wabtecex1013q22






  EXECUTION VERSION    [[5869067v.6]]    AMENDMENT AND RESTATEMENT AGREEMENT dated as  of August 15, 2022 (this “Agreement”), among WESTINGHOUSE AIR  BRAKE TECHNOLOGIES CORPORATION, a Delaware corporation (the  “Company”), WABTEC TRANSPORTATION NETHERLANDS B.V., a  private limited liability company organized under the laws of the  Netherlands (besloten vennootschap met beperkte aansprakelijkheid) and  registered with the Commercial Register of the Dutch Chamber of  Commerce under number 72948957, the other LOAN PARTIES party  hereto, the LENDERS party hereto, the ISSUING BANKS party hereto, the  SWINGLINE LENDER and PNC BANK, NATIONAL ASSOCIATION,  as administrative agent.   Reference is made to that certain Credit Agreement dated as of June 8, 2018 (the  “Existing Credit Agreement”), among the Company, Wabtec Netherlands B.V., the other  borrowing subsidiaries party thereto from time to time, the lenders party thereto (the “Existing  Lenders”) and PNC Bank, National Association, as administrative agent.  Capitalized terms used  but not otherwise defined in this Agreement have the meanings specified in the Existing Credit  Agreement or the Restated Credit Agreement (as defined below), as applicable.  The Existing  Credit Agreement and the Restated Credit Agreement are sometimes collectively referred to as the  “Credit Agreement”.  The Company has requested, on the Restatement Effective Date (as defined below),  (a) the establishment of (i) Delayed Draw Term Commitments in an aggregate amount of  $250,000,000 and (ii) Revolving Commitments in an aggregate amount of $1,500,000,000 and (b)  the amendment and restatement of the Existing Credit Agreement, including the schedules and  exhibits thereto, to be in the form of the Restated Credit Agreement, including the schedules and  exhibits thereto.   Each Person whose name is set forth on Schedule 2.01 to Annex I hereto under the  caption “Delayed Draw Term Commitments” (each such Person, a “Delayed Draw Term Lender”)  and each Person whose name is set forth on Schedule 2.01 to Annex I hereto under the caption  “Revolving Commitments” (each such Person, a “Revolving Lender”) has agreed to provide a  Delayed Draw Term Commitment and/or a Revolving Commitment, as applicable, on the  Restatement Effective Date in an amount not to exceed the amount set forth on such Schedule  opposite its name, in each case on the terms set forth herein and in the Restated Credit Agreement  and subject to the conditions set forth herein.  Accordingly, in consideration of the mutual agreements contained herein and other  good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged,  the parties hereto agree as follows:  SECTION 1.  New Facilities.  (a) Delayed Draw Term Commitments.  On the terms set forth herein and in  the Restated Credit Agreement and subject to the conditions set forth herein, each Delayed Draw  Term Lender agrees that, on and as of the Restatement Effective Date, it shall have a Delayed  Draw Term Commitment in an amount set forth under the caption “Delayed Draw Term    2    [[5869067v.6]]    Commitments” opposite its name on Schedule 2.01 to Annex I hereto and shall be entitled to all  the rights of, and be bound by all of the obligations of, Delayed Draw Term Lenders under, and as  defined in, the Restated Credit Agreement and the other Loan Documents, including, without  limitation, the obligations of Delayed Draw Term Lenders under Section 2.01 of the Restated  Credit Agreement.  (b) Revolving Commitments; Swingline and Letter of Credit Facilities.    (i) On the terms set forth herein and in the Restated Credit Agreement  and subject to the conditions set forth herein, each Revolving Lender agrees that, on and  as of the Restatement Effective Date, such Revolving Lender shall have a Revolving  Commitment in an amount set forth under the caption “Revolving Commitments” opposite  its name on Schedule 2.01 to Annex I hereto and shall be entitled to all the rights of, and  be bound by all of the obligations of, Revolving Lenders under, and as defined in, the  Restated Credit Agreement and the other Loan Documents, including, without limitation,  the obligations of Revolving Lenders under Sections 2.01, 2.20 and 2.21 of the Restated  Credit Agreement.  (ii) Each party hereto acknowledges and agrees that, on the Restatement  Effective Date, the Applicable Percentage of the Revolving Lenders shall automatically be  redetermined to be based on the Revolving Commitments set forth on Schedule 2.01 to  Annex I hereto. Without limiting the foregoing, each Revolving Lender acknowledges and  agrees that, on the Restatement Effective Date and without any further action on the part  of any Person, each Issuing Bank shall be deemed to have granted to such Revolving  Lender, and such Revolving Lender shall have acquired from such Issuing Bank, a  participation in each Letter of Credit (including any Existing Letter of Credit set forth on  Schedule 2.20(b) to Annex I hereto) issued by such Issuing Bank and outstanding on the  Restatement Effective Date equal to such Revolving Lender’s Applicable Percentage (as  so automatically redetermined on the Restatement Effective Date) of the aggregate amount  available to be drawn under such Letter of Credit.    (iii) PNC Bank, National Association hereby agrees that, on and as of  the Restatement Effective Date, it shall be the Swingline Lender under the Restated Credit  Agreement, subject to the terms and conditions set forth in the Restated Credit Agreement.  (iv) Each Person whose name is set forth on Schedule 2.20(a) to Annex I  hereto hereby agrees that, on and as of the Restatement Effective Date, it shall be an Issuing  Bank under the Restated Credit Agreement and shall have an LC Commitment in an  amount set forth opposite its name on such Schedule 2.20(a) and shall be entitled to all of  the rights of, and be bound by all of the obligations of, an Issuing Bank under the Restated  Credit Agreement and the other Loan Documents, including, without limitation, the  obligations of Issuing Banks under Section 2.20 of the Restated Credit Agreement.  (c) General.  Each party hereto acknowledges and agrees that, on and as of the  Restatement Effective Date, Schedule 2.01 to Annex I hereto sets forth all the Commitments of all  the Lenders, and that no Person whose name does not appear on Schedule 2.01 to Annex I hereto    3    [[5869067v.6]]    shall have, or shall be deemed to have, on and as of the Restatement Effective Date, a Commitment  under the Restated Credit Agreement or be a Lender thereunder.  SECTION 2.  Dutch Borrowing Subsidiary.    (a) Termination of Existing Dutch Borrower.  Effective as of the Restatement  Effective Date, the parties hereto hereby agree that Wabtec Netherlands B.V., a private limited  liability company organized under the laws of the Netherlands (besloten vennootschap met  beperkte aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber  of Commerce under number 65631668 (the “Existing Dutch Borrower”), shall cease to be a  Borrowing Subsidiary and a party to the Credit Agreement and shall have no right to request or  receive further Revolving Borrowings or Swingline Loans or obtain Letters of Credit under the  Credit Agreement.  In connection with the foregoing, prior to (or substantially concurrently with)  the occurrence of the Restatement Effective Date, (i) all Loans made to Existing Dutch Borrower  outstanding under the Existing Credit Agreement (if any) shall be repaid in full, (ii) to the extent  the Company is not a joint and several co-applicant with respect to any Letters of Credit issued for  the account of the Existing Dutch Borrower (if any), the Company shall have agreed to become an  obligor with respect thereto pursuant to documentation reasonably satisfactory to the applicable  Issuing Bank, (iii) all amounts payable in connection with any Letters of Credit by the Existing  Dutch Borrower (if any) in respect of LC Disbursements and related fees shall have been paid in  full and (iv) all interest and other fees (and, to the extent notified by the Administrative Agent, any  Revolving Lender or any Issuing Bank, any other amounts) payable under the Existing Credit  Agreement by the Existing Dutch Borrower (if any) shall have been paid in full (the payments and  other actions described in clauses (i), (ii), (iii) and (iv) above, collectively, the “Existing Dutch  Borrower Termination Requirements”).  This Agreement shall constitute the Borrowing  Subsidiary Termination with respect to the Existing Dutch Borrower for all purposes of the Credit  Agreement.  The parties hereto hereby waive any additional notice requirements under  Section 2.22 of the Credit Agreement in respect of the foregoing.  (b) Designation of New Dutch Borrower.  Effective as of the Restatement  Effective Date, the Company hereby designates Wabtec Transportation Netherlands B.V., a private  limited liability company organized under the laws of the Netherlands (besloten vennootschap met  beperkte aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber  of Commerce under number 72948957 (the “New Dutch Borrower”), as, and the parties hereto  hereby agree that the New Dutch Borrower shall be, a Borrowing Subsidiary under the Revolving  Facility.  The Company and the New Dutch Borrower hereby represent and warrant that the New  Dutch Borrower is a wholly owned Subsidiary of the Company and is organized in the Netherlands  as a private limited liability company organized under the laws of the Netherlands (besloten  vennootschap met beperkte aansprakelijkheid).  Effective as of the Restatement Effective Date,  (i) this Agreement shall constitute the Borrowing Subsidiary Accession Agreement with respect  to the New Dutch Borrower for all purposes of the Restated Credit Agreement, (ii) the New Dutch  Borrower shall for all purposes of the Restated Credit Agreement be a Borrowing Subsidiary and  a party to the Restated Credit Agreement, (iii) the New Dutch Borrower hereby agrees to be bound  by all provisions of the Restated Credit Agreement applicable to it as a Borrower or a Borrowing  Subsidiary, (iv) the New Dutch Borrower expressly acknowledges the appointment of the  Company as its agent as set forth in Sections 2.22(c) and 10.09(e) of the Restated Credit Agreement  and (v) the New Dutch Borrower expressly acknowledges the provisions of Section 10.09(f) of the    4    [[5869067v.6]]    Restated Credit Agreement, and agrees that it shall be bound thereby.  The parties hereto hereby  waive any additional notice or consent requirements under Section 2.22 of the Restated Credit  Agreement in respect of the foregoing.  SECTION 3.  Amendment and Restatement of Existing Credit Agreement.   Effective as of the Restatement Effective Date, the Existing Credit Agreement (including the  Schedules and Exhibits thereto) is hereby amended and restated in its entirety to be in the form  attached as Annex I hereto (including the Schedules and Exhibits attached to Annex I hereto) (the  Existing Credit Agreement, as so amended and restated, being referred to as the “Restated Credit  Agreement”).  SECTION 4.  Restatement Effective Date.  This Agreement shall become effective  on the first date (the “Restatement Effective Date”) on which each of the following conditions  shall be satisfied (or waived in accordance with Section 10.02 of the Existing Credit Agreement):  (a) The Administrative Agent shall have received from each party hereto (and  such Persons shall, collectively, constitute the Required Lenders under the Existing Credit  Agreement) either (i) a counterpart of this Agreement signed on behalf of such party or  (ii) evidence satisfactory to the Administrative Agent (which, subject to Section 10.06 of  the Restated Credit Agreement, may include Electronic Signatures transmitted by emailed .pdf or  other any other electronic means that reproduces an image of an actual executed signature page)  that such party has signed a counterpart of this Agreement.  (b) The Administrative Agent shall have received a favorable written opinion  (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the  Restatement Effective Date) of Jones Day, and, to the extent not covered by the foregoing, counsel  reasonably acceptable to the Arrangers in each other jurisdiction where any Loan Party (including  the New Dutch Borrower) is organized, in each case in form and substance reasonably satisfactory  to the Administrative Agent and the Arrangers.  (c) The Administrative Agent shall have received such customary documents  and certificates as the Administrative Agent and the Arrangers may reasonably request relating to  the organization, existence and, if applicable, good standing of the Loan Parties (including the  New Dutch Borrower), the authorization of the Loan Documents, the incumbency of the Persons  executing any Loan Document on behalf of any such Loan Party and any other legal matters  relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance  reasonably satisfactory to the Administrative Agent and the Arrangers.  (d) The Administrative Agent shall have received a certificate, dated the  Restatement Effective Date and signed by the chief executive officer or the chief financial officer  of the Company, certifying that, as of the Restatement Effective Date and after giving effect to the  Transactions that are to occur on such date, (i) the representations and warranties of each Loan  Party (including the New Dutch Borrower) set forth in the Loan Documents are true and correct  (A) in the case of the representations and warranties qualified as to materiality, in all respects and  (B) otherwise, in all material respects and (ii) no Default has occurred and is continuing.  





 






  5    [[5869067v.6]]    (e) The Administrative Agent shall have received a solvency certificate from  the chief financial officer of the Company in the form of Exhibit H to the Restated Credit  Agreement demonstrating solvency (on a consolidated basis) of the Company and the Subsidiaries  as of the Restatement Effective Date after giving effect to the Transactions that are to occur on  such date.  (f) The Administrative Agent and the Lenders shall have received, at least two  Business Days prior to the Restatement Effective Date, (i) all documentation and other information  regarding each Loan Party (including the New Dutch Borrower) required by bank regulatory  authorities under applicable “know-your-customer” and anti-money laundering rules and  regulations, including the USA PATRIOT Act, to the extent reasonably requested at least  10 Business Days prior to the Restatement Effective Date, and (ii) to the extent any Borrower  (including the New Dutch Borrower) qualifies as a “legal entity customer” under the Beneficial  Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, to the  extent such Beneficial Ownership Certification is requested (and the applicable form(s) have been  provided to each Borrower for completion) at least 10 Business Days prior to the Restatement  Effective Date.  (g) All costs, expenses (including reasonable and documented legal fees and  expenses) and fees contemplated by the Loan Documents (or separately agreed in writing by the  Company with any of the Arrangers or the Administrative Agent) to be reimbursable or payable  to the Arrangers (or Affiliates thereof), the Administrative Agent or the Lenders shall have been  paid on or prior to the Restatement Effective Date, in each case, to the extent required to be paid  on or prior to the Restatement Effective Date and, in the case of costs and expenses, invoiced at  least two Business Days prior to the Restatement Effective Date.  (h) (i) The Company shall have given, in accordance with the Existing Credit  Agreement, a notice of prepayment of all Loans (as defined in the Existing Credit Agreement)  outstanding thereunder and a notice of termination of all Commitments (as defined in the Existing  Credit Agreement) in effect thereunder, it being understood that each such notice may be  conditioned on the substantially concurrent occurrence of the Restatement Effective Date,  (ii) substantially concurrently with the occurrence of the Restatement Effective Date, all principal,  interest and fees outstanding or accrued under the Existing Credit Agreement shall be paid or  repaid, and all Commitments under the Existing Credit Agreement shall terminate, and  (iii) substantially concurrently with the occurrence of the Restatement Effective Date, the Existing  Dutch Borrower Termination Requirements shall have been consummated.  The Administrative Agent shall notify the Company, the Lenders and the Issuing  Banks of the occurrence of the Restatement Effective Date, and such notice shall be conclusive  and binding absent manifest error.  SECTION 5.  Reaffirmation.  Without limiting its obligations under or the  provisions of the Restated Credit Agreement and the Guarantee Agreement, each of the Company  and each other Loan Party hereby (a) acknowledges that the terms “Loan Document Obligations”  and “Obligations” (and terms of similar import used in the Loan Documents) shall include all  principal of and premium, if any, and interest (including interest accruing, at the rate specified in  the Restated Credit Agreement or other applicable Loan Document, during the pendency of any    6    [[5869067v.6]]    bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed  or allowable in such proceeding) and all payments required to be made by any Loan Party under  the Restated Credit Agreement or any other Loan Document in respect of any Letter of Credit,  including payments in respect of reimbursement of LC Disbursements, interest thereon (including  interest accruing, at the rate specified in the Restated Credit Agreement or other applicable Loan  Document, during the pendency of any bankruptcy, insolvency, receivership or other similar  proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to  provide cash collateral and all other monetary obligations under the Restated Credit Agreement or  any other Loan Document, including fees, costs, expenses and indemnities, whether primary,  secondary, direct, contingent, fixed or otherwise (including monetary obligations accruing, at the  rate specified in the Restated Credit Agreement or any other Loan Document, or incurred during  the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless  of whether allowed or allowable in such proceeding), on, or made pursuant to, the Delayed Draw  Term Commitments, the Revolving Commitments, the LC Commitments, the Delayed Draw Term  Loans, the Revolving Loans and the Swingline Loans, as applicable, (b) affirms and confirms its  guarantee and other obligations under the Guarantee Agreement and its obligations under the  Credit Agreement and each other Loan Document to which it is a party, in each case after giving  effect to this Agreement and the effectiveness of the Restated Credit Agreement and (c) agrees  that the Guarantee Agreement and all guarantees and other commitments and obligations under  the Guarantee Agreement and the Credit Agreement shall continue to be in full force and effect  following the effectiveness of this Agreement and the Restated Credit Agreement.  SECTION 6.  Effect of Amendment.  (a) On and after the Restatement Effective Date, each reference in the Credit  Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import, and each reference  in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words  of like import, shall mean and be a reference to the Restated Credit Agreement.  (b) The Existing Credit Agreement, as specifically amended and restated by  this Agreement, is and shall continue to be in full force and effect and is hereby in all respects  ratified and confirmed.  Except as expressly set forth herein or in the Restated Credit Agreement,  this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or  otherwise affect the rights and remedies of the Lenders, the Issuing Banks, the Swingline Lender  or the Administrative Agent under the Existing Credit Agreement or any other Loan Document,  and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations,  covenants or agreements contained in the Existing Credit Agreement or any other Loan Document,  all of which are ratified and affirmed in all respects and shall continue in full force and effect.   Nothing herein shall be deemed to entitle any of the Company or any other Loan Party to a consent  to, or a waiver, amendment, modification or other change of, any of the terms, conditions,  obligations, covenants or agreements contained in the Credit Agreement or any other Loan  Document in similar or different circumstances.  This Agreement shall constitute a “Loan  Document” for all purposes of the Credit Agreement and the other Loan Documents.  SECTION 7.  Counterparts.  This Agreement may be executed in counterparts (and  by different parties hereto on different counterparts), each of which shall constitute an original,  but all of which when taken together shall constitute a single contract.  Delivery of an executed    7    [[5869067v.6]]    counterpart of a signature page of this Agreement that is an Electronic Signature transmitted by  emailed .pdf or any other electronic means that reproduces an image of an actual executed  signature page shall be effective as delivery of a manually executed counterpart of this Agreement.  SECTION 8.  No Novation.  The Company has requested, and the Lenders party  hereto have agreed, that the Existing Credit Agreement be, effective from the Restatement  Effective Date, amended and restated as set forth in the Restated Credit Agreement.  Such  amendment and restatement shall not constitute a novation of any Indebtedness or other  Obligations owing to the Lenders, the Issuing Banks, the Swingline Lender or the Administrative  Agent under the Existing Credit Agreement.  SECTION 9.  Governing Law.  This Agreement shall be governed by, and  construed in accordance with, the law of the State of New York.  SECTION 10.  Headings.  Section headings used herein are for convenience of  reference only, are not part of this Agreement and shall not affect the construction of, or be taken  into consideration in interpreting, this Agreement.  SECTION 11.  Severability.  Any provision of this Agreement held to be invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent  of such invalidity, illegality or unenforceability without affecting the validity, legality and  enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.  SECTION 12.  Incorporation by Reference.  The provisions of Sections 10.06,  10.09(b), 10.09(c), 10.09(d), 10.10 and 10.21 of the Restated Credit Agreement are hereby  incorporated by reference, mutatis mutandis, as if set forth in full herein.  [Signature Pages Follow]   





 






    





 






    INTERNAL  LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      HSBC BANK USA, N.A. (with any Lender that is an  Issuing Bank signing both in its capacity as a Lender  and as an Issuing Bank):  By:      Name: Kyle Patterson   Title: Senior Vice President                    LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      TD Bank, N.A. as a Lender and an Issuing Bank:  By:      Name:  Bernadette Collins   Title:    Senior Vice President    





 






         LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      BNP PARIBAS, signing in its capacity as a Lender:  By:      Name: Nader Tannous   Title: Managing Director        By:      Name: Louis Moran   Title: Vice President                CREDIT AGRICOLE CORPORATE AND  INVESTMENT BANK as a Lender and as an  Issuing Bank:  By:      Name: Paul Arens   Title:   Director      By:      Name: Gordon Yip   Title:   Director              LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      FIRST NATIONAL BANK OF PA (with any Lender  that is an Issuing Bank signing both in its capacity as a  Lender and as an Issuing Bank):  By:      Name:  Brad Johnston   Title:    Senior Vice President                   LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      MUFG Bank, Ltd.:  By:      Name: Victor Pierzchalski   Title: Managing Director        





 






        LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      BANK OF AMERICA, N.A. (with any Lender that is  an Issuing Bank signing both in its capacity as a Lender  and as an Issuing Bank):  By:      Name: Brian Lukehart   Title:   Managing Director                  LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION      THE BANK OF NOVA SCOTIA (with any Lender  that is an Issuing Bank signing both in its capacity as a  Lender and as an Issuing Bank):  By:      Name: Kelly Cheng   Title: Managing Director            





 






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     LENDER SIGNATURE PAGE TO   AMENDMENT AND RESTATEMENT AGREEMENT  RELATING TO THE CREDIT AGREEMENT OF  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION       CREDIT INDUSTRIEL ET COMMERCIAL,  NEW YORK BRANCH (with any Lender that is an  Issuing Bank signing both in its capacity as a Lender  and as an Issuing Bank):  By:       Name: Nicolas Regent   Title: Vice President       For any lender requiring a second signature block:  By:       Name: Eugene Kenny   Title: Vice President         NAI-1532315239v2  [[DMS:5869067v6:08/12/2022--06:14 PM]]   ANNEX I  Restated Credit Agreement  [See attached]  NAI-1532313684v2  ANNEX I        [[5866265v.11]]    Published Deal CUSIP Number: 96038PAM0             Published Delayed Draw Term Facility CUSIP Number: 96038PAP3        Revolving Facility CUSIP Number: 96038PAN8         CREDIT AGREEMENT  dated as of June 8, 2018,  as amended and restated as of August 15, 2022,  among  WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,  WABTEC TRANSPORTATION NETHERLANDS B.V.  and the other BORROWING SUBSIDIARIES Party Hereto,  the LENDERS Party Hereto  and  PNC BANK, NATIONAL ASSOCIATION,  as the Administrative Agent  ___________________________  PNC CAPITAL MARKETS LLC,  CITIBANK, N.A.,  HSBC BANK USA, N.A.,  HSBC CONTINENTAL EUROPE,  JPMORGAN CHASE BANK, N.A.,  and   TD SECURITIES (USA) LLC,  as Joint Lead Arrangers and Joint Bookrunners    CITIBANK, N.A.,  HSBC BANK USA, N.A.,  HSBC CONTINENTAL EUROPE,  JPMORGAN CHASE BANK, N.A.,  and   TD BANK, N.A.,  as Syndication Agents    BNP PARIBAS,  CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,  FIRST NATIONAL BANK OF PA,  MUFG BANK, LTD.,  and   US BANK, N.A.,  as Documentation Agents    [CS&M Ref. No. 10856-010] 





 






NAI-1532313684v2    i        [[5866265v.11]]  TABLE OF CONTENTS  Page  ARTICLE I Definitions  SECTION 1.01. Defined Terms .............................................................................. 1  SECTION 1.02. Classification of Loans and Borrowings ...................................... 48  SECTION 1.03. Terms Generally; Dutch Terms ................................................... 49  SECTION 1.04. Accounting Terms; GAAP .......................................................... 50  SECTION 1.05. Currency Translation................................................................... 51  SECTION 1.06. Timing of Payment or Performance ............................................. 52  SECTION 1.07. Divisions..................................................................................... 53  SECTION 1.08. Benchmark Replacement Notification ......................................... 53  SECTION 1.09. Blocking Regulation ................................................................... 53  ARTICLE II The Credits  SECTION 2.01. Commitments.............................................................................. 54  SECTION 2.02. Loans and Borrowings ................................................................ 54  SECTION 2.03. Requests for Borrowings ............................................................. 55  SECTION 2.04. Funding of Borrowings ............................................................... 56  SECTION 2.05. Interest Elections......................................................................... 57  SECTION 2.06. Termination and Reduction of Commitments .............................. 59  SECTION 2.07. Repayment of Loans; Evidence of Debt ...................................... 59  SECTION 2.08. Prepayment of Loans .................................................................. 60  SECTION 2.09. Fees ............................................................................................ 61  SECTION 2.10. Interest ........................................................................................ 63  SECTION 2.11. Alternate Rate of Interest ............................................................ 64  SECTION 2.12. Increased Costs; Illegality ........................................................... 68  SECTION 2.13. Break Funding Payments ............................................................ 71  SECTION 2.14. Taxes .......................................................................................... 72  SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of  Setoffs ........................................................................................ 77  SECTION 2.16. Mitigation Obligations; Replacement of Lenders......................... 79  SECTION 2.17. Defaulting Lenders...................................................................... 81  SECTION 2.18. Incremental Facilities .................................................................. 83  NAI-1532313684v2    ii        [[5866265v.11]]  SECTION 2.19. [Reserved] .................................................................................. 87  SECTION 2.20. Letters of Credit .......................................................................... 87  SECTION 2.21. Swingline Loans ......................................................................... 95  SECTION 2.22. Borrowing Subsidiaries ............................................................... 97  SECTION 2.23. Non-Public Lender ...................................................................... 99  ARTICLE III Representations and Warranties  SECTION 3.01. Organization ............................................................................... 99  SECTION 3.02. Authorization; No Conflict  ....................................................... 100  SECTION 3.03. Validity and Binding Nature ..................................................... 100  SECTION 3.04. Financial Condition ................................................................... 100  SECTION 3.05. No Material Adverse Change .................................................... 101  SECTION 3.06. Litigation and Contingent Liabilities ......................................... 101  SECTION 3.07. Subsidiaries............................................................................... 101  SECTION 3.08. Pension Plans ............................................................................ 101  SECTION 3.09. Investment Company Act .......................................................... 102  SECTION 3.10. Regulation U ............................................................................. 102  SECTION 3.11. Solvency ................................................................................... 102  SECTION 3.12. Environmental Matters .............................................................. 103  SECTION 3.13. Labor Matters ........................................................................... 103  SECTION 3.14. Anti-Corruption Laws and Sanctions; Use of Proceeds.............. 103  SECTION 3.15. Affected Financial Institutions .................................................. 103  SECTION 3.16. Ranking of Obligations ............................................................. 104  SECTION 3.17. Proper Form; No Recordation ................................................... 104  SECTION 3.18. Centre of Main Interests ............................................................ 104  SECTION 3.19. Tax Residency of Netherland Borrowing Subsidiary ................. 104  ARTICLE IV Conditions  SECTION 4.01. Restatement Effective Date ....................................................... 104  SECTION 4.02. Conditions to Each Credit Event ............................................... 104  SECTION 4.03. Conditions to Initial Revolving Credit Event to each  Borrowing Subsidiary ............................................................... 105  ARTICLE V Affirmative Covenants  SECTION 5.01. Financial Reporting ................................................................... 106  NAI-1532313684v2  iii    [[5866265v.11]] SECTION 5.02. Notices; Other Information ....................................................... 107  SECTION 5.03. Books, Records and Inspections ................................................ 108  SECTION 5.04. Maintenance of Property; Insurance .......................................... 109  SECTION 5.05. Compliance with Laws .............................................................. 109  SECTION 5.06. Maintenance of Existence, Etc .................................................. 109  SECTION 5.07. Use of Proceeds ........................................................................ 109  SECTION 5.08. Employee Benefit Plans ............................................................ 110  SECTION 5.09. Environmental Matters .............................................................. 110  SECTION 5.10. Payment of Taxes...................................................................... 110  SECTION 5.11. Anti-Corruption Laws ............................................................... 110  SECTION 5.12. Guarantee Requirement ............................................................. 110  SECTION 5.13. Further Assurances.................................................................... 111  ARTICLE VI Negative Covenants  SECTION 6.01. Indebtedness ............................................................................. 111  SECTION 6.02. Liens ......................................................................................... 113  SECTION 6.03. Restricted Payments .................................................................. 116  SECTION 6.04. Fundamental Changes; Business Activities ............................... 116  SECTION 6.05. Restrictive Agreements ............................................................. 118  SECTION 6.06. Financial Covenants .................................................................. 119  SECTION 6.07. Anti-Corruption Laws ............................................................... 120  ARTICLE VII Events of Default  SECTION 7.01. Defaults .................................................................................... 120  ARTICLE VIII The Administrative Agent  ARTICLE IX Parent Guarantee  SECTION 9.01. Parent Guarantee ....................................................................... 132  SECTION 9.02. Waivers .................................................................................... 132  SECTION 9.03. Guarantee Absolute ................................................................... 133  SECTION 9.04. Acceleration .............................................................................. 134  SECTION 9.05. Marshaling; Reinstatement ........................................................ 134  SECTION 9.06. Subrogation............................................................................... 134  SECTION 9.07. Termination Date ...................................................................... 135  NAI-1532313684v2  iv    [[5866265v.11]] ARTICLE X Miscellaneous  SECTION 10.01. Notices...................................................................................... 135  SECTION 10.02. Waivers; Amendments .............................................................. 137  SECTION 10.03. Expenses; Indemnity; Damage Waiver ...................................... 140  SECTION 10.04. Successors and Assigns ............................................................. 143  SECTION 10.05. Survival .................................................................................... 148  SECTION 10.06. Counterparts; Integration; Effectiveness; Electronic  Execution .................................................................................. 149  SECTION 10.07. Severability ............................................................................... 150  SECTION 10.08. Right of Setoff .......................................................................... 150  SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process ..... 151  SECTION 10.10. WAIVER OF JURY TRIAL ..................................................... 152  SECTION 10.11. Headings ................................................................................... 152  SECTION 10.12. Confidentiality .......................................................................... 153  SECTION 10.13. Interest Rate Limitation............................................................. 154  SECTION 10.14. Release of Guarantees under Guarantee Agreement .................. 154  SECTION 10.15. USA PATRIOT Act and Beneficial Ownership Regulation  Notice ....................................................................................... 155  SECTION 10.16. No Fiduciary Relationship......................................................... 155  SECTION 10.17. Non-Public Information ............................................................ 155  SECTION 10.18. Conversion of Currencies .......................................................... 156  SECTION 10.19. Acknowledgement and Consent to Bail-In of Affected  Financial Institutions ................................................................. 156  SECTION 10.20. Acknowledgement Regarding Any Supported QFCs ................. 157  SECTION 10.21. Dutch Loan Party Representation .............................................. 158  SECTION 10.22. Existing Credit Agreement ........................................................ 158  





 






NAI-1532313684v2    v        [[5866265v.11]]  SCHEDULES:  Schedule 1.01 — Excluded Subsidiaries  Schedule 2.01 — Commitments  Schedule 2.20(a) — LC Commitments  Schedule 2.20(b) — Existing Letters of Credit  Schedule 3.07 — Subsidiaries  Schedule 6.01 — Existing Indebtedness  Schedule 6.02 — Existing Liens  Schedule 6.05 — Existing Restrictive Agreements    EXHIBITS:  Exhibit A — Form of Assignment and Assumption  Exhibit B  — Form of Borrowing Request  Exhibit C-1 — Form of Borrowing Subsidiary Accession Agreement  Exhibit C-2 — Form of Borrowing Subsidiary Termination  Exhibit D — Form of Compliance Certificate  Exhibit E  — Form of Interest Election Request  Exhibit F — Form of Swingline Borrowing Request  Exhibit G-1 —  Form of US Tax Compliance Certificate for Foreign Lenders that are  not Partnerships for US Federal Income  Exhibit G-2 —  Form of US Tax Compliance Certificate for Non-US Participants that  are not Partnerships for US Federal Income Tax Purposes  Exhibit G-3 —  Form of US Tax Compliance Certificate for Non-US Participants that  are Partnerships for US Federal Income Tax Purposes  Exhibit G-4 —  Form of US Tax Compliance Certificate for Foreign Lenders that are  Partnerships for US Federal Income Tax Purposes  Exhibit H  — Form of Solvency Certificate    NAI-1532313684v2          [[5866265v.11]]  CREDIT AGREEMENT dated as of June 8, 2018, as  amended and restated as of August 15, 2022, among  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION, a Delaware corporation, WABTEC  TRANSPORTATION NETHERLANDS B.V., a private limited  liability company organized under the laws of the Netherlands  (besloten vennootschap met beperkte aansprakelijkheid) and  registered with the Commercial Register of the Dutch Chamber of  Commerce under number 72948957, the other BORROWING  SUBSIDIARIES party hereto from time to time, the LENDERS  party hereto and PNC BANK, NATIONAL ASSOCIATION, as the  Administrative Agent.  The parties hereto agree as follows:  ARTICLE I    Definitions  SECTION 1.01. Defined Terms.  As used in this Agreement, the  following terms have the meanings specified below:  “2013 Note Indenture” means the Indenture dated as of August 8, 2013, by  and among the Company, the guarantors party thereto and Wells Fargo Bank, National  Association, as trustee, as supplemented by the First Supplemental Indenture dated as of  August 8, 2013, the Second Supplemental Indenture dated as of November 3, 2016, the  Third Supplemental Indenture dated as of November 3, 2016, the Fourth Supplemental  Indenture dated as of February 9, 2017, the Fifth Supplemental Indenture dated as of  April 28, 2017, the Sixth Supplemental Indenture dated as of June 21, 2017, the Seventh  Supplemental Indenture dated as of June 8, 2018, the Eighth Supplement Indenture dated  as of June 29, 2018, the Ninth Supplemental Indenture dated September 14, 2018, the Tenth  Supplemental Indenture dated as of June 6, 2019 and the Eleventh Supplemental Indenture  dated as of June 29, 2020.   “2021 Subsidiary Note Indenture” means the Indenture dated as of June 3,  2021, among Wabtec Transportation Netherlands B.V., as issuer, the Company, as  guarantor, and U.S. Bank National Association, as trustee, as supplemented by the First  Supplemental Indenture dated as of June 3, 2021.  “ABR”, when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by  reference to the Alternate Base Rate.  “Acquisition” means any transaction, or series of related transactions,  resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets  of a Person, or of all or substantially all of any division or line of business of a Person,  (b) the acquisition of more than 50% of the Capital Securities of any Person, or otherwise    2      [[5866265v.11]]    causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other  combination with another Person (other than a Person that is already a Subsidiary).  “Acquisition Indebtedness” means any Indebtedness of the Company or any  Subsidiary that has been incurred for the purpose of financing, in whole or in part, a  Material Acquisition and any related transactions (including for the purpose of refinancing  or replacing all or a portion of any related bridge facilities or any pre-existing Indebtedness  of the Persons or assets to be acquired); provided that either (a) the release of the proceeds  thereof to the Company and the Subsidiaries is contingent upon the substantially  simultaneous consummation of such Material Acquisition (and, if the definitive agreement  for such Material Acquisition is terminated prior to the consummation of such Material  Acquisition, or if such Material Acquisition is otherwise not consummated by the date  specified in the definitive documentation evidencing, governing the rights of the holders  of or otherwise relating to such Indebtedness, then, in each case, such proceeds are, and  pursuant to the terms of such definitive documentation are required to be, promptly applied  to satisfy and discharge all obligations of the Company and the Subsidiaries in respect of  such Indebtedness) or (b) such Indebtedness contains a “special mandatory redemption”  provision (or a similar provision) if such Material Acquisition is not consummated by the  date specified in the definitive documentation evidencing, governing the rights of the  holders of or otherwise relating to such Indebtedness (and, if the definitive agreement for  such Material Acquisition is terminated prior to the consummation of such Material  Acquisition or such Material Acquisition is otherwise not consummated by the date so  specified, such Indebtedness is, and pursuant to such “special mandatory redemption” (or  similar) provision is required to be, redeemed or otherwise satisfied and discharged within  90 days of such termination or such specified date, as the case may be).  “Adjusted Daily Simple SOFR” means, for any day, a rate per annum equal  to (a) the Daily Simple SOFR for such day plus (b) 0.10% per annum; provided that if the  Adjusted Daily Simple SOFR as so determined would be less than zero, such rate shall be  deemed to be zero.  “Adjusted Term SOFR” means, for any Interest Period, a rate per annum  equal to (a) the Term SOFR for such Interest Period plus (b) 0.10% per annum; provided  that if the Adjusted Term SOFR as so determined would be less than zero, such rate shall  be deemed to be zero.  “Administrative Agent” means PNC, in its capacity as the administrative  agent hereunder and under the other Loan Documents, and its successors in such capacity  as provided in Article VIII.  Unless the context requires otherwise, the term  “Administrative Agent” shall include any branch or Affiliate of PNC or any such successor  through which PNC or such successor shall perform any of its obligations in such capacity  hereunder or under the other Loan Documents.  “Administrative Questionnaire” means an Administrative Questionnaire in  a form supplied by the Administrative Agent.    3      [[5866265v.11]]    “Affected Financial Institution” means (a) any EEA Financial Institution or  (b) any UK Financial Institution.  “Affiliate” means, with respect to a specified Person, another Person that  directly or indirectly Controls, is Controlled by or is under common Control with the  Person specified.  “Aggregate Revolving Commitment” means the sum of the Revolving  Commitments of all the Revolving Lenders.  “Aggregate Revolving Exposure” means the sum of the Revolving  Exposures of all the Revolving Lenders.  “Agreed Currencies” means US Dollars and each Alternative Currency.  “Agreement” means this Credit Agreement dated as of June 8, 2018, as  amended and restated as of August 15, 2022.  “Agreement Currency” has the meaning set forth in Section 10.18(b).  “Alternate Base Rate” means, for any day, a rate per annum equal to the  greatest of (a) the Prime Rate in effect on such day, (b) the Overnight Bank Funding Rate  in effect on such day plus 1⁄2 of 1.00% per annum and (c) the Adjusted Daily Simple SOFR  as published two US Government Securities Business Days prior to such day (or if such  day is not a Business Day, the immediately preceding Business Day) plus 1.00% per  annum; provided that if the Alternate Base Rate as so determined would be less than 1.00%,  such rate shall be deemed to be 1.00%.  If the Alternate Base Rate is being used as an  alternate rate of interest pursuant to Section 2.11 or 2.12, then the Alternate Base Rate shall  be the greater of clause (a) and (b) above and shall be determined without reference to  clause (c) above.  Any change in the Alternate Base Rate due to a change in the Prime Rate,  the Overnight Bank Funding Rate or the Adjusted Daily Simple SOFR shall be effective  from and including the effective date of such change in the Prime Rate, the Overnight Bank  Funding Rate or the Adjusted Daily Simple SOFR, respectively.   “Alternative Currency” means (a) Euro, (b) Sterling and (c) Canadian  Dollars.  “Alternative Currency Overnight Rate” means, for any day with respect to  any currency, the rate of interest per annum at which overnight deposits in such currency,  in an amount approximately equal to the amount with respect to which such rate is being  determined, would be offered for such day in the principal interbank market for such  currency, as such rate is determined by the Administrative Agent or, in the case of any such  determination made by it as contemplated hereunder, by any Issuing Bank.  “Ancillary Document” has the meaning set forth in Section 10.06(b).  “Anti-Corruption Laws” means all laws, rules, and regulations of any  jurisdiction applicable to the Company or any of its Subsidiaries from time to time  





 






  4      [[5866265v.11]]    concerning or relating to bribery, corruption, money laundering or anti-terrorism  (including, for the avoidance of doubt, the Foreign Corrupt Practices Act of 1977 and the  UK Bribery Act and the rules and regulations thereunder).  “Applicable Creditor” has the meaning set forth in Section 10.18(b).  “Applicable Percentage” means at any time, with respect to any Revolving  Lender, the percentage of the Aggregate Revolving Commitment represented by such  Lender’s Revolving Commitment at such time.  If all the Revolving Commitments have  terminated or expired, the Applicable Percentages shall be determined based upon the  Revolving Commitments most recently in effect, giving effect to any assignments.   “Applicable Rate” means, for any day, with respect to Revolving  Commitment Fees or Delayed Draw Term Ticking Fees, or with respect to any Revolving  Loan, Delayed Draw Term Loan or Swingline Loan that is an ABR Loan, a Term SOFR  Loan, a CDOR Loan, an RFR Loan or, if applicable pursuant to Section 2.11, a Daily  Simple SOFR Loan, the applicable rate per annum set forth below under the applicable  caption “Revolving Commitment Fees/Delayed Draw Term Ticking Fees”, “ABR Loans”  or “Term SOFR/CDOR/RFR/Daily Simple SOFR Loans”, as the case may be, determined  by reference to the numerically lower of (a) the Pricing Category corresponding to the  Applicable Ratings in effect at such time and (b) the Pricing Category corresponding to the  Leverage Ratio as of the end of the most recent Fiscal Quarter or Fiscal Year of the  Company for which consolidated financial statements of the Company shall have been  delivered pursuant to Section 5.01(a) or 5.01(b); provided that, for purposes of determining  the Applicable Rate, prior to the date on which the consolidated financial statements of the  Company pursuant to Section 5.01(a) or 5.01(b) and the related Compliance Certificate  pursuant to Section 5.01(c) are required to be delivered to the Administrative Agent for the  first Fiscal Quarter or Fiscal Year ended after the Restatement Effective Date, the Leverage  Ratio shall be deemed to be in Pricing Category 4.    5      [[5866265v.11]]    Pricing  Category    Applicable Ratings  (Moody’s/S&P/Fitch)    Leverage Ratio    Revolving  Commitment  Fees/Delayed Draw  Term Ticking Fees  (percent per  annum)    Term SOFR/  CDOR/RFR/Daily  Simple SOFR  Loans  (percent per  annum)    ABR Loans  (percent per  annum)    Category 1 > Baa1/BBB+/BBB+ < 0.50:1.00 0.100% 1.000% 0.000%  Category 2 Baa1/BBB+/BBB+ ≥ 0.50:1.00 and  <1.00:1.00  0.125% 1.125% 0.125%  Category 3 Baa2/BBB/BBB ≥ 1.00:1.00 and  <1.75:1.00  0.150% 1.250% 0.250%  Category 4 Baa3/BBB-/BBB- ≥ 1.75:1.00 and  <2.50:1.00  0.175% 1.375% 0.375%  Category 5 Ba1/BB+/BB+ ≥ 2.50:1.00 and  <3.25:1.00  0.225% 1.500% 0.500%  Category 6 < Ba1/BB+/BB+ ≥ 3.25:1.00 0.250% 1.750% 0.750%    For purposes of the foregoing, (a) if any of Moody’s, S&P or Fitch shall not have an  Applicable Rating in effect (other than by reason of the circumstances referred to in the  last sentence of this paragraph), then (i) if only one rating agency shall not have an  Applicable Rating in effect, the applicable Pricing Category shall be determined by  reference to the remaining two effective Applicable Ratings, (ii) if two rating agencies shall  not have an Applicable Rating in effect, one of such rating agencies shall be deemed to  have an Applicable Rating in Pricing Category 6 and the applicable Pricing Category shall  be determined by reference to such deemed Applicable Rating and the remaining effective  Applicable Rating and (iii) if no rating agency shall have an Applicable Rating in effect,  the applicable Pricing Category shall be Pricing Category 6, (b) if the Applicable Ratings  in effect or deemed to be in effect shall fall within different Pricing Categories, then (i) if  three Applicable Ratings are in effect, either (A) if two of the three Applicable Ratings are  in the same Pricing Category, such Pricing Category shall be the applicable Pricing  Category or (B) if all three of the Applicable Ratings are in different Pricing Categories,  the Pricing Category corresponding to the middle Applicable Rating shall be the applicable  Pricing Category and (ii) if only two Applicable Ratings are in effect or deemed to be in  effect, the applicable Pricing Category shall be the Pricing Category in which the higher of  the Applicable Ratings shall fall unless the Applicable Ratings differ by two or more  Pricing Categories, in which case the applicable Pricing Category shall be the Pricing  Category one level below that corresponding to the higher Applicable Rating and (c) if any  Applicable Rating shall be changed (other than as a result of a change in the rating system  of the applicable rating agency), such change shall be effective on the fifth Business Day  following the date on which it is first announced by the applicable rating agency making  such change.  If the rating system of Moody’s, S&P or Fitch shall change, or if such rating  agency shall cease to be in the business of rating corporate debt obligations and corporate  credit, the Company and the Required Lenders shall negotiate in good faith to amend this    6      [[5866265v.11]]    definition to reflect such changed rating system or the unavailability of Applicable Ratings  from such rating agency and, pending the effectiveness of any such amendment, the  Applicable Rating used to determine the Applicable Rate shall be deemed to be that most  recently in effect from such rating agency prior to such change or cessation.  Each change in the applicable Pricing Category (as corresponding to the  Leverage Ratio) resulting from a change in the Leverage Ratio shall be effective during the  period commencing on and including the date on which the consolidated financial  statements of the Company pursuant to Section 5.01(a) or 5.01(b) and the related  Compliance Certificate pursuant to Section 5.01(c) are required to be delivered to the  Administrative Agent for any Fiscal Quarter or Fiscal Year, to the extent such financial  statements and Compliance Certificate indicate any such change, and ending on the date  immediately preceding the effective date of the next such change; provided that if the  Company shall not have timely delivered its consolidated financial statements pursuant to  Section 5.01(a) or 5.01(b), as applicable, and the related Compliance Certificate pursuant  to Section 5.01(c), commencing on the date upon which such financial statements or  Compliance Certificate should have been so delivered and continuing until such financial  statements or Compliance Certificate, as applicable, are actually delivered, the Leverage  Ratio shall be deemed to be in Pricing Category 6.  “Applicable Ratings” means, with respect to Moody’s, S&P or Fitch,  (a) a rating by such rating agency of the Company’s senior unsecured non-credit enhanced  long-term indebtedness for borrowed money or (b) if and only if such rating agency does  not have in effect a rating as described in clause (a), a corporate rating (however  denominated) by such rating agency of the Company.  “Approved Fund” means any Person (other than a natural person and any  holding company, investment vehicle or trust for, or owned and operated for the primary  benefit of, a natural person) that is engaged in making, purchasing, holding or investing in  commercial loans and similar extensions of credit in the ordinary course of its activities  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.   “Approved Netherlands Borrower” means a wholly owned Subsidiary of  the Company organized under the laws of the Netherlands and approved in writing by the  Administrative Agent (such approval not to be unreasonably withheld, delayed or  conditioned), in respect of which all of the requirements set forth in Section 2.22 shall have  been satisfied.  “Arrangers” means PNC Capital Markets LLC, Citibank, N.A., HSBC Bank  USA, N.A., JPMorgan Chase Bank, N.A. and TD Securities (USA) LLC, in their capacities  as the joint lead arrangers and joint bookrunners for the Revolving Facility and the Delayed  Draw Term Facility.  “Assignment and Assumption” means an assignment and assumption  entered into by a Lender and an Eligible Assignee, with the consent of any Person whose  consent is required by Section 10.04, and accepted by the Administrative Agent, in the    7      [[5866265v.11]]    form of Exhibit A or any other form (including electronic records generated by the use of  an electronic platform) approved by the Administrative Agent.  “Attributable Debt” means, with respect to any Sale and Leaseback  Transaction, the present value (discounted at the rate set forth or implicit in the terms of  the lease included in such Sale and Leaseback Transaction) of the total obligations of the  lessee for rental payments (other than amounts required to be paid on account of taxes,  maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other  items that do not constitute payments for property rights) during the remaining term of the  lease included in such Sale and Leaseback Transaction (including any period for which  such lease has been extended).  In the case of any lease that is terminable by the lessee  upon payment of a penalty, the Attributable Debt shall be the lesser of the Attributable  Debt determined assuming termination on the first date such lease may be terminated (in  which case the Attributable Debt shall also include the amount of the penalty, but no rent  shall be considered as required to be paid under such lease subsequent to the first date upon  which it may be so terminated) or the Attributable Debt determined assuming no such  termination.  “Available Tenor” means, as of any date of determination and with respect  to the then current Benchmark for any Agreed Currency, as applicable, (a) if the then- current Benchmark for such Agreed Currency is a term rate, any tenor for such Benchmark  that is or may be used for determining the length of an Interest Period or (b) otherwise, any  payment period for interest calculated with reference to such Benchmark, as applicable,  pursuant to this Agreement as of such date. For the avoidance of doubt, the Available Tenor  for Daily Simple SOFR and Daily Simple RFR is one month.  “Backstopped Letter of Credit” has the meaning set forth in Section 2.20(c).  “Bail-In Action” means the exercise of any Write-Down and Conversion  Powers by the applicable Resolution Authority in respect of any liability of an Affected  Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country  implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the  Council of the European Union, the implementing law, regulation, rule or requirement for  such EEA Member Country from time to time that is described in the EU Bail-In  Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United  Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation  or rule applicable in the United Kingdom relating to the resolution of unsound or failing  banks, investment firms or other financial institutions or their Affiliates (other than through  liquidation, administration or other insolvency proceedings).  “Bank Product Provider” means any provider of Designated Cash  Management Obligations or Designated Hedge Obligations.   “Bankruptcy Event” means, with respect to any Person, that such Person  has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,  





 






  8      [[5866265v.11]]    liquidator, conservator, trustee, administrator, custodian, assignee for the benefit of  creditors or similar Person charged with the reorganization or liquidation of its business  appointed for it, or, in the good faith determination of the Administrative Agent, has taken  any action in furtherance of, or indicating its consent to, approval of or acquiescence in,  any such proceeding or appointment; provided that a Bankruptcy Event shall not result  solely by virtue of any ownership interest, or the acquisition of any ownership interest, in  such Person by a Governmental Authority; provided, however, that such ownership interest  does not result in or provide such Person with immunity from the jurisdiction of courts  within the United States of America or from the enforcement of judgments or writs of  attachment on its assets or permit such Person (or such Governmental Authority) to reject,  repudiate, disavow or disaffirm any agreements made by such Person.  “Benchmark” means, initially, with respect to any Loan denominated in any  Agreed Currency, the applicable Relevant Rate for Loans denominated in such Agreed  Currency; provided that if a Benchmark Transition Event and the related Benchmark  Replacement Date have occurred with respect to the applicable Relevant Rate or the then  current Benchmark for such Agreed Currency, then “Benchmark” means the applicable  Benchmark Replacement to the extent that such Benchmark Replacement has replaced  such prior benchmark rate pursuant to Section 2.11(b). Any reference to “Benchmark” shall  include, as applicable, the published component used in the calculation thereof.  “Benchmark Replacement” means, with respect to any Benchmark  Transition Event for any then-current Benchmark, the first applicable alternative set forth  in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date:  (1) where the Benchmark is Term SOFR, Adjusted Daily Simple SOFR;  and  (2) the sum of: (a) the alternate benchmark rate that has been selected by  the Administrative Agent and the Company as the replacement for such Benchmark  for the applicable Corresponding Tenor giving due consideration to (i) any selection  or recommendation of a replacement benchmark rate or the mechanism for  determining such a rate by the Relevant Governmental Body or (ii) any evolving or  then-prevailing market convention for determining a benchmark rate as a  replacement for the then-current Benchmark for syndicated credit facilities  denominated in the applicable Agreed Currency at such time in the United States  and (b) the related Benchmark Replacement Adjustment.   provided, that if the Benchmark Replacement as determined pursuant to clause (2) 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; provided further that  any Benchmark Replacement shall be administratively feasible as determined by the  Administrative Agent in its sole discretion.   “Benchmark Replacement Adjustment” means, with respect to any  replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement    9      [[5866265v.11]]    for any applicable Available Tenor for any setting of such Unadjusted 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 Administrative Agent and the Company for the applicable Corresponding Tenor giving  due consideration to (a) 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 and/or (b) 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 syndicated credit  facilities denominated in the applicable Agreed Currency at such time.  “Benchmark Replacement Conforming Changes” means, with respect to  any Benchmark Replacement and/or any Term SOFR Loan, any technical, administrative  or operational changes (including changes to the definition of “Alternate Base Rate”, the  definition of “Business Day”, the definition of “US Government Securities Business Day”,  the definition of “RFR 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 Administrative Agent reasonably determines may be appropriate to reflect  the adoption and implementation of such Benchmark and to permit the administration  thereof by the Administrative Agent in a manner substantially consistent with market  practice (or, if the Administrative Agent reasonably determines that adoption of any portion  of such market practice is not administratively feasible or if the Administrative Agent  determines that no market practice for the administration of such Benchmark exists, in such  other manner of administration as the Administrative Agent determines is reasonably  necessary in connection with the administration of this Agreement and the other Loan  Documents).  “Benchmark Replacement Date” means a date and time determined by the  Administrative Agent, which date shall be no later than, with respect to any Benchmark,  the earliest to occur of the following events with respect to such then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark  Transition Event”, the later of (a) the date of the public statement or publication of  information referenced therein and (b) 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); or  (2) in the case of clause (3) of the definition of “Benchmark Transition  Event”, the first date on which such Benchmark (or the published component used  in the calculation thereof) has been determined and announced by the regulatory  supervisor for the administrator of such Benchmark (or such component thereof) to  be no longer representative; provided that such non-representativeness will be    10      [[5866265v.11]]    determined by reference to the most recent statement or publication referenced in  such clause (3) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date.  For the avoidance of doubt, the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (1) or (2) 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” means, with respect to any Benchmark, the  occurrence of one or more of the following events with respect to such then-current  Benchmark:  (1) 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 such component 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);  (2) 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, the NYFRB, the CME  Term SOFR Administrator, the central bank for the Agreed Currency applicable to  such Benchmark, 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), in each case, 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 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); or  (3) 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 of such  Benchmark (or such component thereof) are no longer, or as of a specified future  date will no longer be, 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    11      [[5866265v.11]]    Available Tenor of such Benchmark (or the published component used in the calculation  thereof).  “Benchmark Unavailability Period” means, with respect to any Benchmark,  the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant  to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark  Replacement has replaced such then-current Benchmark for all purposes hereunder and  under any Loan Document in accordance with Section 2.11(b) and (b) ending at the time  that a Benchmark Replacement has replaced such then-current Benchmark for all purposes  hereunder and under any Loan Document in accordance with Section 2.11(b).  “Beneficial Ownership Certification” means a certification regarding  beneficial ownership as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the  Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or  otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any  such “employee benefit plan” or “plan”.  “BHC Act Affiliate” means, with respect to any Person, an “affiliate” (as  such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of  such Person.  “Board of Governors” means the Board of Governors of the Federal Reserve  System of the United States of America.  “Borrower” means the Company or any Borrowing Subsidiary.  “Borrowing” means (a) Loans of the same Class, Type and currency made,  converted or continued on the same date and to the same Borrower and, in the case of Term  SOFR Loans or CDOR Loans, as to which a single Interest Period is in effect, or (b) a  Swingline Loan.  “Borrowing Minimum” means (a) in the case of a Borrowing denominated  in US Dollars, US$1,000,000 and (b) in the case of a Borrowing denominated in an  Alternative Currency, the smallest amount of such Alternative Currency that is a multiple  of 500,000 units of such currency and that has a US Dollar Equivalent of US$1,000,000 or  more.  “Borrowing Multiple” means (a) in the case of a Borrowing denominated in  US Dollars, US$1,000,000 and (b) in the case of a Borrowing denominated in any  Alternative Currency, the smallest amount of such Alternative Currency that is a multiple  of 1,000,000 units of such currency and that has a US Dollar Equivalent of US$1,000,000  or more.  





 






  12      [[5866265v.11]]    “Borrowing Request” means a request by or on behalf of a Borrower for a  Borrowing in accordance with Section 2.03, which shall be in the form of Exhibit B or any  other form approved by the Administrative Agent.  “Borrowing Subsidiary” means Wabtec BV and each other Subsidiary that  has become a Borrowing Subsidiary pursuant to Section 2.22(a), other than any such  Subsidiary that has ceased to be a Borrowing Subsidiary as provided in Section 2.22(b).  “Borrowing Subsidiary Accession Agreement” means a Borrowing  Subsidiary Accession Agreement, substantially the form of Exhibit C-1, duly executed by  the Company and the applicable Subsidiary and accepted by the Administrative Agent,  pursuant to which such Subsidiary agrees to become a Borrowing Subsidiary and agrees to  be bound by the terms and conditions hereof.  “Borrowing Subsidiary Termination” means a Borrowing Subsidiary  Termination, substantially in the form of Exhibit C-2, duly executed by the Company.  “Business Day” means any day that is not a Saturday, Sunday or other day  on which commercial banks in New York City are authorized or required by law to remain  closed; provided that (a) when used in connection with any Loan or any Letter of Credit  denominated in Euro or in connection with the calculation or computation of €STR, the  term “Business Day” shall also exclude any day which is not a TARGET Day, (b) when  used in connection with any Loan or Letter of Credit denominated in Canadian Dollars or  in connection with the calculation or computation of the CDO Rate, the term “Business  Day” shall also exclude any day on which banks are not open for dealings in deposits in  Toronto, (c) when used in connection with any Loan or Letter of Credit denominated in  Sterling or in connection with the calculation or computation of SONIA, the term  “Business Day” shall also exclude any day on which banks are not open for business in  London, (d) when used in connection with any Loan or Letter of Credit denominated in  US Dollars or in connection with the calculation or computation of Adjusted Term SOFR  or Adjusted Daily Simple SOFR, the term “Business Day” shall also exclude any day on  which SOFR is not published by the SOFR Administrator on the SOFR Administrator’s  Website and (e) when used in connection with any direct or indirect calculation or  determination of, or is used in connection with any interest rate settings, fundings,  disbursements, settlements, payments or other dealings with respect to, any RFR Loan in  any currency, the term “Business Day” shall also exclude any day that is not an RFR  Business Day for such currency.  “Canadian Dollars” or “CAD$” means the lawful money of Canada.  “Capital Lease” means, with respect to any Person, any lease of (or other  agreement conveying the right to use) any real or personal property by such Person that, in  accordance with GAAP, is accounted for as a capital lease on the balance sheet of such  Person.  “Capital Securities” means, with respect to any Person, all shares, interests,  participations or other equivalents (however designated, whether voting or non-voting) of    13      [[5866265v.11]]    such Person’s capital, including common shares, preferred shares, membership interests in  a limited liability company, limited or general partnership interests in a partnership or any  other equivalent of such ownership interest; provided that “Capital Securities” shall not  include any debt securities convertible into Capital Securities prior to such conversion.  “Cash Equivalent Investment” means, at any time, (a) any evidence of  Indebtedness, maturing not more than one year after such time, issued or guaranteed by the  United States Government or any agency thereof, (b) commercial paper, maturing not more  than one year from the date of issue, or corporate demand notes, in each case (unless issued  by a Lender or its holding company) rated at least A-l by S&P or P-l by Moody’s, (c) any  certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year  after such time, or any overnight Federal Funds transaction that is issued or sold by any  Lender or its holding company (or by a commercial banking institution that is a member  of the Federal Reserve System and has a combined capital and surplus and undivided  profits of not less than US$500,000,000), (d) any repurchase agreement entered into with  any Lender (or commercial banking institution of the nature referred to in clause (c)) that  (i) is secured by a fully perfected security interest in any obligation of the type described  in any of clauses (a) through (c) above and (ii) has a market value at the time such  repurchase agreement is entered into of not less than 100% of the repurchase obligation of  such Lender (or other commercial banking institution) thereunder, (e) money market  accounts or mutual funds that invest exclusively in assets satisfying the foregoing  requirements, (f) securities, maturing not more than 18 months from the date of purchase,  rated at least AA by S&P or Aa by Moody’s, (g) with respect to any Foreign Subsidiary of  the Company, the approximate equivalent of any of clauses (a) through (f) above in any  country in which such Foreign Subsidiary is organized or maintains deposit accounts and  (h) other investments classified as “cash” or “cash equivalents” in accordance with GAAP  and made in accordance with the Company’s investment policy, as approved by the Board  of Directors of the Company from time to time.  “Cash Management Services” means cash management and related services  provided to the Company or any Subsidiary, including treasury, depository, return items,  overdraft, controlled disbursement, cash sweeps, zero balance arrangements, merchant  stored value cards, e-payables, electronic funds transfer, interstate depository network and  automatic clearing house transfer (including the Automated Clearing House processing of  electronic funds transfers through the direct Federal Reserve Fedline system) services and  credit cards, credit card processing services, debit cards, stored value cards and commercial  cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)  arrangements.  “CDO Rate” means, with respect to any CDOR Borrowing for any Interest  Period, the applicable Screen Rate as of 11:00 a.m., Toronto time, on the Quotation Day.  “CDOR”, when used in reference to any Loan or Borrowing, refers to  whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate  determined by reference to the CDO Rate.    14      [[5866265v.11]]    “CFC” means (a) any Person that is a “controlled foreign corporation”  (within the meaning of Section 957 of the Code), but only if a Loan Party or a US Person  that is an Affiliate of a Loan Party is, with respect to such Person, a “United States  shareholder” (within the meaning of Section 951(b) of the Code) described in Section  951(a)(1) of the Code and (b) each subsidiary of any Person described in clause (a).  “CFC Holding Company” means each Subsidiary that has no material assets  other than assets that consist (directly or indirectly through other CFC Holding Companies)  of Capital Securities or indebtedness (as determined for US tax purposes) in one or more  CFCs or CFC Holding Companies.  “Change in Law” means 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, (i) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives thereunder or issued in  connection therewith and (ii) 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 the 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, promulgated or issued.  “Change of Control” means (a) any “person” or “group” (as such terms are  used in Sections 13(d) and 14(d) of the Exchange Act), shall become the “beneficial owner”  (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly,  of 50% or more of the voting capital stock of the Company, (b) within a period of  12 consecutive calendar months, individuals who were directors of the Company on the  first day of such period shall cease to constitute a majority of the board of directors of the  Company and shall not have been replaced by individuals approved or nominated by the  board as substantially constituted at the beginning of such period or (c) a “change in  control” (or similar event, however denominated), under and as defined in any indenture  or other agreement or instrument evidencing, governing the rights of the holders of or  otherwise relating to any Material Indebtedness of the Company or any Subsidiary, shall  have occurred with respect to the Company.  “Charges” has the meaning set forth in Section 10.13.  “CIP Regulations” has the meaning set forth in Article VIII.   “Class”, when used in reference to (a) any Loan or Borrowing, refers to  whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,  Delayed Draw Term Loans, Incremental Term Loans of another “Class” established  pursuant to Section 2.18 or Swingline Loans, (b) any Commitment, refers to whether such  Commitment is a Revolving Commitment, a Delayed Draw Term Commitment or an    15      [[5866265v.11]]    Incremental Term Commitment of another “Class” established pursuant to Section 2.18  and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a  particular Class.  “CME Term SOFR Administrator” means CME Group Benchmark  Administration Limited (CBA) as administrator of the forward-looking term Secured  Overnight Financing Rate (SOFR) (or a successor administrator of the Term SOFR  Reference Rate selected by the Administrative Agent in its reasonable discretion).  “Code” means the Internal Revenue Code of 1986, as amended.   “Commitment” means a Revolving Commitment, a Delayed Draw Term  Commitment or an Incremental Term Commitment.  “Commodity Exchange Act” means the Commodity Exchange Act  (7 U.S.C. § et seq.), as amended from time to time, and any successor statute.  “Communications” means, collectively, any notice, demand,  communication, information, document or other material provided by or on behalf of the  Company or any other Loan Party pursuant to any Loan Document or the transactions  contemplated therein that is distributed to the Administrative Agent, any Lender or any  Issuing Bank by means of electronic communications pursuant to Section 10.01, including  through the Platform.  “Company” means Westinghouse Air Brake Technologies Corporation, a  Delaware corporation.  “Compliance Certificate” means a Compliance Certificate in the form of  Exhibit D or any other form approved by the Administrative Agent.  “Computation Period” means each period of four consecutive Fiscal  Quarters ending on the last day of a Fiscal Quarter.  “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.  “Consolidated Net Income” means, for any period, the net income (or loss)  of the Company and its Subsidiaries for such period, determined on a consolidated basis in  accordance with GAAP.    “Consolidated Net Tangible Assets” means, on any date of determination,  all assets minus (a) all applicable depreciation, amortization and other valuation reserves,  (b) all current liabilities and (c) all goodwill, trade names, trademarks, patents, copyrights,  unamortized debt discount and expenses and other intangibles, in each case, of the  Company and its Subsidiaries determined on a consolidated basis in accordance with  GAAP and as set forth on the most recently available consolidated balance sheet of the  Company prepared in accordance with GAAP.  





