or attorneys-in-fact as determined by a court of competent jurisdiction in a final and non-appealable judgment.

Section 8.06 Resignation of the Disbursing Agent or the Collateral Agent.

(a) The Disbursing Agent or the Collateral Agent may at any time give written notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor, which (i) shall be a financial institution with an office in New York, or an Affiliate of any such financial institution with an office in New York, and (ii) so long as no Event of Default shall have occurred and be continuing, shall be acceptable to the Borrower (such consent not to be unreasonably withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Disbursing Agent or Collateral Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Disbursing Agent or Collateral Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Disbursing Agent or Collateral Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

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(b) With effect from the Resignation Effective Date (i) the retiring Disbursing Agent or Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (ii) except for any accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent, all payments, communications and determinations provided to be made by, to or through the Disbursing Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Disbursing Agent or Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Disbursing Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Disbursing Agent or Collateral Agent (other than any rights to accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent), and the retiring Disbursing Agent or Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Disbursing Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Disbursing Agent’s or Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article VIII and Section 9.05 shall continue in effect for the benefit of such retiring Disbursing Agent or Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Disbursing Agent or Collateral Agent was acting as Disbursing Agent or Collateral Agent, as applicable.

(c) Any resignation by U.S. Bank National Association, as Disbursing Agent, shall also constitute its resignation as Collateral Agent.

Section 8.07 Non-Reliance on Disbursing Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Disbursing Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Disbursing Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Neither Agent shall be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any agreement, document, certificate or statement delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, collectability, sufficiency or value of this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto, or of the financial condition of any Loan Party, or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, the other Loan Documents or the financial condition of any Loan Party, or the existence of any Event of Default or any Default.

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Section 8.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, neither Agent shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Disbursing Agent, the Collateral Agent or a Lender hereunder or thereunder.

Section 8.09 Disbursing Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Disbursing Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Disbursing Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts due the Lenders and the Agents under Section 2.05 and Section 9.05) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Disbursing Agent and, in the event that the Disbursing Agent shall consent to the making of such payments directly to the Lenders, to pay to the Disbursing Agent and the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Disbursing Agent and the Collateral Agent and their respective agents and counsel, and any other amounts due to the Disbursing Agent and the Collateral Agent under this Agreement and the other Loan Documents, including Section 2.05 and Section 9.05.

Section 8.10 Collateral and Guaranty Matters.

(a) Each of the Lenders irrevocably authorizes the Disbursing Agent and the Collateral Agent to:

(i) release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (x) upon Payment in Full, (y) that is sold or otherwise disposed of as part of or in connection with any sale or other Disposition permitted under the Loan Documents or (z) subject to Section 9.01, if approved, authorized or ratified in writing by the Required Lenders or such other number or percentage of Lenders required hereby;

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(ii) subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(h); and

(iii) release any Guarantor from its obligations under the Guarantee and Collateral Agreement (x) upon Payment in Full or (y) if such Guarantor ceases to be a Subsidiary as a result of a transaction permitted under and in accordance with the Loan Documents.

Any such release of guarantee obligations or security interests shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.

Any such release of Liens shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In no event shall the Disbursing Agent or the Collateral Agent be obligated to execute or deliver any document evidencing any release, subordination or re-conveyance without receipt of a certificate executed by a Responsible Officer of the Loan Party or Loan Parties disposing of such property certifying that such release, subordination or re-conveyance, as applicable, complies with this Agreement and the other Loan Documents, and that all conditions precedent to such release, subordination or re-conveyance have been complied with. Upon request by the Disbursing Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Disbursing Agent’s or the Collateral Agent’s authority to release, subordinate or re-convey its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 8.10.

(b) The Disbursing Agent and the Collateral Agent hereby disclaim any representation or warranty to the Lenders concerning, and shall not be responsible for or have a duty to ascertain or inquire into the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Disbursing Agent or the Collateral Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral. Neither Agent makes any representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties to the Collateral, or as to the security afforded by the Guarantee and Collateral Agreement or any other Loan Document. Neither Agent shall be responsible for insuring the Collateral or for the payment of Taxes, charges, assessments or liens upon the Collateral. Neither Agent shall be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when the Collateral Agent has possession of the Collateral. Neither Agent shall have any duty to the Lenders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies received by it. Neither Agent shall be under an obligation independently to request or examine insurance coverage with respect to any Collateral. Neither Agent shall be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of any Loan Party or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral, and neither Agent shall be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, neither Agent shall be responsible to the Lenders for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments. The Lenders shall be solely responsible for, and shall arrange for, the filing and continuation of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral. The Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements.

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(c) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any Real Property-related Collateral pursuant to this Agreement or any other Loan Document, the Collateral Agent shall not be obligated to take title to or possession of Real Property in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Agent to incur, or be exposed to, any Environmental Liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as the Collateral Agent subject to the terms and conditions of Section 8.06 or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any Environmental Liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened Release of any Materials of Environmental Concern into the environment.

(d) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any Mortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Responsible Officer of the Borrower. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the Loan Parties, the Lenders or any other Person for its acting in reliance thereon. The Borrower shall indemnify the Collateral Agent for any losses the Collateral Agent may incur as a result of its reliance on such certificate of the Borrower, including without limitation, any losses relating to any incorrect or misleading information provided in any tax affidavit based upon information contained in the certificate of the Borrower.

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(e) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Disbursing Agent, the Collateral Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guarantee and Collateral Agreement or any other Security Document, it being understood and agreed that all powers, rights and remedies under any of the Security Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other Disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled (either directly or through one or more acquisition vehicles), upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or Disposition, to use and apply any or all of the Obligations (other than Obligations owing to the Disbursing Agent or the Collateral Agent) as a credit on account of the purchase price for any collateral payable by the Collateral Agent (or such acquisition vehicle) at such sale or other Disposition.

Section 8.11 Withholding Tax. To the extent required by any Requirement of Law, the Disbursing Agent and the Collateral Agent may deduct or withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Disbursing Agent or the Collateral Agent, as the case may be, did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Disbursing Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Disbursing Agent and the Collateral Agent fully for all amounts paid, directly or indirectly, by such Agent as Tax or otherwise, including any penalties, additions to Tax or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Disbursing Agent or the Collateral Agent, as the case may be, shall be conclusive absent manifest error. Each Lender hereby authorizes the Disbursing Agent and the Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to such Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Disbursing Agent and the Collateral Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction or discharge of all other Obligations.

Section 8.12 No Reliance on Agents’ Customer Identification Program. Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on either Agent to carry out such Lender’s or its Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other anti-terrorism law, including any programs involving any of the following items relating to or in connection with the Borrower, its Affiliates or agents, the Loan Documents or the transactions hereunder: (a) any identity verification procedures, (b) any record keeping, (c) any comparisons with government lists, (d) any customer notices or (e) any other procedures required under the CIP Regulations or such other laws.

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Article IX
MISCELLANEOUS

Section 9.01 Amendments and Waivers. (a) None of the terms or provisions of this Agreement or any other Loan Document may be waived, supplemented or otherwise modified except in accordance with the provisions of this Section 9.01. The Required Lenders and each Loan Party party to the relevant Loan Document may, from time to time, (x) enter into written amendments, supplements or modifications hereto and to the other Loan Documents (including amendments and restatements hereof or thereof) for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (y) waive, on such terms and conditions as may be specified in the instrument of waiver, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that, in addition to such Required Lender consent (except as otherwise set forth below), no such waiver, amendment, supplement or modification shall:

(i) forgive the principal amount or extend the final scheduled date of maturity of any Loan, postpone, extend or delay any scheduled date of any amortization payment, or reduce or waive any amortization payment in respect of any Loan, postpone, extend or delay any date fixed for, or reduce or waive the stated rate of, any interest, premium, fee or other amounts (other than principal) due to the Lenders and payable hereunder or under any other Loan Document (except that, for the avoidance of doubt, (x) mandatory prepayments pursuant to Section 2.08 may be postponed, extended, delayed, reduced, waived or modified with the consent of the Required Lenders and (y) any waiver of any increase in the interest rate pursuant to Section 2.11(c) may be made with the consent of the Required Lenders), or increase the amount or extend the expiration date of any Commitment of any Lender, in each case without the written consent of each Lender directly affected thereby;

(ii) amend, modify or waive any provision of this Section 9.01 or reduce any percentage specified in the definition of “Required Lenders”, consent to the assignment or transfer by the Borrower of any of its rights or obligations under this Agreement or the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the Guarantee Obligations of Holdings or the value of the Guarantee Obligations of the Subsidiary Guarantors under the Guarantee and Collateral Agreement and the other Loan Documents other than in accordance with the provisions of the Loan Documents, in each case without the consent of all Lenders;

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(iii) amend, modify or waive any provision of Article VIII or any other provision affecting the rights, duties or obligations of the Disbursing Agent (including, without limitation, in connection with the adoption of any Benchmark Replacement Conforming Changes) without the consent of the Disbursing Agent;

(iv) amend, modify or waive any provision of Article VIII or any other provision affecting the rights, duties or obligations of the Collateral Agent (including, without limitation, in connection with the adoption of any Benchmark Replacement Conforming Changes) without the consent of the Collateral Agent;

(v) amend, modify or waive the pro rata sharing provisions of Section 2.14, Section 2.18 or Section 9.07(a) without the consent of each Lender directly and adversely affected thereby; or

(vi) impose modifications or restrictions on assignments and participations that are more restrictive than, or additional to, those set forth in Section 9.06 without the consent of each Lender.

Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Disbursing Agent, the Collateral Agent, and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders, the Disbursing Agent and the Collateral Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Any such waiver, amendment, supplement or modification shall be effected by a written instrument signed by the parties required to sign pursuant to the foregoing provisions of this Section 9.01. In connection with any amendment, waiver or modification hereunder or execution of any additional agreements or amendments as contemplated by this Agreement, each Agent shall be entitled to request an officer’s certificate from the Borrower certifying that such amendment, waiver or modification is authorized and permitted by the terms of this Agreement and the other Loan Documents, and each Agent shall be fully protected in relying upon the same and shall incur no liability for any actions or omissions taken or omitted to be taken in reliance thereon.

Section 9.02 Notices.

(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 9.02(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to Holdings or the Borrower, to FreightCar America, Inc. at 125 S. Wacker Drive, Suite 1500, Chicago, Illinois 60606, Attention of Chris Eppel (Telephone No. (312) 928-0052; Email: ceppel@freightcar.net);

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(ii) if to the Disbursing Agent or the Collateral Agent, to U.S. Bank National Association at 214 N. Tryon Street, 27^th Floor, Charlotte, North Carolina 28202, Attention of CDO Trust Services/James Hanley (Facsimile No.: (704) 335-4670; Telephone No.: (302) 576-3714; Email: james.hanley1@usbank.com); and

(iii) if to a Lender, to it at its address (or facsimile number) set forth on the signature pages hereof, in a separate notice provided to the Disbursing Agent and the Borrower or in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in Section 9.02(b), shall be effective as provided in Section 9.02(b).

(b) Electronic Communications.

(i) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including email and internet or intranet websites) pursuant to procedures approved by the Agents and the Required Lenders; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Agents that it is incapable of receiving notices under such Section by electronic communication. The Agents, any Lender or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(ii) Unless the Disbursing Agent, the Collateral Agent or the Lenders otherwise prescribe, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement) and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, in the case of each of the foregoing clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

(c) Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the Borrower and the Disbursing Agent.

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(d) Platform.

(i) The Borrower agrees that the Disbursing Agent may, but shall not be obligated to, make any Approved Electronic Communications available to the Lenders by posting such Approved Electronic Communications on the Platform.

(ii) The Platform and any Approved Electronic Communications are provided “as is” and “as available.” None of the Agents nor any of their respective Related Parties warrants the accuracy, adequacy or completeness of the Platform or any Approved Electronic Communications and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent or any of their respective Related Parties in connection with the Platform or the Approved Electronic Communications. Each party hereto agrees that no Agent has any responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Approved Electronic Communication or otherwise required for the Platform. In no event shall any Agent or any of its Related Parties have any liability to any Loan Party, any Lender or any other Person or entity for damages of any kind, whether or not based on strict liability and including, without limitation, (A) direct damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or any Agent’s transmission of communications through the Platform, except to the extent the same resulted primarily from the gross negligence or willful misconduct of such Agent or its Related Parties, in each case as determined by a court of competent jurisdiction in a final and non-appealable judgment or (B) indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or any Agent’s transmission of communications through the Platform. In no event shall any Agent or any of its Related Parties have any liability for any damages arising from the use by others of any information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent the same resulted primarily from the gross negligence or willful misconduct of such Agent or its Related Parties, in each case as determined by a court of competent jurisdiction in a final and non-appealable judgment.

(iii) Each Loan Party, each Lender and each Agent agrees that the Disbursing Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Disbursing Agent’s customary document retention procedures and policies.

(iv) All uses of the Platform shall be governed by and subject to, in addition to this Section 9.02, separate terms and conditions posted or referenced in such Platform and related agreements executed by the Lenders and their Affiliates in connection with the use of such Platform.

(v) Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Disbursing Agent, in each case as determined by a court of competent jurisdiction in a final and non-appealable judgment.

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(vi) The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to Section 5.02 or otherwise are being distributed through the Platform, any document or notice that the Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for Public Lenders. The Borrower agrees to clearly designate all information provided to the Disbursing Agent by or on behalf of the Loan Parties which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to Section 5.02 or otherwise contains Non-Public Information, the Disbursing Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities.

(e) Public Side Information Contacts. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Requirements of Law, including the U.S. Federal and state securities Laws, to make reference to Approved Electronic Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of the U.S. Federal or state securities Laws. In the event that any Public Lender has elected for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) the Agents and other Lenders may have access to such information and (ii) neither the Borrower nor any Agent or other Lender with access to such information shall have (x) any responsibility for such Public Lender’s decision to limit the scope of information it has obtained in connection with this Agreement and the other Loan Documents or (y) any duty to disclose such information to such electing Lender or to use such information on behalf of such electing Lender, and shall not be liable for the failure to so disclose or use such information.

Section 9.03 No Waiver by Course of Conduct; Cumulative Remedies. None of the Agents or the Lenders shall by any act (except by a written instrument pursuant to Section 9.01), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Agent or Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Agent or Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Agent or Lender would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

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Section 9.04 Survival of Representations, Warranties, Covenants and Agreements. All representations, warranties, covenants and agreements made herein, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery hereof and thereof and the making of the Loans and other extensions of credit hereunder, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Disbursing Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension hereunder, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied and so long as the Commitments have not expired or been terminated. The provisions of Section 2.15, Section 2.16, Section 2.17, Section 9.05, Section 9.19, Section 9.21, Section 9.22 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the Payment in Full, the expiration or termination of the Commitments, the resignation or removal of either Agent or the termination of this Agreement or any provision hereof.

Section 9.05 Payment of Expenses; Indemnity.

(a) Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket costs and expenses incurred by the Disbursing Agent, the Collateral Agent, the Lenders and their respective Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, the Warrants and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including the reasonable and documented out-of-pocket fees, charges and disbursements of counsel and (ii) all out-of-pocket costs and expenses incurred by the Disbursing Agent, the Collateral Agent and each Lender (including the fees, charges and disbursements of any counsel for the Agents or any Lender) in connection with the enforcement or protection of any rights and remedies under this Agreement and the other Loan Documents, including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including in connection with any workout, restructuring or negotiations in respect of the Loans and the Loan Documents, including the reasonable fees, charges and disbursements of counsel.