 






  16      [[5866265v.11]]    “Control” means the possession, directly or indirectly, of the power to direct  or cause the direction of the management or policies, or the dismissal or appointment of  the management, of a Person, whether through the ability to exercise voting power, by  contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  “Convertible Indebtedness” means Indebtedness convertible at the option  of the holder thereof into Capital Securities of the Company, cash or a combination of  Capital Securities of the Company and cash (as provided in the documentation governing  such Indebtedness).  “Corresponding Tenor” with respect to any Available Tenor means, 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.  “Covered Entity” means (a) a “covered entity” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 252.82(b), (b) a “covered bank” as that  term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b), or (c) a “covered  FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning set forth in Section 10.20.  “Credit Party” means the Administrative Agent, each Issuing Bank, the  Swingline Lender and each other Lender.  “CRR” means the Council Regulation (EU) No 575/2013 of the European  Parliament and of the Council of 26 June 2013 on prudential requirements for credit  institutions and investment firms and amending Regulation (EU) No 648/2012.  “Daily Simple RFR” means, for any day (an “RFR Day”), a rate per annum  determined by the Administrative Agent, for any Loan, interest or other amount  denominated in, or calculated with respect to, Sterling or Euro, by dividing (the resulting  quotient rounded upwards, at the Administrative Agent’s discretion, to the nearest 1/100  of 1%) (a) the rate set forth in clause (i) or (ii) below, as applicable, by (b) a number equal  to 1.00 minus the RFR Reserve Percentage:  (i) in the case of Sterling, SONIA for the day (such day, adjusted as  applicable as set forth herein, the “SONIA Lookback Day”) that is two Business  Days prior to (A) if such RFR Day is a Business Day, such RFR Day or (B) if such  RFR Day is not a Business Day, the Business Day immediately preceding such  RFR Day, in each case, as such SONIA is published by the SONIA Administrator  on the SONIA Administrator’s Website; and  (ii) in the case of Euro, €STR for the day (such day, adjusted as applicable  as set forth herein, the “€STR Lookback Day”) that is two Business Days prior to  (A) if such RFR Day is a Business Day, such RFR Day or (B) if such RFR Day is  not a Business Day, the Business Day immediately preceding such RFR Day, in    17      [[5866265v.11]]    each case, as such €STR is published by the €STR Administrator on the €STR  Administrator’s Website;  provided that if, with respect to any currency, the sum of (x) the rate determined as set forth  above for such currency plus (y) the applicable RFR Adjustment with respect to such  currency would be less than zero, such rate shall be adjusted for all purposes of this  Agreement so that such sum shall be equal to zero.  The adjusted Daily Simple RFR for  each outstanding RFR Loan shall be adjusted automatically as of the effective date of any  change in the RFR Reserve Percentage.  The Administrative Agent shall give prompt notice  to the Company of the Daily Simple RFR as determined or adjusted in accordance  herewith, which determination shall be conclusive absent manifest error.  If by 5:00 p.m. (local time for the applicable RFR) on the second Business  Day immediately following the applicable Daily Simple RFR Lookback Day, the RFR in  respect of such Daily Simple RFR Lookback Day has not been published on the applicable  RFR Administrator’s Website, then the RFR for such Daily Simple RFR Lookback Day  will be the RFR as published in respect of the first preceding Business Day for which such  RFR was published on the applicble RFR Administrator’s Website; provided that any RFR  determined pursuant to this sentence shall be utilized for purposes of calculation of Daily  Simple RFR for no more than three consecutive RFR Days.  Any change in Daily Simple  RFR due to a change in the applicable RFR shall be effective from and including the  effective date of such change in the RFR, without notice to any Borrower.  “Daily Simple RFR Lookback Day” means any SONIA Lookback Day or  any €STR Lookback Day, as applicable.   “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per  annum equal to the quotient (rounded upwards, at the Administrative Agent’s discretion,  to the nearest 1/100 of 1%) resulting from dividing (a) SOFR for the day (such day,  adjusted as applicable as set forth herein, the “SOFR Lookback Day”) that is two Business  Days prior to (i) if such SOFR Rate Day is a Business Day, such SOFR Rate Day or (ii) if  such SOFR Rate Day is not a Business Day, the Business Day immediately preceding such  SOFR Rate Day by (b) a number equal to 1.00 minus the SOFR Reserve Percentage.  The  Daily Simple SOFR for each outstanding Daily Simple SOFR Loan shall be adjusted  automatically as of the effective date of any change in the SOFR Reserve Percentage.  The  Administrative Agent shall give prompt notice to the Company of the Daily Simple SOFR  as determined or adjusted in accordance herewith, which determination shall be conclusive  absent manifest error.  If by 5:00 p.m., New York City time, on the second Business Day  immediately following the SOFR Lookback Day, SOFR in respect of such SOFR  Lookback Day has not been published on the NYFRB’s Website, then SOFR for such  SOFR Lookback Day will be SOFR as published in respect of the first preceding Business  Day for which SOFR was published on the NYFRB’s Website; provided that SOFR  determined pursuant to this sentence shall be utilized for purposes of calculation of the  Daily Simple SOFR for no more than three consecutive SOFR Rate Days.  Any change in  Daily Simple SOFR due to a change in SOFR shall be effective from and including the  effective date of such change in SOFR, without notice to any Borrower.    18      [[5866265v.11]]    “Daily Simple SOFR Borrowing” means any Borrowing comprised of  Daily Simple SOFR Loans.  “Daily Simple SOFR Loan” means any Loan that bears interest at a rate  determined by reference to the Adjusted Daily Simple SOFR.  “Default” means any event or condition that constitutes, or upon notice,  lapse of time or both would constitute, an Event of Default.  “Default Right” has the meaning assigned to that term in, and shall be  interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender that (a) has failed, within two  Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans,  (ii) to fund any portion of its participations in Letters of Credit or Swingline Loans or  (iii) to pay to any Credit Party any other amount required to be paid by it hereunder, unless,  in the case of clause (i) above, such Lender notifies the Administrative Agent in writing  that such failure is the result of such Lender’s good faith determination that a condition  precedent to funding (specifically identified in such writing, including, if applicable, by  reference to a specific Default) has not been satisfied, (b) has notified the Company, the  Administrative Agent, the Swingline Lender or any Issuing Bank in writing, or has made  a public statement, to the effect that it does not intend or expect to comply with any of its  funding obligations under this Agreement (unless such writing or public statement  indicates that such position is based on such Lender’s good-faith determination that a  condition precedent (specifically identified in such writing, including, if applicable, by  reference to a specific Default) to funding a Loan cannot be satisfied) or generally under  other agreements in which it commits to extend credit, (c) has failed, within three Business  Days after request by the Administrative Agent, the Swingline Lender or any Issuing Bank  made in good faith, to provide a certification in writing from an authorized officer of such  Lender that it will comply with its obligations (and is financially able to meet such  obligations) to fund prospective Loans and participations in then outstanding Letters of  Credit and Swingline Loans; provided that such Lender shall cease to be a Defaulting  Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in  form and substance satisfactory to it and the Administrative Agent, (d) has, or has a Lender  Parent that has, become the subject of a Bankruptcy Event or (e) has, or has a Lender Parent  that has, become the subject of a Bail-In Action.  “Delayed Draw Term Commitment” means, with respect to each Lender,  the commitment, if any, of such Lender to make a Delayed Draw Term Loan on a Delayed  Draw Term Funding Date, expressed as an amount representing the maximum principal  amount of the Delayed Draw Term Loan to be made by such Lender, as such commitment  may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased  from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04.   The initial amount of each Lender’s Delayed Draw Term Commitment is set forth on  Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall  have assumed its Delayed Draw Term Commitment, as applicable.  The initial aggregate  amount of the Lenders’ Delayed Draw Term Commitments is US$250,000,000.    19      [[5866265v.11]]    “Delayed Draw Term Commitment Termination Date” means 5:00 p.m.,  New York City time, on the date that is 18 months following the Restatement Effective  Date.  “Delayed Draw Term Facility” means the delayed draw term loan facility  provided for herein, including the Delayed Draw Term Commitments and the Delayed  Draw Term Loans.  “Delayed Draw Term Funding Date” means any date, after the Restatement  Effective Date and on or before the Delayed Draw Term Commitment Termination Date,  on which a Delayed Draw Term Loan is made pursuant to clause (a) of Section 2.01.   “Delayed Draw Term Lender” means a Lender with a Delayed Draw Term  Commitment or an outstanding Delayed Draw Term Loan.  “Delayed Draw Term Loan” means a Loan made pursuant to clause (a) of  Section 2.01.  “Delayed Draw Term Maturity Date” means the fifth anniversary of the  Restatement Effective Date.  “Delayed Draw Term Ticking Fee” has the meaning set forth in  Section 2.09(b).  “Designated Cash Management Obligations” means the due and punctual  payment and performance of all obligations of the Company and the Subsidiaries in respect  of any Cash Management Services provided to the Company or any Subsidiary that are  (a) owed to the Administrative Agent, any Arranger or an Affiliate of any of the foregoing,  or to any Person that, at the time such obligations were incurred, was the Administrative  Agent, an Arranger or an Affiliate of any of the foregoing, (b) owed on the Restatement  Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Restatement  Effective Date or (c) owed to a Person that is a Lender or an Affiliate of a Lender at the  time such obligations are incurred, including obligations with respect to fees, costs,  expenses and indemnities, whether primary, secondary, direct, contingent, fixed or  otherwise (including obligations accruing, at the rate specified therein, or incurred during  the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,  regardless of whether allowed or allowable in such proceeding).  “Designated Hedge Obligations” means the due and punctual payment and  performance of all obligations of the Company and the Subsidiaries under each Hedging  Agreement that (a) is with a counterparty that is, or was on the Restatement Effective Date,  the Administrative Agent, an Arranger or an Affiliate of any of the foregoing, whether or  not such counterparty shall have been the Administrative Agent, an Arranger or an Affiliate  of any of the foregoing at the time such Hedging Agreement was entered into, (b) is in  effect on the Restatement Effective Date with a counterparty that is a Lender or an Affiliate  of a Lender as of the Restatement Effective Date or (c) is entered into after the Restatement  Effective Date with a counterparty that is a Lender or an Affiliate of a Lender at the time  such Hedging Agreement is entered into, including obligations with respect to payments  





 






  20      [[5866265v.11]]    for early termination, fees, costs, expenses and indemnities, whether primary, secondary,  direct, contingent, fixed or otherwise (including obligations accruing, at the rate specified  therein, or incurred during the pendency of any bankruptcy, insolvency, receivership or  other similar proceeding, regardless of whether allowed or allowable in such proceeding).  “Designated Subsidiary” means each Subsidiary of the Company, other than  an Excluded Subsidiary.  “Disposition” means any direct or indirect sale, transfer or other disposition  (or series of related sales, transfers or other dispositions) by the Company or any of its  Subsidiaries, including any disposition by means of a merger, consolidation or similar  transaction, of all or substantially all the assets of any division or line of business of the  Company or such Subsidiary or any other assets of the Company or such Subsidiary outside  of the ordinary course of business of the Company or such Subsidiary.  “Documentation Agents” means the Persons identified as such on the cover  page of this Agreement.  “Domestic Borrowing Subsidiary” means any Borrowing Subsidiary that is  a Domestic Subsidiary.  “Domestic Subsidiary” means a Subsidiary of the Company organized  under the laws of the United States of America, any State thereof or the District of  Columbia.  “EBITDA” means, for any period, Consolidated Net Income for such period  plus,   (a) without duplication and to the extent deducted in determining such  Consolidated Net Income, the sum for such period of:  (i) Interest Expense,   (ii) income tax expense,   (iii) depreciation and amortization,   (iv) losses from Dispositions,   (v) extraordinary losses,   (vi) all noncash charges, expenses or losses, other than any noncash charge,  expense or loss (A) constituting a write-off of receivables or (B) to the extent any  cash payment was or will be made in respect thereof, whether during such period  or in any prior or subsequent period,  (vii) one-time transaction costs, fees and expenses related to any Material  Acquisition, whether or not such Material Acquisition is consummated, and    21      [[5866265v.11]]    (viii) restructuring, integration and related charges or expenses (which for  the avoidance of doubt, include retention, severance, systems establishment costs,  contract termination costs, future lease commitments and costs to consolidate  facilities and relocate employees) related to any Material Acquisition, provided that  the charges or expenses added back pursuant to this clause (viii) shall not exceed  US$110,000,000 in the aggregate for all periods (it being understood that the  limitation in this proviso shall not apply to any portion of such charges or expenses  permitted to be added back pursuant to any other clause of this definition), minus  (b) without duplication and to the extent added in determining such  Consolidated Net Income, the sum for such period of:  (i) noncash credits to net income, other than any credits to the extent any  cash payment was or will be received in respect thereof, whether during such period  or in any prior or subsequent period,  (ii) gains from Dispositions,   (iii) noncash gains from discontinued operations, and   (iv) extraordinary income;   provided, however, that in the event of a Material Acquisition or a Material Disposition  consummated during the period of determination, the calculation of the Leverage Ratio  shall be made giving pro forma effect to such transaction as if it had occurred on the first  day of such period.   “EEA Financial Institution” means (a) any credit institution or investment  firm established in any EEA Member Country that is subject to the supervision of an EEA  Resolution Authority, (b) any entity established in an EEA Member Country that is a parent  of any Person described in clause (a) above or (c) any entity established in an EEA Member  Country that is a subsidiary of any Person described in clause (a) or (b) above and is subject  to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European  Union, Iceland, Liechtenstein and Norway.  “EEA Resolution Authority” means any public administrative authority or  any Person entrusted with public administrative authority of any EEA Member Country  (including any delegee) having responsibility for the resolution of any EEA Financial  Institution.  “Effective Date” means June 8, 2018.    “Electronic Signature” means an electronic signature, sound, symbol or  process attached to, or associated with, a contract or other record and adopted by a Person  with the intent to sign, authenticate or accept such contract or record.    22      [[5866265v.11]]    “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an  Approved Fund and (d) any other Person, other than, in each case, a natural person (or a  holding company, investment vehicle or trust for, or owned and operated for the primary  benefit of, a natural person), a Defaulting Lender, the Company, any Subsidiary or any  other Affiliate of the Company.  “Eligible Currency” means any currency other than US Dollars that is  readily available and freely traded, that is convertible into US Dollars in the international  interbank market and as to which a US Dollar Equivalent may be readily calculated.  “Environmental Claims” means all claims, however asserted, by any  Governmental Authority or other Person alleging potential liability or responsibility for  any violation of any Environmental Law, or for injury to human health or the environment,  including those resulting from a Release or threatened Release of any Hazardous  Substance.  “Environmental Laws” means all applicable federal, state, provincial, local,  tribal, territorial and foreign laws (including common law), constitutions, statutes, treaties,  regulations, rules, ordinances and codes and any consent decrees, settlement agreements,  judgments, orders, directives, or legally-enforceable policies or programs issued by or  entered into with a Governmental Authority pertaining or relating to (a) pollution or  pollution control, (b) protection of human health from exposure to hazardous or toxic  substances or wastes, (c) protection of the environment and/or natural resources,  (d) employee safety in the workplace, (e) the presence, use, management, generation,  manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling,  packaging, sale, transport, storage, collection, distribution, disposal or Release or threat of  Release of hazardous or toxic substances or wastes, (f) the presence of contamination,  (g) the protection of endangered or threatened species or (h) the protection of  environmentally sensitive areas.  “ERISA” means the Employee Retirement Income Security Act of 1974, as  amended, and the rules and regulations promulgated thereunder.   “ERISA Event” means (a) with respect to a Pension Plan, a reportable event  under Section 4043 of ERISA as to which event (after taking into account notice waivers  provided for in the regulations) there is a duty to give notice to the PBGC, (b) a withdrawal  by the Company or any member of the ERISA Group from a Pension Plan subject to  Section 4063 of ERISA during a plan year in which it was a substantial employer (as  defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such  a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by the  Company or any member of the ERISA Group from a Multiemployer Plan or occurrence  of an event described in Section 4041A(a) of ERISA that results in the termination of a  Multiemployer Plan, (d) the filing of a notice of intent to terminate a Pension Plan, the  treatment of a Pension Plan amendment as a termination under Section 4041(e) of ERISA,  or the commencement of proceedings by the PBGC to terminate a Pension Plan, (e) an  event or condition which constitutes grounds under Section 4042 of ERISA for the  termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the    23      [[5866265v.11]]    imposition of any liability under Title IV of ERISA, other than for PBGC premiums due  but not delinquent under Section 4007 of ERISA, upon the Company or any member of the  ERISA Group or (g) any Foreign Benefit Event.  “ERISA Group” means, at any time, the Company and all members of a  controlled group of corporations and all trades or businesses (whether or not incorporated)  under common control and all other entities which, together with the Company, are treated  as a single employer under Section 414 of the Code or Section 4001(b)(1) of ERISA.  “Erroneous Payment” has the meaning set forth in Article VIII.  “Erroneous Payment Deficiency Assignment” has the meaning set forth in  Article VIII.  “Erroneous Payment Impacted Class” has the meaning set forth in  Article VIII.  “Erroneous Payment Return Deficiency” has the meaning set forth in  Article VIII.  “€STR” means a rate equal to the Euro Short Term Rate as administered by  the €STR Administrator.  “€STR Administrator” means the European Central Bank (or any successor  administrator of the Euro Short Term Rate).  “€STR Administrator’s Website” means the European Central Bank’s  website, currently at http://www.ecb.europa.eu, or any successor source for the Euro Short  Term Rate identified as such by the €STR Administrator from time to time.  “€STR Lookback Day” has the meaning set forth in the definition of “Daily  Simple RFR”.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation  Schedule published by the Loan Market Association (or any successor person), as in effect  from time to time.  “Euro” or “€” means the single currency unit of the member States of the  European Community that adopt or have adopted the Euro as their lawful currency in  accordance with legislation of the European Community relating to Economic and  Monetary Union.  “Events of Default” has the meaning set forth in Section 7.01.  “Exchange Act” means the United States Securities Exchange Act of 1934.  “Exchange Rate” means, on any day, for purposes of determining the  US Dollar Equivalent of any other currency, the rate at which such other currency may be  





 






  24      [[5866265v.11]]    exchanged into US Dollars, determined by using the closing rate of exchange as of the  Business Day immediately preceding the date of determination, as such closing rate of  exchange is displayed on the applicable Reuters World Currency Page.  In the event that  such rate is not displayed on the applicable Reuters World Currency Page, (a) the Exchange  Rate shall be determined by reference to such other publicly available service for providing  exchange rates as may be agreed upon by the Administrative Agent and the Company or  (b) in the absence of such an agreement, the Exchange Rate shall instead be the arithmetic  average of the spot rates of exchange of the Administrative Agent or one of its Affiliates  in the market where its, or its Affiliate’s, foreign currency exchange operations in respect  of such currency are then being conducted, at or as near as practicable to such time of  determination, on such day for the purchase of US Dollars for delivery two Business Days  later, provided that if at the time of such determination, for any reason, no such spot rate is  being quoted, the Administrative Agent may use any reasonable method it reasonably  deems appropriate to determine such rate, and such determination shall be conclusive  absent manifest error.  Notwithstanding the foregoing provisions of this definition, each  Issuing Bank may, solely for purposes of computing the fronting fees owed to it under  Section 2.09(c), compute the US Dollar Equivalent of the LC Exposure attributable to  Letters of Credit issued by it by reference to exchange rates determined using any  reasonable method customarily employed by it for such purpose.  “Excluded Subsidiary” means (a) any Subsidiary set forth on  Schedule 1.01, (b) any Subsidiary that is not wholly owned by the Company (provided that,  for purposes of this clause (b), the determination of whether GET SpinCo or any of its  subsidiaries is a wholly owned Subsidiary of the Company shall be determined without  giving effect to the shares of SpinCo Class A Preferred Stock (as defined in the GET  Separation Agreement) held directly or indirectly by the GET Seller), (c) any Subsidiary  that is a CFC or a CFC Holding Company, (d) unless otherwise agreed by the Company,  any Subsidiary that is not a Material Subsidiary, (e) any Subsidiary that is prohibited by  applicable law, rule or regulation or, in the case of any Subsidiary that is acquired after the  Restatement Effective Date, by any contractual obligation existing on the date such  Subsidiary is acquired (and, in each case, not established in anticipation thereof) from  providing a Guarantee of the Obligations or that would require consent, approval, license  or authorization of any Governmental Authority to provide a Guarantee of the Obligations  (unless such consent, approval, license or authorization has been obtained), (f) any captive  insurance company, (g) any not-for-profit Subsidiary or (h) any special purposes entity,  including any Securitization Subsidiary; provided that (i) any Subsidiary that is an  Excluded Subsidiary under any of the foregoing clauses shall automatically cease to be an  Excluded Subsidiary at such time as the condition causing it to be an Excluded Subsidiary  shall be remedied or shall cease to be in effect and (ii) no Subsidiary shall be an Excluded  Subsidiary under any of the foregoing clauses if such Subsidiary is an obligor, including  pursuant to a Guarantee, in respect of any Indebtedness issued under the 2013 Note  Indenture or any supplemental indenture thereto.  “Excluded Swap Obligation” means, with respect to any Subsidiary  Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee  by such Subsidiary Guarantor of such Swap Obligation (or any Guarantee thereof) is or  becomes illegal under the Commodity Exchange Act or any rule or regulation promulgated    25      [[5866265v.11]]    thereunder or order of the Commodity Futures Trading Commission (or the application or  official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s failure for  any reason to constitute an “eligible contract participant” as defined in the Commodity  Exchange Act (determined after giving effect to any “keepwell, support or other  agreement”, as defined in the Commodity Exchange Act, for the benefit of such Subsidiary  Guarantor and any and all Guarantees of such Subsidiary Guarantor’s Swap Obligations  by the other Loan Parties) at the time the Guarantee of such Subsidiary Guarantor becomes  effective with respect to such Swap Obligation.  “Excluded Taxes” means 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 otherwise are Other Connection Taxes, (b) in the case of a  Lender with respect to a Loan or Commitment to the Company or any Domestic Borrowing  Subsidiary, US federal withholding Taxes imposed on amounts payable to or for the  account of such Lender with respect to an applicable interest in such Loan or Commitment  pursuant to a law in effect on the date on which (i) such Lender acquires such interest in  such Loan or Commitment (it being understood that the date on which a Lender acquires  an interest in a Loan funded pursuant to a Commitment is the date on which the Lender  enters into the applicable Commitment, but the date on which a Lender acquires an interest  in a Loan not funded pursuant to a Commitment is the date on which the Lender acquires  an interest in the applicable Loan); provided that this clause (i) shall not apply to a Lender  that becomes a Lender pursuant to an assignment request by the Company under Section  2.16(b), or (ii) such Lender changes its lending office, except in each case to the extent  that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to  such Lender’s assignor immediately before such Lender acquired the applicable interest in  such Loan or Commitment or to such Lender immediately before it changed its lending  office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and  (d) any withholding Taxes imposed under FATCA.  For purposes of clause (b)(i) of this  definition, a participation acquired pursuant to Section 2.15(c) shall be treated as having  been acquired on the earlier date(s) on which the applicable Lender acquired the applicable  interests in the Commitments or Loans to which such participation relates.  “Existing Credit Agreement” means the Credit Agreement dated as of  June 8, 2018 (as amended as of February 22, 2019, as further amended as of April 22, 2021  and as further amended as of December 29, 2021), among the Company, Wabtec BV, the  other borrowing subsidiaries party thereto, the lenders party thereto and PNC, as  administrative agent.  “Existing Letter of Credit” means (a) each letter of credit or bank guaranty  issued for the account of any Borrower under the Existing Credit Agreement that is  (i) outstanding on the Restatement Effective Date and (ii) listed on Schedule 2.20(b) and  (b) any letter of credit that is issued by any Issuing Bank for the account of the Company  or any of its Subsidiaries and, subject to compliance with the requirements set forth in    26      [[5866265v.11]]    Section 2.20 as to the maximum LC Exposure and expiration of Letters of Credit, is  designated as an Existing Letter of Credit by written notice thereof by the Company and  such Issuing Bank to the Administrative Agent (which notice shall contain a representation  and warranty by the Company as of the date thereof that the conditions precedent set forth  in Sections 4.02(a) and 4.02(b) shall be satisfied immediately after giving effect to such  designation).  “Existing Revolving Borrowings” has the meaning set forth in  Section 2.18(e).  “FATCA” means 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, any agreements entered into pursuant to Section 1471(b) of the  Code as of the date of this Agreement (or any amended or successor version described  above), any intergovernmental agreement (and any related fiscal or regulatory legislation,  rules or official practices) implementing the foregoing.   “Federal Funds Effective Rate” means, for any day, the rate calculated by  the NYFRB based on such day’s federal funds transactions by depository institutions, as  determined in such manner shall be set forth on the NYFRB’s Website from time to time,  and published on the next succeeding business day by the NYFRB as the federal funds  effective rate; provided that if such rate as so determined be less than zero, the Federal  Funds Effective Rate shall be deemed to be zero.  “Fiscal Quarter” means a fiscal quarter of a Fiscal Year.  “Fiscal Year” means the fiscal year of the Company and its Subsidiaries,  which period shall be the 12-month period ending on December 31 of each year.  “Fitch” means Fitch Ratings, Inc., or any successor to its rating agency  business.  “Floor” means the benchmark rate floor, if any, provided in this Agreement  initially (as of the Restatement Effective Date, the further applicable modification,  amendment or renewal of this Agreement or otherwise as necessary and in accordance with  the terms of this Agreement) with respect to the Relevant Rate.   “Foreign Benefit Event” means, with respect to any Foreign Pension Plan,  (a) the existence of unfunded liabilities in excess of the amount permitted under any  applicable law, or in excess of the amount that would be permitted absent a waiver from a  Governmental Authority, (b) the failure to make the required contributions or payments,  under any applicable law, on or before the due date for such contributions or payments,  (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate  any such Foreign Pension Plan or to appoint a trustee or similar official to administer any  such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan,  (d) the complete or partial withdrawal of any participating Borrower or Subsidiary  therefrom or (e) the occurrence of any transaction that is prohibited under any applicable    27      [[5866265v.11]]    law and that could reasonably be expected to result in the incurrence of any liability by the  Company or any Subsidiary, or the imposition on the Company or any Subsidiary of any  fine, excise tax or penalty resulting from any noncompliance with any applicable law, in  each case.  “Foreign Borrowing Subsidiary” means any Borrowing Subsidiary that is a  Foreign Subsidiary.  “Foreign Lender” means a Lender that is not a US Person.  “Foreign Pension Plan” means any benefit plan that under applicable law of  any jurisdiction other than the United States is required to be funded through a trust or  other funding vehicle other than a trust or funding vehicle maintained exclusively by a  Governmental Authority.  “Foreign Subsidiary” means a Subsidiary of the Company which is not a  Domestic Subsidiary.  “GAAP” means, subject to Section 1.04, generally accepted accounting  principles in the United States of America, applied in accordance with the consistency  requirements thereof.  “GET Seller” means General Electric Company, a New York corporation.  “GET Separation Agreement” means the Separation, Distribution and Sale  Agreement dated as of May 20, 2018 (as amended by that certain Amendment to  Separation, Distribution and Sale Agreement dated as of January 25, 2019), among the  GET Seller, GET SpinCo, the Company and Wabtec US Rail, Inc., a Delaware corporation,  together with the exhibits, schedules and annexes thereto and the ancillary agreements  referred to therein.  “GET SpinCo” means Transportation Systems Holdings Inc., a Delaware  corporation.  “Governmental Authority” means (a) any nation or government, any  federal, state, local or other political subdivision thereof and any entity exercising  executive, legislative, judicial, regulatory or administrative authority or functions of or  pertaining to government, including any authority or other quasi-governmental entity  established to perform any of such functions and (b) any supra-national body exercising  such powers or functions, such as the European Union or the European Central Bank.  “Guarantee” of or by any Person (the “guarantor”) means any obligation,  contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,  whether directly or indirectly, and including any obligation of the guarantor, direct or  indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment  of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of)  any security for the payment thereof, (b) to purchase or lease property, securities or  





 






  28      [[5866265v.11]]    services for the purpose of assuring the owner of such Indebtedness of the payment thereof,  (c) to maintain working capital, equity capital or any other financial statement condition or  liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness  or (d) as an account party in respect of any letter of credit, bank guaranty or a similar  instrument issued to support such Indebtedness; provided that the term “Guarantee” shall  not include endorsements for collection or deposit in the ordinary course of business.  The  amount, as of any date of determination, of any Guarantee shall be the principal amount  outstanding on such date of the Indebtedness guaranteed thereby (or, in the case of (i) any  Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any  Guarantee of an obligation that does not have a principal amount, the maximum monetary  exposure as of such date of the guarantor under such Guarantee (as determined, in the case  of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good  faith by the chief financial officer of the Company)).  “Guarantee Agreement” means the Guarantee Agreement dated as of the  Effective Date, among the Company, the Subsidiary Guarantors and the Administrative  Agent, together with all supplements thereto.  “Guaranteed Borrowing Subsidiary Obligations” has the meaning set forth  in Section 9.01.  “Guarantee Requirement” means, at any time, the requirement that the  Administrative Agent shall have received from the Company and each Designated  Subsidiary either (a) a counterpart of the Guarantee Agreement duly executed and  delivered on behalf of such Person or (b) in the case of any Person that becomes a  Designated Subsidiary after the Effective Date, a supplement to the Guarantee Agreement,  in the form specified therein, duly executed and delivered on behalf of such Person,  together with certificates, documents and opinions of the type referred to in paragraphs (c)  and (d) of Section 4.01 of the Existing Credit Agreement with respect to such Designated  Subsidiary.  Notwithstanding the foregoing:  (i) this definition shall not require the provision of a Guarantee by any  Subsidiary, or the obtaining of legal opinions or other deliverables, if and for so  long as the Administrative Agent determines, in consultation with the Company,  that the cost of providing such Guarantee or obtaining such legal opinions or other  deliverables shall be excessive in relation to the benefit to be afforded to the  Lenders therefrom; and  (ii) the Administrative Agent may grant extensions of time for the  provision of a Guarantee by any Subsidiary, or the obtaining of legal opinions or  other deliverables with respect to any Subsidiary, where it determines, in  consultation with the Company, that such action cannot be accomplished without  undue effort or expense by the time or times at which it would otherwise be required  to be accomplished by this Agreement or the Guarantee Agreement.     29      [[5866265v.11]]    “Hazardous Substances” means (a) any petroleum or petroleum products,  by-products or derivatives, radioactive materials, asbestos in any form that is or could  become friable, urea formaldehyde foam insulation, polychlorinated biphenyls, radon gas  and mold, (b) any chemicals, materials, wastes, pollutants or substances listed, classified  or defined as or included in the definition of “hazardous substances”, “hazardous waste”,  “hazardous materials”, “extremely hazardous substances”, “restricted hazardous waste”,  “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants”, or words of similar  import, under any applicable Environmental Law, and (c) any other chemical, material,  waste or substance, the exposure to or release of which is prohibited, limited or regulated  by any Governmental Authority or for which any duty or standard of care is imposed  pursuant to any Environmental Law.  “Hedging Agreement” means any agreement with respect to any swap,  forward, future or derivative transaction, or any option or similar agreement, involving, or  settled by reference to, one or more rates, currencies, commodities, prices of equity or debt  securities or instruments, or economic, financial or pricing indices or measures of  economic, financial or pricing risk or value, or any similar transaction or combination of  the foregoing transactions; provided that none of the following shall constitute a Hedging  Agreement:  (a) any phantom stock or similar plan providing for payments only on account  of services provided by, or any stock option or stock compensation plan providing for  grants to, current or former directors, officers, employees or consultants of the Company  or the Subsidiaries; (b) any issuance by the Company of Convertible Indebtedness or  warrants or options entitling third parties to purchase the Company’s common stock (or, at  the Company’s option, to receive cash in lieu thereof); (c) any purchase of Capital  Securities or Indebtedness (including Convertible Indebtedness) of the Company pursuant  to delayed delivery contracts; or (d) any of the foregoing to the extent it constitutes a  derivative embedded in a convertible security issued by the Company.  “Hedging Liabilities” of a Person means any and all obligations of such  Person, whether absolute or contingent and howsoever and whensoever created, arising,  evidenced or acquired (including all renewals, extensions and modifications thereof and  substitutions therefor), under any and all Hedging Agreements.  “Incremental Commitment” means an Incremental Revolving Commitment  or an Incremental Term Commitment.  “Incremental Facility Agreement” means an Incremental Facility  Agreement, in form and substance reasonably satisfactory to the Company and the  Administrative Agent, among the Company, the Administrative Agent and one or more  Incremental Lenders, establishing Incremental Term Commitments or Incremental  Revolving Commitments and effecting such other amendments hereto and to the other  Loan Documents as are contemplated by Section 2.18.  “Incremental Lender” means an Incremental Revolving Lender or an  Incremental Term Lender, as applicable.    30      [[5866265v.11]]    “Incremental Revolving Commitment” means, with respect to any Lender,  the commitment, if any, of such Lender, established pursuant to an Incremental Facility  Agreement and Section 2.18, to make Revolving Loans and to acquire participations in  Letters of Credit and Swingline Loans hereunder.   “Incremental Revolving Lender” means a Lender with an Incremental  Revolving Commitment.  “Incremental Term Commitment” means, with respect to any Lender, the  commitment, if any, of such Lender, established pursuant to an Incremental Facility  Agreement and Section 2.18, to make Incremental Term Loans of any Class to the  Company hereunder.  “Incremental Term Lender” means each Lender with an Incremental Term  Commitment or an outstanding Incremental Term Loan.   “Incremental Term Loan” means a Loan made by an Incremental Term  Lender to the Company pursuant to Section 2.18.   “Incremental Term Maturity Date” means, with respect to Incremental  Term Loans of any Class, the scheduled date on which such Incremental Term Loans shall  become due and payable in full hereunder, as specified in the applicable Incremental  Facility Agreement.  “Indebtedness” of any Person means, without duplication, (a) all  indebtedness of such Person, (b) all borrowed money of such Person, whether or not  evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such  Person as lessee under Capital Leases that have been or should be recorded as liabilities on  a balance sheet of such Person in accordance with GAAP, (d) all obligations of such Person  to pay the deferred purchase price of property or services (excluding trade accounts payable  in the ordinary course of business and earn-out or other contingent payment obligations  arising in connection with an Acquisition), (e) all obligations of a type set forth in clause  (a), (b), (c), (d) or (f) of this definition secured by a Lien on the property of such Person,  whether or not such obligations shall have been assumed by such Person; provided that if  such Person has not assumed or otherwise become liable for such obligations, the amount  of Indebtedness under this clause (e) shall be the lesser of (i) the principal amount of such  obligations and (ii) the fair value of such property securing such obligations at the time of  determination, (f) all obligations, contingent or otherwise, with respect to the face amount  of all letters of credit (whether or not drawn), bankers’ acceptances, bank guaranties and  similar obligations issued for the account of such Person, (g) all net Hedging Liabilities of  such Person, (h) all Guarantees of such Person, (i) all Attributable Debt of such Person and  (j) all Indebtedness of any partnership of which such Person is a general partner and to the  extent liable for such Indebtedness.   “Indemnified Taxes” means (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),    31      [[5866265v.11]]    Other Taxes; provided, however, that VAT shall not be an Indemnified Tax but shall  instead be governed by the provisions of Section 2.14(h).  “Indemnitee” has the meaning set forth in Section 10.03(b).  “Interest Coverage Ratio” means, for any Computation Period, the ratio of  (a) EBITDA for such Computation Period to (b) Interest Expense for such Computation  Period.  “Interest Election Request” means a request by or on behalf of a Borrower  to convert or continue a Borrowing in accordance with Section 2.05, which shall be in the  form of Exhibit E or any other form approved by the Administrative Agent.  “Interest Expense” means, for any period, the consolidated interest expense  of the Company and its Subsidiaries for such period (including all imputed interest on  Capital Leases), determined on a consolidated basis in accordance with GAAP.  “Interest Payment Date” means (a) with respect to any ABR Loan  (including any Swingline Loan), the first Business Day following the last day of each  March, June, September and December, (b) with respect to any RFR Loan, the last  Business Day of each calendar month, (c) with respect to any Term SOFR Loan or CDOR  Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is  a part (and, in the case of a Term SOFR Borrowing with an Interest Period of more than  three months’ duration, such day or days prior to the last day of such Interest Period as  shall occur at intervals of three months’ duration after the first day of such Interest Period)  and (d) with respect to any Daily Simple SOFR Loan (if such Type of Loan is applicable  pursuant to Section 2.11), the last Business Day of each calendar month.  “Interest Period” means, with respect to any Term SOFR Borrowing or  CDOR Borrowing, the period commencing on the date of such Borrowing and ending on  the numerically corresponding day in the calendar month that is one, three or, solely in the  case of a Term SOFR Borrowing, six months thereafter, as the applicable Borrower may  elect; provided that (a) if any Interest Period would end on a day other than a Business  Day, such Interest Period shall be extended to the next succeeding Business Day unless  such next succeeding Business Day would fall in the next calendar month, in which case  such Interest Period shall end on the next preceding Business Day, and (b) any Interest  Period 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.  For purposes hereof, the date of a Borrowing initially shall be the date on which  such Borrowing is made and thereafter shall be the effective date of the most recent  conversion or continuation of such Borrowing.  “IRS” means the Internal Revenue Service and any Person succeeding to  the functions thereof.  





 






  32      [[5866265v.11]]    “ISP” means, with respect to any Letter of Credit, the “International  Standby Practices 1998” published by the Institute of International Banking Law &  Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).  “Issuing Bank” means (a) PNC, (b) Citibank, N.A., (c) HSBC Bank USA,  N.A., (d) JPMorgan Chase Bank, N.A., (e) TD Bank, N.A. and (f) each Lender that shall  have become an Issuing Bank hereunder as provided in Section 2.20(i) (other than any  Person that shall have ceased to be an Issuing Bank as provided in Section 2.20(j)), each  in its capacity as an issuer of Letters of Credit hereunder.  Each Issuing Bank may, in its  discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such  Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with  respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank  shall, or shall cause such Affiliate to, comply with the requirements of Section 2.20 with  respect to such Letters of Credit).  “Judgment Currency” has the meaning set forth in Section 10.18(b).  “LC Commitment” means, with respect to any Issuing Bank, the maximum  permitted amount of the LC Exposure that may be attributable to Letters of Credit issued  by such Issuing Bank. The initial amount of each Issuing Bank’s LC Commitment is set  forth on Schedule 2.20(a) or, in the case of any Issuing Bank that becomes an Issuing Bank  hereunder pursuant to Section 2.20(i), in a written agreement referred to in such Section  or, in each case, such other maximum permitted amount with respect to any Issuing Bank  as may have been agreed in writing (and notified in writing to the Administrative Agent)  by such Issuing Bank and the Company.  “LC Currency” means, with respect to Letters of Credit to be issued by any  Issuing Bank, (a) US Dollars and (b) any other Eligible Currency that such Issuing Bank  shall agree shall constitute an “LC Currency” for purposes hereof.   “LC Disbursement” means a payment made by any Issuing Bank pursuant  to a Letter of Credit.  The amount of any LC Disbursement made by an Issuing Bank in  any LC Currency (other than US Dollars) and not reimbursed by the applicable Borrower  shall be determined as set forth in Section 2.20(f) or 2.20(l), as applicable.  “LC Exchange Rate” means, on any day, with respect to US Dollars in  relation to any LC Currency (other than US Dollars), the rate at which US Dollars may be  exchanged into such LC Currency, determined by using the closing rate of exchange as of  the Business Day immediately preceding the date of determination, as such closing rate of  exchange is displayed on the applicable Reuters World Currency Page.  In the event that  such rate is not displayed on the applicable Reuters World Currency Page, (a) the LC  Exchange Rate shall be determined by reference to such other publicly available service  for providing exchange rates as may be agreed upon by the Administrative Agent and the  Company or (b) in the absence of such an agreement, the LC Exchange Rate shall instead  be the arithmetic average of the spot rates of exchange of the Administrative Agent or one  of its Affiliates in the market where its, or its Affiliate’s, foreign currency exchange  operations in respect of such currency are then being conducted, at or as near as practicable    33      [[5866265v.11]]    to such time of determination, on such day for the purchase of such LC Currency with US  Dollars for delivery two Business Days later, provided that if at the time of such  determination, for any reason, no such spot rate is being quoted, the Administrative Agent  may use any reasonable method it reasonably deems appropriate to determine such rate,  and such determination shall be conclusive absent manifest error.  “LC Exposure” means, at any time, the sum of (a) the sum of the US Dollar  Equivalents (based on the applicable Exchange Rates) of the aggregate amount of all  Letters of Credit that remains available for drawing at such time and (b) the sum of the US  Dollar Equivalents (based on the applicable Exchange Rates) of the aggregate amount of  all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers  at such time.  The LC Exposure of any Revolving Lender at any time shall be its Applicable  Percentage of the total LC Exposure at such time, adjusted to give effect to any reallocation  under Section 2.17(c) of the LC Exposure of Defaulting Lenders in effect at such time.  “LC Participation Calculation Date” means, with respect to any LC  Disbursement made by any Issuing Bank or any refund of a reimbursement payment made  by any Issuing Bank to any Borrower, in each case in an LC Currency other than US  Dollars, (a) the date on which such Issuing Bank shall advise the Administrative Agent that  it purchased with US Dollars the LC Currency used to make such LC Disbursement or  refund or (b) if such Issuing Bank shall not advise the Administrative Agent that it made  such a purchase, the date on which such LC Disbursement or refund is made.  “Lender Parent” means, with respect to any Lender, any Person in respect  of which such Lender is a subsidiary.  “Lenders” means the Persons listed on Schedule 2.01, any Incremental  Lender that shall have become a party hereto pursuant to an Incremental Facility  Agreement and any other Person that shall have become a party hereto pursuant to an  Assignment and Assumption, other than any such Person that shall have ceased to be a  party hereto pursuant to an Assignment and Assumption. Unless the context otherwise  requires, the term “Lenders” includes the Swingline Lender.  “Letter of Credit” means each Existing Letter of Credit and any other letter  of credit or bank guaranty issued pursuant to this Agreement, in each case other than any  such letter of credit or bank guaranty that shall have ceased to be a “Letter of Credit”  outstanding hereunder pursuant to Section 10.05.  “Letter of Credit Termination Date” means the fifth Business Day prior to  the Revolving Maturity Date.  “Leverage Ratio” means, as of any date of determination, the ratio of  (a) (i) Total Debt on such date of determination less (ii) Unrestricted Cash on such date of  determination, provided that the amount deducted pursuant to this clause (ii) may not in  any event exceed, as of any date of determination, US$300,000,000, to (b) EBITDA for  the most recently ended Computation Period (including any Computation Period ending  on the date of determination).    34      [[5866265v.11]]    “Lien” means any mortgage, deed of trust, pledge, lien, security interest,  charge or other encumbrance or security arrangement of any nature whatsoever, whether  voluntarily or involuntarily given, including any conditional sale or title retention  arrangement, and any assignment, deposit arrangement or lease intended as, or having the  effect of, security.  “Loan Document Obligations” means (a) the due and punctual payment by  each Borrower of the principal of and premium, if any, and interest (including interest  accruing, at the rate specified herein, during the pendency of any bankruptcy, insolvency,  receivership or other similar proceeding, regardless of whether allowed or allowable in  such proceeding) on all Loans, when and as due, whether at maturity, by acceleration, upon  one or more dates set for prepayment or otherwise, (b) the due and punctual payment by  each Borrower of each payment required to be made by such Borrower under this  Agreement in respect of any Letter of Credit, when and as due, including payments in  respect of reimbursement of LC Disbursements, interest thereon (including interest  accruing, at the rate specified herein, during the pendency of any bankruptcy, insolvency,  receivership or other similar proceeding, regardless of whether allowed or allowable in  such proceeding) and obligations to provide cash collateral and (c) the due and punctual  payment or performance by each Borrower and each Subsidiary Guarantor of all other  monetary obligations under this Agreement or any other Loan Document, including fees,  costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or  otherwise (including monetary obligations accruing, at the rate specified herein or therein,  or incurred during the pendency of any bankruptcy, insolvency, receivership or other  similar proceeding, regardless of whether allowed or allowable in such proceeding).  “Loan Documents” means this Agreement, the Guarantee Agreement, each  Borrowing Subsidiary Accession Agreement, each Borrowing Subsidiary Termination, any  agreement designating an additional Issuing Bank as contemplated by Section 2.20(i), each  Incremental Facility Agreement and, except for purposes of Section 10.02, any promissory  notes delivered pursuant to Section 2.07(c) and each written agreement (if any) between  the Company and any Issuing Bank regarding such Issuing Bank’s LC Commitment.  “Loan Parties” means the Company, the Borrowing Subsidiaries and the  Subsidiary Guarantors.  “Loans” means the loans made by the Lenders to the Borrowers pursuant to  this Agreement.  “Local Time” means (a) with respect to a Loan or Borrowing denominated  in US Dollars or any Letter of Credit, New York City time, (b) with respect to a Loan or  Borrowing denominated in Canadian Dollars, Toronto time, (c) with respect to a Loan or  Borrowing denominated in Sterling, London time, and (d) with respect to any Loan or  Borrowing denominated in Euro, Brussels time.  “Majority in Interest”, when used in reference to Lenders of any Class,  means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving  Exposures and unused Revolving Commitments representing more than 50% of the sum    35      [[5866265v.11]]    of the aggregate Revolving Exposures and the aggregate amount of the unused Revolving  Commitments at such time and (b) in the case of the Delayed Draw Term Lenders, Lenders  having Delayed Draw Term Loans and unused Delayed Draw Term Commitments  representing more than 50% of the sum of the aggregate outstanding principal amount of  all the Delayed Draw Term Loans and the aggregate amount of the unused Delayed Draw  Term Commitments at such time.  “Mandatory Restrictions” has the meaning set forth in Section 1.09.  “Margin Stock” has the meaning set forth in Regulation U.  “Material Acquisition” means any Acquisition in which the aggregate  consideration payable by the Company and its Subsidiaries has a value of US$10,000,000  or more.  “Material Adverse Effect” means (a) a material adverse change in, or a  material adverse effect upon, the financial condition, operations, assets, business or  properties of the Company and its Subsidiaries, taken as a whole, (b) a material impairment  of the ability of the Loan Parties, taken as a whole, to perform any of the payment  Obligations under any Loan Document or (c) a material adverse effect upon the legality,  validity, binding effect or enforceability against any Loan Party of any Loan Document to  which it is a party.  “Material Disposition” means any Disposition in which the aggregate  consideration received by the Company and its Subsidiaries has a value of US$10,000,000  or more.  “Material Indebtedness” means Indebtedness (other than under the Loan  Documents) of any one or more of the Company and the Subsidiaries in an aggregate  outstanding principal amount of US$200,000,000 or more.  For purposes of determining  Material Indebtedness, the “principal amount” of the Hedging Liabilities of the Company  or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum  aggregate amount (giving effect to any netting agreements) that the Company or such  Subsidiary would be required to pay if such Hedging Agreement were terminated at such  time.  “Material Subsidiary” means each Subsidiary of the Company (a) the  consolidated total assets of which equal 5.0% or more of the consolidated total assets of  the Company or (b) the consolidated revenues of which equal 5.0% or more of the  consolidated revenues of the Company, in each case as of the end of or for the most recent  period of four consecutive Fiscal Quarters of the Company for which financial statements  have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the first delivery of  any such financial statements, as of the end of or for the period of four consecutive Fiscal  Quarters of the Company most recently ended prior to the date of this Agreement);  provided that if at the end of or for any such most recent period of four consecutive Fiscal  Quarters the combined consolidated total assets or combined consolidated revenues of all  Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries  





 






  36      [[5866265v.11]]    shall have exceeded 10.0% of the consolidated total assets of the Company or 10.0% of the  consolidated revenues of the Company, then, unless the Company otherwise designates  Subsidiaries in writing, one or more of such excluded Subsidiaries shall for all purposes of  this Agreement be deemed to be Material Subsidiaries in descending order based on the  amounts of their consolidated total assets or consolidated revenues, as the case may be,  until such excess shall have been eliminated.    “Maturity Date” means the Revolving Maturity Date or the Delayed Draw  Term Maturity Date, as applicable.  “Maximum Rate” has the meaning set forth in Section 10.13.  “MNPI” means material information concerning the Company or any  Subsidiary, or any of their securities, that has not been disseminated in a manner making it  available to investors generally, within the meaning of Regulation FD under the Securities  Act and the Exchange Act.  For purposes of this definition, “material information” means  information concerning the Company or any Subsidiary, or any of their securities, that  could reasonably be expected to be material for purposes of the United States federal and  state securities laws.  “Moody’s” means Moody’s Investors Service, Inc., or any successor to the  rating agency business thereof.  “Multiemployer Plan” means any employee pension benefit plan which is a  “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and to which  the Company or any member of the ERISA Group are then making or accruing an  obligation to make contributions or, within the preceding five plan years, has made or had  an obligation to make such contributions.  “Non-Defaulting Revolving Lender” means, at any time, any Revolving  Lender that is not a Defaulting Lender at such time.  “Non-Public Lender” means (a) until the publication of an interpretation of  “public” as referred to in the CRR by the competent authority or authorities, an entity that  (i) assumes rights and/or obligations vis-à-vis a Borrower incorporated in the Netherlands,  the value of which is at least €100,000 (or its equivalent in another currency), (ii) provides  repayable funds for an initial amount of at least €100,000 (or its equivalent in another  currency), or (iii) otherwise qualifies as not forming part of the public; and (b) as soon as  the interpretation of the term “public” as referred to in the CRR has been published by the  competent authority or authorities, an entity which is not considered to form part of the  public on the basis of such interpretation.  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB’s Website” means the website of the NYFRB at  http://www.newyorkfed.org, or any successor source.  “Objecting Lender” has the meaning set forth in Section 2.22(a).    37      [[5866265v.11]]    “Obligations” means (a) the Loan Document Obligations, (b) the  Designated Cash Management Obligations and (c) the Designated Hedge Obligations,  excluding, with respect to any Subsidiary Guarantor, Excluded Swap Obligations with  respect to such Subsidiary Guarantor.  “Obligor” has the meaning set forth in Section 9.01.  “OFAC” means the United States Treasury Department Office of Foreign  Assets Control.  “Other Connection Taxes” means, 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,  Letter of Credit or Loan Document).  “Other Taxes” means 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 2.16).  “Overnight Bank Funding Rate” means, for any day, the rate comprised of  both overnight federal funds and overnight eurodollar transactions denominated in US  Dollars by U.S.-managed banking offices of depository institutions, as such composite rate  shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to  time, and published on the next succeeding business day as an overnight bank funding rate  by the NYFRB (or by such other recognized electronic source (such as Bloomberg)  selected by the Administrative Agent for the purpose of displaying such rate); provided  that if such day is not a Business Day, the Overnight Bank Funding Rate for such date shall  be such rate on the immediately preceding Business Day; provided further that if such rate  shall at any time, for any reason, no longer exist, the term “Overnight Bank Funding Rate”  shall mean a comparable replacement rate determined by the Administrative Agent at such  time (which determination shall be conclusive absent manifest error): provided further that  if the Overnight Bank Funding Rate as so determined would be less than zero, such rate  shall be deemed to be zero. The applicable rate of interest charged hereunder shall be  adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate,  without notice to any Borrower.  “Parent Guarantee” means the Guarantee and other obligations of the  Company set forth in Article IX.  “Participant Register” has the meaning set forth in Section 10.04(c)(ii).  “Participants” has the meaning set forth in Section 10.04(c)(i).    38      [[5866265v.11]]    “Payment Recipient” has the meaning set forth in Article VIII.  “PBGC” means the Pension Benefit Guaranty Corporation established  pursuant to Subtitle A of Title IV of ERISA or any successor.  “Pension Plan” means at any time an “employee pension benefit plan” (as  such term is defined in Section 3(2) of ERISA) (including a “multiple employer plan” as  described in Sections 4063 and 4064 of ERISA, but not a Multiemployer Plan) which is  covered by Title IV of ERISA or is subject to the minimum funding standards under  Section 412 or Section 430 of the Code and either (a) is sponsored, maintained or  contributed to by the Company or any member of the ERISA Group for employees of the  Company or any member of the ERISA Group or (b) has at any time within the preceding  five years been sponsored, maintained or contributed to by any Person that was at such  time a member of the ERISA Group for employees of any Person that was at such time a  member of the ERISA Group, or in the case of a “multiple employer” or other plan  described in Section 4064(a) of ERISA, has made contributions at any time during the  immediately preceding five plan years.  “Performance Letter of Credit” means (a) a standby letter of credit issued  to secure performance obligations, including, without limitation, the performance of  services and/or delivery of goods by or on behalf of the Company and its Subsidiaries,  advance payment, retention or warranty obligations, in each case in connection with  business activities of the Company or its Subsidiaries or bids for prospective projects, and  (b) a standby letter of credit issued to back a bank guarantee, surety bond, performance  bond or other similar obligation, in each case, issued to support obligations of the type  described in clause (a) above.  “Person” means any natural person, corporation, limited liability company,  trust, joint venture, association, company, partnership, Governmental Authority or other  entity.  “Platform” has the meaning set forth in Section 10.01(d).  “PNC” means PNC Bank, National Association.  “Prime Rate” means the rate of interest per annum publicly announced from  time to time by PNC as its prime rate in effect at its principal office in Pittsburgh,  Pennsylvania, which rate may not be the lowest or most favorable rate then being charged  commercial borrowers or others by PNC.  Each change in the Prime Rate shall be effective  from and including the date such change is publicly announced as being effective.   “Private Side Lender Representatives” means, with respect to any Lender,  representatives of such Lender that are not Public Side Lender Representatives.  “PTE” means a prohibited transaction class exemption issued by the US  Department of Labor, as any such exemption may be amended from time to time.    39      [[5866265v.11]]    “Public Side Lender Representatives” means, with respect to any Lender,  representatives of such Lender that do not wish to receive MNPI.  “QFC” has the meaning assigned to the term “qualified financial contract”  in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning set forth in Section 10.20.  “Quotation Day” means, with respect to Canadian Dollars for any Interest  Period, the first day of such Interest Period, in each case unless market practice differs in  the Toronto interbank market, in which case the Quotation Day shall be determined by the  Administrative Agent in accordance with market practice in the Toronto interbank market  (and if quotations would normally be given by leading banks in the Toronto interbank  market on more than one day, the Quotation Day shall be the last of those days).  “Recipient” means the Administrative Agent, the Swingline Lender, any  other Lender, any Issuing Bank or any combination thereof (as the context requires).  “Register” has the meaning set forth in Section 10.04(b)(iv).  “Regulation U” means Regulation U of the Board of Governors.  “Related Parties” means, with respect to any specified Person, such  Person’s Affiliates and the directors, officers, partners, members, trustees, employees,  agents, administrators, managers, representatives and advisors of such Person and of such  Person’s Affiliates.  “Release” means any release, spill, emission, leaking, pumping, injection,  deposit, disposal, discharge, dispersal, leaching or migration of Hazardous Substances into  or onto the indoor or outdoor environment, including the movement of Hazardous  Substances through or in the air, soil, surface water or groundwater.  “Relevant Governmental Body” means (a) with respect to a Benchmark  Replacement in respect of Loans denominated in US Dollars, the Board of Governors  and/or the NYFRB, as applicable, or a committee officially endorsed or convened by the  Board of Governors and/or the NYFRB or, in each case, any successor thereto, (b) with  respect to a Benchmark Replacement in respect of Loans denominated in Euro, the  European Central Bank, or a committee officially endorsed or convened by the European  Central Bank or, in each case, any successor thereto, (c) with respect to a Benchmark  Replacement in respect of Loans denominated in Sterling, the Bank of England, or a  committee officially endorsed or convened by the Bank of England or, in each case, any  successor thereto and (d) with respect to a Benchmark Replacement in respect of Loans  denominated in Canadian Dollars, (i) the Bank of Canada or (ii) any working group or  committee officially endorsed or convened by (A) the Bank of Canada, (B) any other  supervisor that is responsible for supervising either (1) such Benchmark Replacement or  (2) the administrator of such Benchmark Replacement, (C) a group of the Bank of Canada  or any other such supervisors or (D) the Financial Stability Board or any part thereof.  





 






  40      [[5866265v.11]]    “Relevant Rate” means (a) with respect to any Term SOFR Borrowing, the  Adjusted Term SOFR, (b) with respect to any CDOR Borrowing, the CDO Rate, (c) with  respect to any RFR Borrowing, the applicable Daily Simple RFR and (d) with respect to  any Daily Simple SOFR Borrowing (if such Type of Borrowing is applicable pursuant to  Section 2.11), the Adjusted Daily Simple SOFR.  “Relevant Screen Rate” means (a) with respect to any Term SOFR  Borrowing, the Term SOFR Reference Rate and (b) with respect to any CDOR Borrowing,  the Screen Rate.  “Required Lenders” means, at any time, Lenders having Revolving  Exposures, unused Revolving Commitments, Delayed Draw Term Loans and unused  Delayed Draw Term Commitments representing more than 50% of the sum of the  Aggregate Revolving Exposure, the aggregate amount of the unused Revolving  Commitments, the aggregate outstanding principal amount of all the Delayed Draw Term  Loans and the aggregate amount of the unused Delayed Draw Term Commitments at such  time.  “Resolution Authority” means an EEA Resolution Authority or, with  respect to any UK Financial Institution, a UK Resolution Authority.  “Restatement Agreement” means the Amendment and Restatement  Agreement dated as of August 15, 2022, among the Company, Wabtec BV, the other Loan  Parties party thereto, the Lenders party thereto, the Issuing Banks party thereto, the  Swingline Lender and the Administrative Agent.  “Restatement Effective Date” has the meaning set forth in the Restatement  Agreement.  “Restricted Lender” has the meaning set forth in Section 1.09.  “Restricted Payment” means any dividend or other distribution (whether in  cash, securities or other property) with respect to any Capital Securities in the Company or  any Subsidiary, or any payment or distribution (whether in cash, securities or other  property), including any sinking fund or similar deposit, on account of the purchase,  redemption, retirement, acquisition, exchange, conversion, cancelation or termination of,  or any other return of capital with respect to, any Capital Securities in the Company or any  Subsidiary.  “Resulting Revolving Borrowings” has the meaning set forth in  Section 2.18(e).  “Revolving Availability Period” means the period from and including the  Restatement Effective Date to but excluding the earlier of the Revolving Maturity Date and  the date of termination of the Revolving Commitments.  “Revolving Commitment” means, with respect to each Lender, the  commitment, if any, of such Lender to make Revolving Loans and to acquire participations    41      [[5866265v.11]]    in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing  the maximum aggregate permitted amount of such Lender’s Revolving Exposure  hereunder, as such commitment may be (a) reduced from time to time pursuant to  Section 2.06, (b) increased from time to time pursuant to Section 2.18 or (c) reduced or  increased from time to time pursuant to assignments by or to such Lender pursuant to  Section 10.04.  The initial amount of each Lender’s Revolving Commitment is set forth on  Schedule 2.01, or in the Assignment and Assumption or the Incremental Facility  Agreement pursuant to which such Lender shall have assumed or provided its Revolving  Commitment, as applicable.  The initial aggregate amount of the Lenders’ Revolving  Commitments is US$1,500,000,000.  “Revolving Commitment Fee” has the meaning set forth in Section 2.09(a).  “Revolving Exposure” means, with respect to any Lender at any time, the  sum of (a) the sum of the US Dollar Equivalents of the principal amounts of such Lender’s  Revolving Loans outstanding at such time, (b) such Lender’s LC Exposure at such time  and (c) such Lender’s Swingline Exposure at such time.  “Revolving Facility” means the revolving credit facility provided for herein,  including the Revolving Commitments, the Revolving Loans and participations in Letters  of Credit and Swingline Loans.  “Revolving Lender” means a Lender with a Revolving Commitment or  Revolving Exposure.  “Revolving Loan” means a Loan made pursuant to clause (b) of  Section 2.01.  “Revolving Maturity Date” means the fifth anniversary of the Restatement  Effective Date.  “RFR” means, for any Loan, interest or other amount denominated in, or  calculated with respect to, (a) Sterling, SONIA and (b) Euro, €STR.  “RFR Adjustment” means, with respect to any RFR Loan denominted in  any currency, the adjustment set forth in the table below corresponding to such currency:  Currency Adjustment to   Daily Simple RFR  Euros 0.0456%  Sterling 0.0326%    “RFR Administrator’s Website” means the SONIA Administrator’s  Website or the €STR Administrator’s Website, as applicable.  “RFR Borrowing” means any Borrowing comprised of RFR Loans.    42      [[5866265v.11]]    “RFR Business Day” means, for any Loan, interest or other amount  denominated in, or calculated with respect to, (a) Sterling, a day on which banks are open  for general business in London and (b) Euro, a TARGET Day.  “RFR Loan” means a Loan that bears interest at a rate determined by  reference to the Daily Simple RFR.  “RFR Reserve Percentage” means as of any day, the maximum effective  percentage in effect on such day, if any, as prescribed by the Board of Governors (or any  successor) for determining the reserve requirements (including, without limitation,  supplemental, marginal and emergency reserve requirements) with respect to RFR Loans.  “RFR Day” has the meaning set forth in the definition of “Daily Simple  RFR”.  “S&P” means S&P Global Ratings, a division of S&P Global Inc., or any  successor to its rating agency business.  “Sale and Leaseback Transaction” means an arrangement relating to  property owned by the Company or any Subsidiary whereby the Company or such  Subsidiary sells or transfers such property to any Person and the Company or any  Subsidiary leases such property, or other property that it intends to use for substantially the  same purpose or purposes as the property sold or transferred, from such Person or its  Affiliates.  “Sanctioned Country” means, at any time, a country, region or territory that  itself is the subject of any Sanctions (including, at the Restatement Effective Date, the so- called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea  Region of Ukraine, Cuba, Iran, North Korea and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any  Sanctions-related list of designated Persons maintained by OFAC or the US Department of  State or by the United Nations Security Council, the European Union, any European Union  member state or Her Majesty’s Treasury of the United Kingdom, (b) any Person organized  or resident in a Sanctioned Country or (c) any Person 50% or more owned or controlled by  any Person or Persons described in the preceding clauses (a) and (b).  “Sanctions” means economic or financial sanctions or trade embargoes  imposed, administered or enforced from time to time by (a) the US government, including  those administered by OFAC or the US Department of State, or (b) the United Nations  Security Council, the European Union, any European Union member state or Her Majesty’s  Treasury of the United Kingdom.  “Screen Rate” means the average rate per annum for Canadian Dollar  bankers acceptances with a term equal to such Interest Period as displayed on the applicable  Bloomberg page (currently BTMM CA) (or, in the event such rate does not appear on a  Bloomberg page, on the appropriate page of such other information service that publishes  such rate as shall be selected by the Administrative Agent from time to time in its    43      [[5866265v.11]]    reasonable discretion); provided that if any Screen Rate, determined as provided above,  would be less than zero, such Screen Rate shall for all purposes of this Agreement be zero.  “SEC” means the United States Securities and Exchange Commission.  “Securities Act” means the United States Securities Act of 1933.  “Securitization Receivables” has the meaning set forth in the definition of  the term “Securitization Transaction”.  “Securitization Subsidiary” means any Subsidiary that is a special purpose  entity formed for the purpose of engaging in activities in connection with Securitization  Transactions, provided that such Subsidiary (a) does not own any significant assets other  than Securitization Receivables, Capital Securities in any other Securitization Subsidiary,  assets relating to its existence and other assets ancillary to any of the foregoing and  (b) conducts no business activities other than in connection with Securitization  Transactions and activities incidental thereto; provided further that a Securitization  Subsidiary may not be designated as a Borrowing Subsidiary.  “Securitization Transaction” means any transfer by the Company or any  Subsidiary of accounts receivable or interests therein (collectively, the “Securitization  Receivables”) (a) to a trust, partnership, corporation or other entity, which transfer is  funded in whole or in part, directly or indirectly, by the incurrence or issuance by the  transferee or any successor transferee of Indebtedness, fractional undivided interests or  securities that are to receive payments from, or that represent interests in, the cash flow  derived from such accounts receivable or interests, or (b) directly, or indirectly through a  special purpose vehicle, to one or more investors or other purchasers.  The amount of any  Securitization Transaction shall be deemed at any time to be the aggregate principal or  stated amount of the Indebtedness, fractional undivided interests or other securities referred  to in the preceding sentence or, if there shall be no such principal or stated amount, the  uncollected amount of the accounts receivable or interests therein transferred pursuant to  such Securitization Transaction net of any such accounts receivable or interests therein that  have been written off as uncollectible and/or any discount (but not in excess of the discount  that would be usual and customary for securitization transactions of this type in light of the  then prevailing market conditions) in the purchase price therefor.  For purposes of  Section 6.02 only, a Securitization Transaction shall be deemed to be secured by a Lien on  the accounts receivable or interests therein that are subject thereto, and such accounts  receivable and interests shall be deemed to be assets of the Company and the Subsidiaries.  “Senior Officer” means, with respect to any Loan Party, any of the Chief  Executive Officer; President; Chief Financial Officer; Vice President, Finance; Vice  President, Secretary; Treasurer; Assistant Treasurer; or Corporate Controller of such Loan  Party or such other individuals, designated by written notice to the Administrative Agent  from the Company, authorized to execute notices, reports and other documents on behalf  of the Loan Parties required hereunder; provided that, when such term is used in reference  to any document executed by, or a certification of, a Senior Officer, upon request of the  Administrative Agent, the secretary or assistant secretary of the applicable Loan Party (or  





 






  44      [[5866265v.11]]    the Company on its behalf) shall have delivered (which delivery may be made on the  Restatement Effective Date) an incumbency certificate to the Administrative Agent as to  the authority of such individual.  Subject to the foregoing proviso, the Company may  amend such list of individuals from time to time by giving written notice of such  amendment to the Administrative Agent.  “SOFR” means a rate per annum equal to the secured overnight financing  rate as administered by the SOFR Administrator.  “SOFR Administrator” means the NYFRB (or a successor administrator of  the secured overnight financing rate).  “SOFR Administrator’s Website” means the NYFRB’s Website, or any  successor source for the secured overnight financing rate identified as such by the SOFR  Administrator from time to time.  “SOFR Reserve Percentage” means, for any day, the maximum effective  percentage in effect on such day, if any, as prescribed by the Board of Governors (or any  successor thereto) for determining the reserve requirements (including supplemental,  marginal and emergency reserve requirements) with respect to SOFR funding.  “SONIA” means a rate per annum equal to the Sterling Overnight Index  Average as administered by the SONIA Administrator.  “SONIA Administrator” means the Bank of England (or any successor  administrator of the Sterling Overnight Index Average).  “SONIA Administrator’s Website” means the Bank of England’s website,  currently at http://www.bankofengland.co.uk, or any successor source for the Sterling  Overnight Index Average identified as such by the SONIA Administrator from time to  time.  “SONIA Lookback Day” has the meaning set forth in the definition of  “Daily Simple RFR”.  “Specified Provision” has the meaning set forth in Section 1.09.  “Sterling” or “₤” means the lawful currency of the United Kingdom.  “subsidiary” of any Person at any time means any corporation, partnership,  limited liability company or other entity of which such Person owns, directly or indirectly,  such number of outstanding Capital Securities as have more than 50% of the ordinary  voting power for the election of directors or other managers of such corporation,  partnership, limited liability company or other entity.  “Subsidiary” means any subsidiary of the Company.    45      [[5866265v.11]]    “Subsidiary Guarantor” means any Designated Subsidiary that is a party to  the Guarantee Agreement.  “Supported QFC” has the meaning set forth in Section 10.20.  “Swap Obligation” means any obligation to pay or perform under any  agreement, contract or transaction that constitutes a “swap” within the meaning of Section  1a(47) of the Commodity Exchange Act.  “Swingline Borrowing Request” means a request by or on behalf of a  Borrower for a Swingline Loan in accordance with Section 2.21, which shall be in the form  of Exhibit F or any other form approved by the Swingline Lender and the Administrative  Agent.  “Swingline Exposure” means, at any time, the aggregate principal amount  of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving  Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at  such time, adjusted to give effect to any reallocation under Section 2.17(c) of the Swingline  Exposures of Defaulting Lenders in effect at such time.  “Swingline Lender” means PNC, in its capacity as lender of Swingline  Loans hereunder.  “Swingline Loan” means a Loan made pursuant to section 2.21.  “Syndication Agents” means the Persons identified as such on the cover  page of this Agreement.  “TARGET2” means the Trans-European Automated Real-time Gross  Settlement Express Transfer payment system (or, if such payment system ceases to be  operative, such other payment system (if any) determined by the Administrative Agent to  be a suitable replacement).  “TARGET Day” means any day on which TARGET2 is open for the  settlement of payments in Euros.  “Taxes” means 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  and penalties applicable thereto.  “Term SOFR” means, with respect to any Term SOFR Borrowing for a  tenor comparable to the applicable Interest Period, a rate per annum equal to the quotient  (rounded upwards, at the Administrative Agent’s discretion, to the nearest 1/100 of 1%)  resulting from dividing (a) the Term SOFR Reference Rate at approximately 5:00 a.m.,  Chicago time, two US Government Securities Business Days prior to the commencement  of such tenor comparable to the applicable Interest Period, as such rate is published by the  CME Term SOFR Administrator by (b) a number equal to 1.00 minus the SOFR Reserve    46      [[5866265v.11]]    Percentage.  The Term SOFR for each outstanding Term SOFR Loan shall be adjusted  automatically as of the effective date of any change in the SOFR Reserve Percentage.  The  Administrative Agent shall give prompt notice to the Company of the Term SOFR as  determined or adjusted in accordance herewith, which determination shall be conclusive  absent manifest error.  “Term SOFR Borrowing” means any Borrowing comprised of Term SOFR  Loans.  “Term SOFR Loan” means any Loan that bears interest at a rate determined  by reference to the Adjusted Term SOFR.  “Term SOFR Reference Rate” means, for any day and time (such day, the  “Term SOFR Determination Day”), with respect to any Term SOFR Borrowing and for a  tenor comparable to the applicable Interest Period, the rate per annum determined by the  Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 p.m.,  New York City time, on such Term SOFR Determination Day, the “Term SOFR Reference  Rate” for such tenor has not been published by the CME Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR has not occurred, then the  Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term  SOFR Reference Rate as published in respect of the first preceding US Government  Securities Business Day for which such Term SOFR Reference Rate was published by the  CME Term SOFR Administrator, so long as such first preceding US Government  Securities Business Day is not more than three Business Days prior to such Term SOFR  Determination Day.  “Total Debt” means all Indebtedness of the type referred to in clause (a),  (b), (c), (d), (f) or (i) of the definition of such term the Company and its Subsidiaries,  determined on a consolidated basis, provided that (a) Total Debt shall not include any  obligations of the Company or any Subsidiary arising from any Performance Letter of  Credit, surety bonds, performance bonds, bid bonds, performance guaranties or other  similar obligations incurred in the ordinary course of business and that do not support  Indebtedness and (b) for purposes of determining Total Debt at any time after the definitive  agreement for any Material Acquisition shall have been executed, any Acquisition  Indebtedness with respect to such Material Acquisition shall, unless such Material  Acquisition shall have been consummated, be disregarded.  “Transactions” means (a) the execution, delivery and performance by each  Loan Party of the Loan Documents to which it is a party, the borrowing of Loans and the  issuance of Letters of Credit, (b) the other transactions contemplated by the Restatement  Agreement and (c) the payment of fees and expenses in connection with the foregoing.   “Type”, when used in reference to any Loan or Borrowing, refers to whether  the rate of interest on such Loan, or on the Loans comprising such Borrowing, is  determined by reference to the Adjusted Term SOFR, the CDO Rate, any Daily Simple  RFR, the Alternate Base Rate or, if applicable pursuant to Section 2.11, the Adjusted Daily  Simple SOFR.    47      [[5866265v.11]]    “UK” and “United Kingdom” each mean the United Kingdom of Great  Britain and Northern Ireland.  “UK Financial Institution” means any BRRD Undertaking (as such term is  defined under the PRA Rulebook (as amended form time to time) promulgated by the  United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU  11.6 of the FCA Handbook (as amended from time to time) promulgated by the United  Kingdom Financial Conduct Authority, which includes certain credit institutions and  investment firms, and certain Affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial  Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  “Unrestricted Cash” means, as of any date of determination, cash and Cash  Equivalent Investments owned on such date by the Company and its Subsidiaries, as  reflected on a consolidated balance sheet of the Company prepared as of such date in  accordance with GAAP; provided that (a) such cash and Cash Equivalent Investments do  not appear (and in accordance with GAAP would not be required to appear) as “restricted”  on such consolidated balance sheet and (b) for so long as any Acquisition Indebtedness is  disregarded for purposes of determining Total Debt in accordance with the definition of  such term, all proceeds of such Acquisition Indebtedness shall be disregarded for purposes  of determining Unrestricted Cash.  “US Dollar Equivalent” means, on any date of determination, (a) with  respect to any amount in US Dollars, such amount, and (b) with respect to any amount in  any Alternative Currency or any LC Currency (other than US Dollars), the equivalent in  US Dollars of such amount, determined by the Administrative Agent using the Exchange  Rate or the LC Exchange Rate, as applicable, with respect to such Alternative Currency or  LC Currency in effect for such amount on such date.  The US Dollar Equivalent at any  time of the amount of any Letter of Credit, LC Disbursement or Revolving Loan  denominated in any currency other than US Dollars shall be the amount most recently  determined as provided in Section 1.05(a).  “US Dollars” or “US$” refers to lawful money of the United States of  America.  “US Government Securities Business Day” means any day except for (a) a  Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets  Association recommends that the fixed income departments of its members be closed for  the entire day for purposes of trading in United States government securities.  “US Person” means a “United States person” within the meaning of  Section 7701(a)(30) of the Code.  





 






  48      [[5866265v.11]]    “US Special Resolution Regimes” has the meaning set forth in  Section 10.20.  “US Tax Compliance Certificate” has the meaning set forth in  Section 2.14(f)(ii)(B)(3).  “USA PATRIOT Act” means the Uniting and Strengthening America by  Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.  “VAT” means (a) any Tax imposed in compliance with the Council  Directive of 28 November 2006 on the common system of value added tax (EC Directive  2006/112) and (b) any other Tax of a similar nature, whether imposed in a member state of  the European Union in substitution for, or levied in addition to, such Tax referred to in  clause (a) of this definition, or imposed elsewhere.  “VAT Recipient” has the meaning set forth in Section 2.14(h).  “VAT Subject Party” has the meaning set forth in Section 2.14(h).  “VAT Supplier” has the meaning set forth in Section 2.14(h).  “Wabtec BV” means Wabtec Transportation Netherlands B.V., a private  limited liability company organized under the laws of the Netherlands (besloten  vennootschap met beperkte aansprakelijkheid) and registered with the Commercial  Register of the Dutch Chamber of Commerce under number 72948957 and a wholly owned  Subsidiary of the Company.  “wholly owned”, when used in reference to a subsidiary of any Person,  means that all the Capital Securities in such subsidiary (other than directors’ qualifying  shares and other nominal amounts of Capital Securities that are required to be held by other  Persons under applicable law) are owned, beneficially and of record, by such Person,  another wholly owned subsidiary of such Person or any combination thereof.  “Write-Down and Conversion Powers” means (a) with respect to any EEA  Resolution Authority, the write-down and conversion powers of such EEA Resolution  Authority from time to time under the Bail-In Legislation for the applicable EEA Member  Country, which write-down and conversion powers are described in the EU Bail-In  Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the  applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or  change the form of a liability of any UK Financial Institution or any contract or instrument  under which that liability arises, to convert all or part of that liability into shares, securities  or obligations of that Person or any other Person, to provide that any such contract or  instrument is to have effect as if a right had been exercised under it or to suspend any  obligation in respect of that liability or any of the powers under that Bail-In Legislation  that are related to or ancillary to any of those powers.  SECTION 1.02. Classification of Loans and Borrowings.  For purposes  of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g.,    49      [[5866265v.11]]    a “Revolving Loan” or “Revolving Borrowing”) or by Type (e.g., a “Term SOFR Loan”  or “Term SOFR Borrowing”) or by Class and Type (e.g., a “Term SOFR Revolving Loan”  or “Term SOFR Revolving Borrowing”).  SECTION 1.03. Terms Generally; Dutch Terms.  (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”.  The words “asset” and  “property” shall be construed to have the same meaning and effect and to refer to any and  all real and personal, tangible and intangible assets and properties.  The word “law” shall  be construed as referring to all statutes, rules, regulations, codes and other laws (including  official rulings and interpretations thereunder having the force of law or with which  affected Persons customarily comply), and all judgments, orders, writs and decrees, of all  Governmental Authorities.  Except as otherwise provided herein and unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including this Agreement and the other Loan Documents) shall be construed as  referring to such agreement, instrument or other document as from time to time amended,  restated, supplemented or otherwise modified (subject to any restrictions on such  amendments, restatements, supplements or modifications set forth herein), (ii) any  definition of or reference to any statute, rule or regulation shall be construed as referring  thereto as from time to time amended, supplemented or otherwise modified, and all  references to any statute shall be construed as referring to all rules, regulations, rulings and  official interpretations promulgated or issued thereunder, (iii) any reference herein to any  Person shall be construed to include such Person’s successors and assigns (subject to any  restrictions on assignment set forth herein) and, in the case of any Governmental Authority,  any other Governmental Authority that shall have succeeded to any or all functions thereof,  (iv) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be  construed to refer to this Agreement in its entirety and not to any particular provision  hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be  construed to refer to Articles and Sections of, and Exhibits and Schedules to, this  Agreement and (vi) references herein to “the date hereof”, “the date of this Agreement” or  terms of similar import shall be construed to refer to the Restatement Effective Date.  (b) In this Agreement, where it relates to a Dutch entity, a reference to:  (i)  “the Netherlands” refers to the part of the Kingdom of the Netherlands  located in Europe (and all derivative terms, including “Dutch” shall be construed  accordingly);  (ii)  a “director” means a managing director (bestuurder) and “board of  directors” means its managing board (bestuur);  (iii)  an “action to authorize” or “duly authorized”, where applicable,  includes without limitation any action required to comply with the Dutch Works  Council Act (Wet op de ondernemingsraden);    50      [[5866265v.11]]    (iv)  any “proceeding under any bankruptcy or insolvency law”,  “bankruptcy”, “insolvency”, “winding-up” or “dissolution” includes a Dutch entity  being declared bankrupt (failliet verklaard) or dissolved (ontbonden);  (v)  “bankruptcy, insolvency, receivership or similar proceeding” or  “liquidation proceeding” (or words of similar import) includes an application for  moratorium (surseance van betaling) and the appointment of a receiver, liquidator,  custodian, trustee includes the appointment of an administrator and that a  moratorium has been granted (surseance verleend);  (vi)  any procedure or step taken in connection with insolvency proceedings  includes such Dutch entity having filed a notice under Section 36 of the Tax  Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the  Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale  Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the  Netherlands (Invorderingswet 1990);  (vii)  “Capital Securities” includes, in relation to a Dutch entity that is a  cooperative (cooperatie), membership interests in such entity and the capital  accounts (kapitaalrekening) of any member in such entity;   (viii)  a “trustee” in any bankruptcy or insolvency proceeding or a  “liquidator” includes a curator;  (ix)  an “administrator” includes a bewindvoerder;  (x)  an “attachment” includes a beslag;  (xi)  “gross negligence” means grove schuld;  (xii)  “indemnify” means vrijwaren;  (xiii)  “negligence” means schuld;   (xiv)  “bad faith” means kwade trouw; and  (xv)  “willful misconduct” means opzet.  SECTION 1.04. Accounting Terms; GAAP.  (a) Except as otherwise  expressly provided herein, all terms of an accounting or financial nature used herein shall  be construed in accordance with GAAP as in effect from time to time; provided that (i) if  the Company, by notice to the Administrative Agent, shall request an amendment to any  provision hereof to eliminate the effect of any change occurring after the date hereof in  GAAP or in the application thereof on the operation of such provision (or if the  Administrative Agent or the Required Lenders, by notice to the Company, shall request an  amendment to any provision hereof for such purpose), regardless of whether any such  notice is given before or after such change in GAAP or in the application thereof, then such  provision shall be interpreted on the basis of GAAP as in effect and applied immediately    51      [[5866265v.11]]    before such change shall have become effective until such notice shall have been  withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any  other provision contained herein, other than for purposes of Sections 3.04, 5.01(a) and  5.01(b), all terms of an accounting or financial nature used herein shall be construed, and  all computations of amounts and ratios referred to herein shall be made, (A) without giving  effect to (x) any election under Financial Accounting Standards Board Accounting  Standards Codification 825 (or any other Accounting Standards Codification having a  similar result or effect) (and related interpretations) to value any Indebtedness at “fair  value”, as defined therein, or (y) any other accounting principle that results in any  Indebtedness being reflected on a balance sheet at an amount less than the stated principal  amount thereof, (B) without giving effect to any treatment of Indebtedness in respect of  convertible debt instruments under Accounting Standards Codification 470-20 (or any  other Accounting Standards Codification having a similar result or effect) (and related  interpretations) to value any such Indebtedness in a reduced or bifurcated manner as  described therein, and such Indebtedness shall at all times be valued at the full stated  principal amount thereof, and (C) without giving effect to any change in accounting for  leases resulting from the implementation of Financial Accounting Standards Board ASU  No. 2016-02, Leases (Topic 842), or any other proposals issued by the Financial  Accounting Standards Board in connection therewith, in each case to the extent any lease  (or similar arrangement conveying the right to use) would be required to be treated as a  capital lease where such lease (or similar arrangement) would not have been required to be  so treated under GAAP as in effect on December 31, 2017.  (b) All pro forma computations required to be made hereunder giving  effect to any Material Acquisition, Material Disposition or other transaction shall be  calculated after giving pro forma effect thereto as if such transaction had occurred on the  first day of the Computation Period ending with the most recent Fiscal Quarter for which  financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or,  prior to the delivery of any such financial statements, ending with the last Fiscal Quarter  included in the financial statements referred to in Section 3.04), and, to the extent  applicable, to the historical earnings and cash flows associated with the assets acquired or  disposed of and any related incurrence or reduction of Indebtedness, all in accordance with  Article 11 of Regulation S-X under the Securities Act.  If any Indebtedness bears a floating  rate of interest and is being given pro forma effect, the interest on such Indebtedness shall  be calculated as if the rate in effect on the date of determination had been the applicable  rate for the entire period (taking into account any Hedging Agreement applicable to such  Indebtedness if such Hedging Agreement has a remaining term in excess of 12 months).  SECTION 1.05. Currency Translation.  (a)  The Administrative Agent  shall determine the US Dollar Equivalent of (i) any CDOR Borrowing at the first day of  the initial Interest Period therefor and as of the end of such initial Interest Period and each  subsequent Interest Period therefor and (ii) any RFR Borrowing in accordance with the  Administrative Agent’s standard practices (which determination shall be conclusive absent  manifest error), with such frequency (including daily) as the Administrative Agent deems  to be necessary or advisable in its sole discretion, in each case using the Exchange Rate for  such currency in relation to US Dollars in effect on the date of determination, and each  such amount shall, except as provided below, be the US Dollar Equivalent of such  





 






  52      [[5866265v.11]]    Borrowing until the next required calculation thereof pursuant to this sentence.  The  Administrative Agent shall determine the US Dollar Equivalent of any Letter of Credit  denominated in an LC Currency (other than US Dollars) on the date such Letter of Credit  is issued and as of the last Business Day of each calendar month thereafter, in each case  using the Exchange Rate for such LC Currency in relation to US Dollars in effect on the  date of determination, and each such amount shall, except as provided in the penultimate  sentence of this Section, be the US Dollar Equivalent of such Letter of Credit until the next  required calculation thereof pursuant to this sentence; provided that the Administrative  Agent shall also determine the US Dollar Equivalent of any Letter of Credit denominated  in an LC Currency other than US Dollars as provided in Section 2.20(f) and 2.20(l).  The  Administrative Agent may also determine the US Dollar Equivalent of any Borrowing  denominated in an Alternative Currency or any Letter of Credit denominated in an LC  Currency (other than US Dollars) as of such other dates as the Administrative Agent shall  select in its discretion, in each case using the Exchange Rate in effect on the date of  determination, and each such amount shall be the US Dollar Equivalent of such Borrowing  or such Letter of Credit until the next calculation thereof pursuant to this Section.  The  Administrative Agent shall notify the Company and the Revolving Lenders of each  determination of the US Dollar Equivalent of each Borrowing denominated in an  Alternative Currency and each Letter of Credit denominated in an LC Currency other than  US Dollars.  (b) For purposes of any determination under Article VI or VII, amounts  incurred or outstanding, or proposed to be incurred or outstanding, in currencies other than  US Dollars shall be translated into US Dollars at the currency exchange rates in effect on  the date of such determination; provided that (i) for purposes of any determination under  Sections 6.01 and 6.02, the amount of each applicable transaction denominated in a  currency other than US Dollars shall be translated into US Dollars at the applicable  currency exchange rate in effect on the date of the consummation thereof, which currency  exchange rates shall be determined reasonably and in good faith by the Company, and  (ii) for purposes of the Leverage Ratio, any other financial test and the related definitions,  amounts in currencies other than US Dollars shall be translated into US Dollars at the  currency exchange rates then most recently used in preparing the consolidated financial  statements of the Company.  Notwithstanding anything to the contrary set forth herein, but  subject to clause (ii) above, (A) no Default or Event of Default shall arise as a result of any  limitation or threshold set forth in Article VI expressed in US Dollars in this Agreement  being exceeded in respect of any transaction solely as a result of changes in currency  exchange rates from those applicable for determining compliance with this Agreement at  the time of, or at any time following, such transaction and (B) in the case of any  Indebtedness outstanding under any clause of Section 6.01 or secured under any clause of  Section 6.02 that contains a limitation expressed in US Dollars and that, as a result of  changes in exchange rates, is so exceeded, such Indebtedness will be permitted to be  refinanced notwithstanding that, after giving effect to such refinancing, such excess shall  continue.  SECTION 1.06. Timing of Payment or Performance.  When payment of  any obligation or the performance of any covenant, duty or obligation is stated to be due  or performance required on a day that is not a Business Day, the date of such payment    53      [[5866265v.11]]    (other than as described in the definition of “Interest Period”) or performance shall extend  to the immediately succeeding Business Day, and, in the case of any payment accruing  interest, interest thereon shall be payable for the period of such extension.  SECTION 1.07. 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 and acquired on the first date of its existence by the holders of its equity  interests at such time.  SECTION 1.08. Benchmark Replacement Notification.  Section 2.11  provides a mechanism for determining an alternative rate of interest in the event that the  Benchmark for any Agreed Currency is no longer available or in certain other  circumstances. The Administrative Agent does not warrant or accept any responsibility for  and shall not have any liability with respect to, the administration, submission or any other  matter related to the Benchmark for any Agreed Currency, or with respect to any alternative  or successor rate thereto, or replacement rate therefor.  SECTION 1.09. Blocking Regulation.  In relation to any Lender that is  subject to the regulations referred to below (each, a “Restricted Lender”), any  representation, warranty or covenant set forth herein that refers to Sanctions (each, a  “Specified Provision”) shall only apply for the benefit of such Restricted Lender to the  extent that such Specified Provision would not result in a violation of, conflict with or  liability under Council Regulation (EC) 2271/96 (or any law implementing such regulation  in any member state of the European Union) or any similar blocking or anti-boycott law in  Germany (including, in the case of Germany, section 7 foreign trade rules  (Auβenwirtschaftsverordnung – AWV) in connection with section 4 paragraph 1 foreign  trade law (Auβenwirtschaftsgesetz – AWG)) or in the United Kingdom (the “Mandatory  Restrictions”).  In the event of any consent or direction by Lenders in respect of any  Specified Provision of which a Restricted Lender does not have the benefit due to a  Mandatory Restriction, then, notwithstanding anything to the contrary in the definition of  Required Lenders, for so long as such Restricted Lender shall be subject to a Mandatory  Restriction, the Revolving Exposure, Revolving Commitment, Delayed Draw Term Loan  and Delayed Draw Term Commitment of such Restricted Lender will be disregarded for  the purpose of determining whether the requisite consent of the Lenders has been obtained  or direction by the requisite Lenders has been made, it being agreed, however, that, unless,  in connection with any such determination, the Administrative Agent shall have received  written notice from any Lender stating that such Lender is a Restricted Lender with respect  thereto, each Lender shall be presumed, in connection with such determination, not to be a  Restricted Lender.    54      [[5866265v.11]]    ARTICLE II    The Credits  SECTION 2.01. Commitments.  Subject to the terms and conditions set  forth herein, each Lender agrees (a) to make one or more Delayed Draw Term Loans  denominated in US Dollars to the Company from time to time after the Restatement  Effective Date and on or before the Delayed Draw Term Commitment Termination Date  in a principal amount, for any Delayed Draw Term Loan, not exceeding its Delayed Draw  Term Commitment as in effect immediately prior to the making of such Delayed Draw  Term Loan; provided that (i) no more than two Borrowings of Delayed Draw Term Loans  may be made under this clause (a) and (ii) the aggregate principal amount of any Borrowing  of Delayed Draw Term Loans shall not be less than US$1,000,000 and shall be in an  integral multiple of US$1,000,000 in excess thereof, and (b) to make Revolving Loans  denominated in US Dollars or Alternative Currencies to any Borrower from time to time  during the Revolving Availability Period in an aggregate principal amount that will not  result in any Lender’s Revolving Exposure exceeding such Lender’s Revolving  Commitment or the Aggregate Revolving Exposure exceeding the Aggregate Revolving  Commitment.  Within the foregoing limits and subject to the terms and conditions set forth  herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.  Amounts  repaid or prepaid in respect of Delayed Draw Term Loans may not be reborrowed.  SECTION 2.02. Loans and Borrowings.  (a) Each Loan (other than a  Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same  Class, Type and currency made by the Lenders to the same Borrower ratably in accordance  with their respective Commitments of the applicable Class.  Each Swingline Loan shall be  made in accordance with Section 2.21.  The failure of any Lender to make any Loan  required to be made by it shall not relieve any other Lender of its obligations hereunder;  provided that the Commitments of the Lenders are several and no Lender shall be  responsible for any other Lender’s failure to make Loans as required.  (b) Subject to Section 2.11, (i) each Revolving Borrowing denominated  in US Dollars and each Delayed Draw Term Borrowing shall be comprised entirely of ABR  Loans or Term SOFR Loans or, if applicable pursuant to Section 2.11, Daily Simple SOFR  Loans, as the applicable Borrower may request in accordance herewith, (ii) each Revolving  Borrowing denominated in Canadian Dollars shall be comprised entirely of CDOR Loans  and (iii) each Revolving Borrowing denominated in Sterling or Euro shall be comprised  entirely of RFR Loans.  Each Swingline Loan shall be denominated in US Dollars and shall  be an ABR Loan.  Each Lender at its option may make any Loan by causing any domestic  or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise  of such option shall not affect the obligation of the applicable Borrower to repay such Loan  in accordance with the terms of this Agreement.  (c) At the commencement of each Interest Period for any Term SOFR  Borrowing or CDOR Borrowing, such Borrowing shall be in an aggregate amount that is  not less than the Borrowing Minimum and in an integral multiple of the Borrowing  Multiple in excess thereof; provided that (i) a Term SOFR Borrowing or CDOR Borrowing    55      [[5866265v.11]]    that results from a continuation of an outstanding Term SOFR Borrowing or CDOR  Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing and  (ii) a Term SOFR Borrowing or a CDOR Borrowing of any Class may be in an aggregate  amount that is equal to the entire unused balance of the Commitments of such Class.  At  the time that each RFR Borrowing or ABR Borrowing (other than a Swingline Loan) is  made, such Borrowing shall be in an aggregate amount that is not less than the Borrowing  Minimum and in an integral multiple of the Borrowing Multiple in excess thereof; provided  that an RFR Revolving Borrowing or an ABR Revolving Borrowing of any Class may be  in an aggregate amount that is equal to the entire unused balance of the Commitments of  such Class or, in the case of an ABR Revolving Borrowing, that is required to finance the  reimbursement of an LC Disbursement as contemplated by Section 2.20(f).  Each  Swingline Loan shall be in an amount that is an integral multiple of US$100,000 and not  less than US$100,000; provided that a Swingline Loan may be in an aggregate amount that  is equal to the entire unused balance of the Aggregate Revolving Commitment or that is  required to finance the reimbursement of an LC Disbursement as contemplated by Section  2.20(f). Borrowings of more than one Type and Class may be outstanding at the same time;  provided that there shall not at any time be more than a total of 12 (or such greater number  as may be agreed to by the Administrative Agent) Term SOFR Borrowings, CDOR  Borrowings and RFR Borrowings outstanding.  (d) Notwithstanding any other provision of this Agreement, the  Borrowers shall not be entitled to request, or to elect to convert to or continue, any Term  SOFR Borrowing or CDOR Borrowing if the Interest Period requested with respect thereto  would end after the applicable Maturity Date.  SECTION 2.03. Requests for Borrowings.  To request a Revolving  Borrowing or Delayed Draw Term Borrowing, the applicable Borrower (or the Company  on its behalf) shall submit a Borrowing Request, signed by its Senior Officer, to the  Administrative Agent (a) in the case of a Term SOFR Borrowing, not later than 12:00 p.m.,  Local Time, three Business Days before the date of the proposed Borrowing (or, in the case  of any such Term SOFR Borrowing to occur on the Restatement Effective Date, such  shorter period of time as may be agreed to in writing by the Administrative Agent), (b) in  the case of a CDOR Borrowing, not later than 12:00 p.m., Local Time, three Business Days  before the date of the proposed Borrowing (or, in the case of any such Borrowing to occur  on the Restatement Effective Date, such shorter period of time as may be agreed to in  writing by the Administrative Agent), (c) in the case of an RFR Borrowing, not later than  12:00 p.m., Local Time, four Business Days before the date of the proposed Borrowing  (or, in the case of any such Borrowing to occur on the Restatement Effective Date, such  shorter period of time as may be agreed to in writing by the Administrative Agent), (d) in  the case of an ABR Borrowing, not later than 12:00 p.m., Local Time, on the day of the  proposed Borrowing or (e) if applicable pursuant to Section 2.11, in the case of a Daily  Simple SOFR Borrowing, not later than 12:00 p.m., Local Time, five Business Days before  the date of the proposed Borrowing.  Each such Borrowing Request shall be irrevocable  (except that the Borrowing Request for Loans to be borrowed on the Restatement Effective  Date may be conditioned on the occurrence of the Restatement Effective Date) and shall  specify the following information in compliance with Section 2.02:  





 






  56      [[5866265v.11]]    (i) the name of the applicable Borrower;  (ii) whether the requested Borrowing is to be a Delayed Draw Term  Borrowing or a Revolving Borrowing;  (iii) the currency and principal amount of such Borrowing;  (iv) the date of such Borrowing, which shall be a Business Day;  (v) the Type of such Borrowing;  (vi) in the case of a Term SOFR Borrowing or a CDOR Borrowing, the  initial Interest Period to be applicable thereto, which shall be a period contemplated  by the definition of the term “Interest Period”; and  (vii) the location and number of the account of the applicable Borrower  to which funds are to be disbursed (or such other account as may be designated by  (or by the Company on behalf of) the applicable Borrower) or, in the case of any  ABR Revolving Borrowing requested to finance the reimbursement of an LC  Disbursement as provided in Section 2.20(f), the identity of the Issuing Bank that  made such LC Disbursement.  If no currency is specified with respect to any requested Borrowing, then the applicable  Borrower shall be deemed to have selected US Dollars.  If no election as to the Type of  Borrowing is specified, then the requested Borrowing shall be (A) in the case of a  Borrowing denominated in US Dollars, an ABR Borrowing, (B) in the case of Borrowing  denominated in Sterling or Euro, an RFR Borrowing and (C) in the case of a Borrowing  denominated in Canadian Dollars, a CDOR Borrowing.  If no Interest Period is specified  with respect to any requested Term SOFR Borrowing or CDOR Borrowing, then the  applicable Borrower shall be deemed to have selected an Interest Period of one month’s  duration.  Promptly following receipt of a Borrowing Request in accordance with this  Section, the Administrative Agent shall advise each Lender of the applicable Class of the  details thereof and of the amount of such Lender’s Loan to be made as part of the requested  Borrowing.  SECTION 2.04. Funding of Borrowings.  (a) Each Lender shall make  each Loan to be made by it hereunder on the proposed date thereof by wire transfer of  immediately available funds in the applicable currency by (i) in the case of Revolving  Loans, 12:00 p.m., Local Time (or, in the case of ABR Revolving Loans, such later time  as shall be two hours after the delivery by or on behalf of the applicable Borrower of a  Borrowing Request therefor in accordance with Section 2.03), and (ii) in the case of  Delayed Draw Term Loans, 10:00 a.m., Local Time (or, in the case of ABR Delayed Draw  Term Loans, such later time as shall be two hours after the delivery by the Company of a  Borrowing Request therefor in accordance with Section 2.03), in each case, to the account  of the Administrative Agent most recently designated by it for such purpose by notice to  the Lenders; provided that Swingline Loans shall be made as provided in Section 2.21.  The  Administrative Agent will make such Loans available to the applicable Borrower by  promptly remitting the amounts so received, in like funds, to the account designated in the    57      [[5866265v.11]]    applicable Borrowing Request; provided that ABR Revolving Loans made to finance the  reimbursement of an LC Disbursement as provided in Section 2.20(f) shall be remitted by  the Administrative Agent to the applicable Issuing Bank specified in the applicable  Borrowing Request.  (b) Unless the Administrative Agent shall have received notice from a  Lender prior to the proposed date of any Borrowing that such Lender will not make  available to the Administrative Agent such Lender’s share of such Borrowing, the  Administrative Agent may assume that such Lender has made such share available on such  date in accordance with paragraph (a) of this Section and may, in reliance on such  assumption, make available to the applicable Borrower a corresponding amount.  In such  event, if a Lender has not in fact made its share of the applicable Borrowing available to  the Administrative Agent, then the applicable Lender and such Borrower severally agree,  without duplication, to pay to the Administrative Agent forthwith on demand such  corresponding amount with interest thereon, for each day from and including the date such  amount is made available to such Borrower to but excluding the date of payment to the  Administrative Agent, at (i) in the case of a payment to be made by such Lender, (A) if  denominated in US Dollars, the greater of the Federal Funds Effective Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation and (B) if denominated in an Alternative Currency, the greater of  the applicable Alternative Currency Overnight Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation, or (ii) in the case of a payment to be made by such Borrower, (A) if  denominated in US Dollars, the interest rate applicable to ABR Loans of the applicable  Class and (B) if denominated in an Alternative Currency, the interest rate applicable to the  subject Loan pursuant hereto.  If such Borrower and such Lender shall pay such interest to  the Administrative Agent for the same or an overlapping period, the Administrative Agent  shall promptly remit to such Borrower the amount of such interest paid by such Borrower  for such period.  If such Lender pays such amount to the Administrative Agent, then such  amount shall constitute such Lender’s Loan included in such Borrowing.  Any such  payment by such Borrower shall be without prejudice to any claim such Borrower may  have against a Lender that shall have failed to make such payment to the Administrative  Agent.  SECTION 2.05. Interest Elections.  (a) Each Revolving Borrowing and  Delayed Draw Term Borrowing initially shall be of the Type and, in the case of a Term  SOFR Borrowing or a CDOR Borrowing, shall have an initial Interest Period as specified  in the applicable Borrowing Request or as otherwise provided in Section 2.03.  Thereafter,  the applicable Borrower may elect to convert such Borrowing (if such Borrowing is  denominated in US Dollars) to a Borrowing of a different Type or to continue such  Borrowing and, in the case of a Term SOFR Borrowing or a CDOR Borrowing, may elect  Interest Periods therefor, all as provided in this Section.  A Borrower may elect different  options with respect to different portions of the affected Borrowing, in which case each  such portion shall be allocated ratably among the Lenders holding the Loans comprising  such Borrowing, and the Loans comprising each such portion shall be considered a separate  Borrowing.  Notwithstanding any other provision of this Section, no Borrower shall be  permitted to change the currency of any Borrowing or elect an Interest Period for a Term    58      [[5866265v.11]]    SOFR Borrowing or a CDOR Borrowing that does not comply with Section 2.02(d).  This  Section shall not apply to Swingline Loans or RFR Loans, which may not be converted or  continued.  (b) To make an election pursuant to this Section, the applicable  Borrower (or the Company on its behalf) shall submit an Interest Election Request, signed  by its Senior Officer, to the Administrative Agent by the time that a Borrowing Request  would be required under Section 2.03 if such Borrower were requesting a Revolving  Borrowing of the Type and in the currency resulting from such election to be made on the  effective date of such election.  Each such Interest Election Request shall be irrevocable  and shall specify the following information in compliance with Section 2.02:  (i) the name of the applicable Borrower;  (ii)  the Borrowing to which such Interest Election Request applies and,  if different options are being elected with respect to different portions thereof, the  portions thereof to be allocated to each resulting Borrowing (in which case the  information to be specified pursuant to clauses (iv) and (v) below shall be specified  for each resulting Borrowing);  (iii) the effective date of the election made pursuant to such Interest  Election Request, which shall be a Business Day;  (iv) the Type of the resulting Borrowing; and  (v) if the resulting Borrowing is to be a Term SOFR Borrowing or a  CDOR Borrowing, the Interest Period to be applicable thereto after giving effect to  such election, which shall be a period contemplated by the definition of the term  “Interest Period”.  If any such Interest Election Request requests a Term SOFR Borrowing or a CDOR  Borrowing but does not specify an Interest Period, then the applicable Borrower shall be  deemed to have selected an Interest Period of one month’s duration.  (c) Promptly following receipt of an Interest Election Request in  accordance with this Section, the Administrative Agent shall advise each Lender of the  applicable Class of the details thereof and of such Lender’s portion of each resulting  Borrowing.  (d) If the applicable Borrower fails to deliver a timely Interest Election  Request with respect to a Term SOFR Borrowing or a CDOR Borrowing prior to the end  of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided  herein, at the end of such Interest Period (i) in the case of a Term SOFR Borrowing, such  Borrowing shall be converted to an ABR Revolving Borrowing and (ii) in the case of a  CDOR Borrowing, such Borrowing shall be continued as a Borrowing of the applicable  Type for an Interest Period of one month.      59      [[5866265v.11]]    (e) Notwithstanding any contrary provision hereof, if an Event of  Default under Section 7.01(i) has occurred and is continuing with respect to any Borrower,  or if any other Event of Default has occurred and is continuing and the Administrative  Agent, at the request of a Majority in Interest of Lenders of any Class, has notified the  Company of the election to give effect to this sentence on account of such other Event of  Default, then, in each such case, so long as such Event of Default is continuing, (i) no  outstanding Borrowing of such Class denominated in US Dollars may be converted to or  continued as a Term SOFR Borrowing, (ii) unless repaid, each Term SOFR Borrowing of  such Class shall be converted to an ABR Borrowing at the end of the Interest Period  applicable thereto and (iii) unless repaid, each CDOR Borrowing of such Class shall be  continued as a CDOR Borrowing with an Interest Period of one month’s duration.  SECTION 2.06. Termination and Reduction of Commitments.  (a) Unless  previously terminated, (i) the Delayed Draw Term Commitment of each Delayed Draw  Term Lender shall automatically terminate at 11:59 p.m., New York City time, on the  Delayed Draw Term Commitment Termination Date and (ii) the Revolving Commitments  shall automatically terminate on the Revolving Maturity Date.  The Delayed Draw Term  Commitment of each Delayed Draw Term Lender shall automatically reduce upon the  making by such Lender of any Delayed Draw Term Loan by an amount equal to the  principal amount of such Loan.  (b) The Company may at any time terminate, or from time to time  permanently reduce, the Commitments of any Class; provided that (i) each reduction of the  Commitments of a Class shall be in an amount that is an integral multiple of US$1,000,000  and not less than US$5,000,000 (or, if less, the remaining Commitments of such Class) and  (ii) the Company shall not terminate or reduce the Revolving Commitments if, after giving  effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in  accordance with Section 2.08, (A) the Aggregate Revolving Exposure would exceed the  Aggregate Revolving Commitment or (B) the Revolving Exposure of any Revolving  Lender would exceed its Revolving Commitment.  (c) The Company shall notify the Administrative Agent of any election  to terminate or reduce the Commitments under paragraph (b) of this Section at least three  Business Days prior to the effective date of such termination or reduction, specifying the  effective date thereof.  Promptly following receipt of any such notice, the Administrative  Agent shall advise the Lenders of the applicable Class of the contents thereof.  Each notice  delivered by the Company pursuant to this Section shall be irrevocable; provided that a  notice of termination or reduction of the Commitments of any Class under paragraph (b)  of this Section may state that such notice is conditioned upon the occurrence of one or more  events specified therein, in which case such notice may be revoked by the Company (by  notice to the Administrative Agent on or prior to the specified effective date) if such  condition is not satisfied.  Any termination or reduction of the Commitments of any Class  shall be permanent.  Each reduction of the Commitments of any Class shall be made ratably  among the Lenders in accordance with their respective Commitments of such Class.  SECTION 2.07. Repayment of Loans; Evidence of Debt.  (a) Each  Borrower hereby unconditionally promises to pay (i) on the Revolving Maturity Date to  





 






  60      [[5866265v.11]]    the Administrative Agent for the account of each Revolving Lender the then unpaid  principal amount of each Revolving Loan made by such Revolving Lender to such  Borrower, (ii) on the Delayed Draw Term Maturity Date to the Administrative Agent for  the account of each Delayed Draw Term Lender the then unpaid principal amount of each  Delayed Draw Term Loan made by such Delayed Draw Term Lender to such Borrower  and (iii) on the Revolving Maturity Date to the Swingline Lender the then unpaid principal  amount of each Swingline Loan made to such Borrower.  (b) The records maintained by the Administrative Agent and the  Lenders shall (in the case of the Lenders, to the extent they are not inconsistent with the  records maintained by the Administrative Agent pursuant to Section 10.04(b)(iv)) be, in  the absence of manifest error, prima facie evidence of the existence and amounts of the  obligations of the Borrowers in respect of the Loans, LC Disbursements, interest and fees  due or accrued hereunder; provided that the failure of the Administrative Agent or any  Lender to maintain such records or any error therein shall not in any manner affect the  obligation of the Borrowers to pay any amounts due hereunder in accordance with the terms  of this Agreement.  (c) Any Lender may request that Loans of any Class made by it be  evidenced by a promissory note.  In such event, each applicable Borrower shall prepare,  execute and deliver to such Lender a promissory note payable to such Lender and its  registered assigns and in a form approved by the Administrative Agent.  Thereafter, the  Loans evidenced by such promissory note and interest thereon shall at all times (including  after assignment pursuant to Section 10.04) be represented by one or more promissory  notes in such form payable to the payee named therein and its registered permitted assigns.  SECTION 2.08. Prepayment of Loans.  (a) The Borrowers shall have the  right at any time and from time to time to prepay any Borrowing in whole or in part, without  premium or penalty, subject to the requirements of this Section.  (b) If, on any date, the Aggregate Revolving Exposure shall exceed the  Aggregate Revolving Commitment, then (i) on the last day of any Interest Period for any  Term SOFR Revolving Borrowing or CDOR Revolving Borrowing and (ii) if any ABR  Revolving Borrowing, RFR Revolving Borrowing or Swingline Loan is outstanding, not  later than three Business Days following such date, the applicable Borrowers shall prepay  Revolving Loans or Swingline Loans in an aggregate amount equal to the lesser of (A) the  amount necessary to eliminate such excess (after giving effect to any other prepayment of  Revolving Loans and Swingline Loans on such day) and (B) the amount of the applicable  Revolving Borrowings or Swingline Loan referred to in clause (i) or (ii).  If, on any date,  the Aggregate Revolving Exposure shall exceed 105% of the Aggregate Revolving  Commitment, then the applicable Borrowers shall, not later than three Business Days  following such date, prepay one or more Revolving Borrowings or Swingline Loans (and,  if no Revolving Borrowings or Swingline Loans are outstanding, deposit cash collateral in  an account with the Administrative Agent pursuant to Section 2.20(n)) in an aggregate  amount equal to the lesser of (1) the amount necessary to eliminate such excess (after  giving effect to any other prepayment of Revolving Loans and Swingline Loans on such  day) and (2) the Aggregate Revolving Exposure.    61      [[5866265v.11]]    (c) The applicable Borrowers shall prepay Revolving Loans  denominated in an Alternative Currency under the circumstances set forth in, and in  accordance with, the second sentence of the definition of the term “Alternative Currency”.  (d) The applicable Borrower (or the Company on its behalf) shall notify  the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the  Swingline Lender) by telephone (promptly confirmed in writing) or in writing of any  optional prepayment hereunder (i) in the case of prepayment of a Term SOFR Borrowing,  not later than 12:00 p.m., Local Time, three Business Days before the date of prepayment,  (ii) in the case of a prepayment of a CDOR Borrowing, not later than 12:00 p.m., Local  Time, three Business Days before the date of such prepayment, (iii) in the case of  prepayment of an ABR Borrowing (other than a Swingline Loan), not later than 12:00 p.m.,  Local Time, on the date of prepayment, (iv) in the case of a prepayment of an RFR  Borrowing, not later than 12:00 p.m., New York City time, four Business Days before the  date of such prepayment, (v) if applicable pursuant to Section 2.11, in the case of a Daily  Simple SOFR Borrowing, not later than 12:00 p.m., Local Time, five Business Days before  the date of such prepayment and (vi) in the case of a Swingline Loan, not later than  12:00 p.m., Local Time, on the date of prepayment.  Each such notice shall be irrevocable  and shall specify the prepayment date, the Borrowing or Borrowings to be prepaid and the  principal amount of each such Borrowing or portion thereof to be prepaid; provided that  (A) if a notice of optional prepayment of Revolving Borrowings or Swingline Loans is  given in connection with a conditional notice of termination or reduction of the Revolving  Commitments as contemplated by Section 2.06, then such notice of prepayment may be  revoked (by notice to the Administrative Agent on or prior to the specified date of  prepayment) if such notice of termination or reduction is revoked in accordance with  Section 2.06 and (B) a notice of optional prepayment of Delayed Draw Term Borrowings  may state that such notice is conditioned upon the occurrence of one or more events  specified therein, in which case such notice may be revoked by the Company (by notice to  the Administrative Agent on or prior to the specified date of prepayment) if such condition  is not satisfied.  Promptly following receipt of any such notice (other than a notice relating  solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the  applicable Class of the contents thereof.  Each partial prepayment of any Borrowing shall  be in an amount that would be permitted in the case of an advance of a Borrowing of the  same Type and currency as provided in Section 2.02 (or, if less, the outstanding principal  amount of the Loans and except as necessary to apply fully the required amount of any  mandatory prepayment).  Each prepayment of a Borrowing shall be applied ratably to the  Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued  interest to the extent required by Section 2.10.  SECTION 2.09. Fees.  (a) The Company agrees to pay to the  Administrative Agent, in US Dollars, for the account of each Revolving Lender a  commitment fee (the “Revolving Commitment Fee”), which shall accrue at the Applicable  Rate on the daily unused amount of the Revolving Commitment of such Lender during the  period from and including the Restatement Effective Date to but excluding the date on  which such Revolving Commitment terminates.  Revolving Commitment Fees accrued  through and including the last day of March, June, September and December of each year  shall be payable in arrears on the first Business Day after such last day, commencing on    62      [[5866265v.11]]    the first such date to occur after the Restatement Effective Date, and accrued Revolving  Commitment Fees shall also be payable in arrears on the date on which the Revolving  Commitments terminate.  All Revolving Commitment Fees shall be computed on the basis  of a year of 360 days and shall be payable for the actual number of days elapsed (including  the first day but excluding the last day).  For purposes of computing Revolving  Commitment Fees, (i) a Revolving Commitment of a Revolving Lender (other than PNC)  shall be deemed to be used to the extent of the outstanding Revolving Loans and LC  Exposure of such Revolving Lender (and the Swingline Exposure of such Revolving  Lender shall be disregarded for such purpose) and (ii) the Revolving Commitment of PNC  shall be deemed to be used to the extent of the outstanding Revolving Loans and LC  Exposure of PNC and the outstanding Swingline Loans (except any portion of Swingline  Loans that are subject to participations purchased by the Revolving Lenders pursuant to  Section 2.22(c)).  (b) The Company agrees to pay to the Administrative Agent, in  US Dollars, for the account of each Delayed Draw Term Lender a ticking fee (the “Delayed  Draw Term Ticking Fee”), which shall accrue at the Applicable Rate on the daily amount  of the outstanding unused Delayed Draw Term Commitment of such Lender during the  period from and including the Restatement Effective Date to but excluding the date on  which such Delayed Draw Term Commitment terminates.  Delayed Draw Term Ticking  Fees accrued through and including the last day of March, June, September and December  of each year shall be payable in arrears on the first Business Day after such last day,  commencing on the first such date to occur after the Restatement Effective Date, and  accrued Delayed Draw Term Ticking Fees shall also be payable in arrears on the date on  which the Delayed Draw Term Commitments terminate.  All Delayed Draw Term Ticking  Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual  number of days elapsed (including the first day but excluding the last day).  (c) The Company agrees to pay (i) to the Administrative Agent, in  US Dollars, for the account of each Revolving Lender a participation fee with respect to  its participations in Letters of Credit, which shall accrue at the Applicable Rate used to  determine the interest rate applicable to Term SOFR Loans on the average daily amount of  such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to  unreimbursed LC Disbursements) during the period from and including the Restatement  Effective Date to but excluding the later of the date on which such Revolving Lender’s  Revolving Commitment terminates and the date on which such Revolving Lender ceases  to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, in US Dollars, which  shall accrue at 0.125% per annum on the average daily amount of the LC Exposure  attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof  attributable to unreimbursed LC Disbursements) during the period from and including the  Restatement Effective Date to but excluding the later of the date of termination of the  Revolving Commitments and the date on which there ceases to be any such LC Exposure,  as well as such Issuing Bank’s standard fees with respect to the issuance, amendment or  extension of any Letter of Credit or processing of drawings thereunder.  Participation fees  and fronting fees accrued through and including the last day of March, June, September  and December of each year shall be payable in arrears on the first Business Day after such  last day following such day, commencing on the first such date to occur after the    63      [[5866265v.11]]    Restatement Effective Date; provided that all such fees shall be payable on the date on  which the Revolving Commitments terminate and any such fees accruing after the date on  which the Revolving Commitments terminate shall be payable on demand.  Any other fees  payable to an Issuing Bank pursuant to this paragraph shall be payable within 15 days after  demand.  All participation fees and fronting fees shall be computed on the basis of a year  of 360 days and shall be payable for the actual number of days elapsed (including the first  day but excluding the last day).  (d) The Company agrees to pay to the Administrative Agent, for its own  account, fees payable in the amounts and at the times separately agreed upon between the  Company and the Administrative Agent.  (e) All fees payable hereunder shall be paid on the dates due, in  immediately available funds, to the Administrative Agent (or to an Issuing Bank, in the  case of fees payable to it) for distribution, in the case of the Revolving Commitment Fee,  the Delayed Draw Term Ticking Fee and the Letter of Credit participation fees, to the  Lenders entitled thereto.  Fees paid shall not be refundable under any circumstances.  SECTION 2.10. Interest.  (a) The Loans comprising each ABR  Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate  plus the Applicable Rate.  (b) The Loans comprising (i) each RFR Borrowing shall bear interest at  the applicable Daily Simple RFR plus the applicable RFR Adjustment plus the Applicable  Rate and (ii) if applicable pursuant to Section 2.11, each Daily Simple SOFR Borrowing  shall bear interest at the Adjusted Daily Simple SOFR plus the Applicable Rate.   (c) The Loans comprising each Term SOFR Borrowing shall bear  interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such  Borrowing plus the Applicable Rate.  (d) The Loans comprising each CDOR Borrowing shall bear interest at  the CDO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.  (e) Notwithstanding the foregoing, if any principal of or interest on any  Loan or any fee or other amount payable by any Borrower hereunder is not paid when due,  whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear  interest, after as well as before judgment, at a rate per annum equal to (i) in the case of  overdue principal of or interest on any Loan or any LC Disbursement, 2.00% per annum  plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of  this Section or Section 2.20(h), as applicable, (ii) in the case of overdue fees with respect  to any Commitment, 2.00% per annum plus the rate applicable to ABR Loans that are of  the same Class as the Class of such Commitment, as provided in paragraph (a) of this  Section, or (iii) in the case of any other overdue amount, (A) if such amount is payable in  US Dollars, 2.00% per annum plus the rate applicable to ABR Revolving Loans, as  provided in paragraph (a) of this Section, and (B) if such amount is payable in any other  currency, 2.00% per annum plus the Alternative Currency Overnight Rate plus the  





 