(b) Indemnification by the Borrower. The Borrower shall indemnify the Disbursing Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs and the costs of enforcing this indemnity), disbursements and out-of-pocket fees and expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), joint or several, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any Indemnitee in any way relating to or arising out of or in connection with or by reason of (i) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, litigation or proceeding): (A) the execution, delivery, enforcement, performance or administration of any Loan Document or any other document delivered in connection with the transactions contemplated thereby or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) or the consummation of the transactions contemplated thereby or (B) any Commitment, any Credit Extension or the use or proposed use of the proceeds thereof; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses (1) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (2) arise out of any dispute solely among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role hereunder or under any other Loan Document and other than any claims arising out of any act or omission of the Borrower or any of its Affiliates); or (ii) any actual or alleged presence or release of Materials of Environmental Concern on or from any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries (clauses (i) and (ii), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of such Indemnitee and regardless of whether such Indemnitee is a party thereto, and whether or not any such claim, litigation, investigation or proceeding is brought by the Borrower, its equity holders, its affiliates, its creditors or any other Person except for purposes of this clause (ii), to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.05(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

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(c) Reimbursement by the Lenders. To the extent that the Borrower for any reason fails to indefeasibly indemnify the Disbursing Agent or the Collateral Agent or pay any amount required under Section 9.05(a) or Section 9.05(b) to be paid by it to the Disbursing Agent or Collateral Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to indemnify the Disbursing Agent and the Collateral Agent from and against any all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature, including, without limitation, the fees and expenses of its agents and attorneys, whatsoever which may be imposed on, incurred by or asserted against the Disbursing Agent or the Collateral Agent in performing their respective duties hereunder, or in any way relating to or arising out of this Agreement or any other Loan Document and pay to the Disbursing Agent or Collateral Agent or any such sub-agent or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Disbursing Agent or Collateral Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Disbursing Agent or Collateral Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this Section 9.05(c) are several and not joint.

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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Requirements of Law, none of Holdings, the Borrower or any Indemnitee shall assert (and Holdings shall cause its Subsidiaries not to assert), and each of Holdings, the Borrower or any Indemnitee hereby waives (and Holdings agrees to cause its Subsidiaries to waive), any claim against any Indemnitee or Holdings, the Borrower or any Subsidiary, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any other document contemplated hereby, the transactions contemplated hereby or thereby, any Commitment or any Credit Extension, or the use of the proceeds thereof or such Person’s activities in connection therewith (whether before or after the Closing Date); provided that such waiver of special, indirect, consequential or punitive damages shall not limit the indemnification obligations of the Borrower under Section 9.05(b). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials distributed by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement, the other Loan Documents or the transactions contemplated hereby or thereby, other than as a result of the gross negligence or willful misconduct of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment.

(e) Payments. All amounts due under this Section 9.05 shall be payable promptly after demand therefor.

Section 9.06 Successors and Assigns; Participations and Assignments.

(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any such assignment without such consent shall be null and void), and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.06(b), (ii) by way of participation in accordance with the provisions of Section 9.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.06(e). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 9.06(d) and, to the extent expressly contemplated hereby, Indemnitees and the Related Parties of each of the Disbursing Agent, the Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders. (1) Any Lender, upon notice to the Disbursing Agent, may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

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(i) Minimum Amounts.

(A) In the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in Section 9.06(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.

(B) In any case not described in Section 9.06(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Disbursing Agent or, if “trade date” is specified in the Assignment and Assumption, as of such date) shall not be less than $1,000,000 unless, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.

(iii) Required Consents. No consent shall be required for any assignment except (x) to the extent required by Section 9.06(b)(i)(B) and (y) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund.

(iv) Processing Fee; Administrative Questionnaire. The parties to each assignment shall execute and deliver to the Disbursing Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Disbursing Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Disbursing Agent an Administrative Questionnaire.

(v) No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries and (B) to the extent that the list thereof has been made available to the Lenders, any Disqualified Lender.

(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

(2) Subject to acknowledgment and recording thereof by the Disbursing Agent pursuant to Section 9.06(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 2.15, Section 2.16 and Section 9.05 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.06(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.06(d).

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(c) Register. The Disbursing Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Disbursing Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender during business hours of the Disbursing Agent at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Disbursing Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries or a Disqualified Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 9.05(c) with respect to any payments made by such Lender to its Participants.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clauses (i), (ii) and (v), of the proviso to Section 9.01(a) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Section 2.15, Section 2.16 and Section 2.17 (subject to the requirements and limitations therein, including the requirements in Section 2.16(g) (it being understood that the documentation required under Section 2.16(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.06(b); provided that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee under Section 9.06(b); and (B) shall not be entitled to receive any greater payment under Section 2.15 or Section 2.16 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.19(a) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.07(b) as though it were a Lender; provided that such Participant agrees to be subject to Section 9.07(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Disbursing Agent (in its capacity as Disbursing Agent) shall have no responsibility for maintaining a Participant Register.

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(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

Section 9.07 Sharing of Payments by Lenders; Set-off.

(a) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Disbursing Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

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(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section 9.07(a) shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any of its Affiliates, as to which the provision of this Section 9.07(a) shall apply.

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(b) Each of Holdings and the Borrower hereby irrevocably authorizes each Lender at any time and from time to time while an Event of Default shall have occurred and be continuing, without notice to Holdings or the Borrower, any such notice being expressly waived by each of Holdings and the Borrower, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such party to or for the credit or the account of Holdings or the Borrower, or any part thereof in such amounts as such Lender may elect, against and on account of the obligations and liabilities of Holdings and the Borrower to such Lender hereunder and claims of every nature and description of such Lender against Holdings and the Borrower, in any currency, whether arising hereunder, under any other Loan Document or otherwise, as such Lender may elect, whether or not any Lender has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured; provided that such Lender complies with Section 9.07(a). Each Lender exercising any right of set-off shall notify Holdings and the Borrower promptly of any such set-off and the application made by such Lender of the proceeds thereof; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section 9.07 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Lender may have.

Section 9.08 Counterparts; Electronic Signatures.

(a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Agreement or any Loan Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

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(b) The Agents are authorized and permitted to accept directions, certificates, requisitions, statements, notices, approvals, consents, requests, instructions, and any other communications (collectively, “Communications”) including but not limited to investment, account transfer, and payment instructions, via e-mail from an authorized corporate e-mail address as listed on an incumbency certificate provided by the applicable party to the Agents. The Borrower, any other Loan Party or any Lender may deliver any Communications, including but not limited to investment, account transfer, and payment instructions, to the Agents via e-mail, provided that such comes from one of the persons authorized on the incumbency certificate delivered pursuant to this section and from the respective authorized e-mail address. Any Communication via e-mail from the persons authorized on such incumbency certificate shall be considered signed by the person or persons designated by the applicable party. The Agents are authorized and permitted to accept Communications, including but not limited to investment, account transfer, and payment instructions, provided via electronic signature. The Borrower, any other Loan Party or any Lender may authorize or sign any Communications, including but not limited to investment, account transfer, and payment instructions, for the Collateral Agent using electronic signatures. Any electronic signature document delivered via email from a person authorized on the incumbency certificate delivered pursuant to this section shall be considered signed or executed by such person on behalf of the applicable party.

(c) Each of the parties hereto agrees on behalf of itself, and any Person acting or claiming by, under or through such party, that any written instrument delivered in connection with this Agreement or any other Loan Document or any related document, including without limitation any amendments or supplements to such documents, may be executed by electronic methods (whether by .pdf scan or utilization of an electronic signature platform or application). Any electronic signature document delivered via email from a person authorized on an incumbency certificate provided by any party to the Agents shall be considered signed or executed by such person on behalf of such party. Each of the Borrower and Holdings, on behalf of itself and the other Loan Parties, and each of the Lenders agrees to assume all risks arising out of the use of electronic methods for all purposes including the authorization, execution, delivery, or submission of documents, instruments, notices, directions, instructions, reports, opinions and certificates to the Agents, including without limitation the risk of either Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties.

Section 9.09 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 9.10 Section Headings. The Section headings and Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

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Section 9.11 Integration. This Agreement and the other Loan Documents represent the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. There are no promises, undertakings, representations or warranties by any Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.

Section 9.12 Governing Law. THIS AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.

Section 9.13 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents (whether arising in contract, tort or otherwise) to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive (subject to Section 9.13(c)) general jurisdiction of the courts of the State of New York sitting in the County of New York, the courts of the United States for the Southern District of New York sitting in the County of New York, and appellate courts from any thereof;

(b) agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York state court or, to the fullest extent permitted by applicable Requirements of Law, in such federal court;

(c) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and that nothing in this Agreement or any other Loan Document shall affect any right that the Agents or the Lenders may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against it or any of its assets in the courts of any jurisdiction;

(d) waives, to the fullest extent permitted by applicable Requirements of Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 9.13(a) (and irrevocably waives to the fullest extent permitted by applicable Requirements of Law the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court);

(e) consents to service of process in the manner provided in Section 9.02 (and agrees that nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable Requirements of Law);

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(f) agrees that service of process as provided in Section 9.02 is sufficient to confer personal jurisdiction over the applicable party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect; and

(g) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover any special, exemplary, punitive or consequential damages.

Section 9.14 Acknowledgments. Each of Holdings and the Borrower hereby acknowledges and agrees that:

(a) it was represented by counsel in connection with the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof; and

(b) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Agents and the Lenders or among the Group Members, the Agents and the Lenders.

Section 9.15 Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties and actual and potential financing sources (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential in accordance with customary practices); (b) to the extent required or requested by any regulatory or similar authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners or any other similar organization) purporting to have jurisdiction over such Person or its Related Parties (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or regulatory authority, notify the Borrower as soon as practicable in the event of any such disclosure by such Person unless such notification is prohibited by law, rule or regulation); (c) to the extent required by applicable Requirements of Law or regulations or by any subpoena or similar legal process (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or regulatory authority, notify the Borrower as soon as practicable in the event of any such disclosure by such Person unless such notification is prohibited by law, rule or regulation); (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same (or at least as restrictive) as those of this Section 9.15 (or as may otherwise be reasonably acceptable to the Borrower), to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans; (h) with the consent of the Borrower; or (i) to the extent that such Information (x) becomes publicly available other than as a result of a breach of this Section 9.15, (y) becomes available to any Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Borrower other than as a result of a breach of this Section 9.15 or (z) was independently developed by any Agent, any Lender or any of their respective Affiliates. In addition, each of the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Credit Extensions. Notwithstanding anything herein to the contrary, the information subject to this Section 9.15 shall not include, and each of the Agents and the Lenders may disclose without limitation of any kind, any information with respect to the “tax treatment” and “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the Loans, the Transactions and the other transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to the Agents or the Lenders relating to such tax treatment and tax structure; provided that, with respect to any document or similar item that in either case contains information concerning such “tax treatment” or “tax structure” as well as other information, this sentence shall only apply to such portions of the document or similar item that relate to such “tax treatment” or “tax structure.”

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For purposes of this Section 9.15, “Information” shall mean all information received from Holdings, the Borrower or any of their Subsidiaries relating to Holdings, the Borrower or any of their Subsidiaries or any of their respective businesses, other than any such information that is available to any Agent or any Lender on a non-confidential basis prior to disclosure by Holdings, the Borrower or any of their Subsidiaries; provided that, in the case of information received from Holdings, the Borrower or any of their Subsidiaries after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 9.15 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 9.16 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.16. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

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Section 9.17 PATRIOT Act Notice. Each Lender, the Disbursing Agent (for itself and not on behalf of any Lender) and the Collateral Agent hereby notifies each Loan Party that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name, address and taxpayer information number of each Loan Party and other information that will allow such Lender, the Disbursing Agent or the Collateral Agent, as applicable, to identify such Loan Party in accordance with the PATRIOT Act. The Borrower shall, promptly following a request by any Lender, the Disbursing Agent or the Collateral Agent, provide all documentation and other information that such Lender, the Disbursing Agent or the Collateral Agent, as applicable, requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act.

Section 9.18 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable Requirements of Law, shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to Disbursing Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.

Section 9.19 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Disbursing Agent, the Collateral Agent or any Lender, or the Disbursing Agent, the Collateral Agent or any Lender exercises its 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 the Disbursing Agent, the Collateral Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Disbursing Agent or the Collateral Agent, as applicable, upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Disbursing Agent or the Collateral Agent (as applicable), plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect.

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Section 9.20 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of Holdings and the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or agency relationship between the Group Members and any Agent or any Lender is intended to be or has been created in respect of the transactions contemplated hereby or by the other Loan Documents, irrespective of whether any Agent or any Lender has advised or is advising the Borrower or any Subsidiary on other matters, (ii) the arranging and other services regarding this Agreement provided by the Agents and the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Agents and the Lenders, on the other hand, (iii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent that it has deemed appropriate and (iv) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; and (b) (i) each of the Agents and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates or any other Person; (ii) none of the Agents and the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents and the Lenders and their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Agents and the Lenders has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by applicable Requirements of Law, each of Holdings and the Borrower hereby waives and releases any claims that it may have against the Agents and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Section 9.21 Judgment Currency. In respect of any judgment or order given or made for any amount due under this Agreement or any other Loan Document that is expressed and paid in a currency (the “judgment currency”) other than Dollars, the Loan Parties will indemnify the Disbursing Agent and any Lender against any loss incurred by them as a result of any variation as between (i) the rate of exchange at which the Dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange, as quoted by the Disbursing Agent or by a known dealer in the judgment currency that is designated by the Required Lenders, at which the Disbursing Agent or such Lender is able to purchase Dollars with the amount of the judgment currency actually received by the Disbursing Agent or such Lender. The foregoing indemnity shall constitute a separate and independent obligation of the Loan Parties and shall survive any termination of this Agreement and the other Loan Documents and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into Dollars.

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Section 9.22 No Publicity. Except as otherwise permitted herein, each of Holdings and the Borrower agrees not to disclose to third parties (other than Persons who have a “need to know” in connection with the Transactions), the existence or terms and conditions of this Agreement or the other Loan Documents or the identities of the Lenders, unless required by law or with the written permission of the Lenders. The Borrower shall direct its Related Parties to comply with the terms of this section, and the Borrower will be responsible for any breach of the terms of this paragraph by its Related Parties. This provision shall survive any termination of this Agreement. Each of Holdings and the Borrower agrees that legal remedies available at law or in equity to the Lenders, including injunctive relief, may be appropriate in the event of a breach of this provision by Holdings or the Borrower.