  64      [[5866265v.11]]    Applicable Rate applicable to ABR Revolving Loans as provided in paragraph (a) of this  Section.  (f) Accrued interest on each Loan shall be payable in arrears on each  Interest Payment Date for such Loan and, in the case of a Revolving Loan or a Swingline  Loan, upon termination of the Revolving Commitments; provided that (i) interest accrued  pursuant to paragraph (e) of this Section shall be payable on demand, (ii) in the event of  any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving  Loan prior to the end of the Revolving Availability Period), accrued interest on the  principal amount repaid or prepaid shall be payable on the date of such repayment or  prepayment and (iii) in the event of any conversion or continuation of any Term SOFR  Loan or CDOR Loan prior to the end of the current Interest Period therefor, accrued interest  on such Loan shall be payable on the effective date of such conversion or continuation.  All  interest shall be payable in the currency in which the applicable Loan is denominated.  (g) All interest hereunder shall be computed on the basis of a year of  360 days, except that (i) interest on Borrowings denominated in Canadian Dollars and  interest computed by reference to the Alternate Base Rate at times when the Alternate Base  Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or,  in the case of the Alternate Base Rate, 366 days in a leap year) and (ii) interest on RFR  Loans denominated in any currency as to which market practice differs from the foregoing  shall be computed in accordance with market practice for such RFR Loans, and in each  case shall be payable for the actual number of days elapsed (including the first day but  excluding the last day).  The applicable Alternate Base Rate,  Adjusted Term SOFR,  Adjusted Daily Simple SOFR, Daily Simple RFR or CDO Rate shall be determined by the  Administrative Agent, and such determination shall be conclusive absent manifest error.   The Administrative Agent does not warrant or accept responsibility for and shall not have  any liability with respect to the administration, submission or any other matter related to  the rates in the definition of RFR, Daily Simple RFR, Term SOFR, Adjusted Term SOFR,  Daily Simple SOFR or Adjusted Daily Simple SOFR.  (h) For purposes of the Interest Act (Canada), (i) whenever any interest  or fee under this Agreement is calculated on the basis of a period other than a calendar  year, such rate used in such calculation, when expressed as an annual rate, is equivalent to  (A) such rate, multiplied by (B) the actual number of days in the calendar year in which  the period for which such interest or fee is calculated ends, and divided by (C) the number  of days in such period of time, (ii) the principle of deemed reinvestment of interest shall  not apply to any interest calculation under this Agreement, and (iii) the rates of interest  stipulated in this Agreement are intended to be nominal rates and not effective rates or  yields.  SECTION 2.11. Alternate Rate of Interest.  (a) Subject to Section 2.11(b),  if:   (i) the Administrative Agent determines (which determination  shall be conclusive absent manifest error) (A) prior to the commencement of any  Interest Period for a Term SOFR Borrowing or a CDOR Borrowing of any Class,    65      [[5866265v.11]]    that adequate and reasonable means do not exist for ascertaining the Adjusted Term  SOFR, the Term SOFR or the CDO Rate (including because the Relevant Screen  Rate is not available or published on a current basis) for the applicable Agreed  Currency for such Interest Period or (B) at any time, that adequate and reasonable  means do not exist for ascertaining the Daily Simple RFR, SONIA or €STR for the  applicable Agreed Currency or, if applicable pursuant to Section 2.11(b), the  Adjusted Daily Simple SOFR or the Daily Simple SOFR; or  (ii) the Administrative Agent is advised by a Majority in Interest  of the Lenders of any Class (A) prior to the commencement of any Interest Period  for a Term SOFR Borrowing or a CDOR Borrowing of such Class, that the Adjusted  Term SOFR or the CDO Rate, as the case may be,  for such Interest Period will not  adequately and fairly reflect the cost to such Lenders of making or maintaining their  Loans included in such Borrowing for such Interest Period or (B) at any time, that  the Daily Simple RFR or, if applicable pursuant to Section 2.11(b), the Adjusted  Daily Simple SOFR for the applicable Agreed Currency will not adequately and  fairly reflect the cost to such Lenders of making or maintaining their Loans included  in the applicable Borrowing;   then the Administrative Agent shall give notice thereof to the Company and the Lenders of  such Class as promptly as practicable thereafter and until the Administrative Agent notifies  the Company and the Lenders of such Class that the circumstances giving rise to such  notice no longer exist with respect to the relevant Benchmark, (A) in the case of Loans  denominated in US Dollars, any Interest Election Request that requests the conversion of  any Borrowing to, or continuation of any Borrowing as, an affected Term SOFR Borrowing  or, if applicable pursuant to Section 2.11(b), Daily Simple SOFR Borrowing and any  Borrowing Request that requests an affected Term SOFR Borrowing or, if applicable  pursuant to Section 2.11(b), Daily Simple SOFR Borrowing shall instead be deemed to be  an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing  and (B) in the case of Loans denominated in any Alternative Currency, any Interest  Election Request that requests the continuation of any Borrowing as an affected CDOR  Borrowing and any Borrowing Request that requests an affected CDOR Borrowing or RFR  Borrowing, in each case, for the relevant Benchmark shall be ineffective.  Furthermore, if  any Term SOFR Loan, CDOR Loan, RFR Loan or, if applicable pursuant to  Section 2.11(b), Daily Simple SOFR Loan is outstanding on the date of the Company’s  receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with  respect to the relevant Benchmark applicable to such Term SOFR Loan, CDOR Loan, RFR  Loan or Daily Simple SOFR Loan, then until the Administrative Agent notifies the  Company and the Lenders of the applicable Class that the circumstances giving rise to such  notice no longer exist with respect to the relevant Benchmark, (A) if such Loan is a Term  SOFR Loan, such Loan shall on the last day of the Interest Period applicable to such Loan  convert to an ABR Loan, (B) if such Loan is a CDOR Loan, such Loan shall be prepaid  (with the use of proceeds of other concurrently borrowed Revolving Loans or otherwise)  in full by the applicable Borrower on the last day of the Interest Period applicable thereto,  (C) if such Loan is an RFR Loan, such Loan shall be prepaid (with the use of proceeds of  other concurrently borrowed Revolving Loans or otherwise) in full by the applicable  Borrower on the first Business Day following the date of the Company’s receipt of such    66      [[5866265v.11]]    notice and (D) if such Loan is a Daily Simple SOFR Loan, such Loan shall on the first  Business Day following the date of the Company’s receipt of such notice convert to an  ABR Loan.  (b) Benchmark Replacement Setting.   (i) Benchmark Replacement. Notwithstanding anything to the  contrary herein or in any other Loan Document, if a Benchmark Transition Event  and its related Benchmark Replacement Date have occurred prior to any setting of  any Benchmark, then such Benchmark Replacement will replace such Benchmark  for all purposes under this Agreement and any other Loan Document in respect of  any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth  Business Day after the date notice of such Benchmark Replacement is provided to  the Lenders without requiring any amendment to, or requiring any further action by  or consent of any other party to, this Agreement or any other Loan Document so  long as the Administrative Agent has not received, by such time, written notice of  objection to such Benchmark Replacement from Lenders comprising the Required  Lenders.  (ii) Benchmark Replacement Conforming Changes.  In  connection with the use, administration, adoption or implementation of a Benchmark  Replacement, the Administrative Agent 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 requiring any further action by or consent of any other party to this  Agreement or any other Loan Document.   (iii) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Company and the Lenders of (A) any  occurrence of a Benchmark Transition Event and its related Benchmark  Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the  effectiveness of any Benchmark Replacement Conforming Changes in connection  with the use, administration, adoption or implementation of a Benchmark  Replacement, (D) the removal or reinstatement of any tenor of a Benchmark  pursuant to paragraph (iv) below and (E) the commencement of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by  the Administrative Agent or, if applicable, any Lender (or group of Lenders)  pursuant to this Section 2.11(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 to this Agreement or  any other Loan Document except, in each case, as expressly required pursuant to  this Section 2.11(b).     67      [[5866265v.11]]    (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),  (i) if the then-current Benchmark is a term rate and either (A) any tenor for such  Benchmark is not displayed on a screen or other information service that publishes  such rate from time to time as selected by the Administrative Agent in its reasonable  discretion or (B) 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 no longer be representative, then the  Administrative Agent may modify the definition of “Interest Period” (or any similar  or analogous definition) for any Benchmark settings at or after such time to remove  such unavailable or non-representative tenor and (ii) if a tenor that was removed  pursuant to clause (i) above either (A) is subsequently displayed on a screen or  information service for a Benchmark (including a Benchmark Replacement) or  (B) 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  Administrative Agent may modify the definition of “Interest Period” (or any similar  or analogous definition) for all Benchmark settings at or after such time to reinstate  such previously removed tenor.  (v) Benchmark Unavailability Period.  Upon the Company’s  receipt of notice of the commencement of a Benchmark Unavailability Period with  respect to a given Benchmark, the applicable Borrower (or the Company on its  behalf) may revoke any pending request for a borrowing of, conversion to or  continuation of Term SOFR Loans, CDOR Loans, RFR Loans denominated in the  applicable Agreed Currency or, if applicable, Daily Simple SOFR Loans, in each  case, to be made, converted or continued during any Benchmark Unavailability  Period and, failing that, (A) the applicable Borrower will be deemed to have  converted any request for any affected Term SOFR Borrowing or, if applicable,  Daily Simple SOFR Borrowing into a request for a borrowing of, or conversion to,  an ABR Borrowing and (B) any request for a borrowing of, or conversion to or  continuation of, any affected CDOR Borrowing or RFR Borrowing shall be  ineffective.  Furthermore, if any Term SOFR Loan, CDOR Loan, RFR Loan in any  Agreed Currency or, if applicable, Daily Simple SOFR Loan is outstanding on the  date of the Company’s receipt of notice of the commencement of a Benchmark  Unavailability Period with respect to a Relevant Rate applicable to such Term SOFR  Loan, CDOR Loan, RFR Loan or Daily Simple SOFR Loan, then until such time as  a Benchmark Replacement for such Agreed Currency is implemented pursuant to  this Section 2.11(b), (1) in the case of Loans denominated in US Dollars, (x) any  Term SOFR Loan shall on the last day of the Interest Period applicable thereto  convert to an ABR Loan and (y) any Daily Simple SOFR Loan shall on and from  such day convert to an ABR Loan and (2) in the case of Loans denominated in any  Alternative Currency, (x) if such Loan is a CDOR Loan, such Loan shall be prepaid  in full by the applicable Borrower on the last day of the Interest Period applicable  thereto and (y) if such Loan is an RFR Loan, such Loan shall be prepaid in full by  the applicable Borrower on the first Business Day following the date of the  Company’s receipt of such notice.  During a Benchmark Unavailability Period with  





 






  68      [[5866265v.11]]    respect to any Benchmark or at any time that a tenor for any then-current Benchmark  is not an Available Tenor, the component of the Alternate Base Rate based upon the  then-current Benchmark that is the subject of such Benchmark Unavailability Period  or such tenor for such Benchmark, as applicable, will not be used in any  determination of the Alternate Base Rate.  SECTION 2.12. Increased Costs; Illegality.  (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 such reserve requirement reflected in the Adjusted Term SOFR  Rate, the Daily Simple RFR or, if applicable pursuant to Section 2.11, the Adjusted  Daily Simple SOFR) or any Issuing Bank;   (ii) impose on any Lender or any Issuing Bank or any applicable  interbank market any other condition, cost or expense (other than Taxes) affecting  this Agreement or the Loans made by such Lender or any Letter of Credit or  participation therein; or  (iii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes, (B) Taxes described in clauses (b) through (d) of the definition of the term  “Excluded Taxes” and (C) Connection Income Taxes) with respect to its loans,  letters of credit, commitments or other obligations, or its deposits, reserves, other  liabilities or capital attributable thereto;  and the result of any of the foregoing shall be to increase the cost to such Lender or other  Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining  its obligation to make any Loan), to increase the cost to such Lender, Issuing Bank or other  Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining  its obligation to participate in or issue any Letter of Credit), or to reduce the amount of any  sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder  (whether of principal, interest or any other amount) then, from time to time following  request of such Lender, Issuing Bank or other Recipient (accompanied by a certificate in  accordance with paragraph (e) of this Section), the Company will pay to such Lender,  Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as  will compensate such Lender, Issuing Bank or other Recipient for such additional costs or  expenses incurred or reduction suffered.  (b) If any Lender or any Issuing Bank determines that any Change in  Law affecting such Lender or Issuing Bank or any lending office of such Lender or such  Issuing Bank or such Lender’s or such Issuing Bank’s holding company, if any, regarding  capital or liquidity requirements has had or would have the effect of reducing the rate of  return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s  or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the  Commitments of such Lender or the Loans made by, or participations in Letters of Credit    69      [[5866265v.11]]    or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing  Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or such  Issuing Bank’s holding company could have achieved but for such Change in Law (taking  into consideration such Lender’s or such Issuing Bank’s policies and the policies of such  Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and  liquidity), then, from time to time following the request of such Lender or Issuing Bank  (accompanied by a certificate in accordance with paragraph (e) of this Section), the  Company will pay to such Lender or Issuing Bank such additional amount or amounts as  will compensate such Lender or Issuing Bank or such Lender’s or such Issuing Bank’s  holding company for any such reduction suffered.  (c) If the cost to any Lender of making, converting to, continuing or  maintaining any Revolving Loan or Swingline Loan to (or of maintaining its obligation to  make any such Loan) or the cost to any Lender or any Issuing Bank of participating in,  issuing or maintaining any Letter of Credit or Swingline Loan issued for the account of or  made to any Foreign Borrowing Subsidiary (or of maintaining its obligation to participate  in or issue any such Letter of Credit or Swingline Loan) is increased (or the amount of any  sum received or receivable by any Lender or any Issuing Bank (or its applicable lending  office) is reduced) by reason of the fact that such Foreign Borrowing Subsidiary is  incorporated in, has its principal place of business in, or borrows from a jurisdiction outside  the United States of America, then, from time to time following request of such Lender or  Issuing Bank (accompanied by a certificate in accordance with paragraph (e) of this  Section), the Company will pay to such Lender or Issuing Bank, as the case may be, such  additional amount or amounts as will compensate such Revolving Lender or Issuing Bank  or other Recipient for such additional costs incurred or reduction suffered.  (d) Without duplication of any reserve requirement reflected in the  Adjusted Term SOFR, the Daily Simple RFR or, if applicable pursuant to Section 2.11, the  Adjusted Daily Simple SOFR, the Company will pay to each Lender (i) as long as such  Lender shall be required by a central banking or financial regulatory authority with  regulatory authority over such Lender to maintain reserves with respect to liabilities or  assets consisting of or including funds or deposits obtained in any applicable interbank  market, additional interest on the unpaid principal amount of each Term SOFR Loan,  CDOR Loan, RFR Loan or, if applicable, Daily Simple SOFR Loan equal to the actual  costs of such reserves allocable to such Loan by such Lender (as determined by such  Lender in good faith, which determination shall be conclusive absent manifest error), and  (ii) as long as such Lender shall be required to comply with any reserve ratio requirement  or analogous requirement of any other central banking or financial regulatory authority  imposed in respect of the maintenance of the Commitments or the funding of the Term  SOFR Loans, CDOR Loans, RFR Loans or, if applicable, Daily Simple SOFR Loans, such  additional costs (expressed as a percentage per annum and rounded upwards, if necessary,  to the nearest five decimal places) equal to the actual costs allocated to such Commitment  or Loan by such Lender (as determined by such Lender in good faith, which determination  shall be conclusive absent manifest error), which in each case shall be due and payable on  each date on which interest is payable on such Loan; provided that the Company shall have  received the certificate referred to in paragraph (e) of this Section with respect to such  additional interest or costs from such Lender at least 10 days prior to such date (and, in the    70      [[5866265v.11]]    event such certificate shall have been delivered after such time, then such additional  interest or costs shall be due and payable as set forth in paragraph (e) of this Section).  (e) A certificate of a Lender, Issuing Bank, or other Recipient setting  forth the basis for and, in reasonable detail (to the extent practicable), computation of the  amount or amounts necessary to compensate such Lender, Issuing Bank, or other Recipient  or its holding company, as the case may be, as specified in paragraph (a), (b), (c) or (d) of  this Section shall be delivered to the Company and shall be conclusive absent manifest  error.  The Company shall pay such Lender, Issuing Bank or other Recipient, as the case  may be, the amount shown as due on any such certificate within 30 days after receipt  thereof.  Notwithstanding the foregoing provisions of this Section, no Lender or Issuing  Bank shall demand compensation for any increased or other cost or reduction pursuant to  the foregoing provisions of this Section unless such Lender or Issuing Bank certifies that  it is the general policy or practice of such Lender or Issuing Bank to demand (to the extent  it is entitled to do so) such compensation from similarly situated borrowers in similar  circumstances under comparable provisions of other credit agreements.  (f) Failure or delay on the part of any Lender, Issuing Bank or other  Recipient to demand compensation pursuant to this Section shall not constitute a waiver of  such Lender’s, Issuing Bank’s or other Recipient’s right to demand such compensation;  provided that the Company shall not be required to compensate a Lender, Issuing Bank or  other Recipient pursuant to this Section for any increased costs or expenses incurred or  reductions suffered more than 180 days prior to the date that such Lender, Issuing Bank or  other Recipient, as the case may be, notifies the Company of the Change in Law or other  circumstance giving rise to such increased costs or expenses or reductions and of such  Lender’s, Issuing Bank’s or other Recipient’s intention to claim compensation therefor;  provided further that if the Change in Law or other circumstance giving rise to such  increased costs, expenses or reductions is retroactive, then the 180-day period referred to  above shall be extended to include the period of retroactive effect thereof.  (g) If any Lender determines that any Change in Law has made it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for such  Lender or the applicable lending office of such Lender to make, maintain or fund any Term  SOFR Loan or CDOR Loan or to charge interest with respect to any Loan, or to determine  or charge interest rates, based upon the Adjusted Term SOFR or CDO Rate, or any  Governmental Authority has imposed material restrictions on the authority of such Lender  to purchase or sell, or to take deposits of, the applicable currency in the applicable interbank  market, then, upon notice thereof by such Lender to the Company and the Administrative  Agent, any obligation of such Lender to make, maintain or fund any Term SOFR Loan or  CDOR Loan, or to continue any Term SOFR Loan or CDOR Loan, or to charge interest  with respect to any Loan, or to determine or charge interest rates, based upon the Adjusted  Term SOFR or CDO Rate, as the case may be, shall be suspended, until such Lender  notifies the Administrative Agent and the Company that the circumstances giving rise to  such determination no longer exist.  Upon receipt of such notice, the applicable Borrowers  shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay  Term SOFR Loans or CDOR Loans of such Lender or convert all Term SOFR Loans of  such Lender to ABR Loans, either on the last day of the Interest Period therefor, if such    71      [[5866265v.11]]    Lender may lawfully continue to maintain such Term SOFR Loans or CDOR Loans to such  day, or immediately, if such Lender may not lawfully continue to maintain such Term  SOFR Loans or CDOR Loans.  Upon any such prepayment or conversion, the Company  shall also pay accrued interest on the amount so prepaid or converted.   (h) If any Lender determines that any Change in Law has made it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for such  Lender or the applicable lending office of such Lender to perform any of its obligations  hereunder or under any Loan Document with respect to any Foreign Borrowing Subsidiary,  to make, maintain or fund any Loan to any Foreign Borrowing Subsidiary or to charge  interest with respect to any Loan to any Foreign Borrowing Subsidiary, or to determine or  charge interest rates with respect to any credit extension to any Foreign Borrowing  Subsidiary, then, upon notice thereof by such Lender to the Company and the  Administrative Agent, any obligation of such Lender to make, maintain or fund any such  Loan (if applicable, in an affected currency), or to continue any such Loan (if applicable,  in an affected currency) or convert any ABR Loan into a Term SOFR Loan, or to charge  interest with respect to any Loan, or to determine or charge interest rates with respect to  any credit extensions, as the case may be, in each case with respect to such Foreign  Borrowing Subsidiary, shall be suspended (and to the extent required by applicable Law,  cancelled).  Upon receipt of such notice, the applicable Foreign Borrowing Subsidiary  shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay  any such Loans of such Lender to such Foreign Borrowing Subsidiary or, if applicable,  convert all such Term SOFR Loans of such Lender to such Foreign Borrowing Subsidiary  to ABR Loans, either on the last day of the Interest Period therefor, if such Lender may  lawfully continue to maintain such Loans to such day, or immediately, if such Lender may  not lawfully continue to maintain such Loans.  Upon any such prepayment or conversion,  the applicable Borrower shall also pay accrued interest on the amount so prepaid or  converted.  The applicable Borrower shall also take all reasonable actions requested by the  Administrative Agent or such Lender to mitigate or avoid such illegality.   SECTION 2.13. Break Funding Payments.  In the event of (a) the  payment of any principal of any Term SOFR Loan or CDOR Loan other than on the last  day of an Interest Period applicable thereto (including as a result of an Event of Default),  (b) the conversion of any Term SOFR Loan or CDOR Loan other than on the last day of  the Interest Period applicable thereto, (c) the failure to borrow, convert or continue any  Term SOFR Loan or CDOR Loan on the date specified in any notice delivered pursuant  hereto (whether or not such notice may be revoked in accordance with the terms hereof),  (d) the failure to prepay any Term SOFR Loan or CDOR Loan on a date specified therefor  in any notice of prepayment given by or on behalf of any Borrower (whether or not such  notice may be revoked in accordance with the terms hereof) or (e) the assignment of any  Term SOFR Loan or CDOR Loan other than on the last day of the Interest Period applicable  thereto as a result of a request by the Company pursuant to Section 2.16, then, in any such  event, the Company shall compensate each Lender for the loss, cost and expense (but not  lost profits) attributable to such event (including, to the extent that any of the foregoing  Loans are denominated in any Alternative Currency, the loss, cost and expense (but not  lost profits) of such Lender attributable to the premature unwinding of any hedging  agreement entered into by such Lender in respect to the foreign currency exposure  





 






  72      [[5866265v.11]]    attributable to such Loan), within 30 days following request of such Lender (accompanied  by a certificate described below in this Section).  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 Adjusted Term SOFR or CDO Rate that would have  been applicable to such Loan (but not including the Applicable Rate applicable thereto),  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 such Lender would bid  if it were to bid, at the commencement of such period, for deposits in the applicable  currency of a comparable amount and period from other banks in the applicable interbank  market.  A certificate of any Lender delivered to the Company and setting forth the basis  for and, in reasonable detail (to the extent practicable), computation of any amount or  amounts that such Lender is entitled to receive pursuant to this Section shall be conclusive  absent manifest error.  The Company shall pay such Lender the amount shown as due on  any such certificate within 30 days after receipt thereof.  SECTION 2.14. Taxes.  (a) Payments Free of Taxes.  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 2.14)  the applicable Lender (or, in the case of any amount received by the Administrative Agent  for its own account, the Administrative Agent) receives an amount equal to the sum it  would have received had no such deduction or withholding been made.  (b) Payment of Other Taxes by the Loan Parties.  Subject to and in  accordance with Section 2.22(d), the Loan Parties shall timely pay to the relevant  Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse the Administrative Agent for the payment of, any  Other Taxes.   (c) Evidence of Payment.  As soon as practicable after any payment of  Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.14, such  Loan Party shall deliver to the Administrative 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 Administrative Agent.    73      [[5866265v.11]]    (d) Indemnification by the Loan Parties.  Subject to and in accordance  with Section 2.22(d), the Loan Parties shall indemnify each Recipient, within 10 days after  demand therefor, for the full amount of any Indemnified Taxes (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto,  whether or not such Indemnified Taxes were correctly or legally imposed or asserted by  the relevant Governmental Authority.  A certificate as to the amount of such payment or  liability delivered to the Company by a Lender (with a copy to the Administrative Agent)  or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be  conclusive absent manifest error.  (e) [Reserved].  (f) 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 Company and the Administrative Agent, at the time or times  reasonably requested by the Company or the Administrative Agent, such properly  completed and executed documentation reasonably requested by the Company or the  Administrative 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  Company or the Administrative Agent, shall deliver such other documentation prescribed  by applicable law or reasonably requested by the Company or the Administrative Agent as  will enable the Company and the Administrative 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 2.14(f)(ii)(A), (ii)(B) and (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, in respect of any  Loan to the Company or any Domestic Borrowing Subsidiary:  (A) any Lender that is a US Person shall deliver to the Company  and the Administrative 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 Company or the Administrative Agent),  executed originals of IRS Form W-9 certifying that such Lender is exempt  from US federal backup withholding Tax;  (B) any Foreign Lender shall, to the extent it is legally eligible  to do so, deliver to the Company and the Administrative 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    74      [[5866265v.11]]    Company or the Administrative 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 two  executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E,  as applicable, establishing an exemption from, or reduction of,  withholding Taxes pursuant to such tax treaty;  (2) two executed originals 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) two executed originals of a certificate substantially in the  form of Exhibit G-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 applicable Loan Party within the  meaning of Section 881(c)(3)(B) of the Code or a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Code  and that interest payments on the Loans are not effectively  connected with the Lender’s conduct of a US trade or business (a  “US Tax Compliance Certificate”) and (y) two executed originals of  IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or  (4) to the extent a Foreign Lender is not the beneficial  owner, two executed originals of IRS Form W-8IMY, accompanied  by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN- E, as applicable, a US Tax Compliance Certificate substantially in  the form of Exhibit G-2 or Exhibit G-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 US  Tax Compliance Certificate substantially in the form of Exhibit G- 4 on behalf of each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally eligible  to do so, deliver to the Company and the Administrative 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  Company or the Administrative Agent), executed originals of any other  form prescribed by applicable law as a basis for claiming exemption from  or a reduction in US federal withholding Taxes, duly completed, together  with such supplementary documentation as may be prescribed by applicable  law to permit the Company or the Administrative Agent to determine the  withholding or deduction required to be made; and    75      [[5866265v.11]]    (D) If a payment made to a Lender under any Loan Document  would be subject to withholding Taxes 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 Company and the  Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Company or the Administrative  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 Company or the Administrative  Agent as may be necessary for the Company and the Administrative Agent  to comply with their obligations under FATCA and to determine whether  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 clause (D), “FATCA” shall include any amendments  made to FATCA after the date of this Agreement.  (iii) 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 Company and the Administrative  Agent in writing of its legal ineligibility to do so.  (iv) Each Lender hereby authorizes the Administrative Agent to deliver  to the Loan Parties and to any successor Administrative Agent any documentation  provided by such Lender to the Administrative Agent pursuant to this  Section 2.14(f).    (g) 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 2.14 (including by the payment of additional  amounts pursuant to this Section 2.14), 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  2.14 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 2.14(g) (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 2.14(g), in no event will the  indemnified party be required to pay any amount to an indemnifying party pursuant to this  Section 2.14(g) 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 2.14(g) shall not be construed to require  





 






  76      [[5866265v.11]]    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.  (h) VAT.  (i) All amounts set out or expressed in any Loan Document  to be payable by any party to any Loan Document (for the purposes of this paragraph (h),  a “party”) to any Recipient that (in whole or in part) constitute the consideration for any  supply for VAT purposes shall be deemed to be exclusive of any VAT that is chargeable  on such supply.  Subject to clause (ii) below, if VAT is or becomes chargeable on any  supply made by any Recipient to any party under any Loan Document and such Recipient  is required to account to the relevant tax authority for such VAT, such party shall pay to  such Recipient (in addition to and at the same time as paying any other consideration for  such supply), an amount equal to the amount of such VAT (and such Recipient shall  promptly provide an appropriate VAT invoice to such party).  (ii) If VAT is or becomes chargeable on any supply made by any  Recipient (the “VAT Supplier”) to any other Recipient (the “VAT Recipient”)  under any Loan Document, and any party other than the VAT Recipient (the “VAT  Subject Party”) is required by the terms of any Loan Document to pay an amount  equal to the consideration for such supply to the VAT Supplier (rather than being  required to reimburse or indemnify the VAT Recipient in respect of such  consideration):  (A) to the extent the VAT Supplier is the Person required to  account to the relevant tax authority for the VAT, the VAT Subject Party  shall also pay to the VAT Supplier (in addition to and at the same time as  paying such amount) an amount equal to the amount of such VAT, and the  VAT Recipient shall, where this clause (A) applies, promptly pay to the  VAT Subject Party an amount equal to any credit or repayment the VAT  Recipient receives from the relevant tax authority which the VAT Recipient  reasonably determines relates to the VAT chargeable on such supply; and  (B)  to the extent the VAT Recipient is the Person required to  account to the relevant tax authority for the VAT, the VAT Subject Party  shall promptly, following demand from the VAT Recipient, pay to the VAT  Recipient an amount equal to the VAT chargeable on such supply but only  to the extent that the VAT Recipient reasonably determines that it is not  entitled to credit or repayment from the relevant tax authority in respect of  such VAT.  (iii) Where a Loan Document requires any party to reimburse or  indemnify any Recipient for any cost or expense, such party shall reimburse or  indemnify (as the case may be) such Recipient for the full amount of such cost or  expense, including such part thereof as represents VAT, except to the extent that  such Recipient reasonably determines that it is entitled to credit or repayment in  respect of such VAT from the relevant tax authority.    77      [[5866265v.11]]    (iv) Any reference in this paragraph (h) to any party shall, at any time  when such party is treated as a member of a group or unity (or fiscal unity) for VAT  purposes, include (where appropriate and unless the context otherwise requires) a  reference to the Person that is treated at that time as making the supply, or (as  appropriate) receiving the supply, under the grouping rules (provided for in Article  11 of Council Directive 2006/112/EC (or as implemented by the relevant member  state of the European Union) or any other similar provision in any jurisdiction that  is not a member state of the European Union) so that a reference to a party shall be  construed as a reference to such party or the relevant group or unity (or fiscal unity)  of which such party is a member for VAT purposes at the relevant time or the  relevant representative member (or head) of such group or unity (or fiscal unity) at  the relevant time (as the case may be).  (v) In relation to any supply made by a Recipient to any party under any  Loan Document, if reasonably requested by such Recipient, such party must  promptly provide such Recipient with details of such party’s VAT registration and  such other information as is reasonably requested in connection with such  Recipient’s VAT reporting requirements in relation to such supply.  (i) For purposes of this Section 2.14, the term “Lender” includes any  Issuing Bank and the term “applicable law” includes FATCA.  SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of  Setoffs.  (a) Each Borrower shall make each payment required to be made by it hereunder  or under any other Loan Document prior to the time required hereunder or under such other  Loan Document for such payment (or, if no such time is expressly required, prior to  1:00 p.m., Local Time), on the date when due, in immediately available funds, without any  defense, setoff, recoupment or counterclaim.  Any amounts received after such time on any  date may, in the discretion of the Administrative Agent, be deemed to have been received  on the next succeeding Business Day for purposes of calculating interest thereon.  All such  payments shall be made to the Administrative Agent to such account as may be specified  by the Administrative Agent, except payments to be made directly to any Issuing Bank or  the Swingline Lender shall be so made and except that payments pursuant to Sections 2.12,  2.13, 2.14, 10.03 and 10.18 shall be made directly to the Persons entitled thereto and  payments pursuant to other Loan Documents shall be made to the Persons specified therein.   The Administrative Agent shall distribute any such payments received by it for the account  of any other Person to the appropriate recipient promptly following receipt thereof.  If any  payment under any Loan Document shall be due on a day that is not a Business Day, the  date for payment shall be extended to the next succeeding Business Day and, in the case of  any payment accruing interest, interest thereon shall be payable for the period of such  extension.  All payments hereunder of principal or interest in respect of any Loan or LC  Disbursement shall, except as otherwise expressly provided herein, be made in the currency  of such Loan or LC Disbursement; all other payments hereunder and under each other Loan  Document shall be made in US Dollars.  Any payment required to be made by the  Administrative Agent hereunder shall be deemed to have been made by the time required  if the Administrative Agent shall, at or before such time, have taken the necessary steps to    78      [[5866265v.11]]    make such payment in accordance with the regulations or operating procedures of the  clearing or settlement system used by the Administrative Agent to make such payment.  (b) If at any time insufficient funds are received by and available to the  Administrative Agent to pay fully all amounts of principal, unreimbursed LC  Disbursements, interest 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 unreimbursed LC Disbursements then due  hereunder, ratably among the parties entitled thereto in accordance with the amounts of  principal and unreimbursed LC Disbursements then due to such parties.  (c) 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 participations in LC Disbursements or Swingline Loans resulting in such Lender  receiving payment of a greater proportion of the aggregate amount of its Loans or  participations in LC Disbursements or Swingline Loans and accrued interest thereon than  the proportion received by any other Lender, then the Lender receiving such greater  proportion shall notify the Administrative Agent of such fact and shall purchase (for cash  at face value) participations in the Loans and participations in LC Disbursements and  Swingline Loans of other Lenders to the extent necessary so that the amount of all such  payments shall be shared by the Lenders ratably in accordance with the aggregate amounts  of principal of and accrued interest on their Loans and participations in LC Disbursements  and Swingline Loans; provided that (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 paragraph shall not be construed to apply to any payment  made by the Borrowers pursuant to and in accordance with the express terms of this  Agreement or any other Loan Document (for the avoidance of doubt, as in effect from time  to time) or any payment obtained by a Lender as consideration for the assignment of or  sale of a participation in any of its Loans or participations in LC Disbursements or  Swingline Loans to any Person that is an Eligible Assignee (as such term is defined herein  from time to time).  Each Borrower consents to the foregoing and agrees, to the extent it  may effectively do so under applicable law, that any Lender acquiring a participation  pursuant to the foregoing arrangements may exercise against the Borrowers rights of setoff  and counterclaim with respect to such participation as fully as if such Lender were a direct  creditor of the Borrowers in the amount of such participation.    (d) Unless the Administrative Agent shall have received notice from the  applicable Borrower prior to the date on which any payment is due to the Administrative  Agent for the account of the Lenders or the Issuing Banks hereunder that such Borrower  will not make such payment, the Administrative Agent may assume that such Borrower  has made such payment on such date in accordance herewith and may, in reliance upon  such assumption, distribute to the applicable Lenders or Issuing Banks, as the case may be,  the amount due.  In such event, if such Borrower has not in fact made such payment, then  each of the applicable Lenders or Issuing Banks, as the case may be, severally agrees to  repay to the Administrative Agent forthwith on demand the amount so distributed to such    79      [[5866265v.11]]    Lender or such Issuing Bank with interest thereon, for each day from and including the  date such amount is distributed to it to but excluding the date of payment to the  Administrative Agent at (i) if such amount is denominated in US Dollars, the greater of the  Federal Funds Effective Rate and a rate determined by the Administrative Agent in  accordance with banking industry rules on interbank compensation and (ii) if such amount  is denominated in any other currency, the greater of the applicable Alternative Currency  Overnight Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation.  (e) If any Lender shall fail to make any payment required to be made  by it hereunder to or for the account of the Administrative Agent, any Issuing Bank or the  Swingline Lender, then the Administrative Agent may, in its discretion (notwithstanding  any contrary provision hereof), (i) apply any amounts thereafter received by the  Administrative Agent for the account of such Lender to satisfy such Lender’s obligations  in respect of such payment until all such unsatisfied obligations have been discharged or  (ii) hold any such amounts in a segregated account as cash collateral for, and application  to, any future funding obligations of such Lender pursuant to Section 2.04(b), 2.14(e),  2.15(d), 2.20(d), 2.20(f), 2.21(c) or 10.03(c), in each case in such order as shall be  determined by the Administrative Agent in its discretion.  (f) In the event that any financial statements delivered under  Section 5.01(a) or 5.01(b), or any Compliance Certificate delivered under Section 5.01(c),  shall prove to have been inaccurate, and such inaccuracy shall have resulted in the payment  of any interest or fees at rates lower than those that were in fact applicable for any period  (based on the actual Leverage Ratio), then, if such inaccuracy is discovered prior to the  termination of the Commitments and the repayment in full of the principal of all Loans and  the reduction of the LC Exposure to zero, the applicable Borrowers shall pay to the  Administrative Agent, for distribution to the Lenders (or former Lenders) as their interests  may appear, the accrued interest or fees that should have been paid but were not paid as a  result of such misstatement.   SECTION 2.16. Mitigation Obligations; Replacement of Lenders.  (a) If  any Lender or Issuing Bank requests compensation under Section 2.12, or if any Loan  Party is required to pay any Indemnified Taxes or additional amounts to any Lender or  Issuing Bank or to any Governmental Authority for the account of any Lender or Issuing  Bank pursuant to Section 2.14 (other than additional amounts arising from VAT that are  recoverable from any Governmental Authority), then such Lender or Issuing Bank shall (at  the request of the Company) use commercially reasonable efforts to designate a different  lending office for funding, booking or issuing its Loans or Letters of Credit hereunder or  its participation in any Letter of Credit or Swingline Loan affected by such event, or to  assign and delegate its rights and obligations hereunder to another of its offices, branches  or Affiliates if, in the judgment of such Lender or Issuing Bank, such designation or  assignment and delegation (i) would eliminate or reduce amounts payable pursuant to  Section 2.12 or 2.14, as the case may be, in the future (or, in the case of a notice under  Section 2.12(g) or 2.12(h), would eliminate the illegality referred to in such Section) and  (ii) would not subject such Lender or Issuing Bank to any unreimbursed cost or expense  and would not otherwise be disadvantageous to such Lender.  The Company hereby agrees  





 






  80      [[5866265v.11]]    to pay all reasonable costs and expenses incurred by any Lender or Issuing Bank in  connection with any such designation or assignment and delegation within 30 days  following the written request of such Lender or Issuing Bank (accompanied by reasonable  back-up documentation relating thereto).   (b) If (i) any Lender requests compensation under Section 2.12, is  unable to make Loans pursuant to Section 2.12(g) or is unable to make Loans pursuant to  Section 2.12(h), (ii) any Loan Party 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 2.14 (other than additional amounts arising from VAT that are  recoverable from any Governmental Authority), (iii) any Lender has become a Defaulting  Lender, (iv) any Revolving Lender has become an Objecting Lender or (v) any Lender has  failed to consent to a proposed amendment, waiver, discharge or termination that under  Section 10.02 requires the consent of all the Lenders (or all the affected Lenders or all the  Lenders of the affected Class) and with respect to which the Required Lenders (or, in  circumstances where Section 10.02 does not require the consent of the Required Lenders,  a Majority in Interest of the Lenders of the affected Class) shall have granted their consent,  then the Company may, at its sole expense and effort, upon notice to such Lender and the  Administrative Agent, require such Lender to assign and delegate, without recourse (in  accordance with and subject to the restrictions contained in Section 10.04), all its interests,  rights (other than its existing rights to payments pursuant to Section 2.12 or 2.14) and  obligations under this Agreement and the other Loan Documents (or, in the case of any  such assignment and delegation resulting from a failure to provide a consent, all its  interests, rights and obligations under this Agreement and the other Loan Documents as a  Lender of a particular Class) to an Eligible Assignee that shall assume such obligations  (which may be another Lender, if a Lender accepts such assignment and delegation);  provided that (A) the Company shall have received the prior written consent of the  Administrative Agent and, in circumstances where its consent would be required under  Section 10.04, each Issuing Bank and the Swingline Lender, which consent shall not be  unreasonably withheld, conditioned or delayed, (B) such Lender shall have received  payment of an amount equal to the outstanding principal of its Loans and, if applicable,  funded participations in LC Disbursements and Swingline Loans, accrued interest thereon,  accrued fees and all other amounts payable to it hereunder (if applicable, in each case only  to the extent such amounts relate to its interest as a Lender of a particular Class) from the  assignee (in the case of such outstanding principal, funded participations and accrued  interest and fees) or the Company (in the case of all other amounts), (C) in the case of any  such assignment and delegation resulting from a claim for compensation under  Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment  will result (or is reasonably expected to result) in a reduction in such compensation or  payments, (D) such assignment does not conflict with applicable law, (E) in the case of any  such assignment and delegation resulting from the status of such Revolving Lender as an  Objecting Lender, the assignee shall not be an Objecting Lender in respect of the applicable  proposed designation of a Borrowing Subsidiary and (F) in the case of any such assignment  and delegation resulting from the failure to provide a consent, the assignee shall have given  such consent and, as a result of such assignment, delegation and consent and any  contemporaneous assignments and delegations and consents, the applicable amendment,  waiver, discharge or termination can be effected.  A Lender shall not be required to make    81      [[5866265v.11]]    any such assignment and delegation if, prior thereto, as a result of a waiver or consent by  such Lender or otherwise, the circumstances entitling the Company to require such  assignment and delegation have ceased to apply.  Each party hereto agrees that an  assignment and delegation required pursuant to this paragraph may be effected pursuant to  an Assignment and Assumption executed by the Company, the Administrative Agent and  the assignee and that the Lender required to make such assignment and delegation need not  be a party thereto.  SECTION 2.17. Defaulting Lenders.  Notwithstanding any provision of  this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the  following provisions shall apply for so long as such Lender is a Defaulting Lender:  (a) the Revolving Commitment Fees and the Delayed Draw Term  Ticking Fees shall cease to accrue on the unused amount of the Revolving Commitment or  on the Delayed Draw Term Commitment, as the case may be, of such Defaulting Lender;   (b) the Revolving Commitment, the Revolving Exposure, the Delayed  Draw Term Commitment and the Delayed Draw Term Loans of such Defaulting Lender  shall not be included in determining whether the Required Lenders or any other requisite  Lenders have taken or may take any action hereunder or under any other Loan Document  (including any consent to any amendment, waiver or other modification pursuant to  Section 10.02); provided that any amendment, waiver or other modification requiring the  consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided  in Section 10.02, require the consent of such Defaulting Lender in accordance with the  terms hereof;  (c) if any Swingline Exposure or LC Exposure exists at the time any  Revolving Lender becomes a Defaulting Lender, then:  (i) the Swingline Exposure (other than any portion thereof with respect  to which such Defaulting Lender shall have funded its participation as contemplated  by Section 2.21(c)) and LC Exposure of such Defaulting Lender (other than any  portion thereof attributable to unreimbursed LC Disbursements with respect to  which such Defaulting Lender shall have funded its participation as contemplated  by Sections 2.20(d) and 2.20(f)) shall be reallocated among the Non-Defaulting  Revolving Lenders in accordance with their respective Applicable Percentages but  only to the extent that following such reallocation the sum of all Non-Defaulting  Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline  Exposure (excluding the portion thereof referred to in the parenthetical clause  above) and LC Exposure (excluding the portion thereof referred to in the  parenthetical clause above) so reallocated does not exceed the sum of all Non- Defaulting Revolving Lenders’ Revolving Commitments;  (ii) if the reallocation described in clause (i) above cannot, or can only  partially, be effected, the applicable Borrower shall within one Business Day  following written notice by the Administrative Agent (A) first, prepay the portion  of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans    82      [[5866265v.11]]    made to such Borrower (other than any portion thereof referred to in the  parenthetical in such clause (i)) that has not been reallocated and (B) second, cash  collateralize for the benefit of the Issuing Banks the portion of such Defaulting  Lender’s LC Exposure attributable to Letters of Credit issued for the account of  such Borrower (other than any portion thereof referred to in the parenthetical in  such clause (i)) that has not been reallocated in accordance with the procedures set  forth in Section 2.20(n) for so long as such LC Exposure is outstanding;  (iii) if the Borrowers cash collateralize any portion of such Defaulting  Lender’s LC Exposure pursuant to clause (ii) above, the Borrowers shall not be  required to pay participation fees to such Defaulting Lender pursuant to  Section 2.09(c) with respect to such portion of such Defaulting Lender’s LC  Exposure for so long as such Defaulting Lender’s LC Exposure is cash  collateralized;  (iv) if any portion of the LC Exposure of such Defaulting Lender is  reallocated pursuant to clause (i) above, then the fees payable to the Lenders  pursuant to Sections 2.09(a) and 2.09(c) shall be adjusted to give effect to such  reallocation; and  (v) if all or any portion of such Defaulting Lender’s LC Exposure that  is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash  collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any  rights or remedies of any Issuing Bank or any other Lender hereunder, all  participation fees payable under Section 2.09(c) with respect to such portion of such  Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and  allocated among them ratably based on the amount of such portion of the LC  Exposure of such Defaulting Lender attributable to Letters of Credit issued by each  Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or  cash collateralized; and  (d) so long as such Lender is a Defaulting Lender, the Swingline Lender  shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to  issue, amend or extend any Letter of Credit, unless, in each case, it is satisfied that the  related exposure and such Defaulting Lender’s then outstanding Swingline Exposure or LC  Exposure, as applicable (other than any portion thereof referred to in the parentheticals in  clause (c)(i) above) will be fully covered by the Revolving Commitments of the Non- Defaulting Revolving Lenders and/or cash collateral provided by the Borrowers in  accordance with clause (c) above, and participating interests in any such funded Swingline  Loan or in any such issued, amended or extended Letter of Credit will be allocated among  the Non-Defaulting Revolving Lenders in a manner consistent with clause (c)(i) above (and  such Defaulting Lender shall not participate therein).  (e) In the event that (x) a Bankruptcy Event with respect to a Lender  Parent of a Revolving Lender shall have occurred following the Restatement Effective Date  and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or  any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in    83      [[5866265v.11]]    fulfilling its obligations under one or more other agreements in which such Revolving  Lender commits to extend credit, the Swingline Lender shall not be required to fund any  Swingline Loan, and no Issuing Bank shall be required to issue, amend or extend any Letter  of Credit, unless, in each case, the Swingline Lender or such Issuing Bank shall have  entered into arrangements with the Company and any other applicable Borrower or such  Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case  may be, to defease any risk to it in respect of such Revolving Lender hereunder.  (f) In the event that the Administrative Agent, the Company, the  Swingline Lender and each Issuing Bank each agree that a Defaulting Lender that is a  Revolving Lender has adequately remedied all matters that caused such Revolving Lender  to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving  Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving  Commitment and on such date such Revolving Lender shall purchase at par such of the  Revolving Loans of the other Revolving Lenders and such funded participations in  Swingline Loans and LC Disbursements as the Administrative Agent shall determine to be  necessary in order for such Revolving Lender to hold such Revolving Loans and such  funded participations in accordance with its Applicable Percentage, and such Revolving  Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive  any Revolving Commitment Fees accrued during the period when it was a Defaulting  Lender, and all amendments, waivers or modifications effected without its consent in  accordance with the provisions of Section 10.02 and this Section during such period shall  be binding on it).  (g) In the event that the Administrative Agent and the Company each  agree that a Defaulting Lender that is a Delayed Draw Term Lender has adequately  remedied all matters that caused such Term Lender to be a Defaulting Lender, then on such  date such Delayed Draw Term Lender shall take such actions as the Administrative Agent  may determine to be appropriate in connection with such Delayed Draw Term Lender  ceasing to be a Defaulting Lender, and such Delayed Draw Term Lender shall thereupon  cease to be a Defaulting Lender (but (x) shall not be entitled to receive any Delayed Draw  Term Ticking Fees accrued during the period when it was a Defaulting Lender, and (y) all  amendments, waivers or modifications effected without its consent in accordance with the  provisions of Section 10.02 and this Section during such period shall be binding on it).  (h) The rights and remedies against, and with respect to, a Defaulting  Lender under this Section are in addition to, and cumulative and not in limitation of, all  other rights and remedies that the Administrative Agent, any Issuing Bank, the Swingline  Lender, any other Lender or any Loan Party may at any time have against, or with respect  to, such Defaulting Lender.  SECTION 2.18. Incremental Facilities.  (a) The Company may on one or  more occasions, by written notice to the Administrative Agent, request (i) the  establishment of Incremental Revolving Commitments and/or (ii) the establishment of  Incremental Term Commitments; provided that (A) the aggregate amount of all the  Incremental Commitments established hereunder shall not exceed US$750,000,000 and  (B) no Incremental Term Loans may be incurred prior to the date that is the earlier of (x) the  





 






  84      [[5866265v.11]]    Delayed Draw Term Commitment Termination Date and (y) the date on which the Delayed  Draw Term Commitments shall have been reduced to zero.  Each such notice shall specify  (1) the date on which the Company proposes that the Incremental Revolving Commitments  or the Incremental Term Commitments, as applicable, shall be effective, which shall be a  date not less than 10 Business Days (or such shorter period as may be agreed to by the  Administrative Agent) after the date on which such notice is delivered to the  Administrative Agent and (2) the amount of the Incremental Revolving Commitments or  Incremental Term Commitments, as applicable, being requested (it being agreed that  (x) any Lender approached to provide any Incremental Revolving Commitment or  Incremental Term Commitment may elect or decline, in its sole discretion, to provide such  Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person  that the Company proposes to become an Incremental Lender, if such Person is not then a  Lender, must be an Eligible Assignee and must be reasonably acceptable to the  Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each  Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld,  delayed or conditioned and solely to the extent the consent of the Administrative Agent,  the Issuing Banks or the Swingline Lender, as the case may be, would be required for an  assignment to such Person pursuant to Section 10.04).  (b) The terms and conditions of any Incremental Revolving  Commitment and the Loans and other extensions of credit to be made thereunder shall be  identical to those of the Revolving Commitments and the Revolving Loans and other  extensions of credit made thereunder, and shall be treated as a single Class with such  Revolving Commitments and Revolving Loans.  The terms and conditions of any  Incremental Term Commitments and the Incremental Term Loans to be made thereunder  shall be such as the Company and the applicable Incremental Term Lenders shall agree  upon; provided that (i) the Incremental Term Loans shall be extensions of credit to the  Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term  Loans shall rank pari passu in right of payment with the other Loans and the other Loan  Document Obligations and shall not be secured by any Liens on any assets of the Company  or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured  pursuant to security documentation reasonably satisfactory to the Administrative Agent,  (iii) the Incremental Facility Agreement with respect thereto shall not contain any  affirmative, negative or financial covenant applicable to the Company or the Subsidiaries  or any event of default that benefits the Incremental Term Lenders (but not the other  Lenders), in each case, except if this Agreement is amended to include such affirmative,  negative or financial covenant or event of default for the benefit of all Lenders and (iv) if  any Delayed Draw Term Loans shall be outstanding immediately after giving effect to the  incurrence of such Incremental Term Loans and the application of the proceeds thereof,  (A) the Incremental Term Maturity Date with respect to such Incremental Term Loans shall  be no earlier than the Delayed Draw Term Maturity Date, (B) the weighted average life to  maturity of such Incremental Term Loans shall be no shorter than the remaining weighted  average life to maturity of the Delayed Draw Term Loans and (C) such Incremental Term  Loans shall not be subject to any mandatory prepayment provisions.  Any Incremental  Term Commitments established pursuant to a single Incremental Facility Agreement that  have identical terms and conditions, and any Incremental Term Loans made thereunder,  shall be designated as a separate “Class” of Commitments or Loans for all purposes of this    85      [[5866265v.11]]    Agreement; provided that any Incremental Term Loans that have identical terms as any  other Class of “term” Loans then outstanding (in each case, disregarding any differences  in original issue discount or upfront fees if not affecting the fungibility thereof for  US federal income tax purposes) may, at the election of the Company, be treated as a single  Class with such outstanding “term” Loans.  (c) The Incremental Commitments shall be effected pursuant to one or  more Incremental Facility Agreements executed and delivered by the Company, each  Incremental Lender providing such Incremental Commitments and the Administrative  Agent (with the Administrative Agent hereby agreeing that its consent thereto shall not be  unreasonably withheld, conditioned or delayed); provided that no Incremental  Commitments shall become effective unless (i) no Default or Event of Default shall have  occurred and be continuing on the date of effectiveness thereof, both immediately prior to  and immediately after giving effect to such Incremental Commitments and the making of  any Loans thereunder to be made on such date, (ii) on the date of effectiveness thereof, the  representations and warranties of the Loan Parties set forth in the Loan Documents shall  be true and correct in (A) in the case of the representations and warranties qualified as to  materiality, in all respects and (B) otherwise, in all material respects, in each case on and  as of such date of effectiveness, except in the case of any such representation or warranty  that expressly relates to a prior date, in which case such representation or warranty shall be  so true and correct on and as of such prior date, and (iii) the Company shall have delivered  to the Administrative Agent such customary legal opinions, board resolutions, secretary’s  certificates, officer’s certificates and other documents as shall have been reasonably be  requested by the Administrative Agent in connection with any such transaction.  Each  Incremental Facility Agreement may, without the consent of any Lender, effect such  amendments to this Agreement and the other Loan Documents as may be necessary or  appropriate, in the opinion of the Administrative Agent and the Company, to give effect to  the provisions of this Section, including any amendments necessary or appropriate to treat  the Incremental Term Commitments and the Incremental Term Loans as a new Class of  Commitments and Loans hereunder (including for purposes of voting).  (d) Upon the effectiveness of an Incremental Commitment of any  Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a  Lender in respect of Commitments and Loans of the applicable Class) hereunder, and  henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders  in respect of Commitments and Loans of the applicable Class) hereunder and under the  other Loan Documents and shall be bound by all agreements, acknowledgements and other  obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable  Class) hereunder and under the other Loan Documents and (ii) in the case of any  Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall  constitute (or, in the event such Incremental Lender already has a Revolving Commitment,  shall increase) the Revolving Commitment of such Incremental Lender and (B) the  Aggregate Revolving Commitment shall be increased by the amount of such Incremental  Revolving Commitment, in each case, subject to further increase or reduction from time to  time as provided herein.  For the avoidance of doubt, upon the effectiveness of any  Incremental Revolving Commitment, the Applicable Percentages of all the Revolving  Lenders shall automatically be adjusted to give effect thereto.    86      [[5866265v.11]]    (e) On the date of effectiveness of any Incremental Revolving  Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the  “Existing Revolving Borrowings”) immediately prior to the effectiveness of such  Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental  Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness  of such Incremental Revolving Commitments shall pay to the Administrative Agent in  same day funds and in the applicable currency an amount equal to the difference between  (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect  to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the  amount of each Resulting Revolving Borrowing (as hereinafter defined) and (B) the  product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the  effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount  of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving  Lender that shall not have had a Revolving Commitment prior to the effectiveness of such  Incremental Revolving Commitments shall pay to Administrative Agent in same day funds  and in the applicable currency an amount equal to the product of (1) such Lender’s  Applicable Percentage (calculated after giving effect to the effectiveness of such  Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting  Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in  clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender  the portion of such funds that is equal to the difference between (A) the product of (1) such  Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of  such Incremental Revolving Commitments) multiplied by (2) the amount of each Existing  Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage  (calculated after giving effect to the effectiveness of such Incremental Revolving  Commitments) multiplied by (2) the amount of each corresponding Resulting Revolving  Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the  applicable Borrowers shall be deemed to have made new Revolving Borrowings (the  “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and  currencies of the Existing Revolving Borrowings and of the Types and for the Interest  Periods specified in a Borrowing Request delivered to the Administrative Agent in  accordance with Section 2.03 (and the Company shall, on behalf of all applicable  Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed  to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after  giving effect to the effectiveness of such Incremental Revolving Commitments) and  (vii) the applicable Borrowers shall pay each Revolving Lender any and all accrued but  unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings.   The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i)  above shall be subject to compensation by the Borrowers pursuant to the provisions of  Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments  occurs other than on the last day of the Interest Period relating thereto.  (f) Subject to the terms and conditions set forth herein and in the  applicable Incremental Facility Agreement, each Lender holding an Incremental Term  Commitment of any Class shall make a Loan to the Company in an amount equal to such  Incremental Term Commitment on the date specified in such Incremental Facility  Agreement.    87      [[5866265v.11]]    (g) The Administrative Agent shall notify the Lenders promptly upon  receipt by the Administrative Agent of any notice from the Company referred to in  paragraph (a) of this Section and of the effectiveness of any Incremental Commitments, in  each case advising the Lenders of the details thereof and, in the case of effectiveness of  any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving  Lenders after giving effect thereto.  SECTION 2.19. [Reserved].   SECTION 2.20. Letters of Credit.  (a) General.  Subject to the terms and  conditions set forth herein, any Borrower may request any Issuing Bank to issue Letters of  Credit (or to amend or extend outstanding Letters of Credit) denominated in any LC  Currency, for its own account or, so long as (if such Subsidiary is not a Borrowing  Subsidiary) the Company is a joint and several co-applicant with respect thereto, for the  account of any Subsidiary, in a form reasonably acceptable to the Administrative Agent  and the applicable Issuing Bank, at any time and from time to time during the Revolving  Availability Period (but in any event not after the latest expiration date specified in  Section 2.20(c)).  In the event of any inconsistency between the terms and conditions of  this Agreement and the terms and conditions of any form of letter of credit application or  other agreement submitted by the Company or any Subsidiary to, or entered into by the  Company or any Subsidiary with, any Issuing Bank relating to any Letter of Credit, the  terms and conditions of this Agreement shall control. To the extent any letter of credit  application or other document submitted or entered into by the Company or any Subsidiary  to or with any Issuing Bank relating to any Letter of Credit shall contain any representations  or warranties, covenants, defaults or events of default that are not set forth in this  Agreement (or that are inconsistent with this Agreement, including because they do not  contain the standards, qualifications, thresholds and exceptions for materiality consistent  with those set forth in this Agreement), such representations or warranties, covenants,  defaults and events of default shall, unless otherwise expressly agreed to by the Company,  be deemed to be not a part of such letter of credit application or other document (or, in the  case of such inconsistency, be deemed to be reformulated (including to include the  applicable standards, qualifications, thresholds and exceptions set forth herein) to conform  to the terms of this Agreement) without further action by any Person, and each Issuing  Bank expressly agrees that no default, breach or penalty under such letter of credit  application or other document shall arise as a result thereof.  The Company unconditionally  and irrevocably agrees that, in connection with any Letter of Credit issued for the account  of any Subsidiary that is not a Borrowing Subsidiary as provided in the first sentence of  this paragraph, the Company will be fully responsible for the reimbursement of LC  Disbursements, the payment of interest thereon and the payment of fees due under  Section 2.09(c) to the same extent as if it were the sole account party in respect of such  Letter of Credit (the Company hereby irrevocably waiving, to the extent permitted by  applicable law, any defenses that might otherwise be available to it as a guarantor of the  obligations of any Subsidiary that shall be an account party in respect of any such Letter  of Credit).  Each Existing Letter of Credit shall be deemed, for all purposes of this  Agreement (including paragraphs (d) and (f) of this Section), to be a Letter of Credit issued  hereunder on the Restatement Effective Date for the account of the applicable Borrower;  provided that the Company shall be primarily liable for any obligation of any Subsidiary  





 






  88      [[5866265v.11]]    (other than a Borrowing Subsidiary) under any such Letter of Credit.  This Section shall  not be construed to impose an obligation upon any Issuing Bank to issue any Letter of  Credit if (i) any order, judgment or decree of any Governmental Authority shall by its terms  purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any  law applicable to such Issuing Bank or any request or directive (whether or not having the  force of law) from any Governmental Authority with jurisdiction over such Issuing Bank  shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of  credit generally or such Letter of Credit in particular or, in the case of any Borrowing  Subsidiary, shall impose upon such Issuing Bank with respect to such Letter of Credit any  restriction, reserve or capital or liquidity requirement, or shall impose upon such Issuing  Bank any unreimbursed loss, cost or expense, in each case for which such Issuing Bank is  not otherwise compensated hereunder, (ii) the issuance of such Letter of Credit would  violate one or more policies of general applicability of such Issuing Bank or (iii) such Letter  of Credit is not in the currency approved for issuance by such Issuing Bank.  The issuance  of Letters of Credit by any Issuing Bank shall be subject to customary procedures of such  Issuing Bank.  No Issuing Bank shall be required to issue (but if requested as set forth  above, may issue) trade Letters of Credit or Letters of Credit in the form of bank guaranties.   It is understood and agreed that the provisions of this Section (and any other provision of  this Agreement or any other Loan Document) in respect of Letters of Credit will apply to  bank guaranties, mutatis mutandis, with the intention of having the same effect for both  letters of credit and bank guaranties.  (b) Notice of Issuance, Amendment, Extension; Certain Conditions.  To  request the issuance of a Letter of Credit or the amendment or extension of an outstanding  Letter of Credit (other than an automatic annual extension of such Letter of Credit in  accordance with its terms), the applicable Borrower (or the Company on its behalf) shall  deliver to the applicable Issuing Bank and the Administrative Agent at least three Business  Days (or such shorter period as is acceptable to the applicable Issuing Bank) in advance of  the requested date of issuance, amendment or extension, a notice requesting the issuance  of a Letter of Credit, or identifying the Letter of Credit to be amended or extended, and  specifying the requested date of issuance, amendment or extension (which shall be a  Business Day), the date on which such Letter of Credit is to expire (which shall comply  with paragraph (c) of this Section), the amount of such Letter of Credit, the currency of  such Letter of Credit (which shall be an LC Currency), the name and address of the  beneficiary thereof and such other information as shall be necessary to enable the  applicable Issuing Bank to prepare, amend or extend such Letter of Credit.  If requested by  the applicable Issuing Bank, the applicable Borrower also shall submit a letter of credit or  bank guaranty application on such Issuing Bank’s standard form in connection with any  such request.  A Letter of Credit shall be issued, amended or extended only if (and upon  each issuance, amendment or extension of any Letter of Credit the applicable Borrower (or  the Company on its behalf) shall be deemed to represent and warrant that), after giving  effect to such issuance, amendment or extension, (i) the LC Exposure attributable to Letters  of Credit issued by any Issuing Bank will not, unless otherwise agreed by such Issuing  Bank, exceed the LC Commitment of such Issuing Bank, (ii) the aggregate LC Exposure  will not exceed US$500,000,000 and (iii) the Revolving Exposure of each Revolving  Lender will not exceed its Revolving Commitment.  Each Issuing Bank agrees that it shall  not permit any issuance, amendment or extension of a Letter of Credit to occur unless it    89      [[5866265v.11]]    shall have given to the Administrative Agent written notice thereof required under  paragraph (k) of this Section.  (c) Expiration Date.  Each Letter of Credit shall by its terms expire at  or prior to the close of business on the Letter of Credit Termination Date; provided, that, if  the applicable Issuing Bank shall have consented thereto in writing, a Letter of Credit may  expire on a date later than the Letter of Credit Termination Date if such Letter of Credit is,  at the time it is issued, amended or extended (or such other time as may be agreed to in  writing by the applicable Issuing Bank), cash collateralized or otherwise backstopped in an  amount and manner and pursuant to documentation reasonably satisfactory to the  applicable Issuing Bank (any such Letter of Credit being referred to as a “Backstopped  Letter of Credit”).  (d) Participations.  By the issuance of a Letter of Credit (or an  amendment to a Letter of Credit increasing the amount thereof) and without any further  action on the part of the applicable Issuing Bank or the Revolving Lenders, the Issuing  Bank that is the issuer thereof hereby grants to each Revolving Lender, and each Revolving  Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit  equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available  to be drawn under such Letter of Credit.  In consideration and in furtherance of the  foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to  the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s  Applicable Percentage of each LC Disbursement made by such Issuing Bank and not  reimbursed by the applicable Borrower on the date due as provided in paragraph (f) of this  Section, or of any reimbursement payment required to be refunded to the applicable  Borrower for any reason.  Such payment by the Revolving Lenders shall be made (i) if the  currency of the applicable LC Disbursement or reimbursement payment shall be US  Dollars, in US Dollars and (ii) subject to paragraph (l) of this Section, if the currency of  the applicable LC Disbursement or reimbursement payment shall be a currency other than  US Dollars, in US Dollars in an amount equal to the US Dollar Equivalent of such LC  Disbursement or reimbursement payment, calculated by the Administrative Agent using  the LC Exchange Rate on the applicable LC Participation Calculation Date.  Each  Revolving Lender acknowledges and agrees that (i) its obligation to acquire participations  pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and  shall not be affected by any circumstance whatsoever, including any amendment or  extension of any Letter of Credit, any fluctuation in currency values, the occurrence and  continuance of any Default, any reduction or termination of the Revolving Commitments  or any force majeure or other event that under any rule of law or uniform practices to which  any Letter of Credit is subject (including Section 3.14 of ISP 98 or any successor  publication of the International Chamber of Commerce) permits a drawing to be made  under such Letter of Credit after the expiration thereof or of the Revolving Commitments,  and (ii) each such payment shall be made without any offset, abatement, withholding or  reduction whatsoever.  Each Revolving Lender further acknowledges and agrees that, in  issuing, amending or extending any Letter of Credit, the applicable Issuing Bank shall be  entitled to rely, and shall not incur any liability for relying, upon the representation and  warranty of the Borrowers deemed made pursuant to Section 4.02, unless, at least two  Business Days prior to the time such Letter of Credit is issued, amended or extended (or,    90      [[5866265v.11]]    in the case of an automatic annual extension of such Letter of Credit in accordance with its  terms, at least two Business Days prior to the time by which the election not to extend must  be made by the applicable Issuing Bank), a Majority in Interest of the Revolving Lenders  shall have notified the applicable Issuing Bank (with a copy to the Administrative Agent)  in writing that, as a result of one or more events or circumstances described in such notice,  one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not  be satisfied if such Letter of Credit were then issued, amended or extended (it being  understood and agreed that, in the event any Issuing Bank shall have received any such  notice, no Issuing Bank shall have any obligation to issue, amend or extend any Letter of  Credit until and unless it shall be satisfied that the events and circumstances described in  such notice shall have been cured or otherwise shall have ceased to exist).  (e) Disbursements.  Each Issuing Bank shall, promptly following its  receipt thereof, examine all documents purporting to represent a demand for payment under  a Letter of Credit issued by it and shall promptly notify the Administrative Agent and the  applicable Borrower by telephone (promptly confirmed by email) of such demand for  payment and whether such Issuing Bank has made or will make an LC Disbursement  thereunder; provided that any failure to give or delay in giving such notice shall not relieve  any Borrower of its obligation to reimburse such LC Disbursement.  (f) Reimbursement.  If an Issuing Bank shall make any LC  Disbursement in respect of a Letter of Credit, the applicable Borrower shall reimburse such  LC Disbursement by paying to the Administrative Agent an amount in the currency of such  LC Disbursement equal to such LC Disbursement not later than 12:00 p.m., Local Time,  on the Business Day immediately following the day that such Borrower receives notice of  such LC Disbursement; provided that, if such LC Disbursement is denominated in US  Dollars and is not less than US$1,000,000, the applicable Borrower may, subject to the  conditions to borrowing set forth herein, request in accordance with Section 2.03 that such  payment be financed with an ABR Revolving Borrowing or a Swingline Loan in an  equivalent amount and, to the extent so financed, such Borrower’s obligation to make such  payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or  Swingline Loan.  If the applicable Borrower fails to make any such reimbursement  payment when due, (i) if such payment relates to a Letter of Credit denominated in any  currency other than US Dollars, automatically and with no further action required, the  obligation of such Borrower to reimburse the applicable LC Disbursement shall be  permanently converted into an obligation to reimburse the US Dollar Equivalent,  calculated using the LC Exchange Rate on the applicable LC Participation Calculation  Date, of such LC Disbursement and (ii) in the case of each LC Disbursement, the  Administrative Agent shall notify each Revolving Lender of the applicable LC  Disbursement, the amount of the payment then due from such Borrower in respect thereof  and such Revolving Lender’s Applicable Percentage thereof, and each Revolving Lender  shall pay in US Dollars to the Administrative Agent on the date such notice is received its  Applicable Percentage of the payment then due from such Borrower, in the same manner  as provided in Section 2.04 with respect to Revolving Loans made by such Lender (and  Section 2.04 shall apply, mutatis mutandis, to the payment obligations of the Revolving  Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay to  the applicable Issuing Bank the amounts so received by it from the Revolving Lenders.     91      [[5866265v.11]]    Promptly following receipt by the Administrative Agent of any payment from the  applicable Borrower pursuant to this paragraph, the Administrative Agent shall distribute  such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have  made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such  Revolving Lenders and such Issuing Bank as their interests may appear.  Any payment  made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for  any LC Disbursement (other than the funding of an ABR Revolving Loan or a Swingline  Loan as contemplated above) shall not constitute a Loan and shall not relieve the applicable  Borrower of its obligation to reimburse such LC Disbursement.  If the applicable  Borrower’s reimbursement of, or obligation to reimburse, any amounts in any currency  other than US Dollars would subject the Administrative Agent, the applicable Issuing Bank  or any Revolving Lender to any stamp duty, ad valorem charge or similar tax that would  not be payable if such reimbursement were made or required to be made in US Dollars,  such Borrower shall pay the amount of any such tax requested by the Administrative Agent,  such Issuing Bank or such Revolving Lender.  (g) Obligations Absolute.  Each Borrower’s obligation to reimburse LC  Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and  irrevocable and shall be performed strictly in accordance with the terms of this Agreement  under any and all circumstances whatsoever and irrespective of (i) any lack of validity or  enforceability of any Letter of Credit or this Agreement or any other Loan Document, or  any term or provision thereof or hereof, (ii) any draft or other document presented under a  Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement  therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a  Letter of Credit against presentation of a draft or other document that does not comply with  the terms of such Letter of Credit, (iv) any force majeure or other event that under any rule  of law or uniform practices to which any Letter of Credit is subject (including Section 3.14  of ISP 98 or any successor publication of the International Chamber of Commerce) permits  a drawing to be made under such Letter of Credit after the stated expiration date thereof or  of the Revolving Commitments or (v) any other event or circumstance whatsoever, whether  or not similar to any of the foregoing, that might, but for the provisions of this paragraph,  constitute a legal or equitable discharge of, or provide a right of setoff against, the  applicable Borrower’s obligations hereunder.  None of the Administrative Agent, the  Lenders, the Issuing Banks or any of their Related Parties shall have any liability or  responsibility by reason of or in connection with the issuance or transfer of any Letter of  Credit, any payment or failure to make any payment thereunder (irrespective of any of the  circumstances referred to in the preceding sentence), any error, omission, interruption, loss  or delay in transmission or delivery of any draft, notice or other communication under or  relating to any Letter of Credit (including any document required to make a drawing  thereunder), any error in interpretation of technical terms or any other act, failure to act or  other event or circumstance; provided that the foregoing shall not be construed to excuse  any Issuing Bank from liability to any Borrower to the extent of any direct damages (as  opposed to special, indirect, consequential or punitive damages, claims in respect of which  are hereby waived by each Borrower to the extent permitted by applicable law) suffered by  any Borrower that are caused by such Issuing Bank’s failure to exercise care when  determining whether drafts and other documents presented under a Letter of Credit comply  with the terms thereof.  The parties hereto expressly agree that unless a court of competent  





 






  92      [[5866265v.11]]    jurisdiction shall have determined in a final and nonappealable judgment that in making  any such determination the applicable Issuing Bank acted with gross negligence, bad faith  or willful misconduct, such Issuing Bank shall be deemed to have exercised care in such  determination.  In furtherance of the foregoing and without limiting the generality thereof,  the parties agree that, with respect to documents presented that appear on their face to be  in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its  sole discretion, either accept and make payment upon such documents without  responsibility for further investigation or refuse to accept and make payment upon such  documents if such documents are not in strict compliance with the terms of such Letter of  Credit.  (h) Interim Interest.  If an Issuing Bank shall make any LC  Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement  in full on the date such LC Disbursement is made, the unpaid amount thereof (determined  in accordance with the definition thereof) shall bear interest, for each day from and  including the date such LC Disbursement is made to but excluding the date that the  applicable Borrower reimburses such LC Disbursement, (i) in the case of any LC  Disbursement denominated in US Dollars, and at all times following the conversion to US  Dollars of any LC Disbursement made in any other LC Currency pursuant to paragraph (f)  or (l) of this Section, at the rate per annum then applicable to ABR Revolving Loans and  (ii) if such LC Disbursement is made in an LC Currency other than US Dollars, at all times  prior to its conversion to US Dollars pursuant to paragraph (f) or (l) of this Section, at a  rate equal to the rate reasonably determined by the applicable Issuing Bank to be the cost  to such Issuing Bank of funding such LC Disbursement (which determination shall be  conclusive absent manifest error, it being understood that such Issuing Bank may deem the  applicable Alternative Currency Overnight Rate to represent such cost of funding) plus the  Applicable Rate applicable to Term SOFR Revolving Loans at such time; provided that, if  the applicable Borrower fails to reimburse such LC Disbursement when due pursuant to  paragraph (f) of this Section, then Section 2.10(e) shall apply.  Interest accrued pursuant to  this paragraph shall be paid to the Administrative Agent, for the account of the applicable  Issuing Bank, except that interest accrued on and after the date of payment by any  Revolving Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank  shall be paid to the Administrative Agent for the account of such Revolving Lender to the  extent of such payment, and shall be payable on demand or, if no demand has been made,  on the date on which the applicable Borrower reimburses the applicable LC Disbursement  in full.  (i) Designation of Additional Issuing Banks.  The Company may, at  any time and from time to time, with the consent of the Administrative Agent (which  consent shall not be unreasonably withheld, delayed or conditioned), designate as  additional Issuing Banks one or more Revolving Lenders that agree to serve in such  capacity as provided below.  The acceptance by a Revolving Lender of an appointment as  an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and  substance reasonably satisfactory to the Administrative Agent, executed by the Company,  the Administrative Agent and such designated Revolving Lender and, from and after the  effective date of such agreement, (i) such Revolving Lender shall have all the rights and  obligations of an Issuing Bank under this Agreement and (ii) references herein and in the    93      [[5866265v.11]]    other Loan Documents to the term “Issuing Bank” shall be deemed to include such  Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.  (j) Termination of an Issuing Bank.  The Company may terminate the  appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written  notice thereof to such Issuing Bank, with a copy to the Administrative Agent.  Any such  termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging  receipt of such notice and (ii) the 10th Business Day following the date of the delivery  thereof; provided that no such termination shall become effective until and unless the LC  Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates)  shall have been reduced to zero.  At the time any such termination shall become effective,  the applicable Borrowers shall pay all unpaid fees accrued for the account of the terminated  Issuing Bank pursuant to Section 2.09(c).  Notwithstanding the effectiveness of any such  termination, the terminated Issuing Bank shall remain a party hereto and shall continue to  have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit  issued by it prior to such termination, but shall not issue any additional Letters of Credit.  (k) Issuing Bank Reports to the Administrative Agent.  Unless  otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its  notification obligations set forth elsewhere in this Section, (i) report in writing to the  Administrative Agent periodic activity (for such period or recurrent periods as shall be  requested by the Administrative Agent) in respect of Letters of Credit issued by such  Issuing Bank, including all issuances, extensions and amendments, all expirations and  cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time  that such Issuing Bank issues, amends or extends any Letter of Credit, the date of such  issuance, amendment or extension, and the currency and stated amount of the Letters of  Credit issued, amended or extended by it and outstanding after giving effect to such  issuance, amendment or extension (and whether the amounts thereof shall have changed),  (iii) on any Business Day on which any Borrower fails to reimburse an LC Disbursement  required to be reimbursed to such Issuing Bank on such day, the date of such failure and  the currency and amount of such LC Disbursement and (iv) on any other Business Day,  such other information as the Administrative Agent shall reasonably request as to the  Letters of Credit issued by such Issuing Bank.  (l) Conversion.  In the event that the Loans become immediately due  and payable on any date pursuant to Section 7.01, all amounts (i) that the applicable  Borrowers are at the time or become thereafter required to reimburse or otherwise pay to  the Administrative Agent in respect of LC Disbursements made under any Letter of Credit  denominated in an LC Currency other than US Dollars (other than amounts in respect of  which any Borrower has deposited cash collateral, if such cash collateral was deposited in  the applicable currency), (ii) that the Revolving Lenders are at the time or become  thereafter required to pay to the Administrative Agent (and the Administrative Agent is at  the time or becomes thereafter required to distribute to the applicable Issuing Bank)  pursuant to paragraph (f) of this Section in respect of unreimbursed LC Disbursements  made under any Letter of Credit denominated in an LC Currency other than US Dollars  and (iii) of each Revolving Lender’s participation in any Letter of Credit denominated in  an LC Currency other than US Dollars under which an LC Disbursement has been made    94      [[5866265v.11]]    shall, automatically and with no further action required, be converted into the US Dollar  Equivalent, calculated using the LC Exchange Rate on the date that the Loans become  immediately due and payable pursuant to Section 7.01 (or in the case of any LC  Disbursement made after such date, on the date such LC Disbursement is made), of such  amounts.  On and after such conversion, all amounts accruing and owed to the  Administrative Agent, any Issuing Bank or any Revolving Lender in respect of the  obligations described in this paragraph shall accrue and be payable in US Dollars at the  rates otherwise applicable hereunder.  (m) Exposure Determination.  For all purposes of this Agreement (other  than for purposes of Section 2.09), the amount of a Letter of Credit that, by its terms or the  terms of any document related thereto, provides for one or more automatic increases in the  stated amount thereof shall be deemed to be the maximum stated amount of such Letter of  Credit after giving effect to all such increases (other than any such increase consisting of  the reinstatement of an amount previously drawn thereunder and reimbursed), whether or  not such maximum stated amount is in effect at the time of determination.  (n) Cash Collateralization.  If any Event of Default shall occur and be  continuing, on the Business Day that the Company receives notice from the Administrative  Agent or a Majority in Interest of the Revolving Lenders demanding the deposit of cash  collateral pursuant to this paragraph, the Company shall deposit in an account with the  Administrative Agent, in the name of the Administrative Agent and for the benefit of the  Revolving Lenders and the Issuing Banks, an amount in US Dollars equal to the LC  Exposure attributable to Letters of Credit issued for the account of such Borrower as of  such date plus any accrued and unpaid interest thereon; provided that (i) amounts required  to be deposited in respect of any Letter of Credit or LC Disbursement shall be deposited in  the currency of such Letter of Credit or LC Disbursement, except that amounts required to  be deposited in respect of LC Disbursements in an LC Currency other than US Dollars in  respect of which the applicable Borrower’s reimbursement obligations have been  converted to obligations in US Dollars as provided in paragraph (f) or (l) of this Section  and interest accrued thereon shall be deposited in US Dollars, and (ii) the obligation to  deposit such cash collateral shall become effective immediately, and such deposit shall  become immediately due and payable, without demand or other notice of any kind, upon  the occurrence of any Event of Default with respect to the Company under Section 7.01(i).   The Borrowers shall also deposit cash collateral in accordance with this paragraph as and  to the extent required by Section 2.08(b) or 2.17(c).  Each such deposit shall be held by the  Administrative Agent as collateral for the payment and performance of the obligations of  the applicable Borrower under this Agreement.  The Administrative Agent shall have  exclusive dominion and control, including the exclusive right of withdrawal, over such  account.  Other than any interest earned on the investment of such deposits, which  investments shall be in Cash Equivalent Investments if any such investments are made (it  being understood that any such investments shall be at the option and sole discretion of the  Administrative Agent and at the applicable Borrower’s risk and expense), such deposits  shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in  such account.  Moneys in such account shall be applied by the Administrative Agent to  reimburse the Issuing Banks for LC Disbursements for which they have not been  reimbursed and, to the extent not so applied, shall be held for the satisfaction of the    95      [[5866265v.11]]    reimbursement obligations of the applicable Borrower for the LC Exposure at such time  or, if the maturity of the Loans has been accelerated (but subject to the consent of (A) a  Majority in Interest of the Revolving Lenders and (B) in the case of any such application  at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect  thereto, the remaining cash collateral shall be less than the total LC Exposure of all the  Defaulting Lenders), the consent of each Issuing Bank), be applied to satisfy other  obligations of such Borrower under this Agreement.  If the Company is required to provide  an amount of cash collateral hereunder as a result of the occurrence of an Event of Default,  such amount (to the extent not applied as aforesaid) shall be returned to the Company  within three Business Days after all Events of Default have been cured or waived.  If the  Borrowers are required to provide an amount of cash collateral hereunder pursuant to  Section 2.08(b), such amount (to the extent not applied as aforesaid) shall be returned to  the Borrowers to the extent that the applicable excess referred to in such Section shall have  been eliminated and no Default shall have occurred and be continuing. If the Borrowers  provide an amount of cash collateral hereunder pursuant to Section 2.17(c), such amount  (to the extent not applied as aforesaid) shall be returned to the Borrowers, upon request of  the Borrowers, to the extent that, after giving effect to such return, no Issuing Bank shall  have any exposure in respect of any outstanding Letter of Credit that is not fully covered  by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or the  remaining cash collateral and no Event of Default shall have occurred and be continuing.  SECTION 2.21. Swingline Loans.  (a) Subject to the terms and conditions  set forth herein, the Swingline Lender may, in its sole discretion, make Swingline Loans  denominated in US Dollars to any Borrower from time to time during the Revolving  Availability Period, provided that, after giving effect thereto, (i) the aggregate principal  amount of the outstanding Swingline Loans shall not exceed US$75,000,000, (ii) no  Lender’s Revolving Exposure shall exceed such Lender’s Revolving Commitment and  (iii) the Aggregate Revolving Exposure shall not exceed the Aggregate Revolving  Commitment.  Within the foregoing limits and subject to the terms and conditions set forth  herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.  For the  avoidance of doubt, any reference in this Agreement to the obligation of the Swingline  Lender to make a Swingline Loan being subject to the satisfaction of certain conditions or  to the Swingline Lender not being required to fund any Swingline Loan absent the  occurrence of certain events (or words of similar import) shall not be deemed to create any  obligation of the Swingline Lender to make or fund any Swingline Loan other than in its  sole discretion.  (b) To request a Swingline Loan, the applicable Borrower (or the  Company on its behalf) shall submit to the Swingline Lender (with a copy to the  Administrative Agent) a Swingline Borrowing Request, signed by its Senior Officer, not  later than 1:00 p.m., Local Time, on the day of the  proposed Swingline Loan.  Each such  Swingline Borrowing Request shall be irrevocable and shall specify the name of the  applicable Borrower, the requested date (which shall be a Business Day) and the amount  of the requested Swingline Loan and the location and number of the account of the  applicable Borrower to which funds are to be disbursed or, in the case of any Swingline  Loan requested to finance the reimbursement of an LC Disbursement as provided in  Section 2.20(f), the identity of the Issuing Bank that has made such LC Disbursement.  If  





 






  96      [[5866265v.11]]    the Swingline Lender shall have determined, in its sole discretion, to make the requested  Swingline Loan, then the Swingline Lender shall make such Swingline Loan available to  the applicable Borrower by means of a wire transfer to the account specified in the  applicable Swingline Borrowing Request or to the applicable Issuing Bank, as the case may  be, by 4:00 p.m., Local Time, on the requested date of such Swingline Loan.  (c) The Swingline Lender may by written notice given to the  Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day  require the Revolving Lenders to acquire participations on such Business Day in all or a  portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate  amount of the Swingline Loans in which the Revolving Lenders will be required to  participate.  Promptly upon receipt of such notice, the Administrative Agent will give  notice thereof to each Revolving Lender, specifying in such notice such Lender’s  Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby  absolutely and unconditionally agrees to pay, upon receipt of notice as provided above, to  the Administrative Agent, for the account of the Swingline Lender, such Lender’s  Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender  acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall  be entitled to rely, and shall not incur any liability for relying, upon the representation and  warranty of the applicable Borrower deemed made pursuant to Section 4.02, unless, at least  two Business Days prior to the time such Swingline Loan was made, the Majority in  Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to  the Administrative Agent) in writing that, as a result of one or more events or circumstances  described in such notice, one or more of the conditions precedent set forth in  Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made  (it being understood and agreed that, in the event the Swingline Lender shall have received  any such notice, it shall have no obligation to make any Swingline Loan until and unless it  shall be satisfied that the events and circumstances described in such notice shall have been  cured or otherwise shall have ceased to exist).  Each Revolving Lender further  acknowledges and agrees that its obligation to acquire participations in Swingline Loans  pursuant to this paragraph is absolute and unconditional and shall not be affected by any  circumstance whatsoever, including the occurrence and continuance of a Default or any  reduction or termination of the Revolving Commitments, and that each such payment shall  be made without any offset, abatement, withholding or reduction whatsoever.  Each  Revolving Lender shall comply with its obligation under this paragraph by wire transfer of  immediately available funds, in the same manner as provided in Section 2.04 with respect  to Revolving Loans made by such Revolving Lender (and Section 2.04 shall apply, mutatis  mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph),  and the Administrative Agent shall promptly remit to the Swingline Lender the amounts  so received by it from the Revolving Lenders.  The Administrative Agent shall notify the  applicable Borrower of any participations in any Swingline Loan acquired pursuant to this  paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the  Administrative Agent and not to the Swingline Lender.  Any amounts received by the  Swingline Lender from any Borrower (or other Person on behalf of any Borrower) in  respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale  of participations therein shall be promptly remitted to the Administrative Agent; any such  amounts received by the Administrative Agent shall be promptly remitted by the    97      [[5866265v.11]]    Administrative Agent to the Revolving Lenders that shall have made their payments  pursuant to this paragraph and to the Swingline Lender, as their interests may appear;  provided that any such payment so remitted shall be repaid to the Swingline Lender or to  the Administrative Agent, as applicable, if and to the extent such payment is required to be  refunded to the applicable Borrower for any reason.  The purchase of participations in a  Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve  the applicable Borrower of its obligation to repay such Swingline Loan.  (d) The Swingline Lender may be replaced at any time by written  agreement among the Company, the Administrative Agent, the successor Swingline Lender  and, except in the case of a resignation by the replaced Swingline Lender pursuant to  Section 2.21(e), the replaced Swingline Lender.  The Administrative Agent shall notify the  Revolving Lenders of any such replacement of the Swingline Lender.  At the time any such  replacement shall become effective, the Borrower shall pay all unpaid interest accrued for  the account of the replaced Swingline Lender pursuant to Section 2.10(a).  From and after  the effective date of any such replacement, (i) the successor Swingline Lender shall have  all the rights and obligations of the replaced Swingline Lender under this Agreement with  respect to Swingline Loans made thereafter and (ii) references herein to the term  “Swingline Lender” shall be deemed to refer to such successor or to any previous  Swingline Lender, or to such successor and all previous Swingline Lenders, as the context  shall require.  After the replacement of the Swingline Lender hereunder, the replaced  Swingline Lender shall remain a party hereto and shall continue to have all the rights and  obligations of a Swingline Lender under this Agreement with respect to Swingline Loans  made by it prior to its replacement, but shall not make additional Swingline Loans.  (e) Subject to the appointment and acceptance of a successor Swingline  Lender in accordance with Section 2.21(d), the Swingline Lender may resign as Swingline  Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the  Borrower and the Revolving Lenders, in which case, the Swingline Lender shall be  replaced in accordance with Section 2.21(d).  SECTION 2.22. Borrowing Subsidiaries.  (a) The Company may at any  time and from time to time after the Restatement Effective Date designate any wholly  owned Subsidiary as a Borrowing Subsidiary under the Revolving Facility by delivery to  the Administrative Agent of a written request therefor.  The effectiveness of any such  designation shall be subject to (i) the prior written consent thereto by the Administrative  Agent and, other than in the case of such designation of an Approved Netherlands Borrower  or any Domestic Borrowing Subsidiary, by each Revolving Lender (in each case, not to be  unreasonably withheld, conditioned or delayed), it being understood that a Revolving  Lender shall be deemed to have acted reasonably in withholding its consent (any such  Revolving Lender, an “Objecting Lender”) if (A) it is unlawful (or such Revolving Lender  cannot or has not been able to determine that it is lawful) for such Revolving Lender to  make Revolving Loans and other extensions of credit under this Agreement to such  Subsidiary, (B) the making of Revolving Loans or other extensions of credit under this  Agreement to such Subsidiary might subject such Revolving Lender to adverse tax  consequences for which it is not reimbursed hereunder, (C) such Revolving Lender would  be required to, or has determined that it would be prudent to, register or file in the    98      [[5866265v.11]]    jurisdiction of formation, organization or location of such Subsidiary in order to make  Revolving Loans or other extensions of credit under this Agreement to such Subsidiary,  and such Revolving Lender does not wish to do so or (D) such Revolving Lender is  restricted by operational or administrative procedures or other applicable internal policies  from making Revolving Loans or other extensions of credit under this Agreement to  Persons formed, organized or located in the jurisdiction in which such Subsidiary is  formed, organized or located, (ii) (A) each Lender having received all documentation and  other information with respect to such Subsidiary required by bank regulatory authorities  under applicable “know your customer” and anti-money laundering rules and regulations,  including the USA PATRIOT Act, that shall have been requested by such Lender prior to  a deadline notified by the Administrative Agent to the Lenders (which deadline shall be set  by the Administrative Agent in its reasonable discretion and in consultation with the  Company) and (B) to the extent such Subsidiary qualifies as a “legal entity customer” under  the Beneficial Ownership Regulation, the Administrative Agent having received a  Beneficial Ownership Certification in relation to such Subsidiary prior to a deadline  notified by the Administrative Agent (which deadline shall be set by the Administrative  Agent in its reasonable discretion and in consultation with the Company), (iii) satisfaction  of the conditions set forth in Section 4.03 and (iv) the Administrative Agent having  received a counterpart of the Borrowing Subsidiary Accession Agreement executed on  behalf of the Company and such Subsidiary.  Upon the execution and delivery of a  Borrowing Subsidiary Accession Agreement by the Company and such Subsidiary, and the  acceptance thereof by the Administrative Agent, such Subsidiary shall for all purposes of  this Agreement be a Borrowing Subsidiary and a party to this Agreement.  (b) Upon the execution by the Company and delivery to the  Administrative Agent of a Borrowing Subsidiary Termination with respect to any  Borrowing Subsidiary, such Subsidiary shall cease to be a Borrowing Subsidiary and a  party to this Agreement; provided that no Borrowing Subsidiary Termination will become  effective as to any Borrowing Subsidiary (other than to terminate such Borrowing  Subsidiary’s right to request or receive further Revolving Borrowings or Swingline Loans  or obtain Letters of Credit under this Agreement) until (i) all Loans made to such  Borrowing Subsidiary shall have been repaid (including with proceeds of Revolving Loans  concurrently borrowed by the Company or another Borrowing Subsidiary) and (ii) (A) to  the extent the Company is not a joint and several co-applicant with respect thereto, (x) all  Letters of Credit issued for the account of such Borrowing Subsidiary shall have expired  or been canceled or otherwise terminated (or the Company shall have agreed to become an  obligor with respect thereto pursuant to documentation reasonably satisfactory to the  applicable Issuing Bank) and (y) all amounts due and payable in connection with such  Letters of Credit by such Borrowing Subsidiary in respect of LC Disbursements and related  fees shall have been paid in full and (B) all interest and other fees (and, to the extent  notified by the Administrative Agent, any Revolving Lender or any Issuing Bank, any other  amounts) due and payable hereunder by such Borrowing Subsidiary shall have been paid  in full. As soon as practicable upon receipt of a Borrowing Subsidiary Termination, the  Administrative Agent shall make a copy thereof available to each Revolving Lender.  (c) Each Borrowing Subsidiary hereby irrevocably appoints the  Company as its agent for all purposes of this Agreement and the other Loan Documents,    99      [[5866265v.11]]    including (i) the giving and receipt of notices (including any Borrowing Request and any  Interest Election Request) and (ii) the execution and delivery of all documents, instruments  and certificates contemplated herein.  Each Borrowing Subsidiary hereby acknowledges  that any amendment, waiver or other modification to this Agreement or any other Loan  Document may be effected as set forth in Section 10.02, that no consent of such Borrowing  Subsidiary shall be required to effect any such amendment, waiver or other modification  and that such Borrowing Subsidiary shall be bound by this Agreement or any other Loan  Document (if it is theretofore a party thereto) as so amended, waived or otherwise  modified.  (d) Notwithstanding anything in this Agreement or any other Loan  Document to the contrary, it is agreed, and the Loan Documents shall in all circumstances  be interpreted to provide, that each Foreign Borrowing Subsidiary is liable only for Loans  made to such Foreign Borrowing Subsidiary, interest on such Loans, such Foreign  Borrowing Subsidiary’s reimbursement obligations with respect to any Letter of Credit  issued for its account and for the account of its subsidiaries and interest thereon and its  other Obligations, including general fees, reimbursements, indemnities and charges for  which it is severally liable hereunder or under any other Loan Document.  Nothing in this  Agreement or in any other Loan Document (including provisions which purport to impose  joint and several liability on a Foreign Borrowing Subsidiary and the other Loan Parties)  shall be deemed or operate to cause any Foreign Borrowing Subsidiary to Guarantee or  assume liability with respect to any Loan made to the Company or any other Loan Party,  any Letters of Credit issued for the account of the Company or any other Subsidiary (other  than a subsidiary of such Foreign Borrowing Subsidiary) or other Obligation for which any  other Loan Party is the primary obligor.  Nothing in this paragraph is intended to limit, nor  shall it be deemed to limit, any liability of the Company or any other Loan Party (other  than a Foreign Borrowing Subsidiary) for any of the Obligations, whether in its primary  capacity as a Borrower, as a guarantor, at law or otherwise.  SECTION 2.23. Non-Public Lender.  Any Loan extended to or for the  account of a Borrower incorporated under the laws of the Netherlands shall at all times be  provided by a Lender that is a Non-Public Lender.  ARTICLE III    Representations and Warranties  The Company represents and warrants to the Administrative Agent, the  Lenders and the Issuing Banks, on the Restatement Effective Date and on each other date  on which representations and warranties are required to be, or are deemed to be, made  under the Loan Documents, that:  SECTION 3.01. Organization.  Each of the Company and its Subsidiaries  is duly organized, validly existing and, to the extent such concept is applicable in the  relevant jurisdiction, in good standing under the laws of its jurisdiction of organization, in  each case (other than in the case of any Borrower), except where the failure to be so would  not reasonably be expected to have, individually or in the aggregate, a Material Adverse  





 






  100      [[5866265v.11]]    Effect.  Each of the Company and its Subsidiaries is duly qualified to do business in each  jurisdiction where, because of the nature of its activities or properties, such qualification is  required, except for such jurisdictions where the failure to so qualify would not reasonably  be expected to have, individually or in the aggregate, a Material Adverse Effect.  SECTION 3.02. Authorization; No Conflict; Compliance with Law.  The  execution, delivery and performance by each Loan Party of the Loan Documents to which  it is a party and, in the case of any Borrower, the borrowing of Loans and the issuance of  Letters of Credit, are within such Loan Party’s corporate or other organizational powers,  and each Loan Party is duly authorized to execute and deliver each Loan Document to  which it is a party, each Borrower is duly authorized to borrow Loans and obtain Letters  of Credit hereunder and each Loan Party is duly authorized to perform its obligations under  each Loan Document to which it is a party.  The Transactions do not and will not (a) require  any consent or approval of, or registration or filing with, any Governmental Authority  (other than any consent, approval, registration or filing that has been obtained or made and  is in full force and effect), (b) conflict with (i) any provision of law, (ii) the charter, by- laws or other organizational documents of the Company or any of its Subsidiaries or  (iii) the 2013 Note Indenture, the 2021 Subsidiary Note Indenture or any other agreement,  indenture, instrument or other document, or any judgment, order or decree, which is  binding upon the Company or any of its Subsidiaries or any of their respective properties  or (c) require, or result in, the creation or imposition of any Lien on any material asset of  the Company or any of its Subsidiaries (other than Liens in favor of the Administrative  Agent created pursuant to any of the Loan Documents), in the case of clauses (a), (b)(i)  and (b)(iii), except to the extent that failure to obtain or make such consent, approval,  registration or filing or, other than with respect to the 2013 Note Indenture or the 2021  Subsidiary Note Indenture, to the extent such conflict would not reasonably be expected to  have, individually or in the aggregate, a Material Adverse Effect.    SECTION 3.03. Validity and Binding Nature.  Each of the Loan  Documents to which any Loan Party is a party has been duly executed and delivered by  such Loan Party and is the legal, valid and binding obligation of such Loan Party,  enforceable against such Loan Party in accordance with its terms, subject to bankruptcy,  insolvency and similar laws affecting the enforceability of creditors’ rights generally and  to general principles of equity.  SECTION 3.04. Financial Condition.  The audited consolidated financial  statements of the Company and its Subsidiaries for and as at the end of the Fiscal Year  ended December 31, 2021, and the unaudited consolidated interim financial statements of  the Company and its Subsidiaries for and as at the end of the Fiscal Quarters ended  March 31, 2022 and June 30, 2022, copies of each of which have been made available to  each Lender, were prepared in accordance with GAAP (subject, in the case of such  unaudited statements, to the absence of footnotes and to normal year-end adjustments) and  present fairly, in all material respects, the consolidated financial position of the Company  and its Subsidiaries as at such dates and the results of their operations and cash flows for  the periods then ended.    101      [[5866265v.11]]    SECTION 3.05. No Material Adverse Change.  Since December 31,  2021, there has been no event or condition that has had, or would reasonably be expected  to have, material adverse change in the financial condition, operations, assets, business or  properties of the Company and its Subsidiaries, taken as a whole.  SECTION 3.06. Litigation and Contingent Liabilities.  No litigation  (including derivative actions), arbitration proceeding or governmental investigation or  proceeding is pending or, to the Company’s knowledge, threatened in writing against the  Company or any of its Subsidiaries (a) involving the Loan Documents or (b) that, if  determined adversely, would reasonably be expected to have, individually or in the  aggregate, a Material Adverse Effect.  Other than any liability incident to such litigation or  proceedings, neither the Company nor any Subsidiary has any material contingent  liabilities that would be required to be disclosed by GAAP, which are not reflected in the  financial statements of the Company referred to in Section 3.04 or prepared and delivered  pursuant to Section 5.01 for the fiscal period during which such material contingent  liability was incurred or permitted by Section 6.01.  SECTION 3.07. Subsidiaries.  Schedule 3.07 sets forth the percentage of  Capital Securities in each Subsidiary owned directly or indirectly by the Company as of  the Restatement Effective Date, together with their respective legal names and places of  organization, and identifying whether such Subsidiary is a Designated Subsidiary as of the  Restatement Effective Date.  SECTION 3.08. Pension Plans.  (a)  Except as would not reasonably be  expected to have, individually or in the aggregate, a Material Adverse Effect, each Pension  Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal  or state laws.  Each Pension Plan that is intended to qualify under Section 401(a) of the  Code has received from the IRS a favorable determination or opinion letter, which has not  by its terms expired, that such Pension Plan is so qualified, or such Pension Plan is entitled  to rely on an IRS advisory or opinion letter with respect to an IRS-approved master and  prototype or volume submitter plan, or a timely application for such a determination or  opinion letter is currently being processed by the IRS with respect thereto; and, to the  knowledge of Company, nothing has occurred which would prevent, or cause the loss of,  such qualification.  (b) Except as would not reasonably be expected to have, individually or  in the aggregate, a Material Adverse Effect, (i) each Foreign Pension Plan is in compliance  with all requirements of law applicable thereto and the respective requirements of the  governing documents for such plan, (ii) with respect to each Foreign Pension Plan, none  of the Subsidiaries or other Affiliates of the Company or any of their respective directors,  officers, employees or agents has engaged in a transaction that could subject the Company  or any of its Subsidiaries, directly or indirectly, to a tax or civil penalty, (iii) with respect  to each Foreign Pension Plan, reserves have been established in the financial statements  furnished to Lenders in respect of any unfunded liabilities in accordance with all  requirements of law and prudent business practice or, where required, in accordance with  ordinary accounting practices in the jurisdiction in which such Foreign Pension Plan is  maintained, and (iv) no Foreign Pension Plan has any unfunded pension liability.    102      [[5866265v.11]]    (c) Except as would not reasonably be expected to have, individually or  in the aggregate, a Material Adverse Effect, (i) no ERISA Event has occurred during the  current calendar year or the six full calendar years ending prior to the Restatement Effective  Date or is reasonably expected to occur, (ii) no Pension Plan has any unfunded pension  liability (i.e., excess of benefit liabilities over the current value of that Pension Plan’s  assets, determined pursuant to the assumptions used for funding the Pension Plan for the  applicable plan year in accordance with Section 430 of the Code), (iii) neither the Company  nor any member of the ERISA Group has incurred, or reasonably expects to incur, any  liability under Title IV of ERISA with respect to any Pension Plan (other than required  minimum contributions under ERISA or premiums due and not delinquent under Section  4007 of ERISA), (iv) neither the Company nor any member of the ERISA Group has  incurred during the current calendar year or the six calendar years ending prior to the  Restatement Effective Date, or reasonably expects to incur, any liability (and no event has  occurred which, with the giving of notice under Section 4219 of ERISA, would result in  such liability) under Section 4201 of ERISA, with respect to a Multiemployer Plan and  (v) neither the Company nor any member of the ERISA Group has engaged in a transaction  that could be subject to Sections 4069 or 4212(c) of ERISA.  SECTION 3.09. Investment Company Act.  No Loan Party is an  “investment company” within the meaning of, or subject to regulation under, the  Investment Company Act of 1940.  SECTION 3.10. Regulation U.  Neither the Company nor any of its  Subsidiaries 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.  No part of the proceeds of any Loan has been or will be used,  immediately, incidentally, or ultimately, for any purpose which entails a violation  (including on the part of any Lender) of the provisions of the regulations of the Board of  Governors, including Regulation U.  Not more than 25% of the value of the assets subject  to any restrictions on the sale, pledge or other disposition of assets under this Agreement,  any other Loan Document or any other agreement between the Company or any Subsidiary  and any Lender or Affiliate of a Lender will at any time be represented by Margin Stock.  SECTION 3.11. Solvency.  On the Restatement Effective Date and on any  Delayed Draw Term Funding Date, in each case, after giving effect to the making of the  Loans and the application of the proceeds thereof and the consummation of the other  Transactions to occur on such date, (a) the fair value of the assets of the Company and its  Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and  liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the  property of the Company and its Subsidiaries, on a consolidated basis, is greater than the  amount that will be required to pay the probable liability, on a consolidated basis, of their  debts and other liabilities, subordinated, contingent or otherwise, as such debts and other  liabilities become absolute and matured, (c) the Company and its Subsidiaries, on a  consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or  otherwise, as such debts and liabilities become absolute and matured and (d) the Company  and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage  in, business for which they have unreasonably small capital.  For purposes of this Section,    103      [[5866265v.11]]    the amount of any contingent liability at any time shall be computed as the amount that  would reasonably be expected to become an actual or matured liability.    SECTION 3.12. Environmental Matters.  The on-going operations of  each of the Company and its Subsidiaries comply in all respects with all Environmental  Laws, except where failure to comply would not reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  Each of the Company and its  Subsidiaries has obtained, and maintains in good standing, all licenses, permits,  authorizations, registrations and other approvals required under any Environmental Law  and required for their respective operations, and each of the Company and its Subsidiaries  is in compliance with all terms and conditions thereof, except where the failure to so obtain,  maintain or comply would not reasonably be expected to have, individually or in the  aggregate, a Material Adverse Effect.  None of the Company, its Subsidiaries or any of  their respective properties or operations is subject to any written order from or agreement  with any Governmental Authority, nor any pending or, to the knowledge of the Company,  threatened judicial or docketed administrative or other proceeding or investigation, relating  to or arising out of any Environmental Law which would reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  Neither the Company nor any  of its Subsidiaries has treated, stored, transported or Released any Hazardous Substances  on, at, under or from any currently or formerly owned, leased or operated real property that  has had, or would reasonably be expected to have, individually or in the aggregate, a  Material Adverse Effect.  SECTION 3.13. Labor Matters.  There are no existing or, to the  knowledge of the Company, threatened strikes, lockouts or other labor disputes involving  the Company or any of its Subsidiaries that would reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  SECTION 3.14. Anti-Corruption Laws and Sanctions; Use of Proceeds.   The Company has implemented and maintains in effect policies and procedures designed  to ensure compliance by the Company, its Subsidiaries and their respective directors,  officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and  the Company, its Subsidiaries and their respective directors and officers and, to the  knowledge of the Company, their respective employees or agents, are in compliance with  Anti-Corruption Laws and applicable Sanctions in all material respects.  None of (a) the  Company, any of its Subsidiaries or any of their respective directors or officers, or (b) to  the knowledge of the Company, any employee or agent of the Company or any Subsidiary  that will act in any capacity in connection with or benefit from any of the credit facilities  established hereby, is a Sanctioned Person.  The Borrowers will use the proceeds of the  Loans and the Letters of Credit solely for the purposes permitted by Section 5.07.  No Loan  or Letter of Credit or use of proceeds thereof will violate Sanctions applicable to any party  hereto or any Anti-Corruption Laws.  SECTION 3.15. Affected Financial Institutions.  No Loan Party is an  Affected Financial Institution.  





 






  104      [[5866265v.11]]    SECTION 3.16. Ranking of Obligations.  The obligations of each Foreign  Borrowing Subsidiary under the Loan Documents to which it is a party rank at least equally  with all of the unsubordinated Indebtedness of such Foreign Borrowing Subsidiary, and  ahead of all subordinated Indebtedness, if any, of such Foreign Borrowing Subsidiary.  SECTION 3.17. Proper Form; No Recordation.  Each Loan Document to  which any Foreign Subsidiary Borrower is a party is in proper legal form under the laws  of its jurisdiction of organization for the enforcement thereof against such Foreign  Subsidiary Borrower under such laws and to ensure the legality, validity, enforceability,  priority or admissibility in evidence of such Loan Document.  It is not necessary, in order  to ensure the legality, validity, enforceability, priority or admissibility in evidence of any  Loan Document to which any Foreign Subsidiary Borrower is a party that such Loan  Document be filed, registered or recorded with, or executed or notarized before, any court  or other Governmental Authority in its jurisdiction of organization or that any registration  charge or stamp or similar tax be paid on or in respect of such Loan Document, except for  (a) any such filing, registration, recording, execution or notarization as has been made or  is not required to be made until the applicable Loan Document is sought to be enforced and  (b) any charge or tax as has been timely paid by such Foreign Subsidiary Borrower.  SECTION 3.18. Centre of Main Interests.  No Loan Party incorporated in  the European Union will, without the prior written consent of the Administrative Agent,  deliberately cause or allow its centre of main interests (as such term is used in Article 3(l)  of the Regulation (EU) No. 2015/848/ of 20 May 2015 of the European Parliament and of  the Council on Insolvency Proceedings (recast)) to change in a manner that would  materially adversely affect the Credit Parties.  SECTION 3.19. Tax Residency of Netherland Borrowing Subsidiary.   Neither Wabtec BV nor any other Borrowing Subsidiary organized under the laws of the  Netherlands is considered to be a resident of any jurisdiction other than the Netherlands for  the purposes of any double taxation convention concluded by the Netherlands, for the  purposes of the Tax Arrangement for the Kingdom (Belastingregeling voor het Koninkrijk)  or for purposes of the Tax Arrangement for the country of the Netherlands  (Belastingregeling voor het land Nederland), or otherwise.  ARTICLE IV    Conditions  SECTION 4.01. Restatement Effective Date.  The amendment and  restatement of the Existing Credit Agreement to be in the form of this Agreement shall  become effective on and as of the Restatement Effective Date, as provided for in the  Restatement Agreement.  SECTION 4.02. Conditions to Each Credit Event.  The obligation of each  Revolving Lender to make a Revolving Loan on the occasion of each Revolving Borrowing  (other than any conversion or continuation of any Revolving Loan), of the Swingline  Lender to make a Swingline Loan, of each Issuing Bank to issue, amend to increase the    105      [[5866265v.11]]    amount thereof or extend (other than an automatic annual extension of any Letter of Credit  in accordance with the terms thereof) any Letter of Credit and of each Delayed Draw Term  Lender to make a Delayed Draw Term Loan on the occasion of each Delayed Draw Term  Borrowing (other than any conversion or continuation of any Delayed Draw Term Loan),  in each case, is subject to receipt of the request therefor in accordance herewith and to the  satisfaction of the following conditions:  (a) The representations and warranties of each Loan Party set forth in  the Loan Documents (other than, after the Restatement Effective Date, the  representations and warranties set forth in Sections 3.05 and 3.06) shall be true and  correct (i) in the case of the representations and warranties qualified as to  materiality, in all respects and (ii) otherwise, in all material respects, in each case  on and as of the date of such Borrowing or the date of such issuance, amendment  or extension of such Letter of Credit, as applicable, except in the case of any such  representation and warranty that expressly relates to a prior date, in which case such  representation and warranty shall be so true and correct on and as of such prior date.  (b) At the time of and immediately after giving effect to such Borrowing  or such issuance, amendment or extension of such Letter of Credit, as applicable,  no Default shall have occurred and be continuing.  On the date of any Revolving Borrowing (other than any conversion or continuation of any  Revolving Loan), any Swingline Loan or any Delayed Draw Term Borrowing (other than  any conversion or continuation of any Delayed Draw Term Loan) or the issuance,  amendment to increase the amount thereof or extension (other than an automatic annual  extension of any Letter of Credit in accordance with the terms thereof) of any Letter of  Credit, the Company and the applicable Borrower shall be deemed to have represented and  warranted that the conditions specified in paragraphs (a) and (b) of this Section have been  satisfied.  SECTION 4.03. Conditions to Initial Revolving Credit Event to each  Borrowing Subsidiary.  The obligations of the Revolving Lenders to make Revolving  Loans, of the Swingline Lender to make any Swingline Loan and of the Issuing Banks to  issue Letters of Credit hereunder to or for the account of any Borrowing Subsidiary shall  not become effective until the date on which each of the following additional conditions  shall be satisfied (unless waived in accordance with Section 10.02):  (a) The Administrative Agent shall have received a favorable written  opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks  and dated the date such Subsidiary is to become a Borrowing Subsidiary) of counsel  to such Borrowing Subsidiary reasonably satisfactory to the Administrative Agent,  in form and substance reasonably satisfactory to the Administrative Agent.  (b) The Administrative Agent shall have received such documents and  certificates as the Administrative Agent may reasonably request relating to the  organization, existence and, if applicable, good standing of such Borrowing  Subsidiary, the authorization of the Loan Documents by such Borrowing    106      [[5866265v.11]]    Subsidiary, the incumbency of the Persons executing any Loan Document on behalf  of such Borrowing Subsidiary and any other legal matters reasonably relating to  such Borrowing Subsidiary, this Agreement or (other than in the case of Wabtec  BV) its Borrowing Subsidiary Accession Agreement, all in form and substance  reasonably satisfactory to the Administrative Agent.  ARTICLE V    Affirmative Covenants  Until the Commitments shall have expired or been terminated, the principal  of and interest on each Loan and all fees payable hereunder shall have been paid in full, all  Letters of Credit shall have expired or been terminated and all LC Disbursements shall  have been reimbursed, the Company covenants and agrees that:  SECTION 5.01. Financial Reporting.  The Company shall furnish to the  Administrative Agent (for further delivery to each Lender):  (a) Quarterly Reports.  As soon as practicable and in any event within  45 days after the end of each of the first three Fiscal Quarters of each of its Fiscal Years  (commencing with the Fiscal Quarter ending September 30, 2022), an unaudited condensed  consolidated balance sheet of the Company and its Subsidiaries as at the end of such Fiscal  Quarter and related unaudited condensed consolidated statements of income,  comprehensive income and cash flows of the Company for such Fiscal Quarter and the  period from the beginning of such Fiscal Year to the end of such Fiscal Quarter (and, in  the case of the consolidated statements of income and cash flows, on a comparative basis  with the statements for such period in the prior Fiscal Year of the Company), which shall  present fairly, in all material respects, the consolidated financial position of the Company  and its Subsidiaries as at the dates indicated and their results of operations and cash flows  for the periods indicated in accordance with GAAP, subject to normal year-end audit  adjustments and the absence of certain footnotes.  (b) Annual Reports.  As soon as practicable, and in any event within 90  days after the end of each of its Fiscal Years, commencing with the Fiscal Year ending  December 31, 2022, an audited consolidated balance sheet of the Company and its  Subsidiaries as at the end of such Fiscal Year and related audited consolidated statements  of income, comprehensive income, shareholders’ equity and cash flows of the Company  for such Fiscal Year, accompanied by an audit report thereon of a nationally recognized  independent registered public accounting firm, which audit report shall not contain any  “going concern” or like qualification or exception or any qualification or exception as to  the scope of audit and shall state that such financial statements present fairly, in all material  respects, the consolidated financial position of the Company and its Subsidiaries as at the  dates indicated and their results of operations and cash flows for the periods indicated in  accordance with GAAP and that the examination by such accounting firm in connection  with such consolidated financial statements has been made in accordance with generally  accepted auditing standards in the United States.    107      [[5866265v.11]]    (c) Compliance Certificate.  Together with each delivery of any  financial statements pursuant to paragraphs (a) and (b) of this Section, a Compliance  Certificate, signed by a Senior Officer of the Company, (i) setting forth calculations for the  period then ended which demonstrate compliance with Section 6.06, calculating the  Leverage Ratio for purposes of determining the then Applicable Rate and stating that as of  the date of such Compliance Certificate no Default or Event of Default exists, or if any  Default or Event of Default exists, stating the nature and status thereof and (ii) if, as a result  of any change in GAAP or in the application thereof after the date hereof, the Company,  the Administrative Agent or the Required Lenders shall have requested pursuant to  Section 1.04(a) an amendment to any provision hereof to eliminate the effect of such  change, until such request shall have been withdrawn or such provision shall have been  amended, attaching one or more statements of reconciliation specifying in reasonable detail  the effect of such change on such financial statements, including those for the prior period.     Documents required to be delivered to (i) the Administrative Agent  pursuant to paragraph (a) or (b) of this Section or pursuant to Section 5.02(c) (to the extent  any such documents are included in materials otherwise filed with the SEC) or (ii) any  Lender pursuant to this Section or pursuant to Section 5.02 may be delivered electronically  and if so delivered, shall be deemed to have been delivered on the date on which (A) the  Company posts such documents, or provides a link thereto, on the Company’s website on  the Internet at the website address www.wabtec.com, (B) such documents are posted on  the SEC’s website at www.sec.gov or (C) such documents are posted on the Company’s  behalf on an Internet website, if any, to which each Lender and the Administrative Agent  have access (whether a commercial, third-party website or whether sponsored by the  Administrative Agent, including the Platform).  SECTION 5.02. Notices; Other Information.    (a) Notice of Default.  Promptly after any Senior Officer of the  Company obtains knowledge of the occurrence or existence of a Default or Event of  Default, the Company shall furnish to the Administrative Agent (for further delivery to  each Lender) a certificate signed by a Senior Officer of the Company setting forth the  details of such Default or Event of Default and the action which the Company has taken or  proposes to take with respect thereto.   (b) Notice of Litigation, ERISA and Environmental Matters.  Promptly  after any officer of the Company obtains knowledge of any of the following, the Company  shall furnish to the Administrative Agent (for further delivery to each Lender) written  notice describing the same and the actions being taken by the Company or the Subsidiary  affected thereby with respect thereto:  (i) any litigation, arbitration or governmental investigation or  proceeding not previously disclosed by the Company to the Lenders which has been  instituted or, is threatened in writing against the Company or any of its Subsidiaries  or to which any of the properties of the Company or any of its Subsidiaries is subject  or any change or adverse development in any such litigation, arbitration or  governmental investigation or proceeding, whether or not such litigation,  





 






  108      [[5866265v.11]]    arbitration or governmental investigation or proceeding was previously disclosed  by the Company to the Lenders (including any change in insurance coverage or  rights of indemnification or contribution with respect thereto), that, in any such  case, if determined adversely, would reasonably be expected to have, individually  or in the aggregate, a Material Adverse Effect;  (ii) the occurrence of any ERISA Events that would reasonably be  expected to have, individually or in the aggregate, a Material Adverse Effect; or  (iii) any violations of any Environmental Law or the assertion of any  Environmental Claims that would reasonably be expected to have, individually or  in the aggregate, a Material Adverse Effect.  (c) Reports to the SEC and to Shareholders.  Promptly upon the filing  or sending thereof, the Company shall furnish copies to the Administrative Agent (for  further delivery to each Lender) of all regular, periodic or special reports of the Company  or any Subsidiary filed with the SEC, copies of all registration statements of the Company  or any Subsidiary filed with the SEC (other than on Form S-8) and copies of all proxy  statements or other communications made to security holders of the Company generally.  (d) Other Information.  The Company shall, promptly following a  request by any Lender, prepare and deliver to such Lender all documentation and other  information with respect to the Company and its Subsidiaries such Lender reasonably  requests in order to comply with its ongoing obligations under applicable “know your  customer” and anti-money laundering rules and regulations, including the USA PATRIOT  Act and the Beneficial Ownership Regulation.  The Company shall (i) prepare and deliver  to the Administrative Agent (for further delivery to each Lender) notice of any change in  the information provided in any Beneficial Ownership Certification that would result in a  change to the list of beneficial owners identified in such Beneficial Ownership Certification  and (ii) promptly upon receiving a request therefor from the Administrative Agent, prepare  and deliver to the Administrative Agent (for further delivery to each applicable Lender, as  the case may be) such other information with respect to the Company or any of its  Subsidiaries as from time to time may be reasonably requested by the Administrative Agent  (or by any Lender through the Administrative Agent).  SECTION 5.03. Books, Records and Inspections.  The Company shall,  and shall cause each of its Subsidiaries to, (a) keep its books and records in accordance  with sound business practices sufficient to allow the preparation of financial statements in  accordance with GAAP, (b) permit any Lender or the Administrative Agent or any  representative thereof to inspect the properties and operations of the Company and its  Subsidiaries and (c) permit at any reasonable time and with reasonable notice (or at any  time without notice if an Event of Default exists), any Lender or the Administrative Agent  or any representative thereof to visit any or all of its offices, to discuss its financial matters  with its officers and to examine (and, at the expense of the Company, photocopy extracts  from) any of its books or other records; provided that, notwithstanding anything to the  contrary in Section 10.03, the Company shall not be required to reimburse any Lender or  the Administrative Agent for any costs or expenses incurred by it in connection with any    109      [[5866265v.11]]    such inspection, visit or audit, other than, in the case of the Administrative Agent only, any  such inspection, visit or audit commenced when a Default or Event of Default shall have  occurred and is continuing.    SECTION 5.04. Maintenance of Property; Insurance.  The Company  shall, and shall cause each of its Subsidiaries to:  (a) keep all property necessary in the business of the Company or such  Subsidiary in working order and condition, ordinary wear and tear excepted, except where  the failure to do so would not reasonably be expected to have, individually or in the  aggregate, a Material Adverse Effect; and  (b) insure the properties and assets of the Company and its Subsidiaries  against loss or damage by fire and such other insurable hazards as such assets are  commonly insured (including fire, extended coverage, property damage, workers’  compensation, public liability, and business interruption insurance) and against other risks  (including errors and omissions) in such amounts as similar properties and assets are  insured, in each case, by prudent companies in similar circumstances carrying on similar  businesses, and with insurers believed by the Company to be reputable and financially  sound, including self-insurance to the extent customary.  SECTION 5.05. Compliance with Laws.  The Company shall, and shall  cause each of its Subsidiaries to, comply with all applicable laws, except where failure to  comply would not reasonably be expected to have, individually or in the aggregate, a  Material Adverse Effect.  SECTION 5.06. Maintenance of Existence, Etc.  Subject to Section 6.04,  the Company shall, and shall cause each of its Subsidiaries to, maintain and preserve its  existence and good standing in the jurisdiction of its organization and its qualification to  do business and good standing in each jurisdiction where the nature of its business makes  such qualification necessary, in each case, except where the failure to maintain such  existence (other than in the case of the Company or any Borrowing Subsidiary) or the  failure to be in good standing or qualified would not reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  SECTION 5.07. Use of Proceeds.  The proceeds of the Revolving Loans,  Delayed Draw Term Loans and Swingline Loans will be used solely for working capital  needs and other general corporate purposes of the Company and its Subsidiaries, including  to finance Acquisitions, investments and other transactions and to pay fees, costs and  expenses in connection with any of the foregoing.  Letters of Credit will be issued only to  support obligations of Company and its Subsidiaries incurred in connection with general  corporate purposes of the Company and its Subsidiaries.  No Borrower will request any  Loan or Letter of Credit, and no Borrower shall use, and each Borrower shall procure that  its subsidiaries shall not use, the proceeds of any Loan or Letter of Credit (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    110      [[5866265v.11]]    with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would  result in the violation of any Sanctions applicable to any party hereto.  SECTION 5.08. Employee Benefit Plans.  The Company shall, and shall  cause each of its Subsidiaries to:  (a) maintain, and, if applicable, cause each other member of the ERISA  Group to maintain, each Pension Plan in compliance with all applicable requirements of  law, except where the failure to do so would not reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect,  (b) make, and cause each other member of the ERISA Group to make,  on a timely basis, all required contributions to any Multiemployer Plan, except where the  failure to do so would not reasonably be expected to have, individually or in the aggregate,  a Material Adverse Effect, and  (c) not, and not permit any other member of the ERISA Group to,  (i) seek a waiver of the minimum funding standards of ERISA, (ii) terminate or withdraw  from any Pension Plan or Multiemployer Plan or (iii) take any other action with respect to  any Pension Plan that would reasonably be expected to entitle the PBGC to terminate,  impose liability (other than timely payment of PBGC premiums) in respect of, or cause  PBGC to appoint a trustee to administer, any Pension Plan, unless the actions or events  described in clauses (i), (ii) and (iii) would not reasonably be expected to have, individually  or in the aggregate, a Material Adverse Effect.  SECTION 5.09. Environmental Matters.  The Company shall, and shall  cause each of its Subsidiaries to, comply with all applicable Environmental Laws, except  where the failure to do so would not, individually or in the aggregate, reasonably be  expected to have a Material Adverse Effect.  SECTION 5.10. Payment of Taxes.  The Company shall, and shall cause  each of its Subsidiaries to, pay its Taxes before the same shall become delinquent or in  default, except where (a) (i) the validity or amount thereof is being contested in good faith  by appropriate proceedings, (ii) the Company or such Subsidiary has set aside on its books  reserves with respect thereto to the extent required by GAAP and (iii) such contest  effectively suspends collection of the contested obligation and the enforcement of any Lien  securing such obligation or (b) the failure to make payment would not, individually or in  the aggregate, reasonably be expected to have a Material Adverse Effect.  SECTION 5.11. Anti-Corruption Laws.  The Company shall maintain in  effect policies and procedures designed to ensure compliance by the Company, its  Subsidiaries and their respective directors, officers, employees and agents with Anti- Corruption Laws and applicable Sanctions.  SECTION 5.12. Guarantee Requirement.  If any Subsidiary is formed or  acquired after the Restatement Effective Date and such Subsidiary is a Designated  Subsidiary, or any Subsidiary otherwise becomes a Designated Subsidiary (including as a  result of becoming a Material Subsidiary), the Company shall, as promptly as practicable,    111      [[5866265v.11]]    and in any event within 30 days (or such longer period as the Administrative Agent may  agree to in writing), notify the Administrative Agent thereof and cause the Guarantee  Requirement to be satisfied with respect to such Subsidiary.  In connection with the  foregoing, the Company shall promptly deliver to the Administrative Agent (a) all  documentation and other information regarding such Subsidiary required by bank  regulatory authorities under applicable “know-your-customer” and anti-money laundering  rules and regulations, including the USA PATRIOT Act, to the extent reasonably requested  by the Administrative Agent or any Lender, and (b) if such Subsidiary is or is reasonably  expected to become a Borrowing Subsidiary and qualifies as a “legal entity customer”  under the Beneficial Ownership Regulation, a Beneficial Ownership Certification to the  extent requested by the Administrative Agent or any Lender.  SECTION 5.13. Further Assurances.  The Company shall, and shall cause  each other Loan Party to, execute any and all further documents, agreements and  instruments, and take all such further actions, that may be required under any applicable  law, or that the Administrative Agent may reasonably request, to cause the Guarantee  Requirement to be and remain satisfied at all times or otherwise to effectuate the provisions  of the Loan Documents, all at the expense of the Loan Parties.  ARTICLE VI    Negative Covenants  Until the Commitments shall have expired or been terminated, the principal  of and interest on each Loan and all fees payable hereunder shall have been paid in full, all  Letters of Credit shall have expired or been terminated and all LC Disbursements shall  have been reimbursed, the Company covenants and agrees that:  SECTION 6.01. Indebtedness.  The Company shall not permit any  Subsidiary (other than a Subsidiary Guarantor) to, at any time create, incur, assume or  suffer to exist any Indebtedness, except:  (a) Indebtedness of any Subsidiary (i) incurred to finance the  acquisition, construction or improvement of any fixed or capital assets, including any  Capital Lease, provided that such Indebtedness is incurred prior to or within 270 days after  such acquisition or the completion of such construction or improvement and the principal  amount of such Indebtedness does not exceed the cost of acquiring, constructing or  improving such fixed or capital assets, or (ii) assumed in connection with the acquisition  of any fixed or capital assets, and, in each case, any extensions, renewals or refinancings  thereof, provided that the amount of such Indebtedness is not increased at the time of such  extension, renewal or refinancing thereof except by an amount equal to any premium or  other amount paid, and fees and expenses incurred, in connection with such extension,  renewal or refinancing;  (b) Indebtedness of any Person that becomes a Subsidiary (or of any  Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary  in a transaction permitted hereunder) after the Restatement Effective Date, or Indebtedness  





 