Section 9.23 Intercreditor Agreement. Notwithstanding anything to the contrary contained in this Agreement, (i) the Liens granted to the Collateral Agent pursuant to this Agreement are expressly subject and subordinate to the Liens securing the Revolving Obligations (as defined in the Intercreditor Agreement) as and only to the extent set forth in the Intercreditor Agreement and (ii) the exercise of any right or remedy by the Collateral Agent hereunder is subject to the limitations and provisions of the Intercreditor Agreement. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, with respect to any Collateral or assignment of claims forms, until the occurrence of the Payment In Full (as defined in the Intercreditor Agreement) of the Revolving Obligations, to the extent set forth in the Intercreditor Agreement, any obligation of any Loan Party under any Security Document or this Agreement with respect to the delivery or control of any Collateral, the notation of any lien on any certificate of title, bill of lading or other document, the giving of any notice to any bailee or other Person, the provision of voting rights, the obtaining of any consent of any Person or the provision of any assignment of claims form shall be subject and subordinate to the rights of the Revolving Loan Lender pursuant to the Revolving Loan Documents (as defined in the Intercreditor Agreement). To the extent that compliance by any Loan Party with any actions specified in the immediately preceding sentence would (x) conflict with the exercise of or direction by the Revolving Loan Lender of comparable rights, (y) require delivery of Collateral or provision of assignment of claims forms which can only be delivered to one Person or (z) be, under Requirements of Law, prohibited or unable to be completed, then the applicable Loan Party shall not have to take any such actions so long as the applicable Loan Party is, with respect to clause (x), complying with the exercise of, or direction by, the Revolving Loan Lender, with respect to clause (y), has delivered such Collateral or assignment of claims forms to the Revolving Loan Lender or any of its agents, and, with respect to clause (z), only so long as Requirements of Law would prevent such compliance. Any reference herein to the Lien of the Collateral Agent being “first priority” or words of similar effect shall mean that such Lien is a first priority Lien, subject only to the prior Lien securing the Revolving Obligations to the extent set forth in the Intercreditor Agreement and any other Permitted Prior Liens. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control. Each Lender, by its execution and delivery of this Agreement, hereby authorizes and directs the Collateral Agent to enter into, execute and deliver the Intercreditor Agreement and to comply with each of the terms and provisions thereof.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

	FREIGHTCAR AMERICA, INC., as Holdings


	By: /s/ James R. Meyer
	Name: James R. Meyer
	Title: President

	FREIGHTCAR NORTH AMERICA, LLC, as Borrower


	By: /s/ James R. Meyer
	Name: James R. Meyer
	Title: President

[Signature Page to Credit Agreement]

	U.S. BANK NATIONAL ASSOCIATION, solely in its capacities as Disbursing Agent and Collateral Agent and not in its individual capacity


	By: /s/ Crystal Crudup-Burt
	Name: Crystal Crudup-Burt
	Title: Vice President

[Signature Page to Credit Agreement]

	LENDER:


	CO FINANCE LVS VI LLC

	By: /s/ Chris Neumeyer
	Name: Chris Neumeyer
	Title: Authorized Person


	Address for Notices:

	Hogan Lovells US LLP
	1999 Avenue of the Stars, Suite 1400
	Los Angeles, California 90067
	Attention: Stacey L. Rosenberg, Esq.
	Telephone: (310) 785-4660
	Facsimile: (310) 785-4601
	Email: stacey.rosenberg@hoganlovells.com

[Signature Page to Credit Agreement]

ANNEX A

COMMITMENTS

Lender	Commitment	Original Issue Discount	Pro Rata Share	Fair Market Value of Warrants¹
CO Finance LVS VI LLC	$40,000,000	[]*	100%	[]*
Total	$40,000,000	[]*	100%	[]*

___________________________________

¹ To be revised on Closing Date.

Annex A

Exhibit 10.6

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT IN ACCORDANCE WITH REGULATION S-K ITEM 601(a)(6) BECAUSE IT WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY. XXXXXXXX INDICATES THAT INFORMATION HAS BEEN REDACTED.

WARRANT ACQUISITION AGREEMENT

by and among

CO FINANCE LVS VI LLC

and

FREIGHTCAR AMERICA, INC.,

Dated as of October 13, 2020

WARRANT ACQUISITION AGREEMENT

This WARRANT ACQUISITION AGREEMENT (this “Agreement”) is dated as of October 13, 2020 (the “Effective Date”) by and between FreightCar America, Inc., a Delaware corporation (the “Company”) and CO Finance LVS VI LLC, a Delaware limited liability company (the “Investor”).

BACKGROUND

WHEREAS, the Company, as borrower, and the Investor and/or Affiliates of the Investor, as lenders, are entering into a Credit Agreement, dated as of the Effective Date (the “Credit Agreement”), pursuant to which the lenders thereunder will extend credit on the Closing Date in an aggregate principal amount equal to $40,000,000 (the “Loans”), all as described in the Credit Agreement;

WHEREAS, as a condition to the willingness of the Company and the Investor and/or Affiliates of the Investor to enter into the Credit Agreement, the Company desires to issue to the Investor a warrant, in the form attached hereto as Exhibit A (the “Warrant”), which shall be exercisable for shares (the “Exercise Shares”) of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”) equal, in the aggregate, to twenty-three percent (23%) of the Common Stock Deemed Outstanding of the Company on the date or dates the Warrant is exercised, and shall have the other rights set forth in the Warrant and in this Agreement; and

WHEREAS, the Company and the Investor desire to make certain representations and warranties set forth herein and enter into certain other agreements.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound hereby, agree as follows:

Article I
DEFINITIONS AND INTERPRETATION

Section 1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:

“Affiliate” means, with respect to any Person, (i) any Person controlled by, controlling or under common control with, such Person and (ii) each entity in which such Person owns in excess of a 50% economic interest. As used in this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise); provided that, for purposes of this Agreement, the Company and its Subsidiaries shall not be deemed to be Affiliates of the Investor.

“Agreement” has the meaning set forth in the Preamble.

“Applicable Requirements” means (i) all contractual obligations relating to the business of the Company and its Subsidiaries, and (ii) all Legal Requirements applicable to the business of the Company and its Subsidiaries.

“Board Observer” has the meaning set forth in Section 5.4.

“Board of Directors” means the Board of Directors of the Company.

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

“Closing” has the meaning set forth in Section 2.2.

“Closing Date” means the first Business Day after all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all of the conditions set forth in Sections 2.2, 6.1 and 6.2 hereof are satisfied or waived, or such other date as the parties may agree.

“Common Stock” has the meaning set forth in the Recitals.

“Common Stock Deemed Outstanding” means, at any given time, the sum of (a) the number of shares of Common Stock actually outstanding at such time, plus (b) the number of shares of Common Stock issuable upon exercise of Options actually outstanding at such time, plus (c) the number of shares of Common Stock reserved for issuance under any equity incentive plan approved by the Board of Directors at such time, regardless of whether the shares of Common Stock are actually subject to outstanding Options or Convertible Securities, plus (d) the number of shares of Common Stock issuable upon conversion or exchange of Convertible Securities actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the Options or Convertible Securities are actually exercisable at such time, plus (e) the number of shares of Common Stock that may be issued pursuant to any contract, agreement or arrangement of the Company in effect at such time, including without limitation shares of Common Stock to be issued in connection with any acquisition, joint venture, commercial relationship or the acquisition or license by the Company of the securities, businesses, property or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition; provided that Common Stock Deemed Outstanding at any given time shall not include shares of Common Stock owned or held by or for the account of the Company or any of its wholly owned subsidiaries.

“Company” has the meaning set forth in the Preamble.

“Company Deliverables” has the meaning set forth in Section 2.2(b)(ii).

“Contract” means any written or, subject to the knowledge of the Company, oral contract, agreement, note, bond, indenture, mortgage, guarantee, option, lease, license, commitment or other written instrument, in each case, that is legally binding on the Company or any of its Subsidiaries.

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for the Common Stock, but excluding Options.

“Credit Agreement” has the meaning set forth in the Recitals.

“Disclosure Schedules” has the meaning set forth in Article III.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“Exercise Shares” has the meaning set forth in the Recitals.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

“Governmental Entity” means any national, state, local, county, parish or municipal government, domestic or foreign, any agency, board, bureau, commission, court, tribunal, subdivision, department or other governmental or regulatory authority or instrumentality or quasi-governmental authority, in each case, that has jurisdiction over the Company or any of its properties, assets or business or any matter relating to the transactions contemplated by this Agreement.

“Initial Investor Designee” has the meaning set forth in Section 5.3(c).

“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.

“Investor” has the meaning set forth in the Preamble.

“Investor Deliverables” has the meaning set forth in Section 2.2(b)(i).

“Investor Designee” has the meaning set forth in Section 5.3(a).

“Legal Requirements” means any federal, state, provincial, local, municipal, foreign, international, multinational or other law, statute, regulation, rule, directive, guidance, convention, ordinance, code, constitution, order, treaty or judgment, or similar provision or Applicable Requirement of any Governmental Entity, in each case in each case applicable to or binding upon the Company or any of its Subsidiaries, or to which the Company or any of its Subsidiaries is subject.

“Material Agreement” has the meaning set forth in Section 3.11.

“Options” means any warrants or other rights or options to subscribe for, acquire, purchase or otherwise be issued Common Stock or Convertible Securities.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.

“Permits” has the meaning set forth in Section 3.8(b).

“Preferred Stock” means any Preferred Stock, par value $0.01 per share, of the Company, including any Series A Preferred Stock or Series B Preferred Stock.

“Registration Rights Agreement” means the Registration Rights Agreement in the form attached hereto as Exhibit B.

“Requisite Holders” means the Investor, its Affiliates or any transferee holding the Warrant or Warrants representing Exercise Shares (as defined in the Warrant) constituting a majority of all Exercise Shares underlying the outstanding Warrant or Warrants.

“SEC” means the Securities and Exchange Commission.

“SEC Reports” means all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act or the Exchange Act, including pursuant to Section 13(a) or 15(d) of the Exchange Act.

“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.

“Series A Preferred Stock” means Series A Voting Preferred Stock, par value $0.01 per share, of the Company.

“Series B Preferred Stock” means Series B Non-Voting Preferred Stock, par value $0.01 per share, of the Company.

“Stockholder Approval” means such approval as may be required by (i) the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from the stockholders of the Company with respect to the transactions contemplated by the Transaction Documents and the issuance of the Warrant thereunder that may be exercisable for an amount of Common Stock in excess of 19.99% of the issued and outstanding Common Stock on the date hereof, (ii) the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from the stockholders of the Company with respect to a “change of control” under such rules, and (iii) any other applicable rule or regulation of the Nasdaq Stock Market (or any successor entity) from the stockholders of the Company with respect to the transactions contemplated by the Transaction Documents and the issuance of all of the Securities thereunder.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the profits or losses of such limited liability company, partnership, association or other business entity (as the case may be) is allocated, directly or indirectly, to that Person or one or more Subsidiaries of that Person or a combination thereof, or that Person or one or more Subsidiaries of that Person or a combination thereof controls the general partner, manager, managing member, managing director (or a board comprised of any of the foregoing) of such limited liability company, partnership, association or other business entity. For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times such Person has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.

“Tax Returns” means all returns, declarations, reports, forms, estimates, information returns and statements filed or required to be filed in respect of any Taxes with a taxing authority (including any schedules thereto or amendments thereof).

“Taxes” means all federal, state, county, local, foreign and other taxes and similar governmental assessments (including, without limitation, income, profits, premium, estimated, excise, sales, use, occupancy, gross receipts, franchise, ad valorem, severance, capital levy, production, transfer, escheat or unclaimed or abandoned property obligation, withholding, employment, unemployment compensation, payroll-related and property taxes, import duties and other governmental charges and assessments), whether or not measured in whole or in part by net income, and including deficiencies, interest, additions to tax or interest and penalties with respect thereto.

“Transaction Documents” means this Agreement, the schedules and exhibits attached hereto, the Warrant, the Registration Rights Agreement, the Credit Agreement and any other documents or agreements explicitly contemplated hereunder.

“Warrant” has the meaning set forth in the Recitals.

Article II
ACQUISITION OF THE WARRANT

Section 2.1 Issuance of Warrant. Subject to the terms and conditions set forth in this Agreement, at the Closing, in consideration for the Loans extended pursuant to the Credit Agreement, the Company shall issue the Warrant to the Investor.

Section 2.2 Closing.

(a) The closing of the acquisition of the Warrant (the “Closing”) shall be held at the offices of Hogan Lovells US LLP, 1999 Avenue of the Stars, Suite 1400, Los Angeles, California 90067, at 10 a.m. Pacific Time on the Closing Date. If and to the extent the Company and the Investor mutually agree, the Closing may take place by exchange of facsimile or electronic signatures without the necessity for a physical meeting of the parties.

(b) At the Closing, upon the terms and subject to the conditions set forth in this Agreement:

(i) the Investor shall execute and deliver to the Company (A) the Warrant duly executed by the Investor, (B) the Registration Rights Agreement duly executed by the Investor and (C) a certificate, dated as of the Closing Date and signed by an officer of the Investor, certifying to the fulfillment of the conditions specified in Section 6.2 of this Agreement (collectively, the “Investor Deliverables”).

(ii) the Company shall execute and deliver to the Investor (A) the Warrant duly executed by the Company and registered in the name of the Investor, (B) the Registration Rights Agreement duly executed by the Company and the other parties thereto, (C) a certificate of the Secretary of the Company, dated the Closing Date, (1) certifying the resolutions adopted by the Board of Directors approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Warrant, (2) certifying the current versions of the Company’s Certificate of Incorporation and bylaws, and (3) certifying as to the signatures and authority of Persons executing this Agreement, the Registration Rights Agreement, the Warrant and related documents on behalf of the Company and (D) a certificate, dated as of the Closing Date and signed by the Company’s Chief Executive Officer, certifying as to the fulfillment of the conditions specified in Section 6.1 of this Agreement (collectively, the “Company Deliverables”) .

Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to the Investor, that, subject to the qualifications and exceptions set forth in the disclosure schedules delivered to the Investor pursuant to this Agreement (the “Disclosure Schedules”):

Section 3.1 Organization. Each of the Company and its Subsidiaries (a) is duly incorporated or organized, validly existing and, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to own or lease its assets and carry on its business as now conducted and (c) is duly qualified and licensed and, as applicable, in good standing under the laws of each jurisdiction where such qualification or license or, if applicable, good standing is required; except, in the case of clauses (b) and (c) above, where such failure could not reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole (a “Material Adverse Effect”).

Section 3.2 Authorization; Enforceability. The Company has all corporate power and authority to execute and deliver this Agreement, the Warrant and the Registration Rights Agreement, and any other agreements contemplated hereby or thereby, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by the Company of this Agreement, the Warrant, the Registration Rights Agreement, and any other agreements contemplated hereby or thereby, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company. This Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby, assuming due authorization, execution and delivery by the other parties thereto, constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting creditors’ rights generally and by general equitable principles.

Section 3.3 Capitalization. As of the Effective Date, (a) the Company is authorized to issue up to 50,000,000 shares of Common Stock and 2,500,000 shares of Preferred Stock, of which 100,000 shares have been designated Series A Preferred Stock and 100,000 shares have been designated Series B Preferred Stock and (b) the Company has 13,277,845 shares of Common Stock issued and outstanding, 326,327 shares of Common Stock held in treasury and no shares of Preferred Stock issued and outstanding. The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and were issued in compliance with all federal and state securities laws. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company. Except as a result of the purchase and sale of the Warrant under this Agreement, and except as set forth in the SEC Reports, there are no outstanding options, warrants, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares of Common Stock. The issuance and sale of the Warrant will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no stockholders agreements, voting agreements or other agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

Section 3.4 Subsidiaries. Section 3.4 of the Disclosure Schedules sets forth a true and correct list of the Subsidiaries of the Company. Except as described on Section 3.4 of the Disclosure Schedules, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock of or all other equity interests in each of its Subsidiaries, free and clear of any Liens (other than Permitted Equity Liens, as defined in the Credit Agreement) and all of such shares or equity interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.

Section 3.5 Valid Issuance of Warrant. The Warrant (a) is duly authorized by all necessary corporate action on the part of the Company, (b) when issued and delivered by the Company against payment therefor as provided in this Agreement will be validly issued, and (c) will not be subject to any statutory or contractual preemptive rights or other similar rights of equityholders at the time of issuance except for any such rights that have been waived prior to issuance. The Exercise Shares issuable to the Investor upon exercise of the Warrant in accordance with the terms thereof (x) will be, upon issuance, duly authorized by all necessary corporate action on the part of the Company, (y) when issued and delivered by the Company will be validly issued, fully paid and nonassessable and free of liens, encumbrances or restrictions on transfer (other than those created by this Agreement, the Warrant, the Registration Rights Agreement, the Company’s certificate of incorporation or bylaws and applicable state and/or federal securities laws) and (z) will not be subject to any statutory or contractual preemptive rights or other similar rights of equityholders at the time of issuance.