  112      [[5866265v.11]]    of any Person that is assumed by any Subsidiary in connection with an acquisition of assets  by such Subsidiary in an Acquisition, provided that such Indebtedness exists at the time  such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are  acquired and is not created in contemplation of or in connection with such Person becoming  a Subsidiary (or such merger or consolidation) or such assets being acquired, and any  extensions, renewals and refinancings thereof, provided that the amount of such  Indebtedness is not increased at the time of such extension, renewal or refinancing thereof  except by an amount equal to any premium or other amount paid, and fees and expenses  incurred, in connection with such extension, renewal or refinancing;  (c) Indebtedness of any Subsidiary owed to the Company or any other  Subsidiary, provided that such Indebtedness shall not have been transferred to any other  Person other than the Company or a Subsidiary;  (d) Hedging Liabilities arising under Hedging Agreements entered into  to hedge or mitigate risks to which such Subsidiary has actual exposure (and not for  speculative purposes);  (e) Indebtedness arising in connection with Cash Management Services  entered into in the ordinary course of business;  (f) Indebtedness described on Schedule 6.01 and any extension,  renewal or refinancing thereof, provided that the amount of such Indebtedness is not  increased at the time of such extension, renewal or refinancing thereof except by an amount  equal to any premium or other amount paid, and fees and expenses incurred, in connection  with such extension, renewal or refinancing;  (g) Guarantees by any Subsidiary of Indebtedness of any other  Subsidiary that is not a Loan Party; provided, that a Subsidiary shall not Guarantee  Indebtedness of any other Subsidiary that it would not have been permitted to incur under  this Section if it were a primary obligor thereon;   (h) to the extent constituting Indebtedness, (i) obligations of any  Subsidiary in respect of surety bonds, performance bonds, bid bonds, performance  guarantees, letters of credit, bank guaranties or similar obligations, in each case, arising in  the ordinary course of business and supporting obligations that do not constitute  Indebtedness and (ii) guaranties of performance, completion, quality and the like provided  by any Subsidiary with respect to performance or similar obligations owing to any Person  by the Company or any of its Subsidiaries;   (i) Indebtedness of Subsidiaries that are not Subsidiary Guarantors in  an aggregate principal amount at any time outstanding not to exceed US$800,000,000;  (j) Securitization Transactions in an aggregate amount (as determined  in accordance with the definition thereof) at any time outstanding not to exceed  US$600,000,000;    113      [[5866265v.11]]    (k) any Indebtedness arising under Guarantees entered into pursuant to  Section 2:403 of the Dutch Civil Code in respect of a Subsidiary incorporated in the  Netherlands and any residual liability with respect to such Guarantees arising under  Section 2:404 of the Dutch Civil Code;  (l) any joint and several liability arising as a result of (the  establishment) of a fiscal unity (fiscale eenheid) between the Loan Parties incorporated in  the Netherlands or its equivalent in any other relevant jurisdiction; and  (m) other Indebtedness (in addition to any Indebtedness permitted  pursuant to clauses (a) through (l) above), provided that at the time of and after giving pro  forma effect to the incurrence of any such Indebtedness, the sum, without duplication, of  (i) the aggregate principal amount of the outstanding Indebtedness of Subsidiaries  permitted by this clause (m) and (ii) the aggregate principal amount of the outstanding  Indebtedness or other obligations secured by Liens permitted by Section 6.02(x) does not  exceed the greater of (A) 15% of the Consolidated Net Tangible Assets and  (B) US$220,000,000.  SECTION 6.02. Liens.  The Company shall not, and shall not permit any  of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien on any  of its property or assets, tangible or intangible, now owned or hereafter acquired, except:   (a) Liens for Taxes or other governmental charges (i) not at the time  delinquent, (ii) thereafter payable without penalty or (iii) being contested in good faith by  appropriate proceedings and, in each case, for which it maintains adequate reserves;  (b) Liens arising in the ordinary course of business, including (i) Liens  of carriers, warehousemen, mechanics and materialmen and other similar Liens imposed  by law and (ii) Liens in the form of deposits or pledges incurred in connection with  worker’s compensation, unemployment compensation and other types of social security  (excluding Liens arising under ERISA) or in connection with surety bonds, performance  bonds, bid bonds, performance guarantees and similar obligations permitted hereunder for  sums not overdue or being contested in good faith by appropriate proceedings and not  involving any advances or borrowed money or the deferred purchase price of property or  services and, in each case, for which it maintains adequate reserves;  (c) banker’s liens, rights of setoff or similar rights and remedies as to  deposit accounts or other funds maintained with depository institutions and securities  accounts and other financial assets maintained with securities intermediaries; provided that  such deposit accounts or funds and securities accounts or other financial assets are not  established or deposited for the purpose of providing collateral for any Indebtedness and  are not subject to restrictions on access by the Company or any Subsidiary in excess of  those required by applicable banking regulations;  (d) Liens arising by virtue of Uniform Commercial Code financing  statement filings (or similar filings under applicable law) regarding operating leases  entered into by the Company and the Subsidiaries in the ordinary course of business;    114      [[5866265v.11]]    (e) Liens representing any interest or title of a licensor, lessor or  sublicensor or sublessor, or a licensee, lessee or sublicensee or sublessee, in the property  subject to any lease (other than Capital Leases), license or sublicense permitted by this  Agreement;  (f) Liens in favor of customs and revenue authorities arising as a matter  of law to secure payment of customs duties in connection with the importation of goods;  (g) deposits of cash with the owner or lessor of premises leased and  operated by the Company or any Subsidiary to secure the performance of its obligations  under the lease for such premises, in each case in the ordinary course of business;  (h) Liens on cash and Cash Equivalent Investments deposited with a  trustee or a similar Person to defease or to satisfy and discharge any Indebtedness, provided  that such defeasance or satisfaction and discharge is permitted hereunder;  (i) Liens that are contractual rights of set-off;  (j) attachments, appeal bonds, judgments and other similar Liens,  provided that (i) no Event of Default under Section 7.01(f) has occurred and is continuing  at the time of incurrence thereof and (ii) the execution or other enforcement of such Liens  is effectively stayed and the claims secured thereby are being actively contested in good  faith and by appropriate proceedings;  (k) Liens on contracts entered into with its customers by the Company  or any of its Subsidiaries and the assets related thereto to secure the obligations of the  Company or such Subsidiary in respect of such contracts, in each case to assure  performance of such contracts;  (l) easements, rights of way, restrictions, minor defects or irregularities  in title and other similar Liens not interfering in any material respect with the ordinary  conduct of the business of the Company or any of its Subsidiaries;  (m) Liens arising under the Loan Documents from time to time;  (n) in connection with the sale, transfer or other disposition of any  Capital Securities or assets in a transaction permitted under Section 6.04, customary rights  and restrictions contained in agreements relating to such sale, transfer or other disposition  pending the completion thereof;  (o) in the case of (i) any Subsidiary that is not a wholly owned  Subsidiary or (ii) the Capital Securities in any Person that is not a Subsidiary, any  encumbrance or restriction, including any put and call arrangements, related to Capital  Securities in such Subsidiary or such other Person set forth in the organizational documents  of such Subsidiary or such other Person or any related joint venture, shareholders’ or  similar agreement;    115      [[5866265v.11]]    (p) Liens solely on any cash earnest money deposits, escrow  arrangements or similar arrangements made by the Company or any Subsidiary in  connection with any letter of intent or purchase agreement for an Acquisition or other  transaction permitted hereunder;  (q) Liens on fixed or capital assets acquired, constructed or improved  by the Company or any Subsidiary securing Indebtedness, including Capital Leases, or  other obligations incurred to finance such acquisition, construction or improvement and  extensions, renewals and refinancings thereof that do not increase the outstanding principal  amount thereof except by an amount equal to any premium or other amount paid, and fees  and expenses incurred, in connection with such extension, renewal or refinancing, provided  that (i) such Liens and the Indebtedness secured thereby are incurred prior to or within  270 days after such acquisition or the completion of such construction or improvement,  (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or  improving such fixed or capital assets and (iii) such Liens shall not apply to any other assets  of the Company or any Subsidiary (other than improvements or accessions thereto and the  proceeds thereof), provided further that individual financings of equipment or other fixed  or capital assets otherwise permitted to be secured hereunder provided by any Person (or  its Affiliates) may be cross-collateralized to other such financings provided by such Person  (or its Affiliates);  (r) any Lien on any asset acquired by the Company or any Subsidiary  after the Restatement Effective Date existing at the time of the acquisition thereof or  existing on any asset of any Person that becomes a Subsidiary (or of any Person not  previously a Subsidiary that is merged or consolidated with or into the Company or a  Subsidiary in a transaction permitted hereunder) after the Restatement Effective Date and  prior to the time such Person becomes a Subsidiary (or is so merged or consolidated),  provided that (i) such Lien is not created in contemplation of or in connection with such  acquisition or such Person becoming a Subsidiary (or such merger or consolidation), as the  case may be, (ii) such Lien shall not apply to any other assets of the Company or any  Subsidiary (other than improvements or accessions thereto and the proceeds thereof) and  (iii) such Lien shall secure only those obligations that it secures on the date of such  acquisition or the date such Person becomes a Subsidiary (or is so merged or consolidated),  as the case may be, and extensions, renewals and refinancings thereof that do not increase  the outstanding principal amount thereof except by an amount equal to any premium or  other amount paid, and fees and expenses incurred, in connection with such extension,  renewal or refinancing;  (s) Liens on the net cash proceeds of any Acquisition Indebtedness held  in escrow by a third party escrow agent prior to the release thereof from escrow;  (t) any Lien on any asset of the Company or any Subsidiary existing on  the Restatement Effective Date and set forth on Schedule 6.02; provided that (i) such Lien  shall not apply to any other asset of the Company or any Subsidiary (other than  improvements or accessions thereto and the proceeds thereof) and (ii) such Lien shall  secure only those obligations that it secures on the Restatement Effective Date and  extensions, renewals and refinancings thereof that do not increase the outstanding principal  





 






  116      [[5866265v.11]]    amount thereof except by an amount equal to any premium or other amount paid, and fees  and expenses incurred, in connection with such extension, renewal or refinancing;  (u) Liens in connection with Indebtedness permitted under  Section 6.01(h);   (v) Liens securing (or deemed to secure pursuant to the definition of the  term) Securitization Transactions permitted to be incurred pursuant to Section 6.01(j);  provided that such Liens shall only extend to Securitization Receivables subject to such  Securitization Transaction, the Capital Securities in and assets of Securitization  Subsidiaries and assets ancillary to any of the foregoing;   (w) Liens on any assets of a Subsidiary that is not a Subsidiary  Guarantor that secure obligations of Subsidiaries that are not Subsidiary Guarantors; and  (x) other Liens (in addition to any Liens permitted pursuant to  clauses (a) through (w) above) securing or deemed to exist in connection with Indebtedness  or other obligations; provided that at the time of and after giving pro forma effect to the  incurrence of any such Lien (or any Indebtedness or other obligations secured thereby), the  sum, without duplication, of (i) the aggregate principal amount of the outstanding  Indebtedness or other obligations secured by Liens permitted by this clause (x) and (ii) the  aggregate principal amount of the outstanding Indebtedness permitted by Section 6.01(m)  does not exceed the greater of (A) 15% of Consolidated Net Tangible Assets and  (B) US$220,000,000.  SECTION 6.03. Restricted Payments.  The Company shall not, and shall  not permit any of its Subsidiaries to, make any Restricted Payment; provided that (a) the  Company and its Subsidiaries may convert preferred stock into common stock and permit  the holders of preferred stock of the Company to convert such stock into common stock of  the Company, (b) the Company and any Subsidiary may make Restricted Payments with  respect to its Capital Securities payable solely in additional Capital Securities in such  Person permitted hereunder, (c) any Subsidiary may make Restricted Payments in respect  of its Capital Securities, in each case ratably to the holders of such Capital Securities (or,  if not ratably, on a basis more favorable to the Company and the Subsidiaries) and (d) the  Company and any Subsidiary may make other Restricted Payments so long as at the time  of declaration thereof, and after giving pro forma effect thereto as of such date of  declaration, (i) no Default or Event of Default shall have occurred and be continuing and  (ii) the Company shall be in compliance with Section 6.06.  SECTION 6.04. Fundamental Changes; Business Activities.  (a) The Company shall not, and shall not permit any of its Subsidiaries  to, merge, consolidate or amalgamate with any other Person, or liquidate, wind-up or  dissolve, except that:  (i) any Subsidiary of the Company may merge, consolidate or  amalgamate with or into the Company or any Subsidiary, provided that (A) in the  case of any such transaction involving the Company, the Company shall be the    117      [[5866265v.11]]    surviving or continuing Person, (B) in the case of any such transaction involving a  Borrowing Subsidiary, such Borrowing Subsidiary (or, in the case of a merger,  consolidation or amalgamation of such Borrowing Subsidiary with or into the  Company or another Borrowing Subsidiary, the Company or such other Borrowing  Subsidiary) shall be the surviving or continuing Person and (C) in the case of any  such transaction involving a Subsidiary Guarantor, the surviving or continuing  Person shall be a Subsidiary Guarantor (or, in the case of a merger, consolidation  or amalgamation of such Subsidiary Guarantor with or into the Company, the  Company);  (ii) any Person (other than the Company or a Subsidiary) may merge,  consolidate or amalgamate with or into (A) the Company in a transaction in which  the Company is the surviving or continuing Person or (B) any Subsidiary in a  transaction in which such Subsidiary or a Person that becomes a Subsidiary is the  surviving or continuing Person, provided that in the case of any such transaction  involving a Borrowing Subsidiary or a Subsidiary Guarantor, such Borrowing  Subsidiary or Subsidiary Guarantor, as the case may be, or a Person that becomes  a Borrowing Subsidiary or a Subsidiary Guarantor, as applicable in accordance with  the provisions of this Agreement (and assumes the obligations of such Borrowing  Subsidiary or Subsidiary Guarantor, as applicable, pursuant to an assumption  agreement reasonably acceptable to the Administrative Agent and provides such  other certificates and opinions as shall be reasonably requested by the  Administrative Agent), shall be the surviving or continuing Person;  (iii) any Subsidiary (other than a Borrowing Subsidiary) may merge,  consolidate or amalgamate with or into any Person (other than the Company) in a  transaction not prohibited hereunder in which, after giving effect to such  transaction, the surviving or continuing Person is not a Subsidiary; and  (iv) any Subsidiary (other than a Borrowing Subsidiary) may liquidate,  wind-up or dissolve if the Company determines in good faith that such liquidation,  winding-up or dissolution is not material to the Company and its Subsidiaries taken  as a whole and is not materially disadvantageous to the Lenders.  (b) The Company shall not, and shall not permit any of its Subsidiaries  to, sell, transfer, lease or otherwise dispose of, directly or through any merger,  consolidation or amalgamation and whether in one transaction or in a series of transactions,  assets (including Capital Securities of Subsidiaries) representing all or substantially all of  the assets of the Company and its Subsidiaries (whether now owned or hereafter acquired),  taken as a whole.  (c) The Company shall not, and shall not permit any of its Subsidiaries  to, engage to any material extent in any line of business other than the businesses engaged  in on the Restatement Effective Date and businesses and other activities complementary,  reasonably related or incidental thereto.    118      [[5866265v.11]]    (d) The Company shall not permit any Borrowing Subsidiary to cease  to be a wholly owned Subsidiary of the Company.    SECTION 6.05. Restrictive Agreements.  The Company shall not, and  shall not permit any of its Subsidiaries to, enter into any agreement that restricts or imposes  any condition upon (a) the ability of the Company or any Subsidiary to create, incur or  permit to exist any Lien upon any of its assets to secure the Obligations or (b) the ability  of any Subsidiary that is not a Subsidiary Guarantor to pay dividends or make other  distributions to the Company or any Subsidiary Guarantor, other than (i) restrictions and  conditions contained in any Loan Document, (ii) restrictions and conditions contained in  the 2013 Note Indenture or the 2021 Subsidiary Note Indenture, as in effect on the  Restatement Effective Date, or in definitive documents evidencing or governing any other  Indebtedness of the Company or any Subsidiary, provided that such restrictions and  conditions contained in definitive documents evidencing or governing any such other  Indebtedness are not materially less favorable to the interests of the Lenders than the  restrictions and conditions contained in the 2013 Note Indenture, as in effect on the  Restatement Effective Date, (iii) restrictions and conditions existing on the Restatement  Effective Date and identified on Schedule 6.05 and amendments, extensions and renewals  thereof (including any such extension or renewal arising as a result of an extension, renewal  or refinancing of any Indebtedness containing such restriction or condition), provided, in  each case, that the scope of any such restriction or condition shall not have been expanded  as a result thereof, (iv) customary restrictions and conditions contained in agreements  relating to the sale of a Subsidiary, or a line of business or a division, that are applicable  solely pending such sale, provided that such restrictions and conditions apply only to the  Subsidiary, or the line of business or a division, that is to be sold and such sale is permitted  hereunder, (v) restrictions and conditions contained in agreements evidencing or governing  Indebtedness of Subsidiaries that are not Subsidiary Guarantors permitted by Section 6.01,  provided that such prohibitions or restrictions apply only to Subsidiaries that are not  Subsidiary Guarantors issuing or incurring such Indebtedness and their subsidiaries or any  guarantor thereof, in each case, that are Subsidiaries that are not Subsidiary Guarantors,  (vi) restrictions and conditions imposed on a Subsidiary (and any of its subsidiaries) and  existing at the time it became a Subsidiary, if such restrictions and conditions were not  created in connection with or in anticipation of the transaction or series or transactions  pursuant to which such it became a Subsidiary and only to the extent applying to such  Subsidiary and its subsidiaries, and amendments, extensions and renewals thereof  (including any such extension or renewal arising as a result of an extension, renewal or  refinancing of any Indebtedness containing such prohibition or restriction), provided, in  each case, that the scope of any such prohibition or restriction shall not have been expanded  as a result thereof, (vii) in the case of any Subsidiary that is not a wholly owned Subsidiary  or the Capital Securities in any Person that is not a Subsidiary, restrictions and conditions  imposed by the organizational documents of such Subsidiary or such other Person or any  related joint venture, shareholders’ or similar agreement, provided, in each case, that such  restrictions and conditions apply only to such Subsidiary and to any Capital Securities in  such Subsidiary or to the Capital Securities in such other Person, as applicable,  (viii) restrictions and conditions under arrangements with any Governmental Authority  imposed on any Foreign Subsidiary in connection with government grants, financial aid,  subsidies, tax holidays or other similar benefits or economic incentives, provided that such    119      [[5866265v.11]]    restrictions and conditions apply only to such Foreign Subsidiary and its subsidiaries,  (ix) restrictions and conditions existing under or by reason of any applicable law or any  applicable rule, regulation, order, license, permit, grant or similar restriction, (x) in the case  of clause (a) above, restrictions and conditions contained in agreements evidencing or  governing Indebtedness or other obligations secured by Liens permitted by  Sections 6.02(b)(ii), 6.02(g), 6.02(h), 6.02(p), 6.02(q), 6.02(r), 6.02(s), 6.02(u) and  6.02(w), in each case, if such restrictions or conditions apply only to the assets subject to  such Liens, (xi) in the case of clause (a) above, customary provisions in leases and other  contracts restricting the assignment thereof and customary restrictions in respect of  intellectual property contained in licenses or sublicenses of, or other grants of rights to use  or exploit, such intellectual property, (xii) restrictions on cash or deposits or net worth  imposed by customers, suppliers or landlords under agreements entered into in the ordinary  course of business, (xiii) restrictions and conditions in any agreement or instrument  evidencing or governing any other Indebtedness of the Company or any Subsidiary,  provided that (A) in the good faith judgment the Company, such restrictions and conditions  are on customary market terms for Indebtedness of such type and such restrictions and  conditions would not reasonably be expected to impair in any material respect the ability  of the Company and the other Loan Parties to comply with their obligations under the Loan  Documents and (B) if such restrictions and conditions restrict Liens on all or substantially  all of the assets of the Company and Designated Subsidiaries, the applicable agreements  shall not restrict the Company and the Designated Subsidiaries from creating, incurring or  permitting to exist Liens upon any of their assets to secure any Obligations so long as the  aggregate principal amount of any Indebtedness so secured does not, at any time, exceed  the amount equal to the sum of the aggregate amount of the Commitments in effect at such  time (or, if the Revolving Commitments shall have terminated, the aggregate amount  thereof most recently in effect) and the aggregate principal amount of the Delayed Draw  Term Loans outstanding at such time and (xiv) in connection with any Securitization  Transaction, restrictions and conditions imposed on the Securitization Receivables subject  thereto, any Securitization Subsidiary, the Capital Securities in or assets of any  Securitization Subsidiary or any assets ancillary to any of the foregoing.  SECTION 6.06. Financial Covenants.    (a) Interest Coverage Ratio.  The Company shall not permit the Interest  Coverage Ratio for any Computation Period to be less than 3.00 to 1.00.  (b) Leverage Ratio.  The Company shall not permit the Leverage Ratio  as of the last day of any Computation Period to exceed 3.50 to 1.00; provided that in the  event that the Company or any Subsidiary shall complete any Material Acquisition in  which the cash consideration (including any repayment of existing Indebtedness of the  Persons so acquired) paid by it exceeds US$300,000,000, the Company may, by a notice  delivered to the Administrative Agent (which shall furnish a copy thereof to each Lender),  increase the maximum Leverage Ratio permitted under this Section to (i) 4.00 to 1.00 at  the end of the Fiscal Quarter during which such Material Acquisition is consummated and  at the end of each of the three Fiscal Quarters immediately following such Fiscal Quarter  and (ii) 3.75 to 1.00 at the end of each of the fourth and fifth full Fiscal Quarters after the  date such Material Acquisition is consummated.  





 






  120      [[5866265v.11]]    SECTION 6.07. Anti-Corruption Laws.  No Borrower will request any  Loan or Letter of Credit, and no Borrower will use, and each Borrower shall procure that  its subsidiaries shall not use, the proceeds of any Loan or Letter of Credit (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, or (c) in any manner that would  result in the violation of any Sanctions applicable to any party hereto.  ARTICLE VII    Events of Default  SECTION 7.01. Defaults.  If any of the following events (“Events of  Default”) shall occur:  (a) Non-Payment of the Loans, Etc.  Default in the payment when due  of the principal of any Loan, whether at the due date thereof or at a date fixed for  prepayment or otherwise, or any reimbursement obligation in respect of any LC  Disbursement; or default, and continuance thereof for five Business Days, in the payment  when due of any interest, fee or other amount (other than principal or any reimbursement  obligation in respect of an LC Disbursement) payable by the Company or any Borrowing  Subsidiary hereunder or by any Loan Party under any other Loan Document;  (b) Non-Payment or Default as to Other Indebtedness.  Any default or  failure to perform any term, provision or condition shall occur, or any other event shall  occur or condition exist, under the terms applicable to any Material Indebtedness and such  default, failure, event or condition shall (i) consist of the failure to make any payment  (whether of principal or interest and regardless of amount) in respect of such Material  Indebtedness when due, whether by acceleration or otherwise (but after giving effect to  any grace period applicable thereto), or (ii) accelerate the maturity of such Material  Indebtedness or permit (with or without the giving of notice, but after giving effect to any  grace period applicable thereto) the holder or holders thereof, or any trustee or agent for  such holder or holders (or, in the case of any Hedging Agreement, the applicable  counterparty), to cause such Material Indebtedness to become due and payable (or require  the Company or any Subsidiary to prepay, purchase, redeem or defease such Material  Indebtedness or, in the case of any Hedging Agreement, to cause the termination thereof)  prior to its expressed maturity; provided that that this paragraph (b) shall not apply to (i)  any redemption, repurchase, conversion or settlement in respect of Convertible  Indebtedness pursuant to its terms (other than any right to convert such Indebtedness into  cash that is triggered by an event of default, a change of control or a similar event, however  denominated), (ii) any secured Indebtedness that becomes due as a result of the voluntary  sale or transfer of, or any casualty or condemnation with respect to, assets securing such  Indebtedness, (iii) any prepayment, repurchase, redemption or defeasance of any  Acquisition Indebtedness if the related Acquisition is not consummated, (iv) any  Indebtedness that becomes due as a result of a voluntary prepayment, repurchase,  redemption or defeasance thereof, or any refinancing thereof, permitted under this    121      [[5866265v.11]]    Agreement or (v) in the case of any Hedging Agreement, termination events or equivalent  events pursuant to the terms of such Hedging Agreement not arising as a result of a default  by the Company or any Subsidiary thereunder;  (c) Non-Compliance with Loan Documents.  (i) Failure by any Loan  Party to comply with or to perform any covenant set forth in Section 5.02(a), 5.06 (as to  the existence of any Borrower) or Article VI or (ii) failure by any Loan Party to comply  with or to perform any other provision of this Agreement or any other Loan Document (and  not constituting an Event of Default under any other clause of this Section 7.01) and  continuance of such failure described in this clause (ii) for 45 days after the earlier of the  receipt by the Company of notice from the Administrative Agent and actual knowledge  thereof by a Senior Officer of the Company;  (d) Representations or Warranties.  Any representation or warranty  made or deemed made by or on behalf of any Loan Party herein or in any other Loan  Document, or in any certificate, financial statement, report, notice or other writing  furnished by or on behalf of any Loan Party to the Administrative Agent, any Lender or  any Issuing Bank in connection with any of the Loan Documents shall prove to be untrue  in any material respect;  (e) Pension Plans.  An ERISA Event occurs which has resulted or would  reasonably be expected to result in liability of the Company or any member of the ERISA  Group under Title IV of ERISA to a Pension Plan or the PBGC in an aggregate amount in  excess of US$200,000,000, or the Company or any member of the ERISA Group fails to  pay when due, after the expiration of any applicable grace period, any installment payment  with respect to its withdrawal liability under Section 4201 of ERISA under a  Multiemployer Plan, where the aggregate amount of unamortized withdrawal liability is in  excess of US$200,000,000;  (f) Judgments.  Final judgments which exceed an aggregate of  US$200,000,000 (other than any such judgment covered by insurance (other than under a  self-insurance program) provided by a financially sound insurer to the extent a claim  therefor has been made in writing and liability therefor has not been denied by the insurer)  shall be rendered against the Company or any of its Subsidiaries and shall not have been  paid, discharged or vacated or had execution thereof stayed pending appeal within 60 days  after entry or filing of such judgments;   (g) Invalidity of Loan Documents, Etc.  Any Loan Document shall  cease to be in full force and effect (other than in accordance with its terms); or any Loan  Party (or any Person by, through or on behalf of any Loan Party) shall contest in any  manner the validity, binding nature or enforceability of any Loan Document; or the Parent  Guarantee or any other Guarantee purported to be created under any Loan Document shall  cease to be in full force or effect (other than in accordance with its terms or, in the case of  any Guarantee provided by any Subsidiary Guarantor, as a result of the release thereof as  provided in Section 10.14) or any action shall be taken to discontinue or to assert the  invalidity, nonbinding nature or unenforceability thereof, or any Loan Party shall deny that  it has any further liability thereunder, or shall give notice to such effect;    122      [[5866265v.11]]    (h) Change of Control.  A Change of Control shall occur; or  (i) Bankruptcy, Insolvency, Etc.  Any Borrower or any Material  Subsidiary becomes insolvent or generally fails to pay, or admits in writing its inability or  refusal to pay, debts as they become due; or any Borrower or any Material Subsidiary  applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other  custodian for such Borrower or such Material Subsidiary or any property thereof, or makes  a general assignment for the benefit of creditors; or, in the absence of such application,  consent or acquiescence, a trustee, receiver or other custodian is appointed for any  Borrower or any Material Subsidiary or for a substantial part of the property of any thereof  and is not discharged within 60 days; or any bankruptcy, reorganization, debt arrangement,  or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or  liquidation proceeding (other than, in the case of any Material Subsidiary that is not a  Borrower, a dissolution or liquidation permitted by Section 6.04(a)(iv)), is commenced in  respect of any Borrower or any Material Subsidiary, and if such case or proceeding is not  commenced by such Borrower or such Material Subsidiary, it is consented to or acquiesced  in by such Borrower or such Material Subsidiary, or remains for 60 days undismissed; or  any Borrower or any Material Subsidiary takes any action to authorize, or in furtherance  of, any of the foregoing;  then, and in every such event (other than an event with respect to the Company described  in paragraph (i) of this Section), and at any time thereafter during the continuance of such  event, the Administrative Agent may, and at the request of the Required Lenders shall, by  notice to the Company, take any or all of the following actions, at the same or different  times: (A) terminate the Revolving Commitments and the Delayed Draw Term  Commitments, and thereupon the Revolving Commitments and/or the Delayed Draw Term  Commitments shall terminate immediately, (B) declare the Loans then outstanding to be  due and payable in whole (or in part (but ratably as among the Classes of Loans and the  Loans of each Class at the time outstanding), in which case any principal not so declared  to be due and payable may thereafter be declared to be due and payable), and thereupon  the principal of the Loans so declared to be due and payable, together with accrued interest  thereon and all fees and other obligations of the Company and each Borrowing Subsidiary  hereunder, shall become due and payable immediately, and (C) require the deposit of cash  collateral in respect of LC Exposure as provided in Section 2.20(n), in each case without  presentment, demand, protest or other notice of any kind, all of which are hereby waived  by the Company and each Borrowing Subsidiary to the extent permitted by applicable law;  and in the case of any event with respect to the Company described in paragraph (i) of this  Section, the Revolving Commitments and the Delayed Draw Term Commitments shall  automatically terminate, the principal of the Loans then outstanding, together with accrued  interest thereon and all fees and other obligations of the Company and each Borrowing  Subsidiary hereunder, shall immediately and automatically become due and payable and  the deposit of such cash collateral in respect of LC Exposure shall immediately and  automatically become due, in each case without presentment, demand, protest or other  notice of any kind, all of which are hereby waived by the Company and each Borrowing  Subsidiary to the extent permitted by applicable law.    123      [[5866265v.11]]    ARTICLE VIII    The Administrative Agent  Each of the Lenders and the Issuing Banks hereby irrevocably appoints the  entity named as Administrative Agent in the heading of this Agreement and its successors  to serve as Administrative Agent under this Agreement and the other Loan Documents,  and authorizes the Administrative Agent to take such actions and to exercise such powers  as are delegated to the Administrative Agent by the terms of the Loan Documents, together  with such actions and powers as are reasonably incidental thereto.  The Person serving as the Administrative Agent hereunder shall have the  same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender  or Issuing Bank and may exercise the same as though it were not the Administrative Agent,  and 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 Company or any Subsidiary or other Affiliate thereof as if  such Person were not the Administrative Agent hereunder and without any duty to account  therefor to the Lenders or the Issuing Banks.  The Administrative Agent shall not have any duties or obligations except  those expressly set forth in the Loan Documents with respect to the Administrative Agent,  and the Administrative Agent’s duties hereunder shall be administrative in nature.  Without  limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject  to any fiduciary or other implied duties, regardless of whether a Default has occurred and  is continuing (and it is understood and agreed that the use of the term “agent” herein or in  any other Loan Documents (or any other similar term) with reference to the Administrative  Agent is not intended to connote any fiduciary or other implied (or express) obligations  arising under agency doctrine of any applicable law, and that such term is used as a matter  of market custom and is intended to create or reflect only an administrative relationship  between contracting parties), (b) the Administrative Agent shall not have any duty to take  any discretionary action or to exercise any discretionary power, except discretionary rights  and powers expressly contemplated by the Loan Documents that the Administrative Agent  is required to exercise as directed in writing by the Required Lenders (or such other number  or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall  believe in good faith to be necessary, under the circumstances as provided in the Loan  Documents), provided that the Administrative Agent shall not be required to take any  action that, in its opinion, could expose the Administrative Agent to liability or be contrary  to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan  Documents, the Administrative Agent shall not have any duty to disclose, and the  Administrative Agent shall not be liable for the failure to disclose, any information relating  to the Company, any Subsidiary or any other Affiliate thereof that is communicated to or  obtained by the Person serving as the Administrative Agent or any of its Affiliates in any  capacity.  The Administrative Agent shall not be liable for any action taken or not taken by  it 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 Administrative Agent shall  believe in good faith to be necessary, under the circumstances as provided in the Loan  





 






  124      [[5866265v.11]]    Documents) or in the absence of its own gross negligence or willful misconduct (such  absence to be presumed unless otherwise determined by a court of competent jurisdiction  by a final and nonappealable judgment).  The Administrative Agent shall be deemed not to  have knowledge of any Default unless and until written notice thereof (stating that it is a  “notice of default”) is given to the Administrative Agent by the Company, any Lender or  any Issuing Bank, and the Administrative 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 any Loan Document, (ii) the contents of any certificate, report or other  document delivered thereunder or in connection therewith, including with respect to the  existence and the aggregate amount of any Designated Cash Management Obligations or  Designated Hedge Obligations at any time, (iii) the performance or observance of any of  the covenants, agreements or other terms or conditions set forth in any Loan Document or  the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness  or genuineness of any Loan Document or any other agreement, instrument or document, or  (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan  Document, other than to confirm receipt of items expressly required to be delivered to the  Administrative Agent or satisfaction of any condition that expressly refers to the matters  described therein being acceptable or satisfactory to the Administrative Agent.  The  Administrative Agent neither warrants nor accepts responsibility for, and shall not have  any liability with respect to, the administration, submission or any other matter related to  any interest rate used in this Agreement (or any component thereof) or with respect to any  comparable or successor rate thereto, or replacement rate therefor (except such as shall  result from the gross negligence or willful misconduct of the Administrative Agent as  determined by a court of competent jurisdiction in a final and nonappealable judgment).  The Administrative Agent shall be deemed to have no knowledge of any Lender being a  Restricted Lender unless and until the Administrative Agent shall have received the written  notice from such Lender referred to in Section 1.09, and then only as and to the extent  specified in such notice, and any determination of whether the Required Lenders or any  other requisite Lenders shall have provided a consent or direction in connection with this  Agreement or any other Loan Document shall not be affected by any delivery to the  Administrative Agent of any such written notice subsequent to such consent or direction  being provided by the Required Lenders or other requisite Lenders.  The Administrative Agent shall be entitled to rely, 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 (whether or not such Person in fact meets the  requirements set forth in the Loan Documents for being the signatory, sender or  authenticator thereof).  The Administrative Agent also shall be entitled to rely, and shall  not incur any liability for relying, upon any statement made to it orally or by telephone and  believed by it to be made by the proper Person (whether or not such Person in fact meets  the requirements set forth in the Loan Documents for being the signatory, sender or  authenticator thereof), and may act upon any such statement prior to receipt of written  confirmation thereof.  In determining compliance with any condition hereunder to the  making of a Loan or the issuance, amendment or extension of any Letter of Credit that by  its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the    125      [[5866265v.11]]    Administrative Agent may presume that such condition is satisfactory to such Lender or  such Issuing Bank, as applicable, unless the Administrative Agent shall have received  notice to the contrary from such Lender or such Issuing Bank, as applicable, prior to the  making of such Loan or such event as to such Letter of Credit.  The Administrative Agent  may consult with legal counsel (who may be counsel for the Company), independent  accountants and other experts selected by it with reasonable care, and shall not be liable  for any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.   For all purposes of this Agreement and the other Loan Documents:  (a) If the Administrative Agent notifies a Lender, an Issuing Bank, a  Bank Product Provider or any Person that has received funds on behalf of a Lender, an  Issuing Bank or a Bank Product Provider (any such Lender, Issuing Bank, Bank Product  Provider or other recipient, a “Payment Recipient”) that the Administrative Agent has  determined in its sole discretion (whether or not after receipt of any notice under  immediately succeeding paragraph (b)) that any funds received by such Payment Recipient  from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or  otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not  known to such Payment Recipient) (any such funds, whether received as a payment,  prepayment or repayment of principal, interest, fees, distribution or otherwise, individually  and collectively, an “Erroneous Payment”) and demands the return of such Erroneous  Payment (or a portion thereof), such Erroneous Payment shall at all times remain the  property of the Administrative Agent and shall be segregated by the Payment Recipient  and held in trust for the benefit of the Administrative Agent, and such Lender, Bank  Product Provider or Issuing Bank shall (or, with respect to any Payment Recipient that  received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in  no event later than two Business Days thereafter, return to the Administrative Agent the  amount of any such Erroneous Payment (or portion thereof) as to which such a demand  was made, in same day funds (in the currency so received), together with interest thereon  in respect of each day from and including the date such Erroneous Payment (or portion  thereof) was received by such Payment Recipient to the date such amount is repaid to the  Administrative Agent in same day funds at the greater of the Overnight Bank Funding Rate  and a rate determined by the Administrative Agent in accordance with banking industry  rules on interbank compensation from time to time in effect. A notice of the Administrative  Agent to any Payment Recipient under this paragraph (a) shall be conclusive, absent  manifest error.  (b) Without limiting immediately preceding paragraph (a), each  Payment Recipient hereby further agrees that if it receives a payment, prepayment or  repayment (whether received as a payment, prepayment or repayment of principal, interest,  fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates)  (x) that is in a different amount than, or on a different date from, that specified in a notice  of payment, prepayment or repayment sent by the Administrative Agent (or any of its  Affiliates) with respect to such payment, prepayment or repayment, (y) that was not  preceded or accompanied by a notice of payment, prepayment or repayment sent by the  Administrative Agent (or any of its Affiliates), or (z) that such Lender, such Bank Product    126      [[5866265v.11]]    Provider or such Issuing Bank or other such recipient, otherwise becomes aware was  transmitted, or received, in error or by mistake (in whole or in part), in each case:  (i) (A) in the case of immediately preceding clause (x) or (y), an error  shall be presumed to have been made (absent written confirmation from the  Administrative Agent to the contrary) or (B) an error has been made (in the case of  immediately preceding clause (z)), in each case, with respect to such payment,  prepayment or repayment; and  (ii) such Lender, such Bank Product Provider or such Issuing Bank shall  (or, with respect to any Payment Recipient that received such funds on its behalf,  shall cause such Payment Recipient to) promptly (and, in all events, within one  Business Day of its knowledge of such error) notify the Administrative Agent of its  receipt of such payment, prepayment or repayment, the details thereof (in  reasonable detail) and that it is so notifying the Administrative Agent pursuant to  this paragraph (b).  (c) Each Lender, each Bank Product Provider and each Issuing Bank  hereby authorizes the Administrative Agent to set off, net and apply any and all amounts  at any time owing to such Lender, such Bank Product Provider or such Issuing Bank under  any Loan Document, or otherwise payable or distributable by the Administrative Agent to  such Lender, such Bank Product Provider or such Issuing Bank from any source, against  any amount due to the Administrative Agent under paragraph (a) above or under the  indemnification provisions of this Agreement.  (d) In the event that an Erroneous Payment (or portion thereof) is not  recovered by the Administrative Agent for any reason, after demand therefor by the  Administrative Agent in accordance with paragraph (a) above, from any Lender that has  received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient  that received such Erroneous Payment (or portion thereof) on its behalf)  (such unrecovered  amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s  notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its  Loans (but not its Commitments) of the relevant Class with respect to which such  Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount  equal to the Erroneous Payment Return Deficiency (or such lesser amount as the  Administrative Agent may specify) (such assignment of the Loans (but not Commitments)  of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency  Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be  waived by the Administrative Agent in such instance), and is hereby (together with the  Company) deemed to execute and deliver an Assignment and Assumption with respect to  such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any notes  evidencing such Loans to the Company or the Administrative Agent, (ii) the  Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous  Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative  Agent as the assignee Lender shall become a Lender hereunder with respect to such  Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a  Lender hereunder solely with respect to such Erroneous Payment Deficiency Assignment,    127      [[5866265v.11]]    excluding, for the avoidance of doubt, its obligations under the indemnification provisions  of this Agreement and its applicable Commitments, which shall survive as to such  assigning Lender, and (iv) the Administrative Agent may reflect in the Register its  ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment.  The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an  Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale,  the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced  by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative  Agent shall retain all other rights, remedies and claims against such Lender (and/or against  any Payment Recipient that receives funds on its behalf).  For the avoidance of doubt, no  Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender  and such Commitments shall remain available in accordance with the terms of this  Agreement.  In addition, each party hereto agrees that, except to the extent that the  Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an  Erroneous Payment Deficiency Assignment, and irrespective of whether the  Administrative Agent may be equitably subrogated, the Administrative Agent shall be  contractually subrogated to all the rights and interests of the applicable Lender under the  Loan Documents with respect to each Erroneous Payment Return Deficiency.  (e) The parties hereto agree that an Erroneous Payment shall not pay,  prepay, repay, discharge or otherwise satisfy any Obligations owed by the Company or any  other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely  with respect to the amount of such Erroneous Payment that is, comprised of funds received  by the Administrative Agent from the Company or any other Loan Party for the purpose of  making any payment hereunder that became subject to such Erroneous Payment.   (f) To the extent permitted by applicable law, no Payment Recipient  shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed  to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect  to any demand, claim or counterclaim by the Administrative Agent for the return of any  Erroneous Payment received, including waiver of any defense based on “discharge for  value” or any similar doctrine.  (g) Each party’s obligations, agreements and waivers under paragraphs  (a) through (f) above shall survive the resignation or replacement of the Administrative  Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge  of all Obligations (or any portion thereof) under any Loan Document.  The Administrative Agent may perform any of and all its duties and exercise  its rights and powers hereunder or under any other Loan Document by or through any one  or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and  any such sub-agent may perform any of and all their duties and exercise their rights and  powers through their respective Related Parties.  The exculpatory provisions of this Article  shall apply to any such sub-agent and to the Related Parties of the Administrative Agent  and any such sub-agent, and shall apply to their respective activities in connection with the  syndication of the credit facilities provided for herein as well as activities as the  Administrative Agent.  The Administrative Agent shall not be responsible for the  





 






  128      [[5866265v.11]]    negligence or misconduct of any of its sub-agents except to the extent that a court of  competent jurisdiction determines in a final and nonappealable judgment that the  Administrative Agent acted with bad faith, gross negligence or willful misconduct in the  selection of such sub-agents.  Subject to the terms of this paragraph, the Administrative Agent may resign  at any time from its capacity as such.  In connection with such resignation, the  Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing  Banks and the Company.  Upon receipt of any such notice of resignation, the Required  Lenders shall have the right, subject to the consent of the Company (not to be unreasonably  withheld, conditioned or delayed) so long as no Event of Default under Section 7.01(a) or  7.01(i) shall have occurred and be continuing, to appoint a successor.  If no successor shall  have been so appointed by the Required Lenders and shall have accepted such appointment  within 30 days after the retiring Administrative Agent gives notice of its intent to resign,  then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing  Banks, appoint a successor Administrative Agent, which shall be a bank with an office in  New York, New York, or an Affiliate of any such bank.  If the Person serving as the  Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition  thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in  writing to the Company and such Person remove such Person as the Administrative Agent  and, subject to the consent of the Company (not to be unreasonably withheld, conditioned  or delayed) so long as no Event of Default under Section 7.01(a) or 7.01(i) shall have  occurred and be continuing, appoint a successor. Upon the acceptance of its appointment  as the Administrative Agent hereunder by a successor, such successor shall succeed to and  become vested with all the rights, powers, privileges and duties of the retiring or removed  Administrative Agent, and the retiring or removed Administrative Agent shall be  discharged from its duties and obligations hereunder and under the other Loan Documents.   The fees payable by the Company to a successor Administrative Agent shall be the same  as those payable to its predecessor unless otherwise agreed by the Company and such  successor.  Notwithstanding the foregoing, in the event no successor Administrative Agent  shall have been so appointed and shall have accepted such appointment within 30 days  after the retiring Administrative Agent gives notice of its intent to resign, the retiring  Administrative Agent may give notice of the effectiveness of its resignation to the Lenders,  the Issuing Banks and the Company, whereupon, on the date of effectiveness of such  resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged  from its duties and obligations hereunder and under the other Loan Documents, and (b) the  Required Lenders shall succeed to and become vested with all the rights, powers, privileges  and duties of the retiring Administrative Agent, provided that (i) all payments required to  be made hereunder or under any other Loan Document to the retiring Administrative Agent  for the account of any Person other than the retiring Administrative Agent shall be made  directly to such Person, (ii) all notices and other communications required or contemplated  to be given or made to the retiring Administrative Agent shall also directly be given or  made to each Lender and each Issuing Bank and (iii) the retiring Administrative Agent may  continue to hold, on behalf of the Revolving Lenders and the Issuing Banks, any cash  collateral received by it pursuant to Section 2.20(n).  Following the effectiveness of the  Administrative Agent’s resignation or removal from its capacity as such, the provisions of  this Article and Section 10.03, as well as any exculpatory, reimbursement and    129      [[5866265v.11]]    indemnification provisions set forth in any other Loan Document, shall continue in effect  for the benefit of such retiring or removed Administrative 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 it was acting as the Administrative Agent or while holding cash collateral as  contemplated by the immediately preceding sentence.  Each Lender and Issuing Bank acknowledges that it has, independently and  without reliance upon the Administrative Agent, the Arrangers or any Lender or Issuing  Bank, or any of the Related Parties of any of the foregoing, 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 and Issuing Bank also acknowledges that it will,  independently and without reliance upon the Administrative Agent, the Arrangers or any  Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, 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.    Each Lender, by delivering its signature page to this Agreement, or  delivering its signature page to an Assignment and Assumption or any other document  pursuant to which it shall become a Lender hereunder, shall be deemed to have  acknowledged receipt of, and consented to and approved, each Loan Document and each  other document required to be delivered to, or be approved by or satisfactory to, the  Administrative Agent or the Lenders on the Restatement Effective Date or any Delayed  Draw Term Funding Date.  In case of the pendency of any proceeding with respect to any Loan Party  under any United States (Federal or state) or foreign bankruptcy, insolvency, receivership,  winding-up or similar law now or hereafter in effect, the Administrative 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 Administrative Agent shall  have made any demand on the Company or any Borrowing Subsidiary) 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, Letters of Credit 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  Administrative Agent (including any claim under Sections 2.12, 2.13, 2.14, 10.03  and 10.18) 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 proceeding is hereby authorized by each Lender (and shall be deemed,  by its acceptance of the benefits of the Guarantees of the Obligations provided under the    130      [[5866265v.11]]    Loan Documents, to have been authorized by each other holder of any Obligations) to make  such payments to the Administrative Agent and, in the event that the Administrative Agent  shall consent to the making of such payments directly to the Lenders or other holders of  any Obligations, to pay to the Administrative Agent any amount due to it, in its capacity  as the Administrative Agent, under the Loan Documents (including under Section 10.03).  Except with respect to the exercise of setoff rights of any Lender in  accordance with Section 10.08 (or any similar provision in any other Loan Document) or  with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no  holder of any Obligations (other than the Administrative Agent) shall have any right  individually to enforce any Guarantee of the Obligations provided under the Loan  Documents, it being understood and agreed that all powers, rights and remedies under the  Loan Documents may be exercised solely by the Administrative Agent on behalf of the  holders of the Obligations in accordance with the terms thereof.  In furtherance of the  foregoing and not in limitation thereof, no agreement relating to any Designated Cash  Management Obligations or Designated Hedge Obligations will create (or be deemed to  create) in favor of any holder of Obligations that is a party thereto any rights in connection  with the management or release of the obligations of any Loan Party under any Loan  Document.  Each Lender acknowledges and agrees that neither such Lender, nor any of  its Affiliates, participants or assignees, may rely on the Administrative Agent to carry out  such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or  other obligations required or imposed under or pursuant to the USA 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-Corruption Laws,  including any programs involving any of the following items relating to or in connection  with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the  transactions hereunder or contemplated hereby: (a) any identity verification procedures,  (b) any recordkeeping, (c) comparisons with government lists, (d) customer notices or (e)  other procedures required under the CIP Regulations or such other laws.  Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,  the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of any Loan Party, that at least one of the following  is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29  CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans  in connection with the Loans or the Commitments, (ii) the transaction exemption set forth  in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions  determined by independent qualified professional asset managers), PTE 95-60 (a class  exemption for certain transactions involving insurance company general accounts), PTE  90-1 (a class exemption for certain transactions involving insurance company pooled  separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank  collective investment funds) or PTE 96-23 (a class exemption for certain transactions  determined by in-house asset managers), is applicable with respect to such Lender’s    131      [[5866265v.11]]    entrance into, participation in, administration of and performance of the Loans, the  Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed  by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84- 14), (B) such Qualified Professional Asset Manager made the investment decision on  behalf of such Lender to enter into, participate in, administer and perform the Loans, the  Commitments and this Agreement, (C) the entrance into, participation in, administration  of and performance of the Loans, the Commitments and this Agreement satisfies the  requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best  knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are  satisfied with respect to such Lender’s entrance into, participation in, administration of and  performance of the Loans, the Commitments and this Agreement or (iv) such other  representation, warranty and covenant as may be agreed in writing between the  Administrative Agent and such Lender.  In addition, unless clause (i) of the immediately preceding paragraph is true  with respect to a Lender or such Lender has provided another representation, warranty and  covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender  further (a) represents and warrants, as of the date such Person became a Lender party  hereto, to and (b) covenants, from the date such Person became a Lender party hereto to  the date such Person ceases being a Lender party hereto, for the benefit of the  Administrative Agent and the Arrangers and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of any Loan Party, that none of the Administrative  Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to  the assets of such Lender involved in such Lender’s entrance not, participation in,  administration of and performance of the Loans, the Commitments and this Agreement  (including in connection with the reservation or exercise of any rights by the  Administrative Agent under this Agreement, any Loan Document or any documents related  hereto or thereto).  Notwithstanding anything herein to the contrary, none of the Arrangers, the  Syndication Agents or the Documentation Agents shall have any duties or obligations  under this Agreement or any other Loan Document (except in its capacity, as applicable,  as the Administrative Agent, a Lender or an Issuing Bank), but all such Persons shall have  the benefit of the indemnities and exculpatory provisions provided for hereunder or  thereunder.  To the extent required by any applicable law, the Administrative Agent may  withhold from any payment to any Lender an amount equivalent to any applicable  withholding Tax. Without limiting or expanding the provisions of Section 2.14, each  Lender shall indemnify and hold harmless the Administrative Agent against, within  10 days after written demand therefor, any and all Taxes and any and all related losses,  claims, liabilities and expenses (including fees, charges and disbursements of any counsel  for the Administrative Agent) incurred by or asserted against the Administrative Agent by  the IRS or any other Governmental Authority as a result of the failure of the Administrative  Agent to properly withhold Tax from amounts paid to or for the account of any Lender for  any reason (including, without limitation, because the appropriate form was not delivered  or not properly executed, or because such Lender failed to notify the Administrative Agent  





 






  132      [[5866265v.11]]    of a change in circumstance that rendered the exemption from, or reduction of withholding  Tax ineffective). A certificate as to the amount of such payment or liability delivered to  any Lender by the Administrative Agent shall be conclusive absent manifest error. Each  Lender hereby authorizes the Administrative 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 the Administrative Agent under this paragraph. For the avoidance  of doubt, a “Lender” shall, for purposes of this paragraph, include any Issuing Bank. The  agreements in this paragraph shall survive the resignation and/or replacement of the  Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the  termination of the Commitments and the repayment, satisfaction or discharge of all other  Obligations.  The provisions of this Article are solely for the benefit of the Administrative  Agent and the Lenders and, except solely to the extent of the Company’s express rights to  consent pursuant to and subject to the conditions set forth in this Article, none of the Loan  Parties shall have any rights as a third party beneficiary of any such provisions.   ARTICLE IX    Parent Guarantee  SECTION 9.01. Parent Guarantee.  For valuable consideration, the  receipt of which is hereby acknowledged, and to induce the Revolving Lenders and the  Swingline Lender to make Revolving Loans or Swingline Loans, as the case may be, to  each Borrowing Subsidiary and the Issuing Banks to issue, amend or extend any Letters of  Credit for the account of any Borrowing Subsidiary (and the Revolving Lenders to  participate in such Letters of Credit as set forth herein), the Company hereby absolutely  and unconditionally guarantees prompt payment when due, whether at stated maturity,  upon acceleration or otherwise, and at all times thereafter, of any and all existing and future  Loan Document Obligations of each Borrowing Subsidiary, whether for principal, interest  (including interest accruing after the commencement of any bankruptcy, insolvency or  similar proceeding, whether or not allowed as a claim in such proceeding), fees, expenses  or otherwise (collectively, the “Guaranteed Borrowing Subsidiary Obligations”, and each  such Borrowing Subsidiary being an “Obligor” and collectively, the “Obligors”).  SECTION 9.02. Waivers.  The Company waives, to the extent permitted  by applicable law, notice of the acceptance of this Parent Guarantee and of the extension  or continuation of the Guaranteed Borrowing Subsidiary Obligations or any part thereof.   The Company further waives, to the extent permitted by applicable law, presentment,  protest, notice of notices delivered or demand made on any Obligor or action or  delinquency in respect of the Guaranteed Borrowing Subsidiary Obligations or any part  thereof, including any right to require the Administrative Agent, the Lenders, the Issuing  Banks or any other holder of any Guaranteed Borrowing Subsidiary Obligations to sue any  Obligor, any other guarantor or any other Person obligated with respect to the Guaranteed  Borrowing Subsidiary Obligations or any part thereof.  The Administrative Agent, the  Lenders, the Issuing Banks and the other holders of any Guaranteed Borrowing Subsidiary    133      [[5866265v.11]]    Obligations shall have no obligation to disclose or discuss with the Company their  assessments of the financial condition of the Obligors.  SECTION 9.03. Guarantee Absolute.  This Parent Guarantee is a  guarantee of payment and not of collection, is intended to have the same effect as if the  Company were a primary obligor of the Guaranteed Borrowing Subsidiary Obligations and  not merely a surety, and the validity and enforceability of this Parent Guarantee shall be  absolute and unconditional irrespective of, and shall not be impaired or affected by any of  the following: (a) any extension, modification or renewal of, or indulgence with respect to,  or substitutions for, the Guaranteed Borrowing Subsidiary Obligations or any part thereof  or any agreement relating thereto at any time, (b) any failure or omission to enforce any  right, power or remedy with respect to the Guaranteed Borrowing Subsidiary Obligations  or any part thereof or any agreement relating thereto, (c) any waiver of any right, power or  remedy with respect to the Guaranteed Borrowing Subsidiary Obligations or any part  thereof or any agreement relating thereto, (d) any release, surrender, compromise,  settlement, waiver, subordination or modification, with or without consideration, of any  other guarantees with respect to the Guaranteed Borrowing Subsidiary Obligations or any  part thereof, or any other obligation of any Person with respect to the Guaranteed  Borrowing Subsidiary Obligations or any part thereof, (e) the enforceability or validity of  the Guaranteed Borrowing Subsidiary Obligations or any part thereof or the genuineness,  enforceability or validity of any agreement relating thereto, (f) the application of payments  received from any source to the payment of obligations other than the Guaranteed  Borrowing Subsidiary Obligations, any part thereof or amounts which are not covered by  this Parent Guarantee even though the Administrative Agent, the Lenders and the Issuing  Banks might lawfully have elected to apply such payments to any part or all of the  Guaranteed Borrowing Subsidiary Obligations or to amounts which are not covered by this  Parent Guarantee, (g) any change in the ownership of any Obligor or the insolvency,  bankruptcy or any other change in the legal status of any Obligor, (h) the change in or the  imposition of any law, decree, regulation or other governmental act which does or might  impair, delay or in any way affect the validity, enforceability or the payment when due of  the Guaranteed Borrowing Subsidiary Obligations, (i) the failure of the Company or any  Obligor to maintain in full force, validity or effect or to obtain or renew when required all  governmental and other approvals, licenses or consents required in connection with the  Guaranteed Borrowing Subsidiary Obligations or this Parent Guarantee, or to take any  other action required in connection with the performance of all obligations pursuant to the  Guaranteed Borrowing Subsidiary Obligations or this Parent Guarantee, (j) the existence  of any claim, setoff or other rights which the Company may have at any time against any  Obligor, or any other Person in connection herewith or an unrelated transaction, (k) the  Administrative Agent’s, any Lender’s or any Issuing Bank’s election, in any case or  proceeding instituted under chapter 11 of the United States Bankruptcy Code, of the  application of section 1111(b)(2) of the United States Bankruptcy Code, (l) any borrowing,  use of cash collateral, or grant of a security interest by the Company, as debtor in  possession, under section 363 or 364 of the United States Bankruptcy Code, (m) the  disallowance of all or any portion any Person’s claims for repayment of the Guaranteed  Borrowing Subsidiary Obligations under section 502 or 506 of the United States  Bankruptcy Code, or (n) any other circumstances, whether or not similar to any of the  foregoing, which could constitute a defense to a guarantor, in each case, whether or not the    134      [[5866265v.11]]    Company shall have had notice or knowledge of any act or omission referred to in the  foregoing clauses (a) through (n) of this Section.  It is agreed that the Company’s liability  hereunder is several and independent of any other guarantees or other obligations at any  time in effect with respect to the Guaranteed Borrowing Subsidiary Obligations or any part  thereof and that the Company’s liability hereunder may be enforced regardless of the  existence, validity, enforcement or non-enforcement of any such other guarantees or other  obligations or any provision of any applicable law or regulation purporting to prohibit  payment by any Obligor of the Guaranteed Borrowing Subsidiary Obligations in the  manner agreed upon between the Obligor and the Administrative Agent, the Lenders, the  Issuing Banks and other holders of any Guaranteed Borrowing Subsidiary Obligations.  SECTION 9.04. Acceleration.  The Company agrees that, as between the  Company on the one hand and the Lenders, the Issuing Banks, the Administrative Agent  and the other holders of Guaranteed Borrowing Subsidiary Obligations, on the other hand,  the obligations of each Obligor guaranteed under this Article IX may be declared to be  forthwith due and payable, or may be deemed automatically to have been accelerated, as  provided in Section 7.01 for purposes of this Article IX, notwithstanding any stay,  injunction or other prohibition (whether in a bankruptcy proceeding affecting such Obligor  or otherwise) preventing such declaration as against such Obligor and that, in the event of  such declaration or automatic acceleration, such obligations (whether or not due and  payable by such Obligor) shall forthwith become due and payable by the Company for  purposes of this Article IX.  SECTION 9.05. Marshaling; Reinstatement.  None of the Lenders, the  Issuing Banks, the Administrative Agent or any other holder of Guaranteed Borrowing  Subsidiary Obligations, or any Person acting for or on behalf of any of the foregoing, shall  have any obligation to marshal any assets in favor of the Company or against or in payment  of any or all of the Guaranteed Borrowing Subsidiary Obligations.  If the Company or any  Obligor makes a payment or payments to any Lender, any Issuing Bank, the Administrative  Agent or any other holder of any Guaranteed Borrowing Subsidiary Obligation, which  payment or payments or any part thereof are subsequently invalidated, declared to be  fraudulent or preferential, set aside and/or required to be repaid to such Borrower, the  Company or any other Person, or their respective estates, trustees, receivers or any other  party, including, without limitation, the Company, under any bankruptcy law, state or  federal law, common law or equitable cause, then, to the extent of such payment or  repayment, the part of the Guaranteed Borrowing Subsidiary Obligations which has been  paid, reduced or satisfied by such amount shall be reinstated and continued in full force  and effect as of the time immediately preceding such initial payment, reduction or  satisfaction.  SECTION 9.06. Subrogation.  Until the irrevocable payment in full in  cash of the Loan Document Obligations (other than contingent obligations for  indemnification, expense reimbursement, tax gross-up or yield protection as to which no  claim has been made), the termination of all commitments which could give rise to any  Guaranteed Borrowing Subsidiary Obligation and no Letter of Credit shall be outstanding,  the Company shall not exercise any right of subrogation with respect to the Guaranteed  Borrowing Subsidiary Obligations, and hereby waives, to the extent permitted by    135      [[5866265v.11]]    applicable law, any right to enforce any remedy which the Administrative Agent, the  Lenders, the Issuing Banks or any other holder of any Guaranteed Borrowing Subsidiary  Obligations now has or may hereafter have against the Company, any endorser or any other  guarantor of all or any part of the Guaranteed Borrowing Subsidiary Obligations, and the  Company hereby waives, to the extent permitted by applicable law, any other liability of  any Obligor to the Administrative Agent, the Lenders, the Issuing Banks and/or any other  holder of any Guaranteed Borrowing Subsidiary Obligations.  SECTION 9.07. Termination Date.  Subject to Section 9.05, this Parent  Guarantee shall continue in effect until the later of (a) the Revolving Maturity Date and  (b) the date on which this Agreement has otherwise expired or been terminated in  accordance with its terms and all of the Guaranteed Borrowing Subsidiary Obligations have  been paid in full in cash (other than (x) Designated Cash Management Obligations and  Designated Hedge Obligations and (y) contingent obligations for indemnification, expense  reimbursement, tax gross-up or yield protection as to which no claim has been made, it  being understood, however, that this Parent Guarantee shall remain in effect as to such  obligations if an Event of Default shall have occurred and the other Guaranteed Borrowing  Subsidiary Obligations shall have been discharged through an exercise of remedies).  ARTICLE X    Miscellaneous  SECTION 10.01. Notices.  (a) Except in the case of notices and other  communications expressly permitted to be given by telephone and subject to paragraph (b)  of this Section, 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 email, as follows:  (i) if to the Company or any Borrowing Subsidiary, to (or to it in care  of) Westinghouse Air Brake Technologies Corporation, 1001 Air Brake Avenue,  Wilmerding, PA 15148, Attention of James Kalinovich (Email:  james.kalinovich@Wabtec.com), with a copy to the attention of David DeNinno  (Email: ddeninno@wabtec.com);  (ii) if to the Administrative Agent, to PNC Bank, National Association,  The PNC Financial Services Group, First Side Center, 500 First Avenue,  Pittsburgh, PA 15219, Attention of Cheryl Thon (Email:  cheryl.thon@pncbank.com);  (iii) if to the Swingline Lender, to PNC Bank, National Association, The  PNC Financial Services Group, First Side Center, 500 First Avenue, Pittsburgh, PA  15219, Attention of Cheryl Thon (Email: cheryl.thon@pncbank.com);  (iv) if to any Issuing Bank, to it at its address (or email address) most  recently specified by it in a notice delivered to the Administrative Agent and the  Company (or, in the absence of any such notice, to the address (or email address)  





 