Section 3.6 Non-Contravention. The Company is not in violation or default of any provision of its certificate of incorporation or by-laws. The Company’s execution, delivery and performance of and compliance with this Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby to which it is a party, the issuance and delivery by the Company of the Warrant and, upon exercise of the Warrant, the Exercise Shares and the consummation of the other transactions contemplated hereby and thereby (a) will not result in any violation of the provisions of its certificate of incorporation or by-laws, (b) will not conflict with or constitute a breach of or a default (or constitute an event which with notice or lapse of time or both would become a default) under or give rise to any right of termination, recapture, acceleration or cancellation under any material Contract of the Company, or result in the creation or imposition of any lien or encumbrance upon any property or assets of the Company or any of its Subsidiaries, or, to the Company’s knowledge, the suspension, revocation, impairment or forfeiture of any material permit, license, authorization, or approval applicable to the Company, its business or operations, or any of its assets or properties, (c) to the Company’s knowledge will not result in any violation of any Legal Requirement or any judgment, order or decree of any Governmental Entity applicable to the Company or any of its Subsidiaries, or (d) to the Company’s knowledge require the consent, approval, order, or authorization of, or registration, qualification, declaration, or filing with, any Governmental Entity on the part of the Company or any of its Subsidiaries, in each of clauses (b), (c) and (d), other than those required with respect to the Stockholder Approval or as would reasonably be expected to have a Material Adverse Effect.

Section 3.7 Litigation. There is no action, suit, proceeding or investigation pending or threatened against, nor any outstanding judgment, order or decree affecting, the Company or any of its Subsidiaries before or by any Governmental Entity or arbitral body, that individually or in the aggregate would have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in default with respect to any judgment, order or decree of any Governmental Entity specifically directed at the Company or any of its Subsidiaries. The Company is not a party or subject to, and none of its assets is bound by, the provisions of any order, writ, injunction, judgment, or decree of any Governmental Entity specifically directed at the Company or any of its Subsidiaries, except as would not reasonably be expected to have a Material Adverse Effect.

Section 3.8 Compliance with Legal Requirements; Permits; No Defaults.

(a) Except as set forth in Section 3.8(a) of the Disclosure Schedules, the Company and each of its Subsidiaries is in compliance with all Legal Requirements applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except where the failure thereof would not have a Material Adverse Effect.

(b) The Company and each of its Subsidiaries have all required permits, registrations, licenses, authorizations, consents, certificates, orders, clearances, approvals and franchises from Governmental Entities to own, lease and operate their properties and conduct their businesses as currently conducted (“Permits”), such Permits are in full force and effect and there has occurred no violation of, suspension, reconsideration, imposition of penalties or fines, imposition of additional conditions or requirements, default (with or without notice or lapse of time or both) under, or event giving rise to any right of termination, amendment or cancellation of, with or without notice or lapse of time or both, any such Permit, and the Company and each of its Subsidiaries have fulfilled and performed all of their obligations with respect to such Permits to the extent required to be so performed on or prior to the Closing Date and are in compliance with the terms of such Permits, in each case except where any such failure would not have a Material Adverse Effect.

(c) Since January 1, 2019, the Company and each of its Subsidiaries has timely filed all reports, applications, statements, certifications, documents, registrations, filings, notices or submissions required to be filed with any Governmental Entity, in each case except where any such failure would not have a Material Adverse Effect. All such reports were in compliance with the Applicable Requirements when filed and no deficiencies have been asserted by such Governmental Entity, in each case except where any such noncompliance would not have a Material Adverse Effect.

Section 3.9 Financial Statements; Undisclosed Liabilities. The consolidated financial statements of the Company included or incorporated by reference in the SEC Reports filed since January 1, 2019, together with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and the Exchange Act, as applicable, and in conformity with GAAP (except (i) for such adjustments to accounting standards and practices as are noted therein or (ii) in the case of unaudited interim financial statements, to the extent that they may not include footnotes or may be condensed or summary statements) during the periods involved. The other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC Reports filed since January 1, 2019 are accurately and fairly presented in all material respects and prepared on a basis consistent with the financial statements and books and records of the Company.

Section 3.10 Tax Matters. Since January 1, 2019, each of the Company and its Subsidiaries has (a) filed or caused to be filed all material Tax Returns required to have been filed by it (or has filed timely extensions with respect to such Tax Returns), (b) paid or caused to be paid all material Taxes required to be paid by it, except for those which are being contested in good faith and for which the Company has set aside on its books adequate reserves in accordance with GAAP, and (c) complied with all applicable requirements relating to the withholding of material Taxes and timely collected or withheld and paid over to the proper Governmental Entity all material amounts required to be so collected or withheld and paid over by it. Each of the Company and its Subsidiaries has made adequate provisions in accordance with GAAP for all Taxes not yet due and payable. Neither the Company nor any of its Subsidiaries has knowledge (or could reasonably have knowledge upon due inquiry) of any proposed or pending tax assessments, deficiencies, audits or other proceedings and no proposed or pending tax assessments, deficiencies, audits or other proceedings have had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect. Neither the Company nor any of its Subsidiaries has ever “participated” in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4. Neither the Company nor any of its Subsidiaries is party to any tax sharing or similar agreement.

Section 3.11 Not a U.S. Real Property Holding Corporation. Each of the Company and its Subsidiaries is not and has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

Section 3.12 Agreements. Since January 1, 2019, neither the Company nor any of its Subsidiaries has received written notice of any violation or default (or any condition which with the passage of time or the giving of notice or both would cause such a violation of or a default) by any party under any material agreement to which the Company or any of its Subsidiaries is a party (“Material Agreement”), nor has such notice been threatened, except as would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, no other party to any Material Agreement is in material breach or violation of, or default under, or has repudiated any material provision of, any Material Agreement, except as would not reasonably be expected to have a Material Adverse Effect.

Section 3.13 SEC Reports. Since January 1, 2019, the Company has filed all SEC Reports on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective filing dates, the SEC Reports filed since January 1, 2019 complied in all material respects with the requirements of the Securities Act and the Exchange Act, and none of such SEC Reports, when filed, 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 light of the circumstances under which they were made, not misleading. The Company does not have pending before the SEC any request for confidential treatment of information or any comments from the SEC which have not been resolved.

Section 3.14 Brokers and Finders. Neither the Company nor any of its Subsidiaries has employed any broker or finder or incurred any liability for any financial advisory fee, brokerage fee, commission or finder’s fee, and no broker or finder has acted directly or indirectly for the Company or any of its Subsidiaries, each in connection with this Agreement or the transactions contemplated hereby.

Article IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor represents and warrants to the Company that:

Section 4.1 Organization. The Investor is duly organized and is validly existing and in good standing as a limited liability company or limited partnership under the laws of the State of Delaware and has all the requisite power and authority to carry on its business as it is now being conducted, except as would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the Investor.

Section 4.2 Authorization. The Investor has the full right, power, authority and capacity to enter into this Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by the Investor of this Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary and proper actions on the part of the Investor. This Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby have been (or will be) duly executed and delivered by the Investor and, assuming due authorization, execution and delivery of this Agreement, the Warrant, the Registration Rights Agreement and any other agreements contemplated hereby or thereby by the other parties thereto, do constitute valid and binding obligations of the Investor, enforceable against the Investor in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting creditors’ rights generally and by general equitable principles.

Section 4.3 Non-Contravention. The execution, delivery and performance by the Investor of this Agreement, the Warrant, the Registration Rights Agreement, and any other agreements contemplated hereby or thereby, the receipt and acceptance of the Warrant and the consummation of the other transactions contemplated hereby and thereby (a) will not conflict with or violate any provision of its limited liability company agreement or limited partnership agreement, as the case may be; (b) will not conflict with or result in any breach of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, any lease, mortgage, license, indenture or any other material agreement to which the Investor is a party or by which its properties may be bound or affected or result in the creation of any lien or encumbrance upon any property or assets of the Investor or the suspension, revocation, impairment or forfeiture of any material permit, license, authorization, or approval applicable to the Investor, its business or operations, or any of its assets or properties, respectively; or (c) will not conflict with or violate any law or regulation applicable to the Investor.

Section 4.4 Brokers and Finders. Neither the Investor nor any of its Affiliates or any of their respective officers or directors has employed any broker or finder or incurred any liability for any financial advisory fee, brokerage fee, commission or finder’s fee, and no broker or finder has acted directly or indirectly for the Investor or any of its Affiliates or any of their respective officers or directors, each in connection with this Agreement or the transactions contemplated hereby.

Section 4.5 Securities Matters. The Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect. The Warrant and the Exercise Shares issuable to the Investor upon exercise of the Warrant shall be acquired for investment for the Investor’s own account, not as a nominee or agent, and not with a view to the public resale or distribution of such Warrant or Exercise Shares within the meaning of the Securities Act, such the Investor has no present intention of selling, granting any participation in or otherwise distributing the same. The Investor acknowledges that the Warrant and Exercise Shares issuance to the Investor upon exercise of the Warrant have not been registered under the Securities Act and are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon the representations of the Investor contained in this Agreement.

Article V
COVENANTS

Section 5.1 Further Assurances. Upon the terms and subject to the conditions set forth in this Agreement, following the Closing the parties hereto shall each use their commercially reasonable efforts to promptly take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under applicable Legal Requirements or otherwise to assure compliance with the terms, provisions, purposes and intents of this Agreement.

Section 5.2 Warrant Exercise. Concurrently with and as a condition precedent to the exercise by the Investor of the Warrant in accordance with its terms, the Investor shall pay the Exercise Price in accordance with the terms of the Warrant.

Section 5.3 Board Designee.

(a) Director Designation Rights. For so long as the Investor or its Affiliates collectively hold (a) at least 50% of the Warrant or (b) at least 50% of the Exercise Shares underlying the Warrant, the Investor shall be entitled to designate for recommendation by the Nominating and Corporate Governance Committee of the Board of Directors pursuant to Section 5.3(c) and, upon such recommendation, nomination by the Board of Directors, one (1) director from time to time as set forth below (any individual designated by the Investor, the “Investor Designee”).

(b) Initial Investor Designee. Immediately following the Closing, the size of the Board of Directors shall be increased by one member and the Board of Directors shall appoint such individual designated in writing by the Investor prior to Closing as the initial Investor Designee (the “Initial Investor Designee”) to fill a vacancy on the Board of Directors as a Class III director with a term expiring at the Company’s annual meeting of stockholders in 2023.

(c) Compliance with Nominating Guidelines. Each Investor Designee, including the Initial Investor Designee, shall comply with the requirements of the charter for, and related guidelines of, the Nominating and Corporate Governance Committee of the Board of Directors.

(d) Additional Obligations. The Company agrees to take all necessary actions to cause the individual designated in accordance with Section 5.3(a), and subject to the provisions of Section 5.3(c), to be included in the slate of nominees to be elected to the Board of Directors at the next annual or special meeting of stockholders of the Company at which Class III directors are to be elected, in accordance with the Company’s certificate of incorporation and bylaws and the Delaware General Corporation Law, and at each annual meeting of stockholders of the Company thereafter at which Class III Directors are up for election, and to recommend that the Company’s stockholders vote affirmatively for each such nominee.

(e) Vacancies of Investor Designee. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of the Investor Designee, the Company shall take at any time and from time to time all necessary action to cause the vacancy created thereby to be filled in accordance with the terms hereof as promptly as practicable by a new Investor Designee designated by the Investor to the Board of Directors seat that has become vacant.

(f) Benefits. During the period that an Investor Designee is a director of the Board of Directors, such director shall be entitled to the same compensation and benefits as any other non-employee director of the Board of Directors, including cash and non-cash compensation for director service and benefits under any director and officer indemnification or insurance policy maintained by the Company.

Section 5.4 Board Observer. For so long as the Investor or its Affiliates collectively hold (a) at least 50% of the Warrant or (b) at least 50% of the Exercise Shares underlying the Warrant, the Company shall permit one authorized representative of the Investor (the “Board Observer”) to attend and participate (in the capacity of a non-voting observer) in all meetings of the Board of Directors and any committee thereof (save for meetings of any committee that is required to be composed solely of independent directors), whether in person, by telephone or otherwise. The Company shall provide the Board Observer the same notice of all such meetings and copies of all materials distributed to members of the Board of Directors concurrently with provision of such notice and materials to the Board of Directors; provided, however, that the Board Observer (i) shall hold all information and materials disclosed or delivered to the Board Observer in confidence and (ii) may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith, with advice from legal counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or if the Board Observer’s access or attendance could materially and adversely affect the Board of Directors’ fiduciary duties.

Section 5.5 Transfer Taxes. The Company shall pay any and all documentary, stamp or similar issue or transfer tax due upon the issuance of the Warrant and issuance of Common Stock upon exercise of the Warrant.

Section 5.6 Stockholder Approval. The Company shall use its best efforts to file a preliminary proxy statement with the SEC no later than thirty (30) days after the Effective Date for the purpose of obtaining Stockholder Approval. The Company shall use its best efforts to hold a special meeting of its stockholders (which may also be the annual meeting of stockholders) at the earliest practical date after the date hereof, but in no event later than ninety (90) days after the Effective Date, for the purpose of obtaining Stockholder Approval, with the recommendation of the Board of Directors that such proposals be approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. If the Company does not obtain Stockholder Approval at the first meeting held for such purpose, upon the written request of the Investor, the Company shall use its best efforts to call another meeting of stockholders within three (3) months of the first meeting of stockholders held pursuant to this Section 5.6.

Article VI
Conditions Precedent to Closing

Section 6.1 Conditions Precedent to the Obligations of the Investor. The obligation of the Investor to proceed with the Closing is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by the Investor:

(a) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct) as of the date when made and as of the Closing Date, as though made on and as of such date, except for such representations and warranties that speak as of a specific date.

(b) Performance. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

(d) Credit Agreement. All conditions precedent to the completion of the transactions contemplated by the Credit Agreement shall have been satisfied or waived.

(e) Closing Deliverables. The Company shall have delivered the Company Deliverables in accordance with Section 2.2(b)(ii).

Section 6.2 Conditions Precedent to the Obligations of the Company. The obligation of the Company to proceed with the Closing is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by the Company:

(a) Representations and Warranties. The representations and warranties made by the Investor herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct) as of the date when made, and as of the Closing Date as though made on and as of such date, except for representations and warranties that speak as of a specific date.

(b) Performance. The Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to the Closing Date.

(c) Investor Deliverables. The Investor shall have delivered its Investor Deliverables in accordance with Section 2.2(b)(i).

Article VII
Survival

Section 7.1 Survival. The representations and warranties provided for in this Agreement shall survive for a period of eighteen (18) months from the date when made; provided, however, that the representations and warranties in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.3 (Capitalization), Section 3.4 (Subsidiaries), Section 3.5 (Valid Issuance of Warrant), Section 3.14 (Brokers and Finders), Section 4.1 (Organization) Section 4.2 (Authorization), Section 4.4 (Brokers and Finders), and Section 4.5 (Securities Matters) of this Agreement shall survive the Closing until the expiration of the applicable statute of limitations. The covenants or agreements contained in this Agreement shall survive the Closing until the expiration of the term of the undertaking set forth in such agreements and covenants.

Article VIII
MISCELLANEOUS

Section 8.1 No Personal Liability of Directors, Officers, Owners, Etc. Except as set forth herein, no director, officer, employee, incorporator, stockholder, controlling Person, manager, member, general partner, limited partner, principal or other agent of any of the Investor or the Company shall have any liability for any obligations of the Investor or the Company, as applicable, under this Agreement or for any claim based on, in respect of, or by reason of, the respective obligations of the Investor or the Company, as applicable, under this Agreement.

Section 8.2 Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered personally, by facsimile or electronic transmission, upon confirmation of receipt, (b) on the date of delivery according to the records of a nationally recognized overnight courier service, if delivered by such overnight courier service, (c) on the third (3rd) Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid, or (d) on the date the sender’s receipt of an acknowledgement from the intended recipient of e-mail notice (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), to the parties to this Agreement at the following address or to such other address either party to this Agreement shall specify by notice to the other party:

If to the Company:

FreightCar America, Inc.

125 South Wacker Drive

Suite 1500

Chicago, IL 60606

Email: CEppel@freightcar.net

Attention: Vice President and Chief Financial Officer

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

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

Facsimile No.: (312) 558-5700

Email: odavid@winston.com and dsakowitz@winston.com

Attention: Oscar David, Esq. and David A. Sakowitz, Esq.

If to the Investor:

CO Finance LVS VI LLC

650 Newport Center Drive

Newport Beach, California 92660

Facsimile No.: (949) 720-6809

Email: XXXXXXXX

Attention: XXXXXXXX

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

Hogan Lovells US LLP

1999 Avenue of the Stars, Suite 1400

Los Angeles, California 90067

Facsimile: (310) 785-4601

Email: stacey.rosenberg@hoganlovells.com

Attention: Stacey L. Rosenberg, Esq.

Section 8.3 Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is duly executed and delivered by the Company and the Requisite Holders. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 8.4 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Investor’s rights, interests and obligations under this Agreement may be assigned to any transferee of the Warrant in which the Investor owns a majority of the equity interests or any other investment entity that is controlled, advised or managed by the same person or persons that control the Investor or is an Affiliate of that person.

Section 8.5 Governing Law. THIS AGREEMENT AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.

Section 8.6 Consent to Jurisdiction; Venue; Waiver of Jury Trial.

(a) EACH PARTY HERETO IRREVOCABLY AGREES AND CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK, WITH RESPECT TO ALL MATTERS RELATING TO THIS AGREEMENT AND THE WARRANT AND TO THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, WAIVES ALL OBJECTIONS BASED ON LACK OF VENUE AND FORUM NON CONVENIENS AND IRREVOCABLY CONSENTS TO THE PERSONAL JURISDICTION OF ALL SUCH COURTS.

(b) THE PARTIES HERETO FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESS SET FORTH IN Section 8.2, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.

(c) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 8.6(c).

Section 8.7 Entire Agreement. This Agreement, the Warrant, the Registration Rights Agreement, the Credit Agreement, and any agreements delivered in connection therewith, together with the exhibits and schedules hereto (including the Disclosure Schedules) and thereto, constitute the entire agreement among the Company and the Investor with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the Company and the Investor and/or their Affiliates with respect to the subject matter of this Agreement.

Section 8.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 8.9 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable Legal Requirements, such provision shall be deemed to be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforced in accordance with its terms to the maximum extent permitted by Legal Requirements and the parties shall enter into alternative arrangements to implement the economic effect of such unenforceable provisions in an enforceable way.

Section 8.10 Counterparts. This Agreement may be executed in any number of counterparts, and with signatures to this Agreement by facsimile or in electronic format, each of which shall be an original, but all of which when taken together shall constitute one and the same Agreement. Signatures of the parties transmitted electronically or by facsimile shall be deemed to be their original signatures for all purposes.

Section 8.11 No Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer on any Person (other than the parties hereto) any rights, remedies, obligations or liabilities under or by reason of this Agreement, and no Person that is not a party to this Agreement (including any director, officer, employee, incorporator, stockholder, controlling Person, manager, member, general partner, limited partner, principal or other agent of any party to this Agreement, in its own capacity as such or in bringing a derivative action on behalf of such party) shall have standing as third-party beneficiary with respect to this Agreement or the transactions contemplated by this Agreement.

Section 8.12 Enforcement of Agreement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties to this Agreement shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any state or federal court located in the city or county of New York, this being in addition to any other remedy to which the parties to this Agreement are entitled at Law or in equity. Additionally, each party to this Agreement hereto irrevocably waives any defenses based on adequacy of any other remedy, whether at Law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions hereof or injunctive relief in any action brought therefor.

Section 8.13 Terms and Usage Generally. The definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed to be references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “or” shall be deemed to mean “and/or”. All accounting terms not defined in this Agreement shall have the meanings determined by GAAP as in effect from time to time. The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

* * * * *

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the Effective Date.

FREIGHTCAR AMERICA, INC.

By: /s/ Chris Eppel

Name: Chris Eppel

Title: CFO

CO FINANCE LVS VI LLC

By: /s/ Chris Neumeyer

Name: Chris Neumeyer

Title: Authorized Person

Signature Page to Warrant Acquisition Agreement

EXHIBIT A

WARRANT

[See attached]

EXHIBIT B

REGISTRATION RIGHTS AGREEMENT

[See attached]

Exhibit 10.7

THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF APPLICABLE STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION UNDER SUCH LAWS OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT.

WARRANT TO PURCHASE COMMON STOCK

FREIGHTCAR AMERICA, INC.

NO. W-[●]

[●],2020

THIS WARRANT CERTIFIES THAT, for value received, CO Finance LVS VI LLC, a Delaware limited liability company, or its assigns (the “Holder”), is entitled to subscribe for and purchase from FREIGHTCAR AMERICA, INC., a Delaware corporation (the “Company”), a number of shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), equal to (a) 23.0% of the Common Stock Deemed Outstanding on the date of any exercise of this Warrant less (b) the aggregate number of shares of Common Stock previously issued from time to time as a result of any partial exercise of this Warrant in accordance with the terms set forth herein (collectively, the “Exercise Shares”), at a purchase price per share of $0.01 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant.

This Warrant is being issued pursuant to the terms of the Warrant Acquisition Agreement, dated as of October [●], 2020, by and between the Company and the Holder (the “Warrant Agreement”). Certain capitalized terms used herein are defined in Section 1 hereof. Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Warrant Agreement. The Exercise Shares are subject to adjustment as provided herein.

This Warrant is subject to the following terms and conditions:

1. DEFINITIONS. As used herein, the following terms shall have the following respective meanings:

(a) “Aggregate Exercise Price” means an amount equal to the product of (a) the number of Exercise Shares in respect of which this Warrant is then being exercised pursuant to Section 2 hereof, multiplied by (b) the Exercise Price.

(b) “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

(c) “Change of Control” means: (i) a capital reorganization or reclassification of the capital stock of the Company resulting in any Person or group of Persons other than holders of the voting securities of the Company outstanding immediately prior to such transaction, becoming the holder, directly or indirectly, of more than 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company; (ii) a merger, consolidation or reorganization or other similar transaction or series of related transactions, in each case which results in the voting securities of the Company outstanding immediately prior thereto representing immediately thereafter (either by remaining outstanding or by being converted into voting securities of the surviving or acquiring entity) less than 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company or such surviving or acquiring entity outstanding immediately after such merger, consolidation or reorganization; (iii) the issuance by the Company of shares of capital stock of the Company, in a single transaction or series of related transactions, representing at least 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company; or (iv) the acquisition by any “person” (together with his, her or its Affiliates) or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), directly or indirectly, of the beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of outstanding shares of capital stock and/or other equity securities of the Company, in a single transaction or series of related transactions (including, without limitation, one or more tender offers or exchange offers), representing at least 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company; provided that a transaction (or series of related transactions) consisting solely of the issuance by the Company of equity securities of the Company for cash consideration shall not be considered a Change of Control.

(d) “Common Stock Deemed Outstanding” means, at any given time, the sum of (a) the number of shares of Common Stock actually outstanding at such time, plus (b) the number of shares of Common Stock issuable upon exercise of Options actually outstanding at such time, plus (c) the number of shares of Common Stock reserved for issuance under any equity incentive plan approved by the Board of Directors of the Company at such time, regardless of whether the shares of Common Stock are actually subject to outstanding Options or Convertible Securities, plus (d) the number of shares of Common Stock issuable upon conversion or exchange of Convertible Securities actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the Options or Convertible Securities are actually exercisable at such time, plus (e) the number of shares of Common Stock that may be issued pursuant to any contract, agreement or arrangement of the Company in effect at such time, including without limitation shares of Common Stock to be issued in connection with any acquisition, joint venture, commercial relationship or the acquisition or license by the Company of the securities, businesses, property or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition; provided that Common Stock Deemed Outstanding at any given time shall not include shares of Common Stock owned or held by or for the account of the Company or any of its wholly owned subsidiaries

(e) “Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for the Common Stock, but excluding Options.

(f) “Exercise Period” means the period commencing on the date hereof and ending on the Expiration Date.

(g) “Expiration Date” means ten (10) years from the date hereof.

(h) “Fair Market Value” means, as of any particular date: (a) the volume weighted average of the closing sales prices of the Common Stock for such day on all U.S. securities exchanges on which the Common Stock may at the time be listed; (b) if there have been no sales of the Common Stock on any such exchange on any such day, the average of the highest bid and lowest asked prices for the Common Stock on all such exchanges at the end of such day; (c) if on any such day the Common Stock is not listed on a domestic securities exchange, the closing sales price of the Common Stock as quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association for such day; or (d) if there have been no sales of the Common Stock on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association on such day, the average of the highest bid and lowest asked prices for the Common Stock quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association at the end of such day; in each case, averaged over twenty (20) consecutive Business Days ending on the Business Day immediately prior to the day as of which “Fair Market Value” is being determined; provided that, if the Common Stock is listed on any U.S. securities exchange, the term "Business Day" as used in this sentence means Business Days on which such exchange is open for trading. If at any time the Common Stock is not listed on any domestic securities exchange or quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association, the "Fair Market Value” of the Common Stock shall be the fair market value per share as determined jointly by the Company’s Board of Directors and the Holder.

(i) “Liquid Securities” means a class of securities registered under Section 12(b) of the Exchange Act, which are listed or quoted for trading on a national securities exchange.

(j) “Options” means any warrants or other rights or options to subscribe for, acquire, purchase or otherwise be issued Common Stock or Convertible Securities.

(k) “Original Issue Date” means [●], 2020.

(l) “OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.

(m) “Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.

(n) “Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.

(o) “Securities Act” means the Securities Act of 1933, as amended.

2. EXERCISE OF WARRANT.

2.1 Exercise. The rights represented by this Warrant may be exercised in whole or in part at any time during the Exercise Period, by delivery of the following to the Company at its address set forth above (or at such other address as it may designate by notice in writing to the Holder):

(a) an executed Notice of Exercise in the form attached hereto;

(b) payment of the Exercise Price in cash (by wire transfer to the account designated in writing by the Company) or by check; and

Upon receipt by the Company of this Warrant and payment of the Exercise Price in cash (by wire transfer to the account designated in writing by the Company) or by check, or pursuant to Section 2.2, shares in certificated or book entry form representing the Exercise Shares so purchased, registered in the name of the Holder or Persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder at the Company’s expense within three (3) Business Days after such receipt.

The Person in whose name any certificate or book entry representing the Exercise Shares that are to be issued upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such shares.

2.2 Net Exercise. Notwithstanding any provisions herein to the contrary, if the Fair Market Value of one Exercise Share issuable hereunder is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant by payment of cash, the Holder may elect to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the properly endorsed Notice of Exercise in which event the Company shall issue to the Holder a number of Exercise Shares computed using the following formula:

X = Y (A-B)

Where X = the number of Exercise Shares to be issued to the Holder

Y =

the number of Exercise Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)

A =

the Fair Market Value of one Exercise Share purchasable under the Warrant (at the date of such calculation)

B =

Exercise Price (as adjusted to the date of such calculation)

The Company acknowledges that the provisions of this Section 2.2 are intended, in part, to ensure that a full or partial exchange of this Warrant pursuant to this Section 2.2 will qualify as a conversion, within the meaning of paragraph (d)(3)(iii) of Rule 144 under the Securities Act. At the request of the Holder, the Company will accept reasonable modifications to the exchange procedures provided for in this Section in order to accomplish such intent. For all purposes of this Warrant (other than this Section 2), any reference herein to the exercise of this Warrant shall be deemed to include a reference to the exchange of this Warrant for Exercise Shares in accordance with the terms of this Section 2.2.

2.3 Automatic Exercise.

(a) Change of Control. In the event of a Change of Control, if the fair market value of the consideration payable in connection with such Change of Control for each share of Common Stock is greater than the per share Exercise Price hereunder, the Company may elect by providing proper notice pursuant to Section 3.4 hereof (“Auto-Exercise Notice”) to cause this Warrant to be automatically exercised (even if this Warrant is not surrendered), in lieu of an exercise in accordance with Section 2.1 or Section 2.2, upon consummation of such Change of Control to the extent that any portion of the Warrant remains unexercised at the time of the consummation of the Change of Control. The Holder shall be entitled to receive consideration in the amount equal to the difference between the consideration payable in connection with such Change of Control for the Exercise Shares, if exercised, and the Aggregate Exercise Price for such Exercise Shares. The consideration payable to the Holder in connection with this Section 2.3(a) shall be in the same form as the consideration distributed to holders of Common Stock in connection with such Change of Control; provided that, if the consideration distributed to holders of Common Stock in connection with such Change of Control consists of consideration other than cash or Liquid Securities (or a combination thereof), the consideration payable to the Holder in connection with this Section 2.3(a) shall be an amount of cash payable by the Company equal to the aggregate Fair Market Value of the Exercise Shares minus the Aggregate Exercise Price. To the extent this Warrant or any portion thereof is automatically exercised pursuant to this Section 2.3(a), the Company agrees to promptly notify the Holder of the amount and form of consideration payable to the Holder in connection with such Change of Control. This Warrant shall terminate in connection with a deemed exercise pursuant to this Section 2.3. If the fair market value of the consideration payable in connection with a Change of Control for each share of Common Stock is equal to or less than the per share Exercise Price, this Warrant will expire upon the consummation of a Change of Control to the extent this Warrant has not been previously exercised as to all Exercise Shares subject hereto.

(b) Expiration Date. To the extent that there has not been an exercise of this Warrant pursuant to this Section 2, any portion of the Warrant that remains unexercised shall be exercised automatically in whole (not in part), upon the Expiration Date in the manner set forth in Section 2.2.

2.4 Delivery of New Warrant. Unless the purchase rights represented by this Warrant shall have expired or shall have been fully exercised, the Company shall, at the time of delivery of the shares representing the Exercise Shares being issued in accordance with this Section 2, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unexpired and unexercised Exercise Shares called for by this Warrant. Such new Warrant shall in all other respects be identical to this Warrant.

3. COVENANTS OF THE COMPANY.

3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly issued and outstanding, fully paid and nonassessable. The Company further covenants and agrees that the Company will at all times during the Exercise Period have authorized and reserved, free from preemptive rights, a sufficient number of Exercise Shares to provide for the exercise of the rights represented by this Warrant. If at any time during the Exercise Period the number of authorized but unissued Exercise Shares shall not be sufficient to permit exercise of this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued Exercise Shares to such number of shares as shall be sufficient for such purposes.

3.2 Expenses and Taxes. The Company shall pay all reasonable and documented expenses, taxes and owner charges payable in connection with the preparation, issuance and delivery of certificates (if any) for the Exercise Shares and any new Warrants.

3.3 No Impairment. Except and to the extent as waived or consented to by the Requisite Holders, the Company will not adopt any amendment to its certificate of incorporation or by-laws which has as a principal purpose thereof the disproportionate and adverse treatment of the Holder or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holder as set forth herein against impairment.

3.4 Notices. Prior to (a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, (b) a Change of Control, (c) the issuance by the Company of any shares of Common Stock, Options, Convertible Securities or any other equity securities of the Company, in each case that would result in an adjustment pursuant to Section 4 to the number of Exercise Shares issuable upon exercise of this Warrant, the Company shall send to the Holder, at least thirty (30) days prior to the date of any such action, a notice specifying the date on which any such proposed action is to be taken and, in the case of a Change of Control, whether the Company intends to exercise its automatic exercise rights under Section 2.3(a) upon the Change of Control.