  136      [[5866265v.11]]    set forth in the Administrative Questionnaire of the Lender that is serving as such  Issuing Bank or is an Affiliate thereof); and  (v) if to any Lender, to it at its address (or email address) set forth 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; and notices delivered  through email or other electronic communications to the extent provided in paragraph (b)  of this Section shall be effective as provided in such paragraph.  (b) Notices and other communications to the Administrative Agent, the  Lenders and Issuing Banks hereunder may be delivered or furnished, in addition to email,  by other electronic communications (including the Platform) pursuant to procedures  approved by the Administrative Agent; provided that the foregoing shall not apply to  notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as  applicable, has notified the Administrative Agent that it is incapable of receiving notices  under such Article by such electronic communication.  Any notices or other  communications to the Administrative Agent, the Company or any Borrowing Subsidiary  may be delivered or furnished, in addition to email, by other electronic communications  pursuant to procedures approved in advance by it; provided that approval of such  procedures may be limited or rescinded by such Person by notice to each other such Person.   Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgment from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgment);  provided that 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; and (ii) notices or  communications posted to a Platform or intranet website shall be deemed received upon  the deemed receipt by the intended recipient at its e-mail address as described in the  foregoing clause (i) of notification that such notice or communication is available and  identifying the website address therefor.  (c) Any party hereto may change its address or email address for notices  and other communications hereunder by notice to the other parties hereto (or, in the case  of any change by a Lender, by notice to the Company and the Administrative Agent).  (d) The Administrative Agent may, but shall not be obligated to, make  any Communication by posting such Communication on Debt Domain, IntraLinks,  SyndTrak or a similar electronic transmission system (the “Platform”).  The Platform is  provided “as is” and “as available”.  Neither the Administrative Agent nor any of its  Related Parties warrants, or shall be deemed to warrant, the adequacy of the Platform, and  the Administrative Agent expressly disclaims liability for errors or omissions in the  Communications.  No warranty of any kind, express, implied or statutory, including any  warranty of merchantability, fitness for a particular purpose, non-infringement of third- party rights or freedom from viruses or other code defects, is made, or shall be deemed to    137      [[5866265v.11]]    be made, by the Administrative Agent or any of its Related Parties in connection with the  Communications or the Platform.  In no event shall the Administrative Agent or any of its  Related Parties have any liability to any Loan Party, any Lender, any Issuing Bank or any  other Person for damages of any kind (whether in tort, contract or otherwise), arising out  of any Loan Party’s or the Administrative Agent’s transmission of Communications  through the Platform except, in the case of direct damages of any Loan Party (but not any  indirect, special, incidental or consequential damages), to the extent arising from the  Administrative Agent’s or such Related Party’s gross negligence or willful misconduct, as  determined by a court of competent jurisdiction in a final and nonappealable judgment.   The Administrative Agent is not responsible for approving or vetting the representatives or  contacts of any Lender that are added to the Platform.  SECTION 10.02. Waivers; Amendments.  (a) No failure or delay by the  Administrative Agent, any Issuing Bank or any Lender in exercising any right or power  hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall  any single or partial exercise of any such right or power, or any abandonment or  discontinuance of steps to enforce such a right or power, preclude any other or further  exercise thereof or the exercise of any other right or power.  The rights and remedies of the  Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other  Loan Documents are cumulative and are not exclusive of any rights or remedies that they  would otherwise have.  No waiver of any provision of any Loan Document or consent to  any departure by any Loan Party therefrom shall in any event be effective unless the same  shall be permitted by paragraph (b) or (c) of this Section, and then such waiver or consent  shall be effective only in the specific instance and for the specific purpose for which given.   Without limiting the generality of the foregoing, the execution and delivery of this  Agreement and the making of the Loans or issuance of a Letter of Credit shall not be  construed as a waiver of any Default, regardless of whether the Administrative Agent, any  Lender, any Issuing Bank or any Affiliate of any of the foregoing may have had notice or  knowledge of such Default at the time.  (b) Except as provided in paragraph (c) of this Section, none of this  Agreement, any other Loan Document or any provision hereof or thereof may be waived,  amended or modified except, in the case of this Agreement, pursuant to an agreement or  agreements in writing entered into by the Company, the Administrative Agent and the  Required Lenders and, in the case of any other Loan Document, pursuant to an agreement  or agreements in writing entered into by the Administrative Agent and the Loan Parties  that are parties thereto (or, in the case of any Borrowing Subsidiary, by the Company on  its behalf), in each case with the consent of the Required Lenders; provided that no such  agreement shall (i) (A) waive any condition set forth in Section 4.02 in respect of any  extension of credit under the Delayed Draw Term Facility without the written consent of  the Majority in Interest of the Delayed Draw Term Lenders, (B) waive any condition set  forth in Section 4.02 in respect of any extension of credit under the Revolving Facility  without the written consent of the Majority in Interest of the Revolving Lenders or  (C) waive any condition set forth in Section 4.03 without the written consent of the  Majority in Interest of the Revolving Lenders (it being understood and agreed, in each case,  that any amendment or waiver of, or any consent with respect to, any provision of this  Agreement (other than any waiver expressly relating to Section 4.02 or 4.03, as the case    138      [[5866265v.11]]    may be) or any other Loan Document, including any amendment of any affirmative or  negative covenant set forth herein or in any other Loan Document or any waiver of a  Default or an Event of Default, shall not be deemed to be a waiver of a condition set forth  in Section 4.02 or 4.03), (ii) increase the Commitment of any Lender without the written  consent of such Lender, (iii) reduce the principal amount of any Loan or LC Disbursement  or reduce the rate of interest thereon or reduce any fees payable hereunder (other than as a  result of any change in the definition, or in any components thereof, of the term “Leverage  Ratio”), without the written consent of each Lender directly and adversely affected thereby  (other than any waiver of any default interest applicable pursuant to Section 2.10(e)),  (iv) postpone the scheduled maturity date of any Loan, or the required date of  reimbursement of any LC Disbursement, or any date for the payment of any principal,  interest or fees payable under any Loan Document, or reduce the amount of, waive or  excuse any such payment, or postpone the scheduled date of expiration of any  Commitment, without the written consent of each Lender directly and adversely affected  thereby, (v) change Section 2.15(b) or 2.15(c) in a manner that would alter the pro  rata sharing of payments or payment waterfall required thereby without the written consent  of each Lender, (vi) change any of the provisions of this paragraph or the percentage set  forth in the definition of the term “Required Lenders” or “Majority in Interest” or any other  provision of any Loan Document specifying the number or percentage of Lenders (or  Lenders of any Class) required to waive, amend or modify any rights thereunder or make  any determination or grant any consent thereunder, without the written consent of each  Lender (or each Lender of such Class, as the case may be), provided that, with the consent  of the Required Lenders or pursuant to Section 2.18, the provisions of this paragraph and  the definition of the term “Required Lenders”  may be amended to include references to  any new class of loans created under this Agreement (or to lenders extending such loans),  (vii) change the currency of any Loan of any Lender without the written consent of such  Lender, or add any new currency as an Alternative Currency without the written consent  of each Revolving Lender, (viii) release (including by limiting liability in respect thereof)  the Company from its obligations under the Parent Guarantee without the written consent  of each Revolving Lender, (ix) release (including by limiting liability in respect thereof)  all or substantially all of the value of the Guarantees created under the Guarantee  Agreement without the written consent of each Lender (except as expressly provided in  Section 10.14), it being understood that an amendment or other modification of the type of  obligations guaranteed under the Guarantee Agreement shall not be deemed to be a release  of any Guarantee thereunder, or (x) change any provisions of this Agreement in a manner  that by its express terms adversely affects the rights in respect of payments of, or the  conditions precedent to extensions of credit by, Lenders of any Class differently than those  of any other Class, without the written consent of Lenders representing a Majority in  Interest of each differently affected Class; provided further that no such agreement shall  amend, modify, extend or otherwise affect the rights or obligations of the Administrative  Agent, any Issuing Bank or the Swingline Lender without the written consent of the  Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be.  (c) Notwithstanding anything to the contrary in paragraph (a) or (b) of  this Section:    139      [[5866265v.11]]    (i) any provision of this Agreement or any other Loan Document may  be amended by an agreement in writing entered into by the Company and the  Administrative Agent to cure any ambiguity, omission, defect or inconsistency so  long as, in each case, the Lenders shall have received at least five Business Days’  prior written notice thereof and the Administrative Agent shall not have received,  within five Business Days of the date of such notice to the Lenders, a written notice  from the Required Lenders stating that the Required Lenders object to such  amendment;  (ii) no consent with respect to any amendment, waiver or other  modification of this Agreement or any other Loan Document shall be required of  any Defaulting Lender, except with respect to any amendment, waiver or other  modification referred to in clause (ii), (iii) or (iv) of the first proviso of  paragraph (b) of this Section and then only in the event such Defaulting Lender  shall be directly and adversely affected by such amendment, waiver or other  modification;  (iii) in the case of any amendment, waiver or other modification referred  to in the first proviso of paragraph (b) of this Section, no consent with respect to  any amendment, waiver or other modification of this Agreement or any other Loan  Document shall be required of any Lender that receives payment in full of the  principal of and interest accrued on each Loan made by such Lender, and all other  amounts owing to or accrued for the account of such Lender under this Agreement  and the other Loan Documents, at the time such amendment, waiver or other  modification becomes effective and whose Commitments terminate by the terms  and upon the effectiveness of such amendment, waiver or other modification;  (iv) any amendment, waiver or other modification of this Agreement or  any other Loan Document that by its express terms affects the rights or duties  hereunder or thereunder of the Lenders of one or more Classes (but not the Lenders  of any other Class) may be effected by an agreement or agreements in writing  entered into by the Company, the Administrative Agent and the requisite number  or percentage in interest of each affected Class of Lenders that would be required  to consent thereto under this Section if such Class of Lenders were the only Class  of Lenders hereunder at the time;  (v) this Agreement and the other Loan Documents may be amended in   the manner provided in Sections 2.11(b), 2.18, 2.20 and 2.21 and the definition of  “LC Commitment”, as such term is used in reference to any Issuing Bank, may be  modified as contemplated by the definition of such term;  (vi) this Agreement and the other Loan Documents may be amended in  the manner provided in Section 2.22 and, in connection with any Borrowing  Subsidiary becoming a party hereto, this Agreement (including the Exhibits hereto)  may be amended by an agreement in writing entered into by the Company and the  Administrative Agent to provide for such technical modifications as they determine  to be necessary or advisable in connection therewith;  





 






  140      [[5866265v.11]]    (vii) in connection with the addition of any new currency as an  Alternative Currency in accordance with the definition of such term (and  clause (vii) of paragraph (b) of this Section), this Agreement (including the Exhibits  hereto) may be amended by an agreement in writing entered into by the Company  and the Administrative Agent to provide for such technical modifications as they  determine to be necessary or advisable in connection therewith;   (viii) an amendment to this Agreement contemplated by the last sentence  of the penultimate paragraph of the definition of the term “Applicable Rate” may  be made pursuant to an agreement or agreements in writing entered into by the  Company, the Administrative Agent and the Required Lenders; and  (ix) the Administrative Agent may, without the consent of any Lender,  Issuing Bank or other holder of any Obligations, (A) consent to a departure by any  Loan Party from any covenant of such Loan Party set forth in this Agreement or  any other Loan Document to the extent such departure is consistent with the  authority of the Administrative Agent set forth in the definition of the term  “Guarantee Requirement” or (B) amend, waive or otherwise modify any provision  in the Guarantee Agreement, or consent to a departure by any Loan Party therefrom,  to the extent the Administrative Agent determines that such amendment, waiver,  other modification or consent is necessary in order to eliminate any conflict  between such provision and the terms of this Agreement.  (d) The Administrative Agent may, but shall have no obligation to, with  the concurrence of any Lender, execute amendments, waivers or other modifications on  behalf of such Lender. Any amendment, waiver or other modification effected in  accordance with this Section shall be binding upon each Person that is at the time thereof  a Lender and each Person that subsequently becomes a Lender.  SECTION 10.03. Expenses; Indemnity; Damage Waiver.  (a) The  Company shall pay (i) all reasonable and documented out-of-pocket expenses incurred by  the Administrative Agent, the Arrangers and their respective Affiliates, including the  reasonable and documented fees, charges and disbursements of counsel for any of the  foregoing (but limited to a single primary counsel and, if reasonably necessary, a single  local counsel in each relevant jurisdiction (including the jurisdiction of organization of any  Borrowing Subsidiary), in each case, for the Administrative Agent, the Arrangers and their  respective Affiliates taken as a whole (which may be a single local counsel acting in  multiple jurisdictions)), in connection with the structuring, arrangement and syndication of  the credit facilities provided for herein, including the preparation, execution and delivery  of any fee letters entered into in connection with the credit facilities provided for herein, as  well as the preparation, execution, delivery and administration of this Agreement, the other  Loan Documents or any amendments, modifications or waivers of the provisions hereof or  thereof (whether or not the transactions contemplated hereby or thereby shall be  consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any  Issuing Bank in connection with the issuance, amendment or extension of any Letter of  Credit or any demand for payment thereunder and (iii) all reasonable and documented out- of-pocket expenses incurred by the Administrative Agent, any Arranger, any Issuing Bank    141      [[5866265v.11]]    or any Lender, including the fees, charges and disbursements of any counsel for any of the  foregoing, in connection with the enforcement or protection of its rights in connection with  the Loan Documents, including its rights under this Section, or in connection with the  Loans made or Letters of Credit issued hereunder, including all such out-of-pocket  expenses incurred during any workout, restructuring or negotiations in respect of such  Loans or Letters of Credit.  (b) The Company shall indemnify the Administrative Agent (and any  sub-agent thereof), the Arrangers, the Syndication Agents, the Documentation Agents,  each Lender and each Issuing Bank, and each Related Party of any of the foregoing (each  such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless  from, any and all losses, claims, damages, penalties, liabilities and related expenses,  including the reasonable and documented fees, charges and disbursements of any counsel  for any Indemnitee (but limited to a single primary counsel and, if reasonably necessary, a  single local counsel in each relevant jurisdiction (including the jurisdiction of organization  of any Borrowing Subsidiary), in each case, for the Indemnitees, taken as a whole (which  may be a single local counsel acting in multiple jurisdictions) and, in the case of an actual  or perceived conflict of interest, where the party affected by such conflict informs the  Company of such conflict and thereafter retains its own counsel, of another firm of primary  counsel and, if reasonably necessary, another firm of local counsel in each relevant  jurisdiction (which may include a single local counsel acting in multiple jurisdictions)),  incurred by or asserted against any Indemnitee arising out of, in connection with, or as a  result of (i) the structuring, arrangement and syndication of the credit facilities provided  for herein, the preparation, execution, delivery and administration of any fee letters entered  into in connection with the credit facilities provided for herein, this Agreement, the other  Loan Documents or any other agreement or instrument contemplated hereby or thereby,  the performance by the parties to such fee letters, this Agreement or the other Loan  Documents of their obligations hereunder or thereunder or the consummation of the  Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or  Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing  Bank to honor a demand for payment under a Letter of Credit if the documents presented  in connection with such demand do not strictly comply with the terms of such Letter of  Credit), (iii) any actual or alleged presence or Release of Hazardous Substances at, under,  on or from any property currently or formerly owned or operated by the Company or any  Subsidiary (or Person that was formerly a Subsidiary of any of them), or any other liability  under Environmental Laws related in any way to the Company, any Subsidiary (or Person  that was formerly a Subsidiary of any of them), or (iv) any actual or prospective claim,  litigation, investigation or proceeding relating to any of the foregoing, whether based on  contract, tort or any other theory and whether initiated against or by any party to any fee  letter entered into in connection with the credit facilities provided for herein, this  Agreement or any other Loan Document, any Affiliate of any of the foregoing or any third  party (and regardless of whether any Indemnitee is a party thereto); provided that such  indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,  damages, penalties, liabilities or related expenses (A) are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from (1) the  gross negligence, bad faith or willful misconduct of such Indemnitee or (2) a breach in bad  faith of the funding obligations of such Indemnitee under this Agreement or (B) arise from    142      [[5866265v.11]]    any dispute among the Indemnitees, other than any claim, litigation, investigation or  proceeding against the Administrative Agent, any Arranger, any Syndication Agent, any  Documentation Agent or any other titled person in its capacity or in fulfilling its role as  such and other than any claim, litigation, investigation or proceeding arising out of any act  or omission on the part of the Borrowers or any of their Affiliates.  Each Indemnitee shall  be obligated to refund and return promptly any and all amounts actually paid by the  Company to such Indemnitee under this paragraph for any losses, claims, damages,  penalties, liabilities or expenses to the extent such Indemnitee is subsequently determined,  by a court of competent jurisdiction by final and nonappealable judgment, to not be entitled  to payment of such amounts in accordance with the terms of this paragraph (b).  This  paragraph (b) shall not apply with respect to Taxes other than any Taxes that represent  losses, claims or damages arising from any non-Tax claim.   (c) To the extent that the Company fails indefeasibly to pay any amount  required under paragraph (a) or (b) of this Section to the Administrative Agent (or any sub- agent thereof), any Issuing Bank, the Swingline Lender or any Related Party of any of the  foregoing (and without limiting its obligation to do so), each Lender severally agrees to  pay to the Administrative Agent (or any such sub-agent), such Issuing Bank, the Swingline  Lender 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)  of such unpaid amount; 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 Administrative Agent (or such sub-agent), such Issuing Bank or the Swingline Lender  in its capacity as such, or against any Related Party of any of the foregoing acting for the  Administrative Agent (or any such sub-agent), such Issuing Bank or the Swingline Lender.   For purposes of this Section, a Lender’s “pro rata share” shall be determined based upon  its share of the sum of the aggregate amount of the Revolving Loans, unused Revolving  Commitments, Delayed Draw Term Loans and unused Delayed Draw Term Commitments  at the time outstanding or in effect (or most recently outstanding or in effect, if none of the  foregoing shall be outstanding or in effect at such time).  (d) To the fullest extent permitted by applicable law, no Borrower shall  assert, or permit any of its Affiliates or Related Parties to assert, and each Borrower hereby  waives, any claim against any Indemnitee (i) for any damages arising from the use by others  of information or other materials obtained through telecommunications, electronic or other  information transmission systems (including the Internet), except to the extent arising from  the bad faith, gross negligence or willful misconduct of such Indemnitee, as determined by  a court of competent jurisdiction in a final and nonappealable judgment, or (ii) 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 agreement or instrument contemplated hereby or thereby,  the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.  (e) To the fullest extent permitted by applicable law, the Administrative  Agent, the Arrangers, the Issuing Banks, the Lenders, the Syndication Agents and the  Documentation Agents shall not assert, or permit any of their respective Affiliates or  Related Parties to assert, and each of them hereby waives, any claim against the Loan    143      [[5866265v.11]]    Parties, 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 agreement or instrument contemplated  hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds  thereof; provided, that nothing in this paragraph (e) shall limit the Loan Parties’ indemnity  and reimbursement obligations set forth in this Section or separately agreed, including such  indemnity and reimbursement obligations with respect to any special, indirect,  consequential or punitive damages arising out of, in connection with or as a result of any  claim, litigation, investigation or proceeding brought against any Indemnitee by any third  party.  (f) All amounts due under this Section shall be payable promptly after  written demand therefor.  SECTION 10.04. Successors and Assigns.  (a) 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 (including any Affiliate of any Issuing  Bank that issues any Letter of Credit), except that (i) other than as expressly permitted by  Section 6.04 with respect to any Borrowing Subsidiary, neither the Company nor any  Borrowing Subsidiary may assign or otherwise transfer any of its rights or obligations  hereunder without the prior written consent of the Administrative Agent and each Lender  (and any attempted assignment or transfer by any Borrower without such consent shall be  null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations  hereunder except in accordance with this Section.  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 (including any Affiliate of any Issuing  Bank that issues any Letter of Credit), sub-agents of the Administrative Agent, Participants  (to the extent provided in paragraph (c) of this Section), the Arrangers, the Syndication  Agents, the Documentation Agents and, to the extent expressly contemplated hereby, the  Related Parties of the foregoing) any legal or equitable right, remedy or claim under or by  reason of this Agreement.  Notwithstanding anything herein to the contrary, no sale,  assignment, novation, transfer or delegation by any Lender of any of its rights or  obligations under this Agreement or any other Loan Document shall, or shall be deemed,  to extinguish any of the rights, benefits or privileges afforded by any Guarantee created  under the Loan Documents for the benefit of such Lender in relation to such of its rights or  obligations, and all such rights, benefits and privileges shall continue to accrue, to the full  extent thereof, for the benefit of the assignee, transferee or delegee of such Lender in  connection with each such sale, assignment, novation, transfer and delegation.    (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any  Lender may assign to one or more Eligible Assignees all or a portion of its rights and  obligations under this Agreement (including all or a portion of its Commitments, and the  Loans at the time owing to it) with the prior written consent (such consent not to be  unreasonably withheld, delayed or conditioned) of:  (A) the Company; provided that no consent of the Company  shall be required (1) in the case of any Delayed Draw Term Loans, (x) for  





 






  144      [[5866265v.11]]    an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or  (y) if an Event of Default shall have occurred and be continuing and (2) in  the case of Revolving Commitments, Revolving Loans and Delayed Draw  Term Commitments, if an Event of Default shall have occurred and be  continuing; provided further, in each case, that the Company shall be  deemed to have consented to any assignment unless it shall object thereto  by written notice to the Administrative Agent within five Business Days  after having received notice thereof;   (B) the Administrative Agent; provided that no consent of the  Administrative Agent shall be required with respect to assignments to a  Lender, an Affiliate of a Lender or an Approved Fund;  (C) each Issuing Bank; provided that no consent of any Issuing  Bank shall be required with respect to assignments of Delayed Draw Term  Commitments and Delayed Draw Term Loans; and  (D) the Swingline Lender; provided that no consent of the  Swingline Lender shall be required with respect to assignments of Delayed  Draw Term Commitments and Delayed Draw Term Loans.  (ii) Assignments shall be subject to the following additional conditions:  (A) except in the case of an assignment to a Lender, an Affiliate  of a Lender or an Approved Fund or an assignment of the entire remaining  amount of the assigning Lender’s Commitment or Loans of any Class, the  amount of the Commitment or 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 Administrative Agent)  shall not be less than US$5,000,000 unless each of the Company and the  Administrative Agent otherwise consents; provided that (1) no such consent  of the Company shall be required if an Event of Default has occurred and is  continuing and (2) the Company shall be deemed to have consented to any  assignment unless it shall object thereto by written notice to the  Administrative Agent on or before the fifth Business Day after the Company  shall have received notice thereof together with the applicable  documentation therefor;  (B) 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; provided that this clause (B) shall not be construed to  prohibit the assignment of a proportionate part of all the assigning Lender’s  rights and obligations in respect of one Class of Commitments or Loans;  (C) the parties to each assignment shall execute and deliver to  the Administrative Agent an Assignment and Assumption (or an agreement  incorporating by reference a form of Assignment and Assumption posted    145      [[5866265v.11]]    on the Platform), together with a processing and recordation fee of  US$3,500, provided that (x) only one such processing and recordation fee  shall be payable in the event of simultaneous assignments from any Lender  or its Approved Funds to one or more other Approved Funds of such Lender  and (y) such processing and recordation fee may be waived by the  Administrative Agent in its sole discretion;   (D) the assignee, if it shall not already be a Lender, shall deliver  to the Administrative Agent any tax forms required by Section 2.14(f) and  an Administrative Questionnaire in which the assignee designates one or  more credit contacts to whom all syndicate-level information (which may  contain MNPI) will be made available and who may receive such  information in accordance with the assignee’s compliance procedures and  applicable law, including US (Federal or State) and foreign securities laws;  and  (E) assignment to any Person of Loans extended to or for the  account of a Borrower incorporated in the Netherlands shall only be  permitted if the Person to whom the Loans are assigned is a Non-Public  Lender at all times.  (iii) Subject to acceptance and recording thereof pursuant to  paragraph (b)(v) of this Section, from and after the effective date specified in each  Assignment and Assumption (or an agreement incorporating by reference a form  of Assignment and Assumption posted on the Platform) the assignee thereunder  shall be a party hereto 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  Sections 2.12, 2.13, 2.14, 10.03 and 10.18); provided, that except to the extent  otherwise expressly agreed by the affected parties, no assignment by a Defaulting  Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender having been a Defaulting Lender.  Any assignment or  transfer by a Lender of rights or obligations under this Agreement that does not  comply with this Section 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 10.04(c).  (iv) The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrowers, shall maintain at one of its offices a copy of each  Assignment and Assumption delivered to it and records of the names and addresses  of the Lenders, and the Commitments of, and principal amount (and stated interest)  of the Loans and LC Disbursements owing to, each Lender pursuant to the terms  hereof from time to time (the “Register”).  The entries in the Register shall be    146      [[5866265v.11]]    conclusive absent manifest error, and the Borrowers, the Administrative Agent, the  Issuing Banks 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, notwithstanding notice to the contrary.  The Register shall be  available for inspection by the Borrowers and, as to entries pertaining to it, any  Issuing Bank or Lender, at any reasonable time and from time to time upon  reasonable prior notice.  (v) Upon receipt by the Administrative Agent of an Assignment and  Assumption (or an agreement incorporating by reference a form of Assignment and  Assumption posted on the Platform) executed by an assigning Lender and an  assignee, the assignee’s completed Administrative Questionnaire and any tax forms  required by Section 2.14(f) (unless the assignee shall already be a Lender  hereunder) and the processing and recordation fee referred to in this Section, the  Administrative Agent shall accept such Assignment and Assumption and record the  information contained therein in the Register; provided that the Administrative  Agent shall not be required to accept such Assignment and Assumption or so record  the information contained therein if the Administrative Agent reasonably believes  that such Assignment and Assumption lacks any written consent required by this  Section or is otherwise not in proper form, it being acknowledged that the  Administrative Agent shall have no duty or obligation (and shall incur no liability)  with respect to obtaining (or confirming the receipt) of any such written consent or  with respect to the form of (or any defect in) such Assignment and Assumption,  any such duty and obligation being solely with the assigning Lender and the  assignee.  No assignment shall be effective for purposes of this Agreement unless  it has been recorded in the Register as provided in this paragraph, and following  such recording, unless otherwise determined by the Administrative Agent (such  determination to be made in the sole discretion of the Administrative Agent, which  determination may be conditioned on the consent of the assigning Lender and the  assignee), shall be effective notwithstanding any defect in the Assignment and  Assumption relating thereto.  Each assigning Lender and the assignee, by its  execution and delivery of an Assignment and Assumption, shall be deemed to have  represented to the Administrative Agent that all written consents required by this  Section with respect thereto (other than the consent of the Administrative Agent)  have been obtained and that such Assignment and Assumption is otherwise duly  completed and in proper form, and each assignee, by its execution and delivery of  an Assignment and Assumption, shall be deemed to have represented to the  assigning Lender and the Administrative Agent that such assignee is an Eligible  Assignee and the assignment is not prohibited pursuant to Section 10.04(b)(ii)(E).   The Administrative Agent shall have no responsibility or liability for an assignment  to a Person that is not an Eligible Assignee or for an assignment that is prohibited  by Section 10.04(b)(ii)(E).  (c) (i) Any Lender may, without the consent of any Borrower, the  Administrative Agent, the Swingline Lender or any Issuing Bank, sell participations to one  or more Eligible Assignees (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 Commitments and    147      [[5866265v.11]]    Loans of any Class); provided that (A) such Lender’s obligations under this Agreement  shall remain unchanged, (B) such Lender shall remain solely responsible to the other  parties hereto for the performance of such obligations and (C) the Borrowers, the  Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely  and directly with such Lender in connection with such Lender’s rights and/or obligations  under this Agreement.  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 or any other Loan Document; 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 the first proviso to Section 10.02(b) that  affects such Participant or requires the approval of all the Lenders (or all the Lenders of  the applicable Class).  The Borrowers agree that each Participant shall be entitled to the  benefits of Sections 2.12, 2.13 and 2.14 (subject to the requirements and limitations therein,  including the requirements under Section 2.14(f) (it being understood that the  documentation required under Section 2.14(f) 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 paragraph (b) of this Section; provided that such Participant (x)  agrees to be subject to the provisions of Sections 2.15 and 2.16 as if it were an assignee  under paragraph (b) of this Section and (y) shall not be entitled to receive any greater  payment under Section 2.12 or 2.14 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  Company’s request and expense, to use reasonable efforts to cooperate with the Company  to effectuate the provisions of Section 2.16(b) with respect to any Participant.  To the extent  permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as  though it were a Lender; provided that such Participant agrees to be subject to Section  2.15(c) as though it were a Lender.    (ii) Each Lender that sells a participation shall, acting solely for this  purpose as a non-fiduciary agent of the Borrowers, maintain records of 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 this Agreement  or any other Loan Document (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 other rights  and/or obligations under this Agreement or any other Loan Document) to any  Person except to the extent that such disclosure is necessary to establish that any  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 Administrative Agent (in its  capacity as such) shall have no responsibility for maintaining a Participant Register.  





 






  148      [[5866265v.11]]    (d) Any Lender may at any time pledge or grant a security interest in all  or any portion of its rights under this Agreement to secure obligations of such Lender,  including any pledge or grant to secure obligations to a Federal Reserve Bank or other  central bank, and this Section shall not apply to any such pledge or grant of a security  interest; provided that no such pledge or grant of a security interest shall release a Lender  from any of its obligations hereunder or substitute any such pledgee or assignee for such  Lender as a party hereto.  SECTION 10.05. Survival.  All covenants, agreements, representations  and warranties made by the Loan Parties in the Loan Documents and in the certificates or  other instruments delivered in connection with or pursuant to this Agreement or any other  Loan Document shall be considered to have been relied upon by the other parties hereto or  thereto and shall survive the execution and delivery of the Loan Documents and the making  of any Loans and issuance of any Letters of Credit, regardless of any investigation made  by any such other party or on its behalf and notwithstanding that any of the Administrative  Agent, the Arrangers, the Syndication Agents, the Documentation Agents, the Issuing  Banks, the Lenders or any Related Party of any of the foregoing may have had notice or  knowledge of any Default or incorrect representation or warranty at the time any Loan  Document was executed and delivered or any credit was extended hereunder, and shall  continue in full force and effect as long as the principal of or any interest accrued on any  Loan or any fee or any other amount payable under this Agreement is outstanding and  unpaid (other than contingent obligations for indemnification, expense reimbursement, tax  gross-up or yield protection as to which no claim has been made) or any LC Exposure is  outstanding and so long as any of the Commitments have not expired or terminated.   Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement  or any other Loan Document, in the event that, in connection with the refinancing or  repayment in full of the Revolving Facility, an Issuing Bank shall have provided to the  Administrative Agent a written consent to the release of the Revolving Lenders from their  obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank  (whether as a result of the obligations of the Borrowers (and any other account party) in  respect of such Letter of Credit having been collateralized in full by a deposit of cash with  such Issuing Bank, or being supported by a letter of credit that names such Issuing Bank  as the beneficiary thereunder, or otherwise), then from and after such time such Letter of  Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this  Agreement and the other Loan Documents (including for purposes of determining whether  the Company is required to comply with Articles V and VI hereof, but excluding  Sections 2.12, 2.13, 2.14, 10.03 and 10.18 and any expense reimbursement or indemnity  provisions set forth in any other Loan Document), and the Revolving Lenders shall be  deemed to have no participations in such Letter of Credit, and no obligations with respect  thereto, under Section 2.20(d) or 2.20(f).  In addition, notwithstanding anything to the  contrary set forth in this Agreement or any other Loan Document, in the event that on the  Letter of Credit Termination Date any Letter of Credit shall be a Backstopped Letter of  Credit, then, unless on such date any unreimbursed drawing shall have been outstanding  thereunder, such Letter of Credit shall cease to be a “Letter of Credit” outstanding  hereunder for all purposes of this Agreement and the other Loan Documents (including for  purposes of determining whether the Company is required to comply with Articles V and  VI hereof, but excluding Sections 2.12, 2.13, 2.14, 10.03 and 10.18 and any expense    149      [[5866265v.11]]    reimbursement or indemnity provisions set forth in any other Loan Document), and the  Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and  no obligations with respect thereto, under Section 2.20(d) or 2.20(f).  The provisions of  Sections 2.12, 2.13, 2.14, 2.15(d), 9.05, 10.03, 10.18 and Article VIII shall survive and  remain in full force and effect regardless of the consummation of the transactions  contemplated hereby, the repayment of the Loans and the expiration or termination of the  Letters of Credit and the Commitments or the termination of this Agreement or any  provision hereof.  SECTION 10.06. Counterparts; Integration; Effectiveness; Electronic  Execution.  (a) This Agreement may be executed in counterparts (and by different parties  hereto on different counterparts), each of which shall constitute an original, but all of which  when taken together shall constitute a single contract.  This Agreement and the other Loan  Documents constitute the entire contract among the parties relating to the subject matter  hereof and supersede any and all previous agreements and understandings, oral or written,  relating to the subject matter hereof, including the commitments of the Lenders and, if  applicable, their Affiliates under any commitment advices with respect to the credit  facilities established hereby submitted by any Lender (but do not supersede any provisions  of any fee letters entered into in connection with the credit facilities provided for herein,  all of which provisions shall remain in full force and effect).  Except as provided in  Section 4 of the Restatement Agreement, this Agreement shall become effective when it  shall have been executed by the Administrative Agent and the Administrative Agent shall  have received counterparts hereof that, when taken together, bear the signatures of each of  the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the  parties hereto and their respective successors and assigns.    (b) Delivery of an executed counterpart of a signature page of this  Agreement, any other Loan Document or any document, amendment, approval, consent,  information, notice (including, for the avoidance of doubt, any notice delivered pursuant  to Section 10.01), certificate, request, statement, disclosure or authorization related to this  Agreement, any other Loan Document or the transactions contemplated hereby or thereby  (each, an “Ancillary Document”) that is an Electronic Signature transmitted by emailed  .pdf or any other electronic means that reproduces an image of an actual executed signature  page shall be effective as delivery of a manually executed counterpart of this Agreement,  such other Loan Document or such Ancillary Document, as applicable. The words  “execution,” “execute”, “signed,” “signature,” and words of like import in or relating to  this Agreement, any other Loan Document or any Ancillary Document shall be deemed to  include Electronic Signatures, deliveries or the keeping of records in any electronic form  (including deliveries by emailed .pdf or any other electronic means that reproduces an  image of an actual executed signature page), each of which shall be of the same legal effect,  validity or enforceability as a manually executed signature, physical delivery thereof or the  use of a paper-based recordkeeping system, as the case may be; provided that  notwithstanding anything contained herein to the contrary, the Administrative Agent is not  under any obligation to agree to accept Electronic Signatures in any form or in any format  unless expressly agreed to by the Administrative Agent pursuant to procedures approved  by it.  Without limiting the generality of the foregoing, (i) to the extent the Administrative  Agent and the Company have agreed to accept any Electronic Signature, the Administrative    150      [[5866265v.11]]    Agent and the Lenders, the Issuing Banks, the Company and each other Loan Party shall  be entitled to rely on such Electronic Signature purportedly given by or on behalf of the  Administrative Agent, any Lender, any Borrower or any other Loan Party without further  verification thereof and without any obligation to review the appearance or form of any  such Electronic Signature and (ii) upon the request of the Administrative Agent, the  Company or any Lender, any Electronic Signature shall be promptly followed by a  manually executed counterpart. Without limiting the generality of the foregoing, each party  hereto (A) agrees that, for all purposes, including in connection with any workout,  restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the  Administrative Agent, the Lenders, the Issuing Banks, the Company and the other Loan  Parties, Electronic Signatures transmitted by emailed .pdf or any other electronic means  that reproduces an image of an actual executed signature page or any electronic images of  this Agreement, any other Loan Document or any Ancillary Document shall have the same  legal effect, validity and enforceability as any paper original, (B) agrees that each of the  Administrative Agent, the Lenders, the Issuing Banks, the Company and the other Loan  Parties may, at its option, create one or more copies of this Agreement, any other Loan  Document and any Ancillary Document in the form of an imaged electronic record in any  format, which shall be deemed created in the ordinary course of such Person’s business,  and destroy the original paper document (and all such electronic records shall be considered  an original for all purposes and shall have the same legal effect, validity and enforceability  as a paper record), (C) waives any argument, defense or right to contest the legal effect,  validity or enforceability of this Agreement, any other Loan Document or any Ancillary  Document based solely on the lack of paper original copies of this Agreement, such other  Loan Document or such Ancillary Document, respectively, including with respect to any  signature pages thereto, and (D) waives any claim against the Administrative Agent, any  Lender, any Issuing Bank, the Company or any other Loan Party for any losses, claims,  damages or liabilities arising solely from the Administrative Agent’s and/or any Lender’s,  any Issuing Bank’s, the Company’s or any other Loan Party’s reliance on or use of  Electronic Signatures or transmissions by emailed .pdf or any other electronic means that  reproduces an image of an actual executed signature page, including any losses, claims,  damages or liabilities arising as a result of the failure of the Administrative Agent, any  Lender, any Issuing Bank, the Company or any other Loan Party to use any available  security measures in connection with the execution, delivery or transmission of any  Electronic Signature.  SECTION 10.07. Severability.  Any provision of this Agreement held to  be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be  ineffective to the extent of such invalidity, illegality or unenforceability without affecting  the validity, legality and enforceability of the remaining provisions hereof; and the  invalidity of a particular provision in a particular jurisdiction shall not invalidate such  provision in any other jurisdiction.  SECTION 10.08. Right of Setoff.  If an Event of Default shall have  occurred and be continuing, each Lender and Issuing Bank and each Affiliate of any of the  foregoing is hereby authorized at any time and from time to time, to the fullest extent  permitted by applicable law, to set off and apply any and all deposits (general or special,  time or demand, provisional or final, in whatever currency) or other amounts at any time    151      [[5866265v.11]]    held and other obligations (in whatever currency) at any time owing by such Lender or  Issuing Bank or by such an Affiliate to or for the credit or the account of the Company or  any Borrowing Subsidiary against any of and all the obligations then due of the Company  or any Borrowing Subsidiary now or hereafter existing under this Agreement held by such  Lender or Issuing Bank, irrespective of whether or not such Lender or Issuing Bank shall  have made any demand under this Agreement and although such obligations of the  Company or such Borrowing Subsidiary are owed to a branch, office or Affiliate of such  Lender or Issuing Bank different from the branch, office or Affiliate holding such deposit  or obligated on such indebtedness.  The rights of each Lender and Issuing Bank, and each  Affiliate of any of the foregoing, under this Section are in addition to other rights and  remedies (including other rights of setoff) that such Lender, Issuing Bank or Affiliate may  have.  Each Lender and Issuing Bank agrees to notify the Company and the Administrative  Agent promptly after any such setoff and application; provided that the failure to give  notice shall not affect the validity of such setoff and application.  Notwithstanding anything  to the contrary in this Agreement, in no event will any deposits or other amounts at any  time held or other obligations at any time owing by any Lender or Issuing Bank or any of  their respective Affiliates to or for the account of any Foreign Borrowing Subsidiary be set  off and applied against any obligations under this Agreement of the Company or any  Domestic Borrowing Subsidiary.  SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of  Process.  (a) This Agreement shall be governed by, and construed in accordance with, the  law of the State of New York.  (b) Each party hereto hereby irrevocably and unconditionally submits,  for itself and its property, to the jurisdiction of the United States District Court of the  Southern District of New York and of the Supreme Court of the State of New York sitting  in New York County, and any appellate court from any thereof, in any suit, action or  proceeding arising out of or relating to this Agreement or any other Loan Document, or for  recognition or enforcement of any judgment, and, subject to the final sentence of this  Section, each party hereto hereby irrevocably and unconditionally agrees that all claims  arising out of or relating to this Agreement or any other Loan Document brought by it or  any of its Affiliates shall be brought, and shall be heard and determined, exclusively in  such United States District Court or, if that court does not have subject matter jurisdiction,  such Supreme Court.  Each party hereto agrees that a final judgment in any such suit, 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.  Nothing in this Agreement shall affect  any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise  have to bring any suit, action or proceeding relating to this Agreement or any other Loan  Document against any Foreign Borrowing Subsidiary or any of its properties in the court  of the jurisdiction of organization of such Foreign Borrowing Subsidiary.  (c) Each party to this Agreement hereby irrevocably and  unconditionally waives, to the fullest extent permitted by law, any objection that it may  now or hereafter have to the laying of venue of any suit, action or proceeding arising out  of or relating to this Agreement or any other Loan Document in any court referred to in  paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the  





 






  152      [[5866265v.11]]    fullest extent permitted by law, the defense of an inconvenient forum to the maintenance  of such suit, action or proceeding in any such court.  (d) Each party to this Agreement irrevocably consents to service of  process in the manner provided for notices in Section 10.01.  Nothing in this Agreement or  any other Loan Document will affect the right of any party to this Agreement to serve  process in any other manner permitted by law.  (e) Each Borrowing Subsidiary hereby irrevocably designates, appoints  and empowers the Company, and the Company hereby accepts such appointment, as its  designee, appointee and agent to receive, accept and acknowledge for and on its behalf,  and in respect of its property, service of any and all legal process, summons, notices and  documents that may be served in any suit, action or proceeding arising out of or relating to  this Agreement or any other Loan Document.  Such service may be made by mailing or  delivering a copy of such process to any Borrowing Subsidiary in care of the Company at  the Company’s address used for purposes of giving notices under Section 10.01, and each  Borrowing Subsidiary hereby irrevocably authorizes and directs the Company to accept  such service on its behalf.  (f) In the event any Borrowing Subsidiary or any of its assets has or  hereafter acquires, in any jurisdiction in which judicial proceedings may at any time be  commenced with respect to this Agreement or any other Loan Document, any immunity  from jurisdiction, legal proceedings, attachment (whether before or after judgment),  execution, judgment or setoff, such Borrowing Subsidiary hereby irrevocably agrees not to  claim and hereby irrevocably and unconditionally waives such immunity.  SECTION 10.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO  HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE 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, ANY OTHER LOAN DOCUMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED  ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO  (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY  OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH  OTHER PARTY 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.  SECTION 10.11. Headings.  Article and Section headings and the Table of  Contents used herein are for convenience of reference only, are not part of this Agreement  and shall not affect the construction of, or be taken into consideration in interpreting, this  Agreement.    153      [[5866265v.11]]    SECTION 10.12. Confidentiality.  Each of the Administrative Agent, the  Issuing Banks 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,  including accountants, insurers, reinsurers, legal counsel and other agents and advisors, it  being understood that the Persons to whom such disclosure is made either are informed of  the confidential nature of such Information and instructed to keep such Information  confidential or are subject to customary confidentiality obligations of employment or  professional practice, (b) to the extent required or requested by any Governmental  Authority purporting to have jurisdiction over such Person or its Related Parties (including  any self-regulatory authority, such as the National Association of Insurance  Commissioners) (in which case such Person agrees to inform the Company promptly  thereof prior to such disclosure to the extent practicable and not prohibited by applicable  law (except with respect to any audit or examination conducted by bank accountants or any  Governmental Authority exercising examination or regulatory authority)), (c) to the extent  required by applicable law or by any subpoena or similar legal process (in which case such  Person agrees to inform the Company promptly thereof prior to such disclosure to the  extent practicable and not prohibited by applicable law), (d) to any other party to this  Agreement, (e) in connection with the exercise of any remedies under this Agreement or  any other Loan Document or any suit, action or proceeding relating to this Agreement or  any other Loan Document, the enforcement of rights hereunder or thereunder or any  Transactions, (f) subject to an agreement containing confidentiality undertakings  substantially the same as those of this Section (which shall be deemed to include those  required to be made in order to obtain access to information posted on any Platform), to  (i) any assignee of or Participant in (or its Related Parties), or any prospective assignee of  or Participant in (or its Related Parties), any of its rights or obligations under this  Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any  swap or derivative transaction relating to the Company or any Subsidiary and their  respective obligations, (g) on a confidential basis to (i) any rating agency in connection  with rating the Company or its Subsidiaries or the credit facilities provided for herein or  (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and  monitoring of CUSIP numbers with respect to the credit facilities provided for herein, (h)  with the consent of the Company, (i) to market data collectors, similar service providers to  the lending industry and service providers to the Administrative Agent and the Lenders in  connection with the administration and management of this Agreement or any other Loan  Document, provided that such information is limited to the information about this  Agreement and the other Loan Documents, or (j) to the extent such Information (i) becomes  publicly available other than as a result of a breach of this Section or (ii) becomes available  to the Administrative Agent, any Issuing Bank, any Lender or any Affiliate of any of the  foregoing on a nonconfidential basis from a source other than the Company or any  Subsidiary that is not known by the Administrative Agent, such Lender, such Issuing Bank  or such Affiliate to be prohibited from disclosing such Information to such Persons by a  legal, contractual, or fiduciary obligation to the Company or any Subsidiary.  For purposes  of this Section, “Information” means all information received from the Company or any  Subsidiary relating to the Company or any Subsidiary or its businesses, other than any such  information that is available to the Administrative Agent, any Issuing Bank, any Lender or  any Affiliate of any of the foregoing on a nonconfidential basis prior to disclosure by the    154      [[5866265v.11]]    Company or any Subsidiary; provided that, in the case of information received from the  Company or any Subsidiary after the date hereof, 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 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.  It is agreed that, notwithstanding the restrictions of any prior confidentiality  agreement binding on the Administrative Agent or any Arranger, such Persons may  disclose Information as provided in this Section.  SECTION 10.13. Interest Rate Limitation.  Notwithstanding anything  herein to the contrary, if at any time the interest rate applicable to any Loan, together with  all fees, charges and other amounts that are treated as interest on such Loan under  applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the  “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the  Lender holding such Loan in accordance with applicable law, the rate of interest payable  in respect of such Loan hereunder, together with all Charges payable in respect thereof,  shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges  that would have been payable in respect of such Loan but were not payable as a result of  the operation of this Section shall be cumulated and the interest and Charges payable to  such Lender in respect of other Loans or periods shall be increased (but not above the  Maximum Rate therefor) until such cumulated amount, together with interest thereon at the  Federal Funds Effective Rate to the date of repayment, shall have been received by such  Lender.  SECTION 10.14. Release of Guarantees under Guarantee Agreement.  (a) Subject to Section 2.04 of the Guarantee Agreement, the Guarantees made under the  Guarantee Agreement shall automatically terminate and be released when all the Loan  Document Obligations (other than contingent obligations for indemnification, expense  reimbursement, tax gross-up or yield protection as to which no claim has been made) have  been paid in full in cash, the Lenders have no further commitment to lend under this  Agreement and no Letter of Credit shall be outstanding.  (b) A Subsidiary Guarantor shall automatically be released from its  obligations under the Loan Documents upon the consummation of any transaction  permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a  Subsidiary; provided that if so required by this Agreement, the Required Lenders shall have  consented to such transaction and the terms of such consent shall not have provided  otherwise.   (c) In connection with any termination or release pursuant to this  Section, the Administrative Agent shall execute and deliver to any Loan Party, at such  Loan Party’s expense, all documents (in form and substance reasonably satisfactory to the  Administrative Agent) that such Loan Party shall reasonably request to evidence such  termination or release.  Any execution and delivery of documents pursuant to this  Section shall be without recourse to or warranty by the Administrative Agent.  Each holder    155      [[5866265v.11]]    of any Obligations irrevocably authorizes the Administrative Agent, at its option and in its  discretion, to effect the releases set forth in this Section.  SECTION 10.15. USA PATRIOT Act and Beneficial Ownership  Regulation Notice.  Each Lender and the Administrative Agent (for itself and not on behalf  of any Lender) hereby notifies each Loan Party that pursuant to the requirements of the  USA PATRIOT Act and/or the Beneficial Ownership Regulation it is required to obtain,  verify and record information that identifies such Loan Party, which information includes  the name and address of such Loan Party and other information that will allow such Lender  or the Administrative Agent, as applicable, to identify such Loan Party in accordance with  the USA PATRIOT Act and the Beneficial Ownership Regulation.  SECTION 10.16. No Fiduciary Relationship.  Each Borrower, on behalf of  itself and its Subsidiaries, agrees that in connection with all aspects of the transactions  contemplated hereby and any communications in connection therewith, the Borrowers and  their Affiliates, on the one hand, and the Administrative Agent, the Lenders, the Issuing  Banks and their Affiliates, on the other hand, will have a business relationship that does  not create, by implication or otherwise, any fiduciary duty on the part of the Administrative  Agent, the Lenders, the Issuing Banks or their Affiliates, and no such duty will be deemed  to have arisen in connection with any such transactions or communications.  The  Administrative Agent, the Arrangers, the Lenders, the Issuing Banks and their 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 Borrowers and their  Affiliates, and none of the Administrative Agent, the Arrangers, the Lenders, the Issuing  Banks or their Affiliates has any obligation to disclose any of such interests to the  Borrowers or any of their Affiliates.  To the fullest extent permitted by law, each Borrower  hereby waives and releases any claims that it or any of its Affiliates may have against the  Administrative Agent, the Arrangers, the Lenders, the Issuing Banks or their Affiliates with  respect to any breach or alleged breach of agency or fiduciary duty in connection with any  aspect of any transaction contemplated hereby.  SECTION 10.17. Non-Public Information.  (a) Each Lender acknowledges  that all information, including requests for waivers and amendments, furnished by the  Borrowers or the Administrative Agent pursuant to or in connection with, or in the course  of administering, this Agreement will be syndicate-level information, which may contain  MNPI.  Each Lender represents to the Borrowers and the Administrative Agent that (i) it  has developed compliance procedures regarding the use of MNPI and that it will handle  MNPI in accordance with such procedures and applicable law, including Federal, state and  foreign securities laws, and (ii) it has identified in its Administrative Questionnaire a credit  contact who may receive information that may contain MNPI in accordance with its  compliance procedures and applicable law, including United States (Federal or state) and  foreign securities laws.  (b) The Borrowers and each Lender acknowledge that, if information  furnished by or on behalf of any Borrower or any other Loan Party pursuant to or in  connection with this Agreement or any other Loan Document is being distributed by the  Administrative Agent through the Platform, (i) the Administrative Agent may post any  





 






  156      [[5866265v.11]]    information that the Company has indicated as containing MNPI solely on that portion of  the Platform designated for Private Side Lender Representatives and (ii) if the Company  has not indicated whether any information furnished by it pursuant to or in connection with  this Agreement contains MNPI, the Administrative Agent reserves the right to post such  information solely on that portion of the Platform designated for Private Side Lender  Representatives.  The Company agrees to clearly designate all information provided to the  Administrative Agent by or on behalf of any Borrower or any other Loan Party that is  suitable to be made available to Public Side Lender Representatives, and the  Administrative Agent shall be entitled to rely on any such designation by the Company  without liability or responsibility for the independent verification thereof.  (c) If the Company does not file this Agreement with the SEC, then the  Company hereby authorizes the Administrative Agent to distribute the execution version  of this Agreement and the Loan Documents to all Lenders, including their Public Side  Lender Representatives.  The Company acknowledges its understanding that Lenders,  including their Public Side Lender Representatives, may be trading in securities of the  Company and its Affiliates while in possession of the Loan Documents.  SECTION 10.18. Conversion of Currencies.  (a) If, for the purpose of  obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one  currency into another currency, each party hereto (including each Borrowing Subsidiary)  agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall  be that at which in accordance with normal banking procedures in the relevant jurisdiction  the first currency could be purchased with such other currency on the Business Day  immediately preceding the day on which final judgment is given.  (b) The obligations of each Borrower in respect of any sum due to any  other party hereto or any holder of the obligations owing hereunder (the “Applicable  Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”)  other than the currency in which such sum is stated to be due hereunder (the “Agreement  Currency”), be discharged only to the extent that, on the Business Day following receipt  by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency,  the Applicable Creditor may in accordance with normal banking procedures in the relevant  jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount  of the Agreement Currency so purchased is less than the sum originally due to the  Applicable Creditor in the Agreement Currency, such Borrower agrees, as a separate  obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor  against such deficiency.  SECTION 10.19. Acknowledgement and Consent to Bail-In of Affected  Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or  in any other agreement, arrangement or understanding among the parties hereto, each party  hereto acknowledges that any liability of any Lender or Issuing Bank that is an Affected  Financial Institution arising under any Loan Document, to the extent such liability is  unsecured, may be subject to the Write-Down and Conversion Powers of the applicable  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound  by:    157      [[5866265v.11]]    (a) the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder which may be  payable to it by any Lender or Issuing Bank party hereto that is an Affected Financial  Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if  applicable:  (i)  a reduction in full or in part or cancellation of any such liability;  (ii)  a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred  on it, and that such shares or other instruments of ownership will be accepted by it  in lieu of any rights with respect to any such liability under this Agreement or any  other Loan Document; or  (iii)  the variation of the terms of such liability in connection with the  exercise of the Write-Down and Conversion Powers of the applicable Resolution  Authority.  SECTION 10.20. Acknowledgement Regarding Any Supported QFCs.  To  the extent that the Loan Documents provide support, through a guarantee or otherwise, for  Hedging Agreements or any other agreement or instrument that is a QFC (such support,  “QFC Credit Support” and each such QFC, a “Supported QFC”), the parties acknowledge  and agree as follows with respect to the resolution power of the Federal Deposit Insurance  Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall  Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “US Special Resolution Regimes”) in respect of such Supported QFC and  QFC Credit Support (with the provisions below applicable notwithstanding that the Loan  Documents and any Supported QFC may in fact be stated to be governed by the laws of  the State of New York and/or of the United States or any other state of the United States):    In the event a Covered Entity that is party to a Supported QFC (each, a  “Covered Party”) becomes subject to a proceeding under a US Special Resolution Regime,  the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any  interest and obligation in or under such Supported QFC and such QFC Credit Support, and  any rights in property securing such Supported QFC or such QFC Credit Support) from  such Covered Party will be effective to the same extent as the transfer would be effective  under the US Special Resolution Regime if the Supported QFC and such QFC Credit  Support (and any such interest, obligation and rights in property) were governed by the  laws of the United States or a state of the United States. In the event a Covered Party or a  BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a US Special  Resolution Regime, Default Rights under the Loan Documents that might otherwise apply  to such Supported QFC or any QFC Credit Support that may be exercised against such  Covered Party are permitted to be exercised to no greater extent than such Default Rights  could be exercised under the US Special Resolution Regime if the Supported QFC and the    158      [[5866265v.11]]    Loan Documents were governed by the laws of the United States or a state of the United  States. Without limitation of the foregoing, it is understood and agreed that rights and  remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights  of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  SECTION 10.21. Dutch Loan Party Representation.  If any Loan Party  incorporated under the laws of the Netherlands is represented by an attorney in connection  with the signing and/or execution of this Agreement or any other agreement, deed or  document  referred to in or made pursuant to this Agreement, it is hereby expressly  acknowledged and accepted by the other parties to this Agreement that the existence and  extent of the attorney's authority and effects of the attorney’s exercise or purported exercise  of his or her authority shall be governed by the laws of the Netherlands.  SECTION 10.22. Existing Credit Agreement.  Each Lender that was,  immediately prior to the occurrence of the Restatement Effective Date, a lender under the  Existing Credit Agreement hereby waives any right to receive any payment under  Section 2.13 of the Existing Credit Agreement arising from the consummation of the  Transactions.          [[5890522v.3]]  SCHEDULE 1.01  EXCLUDED SUBSIDIARIES  None.    