4. EFFECT OF CERTAIN EVENTS ON EXERCISE SHARES.

4.1 Adjustment to Exercise Shares Upon Reorganization, Reclassification, Consolidation or Merger. In the event of any (i) capital reorganization of the Company, (ii) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (iii) consolidation or merger of the Company with or into another Person, (iv) sale of all or substantially all of the Company’s assets to another Person or (v) other similar transaction, in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, each Warrant shall, immediately after such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Exercise Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale or similar transaction and acquired the applicable number of Exercise Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Warrant shall thereafter be applicable, as nearly as possible, to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant. The provisions of this Section 4.1 shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or similar transaction. The Company shall not effect any such reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant. Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by the provisions of this Section 4.1, the Holder shall have the right to elect, prior to the consummation of such event or transaction, to give effect to the exercise rights contained in Section 2 instead of giving effect to the provisions contained in this Section 4.1 with respect to this Warrant.

4.2 Dividends and Distributions. Subject to the provisions of Section 4.1, as applicable, if the Company shall, at any time or from time to time after the Original Issue Date, make or declare, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or any other distribution payable in securities of the Company (other than a dividend or distribution of shares of Common Stock, Options or Convertible Securities in respect of outstanding shares of Common Stock), cash or other property, then, and in each such event, provision shall be made so that the Holder shall receive upon exercise of the Warrant, in addition to the number of Exercise Shares receivable thereupon, the kind and amount of securities of the Company, cash or other property which the Holder would have been entitled to receive had the Warrant been exercised in full for Exercise Shares on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the Exercise Date, retained such securities, cash or other property receivable by them as aforesaid during such period, giving application to all adjustments called for during such period under this Section 4.2 with respect to the rights of the Holder; provided that no such provision shall be made if the Holder receives, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities, cash or other property in an amount equal to the amount of such securities, cash or other property as the Holder would have received if the Warrant had been exercised in full for Exercise Shares on the date of such event.

4.3 Certificate as to Adjustment.

(a) As promptly as reasonably practicable following any adjustment to the Exercise Shares, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.

(b) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Exercise Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.

5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after aggregation, the exercise would result in the issuance of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash equal to the product resulting from multiplying the then current Fair Market Value of an Exercise Share by such fraction.

6. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not entitle the Holder to any rights as a stockholder of the Company, and prior to the issuance to the Holder of the Exercise Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant, the Holder shall not be entitled to vote or be deemed the holder of shares of capital stock of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, or subscription rights, or otherwise; provided that, in the event the Company declares a dividend during the Exercise Period, the Holder shall be entitled to participate in such dividend in accordance with Section 4.2 hereof.

7. COMPLIANCE WITH THE SECURITIES ACT; LEGEND. The Holder, by acceptance of this Warrant, agrees to comply in all respects with the provisions of this Section 7 and the restrictive legend requirements set forth on the face of this Warrant. This Warrant and all Exercise Shares issued upon exercise of this Warrant (unless registered under the Securities Act) shall be stamped or imprinted with a legend in substantially the following form:

8. TRANSFER OF WARRANT. Subject to applicable laws and the restriction on transfer set forth on the first page of this Warrant and the Warrant Agreement, this Warrant and all rights hereunder are transferable, in whole or in part, by the Holder in person or by duly authorized attorney, upon delivery of this Warrant and the form of assignment attached hereto to any transferee designated by Holder.

9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.

10. NOTICES, ETC. Any notice required or permitted hereunder shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first Business Day after transmission if sent by confirmed facsimile transmission, or four (4) Business Days after deposit in the United States mail, by registered or certified mail, postage prepaid, addressed (i) if to the Company, at the Company’s address as set forth in the Warrant Agreement, and (ii) if to the Holder, at the Holder’s address as set forth in the Warrant Agreement, or at such other address as the Company or Holder may designate by advance written notice.

11. AMENDMENT AND WAIVER. Any term of this Warrant may be amended or waived with the written consent of the Company and the Requisite Holders.

12. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder shall be governed by and construed in accordance with the Delaware General Corporation Law as to matters within the scope thereof, and as to all other matters shall be governed by, and construed in accordance with, the internal laws of the State of New York, without reference to principles of conflict of laws or choice of laws.

[signature page follows]

IN WITNESS WHEREOF, the Company and the Holder have each caused this Warrant to be executed by its duly authorized officer as of the date first above written.

	FREIGHTCAR AMERICA, INC.



	By:
	Name:
	Title:

	CO FINANCE LVS VI LLC



	By:
	Name:
	Title:

[Signature Page to Warrant]

NOTICE OF EXERCISE

1.a. ☐ The undersigned hereby elects to purchase a number of shares of Common Stock, par value $0.01 per share (the “Securities”), of FreightCar America, Inc. (the “Company”) equal to ___% of the Common Stock Deemed Outstanding pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full.

1.b ☐ The undersigned hereby elects to purchase a number of shares of Common Stock, par value $0.01 per share (the “Securities”), of FreightCar America, Inc. (the “Company”) equal to ___% of the Common Stock Deemed Outstanding pursuant to the terms of the net exercise provisions set forth in Section 2.2 of the attached Warrant.

2. Please issue said shares of Common Stock in the name of the undersigned or in such other name as is specified below:


(Name)



(Address)




(Date)		(Signature)


		(Print name)

ASSIGNMENT FORM

(To assign the foregoing Warrant or a portion thereof, execute this form and supply required information. Do not use this form to purchase shares.)

FOR VALUE RECEIVED, the foregoing Warrant (or portion thereof) and all rights evidenced thereby are hereby assigned to

Name:		(“Assignee”)
	(Please Print)

Address:
	(Please Print)

Assignee agrees to take and hold the Warrant and any shares of stock to be issued upon exercise of the rights thereunder subject to, and to be bound by, the terms and conditions set forth in the Warrant to the same extent as if Assignee were the original holder thereof.

Dated: ___________, 20__

Holder’s Signature:

Holder’s Address:

Assignee’s Signature:

Assignee’s Address:

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant (or portion thereof).

Exhibit 10.8

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is dated as of [●], 2020 (the “Effective Date”), by and between FreightCar America, Inc., a Delaware corporation (the “Company”), and CO Finance LVS VI LLC, a Delaware limited liability company (the “Investor”).

Recitals

A. The Investor shall acquire a warrant (the “Warrant”) which shall be exercisable for shares of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”) equal, in the aggregate, to twenty-three percent (23%) of the Common Stock Deemed Outstanding (the “Shares”) pursuant to that certain Warrant Acquisition Agreement, dated as of October [●], 2020, by and between the Company and the Investor (the “Warrant Agreement”).

B. In connection with the closing of the transactions contemplated by the Warrant Agreement (the “Closing”), the Company desires to enter into this Agreement with the Investor to grant the Investor the registration rights set forth below.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

DEFINITIONS

All capitalized terms used but not defined herein shall have the meanings ascribed to those terms in the Warrant Agreement. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:

“Agreement” has the meaning set forth in the Preamble.

“Business Day” is any day other than a day on which banks and other financial institutions are authorized or required to be closed for business in the State of New York.

“Closing” has the meaning set forth in the Recitals.

“Common Stock” has the meaning set forth in the Recitals.

“Company” has the meaning set forth in the Preamble.

“Demand Registration Notice” has the meaning set forth in Section 2.1.

“Demand Registration Statement” has the meaning set forth in Section 2.1.

“Effective Date” has the meaning set forth in the Preamble.

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

“FINRA” means the Financial Industry Regulatory Authority, Inc.

“General Disclosure Package” has the meaning set forth in Section 6.1(a).

“Indemnified Party” has the meaning set forth in Section 6.3.

“Indemnifying Party” has the meaning set forth in Section 6.3.

“Initiating Investor” has the meaning set forth in Section 3.2.

“Investor” has the meaning set forth in the Preamble.

“Permitted Transferee” means, with respect to any Investor, any other person in which the Investor owns a majority of the equity interests or any other investment entity that is controlled, advised or managed by the same person or persons that control the Investor or is an Affiliate of that person.

“Piggyback Registration Statement” has the meaning set forth in Section 3.1.

“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.

“Registrable Shares” means the Common Stock held by the Investor in the Company or any successor to the Company (including Common Stock acquired on or after the Effective Date or upon the exercise of the Warrant), excluding any Common Stock that (a) has been disposed of pursuant to any offering or sale in accordance with a Registration Statement, or has been sold pursuant to Rule 144 or Rule 145 (or any successor provisions) under the Securities Act or in any other transaction in which the purchaser does not receive “restricted securities” (as that term is defined for purposes of Rule 144 under the Securities Act), (b) has been transferred to a transferee that has not agreed in writing and for the benefit of the Company to be bound by the terms and conditions of this Agreement or (c) has ceased to be of a class of securities of the Company that is listed and traded on a recognized national securities exchange or automated quotation system.

“Registration Expenses” means all expenses incurred in connection with the preparation, printing and distribution of any Registration Statement and Prospectus and all amendments and supplements thereto, and any and all expenses incident to the performance by the Company of its registration obligations pursuant to this Agreement, including: (a) all registration, qualification and filing fees; (b) all fees and expenses associated with a required listing of the Registrable Shares on any securities exchange or market; (c) fees and expenses with respect to filings required to be made with The Nasdaq Stock Market (or such other securities exchange or market on which the Shares are then listed or quoted) or FINRA; (d) fees and expenses of compliance with securities or “blue sky” laws; (e) fees and expenses related to registration in any non U.S. jurisdictions, as applicable; (f) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including the expenses of any comfort letters, costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters, and expenses of any special audits incident to or required by any such registration); (g) all internal expenses of the Company (including all salaries and expenses of its officers and employees performing legal or accounting duties); (h) the fees and expenses of any person, including special experts, retained by the Company in connection with the preparation of any Registration Statement; and (i) the reasonable fees and disbursements of one special legal counsel to represent the Investor.

“Registration Statement” and “Prospectus” mean, as applicable, the Demand Registration Statement and related prospectus (including any preliminary prospectus) or the Piggyback Registration Statement and related prospectus (including any preliminary prospectus), whichever is utilized by the Company to satisfy the Investor’s registration rights pursuant to this Agreement, including, in each case, any documents incorporated therein by reference.

“Rule 144” means Rule 144 under the Securities Act or any successor rule thereto.

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

“Suspension Event” has the meaning set forth in Section 4.

DEMAND REGISTRATION RIGHTS

2.1 Demand Rights. At any time, and from time to time, the Investor may deliver to the Company a written notice (a “Demand Registration Notice”) informing the Company of its desire to have some or all of its Registrable Shares registered for sale. As soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than sixty (60) calendar days following receipt of such notice, the Company shall file a registration statement and related prospectus that complies as to form and substance in all material respects with applicable SEC rules providing for the sale by the Investor of all of the Registrable Shares requested to be registered by the Investor (the “Demand Registration Statement”), and agrees (subject to Sections 4 and 5.2) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the SEC upon, or as soon as practicable following, the filing thereof. Subject to Section 4, the Company agrees to use commercially reasonable efforts to keep the Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the date on which the Investor consummates the sale of all of the Registrable Shares registered for resale under the Demand Registration Statement or such earlier date on which all Registrable Shares held by the Investor are freely tradeable in a single transaction pursuant to Rule 144 (or any successor provision).

2.2 Underwritten Offering. If the Investor intends to distribute the Registrable Shares covered by its Demand Registration Notice by means of an underwriting, it shall so advise the Company as a part of its Demand Registration Notice. Notwithstanding any other provision of this Section 2, if an underwriter advises the Company that, in the opinion of the underwriter, the distribution of all of the Registrable Shares requested to be registered would materially and adversely affect the distribution of all of the securities to be underwritten, then (a) the Company shall deliver to the Investor a copy of the underwriter’s opinion, which shall be in writing and state the reasons for its opinion, and (b) the number of Registrable Shares that may be included in such registration shall be allocated: (i) first, to the Investor; and (ii) second, to the other persons proposing to register securities in such registration, if any; provided, however, that the number of Registrable Shares to be included in the underwriting shall not be reduced unless all other securities are entirely excluded from the underwriting. Any Registrable Shares excluded or withdrawn from the underwriting shall be withdrawn from the registration.

2.3 Selection of Underwriter. The Investor shall have the right to select the underwriter or underwriters to administer any underwritten demand registration offering or underwritten takedown under a Demand Registration Statement; provided that the underwriter or underwriters shall be reasonably acceptable to the Company.

INCIDENTAL OR “PIGGY-BACK” REGISTRATION

3.1 Piggy-Back Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of its Common Stock, whether to be sold by the Company or by one or more selling securityholders, other than (a) a Demand Registration Statement (in which case the ability of an Investor to participate in the Demand Registration Statement shall be governed by Section 2.1) or (b) a registration statement (i) on Form S-8 or any successor form to Form S-8 or in connection with any employee or director welfare, benefit or compensation plan, (ii) in connection with an exchange offer or an offering of securities exclusively to existing securityholders of the Company or its subsidiaries or (iii) relating to a transaction pursuant to Rule 145 under the Securities Act, the Company shall give written notice of the proposed registration to the Investor at least twenty (20) calendar days prior to the filing of the Registration Statement. The Investor shall have the right to request that all or any portion of its Registrable Shares be included in the Registration Statement by giving written notice to the Company within ten (10) calendar days after receipt of the foregoing notice by the Company. Subject to the provisions of Sections 3.1, 3.2 and 5.2, the Company will include all such Registrable Shares requested to be included by the Investor in the Piggyback Registration Statement. For purposes of this Agreement, any Registration Statement of the Company in which Registrable Shares are included pursuant to this Section 3.1 shall be referred to as a “Piggyback Registration Statement.”

3.2 Withdrawal of Exercise of Rights. If, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Piggyback Registration Statement filed in connection with such registration, the Company or any other holder of securities that initiated such registration (each, an “Initiating Investor”) determines for any reason not to proceed with the proposed registration, the Company may at its election (or the election of the Initiating Investor(s), as applicable) give written notice of the determination to the Investor and thereupon shall be relieved of its obligation to register any Registrable Shares in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith).

3.3 Underwritten Offering. If a registration pursuant to this Section 3 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of securities which the Company and the holders of the Registrable Shares and any other persons intend to include in the registration exceeds the largest number of securities that can be sold in the offering without having an adverse effect on the offering (including the price at which the securities can be sold), then the Company shall include in the registration the maximum number of securities as follows: (a) first, all of the securities the Company proposes to sell for its own account, if any; provided that the registration of the securities was initiated by the Company with respect to securities intended to be registered for sale for its own account; (b) second, the number of Registrable Shares requested to be included in the registration by the Investor which, in the opinion of the managing underwriter, can be sold without having the adverse effect described above; and (c) third, the securities requested to be included therein by holders of Common Stock other than holders of Registrable Securities, allocated among such holders in such manner as they may agree.

3.4 Selection of Underwriter. Except to the extent Section 2.3 applies, Registrable Shares proposed to be registered and sold under this Section 3 pursuant to an underwritten offering for the account of the Investor holding Registrable Shares shall be sold to prospective underwriters selected by the Company and on the terms and subject to the conditions of one or more underwriting agreements negotiated by the Company and the Investor.

Suspension of OfferingS

Notwithstanding the provisions of Section 2 or 3, the Company shall be entitled to postpone the effectiveness of the Registration Statement, and from time to time to require the Investor not to sell under the Registration Statement or to suspend the effectiveness thereof, if the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or another event has occurred, which negotiation, consummation or event the Company 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 Company’s reasonable determination, to cause the Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend the Registration Statement on more than two (2) occasions or for more than thirty (30) consecutive calendar days, or more than one hundred twenty (120) total calendar days, during any twelve (12) month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective or, if as a result of a Suspension Event, the Registration Statement or related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the Prospectus) not misleading, the Investor agrees that it will immediately discontinue offers and sales of the Registrable Shares under the Registration Statement until the Investor receives copies of a supplemental or amended Prospectus (which the Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales. If so directed by the Company, the Investor will deliver to the Company or, in the Investor’s sole discretion, destroy all copies of the Prospectus covering the Registrable Shares in the Investor’s possession.

Registration Procedures

5.1 Obligations of the Company. When the Company is required to effect the registration of Registrable Shares under the Securities Act pursuant to this Agreement, the Company shall:

(a) use commercially reasonable efforts to register or qualify the Registrable Shares by the time the applicable Registration Statement is declared effective by the SEC under all applicable state securities or “blue sky” laws of such jurisdictions as the Investor may reasonably request in writing, to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement, and to do any other similar acts and things that may be reasonably necessary or advisable to enable the Investor to consummate the disposition of the Registrable Shares owned by the Investor in each such jurisdiction; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for this Agreement, (ii) take any action that would cause it to become subject to any taxation in any jurisdiction where it would not otherwise be subject to such taxation or (iii) take any action that would subject it to the general service of process in any jurisdiction where it is not then subject;

(b) prepare and file with the SEC such amendments and supplements as to the Registration Statement and the Prospectus used in connection therewith as may be necessary to (i) keep such Registration Statement effective, and (ii) comply with the provisions of the Securities Act with respect to the disposition of the Registrable Shares covered by such Registration Statement, in each case for such time as is contemplated in the applicable provisions above;

(c) promptly furnish, without charge, to the Investor the number of copies of the Registration Statement, each amendment and supplement thereto (in each case including all exhibits), and the Prospectus included in such Registration Statement (including each preliminary Prospectus) in conformity with the requirements of the Securities Act, the documents incorporated by reference in such Registration Statement or Prospectus and such other documents as the Investor may reasonably request to facilitate the public sale or other disposition of the Registrable Shares owned by the Investor;

(d) promptly notify the Investor (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings for that purpose, (iii) of any delisting or pending delisting of the Common Stock by any national securities exchange or market on which the Common Stock is then listed or quoted, and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the securities or “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose;

(e) use commercially reasonable efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and, if any such order suspending the effectiveness of a Registration Statement is issued, shall promptly use commercially reasonable efforts to obtain the withdrawal of such order at the earliest possible moment;

(f) until the expiration of the period during which the Company is required to maintain the effectiveness of the applicable Registration Statement as set forth in the applicable sections hereof, promptly notify the Investor: (i) of the existence of any fact of which the Company is aware or the happening of any event that has resulted, or could reasonably be expected to result, in (x) the Registration Statement, as is then in effect, 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 statements therein not misleading, or (y) the Prospectus included in such Registration Statement containing an untrue statement of a material fact or omitting to state a material fact necessary to make any statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate or that there exist circumstances not yet disclosed to the public which make further sales under such Registration Statement inadvisable pending such disclosure and post-effective amendment;

(g) if any event or occurrence giving rise to an obligation of the Company to notify the Investor pursuant to Section 5.1(f) takes place, subject to Section 4, the Company shall prepare and, to the extent the exemption from prospectus delivery requirements in Rule 172 under the Securities Act is not available, furnish to the Investor a reasonable number of copies of a supplement or post-effective amendment to such Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document, and shall use commercially reasonable efforts to have the supplement or amendment declared effective, if required, as soon as practicable following the filing thereof, so that (i) such Registration Statement shall not contain any 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 not misleading, and (ii) as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(h) use commercially reasonable efforts to cause all such Registrable Shares to be listed or quoted on the national securities exchange or market on which the Common Stock is then listed or quoted, if the listing or quotation of the Registrable Shares is then permitted under the rules of such national securities exchange or market;

(i) if requested by any Investor participating in an offering of Registrable Shares, as soon as practicable after such request, but in no event later than fifteen (15) calendar days after such request, incorporate in a prospectus supplement or post-effective amendment such information concerning the Investor or the intended method of distribution as the Investor reasonably requests to be included therein and is reasonably necessary to permit the sale of the Registrable Shares pursuant to the Registration Statement, including information with respect to the number of Registrable Shares being sold, the purchase price being paid therefor and any other material terms of the offering of the Registrable Shares to be sold in such offering; provided, however, that the Company shall not be obligated to include in any such prospectus supplement or post-effective amendment any requested information that is not required by the rules of the SEC and is unreasonable in scope compared with the Company’s most recent prospectus or prospectus supplement used in connection with a primary or secondary offering of equity securities by the Company;

(j) in connection with the preparation and filing of any Registration Statement, the Company will give the Investor and its counsel (i) the opportunity to review and provide comments on such Registration Statement, each Prospectus included therein or filed with the SEC and each amendment thereof or supplement thereto (other than amendments or supplements that do not make any material change in the information related to the Company); provided that the Company shall not file any such Registration Statement including Registrable Shares or an amendment thereto or any related Prospectus or any supplement thereto to which the Investor or the managing underwriter or underwriters, if any, shall reasonably object in writing), and (ii) such access to its books and records and such opportunities to discuss the business of the Company and its subsidiaries with its officers, its counsel and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of the Investor’s and underwriters’ respective counsel, to conduct a reasonable due diligence investigation within the meaning of the Securities Act;

(k) provide a transfer agent and registrar and a CUSIP number for the Registrable Shares not later than the effective date of the first Registration Statement filed hereunder;

(l) cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Shares to be offered pursuant to the applicable Registration Statement and enable such certificates for the Registrable Shares to be in such denominations or amounts as the case may be, as the Investor may reasonably request and, within three (3) Business Days after a Registration Statement that includes Registrable Shares is ordered effective by the SEC, the Company shall deliver, or shall cause legal counsel selected by the Company to deliver, to the transfer agent for the Registrable Shares (with copies to the Investor) an appropriate instruction and opinion of such counsel;

(m) enter into an underwriting agreement in customary form and substance reasonably satisfactory to the Company, the Investor and the managing underwriter or underwriters of the public offering of Registrable Shares, if the offering is to be underwritten, in whole or in part, provided that the Investor may, at its option, require that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of the Investor. The Investor shall not be required to make any representations or warranties to or agreement with the Company or the underwriters other than representations, warranties or agreements regarding the Investor and its intended method of distribution and any other representation or warranty required by law or reasonably requested by the underwriters. The Company shall cooperate and participate in the marketing of Registrable Shares, including participating in customary “roadshow” presentations, as the Investor and/or the managing underwriters may reasonably request;

(n) furnish, at the request of the Investor on the date that any Registrable Shares are to be delivered to the underwriters for sale in connection with a registration pursuant to this Agreement, if such shares are being sold through underwriters, or, if such shares are not being sold through underwriters, on the date that the Registration Statement with respect to such shares becomes effective, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters, if any, to the Investor, and (ii) a letter dated such date, from the independent certified public accountants of the Company who have certified the Company’s financial statements included in the Registration Statement, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Investor;

(o) make available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month of the first fiscal quarter after the effective date of the applicable Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder; and

(p) take all other reasonable actions necessary to expedite and facilitate disposition by the Investor pursuant to the applicable Registration Statement.

5.2 Obligations of the Investor. In connection with any Registration Statement utilized by the Company to satisfy the provisions of this Agreement, the Investor agrees to reasonably cooperate with the Company in connection with the preparation of the Registration Statement, and the Investor agrees that such cooperation shall include (a) responding within fifteen (15) calendar days to any written request by the Company to provide or verify information regarding the Investor or the Investor’s Registrable Shares (including the proposed manner of sale) that may be required to be included in any Registration Statement pursuant to the rules and regulations of the SEC, and (b) providing in a timely manner information regarding the proposed distribution by the Investor of the Registrable Shares and any other information as may be requested by the Company from time to time in connection with the preparation of and for inclusion in any Registration Statement and related Prospectus.

5.3 Participation in Underwritten Registrations. No Investor may participate in any underwritten registration hereunder unless the Investor (a) agrees to sell the Investor’s Registrable Shares on the basis provided in the applicable underwriting arrangements (that shall include a customary form of underwriting agreement, which will provide that the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriters shall also be made to and for the benefit of the Investor), and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents in customary form as reasonably required under the terms of such underwriting arrangements; provided, however, that, in the case of each of clause (a) and (b), if the provisions of the underwriting arrangements, or the terms or provisions of the questionnaires, powers of attorney, indemnities, underwriting agreements or other documents, are less favorable in any respect to an Investor than to any other person or entity that is party to the underwriting arrangements as a selling stockholder, then the Company shall use commercially reasonable efforts to cause the parties to the underwriting arrangements to amend the arrangements so that the Investor receives the benefit of any provisions thereof that are more favorable to such other person or entity . If any Investor does not approve of the terms of the underwriting arrangements, the Investor may elect to withdraw from the offering by providing written notice to the Company and the underwriter(s).

5.4 Offers and Sales. All offers and sales by an Investor under any Registration Statement shall be completed within the period during which the Registration Statement is required to remain effective pursuant to the applicable provision above and not the subject of any stop order, injunction or other order of the SEC. Upon expiration of that period, no Investor will offer or sell the Registrable Shares under the Registration Statement. If directed in writing by the Company, the Investor will return or, in the Investor’s sole discretion, destroy all undistributed copies of the applicable Prospectus in its possession upon the expiration of the period.

INDEMNIFICATION; CONTRIBUTION

6.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls any Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any of their partners, members, managers, officers, directors, trustees, employees or representatives, as follows:

(a) against all loss, liability, claim, damage, judgment and expense whatsoever, as incurred (including reasonable fees and disbursements of counsel to the Investor), arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus (within the meaning of Rule 433 under the Securities Act, and together with any preliminary Prospectus and other information conveyed to the purchaser of Registrable Shares at the time of sale (as such terms are used in Rule 159(a) under the Securities Act), the “General Disclosure Package”), the General Disclosure Package or any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(b) against any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law;

(c) against all loss, liability, claim, damage, judgment and expense whatsoever, as incurred (including reasonable fees and disbursements of counsel to the Investor), and to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, any such alleged untrue statement or omission or any such violation or alleged violation, if such settlement is effected with the written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed); and

(d) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel to the Investor), reasonably incurred in investigating, preparing, defending against or participating in (as a witness or otherwise) any litigation, arbitration, action, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, any such alleged untrue statement or omission or any such violation or alleged violation, to the extent that any such expense is not paid under Section 6.1(a), (b) or (c) above;

provided, however, that the indemnity provided pursuant to this Section 6 does not apply to any Investor with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in strict conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) the Investor’s failure to deliver an amended or supplemental Prospectus furnished to the Investor by the Company, if required by law to have been delivered, if such loss, liability, claim, damage, judgment or expense would not have arisen had such delivery occurred.

6.2 Indemnification by Investor. The Investor agrees to indemnify and hold harmless the Company, and each of its directors and officers (including each director and officer of the Company who signed a Registration Statement), and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:

(a) against all loss, liability, claim, damage, judgment and expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares of the Investor were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus (within the meaning of Rule 433 under the Securities Act), the General Disclosure Package, or any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(b) against all loss, liability, claim, damage, judgment and expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), and to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Investor (which consent shall not be unreasonably withheld, conditioned or delayed); and

(c) against all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing, defending against or participating in (as a witness or otherwise) against any litigation, arbitration, action, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, any such alleged untrue statement or omission or any such violation or alleged violation, to the extent that any such expense is not paid under Section 6.2(a) or (b) above;

provided, however, that the Investor shall only be liable under the indemnity provided pursuant to Section 6.2 with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in strict conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) the Investor’s failure to deliver an amended or supplemental Prospectus furnished to the Investor by the Company, if required by law to have been delivered, if such loss, liability, claim, damage or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 6, an Investor and any of its Permitted Transferees shall not be required to indemnify the Company, its directors, officers or control persons for any amount in excess of the amount of the aggregate net cash proceeds received by the Investor or its Permitted Transferee, as the case may be, from sales of the Registrable Shares of the Investor (or Permitted Transferee) under the Registration Statement that is the subject of the indemnification claim.

6.3 Conduct of Indemnification Proceedings. An indemnified party hereunder (the “Indemnified Party”) shall give reasonably prompt notice to the indemnifying party (the “Indemnifying Party”) of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify the Indemnifying Party (a) shall not relieve it from any liability which it may have under the indemnity provisions of Section 6.1 or 6.2 unless and only to the extent it did not otherwise learn of such action and the lack of notice by the Indemnified Party results in the forfeiture by the Indemnifying Party of substantial rights and defenses, and (b) shall not, in any event, relieve the Indemnifying Party from any obligations to any Indemnified Party other than the indemnification obligation provided under Section 6.1 or 6.2 above. If the Indemnifying Party so elects within a reasonable time after receipt of such notice, the Indemnifying Party may assume the defense of such action or proceeding at such Indemnifying Party’s own expense with counsel chosen by the Indemnifying Party and approved by the Indemnified Party, which approval shall not be unreasonably withheld or delayed; provided, however, that the Indemnifying Party will not settle, compromise or consent to the entry of any judgment with respect to any such action or proceeding without the written consent of the Indemnified Party unless such settlement, compromise or consent secures the unconditional release of the Indemnified Party; and provided further that, if the Indemnified Party reasonably determines that a conflict of interest exists where it is advisable for the Indemnified Party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall not be entitled to assume such defense and the Indemnified Party shall be entitled to separate counsel at the Indemnifying Party’s expense. If the Indemnifying Party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the Indemnifying Party’s counsel shall be entitled to conduct the Indemnifying Party’s defense and counsel for the Indemnified Party shall be entitled to conduct the defense of the Indemnified Party, it being understood that both such counsel will cooperate with each other to conduct the defense of such action or proceeding as efficiently as possible. If the Indemnifying Party is not so entitled to assume the defense of such action or does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the Indemnifying Party will pay the reasonable fees and expenses of counsel for the Indemnified Party. In such event, however, the Indemnifying Party will not be liable for any settlement effected without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If an Indemnifying Party is entitled to assume, and assumes, the defense of such action or proceeding in accordance with this paragraph, the Indemnifying Party shall not be liable for any fees and expenses of counsel for the Indemnified Party incurred thereafter in connection with such action or proceeding.

6.4 Contribution.

(a) To provide for just and equitable contribution in circumstances in which the indemnity agreement in Sections 6.1 through 6.3 is for any reason held to be unenforceable by the Indemnified Party although applicable in accordance with its terms, the Indemnified Party and the Indemnifying Party shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by the Indemnified Party and the Indemnifying Party, in such proportion as is appropriate to reflect the relative fault of the Indemnified Party, on the one hand, and the Indemnifying Party, on the other hand, in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses. The relative fault of the Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether the action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or 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 action.

(b) The parties agree that it would not be just or equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6.4, an Investor shall not be required to contribute any amount (together with the amount of any indemnification payments made by the Investor pursuant to Section 6.2) in excess of the amount of the aggregate net cash proceeds received by the Investor from sales of the Registrable Shares of the Investor under the Registration Statement that is the subject of the indemnification claim.

(c) Notwithstanding the foregoing, 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. For purposes of this Section 6.4, each person, if any, who controls an Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any of their partners, members, officers, directors, trustees, employees or representatives, shall have the same rights to contribution as the Investor, and each director of the Company, each officer of the Company who signed a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.

EXPENSES

The Company will pay all Registration Expenses in connection with each registration of Registrable Shares pursuant to Section 2 or 3. The Investor shall be responsible for the payment of all brokerage and sales commissions, fees and disbursements of the Investor’s counsel that are not Registration Expenses, accountants and other advisors, and any transfer taxes relating to the sale or disposition of the Registrable Shares by the Investor pursuant to any Registration Statement or otherwise.

RULE 144 REPORTING

With a view to making available to the Investor the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit an Investor to sell securities of the Company to the public without registration or pursuant to a registration statement, if the Common Stock of the Company is registered under the Exchange Act, the Company agrees to:

(a) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

(b) for so long as the Investor owns any Registrable Shares, furnish to any Investor upon request (i) a written statement from the Company that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to a registration statement, (ii) 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 (iii) such other information as may be reasonably requested in availing any Investor of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to a registration statement.

MISCELLANEOUS

9.1 Waivers. No waiver by a party shall be effective unless made in a written instrument duly executed by the party against whom the waiver is sought to be enforced, and only to the extent set forth in that instrument. Neither the waiver by any of the parties of a breach or a default under any of the provisions of this Agreement, nor the failure of any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder.

9.2 Notices. Notices to the Company and to the Investor shall be sent to their respective addresses as set forth in the Warrant Agreement. The Company or any Investor may require notices to be sent to a different address by giving notice to the other parties in accordance with this Section 9.2. Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given upon receipt if and when delivered personally, sent by facsimile transmission (the confirmation being deemed conclusive evidence of delivery) or by overnight courier service or three calendar days after being sent by registered or certified mail (postage prepaid, return receipt requested), to such parties at such address.

9.3 Public Announcements and Other Disclosure. No Investor shall make any press release, public announcement or other disclosure with respect to this Agreement without obtaining the prior written consent of the Company, except as may be required by law or the rules or regulations of any securities exchange or national market system upon which the securities of the Investor are listed or quoted; provided that, in the case of any disclosure required by law, rule or regulation, the Investor making the disclosure shall use all reasonable efforts to consult with the Company prior to making the disclosure.

9.4 Headings and Interpretation. All section and subsection headings in this Agreement are for convenience of reference only and are not intended to qualify the meaning, construction or scope of any of the provisions hereof. The Investor hereby disclaims any defense or assertion in any litigation or arbitration that any ambiguity herein should be construed against the drafter.

9.5 Entire Agreement; Amendment. This Agreement, together with the Purchase Agreement and any related exhibits and schedules hereto or thereto, constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties with respect to the subject matter hereof and thereof. Notwithstanding the foregoing, in the event of any conflict between the terms and provisions of this Agreement and those of the Purchase Agreement, the terms and conditions of this Agreement shall control. Except as otherwise expressly provided in this Agreement, no amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by the Company and the Investor.

9.6 Assignment; Successors and Assigns. This Agreement and the rights granted hereunder may not be assigned by any Investor without the written consent of the Company; provided, however, that the rights to cause the Company to register Registrable Shares pursuant to this Agreement may be assigned by an Investor to a Permitted Transferee of the Investor’s Registrable Shares; and provided further that in each case the transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto, their successors, heirs, legatees, devisees, permitted assigns, legal representatives, executors and administrators, except as otherwise provided herein.

9.7 Saving Clause. If any provision of this Agreement, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. If the operation of any provision of this Agreement would contravene the provisions of any applicable law, such provision shall be void and ineffectual. In the event that applicable law is subsequently amended or interpreted in such a way to make any provision of this Agreement that was formerly invalid valid, such provision shall be considered to be valid from the effective date of such interpretation or amendment.

9.8 Counterparts; Exchanges. This Agreement may be executed in multiple counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The execution and exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile, electronic mail or another form of electronic signature or transmission (including .pdf) shall be sufficient to bind the parties to the terms of this Agreement.

9.9 Representations and Warranties. Each of the parties hereto, as to itself only, represents and warrants that this Agreement has been duly authorized and executed by it and that all necessary corporate actions have been taken by it in order for this Agreement to be enforceable against it under all applicable laws. Each party hereto, as to itself only, further represents and warrants that all persons signing this Agreement on such party’s behalf have been duly authorized to do so.

9.10 Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without application of the conflict of laws principles thereof.

9.11 Service of Process and Venue. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the United States District Court for the Southern District of New York, the Supreme Court of the State of New York and the federal courts of the United States of America located in the State of New York in the event any dispute arises out of this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it will not bring any action relating to this Agreement in any court other than any court of the United States located in the State of New York and (d) consents to service being made through the notice procedures set forth in Section 9.2. Each of the parties agrees that service of any process, summons, notice or document by registered mail pursuant to Section 9.2 shall be effective service of process for any suit or proceeding in connection with this Agreement.

9.12 Specific Performance. The parties agree that irreparable damage would occur in the event the provisions of this Agreement were not performed in accordance with the terms hereof, and that the Investor and the Company shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

9.13 No Third-Party Beneficiaries. Except as expressly set forth in Section 6, it is the explicit intention of the parties that no person other than the parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against any of the parties hereto, and the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto or their respective successors, heirs, executors, administrators, legal representatives and permitted assigns.

9.14 General Interpretive Principles. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in this Agreement include the plural as well as the singular, and the use of any gender or neuter form herein shall be deemed to include the other gender and the neuter form;

(b) references herein to “Sections”, “subsections,” “paragraphs”, and other subdivisions without reference to a document are to designated Sections, paragraphs and other subdivisions of this Agreement;

(c) a reference to a paragraph without further reference to a Section is a reference to the paragraph contained in the same Section in which the reference appears, and this rule shall also apply to other subdivisions;

(d) the words “herein”, “hereof”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular provision;

(e) the term “include”, includes” or “including” shall be deemed to be followed by the words “without limitation”;

(f) the term “person” means any individual, corporation, partnership, limited liability company, association, joint venture, an association, a joint stock company, trust, unincorporated organization, governmental or political subdivision or agency or any other entity of whatever nature; and

(g) any reference to dollars or “$” shall be deemed to refer to U.S. dollars.

9.15 Termination. This Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) the date and time that the Purchase Agreement is terminated in accordance with its terms, (b) upon the mutual written agreement of the parties to terminate this Agreement or (c) the date and time at which no Registrable Securities remain outstanding; provided that Sections 6 and 7 of this Agreement shall survive any termination (along with any other provision necessary to give effect thereto).

[Signature Page Follows]

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

	FREIGHTCAR AMERICA, INC.

	By:
	Name:
	Title:

	CO Finance LVS VI LLC

	By:
	Name:
	Title:

EXHIBIT 99.1

FreightCar America, Inc. Announces Final Repositioning Steps

Acquires partner’s 50% interest in the Castaños, Mexico joint venture

Announces recapitalization plan to bolster balance sheet, expand Castaños, Mexico manufacturing operation, and support future growth

CHICAGO, Oct. 19, 2020 (GLOBE NEWSWIRE) -- FreightCar America, Inc. (NASDAQ: RAIL) (“FreightCar America” or the “Company”) announced the final strategic steps to reposition its business for long-term growth.

Highlights:

Completed transaction and now owns 100% of its new Castaños, Mexico manufacturing operation (“Castaños”), where all future railcar manufacturing is expected to be based by February 2021
Enters into new $40 million secured term loan agreement with a global investment management firm (“Lender”), with funding subject to the satisfaction of certain conditions, to strengthen balance sheet and drive its growth strategy
Will welcome two new members to its board of directors including Jesus Gil, General Manager of the Castaños joint venture and an owner of Fabricaciones y Servicios de Mexico SA. de C.V. (“Fasemex”), who will also become the Company’s new Vice President of Operations, and a future representative from the Lender following the closing of the new capital plan
Announces plan to host a virtual special meeting of stockholders necessary to complete the term loan funding by late November
Will host a special call to review its go forward strategy at 8:30 a.m. (Eastern Daylight Time) tomorrow, October 20, 2020

“Today is an exciting day and new beginning for FreightCar America as we announce the last steps in our plan to reposition the business for long-term growth,” said Jim Meyer, President and Chief Executive Officer. “We exit a prolonged period when our business was hampered by high costs, sustained losses and a generally challenged competitive position. We now enter a new chapter, where our business will be supported by a single new production facility designed specific to our needs, a highly experienced and cost competitive workforce, and a significantly enhanced competitive profile that includes a $25 million reduction in annual fixed costs achieved through the closures of our two facilities in Cherokee, Alabama (“Shoals”) and Roanoke, Virginia.”

Meyer added, “To support this new competitive positioning, we are announcing two critical transactions. The first involved the completion of the previously announced plan to acquire the remaining portion of the Castaños joint venture and I’m happy to report that Fasemex and the Gil Family have sold us their 50% ownership in exchange for roughly 2.26 million shares of our common stock. Given their successful history in the industry, we are excited to welcome the Gils to our team, to our board and as stockholders of our company. Next, we need to bolster our balance sheet and build capital to support the next phase of our expansion plans at the Castaños facility. Thus, we are announcing a new $40 million secured term loan with a well-respected global investment management firm. As a part of this transaction, our new term loan lender will receive, subject to our stockholders’ approval, a warrant to purchase up to 23% of the Company’s outstanding common stock, after giving effect to such issuance, at a nominal price. Additionally, one of their representatives will join our board following stockholder approval of the warrant.”

Meyer concluded, “We have announced a series of aggressive and proactive actions over the last few weeks to significantly change the competitive position of FreightCar America and emerge from the industry downturn and COVID-pandemic as a truly unique player in the railcar industry. While we had made significant progress in improving our business profile over the last few years, our financial and competitive path forward was uncertain. Today’s announcements mark the successful completion of many months of hard work and planning by our team, and most importantly, the repositioning of the business to thrive in the future. Our goal remains to become the lowest cost, highest quality producer of railcars in our industry. We will be resoundingly more competitive in 2021 and beyond, and we will be in one of the best positions that we’ve ever been in to grow and add value for all of our stakeholders following the completion of these last steps. I look forward to working with our stockholders to finalize this repositioning work, which will shift our investment thesis and long-term opportunity moving forward.”

Castaños, Mexico Joint Venture Interest Acquisition Completed

On October 16, 2020, FreightCar America acquired Fasemex’s 50% ownership in the Castaños, Mexico joint venture in exchange for 2,257,234 shares of FreightCar America’s common stock. FreightCar America now owns 100% of its new Castaños, Mexico operation, where all of FreightCar America’s railcar manufacturing is expected to be based by February 2021. FreightCar America and the Gil Family have previously invested over $35 million in Castaños, which is the newest purpose-built railcar manufacturing facility in North America. The plant currently has two production lines and additional lines will be added as industry demand ramps up.

The Company continues to forecast a $25 million reduction in fixed costs as a result of reduced rent and other fixed overhead that it expects to achieve at Castaños compared to its manufacturing footprint at the start of this year. In addition, the Company expects to have an improved labor and variable cost position with this facility. Lastly, FreightCar America has already hired a highly skilled, competitive workforce with substantial industry expertise at the plant.

Jesus Gil, general manager of the new Castaños railcar manufacturing operation and an owner of Fasemex, will be retained as Vice President of Operations of the Company and will be responsible for overseeing operations of the Mexico facility. Mr. Gil will also join FreightCar America’s board of directors later this month. Mr. Gil has 30 years of experience in manufacturing, primarily in the railcar industry. He was previously part of the successful greenfield startups and managed operations for two of FreightCar America’s primary competitors. He was also the former Chief Executive Officer of Grupo Industrial Monclova, a leading industrial consortium that specializes in manufacturing for the industrial, energy, and mining industries.

Recapitalization Plan to Support Future Growth

FreightCar America has entered a new $40 million secured term loan credit agreement with a global investment management firm, with funding subject to the satisfaction of certain conditions. Following the closing of the transaction, the Company expects to have a stronger balance sheet and ample liquidity to drive its growth strategy and complete the buildout of its Castaños production line expansion. The new credit agreement includes the issuance of a warrant to the Lender to purchase up to 23% of the Company’s outstanding common stock at a future date (after giving effect to such issuance), at a strike price equal to $0.01 per share. The term loan will be secured by a first lien on all assets other than working capital assets and will have a term ending five years following funding of the loan. Funding of the term loan is subject to the approval by FreightCar America’s stockholders of the issuance of the common stock issuable upon the Lender’s future exercise of the warrant. The secured loan agreement and the issuance of the warrant were unanimously approved by the Company’s board of directors.

FreightCar America will host a virtual special meeting of stockholders to consider and vote upon a proposal to approve the issuance of up to 23% of its issued and outstanding common stock issuable upon the exercise of the warrant in accordance with Nasdaq Listing Rules 5635(b) and 5635(d). That meeting will be held in a virtual format only, via live webcast on the Internet, by late November 2020. Following stockholder approval, a representative of the Lender will be added to FreightCar America’s board of directors.

Special Call & Webcast Information

The Company will host a conference call and live webcast on Tuesday, October 20, 2020 at 8:30 a.m. (Eastern Daylight Time) to discuss today’s announcements. Investors, analysts, and members of the media interested in listening to the live presentation are encouraged to join a webcast of the call, available on the Company’s website at:

Event URL: http://public.viavid.com/index.php?id=142096

Interested parties may also participate in the call by dialing 877-407-0789 or 201-689-8562 and should use conference code 13712254. Please dial in approximately 10 to 15 minutes prior to the start time of the call to ensure your participation. An audio replay of the conference call will be available beginning at 11:30 a.m. (Eastern Daylight Time) on Tuesday, October 20, 2020 until 11:59 p.m. (Eastern Daylight Time) on Tuesday, November 3, 2020. To access the replay, please dial 844-512-2921 or 412-317-6671. The replay pass code is 13712254. An audio replay of the call will be available on the Company’s website within two days following the earnings call.

About FreightCar America

FreightCar America, Inc. manufactures a wide range of railroad freight cars, supplies rail car parts and leases freight cars through its FreightCar America Leasing Company subsidiaries. FreightCar America designs and builds high-quality rail cars, including bulk commodity cars, covered hopper cars, intermodal and non-intermodal flat cars, mill gondola cars, coil steel cars, boxcars, coal cars and also specializes in the conversion of rail cars for repurposed use. It is headquartered in Chicago, Illinois and has facilities in the following locations: Cherokee, Alabama; Castaños, Mexico; Johnstown, Pennsylvania; and Shanghai, People’s Republic of China. More information about FreightCar America is available on its website at www.freightcaramerica.com.

Forward-Looking Statements

This press release may contain statements relating to our expected financial performance and/or future business prospects, events and plans that are “forward-looking statements” as defined under the Private Securities Litigation Reform Act of 1995. Forward-looking statements represent our estimates and assumptions only as of the date of this press release. Our actual results may differ materially from the results described in or anticipated by our forward-looking statements due to certain risks and uncertainties. These potential risks and uncertainties include, among other things: risks relating to the potential financial and operational impacts of the COVID-19 pandemic; the Shoals facility, including the facility not meeting internal assumptions or expectations and unforeseen liabilities from Navistar; the risk that our stockholders may not approve the issuance of the warrant or that the term loan may not be funded; the cyclical nature of our business; adverse economic and market conditions; fluctuating costs of raw materials, including steel and aluminum, and delays in the delivery of raw materials; our ability to maintain relationships with our suppliers of railcar components; our reliance upon a small number of customers that represent a large percentage of our sales; the variable purchase patterns of our customers and the timing of completion, delivery and customer acceptance of orders; the highly competitive nature of our industry; the risk of lack of acceptance of our new railcar offerings by our customers; and other competitive factors. We expressly disclaim any duty to provide updates to any forward-looking statements made in this press release, whether as a result of new information, future events or otherwise.

Important Information

This material may be deemed to be solicitation material in respect of the special meeting to be held in the near future. In connection with the special meeting, the Company will file a preliminary proxy statement with the United States Securities and Exchange Commission (the “SEC”) and will file a definitive proxy statement with the date and time of such meeting as soon as possible thereafter. BEFORE MAKING ANY VOTING OR INVESTMENT DECISIONS, INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PRELIMINARY PROXY STATEMENT AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC, BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE SPECIAL MEETING. The definitive proxy statement will be mailed to stockholders who are entitled to vote at the special meeting. Stockholders will also be able to obtain a copy of the definitive proxy statement free of charge by directing a request to the Company’s Vice President Finance, Chief Financial Officer, Treasurer and Corporate Secretary. In addition, the definitive proxy statement will be made available free of charge at the SEC’s website, www.sec.gov.

Investor & Media Contact

Alpha IR Group
Joe Caminiti or Elizabeth Steckel
312-445-2870
RAIL@alpha-ir.com