 






        2  [[5890522v.3]]  SCHEDULE 2.01  COMMITMENTS  Lender Revolving  Commitment  Delayed Draw Term  Commitment  PNC Bank, National  Association  US$145,000,000  US$26,000,000  Citibank, N.A. US$116,500,000 US$20,500,000  HSBC Bank USA, N.A. US$79,000,000 US$13,000,000  HSBC Continental Europe US$37,500,000 US$7,500,000  JPMorgan Chase Bank, N.A. US$116,500,000 US$20,500,000  TD Bank, N.A. US$116,500,000 US$20,500,000  BNP Paribas US$88,000,000 US$15,000,000  Credit Agricole Corporate and  Investment Bank  US$88,000,000 US$15,000,000  First National Bank of PA US$88,000,000 US$15,000,000  MUFG Bank, Ltd. US$88,000,000 US$15,000,000  U.S. Bank National Association US$88,000,000 US$15,000,000  Société Générale US$69,000,000 -  Bank of America, N.A. US$59,000,000 US$10,000,000  The Bank of Nova Scotia US$59,000,000 US$10,000,000  Bank of the West  US$59,000,000 US$10,000,000  Dollar Bank US$43,500,000 US$8,000,000  Goldman Sachs Bank USA US$43,500,000 US$8,000,000  The Huntington National Bank US$43,500,000 US$8,000,000  Northwest Bank US$43,500,000 US$8,000,000  Credit Industriel et  Commercial, New York Branch  US$29,000,000 US$5,000,000  Total Commitments US$1,500,000,000 US$250,000,000             3  [[5890522v.3]]  SCHEDULE 2.20(a)  LC COMMITMENTS  Lender LC Commitment  PNC Bank, National Association US$145,000,000  Citibank, N.A. US$88,750,000  HSBC Bank USA, N.A. US$88,750,000  JPMorgan Chase Bank, N.A.  US$88,750,000  TD Bank, N.A. US$88,750,000  Total LC Commitments US$500,000,000                   4  [[5890522v.3]]  SCHEDULE 2.20(b)  LETTERS OF CREDIT  Account Party Instrument  #  Beneficiary Date of  Issuance  Date of  Expiry  Currency  Amount  WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18111403-00 CHEVY CHASE  BUSINESS PARK  LIMITED  5/29/2009 7/31/2023 100,000  USD  VAPOR EUROPE 18121433-00 LA CAIXA 3/26/2014 10/2/2022  166,020  EUR   VAPOR EUROPE 18121869-00 LA CAIXA 6/27/2014 8/29/2022  32,004  EUR   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18122414-00 UNICREDIT  BANCA SPA  1/12/2015 1/31/2023  775,347  USD   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18122417-00 UNICREDIT  BANCA SPA  1/12/2015 1/31/2023  1,550,694  USD   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18124957-00 UNICREDIT  BANCA SPA  1/14/2016 1/15/2025   205,398.39  EUR   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18125434-00 AXIS BANK LTD 3/31/2016 8/30/2022  2,392  EUR   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18126672-00 SAUDI BRITISH  BANK  11/1/2016 12/20/2022  89,064  USD   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18126728-00 STATE BANK OF  INDIA  11/17/2016 6/2/2024   15,199,562  INR   WESTINGHOUSE AIR  BRAKE TECHNOLOGIES  18135330-00 ARAB BANKING  CORPORATION  9/29/2021 3/30/2023   121,745.44  USD                5  [[5890522v.3]]  SCHEDULE 3.07  SUBSIDIARIES  Company        Ownership  Interest  A and M Signalling Services Private Limited......................................................  India  100%  ABU GmbH.............................................................................................  Nordhorn, Germany  24.8%  Aero Transportation Products, Inc....................................................................  Independence, Missouri   100%  AM General Contractors SpA.........................................................................  Genova, Italy  100%  A M Rail Group Limited...............................................................................  Burton-on-Trent, UK  100%  A M Signalling Design Limited.......................................................................  Burton-on-Trent, UK  100%  Annax GmbH............................................................................................  Brunnthal, Germany  100%  Annax Scheiz AG......................................................................................  Bern, Switzerland  100%  Annax (Suzhou) Rail Systems Co., Ltd..............................................................  Suzhou, China  100%  Ateliers Hubert Gerken S.A.  .........................................................................  Belgium  100%  Austbreck Pty, Ltd. ....................................................................................  Hallam, Victoria, Australia  100%  Barber Steel Foundry Corp.  ............................................................................................   Rothbury, Michigan  100%  Barber Tian Rui Railway Supply LLC .............................................................................   Park Ridge, Illinois   50%  Bearward Engineering Limited ........................................................................................   Northampton, UK  100%  Becorit GmbH.................................................................................................................   Recklinghausen,Germany  100%  Beijing Wabtec Huaxia Technology Company Ltd.   ........................................................   Beijing, China  100%  Brecknell Willis & Co., Ltd. ........................................................................  Char, Somerset, UK  100%  Brecknell Willis (Tianjin) Electrification Systems, Co., Ltd. ....................................  TianJin, China  100%  Cambridge Forming and Cutting Ltd.................................................................  Ontario, Canada  100%  Changzhou CRRC Wabtec Diesel Engine Company Limited....................................  Changzhou, China  50%  CoFren S.A.S.   ...............................................................................................................   Vierzon, France  100%  CoFren S.r.l.  ..................................................................................................................   Avellino, Italy  100%  Coleman Hydraulics Limited   .........................................................................................   Burton-on-Trent, UK  100%  CZ-Carbon Prodcuts s.r.o.  ..............................................................................................   Czech Republic  100%  Datong Faiveley Railway Vehicle Equipment Co. Ltd.  ....................................................   Datong City, China  50%  Deptol Limited ................................................................................................................   Dublin, Ireland  100%  Durox Company ..............................................................................................................   Strongville, Ohio  100%  East Erie Commercial Railroad......................................................................  Erie, Pennsylvania   100%  E-Carbon Asia Sdn. Bhd..................................................................................................   China  50%  E-Carbon Far East Limited ..............................................................................................   Hong Kong  100%  E-Carbon S.A..................................................................................................................   Belgium   100%  Electrical Carbon UK Limited .........................................................................................   United Kingdom   100%  Evand Pty Ltd.   ..............................................................................................................   Wetherill Park, Australia  100%  Faiveley Rail Engineering Singapore Pte Ltd  ..................................................................   Singapore   50%  Faiveley Transport Amiens   ............................................................................................   Amiens, France  100%  Faiveley Transport Asia Pacific Ltd.   ..............................................................................   Hong Kong  100%  Faiveley Transport Australia Ltd.   ...................................................................................   Rosehill, Australia  100%  Faiveley Transport Birkenhead Ltd.   ...............................................................................   Birkenhead, UK  100%  Faiveley Transport Bochum GmbH..................................................................................   Bochum, Germany  100%  Faiveley Transport Canada Inc.   ......................................................................................   Montreal, Canada  100%  Faiveley Transport Czech a.s.   ........................................................................................   Plzen, Czech Republic  100%  Faiveley Transport Chile SpA.   .......................................................................................   Santiago, Chile  100%  Faiveley Transport Far East Ltd   .....................................................................................   Hong Kong  100%  Faiveley Transport Holding Gmbh & co KG   ..................................................................   Whitten, Germany  100%  Faiveley Transport Iberica SA   .......................................................................................   La Selva del Camp, Spain  100%  





 






        6  [[5890522v.3]]  Company        Ownership  Interest  Faiveley Transport Italia Spa   .........................................................................................   Turin, Italy  100%  Faiveley Transport Korea Ltd   ........................................................................................   Seoul, Korea  100%  Faiveley Transport Leipzig GmbH & Co-KG   .................................................................   Scheuditz, Germany  100%  Faiveley Transport Metro Technology Shanghai Co Ltd.   ................................................   Shanghai, China  100%  Faiveley Transport Metro Technology Taiwan Ltd.   ........................................................   Taipei, Taiwan  100%  Faiveley Transport Metro Technology Thailand Co Ltd.   .................................................   Bangkok, Thailand  100%  Faiveley Transport Nordic AB .........................................................................................   Landskrona, Sweden  100%  Faiveley Transport North America Inc.............................................................  Greenville, South Carolina   100%  Faiveley Transport Nowe GmbH .....................................................................................   Elze, Germany  100%  Faiveley Transport NSF   .................................................................................................   Neuville en Ferrain, France  100%  Faiveley Transport Plezn s.r.o.   .......................................................................................   Nyrany, Chech Republic  100%  Faiveley Transport Polska zoo   .......................................................................................   Poznan, Poland  100%  Faiveley Transport Rail Technologies India Private Limited   ...........................................   Himachal Pradesh, India  100%  Faiveley Transport Railway Trading Co. Ltd   ..................................................................   Shanghai, China  100%  Faiveley Transport SAS   .................................................................................................   Gennevilliers, France  100%  Faiveley Transport Schwab AG   .....................................................................................   Schaffhausen, Switzerland  100%  Faiveley Transport Schweiz AG   ....................................................................................   Hagendorf, Switzerland  100%  Faiveley Transport Service Maroc  ..................................................................................   Casablanca, Morocco  100%  Faiveley Transport Systems Technology (Beijing) Co. Ltd.   ............................................   Beijing, China  100%  Faiveley Transport Tamworth Ltd.   .................................................................................   Tamworth, Staffordshire,  UK    100%  Faiveley Transport Tours   ...............................................................................................   Saint Pierre des Corps,  France    100%  Faiveley Transport Tremosnice s.r.o.   .............................................................................   Treomsnice, Czech  Republic    100%  Faiveley Transport USA Inc...........................................................................  Greenville, South Carolina   100%  Faiveley Transport Verwaltungs GmbH ...........................................................................   Scheuditz, Germany  100%  F.I.P. Pty Ltd.   ................................................................................................................   Sydney, Australia  100%  FIP Brakes South Africa (Proprietary) Limited....................................................  Kempton Park, South  Africa    100%  Fandstan Electric Group, Ltd. ........................................................................  London, UK  100%  Fandstan Electric, Ltd. ..............................................................................  London, UK  100%  F.T.M.T. Singapore Pte Ltd   ...........................................................................................   Singapore   100%  Gerken Group S.A.   ........................................................................................................   Belgium  100%  Gerken Nordiska Karma Aktiebolag   ..............................................................................   Sweden  49%  Gerken SAS   ..................................................................................................................   France  100%  GE (Shijiazhuang) Mining Equipment Co., Ltd. ...............................................................   Shijiazhuang, China  100%  GE Transportation, A Wabtec Company............................................................  Wilmington, Delaware  100%  Graham White Manufacturing Company............................................................  Salem, Virginia   100%  Huatie Wabtec Faiveley (Qingdao) Transport Equipment Co., Ltd.............................  Beijing, China  49%  Hunan Times Wabtec Transportation Equipment Co., Ltd.. ..............................................   Changsha, Hunan, China  50%  Industrea Chile S.A.. .......................................................................................................   Chile  100%  Industrea Hong Kong YL Limited.. ..................................................................................   Hong Kong, China  100%  Industrea Mining Equipment Pty Ltd. ..............................................................................   Springfield Central,  Australia    100%  Industrea Mining Technology Pty Ltd. .............................................................................   Fountaindale, Australia  100%  Industrea Pty Ltd. ............................................................................................................   North Sydney, Australia  100%  Industrea Wadam (Beijing) Mining Equipment Technical Services Co., Ltd. .....................   Beijing, China  100%          7  [[5890522v.3]]  Company        Ownership  Interest  Industrea Wadam Pty Ltd. ...............................................................................................   Burnley, Australia  100%  InTrans Engineering Limited ...........................................................................................   Kolkata, West Bengal,  India    100%  Jiaxiang HK Smart Technology Co. Ltd. .........................................................  Hong Kong, China  100%  JSC Lokomotiv Kurastyru Zauyty...................................................................  Kazakhstan   50%  Keelex 351 Limited .........................................................................................................   Barton Under Needwood,  England    100%  Komatsu Wabtec Mining Systems, LLC...........................................................................   Wilmington, Delaware  50%  LH Access Technology Limited.......................................................................................   Barton Under Needwood,  England    100%  LH Group Services Limited .............................................................................................   Barton Under Needwood,  England    100%  LH Group Wheelsets Limited ..........................................................................................   Barton Under Needwood,  England    100%  Limited Liability Company Transportation Ukraine...............................................  Ukraine  100%  Locomotive Manufacturing and Services, S.A. de C.V...........................................  Mexico City, Mexico  100%  Longwood Elastomers, Inc.  ............................................................................................   Wytheville, Virginia  100%  Longwood Elastomers, S.A.  ...........................................................................................   Soria, Spain  100%  Longwood Engineered Products, Inc.  ..............................................................................   Greensboro, North  Carolina    100%  Longwood Industries, Inc.  ..............................................................................................   Brenham, Texas  100%  Longwood International, Inc.  ..........................................................................................   Greensboro, North  Carolina    100%  LWI Elastomers International, S.L.  .................................................................................   Madrid, Spain  100%  LWI International B.V.  ...................................................................................................   Amsterdam, Netherlands  100%  Medagao (Suzhou) Rubber-Metal Components Co., Ltd..........................................  Suzhou, Jiangsu, China  100%  Melett (Changzhou) Precision Machinery Co. Limited...........................................  Jiangsu, China  100%  Melett Limited..........................................................................................  South Yorkshire, England  100%  Melett North America, Inc............................................................................  Memphis, Tennessee  100%  Melett Polska Spolka z Ograniczona odpowiedzialnoscia........................................  Bydgos,Poland  100%  Merz Industrietechnik GmbH........................................................................  Österreich, Austria  100%  Metalocaucho, S.L. ....................................................................................  Urnieta, Gipuzkoa, Spain  100%  Mors Smitt France S.A.S.  ...............................................................................................   Sable sur Sarthe, France  100%  Mors Smitt Holding S.A.S.  .............................................................................................   Utrecht, Netherlands  100%  Mors Smitt Technologies, Inc.  ........................................................................................   Buffalo Grove, Illinois  100%  Mors Smitt UK Ltd.  .......................................................................................................   West Midlands, UK  100%  MorsSmitt Asia, Ltd.  ......................................................................................................   Kwun Tong, Hong Kong  100%  MotivePower, LLC  ........................................................................................................   Boise, Idaho  100%  MTC India Rubber Metal Components Private Limited..........................................  Bangalore, India  100%  Napier Turbochargers Australia Pty Ltd. ............................................................  Sydney, NSW, Australia  100%  Napier Turbochargers Limited .........................................................................................   Lincoln, Lincolnshire, UK  100%  Nordco Enterprises, Inc. ..................................................................................................   Wilmington, Delaware  100%  Nordco Holding Company. ..............................................................................................   Wilmington, Delaware  100%  Nordco Holdings Inc. ......................................................................................................   Wilmington, Delaware  100%  Nordco Inc. .....................................................................................................................   Wilmington, Delaware  100%  Nordco Rail Services, LLC ..............................................................................................   Hartford, Connecticut   100%  o.o.o. Faiveley Transport .................................................................................................   Leningrad Region, Russia  100%  Orion Engineering Ltd.................................................................................   Hong Kong, China  100%          8  [[5890522v.3]]  Company        Ownership  Interest  Pantrac GmbH ................................................................................................................   Germany  100%  Parts Supply Limited .......................................................................................................   Leicestershire, England  100%  Poli S.r.l..........................................................................................................................   Camisano, Italy  100%  Powerhouse Engine Solutions Holding GmbH .................................................................   Zug, Switzerland  100%  Powerhouse Engine Solutions Switzerland IP Holdings GmbH .........................................   Zug, Switzerland  100%  Pride Bodies Ltd......................................................................................   Ontario, Canada  100%  PT Transportation Solutions Indonesia. ............................................................................   Indonesia   100%  Qingdao Faiveley Sri Rail Brake Co. Ltd.  .......................................................................   Qingdao, Shadong, China  50%  Railcar Management, LLC............................................................................  Atlanta, Georgia  100%  Railroad Controls Construction, Inc. ................................................................  Benbrook, Texas  100%  Railroad Friction Products Corporation..............................................................  Maxton, North Carolina  100%  RCLP Acquisition LLC................................................................................  Benbrook, Texas  100%  Relay Monitoring Systems Pty Ltd...................................................................  Mulgrave, Australia  100%  Relco Land Holdings of Cedar Rapids, LLC......................................................  Albia, Iowa  100%  Relco Locomotives, Inc..............................................................................  Albia, Iowa  100%  RFPC Holding Corp... ....................................................................................................   Wilmington, Delaware  100%  Ricon Corp.  ...................................................................................................................   San Fernando, California  100%  SAB Wabco (Investments) Ltd.   .....................................................................................   Birkenhead, UK  100%  SAB Wabco UK Ltd.  .....................................................................................................   Birkenhead, UK  100%  Schaefer Equipment, Inc.   ...............................................................................................   Warren, Ohio  100%  SCT Europe Ltd.   ...........................................................................................................   Kirkcaldy, Fife, UK  100%  SCT Technology LLC .....................................................................................................   Wilmington, Delaware  100%  Semvac A/S.............................................................................................  Odense, Denmark    100%  Servicios de Administracion de Locomotoras, S. de R.L. de C.V ......................................   Mexico  100%  Shenyang CRRC Wabtec Railway Brake Technology Company, Ltd. ...............................   Shenyang, China  50%  Shijiazhuang Jiaxiang Precision Machinery Co. Ltd. ........................................................   Shijiazhuang, China  100%  ShipXpress Technologies (Private) Limited .....................................................................   Nugegoda, Sri Lanka  100%  Shuttlewagon, Inc............................................................................................................   Wilmington, Delaware   100%  Speer Carbon Company, LLC  .........................................................................................   St. Marys, Pennsylvania   20%  Standard Car Truck-Asia, Inc.  ........................................................................................   Chaoyang District, Beijing  100%  Stemmann Polska SP Zoo...........................................................................  Katy Wroclawskie, Poland  100%  Stemmann Technik France SAS.....................................................................  Buchelay, France  100%  Stemmann-Technik GmbH..........................................................................  Schüttorf, Germany  100%  Stemmann-Technik Hong Kong Company Limited.............................................  Hong Kong, China  100%  Stemmann-Technik (Shanghai) Ltd. .............................................  Shanghai, China  100%       TMT Holding AB...................... ...............................................................  Stockholm, Sweden   100%  Transportation Eastern Europe S.r.l..................................................................  Chisinau, Moldova  100%  Transportation Global Egypt L.L.C..................................................................  Egypt  100%  Transportation Global LLC...........................................................................  Wilmington, Delaware  100%  Transportation Holdings UK Limited...............................................................  Altrincham, England  100%  Transportation IP Holdings, LLC .....................................................................................   Wilmington, Delaware   100%  Transportation Kazakhstan Limited Liability Partnership.......................................  Kazakhstan  100%  Transportation Poland sp. z o.o...................................................................  Poland  100%  Transportation Rus Limited Liability Company...................................................  Moscow, Russia  100%  Transportation Services and Technologies Nigeria Ltd...........................................  Lagos, Nigeria  100%  Transportation Systems and Services Cameroon Ltd..............................................  Cameroon  100%          9  [[5890522v.3]]  Company        Ownership  Interest  Transportation Systems Pakistan (Private) Limited..............................................  Lahore, Pakistan  100%  Transportation Systems Services Operations Inc..................................................  Carson City, Nevada  100%  TransTech of South Carolina, Inc....................................................................  Piedmont, South Carolina  100%  TRSP Systems and Services Kenya Ltd.............................................................  Kenya  100%  TRSP Systems (Malaysia) SDN. BHD.............................................................  Malaysia  100%  Turbonetics Holdings, Inc. ............................................................................  Moorpark, California  100%  Vapor Ricon Europe Ltd.   ...............................................................................................   Loughborough,  Leicestershire, UK     100%  Wabtec Assembly Services S. de R.L. de C.V.  ................................................................   San Luis Potosi, Mexico  100%  Wabtec Australia Pty. Limited .........................................................................................   Rydalmere, Australia  100%  Wabtec (Beijing) Investment Co. Ltd. ..............................................................................   Beijing, Fengtai District,  China    100%  Wabtec Brasil Fabricacao e Manutencao de Equipamentos Ltda .......................................   Belo Horizonte, Brazil  100%  Wabtec Components LLC ...............................................................................................   Park Ridge, Illinois   100%  Wabtec Corporation ........................................................................................................   Wilmerding, Pennsylvania   100%  Wabtec Canada, Inc.   ......................................................................................................   Ontario, Canada  100%  Wabtec China Friction Holding Limited...........................................................................   Hong Kong, China  100%  Wabtec China Rail Products & Services Holding Limited .................................................   Hong Kong, China  100%  Wabtec Control Systems Pty Ltd.....................................................................  Osborne Park, Australia  100%  Wabtec de Mexico, S. de R.L. de C.V.   ...........................................................................   San Luis Potosi, Mexico  100%  Wabtec Economic and Trading (Shanghai) Co., Ltd. ........................................................   Shanghai, China  100%  Wabtec Egypt for Commercial Agencies ..........................................................................   New Cairo, Egypt  100%  Wabtec Europe GmbH ....................................................................................................   Brunn am Gebirge, Austria  100%  Wabtec Faiveley Rayli Sistemleri Ltd. Sti...........................................................  Istanbul, Turkey  100%  Wabtec Faiveley Turkey Ulaşım Sistemleri ve Hizmetleri A.Ş..................................  Istanbul, Turkey  100%  Wabtec France S.A.S. .....................................................................................................   Paris, France  100%  Wabtec FRG GmbH ........................................................................................................   Recklinghausen, Germany  100%  Wabtec FRG Holdings GmbH & Co. KG .........................................................................   Recklinghausen, Germany  100%  Wabtec Finance LLC ......................................................................................................   Wilmington, Delaware  100%  Wabtec Golden Bridge Transportation Technology (Hangzhou) Company, Ltd.   ..............   Xinwan Town. China  100%  Wabtec Greenville Real Estate LLC..................................................................  Greenville, South Carolina   100%  Wabtec Holding LLC   ....................................................................................................   Wilmington, Delaware  100%  Wabtec Holdings South Africa (Pty) Ltd.........................................................  Johannesburg, South Africa  75%  Wabtec India Industrial Private Limited ...........................................................................   New Delhi, India  100%  Wabtec International, Inc.   ..............................................................................................   Wilmington, Delaware  100%  Wabtec Locomotive Private Limited.. ..............................................................................   New Delhi, India  75%  Wabtec Manufacturing, LLC.........................................................................   Wilmington, Delaware  100%  Wabtec Manufacturing Mexico S. de R.L. de C.V.    San Luis Potosí, Mexico  100%  Wabtec Manufacturing Solutions, LLC..............................................................  Wilmington, Delaware  100%  Wabtec Mozambique Limitada ........................................................................................   Nacala, Mozambique  100%  Wabtec MZT AD Skopje .................................................................................................   Skopje, Macedonia  87%  Wabtec Poland Sp. z.o.o. .................................................................................................   Poznan, Poland  100%  Wabtec Netherlands BV ..................................................................................................   Amsterdam, Netherlands  100%  Wabtec Netherlands Holdings BV ...................................................................................   Amsterdam, Netherlands  100%  Wabtec Railway Electronics Corporation .........................................................................   Halifax, Nova Scotia,  Canada    100%  Wabtec Railway Electronics Holdings, LLC........................................................  Wilmington, Delaware  100%  





 






        10  [[5890522v.3]]  Company        Ownership  Interest  Wabtec Railway Electronics Manufacturing, Inc...................................................  Wilmington, Delaware  100%  Wabtec Railway Electronics, Inc.........................................................................  Wilmington, Delaware  100%  Wabtec Receivables LLC.............................................................................  Wilmington, Delaware  100%  Wabtec Rus LLC........................................................................................  Moscow, Russia  100%  Wabtec Servicios Administrativos, S.A. de C.V.   ............................................................   San Luis Potosi, Mexico  100%  Wabtec South Africa Proprietary Limited ........................................................................   Kempton Park, South  Africa    100%  Wabtec South Africa Technologies (Pty) Ltd  ..................................................................   Johannesburg, South  Africa    100%       Wabtec Texmaco Rail Private Limited...............................................................  Kolkata, India  60%  Wabtec Transportation Canada Inc. .................................................................................   Ontario, Canada  100%  Wabtec Transportation Egypt Services LLC. ....................................................................   Egypt  100%  Wabtec Transportation Engines Holding B.V. . ................................................................   Breda, Netherlands  100%  Wabtec Transportation Global Holdings, LLC..................................................................   Wilmington, Delaware   100%  Wabtec Transportation GmbH .........................................................................................   Frankfurt am Main,  Germany    100%  Wabtec Transportation Group Holdings Pty Ltd. ..............................................................   Richmond, Australia  100%  Wabtec Transportation Netherlands B.V.. ........................................................................   Amsterdam, Netherlands  100%  Wabtec Transportation Netherlands Holdings B.V............................................................   Amsterdam, Netherlands  100%  Wabtec Transportation System (Shenyang) Co. Ltd. .........................................................   Shenyang, China  100%  Wabtec Transportation Systems Co. Ltd...........................................................................   Beijing, China  100%  Wabtec Transportation Systems Limited. .........................................................................   Altrincham, England  100%  Wabtec Transportation Systems, LLC. .............................................................................   Wilmington, Delaware  100%  Wabtec UK Holdings Limited .........................................................................................   Staffordshire, England  100%  Wabtec UK Investments Limited .....................................................................................   Manchester, England  100%  Wabtec UK Limited ........................................................................................................   Doncaster, S.Yorkshire,  UK    100%  Wabtec US Rail, Inc. ..................................................................................  Wilmington, Delaware  100%  Xorail, Inc.   ....................................................................................................................   Jacksonville, Florida  100%  Zhongshan MorsSmitt Relay Ltd. ....................................................................................   Zhongshan, China  100%                                       11  [[5890522v.3]]  SCHEDULE 6.01  EXISTING INDEBTEDNESS  Account Party  Instrument  Number   Issue  Date  Expiry  Date Currency Amount  Faiveley Transport Private  Placement  “Schuldschein”  03/05/14 03/05/24 10,000,000.00 EUR  Wabtec  Transportation  Netherlands B.V.  XS2345035963 06/03/20 21  12/03/20 27  500,000,000.00  EUR            12  [[5890522v.3]]  SCHEDULE 6.02  EXISTING LIENS  None.           13  [[5890522v.3]]  SCHEDULE 6.05  EXISTING RESTRICTIVE AGREEMENTS  None.    





 






EXHIBIT A  EXHIBIT A  [[5881225]]  [FORM OF]  ASSIGNMENT AND ASSUMPTION    This Assignment and Assumption (the “Assignment and Assumption”) is  dated as of the Effective Date set forth below and is entered into by and between the  Assignor (as defined below) and the Assignee (as defined below).  Capitalized terms used  but not defined herein shall have the meanings given to them in the Credit Agreement dated  as of June 8, 2018, as amended and restated as of August 15, 2022 (as further amended,  restated, amended and restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among Westinghouse Air Brake Technologies Corporation (the  “Company”), Wabtec Transportation Netherlands B.V., the other Borrowing Subsidiaries  from time to time party thereto, the Lenders from time to time party thereto and PNC Bank,  National Association, as Administrative Agent, receipt of a copy of which is hereby  acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1  attached hereto are hereby agreed to and incorporated herein by reference and made a part  of this Assignment and Assumption as if set forth herein in full.  For an agreed consideration, the Assignor hereby irrevocably sells and  assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from  the Assignor, subject to and in accordance with the Standard Terms and Conditions referred  to above and the Credit Agreement, as of the Effective Date inserted by the Administrative  Agent as contemplated below, (a) all of the Assignor’s rights and obligations in its capacity  as a Lender under the Credit Agreement and any other documents or instruments delivered  pursuant thereto to the extent related to the amount and percentage interest identified below  of all of the outstanding rights and obligations of the Assignor under the credit facility  identified below (including any guarantees, Letters of Credit and Swingline Loans included  in such credit facility) and (b) to the extent permitted to be assigned under applicable law,  all claims, suits, causes of action and any other right of the Assignor (in its capacity as a  Lender) against any Person, whether known or unknown, arising under or in connection  with the Credit Agreement, any other documents or instruments delivered pursuant thereto  or the loan transactions governed thereby or in any way based on or related to any of the  foregoing, including contract claims, tort claims, malpractice claims, statutory claims and  all other claims at law or in equity related to the rights and obligations sold and assigned  pursuant to clause (a) above (the rights and obligations sold and assigned pursuant to  clauses (a) and (b) above being referred to herein collectively as the “Assigned Interest”).   Such sale and assignment is without recourse to the Assignor and, except as expressly  provided in this Assignment and Assumption, without representation or warranty by the  Assignor.  1. Assignor:  _______________________________________________________  2. Assignee: ________________________________________________________  [and is [a Lender]] [an Affiliate/Approved Fund of [Identify Lender]]]1                                                  1 Select as applicable.    EXHIBIT A-2  [[5881225]]  3. Borrowers: Westinghouse Air Brake Technologies Corporation, Wabtec  Transportation Netherlands B.V. and the other Borrowing Subsidiaries   4. Administrative Agent: PNC Bank, National Association  5.  Assigned Interest:   Facility Assigned  Aggregate Amount  of  Commitments/Loan s of the applicable  Class of all Lenders  Amount of the  Commitments/Loan s of the applicable  Class Assigned2  Percentage  Assigned of  Aggregate  Amount of  Commitments / Loans of the  applicable  Class of all  Lenders3  Revolving  Commitments/Revolvin g Loans  [US$]/[currency] [US$]/[currency] %  Delayed Draw Term   Commitments/Delayed   Draw Term Loans      US$[       ]    US$[          ]    %  Effective Date:                    , 20___ [TO BE INSERTED BY THE ADMINISTRATIVE  AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF  TRANSFER IN THE REGISTER THEREFOR]  The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent any  tax forms required by Section 2.14(f) of the Credit Agreement and a completed  Administrative Questionnaire in which the Assignee designates one or more credit contacts  to whom all syndicate-level information (which may contain MNPI) will be made available  and who may receive such information in accordance with the Assignee’s compliance  procedures and applicable law, including United States (Federal or State) and foreign  securities laws.    The terms set forth above are hereby  agreed to:     ________________, as Assignor,  [Consented to and]4 Accepted:    PNC BANK, NATIONAL  ASSOCIATION, as Administrative  Agent [and as Issuing Bank],                                                  2 Must comply with the minimum assignment amounts set forth in Section 10.04(b)(ii)(A) of the  Credit Agreement, to the extent such minimum assignment amounts are applicable.  3 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of the applicable Class  of all Lenders.  4 No consent of the Administrative Agent is required for an assignment to a Lender, an Affiliate of a  Lender or an Approved Fund.     EXHIBIT A-3  [[5881225]]    By:   _____________________________     Name:     Title:      ________________, as Assignee,    By:   _____________________________     Name:     Title:        By:   ___________________________     Name:     Title:    [Consented to:    [WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION    By:   _____________________________     Name:     Title:]5    [[          ], as  an Issuing Bank    By:   _____________________________     Name:     Title:]6    [PNC BANK, NATIONAL  ASSOCIATION, as Swingline Lender,    By:   ___________________________     Name:     Title:]7                                                    5 No consent of the Company is required for (a) in the case of any Delayed Draw Term Loans, (i) for  an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) if an Event of Default shall  have occurred and be continuing and (b) in the case of Revolving Commitments, Revolving Loans and  Delayed Draw Term Commitments, if an Event of Default shall have occurred and be continuing.  6 No consent of any Issuing Bank is required with respect to assignments of Delayed Draw Term  Commitments and Delayed Draw Term Loans.  7 No consent of the Swingline Lender is required with respect to assignments of Delayed Draw Term  Commitments or Delayed Draw Term Loans.  ANNEX 1 TO   ASSIGNMENT AND ASSUMPTION  EXHIBIT A-1  [[5881225]]  STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION    1. Representations and Warranties.    1.1. Assignor.  The Assignor (a) represents and warrants that (i) it is the legal  and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of  any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and  has taken all action necessary, to execute and deliver this Assignment and Assumption and  to consummate the transactions contemplated hereby; and (b) assumes no responsibility  with respect to (i) any statements, warranties or representations made in or in connection  with the Credit Agreement or any other Loan Document, other than statements made by it  herein, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or  value of any Loan Documents, (iii) the financial condition of the Borrowers, any of their  Subsidiaries or other Affiliates or any other Person obligated in respect of any Loan  Document or (iv) the performance or observance by the Borrowers, any of their  Subsidiaries or other Affiliates or any other Person of any of their respective obligations  under any Loan Document.    1.2. Assignee.  The Assignee (a) represents and warrants that (i) it has full  power and authority, and has taken all action necessary, to execute and deliver this  Assignment and Assumption, to consummate the transactions contemplated hereby and to  become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,  specified in the Credit Agreement that are required to be satisfied by it in order to acquire  the Assigned Interest and become a Lender, including, if the Assignee shall become a  Revolving Lender, that it is a Non-Public Lender, (iii) from and after the Effective Date, it  shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to  the extent of the Assigned Interest, shall have the obligations of a Lender thereunder and  (iv) it has received a copy of the Credit Agreement, together with copies of the most recent  financial statements delivered pursuant to Section 5.01 thereof (or, prior to the first such  delivery, the financial statements referred to in Section 3.04 thereof), and such other  documents and information as it has deemed appropriate to make its own credit analysis  and decision to enter into this Assignment and Assumption and to purchase the Assigned  Interest on the basis of which it has made such analysis and decision independently and  without reliance on the Administrative Agent or any other Lender and (b) agrees that (i) it  will, independently and without reliance on the Administrative Agent, the Assignor or any  other Lender, and based on such documents and information as it shall deem appropriate  at the time, continue to make its own credit decisions in taking or not taking action under  the Loan Documents, and (ii) it will perform in accordance with their terms all of the  obligations which by the terms of the Loan Documents are required to be performed by it  as a Lender.    2.  Payments.  From and after the Effective Date, the Administrative Agent  shall make all payments in respect of the Assigned Interest (including payments of  principal, interest, fees and other amounts) to the Assignor for amounts which have accrued  to but excluding the Effective Date and to the Assignee for amounts which have accrued  





 






  EXHIBIT A-1-2  [[5881225]]  from and after the Effective Date.  Notwithstanding the foregoing, the Administrative  Agent shall make all payments of interest, fees or other amounts paid or payable in kind  from and after the Effective Date to the Assignee.    3. General Provisions.  This Assignment and Assumption shall be binding  upon, and inure to the benefit of, the parties hereto and their respective successors and  assigns.  This Assignment and Assumption may be executed in any number of counterparts  (and by different parties hereto on different counterparts), each of which shall constitute  an original, but all of which when taken together shall constitute a single contract.  Delivery  of an executed counterpart of a signature page of this Assignment and Assumption or any  document, amendment, approval, consent, information, notice, certificate, request,  statement, disclosure or authorization related to this Assignment and Assumption or the  transactions contemplated hereby or thereby (each, an “Ancillary Document”) that is an  Electronic Signature transmitted by emailed .pdf or any other electronic means that  reproduces an image of an actual executed signature page shall be effective as delivery of  a manually executed counterpart of this Assignment and Assumption or such Ancillary  Document, as applicable. The words “execution”, “execute”, “signed”, “signature”,  “delivery” and words of like import in or relating to this Assignment and Assumption or  any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or  the keeping of records in any electronic form (including deliveries by emailed .pdf or any  other electronic means that reproduces an image of an actual executed signature page),  each of which shall be of the same legal effect, validity or enforceability as a manually  executed signature, physical delivery thereof or the use of a paper-based recordkeeping  system, as the case may be.  This Assignment and Assumption shall be governed by and  construed in accordance with the laws of the State of New York.  EXHIBIT B  EXHIBIT B  [[5881225]]  [FORM OF]  BORROWING REQUEST  PNC Bank, National Association  as Administrative Agent  [ADDRESS]  Attention of [                ]  Fax No.: [                     ]  Email: [                         ]      [Date]    Ladies and Gentlemen:  Reference is made to the Credit Agreement dated as of June 8, 2018, as  amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, a Delaware corporation (the  “Company”), Wabtec Transportation Netherlands B.V., the other Borrowing Subsidiaries  from time to time party thereto, the Lenders from time to time party thereto and PNC Bank,  National Association, as Administrative Agent.  Capitalized terms used but not otherwise  defined herein shall have the meanings specified in the Credit Agreement.  This notice constitutes a Borrowing Request and the [Borrower specified  below] [the Company on behalf of the Borrower specified below] hereby gives notice,  pursuant to Section 2.03 of the Credit Agreement, that it requests a [Delayed Draw Term  Borrowing] [Revolving Borrowing] under the Credit Agreement, and in connection  therewith specifies the following information with respect to such Borrowing:  (A) Name of Borrower: ________________  (B) Class of Borrowing:  [Delayed Draw Term Borrowing] [Revolving  Borrowing]  (C) Currency and aggregate   principal amount of Borrowing:1 [US$][specify Alternative  Currency for Revolving Borrowings]  (D) Date of Borrowing (which is a Business Day): ________________  (E) Type of Borrowing:2 ____________________________________                                                  1  Must comply with Sections 2.01 and 2.02(c) of the Credit Agreement.  2  Specify ABR Borrowing, Term SOFR Borrowing, CDOR Borrowing, RFR Borrowing or, if  applicable pursuant to Section 2.11 of the Credit Agreement, Daily Simple SOFR Borrowing. If no election    EXHIBIT B-2  [[5881225]]  (F) Interest Period and the last day thereof:3 _____________________  (G) Location and number of the account to which proceeds of the  requested Borrowing are to be disbursed: [Name of Bank]  (Account No.:__________________________)   [Issuing Bank to which proceeds of the requested Borrowing are to  be disbursed:______________________________)]4  [The [Borrower specified above] [Company on behalf of the Borrower  specified above] hereby certifies that the conditions specified in paragraphs (a) and (b) of  Section 4.02 of the Credit Agreement have been satisfied.]  Very truly yours,    [WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION]   [WABTEC TRANSPORTATION  NETHERLANDS B.V.]  [OTHER BORROWER]  By:       Name:    Title:                                                   as to the Type of Borrowing is specified, then the requested Borrowing shall be (a) in the case of a Borrowing  denominated in US Dollars, an ABR Borrowing, (b) in the case of a Borrowing denominated in Canadian  Dollars, a CDOR borrowing and (c) in the case of a Borrowing denominated in Sterling or Euro, an RFR  Borrowing.  3  Shall be subject to the definition of “Interest Period” and can be a period of one, three or, solely in  the case of a Term SOFR Borrowing, six months.  If an Interest Period is not specified with respect to any  requested Term SOFR Borrowing or CDOR Borrowing, then the applicable Borrower shall be deemed to  have selected an Interest Period of one month’s duration.  May not end after the applicable Maturity Date.  4  Specify only in the case of an ABR Revolving Borrowing requested to finance the reimbursement  of an LC Disbursement as provided in Section 2.20(f) of the Credit Agreement.  EXHIBIT C-1  EXHIBIT C-1  [[5881225]]  [FORM OF] BORROWING SUBSIDIARY ACCESSION  AGREEMENT dated as of [           ] (this “Agreement”), among  WESTINGHOUSE AIR BRAKE TECHNOLOGIES  CORPORATION, a Delaware corporation (the “Company”),  [NAME OF NEW BORROWING SUBSIDIARY], a [Jurisdiction]  [organizational form] (the “New Borrowing Subsidiary”), and PNC  BANK, NATIONAL ASSOCIATION, as Administrative Agent.  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among the Company, Wabtec Transportation Netherlands B.V., the other Borrowing  Subsidiaries from time to time party thereto, the Lenders from time to time party thereto  and PNC Bank, National Association, as Administrative Agent.  Capitalized terms used  but not otherwise defined herein shall have the meanings assigned to them in the Credit  Agreement.  Pursuant to Section 2.22(a) of the Credit Agreement, the Company and the  New Borrowing Subsidiary desire that the New Borrowing Subsidiary become a  Borrowing Subsidiary under the Credit Agreement[, and each Revolving Lender shall have  provided its prior written consent thereto1].  Accordingly, upon execution of this Agreement by the Company, the New  Borrowing Subsidiary and the Administrative Agent, the New Borrowing Subsidiary shall  be a party to the Credit Agreement and shall constitute a “Borrowing Subsidiary” for all  purposes thereof, and the New Borrowing Subsidiary hereby agrees to be bound by all  provisions of the Credit Agreement applicable to it as a Borrower or a Borrowing  Subsidiary.  The Company and the New Borrowing Subsidiary represent and warrant  that (a) the New Borrowing Subsidiary is a wholly owned Subsidiary of the Company, (b)  the New Borrowing Subsidiary is organized in [jurisdiction] as a [organizational form],  and (c) the representations and warranties applicable to the New Borrowing Subsidiary as  a Borrower (including, after giving effect to this Agreement, the New Borrowing  Subsidiary) set forth in the Loan Documents are true and correct (i) in the case of the  representations and warranties qualified as to materiality, in all respects and (ii) otherwise,  in all material respects, in each case on and as of the date of the date hereof, except in the  case of any such representation and warranty that expressly relates to a prior date, in which  case such representation and warranty are so true and correct on and as of such prior date.  The New Borrowing Subsidiary expressly acknowledges the appointment  of the Company as its agent as set forth in Sections 2.22(c) and 10.09(e) of the Credit  Agreement.  The New Borrowing Subsidiary also expressly acknowledges the provisions                                                  1 Bracketed language to be excluded if New Borrowing Subsidiary is an Approved Netherlands  Borrower or a Domestic Borrowing Subsidiary.  





 






  EXHIBIT C-1-2  [[5881225]]  of Section 10.09(f) of the Credit Agreement, and agrees that upon the effectiveness of this  Agreement, it shall be bound thereby.   This Agreement shall be governed by and construed in accordance with the  laws of the State of New York.  The provisions of Sections 10.06, 10.09(b), 10.09(c),  10.09(d) and 10.10 of the Credit Agreement are hereby incorporated by reference, mutatis  mutandis, as if set forth in full herein.    EXHIBIT C-1-3  [[5881225]]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement  to be duly executed by their authorized officers as of the date first appearing above.    WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION,   By:    Name:    Title:       [NAME OF NEW BORROWING  SUBSIDIARY],  By:    Name:    Title:     PNC BANK, NATIONAL  ASSOCIATION, as Administrative Agent  By:    Name:    Title:   EXHIBIT C-2  EXHIBIT C-2  [[5881225]]  [FORM OF BORROWING SUBSIDIARY TERMINATION]  PNC Bank, National Association     as Administrative Agent  [ADDRESS]  Attention of [                ]  Fax No.: [                     ]  Email: [                         ]  [Date]    Ladies and Gentlemen:  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, Wabtec Transportation  Netherlands B.V., the other Borrowing Subsidiaries from time to time party thereto, the  Lenders from time to time party thereto and PNC Bank, National Association, as  Administrative Agent.  Capitalized terms used but not otherwise defined herein shall have  the meanings assigned to them in the Credit Agreement.  Pursuant to Section 2.22(b) of the Credit Agreement, the Company hereby  terminates the status of [Name of Terminated Borrowing Subsidiary] (the “Terminated  Borrowing Subsidiary”) as a Borrowing Subsidiary under the Credit Agreement.  The  Company represents and warrants that no Revolving Loans or Swingline Loans made to  the Terminated Borrowing Subsidiary, or any Letter of Credit (other than any Letter of  Credit with respect to which the Company is a joint and several co-applicant or has agreed  to be obligor in accordance with Section 2.22(b) of the Credit Agreement) issued for the  account of the Terminated Borrowing Subsidiary, are outstanding as of the date hereof and  that all interest, fees or other amounts payable with respect thereto by the Terminated  Borrowing Subsidiary pursuant to the Credit Agreement have been paid in full on or prior  to the date hereof.  Very truly yours,  WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION,   By:    Name:    Title:   EXHIBIT D  EXHIBIT D  [[5881225]]  [FORM OF] COMPLIANCE CERTIFICATE  The form of this Compliance Certificate has been prepared for convenience only, and is  not to affect, or to be taken into consideration in interpreting, the terms of the Credit  Agreement referred to below.  The obligations of the Company and the Borrowing  Subsidiaries under the Credit Agreement are as set forth in the Credit Agreement, and  nothing in this Compliance Certificate, or the form hereof, shall modify such obligations  or constitute a waiver of compliance therewith in accordance with the terms of the Credit  Agreement.  In the event of any conflict between the terms of this Compliance Certificate  and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern  and control, and the terms of this Compliance Certificate are to be modified accordingly.  Reference is made to the Credit Agreement dated as of June 8, 2018, as  amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, a Delaware corporation (the  “Company”), Wabtec Transportation Netherlands B.V., a private limited liability company  organized under the laws of the Netherlands (besloten vennootschap met beperkte  aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber of  Commerce under number 72948957, the other Borrowing Subsidiaries from time to time  party thereto, the Lenders from time to time party thereto and PNC Bank, National  Association, as Administrative Agent.  Each capitalized term used but not defined herein  shall have the meaning specified in the Credit Agreement.   The undersigned hereby certificates that [he][she] is a [        ]1 of the  Company and, in [his/her] capacity as such and not individually, hereby further certifies as  follows:  1.  [Attached as Schedule I hereto are the unaudited condensed consolidated  financial statements required by Section 5.01(a) of the Credit Agreement as of the end of  and for the Fiscal Quarter ended [    ] and the then elapsed portion of the Fiscal Year (and,  in the case of the consolidated statements of income and cash flows, on a comparative basis  with the statements for such period in the prior Fiscal Year of the Company).] [or] [The  condensed consolidated financial statements required by Section 5.01(a) of the Credit  Agreement as of the end of and for the Fiscal Quarter ended [  ] and the then elapsed portion  of the Fiscal Year are available on the website of the Company at http://www.wabtec.com  or on the website of the SEC at http://www.sec.gov.] Such financial statements present  fairly, in all material respects, the consolidated financial position of the Company and its  Subsidiaries as at the dates indicated and their results of operations and cash flows for the  periods indicated in accordance with GAAP, subject to normal year-end audit adjustments  and the absence of certain footnotes.]  [or]                                                  1 Must be a Senior Officer of the Company.  





 






  EXHIBIT D-2  [[5881225]]  1.  [Attached as Schedule I hereto are the audited consolidated financial  statements required by Section 5.01(b) of the Credit Agreement as of the end of and for the  Fiscal Year ended [       ], together with an audit opinion thereon of a nationally recognized  independent registered public accounting firm required by Section 5.01(b).] [or] [The  audited consolidated financial statements required by Section 5.01(b) of the Credit  Agreement as of the end of and for the Fiscal Year ended [      ], together with an audit  opinion thereon of a nationally recognized independent registered public accounting firm  required by Section 5.01(b), are available on the website of the Company at  http://www.wabtec.com or on the website of the SEC at http://www.sec.gov.]  2.  I have no knowledge of the existence and continuance as of the date of  this Compliance Certificate of any Default or an Event of Default[, except as set forth in a  separate attachment, if any, to this Compliance Certificate, specifying the details thereof  and any action taken or proposed to be taken with respect thereto].  3.  The Company is in compliance with the financial covenants contained  in Section 6.06 of the Credit Agreement as shown on Annex 1 hereto for the period covered  by this Compliance Certificate.  [4. Attached as Annex 2 hereto are the statements of reconciliation required  pursuant to Section 5.01(c) of the Credit Agreement.]2  The foregoing certifications are made and delivered on [       ] pursuant to  Section 5.01(c) of the Credit Agreement.  WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION,   By:    Name:    Title:                                                     2 Include the bracketed language only if the reconciliation statements are required pursuant to Section  5.01(c) of the Credit Agreement.  ANNEX 1 TO  COMPLIANCE CERTIFICATE  EXHIBIT D-1  [[5881225]]  FOR THE FISCAL [QUARTER] [YEAR] ENDED [mm/dd/yy].  (a) Consolidated Net Income:  the net income (or loss) of the  Company and its Subsidiaries for such period, determined on a  consolidated basis in accordance with GAAP: US$[___,___,___]  (b) EBITDA:1 (i) + (ii) - (iii) = US$[___,___,___]   (i) Consolidated Net Income for such period (see item (a)): US$[___,___,___]   (ii)2  (A) Interest Expense: US$[___,___,___]   (B) income tax expense: US$[___,___,___]   (C) depreciation and amortization: US$[___,___,___]   (D) losses from Dispositions: US$[___,___,___]   (E) extraordinary losses: US$[___,___,___]   (F) all non-cash charges, expenses or losses, other than  any noncash charge, expense or loss (x) constituting a  write-off of receivables or (y) to the extent any cash  payment was or will be made in respect thereof,  whether during such period or in any prior or  subsequent period: US$[___,___,___]   (G) one-time transaction costs, fees and expenses related  to any Material Acquisition, whether or not such  Material Acquisition is consummated: US$[___,___,___]   (H) restructuring, integration and related charges or  expenses (which for the avoidance of doubt, include  retention, severance, systems establishment costs,  contract termination costs, future lease commitments  and costs to consolidate facilities and relocate  employees) related to any Material Acquisition,  provided that the charges or expenses added back  pursuant to this clause (H) shall not exceed  US$110,000,000 in the aggregate for all periods since  the Effective Date (it being understood that the  limitation in this proviso shall not apply to any portion  US$[___,___,___]                                                  1 For the purposes of calculating EBITDA for any period, in the event of a Material Acquisition or a  Material Disposition is consummated during the period of determination, the calculation of the Leverage  Ratio shall be made giving pro forma effect to such transaction as if it had occurred on the first day of such  period.  2 Items to be set forth without duplication and to the extent deducted in determining Consolidated Net  Income.    EXHIBIT D-1-2  [[5881225]]  or such charges or expenses permitted to be added  back pursuant to any other clause of this definition):   (iii)3 (A) noncash credits to net income, other than any credits  to the extent any cash payment was or will be received  in respect thereof, whether during such period or in  any prior or subsequent period: US$[___,___,___]   (B) gains from Dispositions: US$[___,___,___]   (C) noncash gains from discontinued operations: US$[___,___,___]   (D) extraordinary income: US$[___,___,___]  (c) Total Debt:4  (i) + (ii) + (iii) + (iv) + (v) = US$[___,___,___]   (i) all indebtedness and all borrowed money, whether or not  evidenced by bonds, debentures, notes or similar  instruments, of the Company and its Subsidiaries:  US$[___,___,___]     (ii) all obligations under Capital Leases of the Company and  its Subsidiaries that have been or should be recorded as  liabilities on a balance sheet in accordance with GAAP: US$[___,___,___]   (iii) all obligations to pay the deferred purchase price of  property or services of the Company and its Subsidiaries  (excluding trade accounts payable in the ordinary course of  business and earn-out or other contingent payment  obligations arising in connection with an Acquisition): US$[___,___,___]   (iv) all obligations, contingent or otherwise, of the Company  and its Subsidiaries with respect to the face amount of all  letters of credit (whether or not drawn), bankers’  acceptances, bank guaranties and similar obligations  issued for the account of such Person: US$[___,___,___]   (v) all Attributable Debt of the Company and its Subsidiaries: US$[___,___,___]  (d) Unrestricted Cash:  as of any date of determination, cash and  Cash Equivalent Investments owned on such date by the  US$[___,___,___]                                                  3 Items to be set forth without duplication and to the extent included in determining such Consolidated  Income.  4 Total Debt shall not include any obligations of the Company or any Subsidiary arising from any  Performance Letter of Credit, surety bonds, performance bonds, bid bonds, performance guaranties or other  similar obligations incurred in the ordinary course of business and that do not support Indebtedness. For  purposes of determining Total Debt at any time after the definitive agreement for any Material Acquisition  shall have been executed, any Acquisition Indebtedness with respect to such Material Acquisition shall,  unless such material Acquisition shall have been consummated, be disregarded.    EXHIBIT D-1-3  [[5881225]]  Company and its Subsidiaries, as reflected on a consolidated  balance sheet of the Company prepared as of such date in  accordance with GAAP, provided that (i) such cash and Cash  Equivalent Investments do not appear (and in accordance with  GAAP would not be required to appear) as “restricted” on such  consolidated balance sheet and (ii) for so long as any Acquisition  Indebtedness is disregarded for purposes of determining Total  Debt in accordance with the definition of such term, all proceeds  of such Acquisition Indebtedness shall be disregarded for  purposes of determining Unrestricted Cash:  (e) Interest Expense: the consolidated interest expense of the  Company and its Subsidiaries for such period (including all  imputed interest on Capital Leases), determined on a  consolidated basis in accordance with GAAP: US$[___,___,___]  (f) Leverage Ratio: ((i) - (ii)) / (iii) = [   ] to 1.00   (i) Total Debt (see item (c) above): US$[___,___,___]   (ii) Unrestricted Cash (see item (d) above), provided that the  amount deducted pursuant to this clause (ii) may not in any  event exceed, as of any date of determination,  US$300,000,000: US$[___,___,___]   (iii) EBITDA for such period (see item (b) above): US$[___,___,___]  (g) Interest Coverage Ratio: (i) / (ii) = [       ] to 1.00   (i) EBITDA for such period (see item (b) above): US$[___,___,__]   (ii) Interest Expense for such period (see item (e) above): US$[___,___,__]                              





 






EXHIBIT E  EXHIBIT E  [[5881225]]  [FORM OF]  INTEREST ELECTION REQUEST     PNC Bank, National Association  as Administrative Agent  [ADDRESS]  Attention of [                ]  Fax No.: [                     ]  Email: [                         ]    [Date]  Ladies and Gentlemen:  Reference is made to the Credit Agreement dated as of June 8, 2018, as  amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, a Delaware corporation (the  “Company”), Wabtec Transportation Netherlands B.V., a private limited liability company  organized under the laws of the Netherlands (besloten vennootschap met beperkte  aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber of  Commerce under number 72948957, the Borrowing Subsidiaries from time to time party  thereto, the Lenders from time to time party thereto and PNC Bank, National Association,  as Administrative Agent.  Each capitalized term used but not defined herein shall have the  meaning assigned to it in the Credit Agreement.  This notice constitutes an Interest Election Request and the [Borrower  specified below] [the Company on behalf of the Borrower specified below] hereby gives  notice, pursuant to Section 2.05 of the Credit Agreement, that it requests the conversion or  continuation of a [Delayed Draw Term Borrowing] [Revolving Borrowing] under the  Credit Agreement, and in connection therewith specifies the following information with  respect to such Borrowing and each resulting Borrowing:  1.  Borrower: ____________________________  2. Borrowing to which this request applies: _____________________________    Principal Amount and Currency: ______________________________    Type: _______________________________    Interest Period1: _______________________________  3. Effective date of this election2: _______________________________                                                  1 In the case of a Term SOFR Borrowing or a CDOR Borrowing, specify the last day of the current  Interest Period therefor. If any such Interest Election Request does not specify an Interest Period, the  applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.      2 Must be a Business Day.    EXHIBIT E-2  [[5881225]]  4. Resulting Borrowing[s]3    Principal Amount and Currency4: ______________________________    Type5: _______________________________    Interest Period6: _______________________________    Very truly yours,    [WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION]   [WABTEC TRANSPORTATION  NETHERLANDS B.V.]  [BORROWING SUBSIDIARY],   By:    Name:    Title:                                                     3 If different options are being elected with respect to different portions of the Borrowing specified in  item 2 above, provide the information required by this item 3 for each resulting Borrowing.  Each resulting  Borrowing shall be in an aggregate amount that is an integral multiple of, and not less than, the amount  specified for a Borrowing in Section 2.02(c) of the Credit Agreement.  4 Indicate the principal amount of the resulting Borrowing and the percentage of the Borrowing in item  2 above.  5 Specify whether the resulting Borrowing is to be an ABR Borrowing, a Term SOFR Borrowing, a  CDOR Borrowing or, if applicable pursuant to Section 2.11 of the Credit Agreement, a Daily Simple SOFR  Borrowing.  6 Applicable only if the resulting Borrowing is to be a Term SOFR Borrowing or a CDOR Borrowing.   Shall be subject to the definition of “Interest Period” and can be a period of one, three or, solely in the case  of a Term SOFR Borrowing, six months.    EXHIBIT F  EXHIBIT F  [[5881225]]  [FORM OF]  SWINGLINE BORROWING REQUEST  PNC Bank, National Association  as Swingline Lender  [ADDRESS]  Attention of [                ]  Fax No.: [                     ]  Email: [                         ]      [Date]    Ladies and Gentlemen:  Reference is made to the Credit Agreement dated as of June 8, 2018, as  amended and restated as of August 15, 2022 (as further amended, restated, supplemented  or otherwise modified time to time, the “Credit Agreement”), among Westinghouse Air  Brake Technologies Corporation, a Delaware corporation (the “Company”), Wabtec  Transportation Netherlands B.V., the other Borrowing Subsidiaries party thereto, the  Lenders party thereto and PNC Bank, National Association, as Administrative Agent.   Capitalized terms used but not otherwise defined herein shall have the meanings specified  in the Credit Agreement.  This notice constitutes a Swingline Borrowing Request and the [Borrower  specified below] [the Company on behalf of the Borrower specified below] hereby gives  notice, pursuant to Section 2.21(b) of the Credit Agreement, that it requests a Swingline  Loan under the Credit Agreement, and in connection therewith specifies the following  information with respect to such Swingline Loan:  (A) Name of Borrower: ________________  (B) Aggregate principal amount of Swingline Loan:1 US$[         ]  (C) Date of Borrowing (which is a Business Day): ________________  (D) Location and number of the account to which proceeds of the  requested Swingline Loan are to be disbursed: [Name of Bank]  (Account No.:__________________________)   [Issuing Bank to which proceeds of the requested Borrowing are to  be disbursed:______________________________)]2                                                  1  Must comply with Sections 2.21(a) and 2.02(c) of the Credit Agreement.  2  Specify only in the case of a Swingline Loan requested to finance the reimbursement of an LC  Disbursement as provided in Section 2.20(f) of the Credit Agreement.    EXHIBIT F-2  [[5881225]]    The [Borrower specified above] [Company on behalf of the Borrower  specified above] hereby certifies that the conditions specified in paragraphs (a) and (b) of  Section 4.02 of the Credit Agreement are satisfied.  Very truly yours,    [WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION]   [WABTEC TRANSPORTATION  NETHERLANDS B.V.]  [OTHER BORROWER]  By:    Name:    Title:   





 






EXHIBIT G-1  EXHIBIT G-1  [[5881225]]  [FORM OF]  US TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, Wabtec Transportation  Netherlands B.V., the other Borrowing Subsidiaries from time to time party thereto, the  Lenders from time to time party thereto and PNC Bank, National Association, as  Administrative Agent.    Pursuant to the provisions of Section 2.14 of the Credit Agreement, the  undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s)  (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this  certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (c)  it is not a ten percent shareholder of the Company or any Domestic Borrowing Subsidiary  within the meaning of Section 881(c)(3)(B) of the Code, (d) it is not a controlled foreign  corporation related to the Company or any Domestic Borrowing Subsidiary as described  in Section 881(c)(3)(C) of the Code, and (e) interest payments on the Loan(s) are not  effectively connected with its conduct of a US trade or business.  The undersigned has furnished the Administrative Agent and the Company  with a certificate of its non-US Person status on IRS Form W-8BEN or IRS Form W- 8BEN-E, as applicable.  By executing this certificate, the undersigned agrees that (a) if the  information provided on this certificate changes, or if a lapse in time or change in  circumstances renders the information on this certificate obsolete, expired or inaccurate,  the undersigned shall promptly so inform the Company and the Administrative Agent in  writing and deliver promptly to the Company and the Administrative Agent an updated  certificate or other appropriate documentation (including any new documentation  reasonably requested by the Company or the Administrative Agent) or promptly notify the  Company and the Administrative Agent in writing of its legal ineligibility to do so, and (b)  the undersigned shall have at all times furnished the Company and the Administrative  Agent with a properly completed and currently effective certificate in either the calendar  year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.     EXHIBIT G-2  [[5881225]]  Unless otherwise defined herein, terms defined in the Credit Agreement and  used herein shall have the meanings given to them in the Credit Agreement.      [NAME OF LENDER]  By:    Name:     Title:    Date: ________ __, 20[  ]  EXHIBIT G-2  EXHIBIT G-2  [[5881225]]  [FORM OF]   US TAX COMPLIANCE CERTIFICATE  (For Non-US Participants That Are Not Partnerships For US Federal Income Tax  Purposes)  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, Wabtec Transportation  Netherlands B.V., the other Borrowing Subsidiaries from time to time party thereto, the  Lenders from time to time party thereto and PNC Bank, National Association, as  Administrative Agent.    Pursuant to the provisions of Section 2.14 of the Credit Agreement, the  undersigned hereby certifies that (a) it is the sole record and beneficial owner of the  participation in respect of which it is providing this certificate, (b) it is not a bank within  the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent shareholder of  the Company or any Domestic Borrowing Subsidiary within the meaning of Section  881(c)(3)(B) of the Code, (d) it is not a controlled foreign corporation related to the  Company or any Domestic Borrowing Subsidiary as described in Section 881(c)(3)(C) of  the Code, and (e) the interest payments with respect to such participation are not effectively  connected with its conduct of a US trade or business.  The undersigned has furnished its participating Lender with a certificate of  its non-US Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable.   By executing this certificate, the undersigned agrees that (a) if the information provided on  this certificate changes, or if a lapse in time or change in circumstances renders the  information on this certificate obsolete, expired or inaccurate, the undersigned shall  promptly so inform such Lender in writing and deliver promptly to such Lender an updated  certificate or such other appropriate documentation (including any new documentation  reasonably requested by such Lender) or promptly notify such Lender in writing of its legal  ineligibility to do so, and (b) the undersigned shall have at all times furnished such Lender  with a properly completed and currently effective certificate in either the calendar year in  which each payment is to be made to the undersigned, or in either of the two calendar years  preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and  used herein shall have the meanings given to them in the Credit Agreement.    [NAME OF PARTICIPANT]  By:    Name:     Title:      EXHIBIT G-3-2  [[5881225]]  Date: ________ __, 20[  ]  





 






EXHIBIT G-3  EXHIBIT G-3  [[5881225]]  [FORM OF]   US TAX COMPLIANCE CERTIFICATE  (For Non-US Participants That Are Partnerships For US Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, Wabtec Transportation  Netherlands B.V., the other Borrowing Subsidiaries from time to time party thereto, the  Lenders from time to time party thereto and PNC Bank, National Association, as  Administrative Agent.    Pursuant to the provisions of Section 2.14 of the Credit Agreement, the  undersigned hereby certifies that (a) it is the sole record owner of the participation in  respect of which it is providing this certificate, (b) its direct or indirect partners/members  are the sole beneficial owners of such participation, (c) neither the undersigned nor any of  its direct or indirect partners/members claiming the portfolio interest exemption  (“Applicable Partners/Members”) is a bank within the meaning of Section 881(c)(3)(A) of  the Code, (d) none of its Applicable Partners/Members is a ten percent shareholder of the  Company or any Domestic Borrowing Subsidiary within the meaning of Section  881(c)(3)(B) of the Code, (e) none of its Applicable Partners/Members is a controlled  foreign corporation related to the Company or any Domestic Borrowing Subsidiary as  described in Section 881(c)(3)(C) of the Code, and (f) the interest payments with respect  to such participation are not effectively connected with the undersigned’s or its Applicable  Partners’/Members’ conduct of a US trade or business.   The undersigned has furnished its participating Lender with IRS Form W- 8IMY accompanied by one of the following forms from each of its Applicable  Partners/Members: (a) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or  (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN- E, as applicable, from each of such partner's/member's beneficial owners that is claiming  the portfolio interest exemption.  By executing this certificate, the undersigned agrees that  (i) if the information provided on this certificate changes, or if a lapse in time or change in  circumstances renders the information on this certificate obsolete, expired or inaccurate,  the undersigned shall promptly so inform such Lender in writing and deliver promptly to  such Lender an updated certificate or other appropriate documentation (including any new  documentation reasonably requested by such Lender) or promptly notify such Lender in  writing of its legal ineligibility to do so, and (ii) the undersigned shall have at all times  furnished such Lender with a properly completed and currently effective certificate in  either the calendar year in which each payment is to be made to the undersigned, or in  either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and  used herein shall have the meanings given to them in the Credit Agreement.    EXHIBIT G-3-2  [[5881225]]  [NAME OF PARTICIPANT]  By:    Name:     Title:    Date: ________ __, 20[  ]  EXHIBIT G-4  EXHIBIT G-4  [[5881225]]  [FORM OF]   US TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of June 8, 2018,  as amended and restated as of August 15, 2022 (as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, Wabtec Transportation  Netherlands B.V., the other Borrowing Subsidiaries from time to time party thereto, the  Lenders from time to time party thereto and PNC Bank, National Association, as  Administrative Agent.     Pursuant to the provisions of Section 2.14 of the Credit Agreement, the  undersigned hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as  any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b)  its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as  well as any note(s) evidencing such Loan(s)), (c) neither the undersigned nor any of its  direct or indirect partners/members claiming the portfolio interest exemption (“Applicable  Partners/Members”) is a bank within the meaning of Section 881(c)(3)(A) of the Code, (d)  none of its Applicable Partners/Members is a ten percent shareholder of the Company or  any Domestic Borrowing Subsidiary within the meaning of Section 881(c)(3)(B) of the  Code, (e) none of its Applicable Partners/Members is a controlled foreign corporation  related to the Company or any Domestic Borrowing Subsidiary as described in Section  881(c)(3)(C) of the Code, and (f) the interest payments on the Loan(s) are not effectively  connected with the undersigned’s or its Applicable Partners’/Members’ conduct of a US  trade or business.  The undersigned has furnished the Administrative Agent and the Company  with IRS Form W-8IMY accompanied by one of the following forms from each of its  Applicable Partners/Members: (a) an IRS Form W-8BEN or IRS Form W-8BEN-E, as  applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS  Form W-8BEN-E, as applicable, from each of such partner's/member's beneficial owners  that is claiming the portfolio interest exemption.  By executing this certificate, the  undersigned agrees that (i) if the information provided on this certificate changes, or if a  lapse in time or change in circumstances renders the information on this certificate  obsolete, expired or inaccurate, the undersigned shall promptly so inform the Company  and the Administrative Agent in writing and promptly deliver to the Company and the  Administrative Agent an updated certificate or other appropriate documentation (including  any new documentation reasonably requested by the Company or the Administrative  Agent) or promptly notify the Company and the Administrative Agent in writing of its  legal ineligibility to do so, and (ii) the undersigned shall have at all times furnished the  Company and the Administrative Agent with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.    EXHIBIT G-4-2  [[5881225]]  Unless otherwise defined herein, terms defined in the Credit Agreement and  used herein shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:    Name:     Title:    Date: ________ __, 20[  ]    





 






EXHIBIT H  EXHIBIT H  [[5881225]]  [FORM OF] SOLVENCY CERTIFICATE  This Certificate (this “Certificate”) is being delivered pursuant to Section 4(e) of  the Amendment and Restatement Agreement dated as of August 15, 2022 (the  “Restatement Agreement”) to the Credit Agreement dated as of June 8, 2018 (as amended  and restated by the Restatement Agreement and as further amended, restated, amended and  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Westinghouse Air Brake Technologies Corporation, a Delaware corporation (the  “Company”), Wabtec Transportation Netherlands B.V., a private limited liability company  organized under the laws of the Netherlands (besloten vennootschap met beperkte  aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber of  Commerce under number 72948957, the other Borrowing Subsidiaries from time to time  party thereto, the Lenders from time to time party thereto and PNC Bank, National  Association, as administrative agent.  Unless otherwise defined herein, terms used herein  have the meanings provided in the Credit Agreement.  The undersigned hereby certifies that [he][she] is the Chief Financial Officer of the  Company.  The undersigned hereby further certifies, solely in [his][her] capacity as Chief  Financial Officer of the Company and not in an individual capacity, that, as of the date  hereof, after giving effect to the making of the Loans under the Credit Agreement, the  application of the proceeds of such Indebtedness and the consummation of the Transactions  to occur on the date hereof:  1.  The fair value of the assets of the Company and its Subsidiaries, on a  consolidated basis, exceeds, on a consolidated basis, their debts and liabilities,  subordinated, contingent or otherwise.  2. The present fair saleable value of the property of the Company and its  Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay  the probable liability, on a consolidated basis, of their debts and other liabilities,  subordinated, contingent or otherwise, as such debts and other liabilities become absolute  and matured.  3. The Company and its Subsidiaries, on a consolidated basis, are able to pay  their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become  absolute and matured.  4. The Company and its Subsidiaries, on a consolidated basis, are not engaged  in, and are not about to engage in, business for which they have unreasonably small capital.   For purposes of this Certificate, the amount of any contingent liability at  any time shall be computed as the amount that would reasonably be expected to become  an actual and matured liability.  Capitalized terms used but not otherwise defined herein shall have the  meanings assigned to them in the Credit Agreement.    EXHIBIT H-2  [[5881225]]  The undersigned is familiar with the business and financial position of the  Company and its Subsidiaries.  In reaching the conclusions set forth in this Certificate, the  undersigned has made such investigations and inquiries as the undersigned has deemed  appropriate, having taken into account the nature of the business proposed to be conducted  by the Company and its Subsidiaries after consummation of the Transactions.    EXHIBIT H-3  [[5881225]]  WESTINGHOUSE AIR BRAKE  TECHNOLOGIES CORPORATION,   By:    Name:    Title: