EXHIBIT 3.1

CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS OF SERIES C PREFERRED STOCK

Pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), FreightCar America, Inc., a corporation organized and existing under the DGCL (hereinafter called the “Company”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:

WHEREAS, the Certificate of Incorporation of the Company (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Certificate”) authorizes the issuance of Preferred Stock, par value $0.01 per share, of the Company in one or more series; and expressly authorizes the Board of Directors of the Company (the “Board” or “Board of Directors”), subject to limitations prescribed by the Requirements of Law, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designations, rights and preferences of the shares of such series; and

WHEREAS, on May 19, 2023, the Board of Directors approved and adopted the following Certificate of Designation for purposes of issuing Preferred Stock.

NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate, the Board of Directors hereby creates as a series of Preferred Stock and authorizes for issuance 85,412 shares of Preferred Stock, par value $0.01 per share, of the Company, herein designated as “Series C Preferred Stock,” and hereby fixes the designations, preferences and other rights, of such shares, as follows:

SECTION 1. Designation. The shares of such series of Preferred Stock shall be classified as “Series C Preferred Stock” (the “Series C Preferred Stock”). The number of authorized shares constituting the Series C Preferred Stock shall be 85,412. Subject to the provisions of Section 9, that number from time to time may be increased or decreased (but not below the number of shares of Series C Preferred Stock then outstanding) by (a) further resolution duly adopted by the Board, or any duly authorized committee thereof, and (b) the filing of an amendment to this Certificate of Designation pursuant to the provisions of the DGCL stating that such increase or decrease, as applicable, has been so authorized.

SECTION 2. Ranking. The Series C Preferred Stock will rank, with respect to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and redemption rights:

(a) on a parity basis with each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the terms of which expressly provide that such class or series ranks on a parity basis with the Series C Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or other Deemed Liquidation Event and redemption rights (such Capital Stock, “Parity Stock”);

(b) junior to each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the terms of which expressly provide that such class or series ranks senior to the Series C Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or other Deemed Liquidation Event and redemption rights (such Capital Stock, “Senior Stock”); and

(c) senior to the Common Stock and each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the terms of which do not expressly provide that such class or series ranks on a parity basis with, or senior to, the Series C Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or other Deemed Liquidation Event and redemption rights (such Capital Stock, “Junior Stock”).

The Company’s ability to issue Parity Stock and Senior Stock shall be subject in all respects to the provisions of Section 9, and the Company shall not, and shall not be permitted to, issue any Parity Stock or Senior Stock in violation thereof. The respective definitions of Parity Stock, Senior Stock and Junior Stock shall also include any securities, rights or options exercisable or exchangeable or convertible into Parity Stock, Senior Stock or Junior Stock, as the case may be.

SECTION 3. Definitions. As used herein with respect to Series C Preferred Stock:

“Accrued Dividends” means, as of any date, with respect to any share of Series C Preferred Stock, all Dividends that have accrued on such share through the most recent Dividend Payment Date on or prior to such date pursuant to Section 4(b), whether or not declared, but that have not, as of such date, been paid in cash.

“Affiliate” means, with respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Anti-Corruption Laws” means, collectively, (a) the U.S. Foreign Corrupt Practices Act; (b) the UK Bribery Act 2010; and (c) any other applicable laws related to combatting bribery or corruption.

“Anti-Money Laundering Laws” means all applicable laws, rules, or regulations relating to terrorism, financial crime or money laundering, including without limitation the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, the United States Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 and 1957), the Anti-Money Laundering Act of 2020, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 as amended including pursuant to the Money Laundering and Terrorist Financing (Amendment) Regulations 2019, Proceeds of Crime Act 2002, as amended and the rules and regulations (including those issued by any governmental or regulatory authority) thereunder.

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“Applicable Margin” means, with respect to any Secured Debt, the applicable interest rate, either as an increase to a base interest rate (including LIBOR or SOFR) or the stand-alone interest rate.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute

“Board” and “Board of Directors” has the meaning set forth in the recitals above.

“Borrowing Base” means the sum of (i) 85% of outstanding accounts receivable determined as of the closing of any applicable financing or refinancing of the Company or applicable Subsidiary borrower, (ii) 65% of the book value of inventory as set forth on the most recent (prior to the closing of the applicable financing or refinancing) monthly balance sheet of the Company or applicable Subsidiary borrower, and (iii) 50% of the book value of fixed assets as set forth on the most recent (prior to the closing of the applicable financing or refinancing) monthly balance sheet of the Company or applicable Subsidiary borrower.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

“Capital Lease” shall mean, with respect to any Person, any lease of, or other arrangement conveying the right to use, any property by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP. For the avoidance of doubt, no operating lease (as determined in accordance with GAAP) shall be considered a Capital Lease.

“Capital Lease Obligations” mean, with respect to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease, any lease entered into as part of any Sale and Leaseback or any Synthetic Lease, or a combination thereof, which obligations are (or would be, if such Synthetic Lease or other lease were accounted for as a Capital Lease) required to be classified and accounted for as Capital Leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof (or the amount that would be capitalized, if such Synthetic Lease or other lease were accounted for as a Capital Lease) determined in accordance with GAAP.

“Capital Stock” means, of any Person, any and all shares of, rights to purchase, warrants or options for, or other rights exercisable, exchangeable or convertible into equity interests, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock.

“Certificate” has the meaning set forth in the recitals above.

“Certificate of Designation” means this Certificate of Designation of Rights, Preferences and Limitations of the Series C Preferred Stock.

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“Change of Control” means: (a) a capital reorganization or reclassification of the capital stock of the Company resulting in any Person or group of Persons other than holders of the voting securities of the Company outstanding immediately prior to such transaction, becoming the holders, directly or indirectly, of more than 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors; (b) a merger, consolidation or reorganization or other similar transaction or series of related transactions, in each case which results in the voting securities of the Company outstanding immediately prior thereto representing immediately thereafter (either by remaining outstanding or by being converted into voting securities of the surviving or acquiring entity) less than 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company or such surviving or acquiring entity outstanding immediately after such merger, consolidation or reorganization; (c) the issuance by the Company of equity securities of the Company, in a single transaction or series of related transactions, representing at least 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors; or (d) the acquisition by any “person” (together with his, her or its Affiliates) or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), directly or indirectly, of the beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of outstanding shares of capital stock and/or other equity securities of the Company, in a single transaction or series of related transactions (including, without limitation, one or more tender offers or exchange offers), representing at least 50% of the combined voting power of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors; provided that a transaction (or series of related transactions) consisting solely of the issuance by the Company of equity securities of the Company, representing, at any and all times, less than 20% of the combined voting power of the outstanding voting securities of the Company, for cash consideration in a bona fide capital raising transaction shall not be considered a Change of Control.

“Close of Business” means 5:00 p.m. (New York City time).

“Closing Date” means May 22, 2023.

“Code” shall mean the Internal Revenue Code of 1986, as amended (unless otherwise provided herein).

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

“Company” has the meaning set forth in the recitals above.

“Contractual Obligation” means, as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

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“Disqualified Stock” means, with respect to any Person, any Equity Capital Stock that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an “asset sale” or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an “asset sale” or other disposition), in whole or in part; provided that Equity Capital Stock issued to any Plan, or by any such Plan to any employees of the Company or any Subsidiary thereof, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.

“Dividend Payment Date” means March 31, June 30, September 30, and December 31 of each year, commencing on June 30, 2023 (the “Initial Dividend Payment Date”); provided that if any such Dividend Payment Date is not a Business Day, then the applicable Dividend shall be payable on the Business Day immediately preceding such Dividend Payment Date.

“Dividend Payment Period” means the period from and including the applicable Issuance Date to, but excluding, the applicable Initial Dividend Payment Date and, subsequent to such Initial Dividend Payment Date, the period from and including any Dividend Payment Date to, but excluding, the next Dividend Payment Date.

“Dividend Rate” means 17.50% per annum, or such other rate as specified in Section 4(a) and/or as may be increased pursuant to Section 6(a).

“Dividend Record Date” has the meaning set forth in Section 4(d).

“Dividends” has the meaning set forth in Section 4(a).

“EBITDA” means EBITDA as reported in the Company’s quarterly financial statements published on Form 10-Q or, if not including in the Company’s quarterly financial statements, the Company’s consolidated net income or loss for such period before extraordinary items and before the cumulative effect of any change in accounting principles plus (a) the following to the extent deducted in calculating such consolidated net income or loss: (i) consolidated interest expense, (ii) all income tax expense deducted in arriving at such consolidated net income or loss, (iii) depreciation and amortization expense, (iv) non-cash impairment of assets (tangible and intangible) and related non-cash charges, (v) charges and expenses related to stock based compensation awards, (vi) net non-cash reorganization expenses and charges and (vii) other non-recurring expenses reducing such consolidated net income or loss which do not represent a cash item in such period or any future period (including losses attributable to the sale of assets other than in the Ordinary Course of Business) and minus (b) the following to the extent included in calculating such consolidated net income or loss: (x) income tax credits for such period, (y) all gains arising in relation to the sale of assets other than in the Ordinary Course of Business and (z) all non-cash items increasing such consolidated net income or loss for such period.

“Eligible Cash” shall mean, with respect to any Person, unrestricted cash and cash equivalents of such Person in each case that is on deposit in a domestic deposit account or securities account, as applicable, that is (i) established with a depositary bank that is insured by the Federal Deposit Insurance Corporation, and (ii) not subject to any Liens other than statutory liens in favor of a depository bank arising by operation of law.

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“Environmental Law” means any and all applicable laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or other legally binding requirements (including, without limitation, principles of common law) of any Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning pollution, the preservation or protection of the environment, natural resources or human or employee health and safety (as it relates to exposure to Materials of Environmental Concern), or the generation, manufacture, use, labeling, treatment, storage, handling, transportation or release of, or exposure to, Materials of Environmental Concern.

“Environmental Permits” shall mean any and all permits required under any Environmental Law.

“Equity Capital Stock” means Capital Stock other than any debt securities convertible into equity interests.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Person, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is treated as a single employer under Section 414 of the Code. Any former ERISA Affiliate shall continue to be considered an ERISA Affiliate within the meaning of this definition with respect to the period such entity was an ERISA Affiliate and with respect to liabilities arising after such period for which any Person could be liable under the Code or ERISA.

“ERISA Event” shall mean (a) a “reportable event” within the meaning of Section 4043(c) of ERISA and the regulations issued thereunder with respect to any Single Employer Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation in effect on the Closing Date); (b) the material failure to meet the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Single Employer Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Single Employer Plan; (d) the termination of any Single Employer Plan or the withdrawal or partial withdrawal of any Person from any Single Employer Plan or Multiemployer Plan; (e) a determination that any Single Employer Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (f) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (g) the receipt by any Person or any of their respective ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan; (h) the adoption of any amendment to a Single Employer Plan that would require the provision of security pursuant to Section 436(f) of the Code; (i) the receipt by any Person or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (j) the material failure by any Person or any of their respective ERISA Affiliates to make a required contribution to a Multiemployer Plan; (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in material liability to any Person; (l) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Single Employer Plan; (m) the assertion of a material claim (other than routine claims for benefits) against any Plan other than a Multiemployer Plan or the assets thereof, or against any Person or any of their respective ERISA Affiliates in connection with any Plan; or (n) the occurrence of an act or omission which could give rise to the imposition on any Person or any of their respective ERISA Affiliates of any material fine, penalty, tax or related charge under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Plan.

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“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time; provided that for purposes of the definitions of Change of Control, “Exchange Act” means the Securities Exchange Act of 1934 as in effect on the Closing Date.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the European Union.

“Holder” means a Person in whose name the shares of the Series C Preferred Stock are registered, which Person shall be treated by the Company and Transfer Agent as the absolute owner of the shares of Series C Preferred Stock for the purpose of making payment and for all other purposes; provided that, to the fullest extent permitted by Requirements of Law, no Person that has received shares of Series C Preferred Stock in violation of the Securities Purchase Agreement or this Certificate of Designation shall be a Holder and the Transfer Agent shall not, unless directed otherwise by the Company, recognize any such Person as a Holder and the Person in whose name the shares of the Series C Preferred Stock were registered immediately prior to such transfer shall remain the Holder of such shares.

“Indebtedness” means, with respect to any Person on any date of determination (without duplication): (i) all obligations in respect of indebtedness of such Person for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are expected to be satisfied within thirty (30) days of becoming due and payable); (iv) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; (v) all guarantees by such Person of Indebtedness of other Persons, to the extent so guaranteed by such Person; (vi) monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any Capital Lease Obligations, tax ownership/operating lease, off-balance sheet financing or similar financing; (vii) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Company) Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Equity Capital Stock, or if less (or if such Equity Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Equity Capital Stock, such fair market value shall be as determined in good faith by the Company) and (viii) all accrued interest, penalties, fees and premiums with respect to any obligations in clauses (i)-(vii).

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The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer.

“IRS” shall mean the U.S. Internal Revenue Service.

“Issuance Date” means, with respect to any share of Series C Preferred Stock, the date of issuance of such share.

“Junior Stock” has the meaning set forth in Section 2(c).

“Lien” means any pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, servitude, right-of-way, lien (statutory or other), mortgage, security interest, or other security arrangement and any other preference, priority, or preferential arrangement in the nature of a security interest of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any Synthetic Lease or other financing lease having substantially the same economic effect as any of the foregoing.

“Liquidation Event” means a liquidation, dissolution or winding up, voluntary or involuntary, of the Company or a Change of Control of the Company, except to the extent such Change of Control results from any Transfer by or to the Series C Investor or any of its Affiliates.

“LTM EBITDA” means EBITDA of the Company and its Subsidiaries on a consolidated basis for the most recently ended four fiscal quarters for which financial statements are available immediately preceding the date on which such LTM EBITDA is being calculated.

“Material Adverse Effect” means any circumstance or condition that would materially adversely affect (1) the business, operations, property or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (2) the validity or enforceability as to the Company of this Certificate of Designation, (3) the ability of the Company to perform its payment obligations under this Certificate of Designation or (4) the material rights or remedies (taken as a whole) of the Holders under this Certificate of Designation.

“Materials of Environmental Concern” means any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant under applicable Environmental Law, or which could give rise to liability under any Environmental Laws, including but not limited to petroleum (including crude oil or any fraction thereof), petroleum by-products, toxic mold, polychlorinated biphenyls, ureaformaldehydeinsulation, per- or poly-fluoroalkyl substances, asbestos or asbestos-containing material.

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“Multiemployer Plan” shall mean a Plan that is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

“Non-Compliance Event” shall mean:

(i) failure by the Company and its Subsidiaries to comply with Section 9 or Section 15(a)(i)-(iii) hereof;

(ii) the Company or any Subsidiary breaches any covenant or other agreement contained in this Certificate of Designation, the Certificate or the by-laws, and such breach shall continue unremedied for a period of ten (10) Business Days after the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders;

(iii) any representation or warranty made by the Company or any of its Subsidiaries in the Securities Purchase Agreement (or in any amendment, modification or supplement thereto) or which is contained in any certificate furnished at any time by or on behalf of the Company or any of its Subsidiaries pursuant to the Securities Purchase Agreement or this Certificate of Designation shall prove to have been incorrect in any material respect on or as of the date made or deemed made and the circumstances giving rise to such misrepresentation are not altered so as to make such representation or warranty correct in all material respects by the date falling ten (10) Business Days after the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders (or, if the circumstances giving rise to such misrepresentation are not capable of alteration, on the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders);

(iv) the Company or any Subsidiary breaches any covenant or other agreement in the Securities Purchase Agreement (or in any amendment, modification or supplement thereto) and such breach shall continue unremedied for a period of ten (10) Business Days after the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders;

(v) (1) the commencement by the Company or any of its Subsidiaries of any Proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Company, any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (2) the commencement against the Company or any of its Subsidiaries of any Proceeding or other action of a nature referred to in clause (1) above which (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged, unstayed or unbonded for a period of sixty (60) days; or (3) the commencement against the Company or any of its Subsidiaries of any Proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (4) the Company or any of its Subsidiaries shall take any corporate or other organizational action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (1), (2), or (3) above; or (5) the Company or any of its Subsidiaries shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due; or

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(vi) the entry of one or more judgments or decrees against the Company or any of its Subsidiaries involving in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within sixty (60) days from the entry thereof, or committed to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of $5,000,000, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof.

“Notice of Optional Redemption” has the meaning set forth in Section 6(b).

“Optional Redemption” has the meaning set forth in Section 6(a).

“Ordinary Course of Business” means an action taken by any Person in the ordinary course of such Person’s business that is consistent with the past customs and practices of such Person (including past practice with respect to quantity, amount, magnitude and frequency, standard employment and payroll policies and past practice with respect to management of working capital and the making of capital expenditures) and that is taken in the ordinary course of the normal day-to-day operations of such Person.

“Organizational Documents” means collectively, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation (including any certificate of designation) or articles of incorporation and by-laws (or similar constitutive documents) of such Person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constitutive documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constitutive documents) of such Person (and, where applicable, the equity holders or shareholders registry of such Person), (iv) in the case of any general partnership, the partnership agreement (or similar constitutive document) of such Person, (v) in any other case, the functional equivalent of the foregoing, and (vi) any shareholder, voting trust or similar agreement between or among any holders of Equity Capital Stock of such Person.

“Parity Stock” has the meaning set forth in Section 2(a).

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“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Permitted Transferee” means with respect to each Holder, (a) any Affiliate of such Holder and (b) with respect to any Holder that is an investment fund or a vehicle of an investment fund (or investment funds), any other investment fund or vehicle of which such Holder or an Affiliate thereof serves as the general partner or discretionary manager or advisor (so long as such investment fund or vehicle was not established for the purpose of acquiring Series C Preferred Stock) and in which such Holder or Affiliate thereof retains voting and dispositive power; provided, that a portfolio company of a Holder or its Affiliates shall not be a Permitted Transferee.

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“Plan” shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, the Company or any of its respective ERISA Affiliates or with respect to which the Company or any of its respective ERISA Affiliates has or could reasonably be expected to have liability, contingent or otherwise, under ERISA.

“Preferred Majority Holders” means, at any time of determination, the Holders of a majority of outstanding shares of Series C Preferred Stock, as modified by Section 9(c).

“Preferred Stock” means, as applied to the Equity Capital Stock of any corporation or company, Equity Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over shares of Equity Capital Stock of any other class of such corporation or company.

“Prohibited Transferees” means with respect to each Holder, any competitor of the Company and its Subsidiaries that is in the same line of business as the Company and its Subsidiaries, in each case designated in writing by the Company to the Holders from time to time; provided, that no such update shall apply retroactively to disqualify any Transfer to the extent such Transfer was made to a party (or its Affiliates) that was not a Prohibited Transferee at the time of such Transfer. For the avoidance of doubt, a Prohibited Transferee shall only include an applicable competitor operating company and its Subsidiaries and shall not include any investor in or lender to any such operating company.

“Redemption Date” means with respect to the redemption of shares of Series C Preferred Stock pursuant to this Certificate of Designation, the date set forth in the applicable Notice of Optional Redemption in accordance with Section 6(b).

“Redemption Price” has the meaning set forth in Section 6(a).

“Requirement of Law” means, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.

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“Responsible Officer” means, as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president and, with respect to financial matters, the chief financial officer, the treasurer or the controller, (b) any executive vice president or, with respect to financial matters, any treasurer or controller, who has been designated in writing to the Holders as a Responsible Officer by such chief executive officer or president or, with respect to financial matters, such chief financial officer, treasurer or controller, (c) with respect to a particular matter, any other officer, to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (d) with respect to Section 11 and without limiting the foregoing, the general counsel.

“Restricted Party” means any Person (a) included on one or more of the Restricted Party Lists; (b) located, organized, or ordinarily resident in a jurisdiction that is the subject of country- or territory-wide sanctions (for example, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, Luhansk People’s Republic, Kherson and Zaporizhzhia regions of Ukraine); (c) owned or controlled by, or acting on behalf of, any of the foregoing; (d) with whom U.S. persons are otherwise prohibited from transacting under Sanctions and Export Control Laws; or (e) with whom any of the Company or its Subsidiaries is otherwise prohibited from dealing under applicable Sanctions and Export Control Laws.

“Restricted Party Lists” means sanctioned and other restricted party lists maintained by the United Nations, the United Kingdom, the United States, or the European Union, and any other relevant jurisdiction including but not limited to the following lists: the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identifications List, and any other lists administered by OFAC, as amended from time to time; the U.S. Denied Persons List, the U.S. Entity List, and the U.S. Unverified List, all administered by the U.S. Department of Commerce; the consolidated list of Persons, Groups and Entities Subject to EU Financial Sanctions, as implemented by the EU Common Foreign & Security Policy; and similar lists of restricted parties maintained by other relevant Governmental Authorities.

“Revolving Loan Agreement” shall mean that certain Loan and Security Agreement dated as of October 8, 2020 by and among Siena Lending Group LLC and the Company related parties thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Sale and Leaseback” means, with respect to any Person, any arrangement to sell or transfer any real property and thereafter rent or lease such real property or other real property which such Person intends to use for substantially the same purpose or purposes as the real property being sold or transferred.

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“Sale of the Company” means the first to occur of (i) any sale or transfer by the Company or its Subsidiaries of all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis, or (ii) (A) any consolidation, merger or reorganization of the Company or any of its Subsidiaries with or into any other entity or entities or (B) any sale or transfer of the Company’s or any material Subsidiaries’ equity interests by the holders thereof, as a result of which, in the case of clause (ii) (x) with respect to the Company, a Change of Control occurs or (y) with respect to any Subsidiary, would result in the acquisition by any “person” (together with his, her or its Affiliates) or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), directly or indirectly, of the beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of outstanding shares of capital stock and/or other equity securities of such Subsidiary, in a single transaction or series of related transactions (including, without limitation, one or more tender offers or exchange offers), representing at least 50% of the equity interests of such Subsidiary, more than 50% of the combined voting power of such Subsidiary or otherwise results in such Persons or group of Persons controlling such Subsidiary.

“Sanctions and Export Control Laws” means any applicable law related to (a) import and export controls, including the U.S. Export Administration Regulations; (b) economic sanctions, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State, the European Union, any European Union Member State, the United Nations, His Majesty’s Treasury of the United Kingdom, or any other jurisdiction applicable to any of the Company or its Subsidiaries; or (c) anti-boycott measures (in each case except to extent inconsistent with U.S. law).

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

“Secured Debt” means Indebtedness that is secured by any Lien of any kind upon any of the propertied or assets of the Company or any Subsidiary.

“Securities Purchase Agreement” means that certain Securities Purchase Agreement dated as of March 23, 2023, by and among the Company and the purchasers party thereto.

“Senior Stock” has the meaning set forth in Section 2(b).

“Series C Investor” means the Person who, together with its investment funds, separate accounts, and other entities owned (in whole or in part), controlled, managed, and/or advised by it or its Affiliates, held on the Closing Date the majority of the Series C Preferred Stock issued on the Closing Date, together with such Holder’s investment funds, separate accounts, and other entities owned (in whole or in part), controlled, managed, and/or advised by it or its Affiliates.

“Series C Preferred Stock” has the meaning set forth in the preamble hereto.

“Single Employer Plan” shall mean any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

“Stated Value” means, with respect to any share of Series C Preferred Stock, as of any date, $1,000 per share (adjusted as appropriate in the event of any shares or securities dividend, shares or securities sub-division, shares or securities distribution, recapitalization or combination).

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“Subsidiary” means, as to any Person, any corporation, association, partnership or other business entity of which more than 50% of the Total Voting Power of shares of Equity Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (if any) or otherwise more than 50% of the total voting power of equity interests is at the time owned or controlled, directly or indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person.

“Synthetic Lease” means mean, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes or (b) (i) a synthetic, off-balance sheet or tax retention lease or (ii) an agreement for the use or possession of property (including a sale and leaseback), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such Person but which, upon the application of the Bankruptcy Code or under any other bankruptcy or insolvency law of a foreign jurisdiction to such Person, would be characterized as the Indebtedness of such Person (without regard to accounting treatment).

“Total Leverage” means, with respect to any Company and its Subsidiaries for any period, the ratio of (a) all Indebtedness as of the end of such period, less the amount of Eligible Cash as of the end of such period to (b) LTM EBITDA for such period, in each case, determined on a pro forma basis for incurrence or refinancing of any applicable Unsecured Debt.

“Total Voting Power” shall mean, with respect to any entity, at the time of determination, the total number of votes which may be cast in the general election of directors of such entity (or, in the event the entity is not a corporation, the governing members, Board or other similar body of such entity).

“Transfer” means any direct or indirect sale, transfer, gift, assignment, exchange, mortgage, pledge, hypothecation, encumbrance or any other disposition (whether voluntary or involuntary) of any Series C Preferred Stock (or any interest (pecuniary or otherwise) therein or rights thereto) beneficially owned by a Person. In the event that any Holder that is a corporation, partnership, limited liability company or other legal entity (other than an individual, trust or estate) ceases to be controlled by the Person or group of Persons controlling such Holder or any Permitted Transferee or Permitted Transferees of such Person or group of Persons, such event shall be deemed to constitute a “Transfer” subject to the restrictions on Transfer contained or referenced herein. For the avoidance of doubt, any direct or indirect transfer, sale, assignment, exchange or any other disposition by a partner, member or other Holder to another Person, of any partnership or membership interest or other equity security of such Holder that does not result in the Person or group of Persons controlling such Holder or a Permitted Transferee or Permitted Transferees of such Person or group of Persons to cease to control such Holder, shall not be deemed to constitute a “Transfer” subject to the restrictions on Transfer contained or referenced herein.

“Transfer Agent” means the transfer agent and registrar of the Company with respect to the Series C Preferred Stock duly appointed from time to time.

“Unsecured Debt” means Indebtedness which is not secured by any Lien of any kind upon any of the properties or the assets of the Company or any Subsidiary.

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“Warrant” means the warrant issued pursuant to that Warrant to Purchase Common Stock, by and between the Company and OC III LFE II LP, dated May 22, 2023.

“Withdrawal Liability” shall mean any liability to a Multiemployer Plan as a result of a “complete withdrawal” or “partial withdrawal” from such Multiemployer Plan, as such terms are defined in Section 4201(b) of ERISA.

SECTION 4. Dividends.

(a) Dividends. Holders shall be entitled to receive dividends of the type and in the amount determined as set forth in this Section 4 (such dividends, “Dividends”); provided that the Dividend Rate (i) shall increase by two percent (2%) upon the occurrence of, and shall remain at 19.5% (such rate, the “Default Rate”) during the continuation of, any Non-Compliance Event and (ii) may also be increased as set forth in Section 6(a).

(b) Accrual of Dividends. Dividends on each share of Series C Preferred Stock shall accrue daily at a rate equal to the Dividend Rate on the Stated Value plus any Accrued Dividends, from and including the Issuance Date of such share, whether or not declared and whether or not the Company has assets legally available to make payment thereof, as further specified below, and shall be cumulative. Dividends on the Series C Preferred Stock shall accrue on the basis of a 365-day year based on actual days elapsed. The amount of Dividends payable with respect to any share of Series C Preferred Stock for any Dividend Payment Period shall equal the sum of the daily Dividend amounts accrued in accordance with the prior sentence of this Section 4(b) with respect to such share during such Dividend Payment Period.

(c) Arrearages; Payment of Dividends.

(i) Except as described in this Section 4(c), Dividends shall be payable in cash.

(ii) Dividends shall be payable quarterly in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date following the Issuance Date of such share, and shall be paid in cash if, as and when authorized by the Board, or any duly authorized committee thereof, and declared by the Company, to the extent not prohibited by Requirements of Law.

(iii) If the Company fails to declare and pay pursuant to this Section 4(c) a full Dividend in cash on the Series C Preferred Stock on or prior to any Dividend Payment Date, then the amount of the unpaid portion of such Dividend shall automatically be added to the amount of Accrued Dividends on such share on the applicable Dividend Payment Date without any action on the part of the Company or any other Person.

(d) Record Date. The record date for payment of Dividends on any relevant Dividend Payment Date will be the Close of Business on the fifteenth (15th) day of the calendar month that contains the relevant Dividend Payment Date (each, a “Dividend Record Date”), whether or not such day is a Business Day.

SECTION 5. Liquidation Rights.

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(a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the Holders shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Company may be made to or set aside for the holders of any Junior Stock, and subject to the rights of the holders of any Senior Stock or Parity Stock issued in accordance with this Certificate of Designation and the rights of the Company’s existing and future creditors, to receive in full a liquidating distribution in cash and in the amount per share of Series C Preferred Stock equal to the Redemption Price as of the date of such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company. Holders shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company after receiving in full what is expressly provided for in this Section 5, and will have no right or claim to any of the Company’s remaining assets.

(b) Partial Payment. If in connection with any distribution described in Section 5(a) above, the assets of the Company or proceeds therefrom are not sufficient to pay in full the aggregate liquidating distributions required to be paid pursuant to Section 5(a) to all Holders and the liquidating distributions payable to all holders of any Parity Stock issued in accordance with this Certificate of Designation, the amounts distributed to the Holders and to the holders of all such Parity Stock shall be paid pro rata in proportion to the respective aggregate liquidating distributions to which they would otherwise be entitled Section 5(a) if all amounts payable with respect thereto were paid in full.

SECTION 6. Redemption at the Option of the Company; Redemption at the Option of the Holder; Other Repurchases.

(a) Optional Redemption. Subject to the provisions of this Section 6, the Company, at its option, may redeem for cash all or a portion of the outstanding shares of Series C Preferred Stock (each, an “Optional Redemption”) at a price per share of Series C Preferred Stock (the “Redemption Price”) equal to the sum of (i) the Stated Value per share of Series C Preferred Stock to be redeemed plus (ii) an amount equal to the Accrued Dividends with respect to such share plus (iii) accrued and unpaid dividends since the most recent Dividend Payment Date with respect to such share as of the applicable Redemption Date. The Company shall not be required to redeem any shares of Series C Preferred Stock at any time other than pursuant to Section 6(d); provided, that, if the Company has not redeemed all of the outstanding shares of Series C Preferred Stock in full in cash on or prior to the 48-month anniversary of the Closing Date, the then-applicable Dividend Rate (which, for the avoidance of doubt, may be the Default Rate,) shall increase by adding 0.5% (i.e., 18.0%, 18.5%, etc.) to such Dividend Rate (or Default Rate, as applicable) for each quarter after such anniversary until the Company redeem all of the outstanding shares of Series C Preferred Stock in full in cash.

(b) Exercise of Optional Redemption. If the Company elects to effect an Optional Redemption, the Company shall send to the Holders a written notice in accordance with Section 16 (i) notifying the Holders of the election of the Company to redeem all shares of Series C Preferred Stock and the Redemption Date, and (ii) stating the place or places at which the shares of Series C Preferred Stock shall, upon presentation and surrender of the certificates evidencing such shares of Series C Preferred Stock, be redeemed (and other instructions a Holder must follow to receive payment), and the Redemption Price therefor (such notice, a “Notice of Optional Redemption”). The Redemption Date selected by the Company shall be no less than ten (10) Business Days and no more than thirty (30) Business Days after the date on which the Company provides the Notice of Optional Redemption to the Holders. The Notice of Optional Redemption shall state the Redemption Date selected by the Company. Any full or partial redemption of shares of Series C Preferred Stock pursuant to Section 6(a) shall be on a pro rata basis from the Holders based on the Redemption Price of Capital Stock held by them.

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(c) Effect of Redemption. Upon surrender, in accordance with said notice, of the certificates, if any, for the Series C Preferred Stock (to the extent applicable, properly endorsed or assigned for transfer, if the Company shall so require and the notice shall so state), such shares shall be redeemed by the Company by payment of the applicable Redemption Price in full in cash to the Holder thereof on the applicable Redemption Date (of if such the certificate (if any) for such shares of Series C Preferred Stock is not surrendered on the applicable Redemption Date, on the date of surrender of such certificate). To the fullest extent permitted by law, if any shares of Series C Preferred Stock are not redeemed on the applicable Redemption Date by payment in full in cash (or such amounts have not been irrevocably deposited or set aside for payment in full in cash) of the applicable Redemption Price to the Holder thereof, for any reason, all such unredeemed shares shall remain outstanding and entitled to all of the designations, rights, preferences, powers, restrictions and limitations of the Capital Stock set forth in this Certificate of Designation, including the right to accrue and receive any Dividends thereon as provided in Section 4 until the date on which the Company actually redeems and pays in full the Redemption Price for such shares. The Company shall reasonably promptly issue new certificates, as applicable, to reflect any unredeemed shares of Series C Preferred Stock.

(d) Redemption at the Option of the Holders. At any time from and after the sixth (6th) anniversary of the Closing Date, if any shares of Series C Preferred Stock remain outstanding, the Holders (by action of the Preferred Majority Holders) shall have the right to require the Company redeem all, but not less than all, of the then-outstanding shares of Series C Preferred Stock in full in cash for a price equal to the then-applicable Redemption Price calculated in accordance with Section 6(a). If the Holders (as determined by the Preferred Majority Holders) elect to exercise their Redemption Demand rights, the Holders shall send to the Company a written notice in accordance with Section 16 (any such notice, a “Redemption Demand”). If the Company (i) does not redeem the shares of Series C Preferred Stock by payment in full in cash of the Redemption Price for such shares, calculated as of the date the Company redeems such shares, for any reason, on or prior to the date that is six (6) months after the delivery of the Redemption Demand and (ii) the Board, or any duly authorized committee thereof, recommends a Sale of the Company, each share of Series C Preferred Stock shall thereafter have the right to vote on such Sale of the Company and, except as otherwise provided by law, the Holders of Series C Preferred Stock and the holders of Common Stock shall vote together as a single class with the Holders of Series C Preferred Stock being entitled to a cast a number of vote per share of Series C Preferred Stock equal to the quotient of: (i) ten percent (10%) of the Total Voting Power of all outstanding voting shares of the Company (subject to such aggregate voting rights of the Series C Preferred Stock not exceeding 19.99% of the Total Voting Power of the Company as of Closing Date when combined with the voting rights of any shares of Common Stock acquired upon exercise of the Warrant) and (ii) the number of outstanding shares of Series C Preferred Stock.

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(e) Repurchases or Other Acquisitions. The Company and its Subsidiaries shall not redeem, repurchase or otherwise acquire any shares of Series C Preferred Stock other than through procedures open to all Holders on a pro rata basis in accordance with customary procedures to be agreed between the Company and the Preferred Majority Holders.

(f) Status of Shares. Shares of Series C Preferred Stock redeemed, repurchased or otherwise acquired in accordance with this Section 6, shall return to the status of and constitute authorized but unissued shares of Preferred Stock, without classification as to series until such shares are once more classified as a particular series by the Board pursuant to the provisions of the Certificate. For the avoidance of doubt, any subsequent classification of Preferred Stock redeemed, repurchased or otherwise acquired pursuant to this Section 6 shall be subject to the limitations set forth in Section 9(b)(iii) hereof.

SECTION 7. Deemed Liquidation.

(a) Generally. In the event of the occurrence of (i) a Change of Control or (ii) any voluntary or involuntary bankruptcy, liquidation, dissolution or winding up of the Company or any material Subsidiary (each of (i) and (ii), a “Deemed Liquidation Event”), the Company shall redeem all of the outstanding shares of Series C Preferred Stock on the applicable date of a Deemed Liquidation Event (the “Deemed Liquidation Date”), for cash, to the extent permitted by law, at a price per share of Series C Preferred Stock equal to the applicable Redemption Price on such Deemed Liquidation Date; provided that in the case of any event specified in clause (ii) of the definition of Deemed Liquidation Event, all shares of Series C Preferred Stock outstanding held by the Holders shall be automatically and immediately subject to redemption at the applicable Redemption Price. If on the Deemed Liquidation Date the Company is not so permitted by law to redeem all of the outstanding shares of Series C Preferred Stock, then the Company shall redeem such shares to the fullest extent permitted by law on a pro rata basis from the Holders based on the Redemption Price of shares of Series C Preferred Stock held by them. Any shares of Series C Preferred Stock that are not redeemed pursuant to the immediately preceding sentence shall remain outstanding and entitled to all of the designations, rights, preferences, powers, restrictions and limitations of the shares of Series C Preferred Stock set forth herein, including the right to continue to accrue and receive Dividends as set forth in Section 4; provided that such redemption shall not be required in connection with a Deemed Liquidation Event where the shares of Series C Preferred Stock are purchased (at the then applicable Redemption Price) for cash by any Person other than the Company in connection with such Deemed Liquidation Event.

(b) Deemed Liquidation Mechanics.

(i) In the event that, pursuant to Section 7(a), the Company is required to redeem the shares in connection with a Deemed Liquidation Event, at least five (5) Business Days prior to any anticipated Deemed Liquidation Event, the Company shall send a notice to each of the Holders, which shall state that (A) the Deemed Liquidation Event is expected to occur and that the shares of Series C Preferred Stock are expected to be redeemed pursuant to this section and that all such shares will be redeemed, in each case, subject to the occurrence of such Deemed Liquidation Event; (B) the expected Redemption Price; and (C) the expected Deemed Liquidation Date.

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(ii) On or before any Deemed Liquidation Date, the Company shall, to the extent permitted by law, redeem the shares of Series C Preferred Stock and pay the applicable Redemption Price to the account(s) designated by the Holder(s) of such shares.

(iii) Upon payment in full of the amounts owing under Section 7(a) to any Holder that has its shares of Series C Preferred Stock redeemed, the Dividends with respect to such shares shall cease to accrue after the date of such payment in full and all rights with respect to such redeemed shares shall forthwith terminate.

(iv) From and after the Close of Business on the Deemed Liquidation Date or, with respect to all shares of Series C Preferred Stock not redeemed on such date, the date on which such shares are redeemed following the Deemed Liquidation Date, as contemplated in Section 7(a), which shares of Series C Preferred Stock shall be deemed to be redeemed on the date on which the Company sends payment in full therefor, in cash, as provided in Section 7(a), to the Holders being so redeemed (each a “Delayed Deemed Liquidation Date”), all rights of the Holders being so redeemed shall cease with respect to such shares on such Deemed Liquidation Date or Delayed Deemed Liquidation Date, as applicable, and such shares shall not thereafter be transferred on the books of the Company or be deemed to be outstanding for any purpose whatsoever. Any shares of Series C Preferred Stock not redeemed in full in cash on the applicable Deemed Liquidation Date shall continue to accrue Dividends at the Default Rate until the date of payment in full in cash on the applicable Delayed Deemed Liquidation Date.

SECTION 8. Transfer of Series C Preferred Stock.

(a) Subject to compliance with applicable U.S. federal and state Requirements of Law governing the Transfer of securities, at any time, shares of the Series C Preferred Stock shall be transferable by the Holders (i) to any Permitted Transferee or (ii) to any Person with the prior consent of the Board, and the Company shall recognize and register any such Transfer on its books. From and after the fifth (5th) anniversary of the Closing Date, shares of Series C Preferred Stock shall be transferable by the Holders to any Person who is not a Prohibited Transferee and the Company shall recognize and register any such Transfer on its books; provided, that, except as otherwise agreed by the Board, upon any such Transfer to a Person who is not a Permitted Transferee, (x) any Series C Designee or Series C Observer shall immediately resign from the Board, (y) such transferee shall not have the right to designate a Series C Designee or Series C Observer as set forth in Section 10 below or to unliterally or join with other Holders in delivering a Redemption Demand pursuant to Section 6(d); provided, that such transferee shall not be counted in determining the Preferred Majority Holders for purposes of making a Redemption Demand (but not for any other purpose pursuant to Section 6), and (z) the Board protective provisions as set forth in Section 9(c) below shall be null and void. In addition, upon any Transfer to a Person which is not a Permitted Transferee, the Series C Investor shall, and shall cause such transferee to, agree with the Company to amend this Certificate of Designation to eliminate Section 9(c) and Section 10 of this Certificate of Designation and to take all required actions to file such amendment with the Delaware Secretary of State. Any Transfer not in accordance with this Section 8(a) shall be void ab initio.

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(b) The Company shall use its commercially reasonable efforts to cooperate with the Holders of the Series C Preferred Stock in connection with any Transfer to be consummated in accordance with this Section 8, including providing reasonable and customary information (i) in connection with any such Holder’s marketing efforts or any such potential transferee’s due diligence (subject to customary confidentiality restrictions) or (ii) in order to comply with applicable U.S. federal and state Requirements of Law governing the Transfer of securities.

(c) Notwithstanding anything to the contrary in this Certificate of Designation, the following shall not be considered a Transfer: (i) the incurrence of any Lien on or grant of any indirect or direct interest in the Company of any Holder with respect to its Series C Preferred Stock provided in favor of back-leverage lenders or other financing sources to such Holder and (ii) a direct or indirect voluntary or involuntary sale, assignment, transfer, gift, surrender for cancellation, exchange, pledge or other disposition, or the direct or indirect grant, transfer or other disposition in connection with the foreclosure, acceptance of an assignment in lieu of foreclosure or other exercise of remedies or enforcement action with respect to such Liens or interests incurred in accordance with the foregoing clause (i) pursuant to which all or any portion of such Series C Preferred Stock is directly or indirectly transferred, sold or assigned to such back-leverage lenders or other financing sources, the agents designated by such lenders or financing sources or designees of such lenders or financing sources, it being understood that upon such Transfer, any such lender or financing source, such agents, or such designees, as applicable, shall thereafter be a Holder for all purposes of this Certificate of Designation.

SECTION 9. Voting; Protective Provisions.

(a) Voting. Except as expressly set forth herein (including Section 6(d)) or required by applicable law, the Series C Preferred Stock shall be non-voting. On any matter on which Holders are entitled to vote, the Holders shall vote separately as a single class with respect to the Series C Preferred Stock, in person or by proxy, at a meeting called for such purpose or by written consent without a meeting. Each Holder of Series C Preferred Stock will have one vote per share of Series C Preferred Stock on any matter on which Holders of Series C Preferred Stock are entitled to vote. The approval of any matter or action by the Holders under this Certificate of Designation, unless otherwise specified, shall require the affirmative vote or consent of the Preferred Majority Holders.

(b) Preferred Protective Provisions. So long as any Series C Preferred Stock is outstanding, the Company will not, and will cause its Subsidiaries not to, either directly or indirectly (whether or not such approval is required pursuant to the DGCL), do any of the following without the affirmative vote or written consent of the Preferred Majority Holders, constituting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent shall be null and void ab initio and of no force or effect:

(i) amend, alter, waive or repeal any provisions of the Company’s Organizational Documents in a manner that adversely affects the rights, preferences, privileges or power of the Series C Preferred Stock (for the avoidance of doubt, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications or other terms of any class or series of stock of the Company shall be deemed an amendment to the Company’s Organizational Documents);

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(ii) increase the authorized number of the Series C Preferred Stock;

(iii) create, authorize or issue (by reclassification or otherwise) additional shares of Series C Preferred Stock, any Parity Stock, any Senior Stock (including, for the avoidance of doubt, any voting Preferred Stock or non-voting Preferred Stock, as such terms are defined in the Certificate) or any securities, options or rights convertible or exchangeable into, or exercisable for the foregoing;

(iv) declare, pay or set aside for payment any dividend or distribution, or redeem or acquire any Capital Stock of the Company, other than Dividends on the Series C Preferred Stock;

(v) create, incur, assume or refinance or have its direct or indirect Subsidiaries create, incur, assume or refinance any Secured Debt (which shall include issuing letters of credit), other than Secured Debt (A) (1) not to exceed 110% of the applicable Borrowing Base and which would not increase the Applicable Margin in a manner that would result in the total yield on such Secured Debt being more than three percentage points per annum higher than the Applicable Margin set forth in the Revolving Loan Agreement in effect as of the Closing Date; (B) in respect of Capital Lease Obligations and purchase money obligations in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; (C) incurred in the Ordinary Course of Business or (D) statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the Ordinary Course of Business;

(vi) create, incur, assume or refinance or have its direct or indirect Subsidiaries create, incur, assume or refinance any Unsecured Debt, except Unsecured Debt (A) incurred in the Ordinary Course of Business, (B) in an aggregate amount under this clause (vi) of less than $3,000,000, the proceeds of which are used for general corporate overhead expenses, including professional fees and expenses and other operational expenses of the Company related to the ownership or operation of the business of the Company or any of its Subsidiaries; or (C) if (x) (1) incurrence of such Unsecured Debt is approved by the majority of the Board and (2) the Total Leverage (pro forma for such incurrence of Unsecured Debt) is less than 2.5 and (y) the proceeds from such incurrence of Unsecured Debt are used first to repay the Series C Preferred Stock;

(vii) (A) create, or hold Capital Stock in, any direct or indirect Subsidiary that is not wholly owned (either directly or through one or more other direct or indirect Subsidiaries) by the Company, (B) permit any direct or indirect Subsidiary to create, or authorize the creation of, or issue or obligate itself to issue, any shares of any class or series of Capital Stock, (C) sell, transfer or otherwise dispose (by way of merger, consolidation or otherwise) of any Capital Stock of any direct or indirect Subsidiary of the Company, or (D) permit any direct or indirect Subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such Subsidiary;

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(viii) permit any Liquidation Event or Deemed Liquidation Event unless the Holders of Series C Preferred Stock actually receive proceeds of at least equal to 1.2x the Stated Value; or

(ix) enter into any agreement or make any commitment to do or take any action described in this Section 9(b).

(c) Board Protective Provisions. So long as any Series C Preferred Stock is outstanding and subject to the terms of Section 8(a), the Company will not, and will cause its Subsidiaries not to, either directly or indirectly (whether or not such approval is required pursuant to the DGCL), do any of the following without the affirmative vote or written consent of the majority of the Board, which such majority must include the Series C Designee (as defined below);

(i) enter into any joint venture or other similar transaction outside the Ordinary Course of Business;

(ii) negotiate or conduct any acquisition of any business (whether by stock or asset purchase, merger, consolidation or otherwise) other than acquisitions with an aggregate purchase price payable less than or equal to $10,000,000;

(iii) make any investment in any Person (or group of related Persons) other than investments in Subsidiaries or investments with an aggregate investment commitment of less than or equal to $10,000,000;

(iv) enter into, amend, make any material changes to or waive any material rights under any transaction between the Company or any of its Subsidiaries, on the one hand, and any officer, director, employee or equity holder (of any Affiliates of such Person) or any Affiliate of the Company of any of its Subsidiaries, on the other hand;

(v) conduct any disposal of assets in excess of $10,000,000, other than non-core assets or disposals in the Ordinary Course of Business;

(vi) enter into any new lines of business, other than those relating to (A) the current line of business of the Company and its Subsidiaries or (B) additional lines of business of the Company or its Subsidiaries approved under the rights contained in this Section 9;

(vii) hire, fire or change the auditor without replacing the auditor with a nationally recognized audit firm; or

(viii) enter into any agreement or make any commitment to do or take any action described in this Section 9(c);

For the avoidance of doubt, the breach of any of the foregoing covenants contained in this Section 9 shall be a Non-Compliance Event.

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SECTION 10. Board Designation Rights.

(a) Director Designation Rights. For so long as the Series C Investor continues to hold the Series C Preferred, the Series C Investor shall be entitled to designate for recommendation by the Nominating and Corporate Governance Committee to the Board and, upon such recommendation, nomination by the Board, one (1) director from time to time as set forth below (any individual designated by the Series C Investor, the “Series C Designee”), and one (1) observer (the “Series C Observer”).

(b) Series C Designee. As soon as reasonably practicable following the Closing, the size of the Board shall be increased by one member and the Board shall appoint such individual designated in writing by the Series C Investor as the initial Series C Designee (the “Initial Series C Designee”) to fill a vacancy on the Board as a Class III director.

(c) Series C Observer. As soon as reasonably practicable following the Closing, the Board shall appoint such individual designated in writing by the Series C Investor as the initial Series C Observer. The Company shall permit the Series C Observer to attend and participate (in the capacity of a non-voting observer) in all meetings of the Board and any of its committees (save for meetings of any committee that is required to be composed solely of independent directors), whether in person, by telephone or otherwise. The Company shall provide the Series C Observer the same notice of all such meetings and copies of all materials distributed to members of the Board and any of its committees, as applicable, concurrently with provision of such notice and materials to the Board and any of its committees, as applicable; provided, however, that the Series C Observer (i) shall hold all information and materials disclosed or delivered to the Series C Observer in confidence and (ii) may be excluded from access to any material or meeting or portion thereof if the Board determines in good-faith, with advice from legal counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or if the Series C Observer’s access or attendance could materially and adversely affect the Board’s fiduciary duties.

(d) Compliance with Nominating Guidelines. Each Series C Designee, including the Initial Series C Designee, shall comply with the requirements of the charter for, and related guidelines of, the Nominating and Corporate Governance Committee of the Board, and the Company bylaws.

(e) Additional Obligations. The Company agrees to take all necessary actions to cause the individual designated in accordance with this Section 10, to be included in the slate of nominees to be elected to the Board at the next annual or special meeting of stockholders of the Company at which directors are to be elected, in accordance with the Company’s certificate of incorporation and bylaws and the Delaware General Corporation Law, and at each annual meeting of stockholders of the Company thereafter at which Class III directors are up for election, and to recommend that the Company’s stockholders vote affirmatively for each such nominee.

(f) Vacancies of Series C Designee. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any Series C Designee, the Company shall take at any time and from time to time all necessary action to cause the vacancy created thereby to be filled in accordance with the terms hereof as promptly as practicable by a new Series C Designee designated by the Series C Investor to the Board seat that has become vacant.

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(g) Benefits. During the period that Series C Designee is a director of the Board, such director shall be entitled to the same compensation and benefits as any other non-employee director of the Board, including cash and non-cash compensation for director service and benefits under any director and officer indemnification or insurance policy maintained by the Company.

SECTION 11. Information Rights and Inspection Rights.

(a) The Company shall provide to the Holders, or promptly give written notice to the Holders of, in form and detail reasonably satisfactory to the Holders, the following:

(i) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Company, a copy of the consolidated balance sheet of Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of Grant Thornton LLP or any other independent certified public accounting firm of nationally recognized standing reasonably acceptable to the Holders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

(ii) as soon as available, but in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, a copy of the consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal quarter and the portion of the fiscal year through the end of such fiscal quarter, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Company as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP (subject only to normal year-end audit adjustments and the absence of footnotes);

(iii) as soon as available, but in any event within thirty (30) days after the end of each of the first two (2) months of each fiscal quarter of the Company, a copy of the consolidated balance sheet of the Company and its Subsidiaries as of the end of such month and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such month and for the portion of the fiscal year through the end of such month, setting forth in each case in comparative form the figures for the corresponding month of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Company; (iv) as soon as available, and in any event within thirty (30) days after the end of each fiscal year of the Company, a budget in form reasonably satisfactory to the Holders (including budgeted statements of income for each of the Company’s and its Subsidiaries’ business units and sources and uses of cash and balance sheets) prepared by the Company for (x) each fiscal quarter of such fiscal year prepared in detail and (y) each fiscal year in the five (5) years immediately following such fiscal year prepared in summary form, in each case, of the Company and its Subsidiaries, with appropriate presentation and discussion in reasonable detail of the principal assumptions upon which such budget is based, accompanied by a certificate of a Responsible Officer certifying that such budget is a reasonable estimate for the period covered thereby;

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(v) concurrently with the delivery of the financial statements pursuant to Section 11(a)(i) and Section 11(a)(ii), a copy of management’s discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries for such fiscal quarter or fiscal year, as compared to the previous fiscal quarter or fiscal year, as applicable, and the portion of the projections covering such periods (including commentary on (x) any material developments or proposals affecting the Company and its Subsidiaries or their businesses and (y) the reasons for any significant variations from the projections for such period and the figures for the corresponding period in the previous fiscal year);

(vi) promptly after any request by the Holders, copies of any detailed audit reports, management letters or recommendations submitted to the Board (or the audit committee of the Board) of the Company or its Subsidiaries by independent accountants in connection with the accounts or books of the Company or its Subsidiaries or any audit of any of them;

(vii) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Holders pursuant hereto;

(viii) promptly after the same are available, copies of any Borrowing Base certificates delivered under the Revolving Loan Agreement;

(ix) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the Company or its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Holders pursuant to this Certificate of Designation;

(x) as soon as available, but in any event within thirty (30) days after the end of each fiscal year of the Company, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for the Company and its Subsidiaries and containing such additional information as the Holders may reasonably specify; (xi) promptly, and in any event within five (5) Business Days after receipt thereof by the Company or any of its Subsidiaries, copies of each notice or other correspondence received from the SEC (or any comparable agency in any applicable non-U.S.

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jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Company or any Subsidiary;

(xii) promptly, and in any event within five (5) Business Days after receipt thereof by the Company or its Subsidiaries, copies of all notices, requests and other documents (including amendments, waivers and other modifications) received under or pursuant to any instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any other event that could materially impair the value of the interests or the rights of the Company or its Subsidiaries and, from time to time upon request by the Holders, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Holders may reasonably request;

(xiii) promptly, (x) such additional information regarding the business, financial, legal or corporate affairs of the Company or its Subsidiaries, or compliance with the terms of this Certificate of Designation or the Securities Purchase Agreement as any Holder may from time to time reasonably request and (y) information and documentation reasonably requested by any Holder for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable Anti-Money Laundering Laws;

(xiv) within five Business Days after the same are filed, copies of all registration statements and any amendments and exhibits thereto, which the Company may file with the SEC or any successor or analogous Governmental Authority;

(xv) a copy of any material notice provided to the lenders or any other creditors under the Revolving Loan Agreement or to any other holder of debt securities in respect thereof at the same time as such lenders or other creditors receive such notice;

(xvi) subject to a customary confidentiality agreement, promptly upon request by the Series C Investor, any information regarding the Company provided to the Board;

(xvii) as soon as possible after a Responsible Officer of the Company knows thereof, the occurrence of any Non-Compliance Event;

(xviii) as soon as possible after a Responsible Officer of the Company knows thereof, any default or event of default under any Contractual Obligation of the Company or any of its Subsidiaries, other than as previously disclosed in writing to the Holders;

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(xix) as soon as possible after a Responsible Officer of the Company knows thereof, any development or event that has had, or could reasonably be expected to have, a Material Adverse Effect, including without limitation (A) any breach or non-performance of, or any default under, a Contractual Obligation of the Company or its Subsidiaries; (B) any dispute, Proceeding or suspension between the Company or its Subsidiaries and any Governmental Authority; (C) the commencement of, or any material development in, any Proceeding affecting the Company or its Subsidiary or (D) any Proceeding by any Governmental Authority against the Company or any Subsidiary in relation to alleged or potential violations of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions and Export Control Laws ;

(xx) as soon as possible after a Responsible Officer of the Company knows or has reason to know there thereof, the occurrence of any of the following events: (A) any ERISA Event with respect to the Company or any of its Subsidiaries, (B) the adoption of any new Single Employer Plan by the Company or any of its Subsidiaries or any of their respective ERISA Affiliates, (C) the adoption of an amendment to a Single Employer Plan if such amendment results in a material increase in benefits or unfunded liabilities or (D) the commencement of contributions by the Company or any of its Subsidiaries or any of their respective ERISA Affiliates to a Multiemployer Plan or Single Employer Plan other than any Single Employer Plan in existence as of the Closing Date, which, in the case of each of the foregoing clauses (A) through (D), shall specify the nature thereof, what action the Company or such Subsidiary, as applicable, or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the IRS, the Department of Labor or the PBGC with respect thereto;

(xxi) promptly after the occurrence thereof, any material change in accounting policies or financial reporting practices by the Company or any Subsidiary thereof;

(xxii) promptly after the occurrence thereof, any Liquidation Event or Deemed Liquidation Event;

(xxiii) promptly after the assertion or occurrence thereof, notice of any action or Proceeding against, or of any noncompliance by, the Company or any of its Subsidiaries in respect of or with any Environmental Law or Environmental Permit that could (i) reasonably be expected to result in a Material Adverse Effect or (ii) cause any property used by the business to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;

(xxiv) promptly after the occurrence thereof, the termination (other than in accordance with its terms) or amendment in any manner materially adverse to the interests of the holders of any material contract;

(xxv) promptly after the occurrence thereof, any breach under the Securities Purchase Agreement;

(xxvi) as soon as possible after the Company or any Subsidiary (including any Responsible Officer thereof) knows, or has reason to believe that, any of the representations and warranties set forth in Section 3.14 or Section 3.17 of the Securities Purchase Agreement are no longer true, complete or accurate; and

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(xxvii) subject to clause (b) below, such additional financial and other information regarding the Company as the Series C Investor may from time-to-time reasonably request.

(b) Each notice pursuant to Section 11(a) shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken or proposes to take with respect thereto. Each notice pursuant to Section 11(a) shall describe with particularity any and all provisions of this Certificate of Designation and any other related document (including the Securities Purchase Agreement) that have been breached.

(c) The Company and its Subsidiaries shall (i) maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company and any of its Subsidiary, as the case may be; and (ii) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company or any of its Subsidiary, as the case may be. The Company shall permit the Holders (and their respective representatives) to visit and inspect any of its properties and examine its corporate, financial and operating records, and to make copies thereof or abstracts therefrom, and to discuss its and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, in each case at any reasonable time, upon reasonable notice, and as often as may reasonably be desired; provided that representatives of the Company may be present during any such visits, discussions and inspections; provided, further that if the Company is in material breach of any provision of this Certificate of Designation (including following any Non-Compliance Event), Holders (or any of their representatives) may do any of the foregoing at the expense of the Company at any time during normal business hours as often as may be desired and without advance notice.

(d) Documents required to be delivered pursuant to this Section 11 may at the Company’s option be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address specified by written notice to the Holders from time to time; or (ii) on which such documents are posted on the Company’s behalf on an Internet website or virtual data site to which each Holder has access (whether a commercial or third-party website); provided, that the Company shall notify the Holders of the posting of any information on in such website virtual datasite.

SECTION 12. Transfer Agent. The Transfer Agent shall initially be Computershare Trust Company, N.A. The Company may, in its sole discretion, appoint any other Person to serve as Transfer Agent for the Series C Preferred Stock and thereafter may remove or replace such other Person at any time. Upon any such appointment or removal, the Company shall send notice thereof to the Holders.

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SECTION 13. Replacement Certificates. If physical certificates evidencing the Series C Preferred Stock are issued, the Company shall replace any mutilated certificate at the Holder’s expense upon surrender of that certificate to the Transfer Agent. The Company shall replace certificates that become destroyed, stolen or lost at the Holder’s expense upon delivery to the Company and the Transfer Agent of evidence satisfactory to the Company and the Transfer Agent that the certificate has been destroyed, stolen or lost, together with any indemnity that may be required by the Transfer Agent and the Company.

SECTION 14. Taxes.

(a) Withholding. The Company shall be entitled to deduct and withhold taxes on all payments and distributions (or deemed distributions) on the Series C Preferred Stock to the extent required by applicable law. To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Certificate of Designation as having been paid to the Person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Authority on account of taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) with respect to a share of Series C Preferred Stock, the Company shall provide evidence of such remittance to such Person in respect of which such remittance was made and be entitled (i) to offset any such amounts against any amounts otherwise payable in respect of such share of Series C Preferred Stock or (ii) to require the Person in respect of whom such deduction or withholding was made to reimburse the Company for such amounts (and such Person shall promptly so reimburse the Company upon demand).

(b) Transfer Taxes. The Company shall pay any and all documentary, stamp and similar issue or transfer tax (“Transfer Tax”) due on the issue of shares of Series C Preferred Stock or certificates representing such shares or securities. However, the Company shall not be required to pay any Transfer Tax imposed on any Person other than the Holder that may be payable in respect of the issue or delivery (or any transfer involved in the issue or delivery) of Series C Preferred Stock to a Person other than the Holder, and no such issue or delivery shall be made unless and until such Person requesting such issue or delivery has paid or reimbursed the Company the amount of any such Transfer Tax (to the extent the Company bore such Transfer Tax) or has established to the satisfaction of the Company that such Transfer Tax has been paid or is not payable.

(c) Tax Status. The Company covenants and agrees to use commercially reasonable efforts to (i) avoid becoming a United States real property holding corporation within the meaning of Code Section 897 (“USRPHC”), (ii) monitor whether it is likely to become a USRPHC, and (iii) provide a written notice to each Holder at least twenty (20) business days prior to any event, as a result of which, the Company expects to be determined as a USRPHC while such Holder owns an equity interest in the Company. For the avoidance of doubt, the Company may rely on the advice of an accounting firm of national standing in determining whether it is a USRPHC. At any Holder’s request from time to time, the Company shall promptly provide to the requesting Holder a statement in accordance with Treasury regulations Section 1.897-2(h)(1) where it determines the interest being sold is not a United States real property interest within the meaning of Code Section 897. The Company also covenants and agrees to not, either directly or indirectly by amendment, merger, consolidation or otherwise, change the entity classification of the Company from a corporation to a partnership for U.S. federal income tax purposes.

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(d) Tax Treatment. The Company and each Holder (i) shall treat the Series C Preferred Stock as stock that is not “preferred stock” within the meaning of Section 305 of the Code and the Treasury Regulations issued thereunder, (ii) agree that no Purchaser shall be required to include in income as a dividend (including any deemed dividends) for U.S. federal, state, and local income tax purposes any income or gain in respect of the Series C Preferred Stock unless and until dividends are declared and paid in cash in respect of such Series C Preferred Stock and (iii) shall not treat any portion of the proceeds received by any Holder from a redemption or a sale of the Series C Preferred Stock as a dividend for U.S. federal income tax purposes under Section 302 of the Code or otherwise (together the “Tax Treatment”). The Company and each Holder shall not take positions or actions inconsistent with the Tax Treatment, including on any IRS Form 1099, unless otherwise required pursuant to a final “determination” as defined under Section 1313(a) of the Code or if the Company or a Holder concludes, after consultation with its applicable tax advisors, that a change in applicable Law after the Closing would cause the intended Tax Treatment to not qualify for a “more likely than not” confidence level, in which case the applicable party shall deliver written notice of such conclusion and the legal basis therefor to the other parties, and each such other party shall have a reasonable period to notify the applicable party if it agrees or disagrees with such conclusion and the legal basis therefor; provided, the Company and Holders shall cooperate to resolve any such disagreement in good faith.

SECTION 15. Compliance with Economic Sanctions, Anti-Corruption Laws, and Anti-Money Laundering Laws.

(a) The Company shall, and shall cause its Subsidiaries to:

(i) not offer, promise, provide, or authorize the provision of any money, property, or other thing of value, directly or indirectly, to any Person to improperly influence official action or secure an improper advantage, or to encourage the recipient to breach a duty of good faith or loyalty or the policies of his/her employer, or otherwise violate any Anti-Corruption Law;

(ii) not violate any Anti-Money Laundering Law;

(iii) not engage in any dealings or transactions (directly or knowingly indirectly) with or for the benefit of any Restricted Party, or otherwise violate any Sanctions and Export Control Laws;

(iv) adopt and maintain policies, procedures, and controls reasonably designed to prevent, detect, and deter violations of Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions and Export Control Laws, to the reasonable satisfaction of the Series C Investor;

(v) promptly notify the Holders of any potential material violations by the Company or its Representatives about which the Company or any of its Subsidiaries becomes aware relating to any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions and Export Control Laws; (vi) comply with reasonable inquiries or requests for certification by a Holder to confirm compliance with the foregoing provisions; and

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(vii) cooperate in good faith with the reasonable efforts of any other Holder or the Company to address and/or remediate potential violations by the Company or its representatives of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions and Export Control Laws.

(b) The Company shall use its reasonable best efforts to assist each Holder in complying with its (or any of its Affiliates in complying with their) obligations under all Anti-Corruption Laws, Anti-Money Laundering Law or Sanctions and Export Control Laws.

SECTION 16. Notices. All notices referred to herein shall be in writing and, unless otherwise specified herein, all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three (3) Business Days after the mailing thereof if sent by registered or certified mail (unless first class mail shall be specifically permitted for such notice under the terms of this Certificate of Designation) with postage prepaid, addressed: (i) if to the Company, (a) if sent by mail, to its office at FreightCar America, Inc., 2 North Riverside Plaza, Suite 1300, Chicago, Illinois 60606, Attention: General Counsel, or (b) if sent by electronic mail, to such electronic mail address as the Company shall have designated in writing to the Holders, (ii) if to any Holder, to such Holder at the address and electronic mail address of such Holder as listed in the stock record books of the Company (which, for all purposes hereunder, may include the records of the Transfer Agent) or (iii) to such other address as the Company or any such Holder, as the case may be, shall have designated by notice similarly given.

SECTION 17. Facts Ascertainable. When the terms of this Certificate of Designation refer to a specific agreement or other document to determine the meaning or operation of a provision hereof, the Company shall maintain a copy of such agreement or document at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor. The Company shall also maintain a written record of the Issuance Date, the number of shares of Series C Preferred Stock issued to a Holder and the date of each such issuance, the Stated Value and Accrued Dividends per share of Series C Preferred Stock and the Dividend Rate in effect from time to time and shall furnish such written record (with respect to such Holder’s shares of Series C Preferred Stock) free of charge to any Holder who makes a request therefor.

SECTION 18. Amendment; Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the Holders of Series C Preferred Stock granted hereunder may be amended or waived as to all shares of Series C Preferred Stock (and the Holders thereof) upon the written consent of the Preferred Majority Holders; provided that (i) any amendment, modification, or waiver that, by its terms, would treat any Holder or Holder, in its capacity as such, either adversely or less beneficially relative to any other Holder shall require the prior written consent of such adversely or less beneficially affected Holder and (ii) without limiting the foregoing, without the written consent of each Holder adversely affected thereby, no amendment, modification or waiver shall:

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(a) reduce the Dividend Rate or extend any Dividend Payment Date (except in accordance with the proviso to such definition as in effect on the Closing Date); provided that the Preferred Majority Holders shall be permitted to amend, modify or waive Non-Compliance Events and the effects thereof without the written consent of each adversely affected Holder;

(b) reduce the Stated Value or the Accrued Dividend; provided that the Preferred Majority Holders shall be permitted to amend, modify or waive Non-Compliance Events and the effects thereof without the written consent of each adversely affected Holder;

(c) reduce the Redemption Price (other than as a result of any amendment, modification or waiver of the effect of a Non-Compliance Event in accordance with clause (b) above); or

(d) amend Section 2, Section 4, Section 5, Section 6, Section 7, Section 8, Section 11, Section 14, Section 15 and this Section 18 (including any defined term used in such sections or any other amendment that has the effect of amending such sections).

SECTION 19. Severability. If any term of the Series C Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other terms set forth herein which can be given effect without the invalid, unlawful or unenforceable term will, nevertheless, remain in full force and effect, and no term herein set forth will be deemed dependent upon any other such term unless so expressed herein.

SECTION 20. Remedies. The Company acknowledges that the obligations imposed on it in this Certificate of Designation are special, unique and of an extraordinary character, and irreparable damages, for which money damages, even if available, would be an inadequate remedy, would occur in the event that the Company does not perform the provisions of this Certificate of Designation in accordance with its specified terms or otherwise breaches such provisions. The Holders shall be entitled to seek an injunction, specific performance and other equitable relief to prevent breaches of this Certificate of Designation and to seek to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled, at law or in equity, including without limitation money damages. All remedies available under this Certificate of Designation, under the Securities Purchase Agreement, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy, including by one or more actions for specific performance, in addition to any other remedies to which the Holders may be entitled.

SECTION 21. Interpretation. When a reference is made in this Certificate of Designation to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to this Certificate of Designation unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Certificate of Designation, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Certificate of Designation shall refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation unless the context requires otherwise. The terms “or,” “any” and “either” are not exclusive.

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The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” All terms defined in this Certificate of Designation shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Certificate of Designation are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means, unless otherwise specified, such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. When calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Certificate of Designation, the date that is the reference date in calculating such period shall be excluded (unless otherwise required by law or specified herein, if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day). The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

SECTION 22. Expenses; Indemnity.

(a) For so long as the Series C Preferred Stock remains outstanding, the Company shall reimburse the Holders for each of their documented reasonable out-of-pocket costs, fees and expenses from time to time in responding to any request for approval under the Certificate (including this Certificate of Designation), enforcing their rights under the Certificate (including this Certificate of Designation), and/or amending the Certificate (including this Certificate of Designation); provided, that, with respect to any approval or any amendment, the Company shall not be obligated to reimburse the expenses of more than one single counsel for all Holders taken as a whole (such counsel to be selected by the Preferred Majority Holders in their sole discretion) and to the extent reasonably necessary, regulatory counsel and a single local counsel in each relevant jurisdiction.

(b) The Company shall indemnify and hold harmless the Holders, each of their respective Affiliates and controlling persons and each of their respective directors, officers, employees, partners, agents, advisors and other representatives (each, an “Indemnified Person”) from and against any and all losses, claims, damages and liabilities to which any such Indemnified Person may become subject arising out of or in connection with any claim, litigation, investigation or proceeding relating to the Certificate (including this Certificate of Designation) (a “Proceeding”), regardless of whether any Indemnified Person is a party thereto or whether such Proceeding is brought by the Company, any of its Affiliates or any third party, including advancing amounts to each Indemnified Person within thirty (30) days following written request therefor for any reasonable and documented legal or other out-of-pocket expenses incurred or to be incurred in connection with investigating or defending any Proceeding; provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they arise from the willful misconduct, bad faith or gross negligence of, or material breach of this Certificate of Designation or the Securities Purchase Agreement by, such Indemnified Person, in each case as determined by a final non-appealable judgment of a court of competent jurisdiction.

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SECTION 23. Renunciation under DGCL Section 122(17). It is recognized and anticipated that (a) directors of the Company may serve as directors, officers, employees and agents of the Holders or their Affiliates or Associates (“Covered Persons”); (b) the Company, directly or indirectly, may engage in the same, similar or related lines of business as those engaged in by the Holders or their Affiliates or Associates and other business activities that overlap with or compete with those in which the Holders or their Affiliates or Associates may engage; (c) the Company may have an interest in the same areas of business opportunities as the Holders or their Affiliates or Associates; (d) the Company will derive substantial benefits from the service of Covered Persons as directors of the Company; and (e) it is in the best interests of the Company that the rights of the Company, and the duties of any Covered Persons, be determined and delineated as provided in this Section 23 in respect of any Potential Business Opportunities (as defined below).

If a director of the Company who is a Covered Person is presented or offered, or otherwise acquires knowledge of, a potential transaction or matter that may constitute or present a business opportunity for the Company or any of its Subsidiaries, in which the Company or any of its Subsidiaries could, but for the provisions of this Section 23, have an interest or expectancy (any such actual or potential transaction, matter or business opportunity, a “Potential Business Opportunity”), (i) such Covered Person will, to the fullest extent permitted by law, have no duty or obligation to refer such Potential Business Opportunity to the Company or any of its Subsidiaries or to give any notice to the Company or any of its Subsidiaries regarding such Potential Business Opportunity (or any matter related thereto), and such Covered Person shall have no duty or obligation to refrain from referring such Potential Business Opportunity to the Holders or their its Affiliates or Associates, (ii) if such Covered Person refers a Potential Business Opportunity to the Holders or their Affiliates or Associates, such Covered Person, to the fullest extent permitted by law, will not be liable to the Company, any of its Subsidiaries or any of its stockholders for any failure to refer such Potential Business Opportunity to the Company or its Subsidiaries, or for any failure to give notice to or otherwise inform the Company or any of its Subsidiaries regarding such Potential Business Opportunity or any matter related thereto, (iii) the Holders and their Affiliates and Associates may engage or invest in, independently or with others, any such Potential Business Opportunity, (iv) neither the Company nor any of its Subsidiaries shall have any right in or to such Potential Business Opportunity or to receive any income or proceeds derived therefrom, and (v) the Company shall have no interest or expectancy, and hereby specifically renounces, on behalf of itself and its subsidiaries, any interest or expectancy, in any such Potential Business Opportunity, unless all of the following conditions are satisfied: (x) such Potential Business Opportunity is presented or offered to a Covered Person solely in the Person’s capacity as a director of the Company, (y) such Potential Business Opportunity is one the Company or any of its subsidiaries is legally and contractually permitted to undertake, and (z) the Covered Person believes that the Company possesses, or would reasonably be expected to be able to possess, the resources necessary to exploit such Potential Business Opportunity.

For purposes of this Section 23, “Associate” shall have the meaning set forth in Section 203 of the DGCL.

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[Signature Page Follows]

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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designation this 19th day of May, 2023.

[Signature Page to Certificate of Designation]

EXHIBIT 10.1

THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF APPLICABLE STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION UNDER SUCH LAWS OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT.

WARRANT TO PURCHASE COMMON STOCK

OF

FREIGHTCAR AMERICA, INC.

NO. W-004 May 22, 2023

THIS WARRANT CERTIFIES THAT, for value received, OC III LFE II LP, a Delaware limited partnership, or its assigns (the “Holder”), is entitled to subscribe for and purchase from FreightCar America, Inc., a Delaware corporation (the “Company”), a number of shares of the Company’s voting common stock, par value $0.01 per share (“Common Stock”), equal to (a) 1,636,313 shares of Common Stock (subject to adjustment hereunder) less (b) the aggregate number of shares of Common Stock previously issued from time to time as a result of any partial exercise of this Warrant in accordance with the terms set forth herein (collectively, the “Exercise Shares”), at a purchase price per share of $3.57 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant (this “Warrant”).

This Warrant is being issued pursuant to the terms of the Securities Purchase Agreement, dated as of March 23, 2023, by and between the Company and the Holder (the “Purchase Agreement”). Certain capitalized terms used herein are defined in Section 1 hereof. Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Purchase Agreement. The Exercise Shares are subject to adjustment as provided herein.

This Warrant is subject to the following terms and conditions:

Upon receipt by the Company of this Warrant and payment of the Exercise Price in cash (by wire transfer to the account designated in writing by the Company) or by check, or pursuant to Section 2.2, shares of Common Stock in certificated or book entry form representing the Exercise Shares so purchased, registered in the name of the Holder or Persons affiliated with the

Holder, if the Holder so designates, shall be issued and delivered to the Holder at the Company’s expense within three (3) Business Days after the Company’s receipt of such Notice of Exercise and/or Exercise Price.

The Person in whose name any certificate or book entry representing the Exercise Shares that are to be issued upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such shares.

X= Y*(A-B)A

Where X = the number of Exercise Shares to be issued to the Holder

Y = the number of Exercise Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (at the date of such exercise)

A = the Fair Market Value of one Exercise Share purchasable under the Warrant (at the date of such exercise)

B = Exercise Price (as adjusted to the date of such exercise)

The Company acknowledges that the provisions of this Section 2.2 are intended, in part, to ensure that a full or partial exchange of this Warrant pursuant to this Section 2.2 will qualify as a conversion for purposes of Rule 144 under the Securities Act and as a recapitalization within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (or any similar provision of state or local law that follows the U.S. federal income tax treatment). At the request of the Holder, the Company will accept reasonable modifications to the exchange procedures provided for in this Section in order to accomplish such intent. For the avoidance of doubt, the Holder shall not be required to pay any cash upon any exercise of this Warrant pursuant to this Section 2.2. For all purposes of this Warrant (other than this Section 2), any reference herein to the exercise of this Warrant shall be deemed to include a reference to the exchange of this Warrant for Exercise Shares in accordance with the terms of this Section 2.2.

THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF APPLICABLE STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE

STATE SECURITIES LAWS, PURSUANT TO REGISTRATION UNDER SUCH LAWS OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT.

[signature page follows]

IN WITNESS WHEREOF, the Company and the Holder have each caused this Warrant to be executed by its duly authorized officer as of the date first above written.

NOTICE OF EXERCISE

1.a ❑ The undersigned hereby elects to purchase [__] shares of Common Stock, par value $0.01 per share (“Common Stock”), of FreightCar America, Inc. (the “Company”) pursuant to the terms of the attached Warrant, and tenders herewith payment of the Exercise Price in full.

1.b ❑ The undersigned hereby elects to purchase [__] shares of Common Stock pursuant to the terms of the net exercise provisions set forth in Section 2.2 of the attached Warrant.

2. Please issue said shares of Common Stock in the name of the undersigned or in such other name as is specified below:

ASSIGNMENT FORM

(To assign the foregoing Warrant or a portion thereof, execute this form and supply required information. Do not use this form to purchase shares.)

FOR VALUE RECEIVED, the foregoing Warrant (or portion thereof) and all rights evidenced thereby are hereby assigned to

Name: (“Assignee”)

(Please Print)

Address:

(Please Print)

Assignee agrees to take and hold the Warrant and any shares of stock to be issued upon exercise of the rights thereunder subject to, and to be bound by, the terms and conditions set forth in the Warrant to the same extent as if Assignee were the original holder thereof.

Dated: , 20__

Holder’s
Signature:

Holder’s
Address:

Assignee’s
Signature:

Assignee’s
Address:

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant (or portion thereof).

Execution Version

EXHIBIT 10.2

AMENDMENT NO. 2 TO

AMENDED AND RESTATED REIMBURSEMENT AGREEMENT

THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this “Amendment”), dated as of May 22, 2023 is made by and among FREIGHTCAR AMERICA, INC., a Delaware corporation (“Company”), the subsidiary guarantors party hereto (the “Subsidiary Guarantors” and together with the Company, the “Loan Parties”), CO FINANCE LVS VI LLC, a Delaware limited liability company (“LC Provider”), U.S. BANK, NATIONAL ASSOCIATION (“Disbursing Agent”), and U.S. BANK NATIONAL ASSOCIATION, as collateral agent for the Secured Parties (“Collateral Agent” and together with the Disbursing Agent, the “Agents” and each, an “Agent”).

R E C I T A L S:

WHEREAS, certain of the parties have previously entered into that certain Credit Agreement, dated as of October 13, 2020, by and among Company, FreightCar North America, LLC (“Borrower”), the several financial institutions or other entities from time to time parties thereto including LC Provider (the “Lenders”), the Disbursing Agent and the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Amended Credit Agreement”);

WHEREAS, Company has requested, and LC Provider has obtained, a standby letter of credit (as may be amended from time to time, the “Credit”) from Wells Fargo Bank, N.A. (“Issuer”), in the principal sum of $25,000,000 (TWENTY-FIVE MILLION AND 00/100 DOLLARS) (the “Principal Amount”) for the account of Company and for the benefit of SIENA LENDING GROUP LLC (“Beneficiary”);

WHEREAS, Company has agreed to reimburse Disbursing Agent, for the account of LC Provider, in the event of any drawings under the Credit by Beneficiary;

WHEREAS, in connection with the aforementioned recitals, Company, LC Provider, Disbursing Agent and Alter Domus (US) LLC, as calculation agent for LC Provider (in such capacity, “Calculation Agent”), entered into that certain Reimbursement Agreement dated as of July 30, 2021 (the “Original Reimbursement Agreement”), which was subsequently amended and restated by the Company, LC Provider, Disbursing Agent and Calculation Agent on December 30, 2021 (the Original Reimbursement Agreement as so amended and restated, the “Amended and Restated Reimbursement Agreement”);

WHEREAS, the Amended and Restated Reimbursement Agreement is a Loan Document under the Amended Credit Agreement, and the obligations of the Company under the Amended and Restated Reimbursement Agreement are Obligations (under and as defined in the Amended Credit Agreement) secured by the Collateral;

WHEREAS, on March 23, 2023, the Company and certain funds affiliated with the LC Provider entered into the Securities Purchase Agreement pursuant to which the purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Amended Credit Agreement other than the Reimbursement Obligations in respect of the Credit (the “Conversion Transaction”); and WHEREAS, in connection with the Conversion Transaction, the parties wish to (i) terminate the Amended Credit Agreement other than with respect to the Company’s obligations in respect of the Credit, (ii) amend the Guarantee and Collateral Agreement, (iii) amend the Intercreditor Agreement and (iv) amend the Amended and Restated Reimbursement Agreement to reflect the Company’s continuing obligations to LC Provider in respect of the Credit, which obligations shall (x) after the Second Amendment Effective Date (as defined below), be solely as set forth in the Amended and Restated Reimbursement Agreement, as amended hereby (the “Reimbursement Agreement”) and (y) continue to be secured by the Collateral.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Capitalized Terms. All capitalized undefined terms used in this Amendment (including without limitation, in the Recitals hereto) shall have the meanings assigned thereto in the Reimbursement Agreement.

SECTION 2. Amendments to Reimbursement Agreement.

On and as of the Second Amendment Effective Date, the Amended and Restated Reimbursement Agreement is amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: ) and (ii) inserting the underlined text (indicated textually in the same manner as the following example: inserted text), in each case set forth on Exhibit A hereto.

SECTION 3. Effectiveness. This Amendment shall become effective on the date upon which each of the following conditions is satisfied (such date, the “Second Amendment Effective Date”):

3.1 This Amendment. The Disbursing Agent and LC Provider shall have received this amendment, duly executed and delivered by the Disbursing Agent, Collateral Agent, LC Provider, the Company and each Subsidiary Guarantor, in form and content acceptable to the Disbursing Agent, Collateral Agent and LC Provider.

3.2 Amendment to Intercreditor Agreement. LC Provider and the Collateral Agent shall have received a duly executed and delivered Amendment No. 5 to Intercreditor Agreement, in form and content acceptable to the Collateral Agent and LC Provider.

3.3 Amendment to Guarantee and Collateral Agreement. LC Provider and Collateral Agent shall have received a duly executed and delivered Amendment No. 1 to Guarantee and Collateral Agreement, in form and content acceptable to the Collateral Agent and LC Provider.

3.4 Fees. The LC Provider, the Collateral Agent and the Disbursing Agent shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including but not limited to (i) any Letter of Credit Fee and Cash Fee that accrued during the Closing Period, and (ii) to the extent

invoiced at least one Business Day prior to the Second Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, disbursements and other charges of counsel) required to be reimbursed or paid under this Amendment or any Loan Document.

SECTION 4. Limited Effect. Except as expressly provided herein, the Reimbursement Agreement shall remain unmodified and in full force and effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Reimbursement Agreement or a waiver of any other Default or Event of Default (except as expressly provided herein), (b) to prejudice any right or rights the LC Provider or any Agent may now have or may have in the future under or in connection with the Reimbursement Agreement, as the same may be amended, restated, supplemented or modified from time to time, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Company or any other Person with respect to any waiver, amendment, modification or any other change to the Reimbursement Agreement or any rights or remedies arising in favor of any Agent or the LC Provider, under or with respect to any such documents.

SECTION 5. Representations and Warranties. Each Loan Party represents and warrants that (a) it has the organizational power and authority to make, deliver and perform this Amendment, (b) it has taken all necessary organizational or other action to authorize the execution, delivery and performance of this Amendment, (c) this Amendment has been duly executed and delivered by it, (d) this Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law, (e) each of the representations and warranties made by the Company in Section 5 of the Reimbursement Agreement is true and correct in all material respects as to each Loan Party on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects, (f) as of the date hereof, it has no defenses, setoffs, rights of recoupment, counterclaims or claims of any nature whatsoever with respect to the obligations due thereunder, and to the extent any such defenses, setoffs, rights of recoupment, counterclaims or claims may exist on or prior to the date hereof, the same are hereby expressly waived, released and discharged, and (g) after giving effect to this Amendment, Amendment No. 5 to Intercreditor Agreement and Amendment No. 1 to Guarantee and Collateral Agreement, no Default or Event of Default has occurred and is continuing as of the date hereof or after giving effect hereto.

SECTION 6. Costs and Expenses. The Company agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by the LC Provider and each Agent and their respective Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel for the LC Provider and each Agent with respect thereto and with respect to advising the LC Provider and each Agent as to its rights and responsibilities hereunder and thereunder.

SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

SECTION 8. Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.

SECTION 9. Entire Agreement; Section Heading; Severability. This Amendment is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The Section headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 10. Successors and Assigns. This Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.

SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

SECTION 12. Reaffirmation; Other Agreements. Each Loan Party, as of the Second Amendment Effective Date, (i) acknowledges and agrees that that all of its obligations in respect of the Credit under the Amended Credit Agreement remain outstanding under the Reimbursement Agreement, and that all of its Reimbursement Obligations under the Reimbursement Agreement and other Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis as and to the extent provided in the Loan Documents; (ii) reaffirms each Lien granted by it to the Collateral Agent for the benefit of the Secured Parties and reaffirms its guarantee as and to the extent provided in the Loan Documents; and (iii) acknowledges and agrees that the grants of security interests by and the guarantee of the Loan Parties, and all Security Documents are, and shall remain, in full force and effect after giving effect to this Amendment as and to the extent provided in the Loan Documents. Nothing in this Amendment shall be construed as a substitution or novation of the obligations in respect of the Credit outstanding under the Amended Credit Agreement, the Reimbursement Agreement or any other Loan Document, and such obligations remain in full force and effect, except to any extent modified hereby.

SECTION 13. LC Provider Direction. By its execution and delivery of its signature page hereto, the LC Provider is authorizing and directing each of the Collateral Agent and Disbursing Agent to execute and deliver (i) this Amendment, (ii) that certain Amendment No. 5 to Intercreditor Agreement (attached hereto as Exhibit B), and (iii) that certain Amendment No. 1 to Guarantee and Collateral Agreement (attached hereto as Exhibit C).

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first written above.

COMPANY:

FREIGHTCAR AMERICA, INC.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

Address for Notices to the Company and the Subsidiary Guarantors:

Freight Car America, Inc.

125 South Wacker Drive, Suite 1500

Chicago, Illinois 60606

Attention: Michael Riordan, Chief Financial Officer

Email: mriordan@freightcar.net

With a copy (which does not constitute notice) to:

Freight Car America, Inc.

125 South Wacker Drive, Suite 1500

Chicago, Illinois 60606

Attention: Celia Perez, General Counsel

Email: mriordan@freightcar.net

SUBSIDIARY GUARANTORS:

FREIGHTCAR NORTH AMERICA, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

JAC OPERATIONS, INC.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FREIGHT CAR SERVICES, INC.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

JAIX LEASING COMPANY

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FREIGHTCAR SHORT LINE, INC.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

JOHNSTOWN AMERICA, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FREIGHTCAR ALABAMA, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FREIGHTCAR RAIL SERVICES, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FCA-FASEMEX, LLC

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FCA-FASEMEX, S. DE R.L., DE C.V.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

FCA-FASEMEX ENTERPRISE, S. DE R.L., DE C.V.

By: /s/ Michael Riordan

Name: Michael Riordan

Title: Authorized Person

LC PROVIDER:

CO FINANCE LVS VI LLC

By: /s/ Christopher Neumeyer

Name: Christopher Neumeyer

Title: Authorized Person

Address for Notices:

Sheppard Mullin

333 South Hope Street

Forty-Third Floor

Los Angeles, CA 90071

Attention: Stacey L. Rosenberg, Esq.

Telephone 213-617-4128

Facsimile: 213-443-2751

Email: srosenberg@sheppardmullin.com

DISBURSING AGENT AND COLLATERAL AGENT:

U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Disbursing Agent and Collateral Agent and not in its individual capacity

By: /s/ Prital K. Patel

Name: Prital K. Patel

Title: Vice President

Address for Notices:

214 N. Tryon Street, 27th Floor

Charlotte, NC 28202

Attention: CDO Trust Services/James Hanley This AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this

Fax No: 704-335-4670

Tel: 302-576-3714

Email: james.hanley1@usbank.com

Exhibit A

Amended Reimbursement Agreement

[attached]

AmericasActive:18517392.8

Exhibit A

Amended and Restated Reimbursement Agreement

“Agreement”), dated as of December 30, 2021 and amended as of May 22, 2023, is by and among: (i) CO FINANCE LVS VI LLC, a Delaware limited liability company, as LC Provider (in such capacity and together with its successors and permitted assigns in such capacity, “LC Provider”; provided that there shall only be one LC Provider at any time), (ii) U.S. BANK, NATIONAL ASSOCIATION, as disbursing agent (in such capacity and together with its successors and permitted assigns in such capacity, “Disbursing Agent”) and as collateral agent for the Secured Parties (together with its successors and permitted assigns in such capacity, the “Collateral Agent”), and (iii) FREIGHTCAR AMERICA, INC., a Delaware corporation (“Company”).

WHEREAS, certain of the parties have previously entered into that certain Credit Agreement, dated as of October 13, 2020, by and among Company, FreightCar North America, LLC (“Borrower”), the several financial institutions or other entities from time to time parties thereto including LC Provider, the Disbursing Agent and U.S. Bank National Association, as collateral agent for the Secured Parties (as defined therein) (as amended by that certain Amendment No. 1 to Credit Agreement dated as of January 30, 2021, Amendment No. 2 to Credit Agreement dated as of May 14, 2021, Amendment No. 3 to Credit Agreement dated as of July 30, 2021, Amendment No. 4 to Credit Agreement dated as of December 30, 2021, Amendment No. 5 to Credit Agreement dated as of March 1, 2022, Amendment No. 6 to Credit Agreement dated as of January 30, 2023, Amendment No. 7 to Credit Agreement dated as of February 27, 2023, and Amendment No. 8 to Credit Agreement dated as of March 23, 2023, the “Amended Credit Agreement”).

WHEREAS, Company requested, and LC Provider has obtained, a standby letter of credit (as may be amended from time to time, the “Credit”) from Wells Fargo Bank, N.A. (“Issuer”), in the principal sum of $25,000,000 (TWENTY-FIVE MILLION AND 00/100 DOLLARS) (the “Principal Amount”) for the account of Company and for the benefit of SIENA LENDING GROUP LLC (“Beneficiary”).

WHEREAS, Company has agreed to make payments to the Disbursing Agent, for the account of LC Provider, in the event of any drawings under the Credit by Beneficiary.

WHEREAS, in connection with the aforementioned recitals, Company, LC Provider, Disbursing Agent and Alter Domus (US) LLC, as calculation agent (in such capacity, the “Calculation Agent”) entered into that certain Reimbursement Agreement dated as of July 30, 2021 (the “Original Reimbursement Agreement”), which was subsequently amended and restated by the Company, LC Provider, Disbursing Agent and Calculation Agent on December 30, 2021 (the Original Reimbursement Agreement as so amended and restated, the “Amended and Restated Reimbursement Agreement”).

WHEREAS, the Amended and Restated Reimbursement Agreement is a Loan Document under the Amended Credit Agreement, and the obligations of the Company under the Amended and Restated Reimbursement Agreement are Obligations (under and as defined in the Amended Credit Agreement) secured by the Collateral.

WHEREAS, on March 23, 2023, the Company and certain funds affiliated with the LC Provider entered into the Securities Purchase Agreement (the “Securities Purchase Agreement”) pursuant to which the purchasers thereunder agreed to purchase newly-issued preferred securities of the Company (the “Preferred Shares”), the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Amended Credit Agreement other than the Reimbursement Obligations in respect of the Credit (the “Conversion Transaction”).

WHEREAS, in connection with the Conversion Transaction, the parties wish to (i) terminate the Amended Credit Agreement (but, for the avoidance of doubt, the Company’s obligations in respect of the Credit shall not be terminated), and (ii) amend the Amended and Restated Reimbursement Agreement to reflect the Company’s continuing obligations to LC Provider in respect of the Credit, which obligations shall (x) after the Second Amendment Effective Date (as defined below), be solely as set forth in this Agreement and (y) continue to be secured by the Collateral.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Company agrees that the following terms and conditions of this Agreement shall apply to the Credit:

(a) for the period commencing on the Second Amendment Effective Date and ending on July 29, 2023 (i.e., in respect of the Measurement Period that commenced prior to the Second Amendment Effective Date), an amount equal to $287,671.23; and

(b) for each Measurement Period thereafter, the Cash Fee (i.e., $375,000 each quarter); provided that if this Agreement terminates for any reason whatsoever, including, for the avoidance of doubt, upon payment, expiration or cancellation of the Credit, on a date other than the last day of a Measurement Period, the Cash Fee for the then-current Measurement Period shall be an amount equal to the product of: (A) the number of days elapsed in the Measurement Period in which this Agreement terminates (including the first day of such Measurement Period and the day that this Agreement terminates) divided by 365, multiplied by (B) $1,500,000 (such amount, the “Termination Payment”).

The LC Provider shall calculate the Termination Payment in connection with the termination of this Agreement and shall notify the Disbursing Agent and Company of such amount on the date of determination. Neither the Disbursing Agent nor the Collateral Agent shall be responsible for calculation of the Termination Payment. For the avoidance of doubt, the Termination Payment shall be due in cash on the date that this Agreement terminates. The Cash Fee and Termination Payment shall each be fully earned when paid and shall not be refundable for any reason whatsoever.

provided, however, that Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (a) through (i) (unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (a) through (i)).

(ii) To the extent that Company for any reason fails to indefeasibly indemnify Disbursing Agent, Collateral Agent or Calculation Agent or pay any amount required under Section 2(a)(vi), Section 4(a)(i) or Section 8 to be paid by it to such Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, LC Provider agrees to indemnify such Agent from and against any all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature, including, without limitation, the fees and expenses of its agents and attorneys, whatsoever which may be imposed on, incurred by or asserted against such Agent in performing its duties hereunder, or in any way relating to or arising out of this Agreement or any other Loan Document and pay to such Agent or any such sub-agent or such Related Party such unpaid amount (including any such unpaid amount in respect of a claim asserted by such LC Provider); 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 such Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-agent) in connection with such capacity.

(a) comply with all federal, state and foreign laws, treaties, rules and regulations of any Governmental Authority constituting Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions or foreign exchange control or currency reporting laws or regulations now or hereafter applicable to Company, this Agreement or to any transactions or payments under or in connection with the Credit;

(b) not, directly or indirectly, use or facilitate the use by any other Person of the Credit (i) to fund any activities or business of, or with, any Sanctioned Person or (ii) that would in any manner cause Issuer or LC Provider to be in breach of any (c) not pay amounts to Disbursing Agent or LC Provider (or its designee) hereunder with proceeds derived from any transaction that would be prohibited by Sanctions or would otherwise cause Disbursing Agent and/or LC Provider (or its designee) to be in breach of any Sanction;

Sanction;

(d) maintain financial records in accordance with the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date;

(e) pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property, except, in each case, (i) to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, or (ii) if such failure to pay or discharge such obligations and liabilities would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (b) timely and accurately file all federal, state and other material Tax returns required to be filed;

(f) deliver to Disbursing Agent, Calculation Agent or LC Provider such other information (financial or otherwise) as Disbursing Agent, Calculation Agent or LC Provider may from time to time reasonably request related to Company, this Agreement, the Credit or the transactions related hereto;

(g) at Company’s cost and expense, execute and deliver and, where applicable, file such additional certificates, instruments, financing agreements, Mortgages, deeds of trust and/or documents and take such additional action as may be necessary or as any Agent or LC Provider may reasonably request to enable each Agent and LC Provider to (i) protect, exercise and/or enforce each Agent’s and LC Provider’s rights and interests under this Agreement, (ii) give effect to the terms and provisions of this Agreement and (iii) grant, preserve, protect and perfect the validity and priority of the security interests and liens created or intended to be created by the Security Documents;

(h) in the event that (x) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Company or any other Loan Party or (y) any Subsidiary of the Company or any other Loan Party that was previously an Excluded Subsidiary ceases to be an Excluded Subsidiary, then the Company will and will cause each such other Person to (i) within 30 days after such event (or such longer period of time reasonably acceptable to the LC Provider), cause such Person referred to in clause (x) or (y), as applicable to become a Guarantor and a Grantor under (and as defined in) the Guarantee and Collateral Agreement by executing and delivering to the Collateral Agent a counterpart agreement or supplement to the Guarantee and Collateral Agreement in accordance with its terms and (ii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates necessary or as may be reasonably requested by the Collateral Agent or the LC Provider in order to cause the Collateral Agent, for the benefit of the Secured Parties, to have a Lien on all assets of such Person (other than Excluded Assets), which Lien shall (other than with respect to assets constituting Excluded Perfection Assets) be perfected and shall be of first priority (subject to (i) in the case of all such assets constituting Equity Interests, Permitted Equity Liens and (ii) in the case of all such other assets, Permitted Liens) and shall deliver or cause to be delivered to the Collateral Agent, items as are similar to those described in Sections 4.02(e), 4.02(h), 4.02(j) and 4.02(k) and Section 5.14 of the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date, and Section 5 of the Guarantee and Collateral Agreement and, to the extent applicable, any additional Mexican Security Documents. With respect to each such Subsidiary of the Company or any other Loan Party, the Company shall, within 30 days of such event (or such longer period of time reasonably acceptable to the LC Provider), send to the LC Provider and the Collateral Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary (that is not an Excluded Subsidiary) of the Company or any other Loan Party or ceased to be an Excluded Subsidiary and (ii) all of the data required to be set forth in Schedule 3.18 to the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date with respect to all Subsidiaries of the Company. Notwithstanding anything to the contrary set forth herein, in no event shall this Section 6(h) require the granting of any Lien on any Excluded Assets or the perfection of any Lien on any Excluded Perfection Assets;

(i) in the event that (i) any Loan Party acquires any Material Owned Real Property, (ii) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Company or any other Loan Party and such Person owns any Material Owned Real Property at such time, (iii) any Subsidiary ceases to be an Excluded Subsidiary and such Subsidiary owns any Material Owned Real Property at such time or (iv) any Real Property of a Loan Party becomes Material Owned Real Property after the Second Amendment Effective Date, and such interest in such Material Owned Real Property has not otherwise been made subject to the Lien of the Security Documents in favor of Collateral Agent for the benefit of the Secured Parties, then the Company shall, or shall cause such Subsidiary to, within 90 days of such event (or such longer period of time reasonably acceptable to the LC Provider), take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages, documents, instruments, agreements and certificates with respect to each such Material Owned Real Property as are necessary or that the LC Provider or the Collateral Agent shall reasonably request to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid first-priority security interest (subject to Permitted Prior Liens) in such Material Owned Real Property and shall deliver to the Collateral Agent title reports, surveys necessary to provide a Title Policy (defined below), ALTA mortgagee extended coverage title insurance policies or commitments therefor issued by one or more title companies (the “Title Company”) reasonably satisfactory to the LC Provider with respect to each Mortgaged Property (each, a “Title Policy”), in amounts not less than 110% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first-priority Lien on the Mortgaged Property encumbered thereby, together with all endorsements reasonably requested by the LC Provider, legal opinions, flood certificates, flood insurance (if required) and other items with respect to such Material Owned Real Property.

In addition to the foregoing, the Company shall, at the request of the Collateral Agent or the LC Provider, deliver, from time to time, to the Collateral Agent such appraisals as are required by law or regulation of any Material Owned Real Property with respect to which the Collateral Agent has been granted a Lien;

(j) (x) preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization, except for any transaction not expressly prohibited under the Loan Documents; (y) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (z) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect;

(k) (x) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (y) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (z) use the standard of care typical in the industry in the operation and maintenance of its facilities;

(l) (x) maintain with financially sound and reputable insurance companies not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or a similar business of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, and all such insurance shall (A) provide for not less than 30 days’ (10 days’ in the case of failure to pay premium) prior notice to the Collateral Agent of termination, lapse or cancellation of such insurance, (B) name the Collateral Agent as loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance) and (C) be reasonably satisfactory in all other respects to the LC Provider; and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect) or any successor act thereto, then the Company shall, or shall cause the applicable Loan Party to (A) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Disaster Protection Act and the National Flood Insurance Act of 1968 and (B) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the LC Provider;

(m) promptly upon request by any Agent, or LC Provider, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Disbursing Agent, the Collateral Agent or LC Provider may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, it being understood, for the avoidance of doubt, that no Agent shall have any obligation, responsibility or liability to monitor or determine whether any of the foregoing actions are required;

(n) not amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, (i) any of the terms of the Revolving Loan Documents other than in accordance with the Intercreditor Agreement or (ii) any of the terms of any Scheduled Material Agreement, other than any such amendment, modification, waiver, change or consent which is not, and could not reasonably be expected to be, adverse in any material respect to the interests of LC Provider; and

(o) not permit the fiscal year of the Company to end on a day other than December 31 or change the Company’s method of determining fiscal quarters.

(a) Until payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, each of the following events shall constitute an Event of Default:

(i) the Company or any Loan Party shall fail to pay (i) any Reimbursement Obligations under Section 2(a)(ii) when due in accordance with the terms of this Agreement, or (ii) any other amount when due in accordance with this Agreement and the other Loan Documents, within three (3) Business Days after any such amount becomes due in accordance with the terms hereof or thereof; or (ii) any representation, warranty, certification or statement of fact made or deemed made by on or behalf of the Company or any other Loan Party herein, in any other Loan Document or in any document or certificate delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

(iii) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than as provided in Section 7(a)(i) or 7(a)(ii)) and such failure continues unremedied or unwaived for a period of 30 days after the earlier of (i) the date an officer of such Loan Party becomes aware of such default and (ii) the receipt by the Company of notice from the Disbursing Agent or the LC Provider of such default; or

(iv) any Loan Party shall (A) fail to pay any principal, interest or dividend, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable beyond any applicable grace period in respect thereof; or (B) fail to observe or perform any other term, covenant, agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holders or beneficiaries of such Material Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) to cause, with or without the giving of notice, the lapse of time or both, such Material Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor; or

(v) (i) a court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any Loan Party under any Debtor Relief Laws now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged; or

(vi) (i) any Loan Party shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party shall make any assignment for the benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7(a)(v); or

(vii) there occurs one or more ERISA Events which has resulted or could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or

(viii) one or more judgments shall be rendered against any Loan Party and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $5,000,000 (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect; or

(ix) (i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement for any reason other than termination of the Credit and payment in full in cash of all Reimbursement Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Security Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or termination of the Credit and payment in full in cash of all Reimbursement Obligations) or shall be declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien on any material portion of the Collateral purported to be covered by the Security Documents with the priority required by the relevant Security Document, in each case, for any reason other than (x) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Preferred Documents or (y) as a result of the Collateral Agent’s failure to maintain possession of any stock certificates or other instruments actually received by it under the Security Documents, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability under any Loan Document to which it is a party or shall contest the validity or perfection of any Lien on any Collateral (other than, solely with respect to perfection, any Excluded Perfection Assets) purported to be covered by the Security Documents; or

(x) any Change of Control shall occur; or (xi) there shall have occurred the termination of, or the receipt by any Loan Party of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Material Agreements of any Loan Party; or

(xii) at any time after the execution and delivery thereof, any Intercreditor Agreement shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared null and void; or

(xiii) there shall have occurred any changes in tariffs or trade conditions applicable to the Loan Parties’ products or businesses that could reasonably be expected to result in a Material Adverse Effect; or

(xiv) no Preferred Shares purchased in the Conversion Transaction by funds affiliated with LC Provider shall remain outstanding.

(b) Upon the occurrence and during the continuance of any Event of Default: on the Business Day following the date on which Company receives written notice from Disbursing Agent (at the written direction of LC Provider) or LC Provider (with a copy to the Disbursing Agent) demanding deposit of cash collateral, Company will deposit into an account established and maintained with a financial institution acceptable to LC Provider (“Collateral Account”) an amount in cash equal to 103% of the undrawn amount and any amounts drawn but not reimbursed of the Credit on such date (in each case as calculated by the LC Provider) and shall execute such other agreements in form and substance satisfactory to LC Provider; provided that the obligation to deposit such cash collateral will become effective immediately, without any demand or notice of any kind, upon the occurrence of an Event of Default under Section 7(a)(v), 7(a)(vi) or 7(a)(xiv). Company does hereby grant to Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Reimbursement Obligations and performance by Company of all the terms, covenants and agreements to be performed under this Agreement, a security interest in all of the Company’s right, title and interest in, to and under, whether now or hereafter existing or arising, any such Collateral Account and all amounts on deposit therein, together with all proceeds thereof. For the avoidance of doubt and notwithstanding anything herein to the contrary, no Agent shall be responsible for, or have any duty to calculate or determine, the amount of any cash to be deposited into any Collateral Account and shall not be responsible for or have any duty to monitor compliance with this Section 7(b) by any party.

(c) Subject to the Intercreditor Agreement, after demand is made for cash collateralization of the Credit as provided for in Section 7(b), any amounts received on account of the Reimbursement Obligations shall be applied by the Disbursing Agent or the Collateral Agent, as the case may be, in the following order:

first, pro rata to payment of that portion of the Reimbursement Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to each Agent) payable to each Agent in its capacity as such;

second, to payment of that portion of the Reimbursement Obligations constituting fees, indemnities and other amounts (other than Reimbursement Obligations and interest) payable to the LC Provider (including fees, charges and disbursements of counsel to the LC Provider) arising under the Loan Documents;

third, to payment of that portion of the Reimbursement Obligations constituting unpaid draws on the Principal Amount and other unpaid Reimbursement Obligations arising under the Loan Documents not paid pursuant to any of the foregoing clauses; and

last, the balance, if any, after payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, to the Company or as otherwise required by Requirements of Law.

With respect to levels second and third of the foregoing proceeds waterfall, LC Provider agrees that, upon Disbursing Agent’s or Collateral Agent’s request, it shall promptly confirm to Disbursing Agent or Collateral Agent, as applicable, the Reimbursement Obligations owing to it, and Disbursing Agent or Collateral Agent, as applicable, shall be entitled to conclusively rely on such information in making any distributions to LC Provider and shall incur no liability for making distributions in reliance thereon. In furtherance of the foregoing, in no event shall Disbursing Agent or Collateral Agent be required to distribute any amounts under levels second or third above unless and until LC Provider has provided such information to it.

Calculation Agent may resign and be discharged from its duties hereunder at any time by giving at least thirty (30) days’ prior written notice of such resignation to Company, LC Provider and Disbursing Agent specifying when such resignation shall take effect.

Upon such notice of resignation or removal, LC Provider (in consultation with Company) shall appoint a successor calculation agent, and LC Provider shall provide written notice of such successor calculation agent to the outgoing Calculation Agent and Disbursing Agent. Such successor calculation agent shall become the calculation agent hereunder upon the resignation or removal date specified in such notice and Company and LC Provider shall cause such successor calculation agent to assume the obligations of Calculation Agent hereunder. If no successor calculation agent is appointed within thirty (30) days after such notice, Calculation Agent may, in its sole discretion, apply to a court of competent jurisdiction for the appointment of a successor calculation agent or for other appropriate relief. The reasonable and documented out-of-pocket costs and expenses (including its reasonable attorneys’ fees and expenses) incurred by Calculation Agent in connection with such court proceeding shall be paid by Company. Upon its resignation as set forth in this Section 8, Calculation Agent shall be discharged from any and all further obligations arising in connection with this Agreement.

Notwithstanding the foregoing, the parties have agreed (i) that the Calculation Agent may resign, and the Calculation Agent has so resigned, effective as of the Second Amendment Effective Date, and (ii) there will be no successor Calculation Agent.

(B) LC Provider agrees that in any instance in which this Agreement provides that the Disbursing Agent’s or Collateral Agent’s consent may not be unreasonably withheld, provide for the exercise of such Agent’s reasonable discretion, or provides to a similar effect, it shall not in its instructions (or, by refusing to provide instruction) to such Agent withhold its consent or exercise its discretion in an unreasonable manner. It is expressly agreed and acknowledged that neither the Collateral Agent nor the Disbursing Agent is guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Security Documents.

Neither the Collateral Agent nor the Disbursing Agent shall have liability for any failure, inability or unwillingness on the part of any party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement or any other Loan Document, and shall have no liability for any inaccuracy or error in the performance or observance on any Agent’s part of any of its duties hereunder or under any other Loan Document that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.

(C) For purposes of clarity, and without limiting any rights, protections, immunities or indemnities afforded to the Collateral Agent or Disbursing Agent hereunder, phrases such as “satisfactory to the [Disbursing] [Collateral] Agent,” “approved by the [Disbursing] [Collateral] Agent,” “acceptable to the [Disbursing] [Collateral] Agent,” “as determined by the [Disbursing] [Collateral] Agent,” “in the [Disbursing] [Collateral] Agent’s discretion,” “selected by the [Disbursing] [Collateral] Agent,” “elected by the [Disbursing] [Collateral] Agent,” “requested by the [Disbursing] [Collateral] Agent,” and phrases of similar import that authorize and permit such Agent to approve, disapprove, determine, act or decline to act in its discretion shall be subject to such Agent receiving written direction from the LC Provider to take such action or to exercise such rights. Nothing contained in this Agreement shall require the Disbursing Agent or Collateral Agent to exercise any discretionary acts.

(D) Notwithstanding anything herein or in any Loan Document to the contrary and without limiting any rights, protections, immunities or indemnities afforded to the Collateral Agent or Disbursing Agent hereunder, references in any Loan Document to the “Lenders” or the “Required Lenders”, shall be deemed to be references to the LC Provider, and references in any Loan Document to the “Credit Agreement” or any provision thereof shall be deemed to be references to this Agreement and the applicable/comparable provision or provisions hereof.

(B) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of LC Provider, or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a final judgment issued by a court of competent jurisdiction no longer subject to appeal). The Disbursing Agent and the Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to an officer of the Disbursing Agent and the Collateral Agent with direct responsibility for administration of this Agreement in writing by the Company or LC Provider.

(C) The Disbursing Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in any Loan Document.

(D) Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Disbursing Agent and the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Requirements of Law. Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

(E) Each party to this Agreement acknowledges and agrees that the Collateral Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to this Agreement or the other Loan Documents and the notification to the Collateral Agent, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of the Company.

The Collateral Agent shall not be liable for any action taken or not taken by any such service provider.

(F) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including without limitation for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of LC Provider to provide, written instruction to exercise such discretion or grant such consent). Neither the Disbursing Agent nor the Collateral Agent shall be liable for any error of judgment made by it in good faith (or by any officer or other employee of such Agent) unless it shall be determined pursuant to a non-appealable judgment of a court of competent jurisdiction that such Agent was grossly negligent in ascertaining the relevant facts. Nothing herein or in any other Loan Document or related documents shall obligate the Collateral Agent or Disbursing Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not indemnified to its satisfaction.

(G) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any indirect, special, punitive or consequential damages (including but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. Any permissive grant of power to Collateral Agent or Disbursing Agent hereunder or under any Loan Documents shall not be construed to be a duty to act. Before acting hereunder, the Disbursing Agent and the Collateral Agent shall be entitled to request, receive and rely upon such certificates and opinions as either of them may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action. In no event shall the Disbursing Agent or the Collateral Agent be responsible or liable for: (i) delays or failures in performance resulting from acts beyond its control, including but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters, the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, (ii) any delay, error omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. Neither the Disbursing Agent nor the Collateral Agent shall be liable for interest on any money received by it. For the avoidance of doubt, the Disbursing Agent’s and the Collateral Agent’s rights, protections, indemnities and immunities provided herein shall apply to such Agent for any actions taken or omitted to be taken under this Agreement or any other Loan Documents and any other related agreements in any of their respective capacities.

The Disbursing Agent and the Collateral Agent shall not be required to take any action under this Agreement, the other Loan Documents or any related document if taking such action (A) would subject the Disbursing Agent and the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax, or (B) would require the Disbursing Agent and the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.

(H) Neither the Disbursing Agent nor the Collateral Agent shall have any liability for any failure, inability or unwillingness on the part of LC Provider or Loan Party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall not have any liability for any inaccuracy or error in the performance or observance on such Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.

(I) The Disbursing Agent and the Collateral Agent may at any time request instructions from LC Provider with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents such Agent is permitted or required to take or to grant. Without limiting Section 8(b)(ii)(A)(2), if the Disbursing Agent or the Collateral Agent shall request any such instructions, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from LC Provider as shall be expressly provided for herein or in the other Loan Documents, and such Agent shall not incur liability to any Person by reason of so refraining.

(J) Notwithstanding anything to the contrary, no Agent shall be deemed to have any notice or knowledge of the terms of the Credit and no Agent shall have any obligations under the Credit or any obligation to determine its, the LC Provider’s, the Issuer’s, the Beneficiary’s or any other person’s compliance with the terms of the Credit, and no Agent shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of the Credit by any party or person.

(B) With effect from the Resignation Effective Date (i) the retiring Disbursing Agent or Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of LC Provider under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (ii) except for any accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent, all payments, communications and determinations provided to be made by, to or through the Disbursing Agent shall instead be made by or to LC Provider directly, until such time, if any, as LC Provider appoints a successor Disbursing Agent or Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Disbursing Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Disbursing Agent or Collateral Agent (other than any rights to accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent), and the retiring Disbursing Agent or Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Disbursing Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring Disbursing Agent’s or Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 8 and Section 4 shall continue in effect for the benefit of such retiring Disbursing Agent or Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Disbursing Agent or Collateral Agent was acting as Disbursing Agent or Collateral Agent, as applicable.

(C) Any resignation by U.S. Bank National Association, as Disbursing Agent, shall also constitute its resignation as Collateral Agent.

to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by LC Provider to make such payments to the Disbursing Agent and, in the event that the Disbursing Agent shall consent to the making of such payments directly to LC Provider, to pay to the Disbursing Agent and the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Disbursing Agent and the Collateral Agent and their respective agents and counsel, and any other amounts due to the Disbursing Agent and the Collateral Agent under this Agreement and the other Loan Documents.

Any such release of guarantee obligations or security interests shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.

Any such release of Liens shall not in any manner discharge, affect, or impair the Reimbursement Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Notwithstanding anything contained herein or in the Loan Documents to the contrary, in no event shall the Disbursing Agent or the Collateral Agent be obligated to execute or deliver any document evidencing any release, subordination or re-conveyance without receipt of a certificate executed by a Responsible Officer of the Loan Party or Loan Parties disposing of such property certifying that such release, subordination or re-conveyance, as applicable, complies with this Agreement and the other Loan Documents, and that all conditions precedent to such release, subordination or re-conveyance have been complied with.

Upon request by the Disbursing Agent or the Collateral Agent at any time, LC Provider will confirm in writing the Disbursing Agent’s or the Collateral Agent’s authority to release, subordinate or re-convey its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 8(b)(ix).

(B) The Disbursing Agent and the Collateral Agent hereby disclaim any representation or warranty to LC Provider concerning, and shall not be responsible for or have a duty to ascertain or inquire into the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Disbursing Agent or the Collateral Agent be responsible or liable to LC Provider or any other Secured Party for any failure to monitor or maintain any portion of the Collateral. Neither Agent makes any representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties to the Collateral, or as to the security afforded by the Guarantee and Collateral Agreement or any other Loan Document. Neither the Collateral Agent nor the Disbursing Agent shall be responsible for insuring the Collateral or for the payment of Taxes, charges, assessments or liens upon the Collateral. Neither the Collateral Agent nor the Disbursing Agent shall be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when the Collateral Agent has possession of the Collateral. Neither the Collateral Agent or the Disbursing Agent shall have any duty to LC Provider as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies actually received by it. Neither the Collateral Agent nor the Disbursing Agent shall be under an obligation independently to request or examine insurance coverage with respect to any Collateral. Neither the Collateral Agent nor the Disbursing Agent shall be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of any Loan Party or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral, and neither such Agent shall be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, neither such Agent shall be responsible to LC Provider for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments. LC Provider shall be solely responsible for, and shall arrange for, the filing and continuation of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral. The Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements.

(C) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any Real Property related Collateral pursuant to this Agreement or any other Loan Document, the Collateral Agent shall not be obligated to take title to or possession of Real Property in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Agent to incur, or be exposed to, any Environmental Liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as the Collateral Agent subject to the terms and conditions of Section 8(b)(v) or to arrange for the transfer of the title or control of the asset to a court appointed receiver or an acquisition vehicle formed by the LC Provider. The Collateral Agent will not be liable to any Person for any Environmental Liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened Release of any Materials of Environmental Concern into the environment.

(D) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any Mortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Responsible Officer of the Company. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the Loan Parties, LC Provider or any other Person for its acting in reliance thereon. The Company shall indemnify the Collateral Agent for any losses the Collateral Agent may incur as a result of its reliance on such certificate of the Company, including without limitation, any losses relating to any incorrect or misleading information provided in any tax affidavit based upon information contained in the certificate of the Company.

(E) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Company, the Disbursing Agent, the Collateral Agent and LC Provider hereby agree that (i) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or LC Provider, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other Disposition and the Collateral Agent, as agent for and representative of the Secured Parties shall be entitled (either directly or through one or more acquisition vehicles), upon instructions from LC Provider, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or Disposition, to use and apply any or all of the Reimbursement Obligations (other than Reimbursement Obligations owing to any Agent) as a credit on account of the purchase price for any collateral payable by the Collateral Agent (or such acquisition vehicle) at such sale or other Disposition.

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents (whether arising in contract, tort or otherwise) to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York sitting in the County of New York, the courts of the United States for the Southern District of New York sitting in the County of New York, and appellate courts from any thereof; (b) agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York state court or, to the fullest extent permitted by applicable Requirements of Law, in such federal court; (c) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and that nothing in this Agreement or any other Loan Document shall affect any right that Disbursing Agent, Calculation Agent or LC Provider may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against it or any of its assets in the courts of any jurisdiction; (d) waives, to the fullest extent permitted by applicable Requirements of Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in clause (a) above (and irrevocably waives to the fullest extent permitted by applicable Requirements of Law the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court); (e) consents to service of process in the manner provided in Section 13 (and agrees that nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable Requirements of Law); and (f) agrees that service of process as provided in Section 13 is sufficient to confer personal jurisdiction over the applicable party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect.

(b) Electronic Communications.

(i) Notices and other communications to the LC Provider hereunder may be delivered or furnished by electronic communication (including email and internet or intranet websites) pursuant to procedures approved by the Agents and the LC Provider. The Agents, the LC Provider or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications

(ii) Unless the Disbursing Agent, the Collateral Agent, the Calculation Agent or the LC Provider otherwise prescribe, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement) and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, in the case of each of the foregoing clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

Disbursing Agent

Effect of Amendment and Restatement

[End of text; signature pages to follow]

CALCULATION AGENT:

: Maithew

legal@alterdomus.com)

Annex B-64

Exhibit B

Amendment No.

[attached]

Annex B-65

Execution Version

AmericasActive:18517422.5

AMENDMENT NO. 5 TO

INTERCREDITOR AGREEMENT

5 to Intercreditor Agreement THIS AMENDMENT NO. 5 TO INTERCREDITOR AGREEMENT (this “Amendment”), dated as of May 22, 2023 is made between Siena Lending Group LLC, in its capacity as the lender under the Revolving Credit Agreement (in such capacity and together with any successor thereto, the “Revolving Lender”), and U.S. Bank National Association, in its capacity as the collateral agent for the Term Loan Lenders under the Term Loan Agreement and the Reimbursement Agreement (in such capacity and together with any successor collateral agent, the “Term Loan Agent”).

R E C I T A L S:

WHEREAS, JAC Operations, Inc., a Delaware corporation (“JAC”), Freight Car Services, Inc., a Delaware corporation (“Freight”), JAIX Leasing Company, a Delaware corporation (“JAIX”), FreightCar Short Line, Inc., a Delaware corporation (“Short”), Johnstown America, LLC, a Delaware limited liability company (“Johnstown”), FreightCar Alabama, LLC, a Delaware limited liability company (“Alabama”), FreightCar Rail Services, LLC, a Delaware limited liability company (“Rail”), FreightCar Rail Management Services, LLC, a Delaware limited liability company (“Management”), FCA-Fasemex, LLC, a Delaware limited liability company (“FCA”), FreightCar North America, LLC, a Delaware limited liability company (“FCNA” and together with JAC, Freight, JAIX, Short, Johnstown, Alabama, Rail, Management, FCA and any other Person who from time to time becomes a Borrower thereunder, collectively, the “Borrowers” and each individually, a “Borrower”), FreightCar America Inc., a Delaware corporation (“Parent”), the other Guarantors (as defined therein) party thereto from time to time, and the Revolving Lender are parties to that certain Amended and Restated Loan and Security Agreement, dated as July 30, 2021 (as it may be amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement, including any agreement governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, the indebtedness and other obligations thereunder, the “Revolving Credit Agreement”), pursuant to which the Revolving Lender has agreed to make loans and extend other financial accommodations to the Borrowers;

WHEREAS, FCNA, Parent, the Term Loan Agent, U.S. Bank National Association, as disbursing agent (the “Term Loan Disbursing Agent”), CO FINANCE LVS VI LLC, as letter of credit provider (“LC Provider”) and the Term Loan Lenders are parties to that certain Credit Agreement, dated as of October 13, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement, including any agreement governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, the indebtedness and other obligations thereunder, the “Term Loan Agreement”), pursuant to which the Term Loan Lenders have agreed to make loans and extend other financial accommodations to FCNA, and the LC Provider has agreed to make available to Parent a standby letter of credit (the “Standby Letter of Credit”);

WHEREAS, LC Provider, Disbursing Agent, Collateral Agent, Alter Domus (US) LLC, as calculation agent (the “Calculation Agent”), and Parent are parties to that certain Amended and Restated Reimbursement Agreement, dated as of December 30, 2021 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms the Intercreditor Agreement, the “Reimbursement Agreement”), pursuant to which Parent has agreed to pay certain fees in connection with, and reimburse LC Provider for any draws under, the Standby Letter of Credit;

WHEREAS, the Revolving Lender and the Term Loan Agent have entered into that certain Intercreditor Agreement, dated as of November 24, 2020 (as amended pursuant to that certain Amendment No. 1 to Intercreditor Agreement dated as of May 14, 2021, that certain Amendment No. 2 to Intercreditor Agreement dated as of July 30, 2021, that certain Amendment No. 3 to Intercreditor Agreement dated as of December 30, 2021, Amendment No. 4 to Intercreditor Agreement dated as of February 17, 2022, this Amendment and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”);

WHEREAS, on March 23, 2023, Parent and certain funds affiliated with LC Provider entered into a securities purchase agreement pursuant to which purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Term Loan Obligations under the Term Loan Agreement other than obligations in connection with the Standby Letter of Credit (the “Conversion Transaction”);

WHEREAS, in connection with the Conversion Transaction, the Term Loan Agreement will be terminated, and the Reimbursement Agreement will be amended to reflect the obligations of the Company in respect of the Standby Letter of Credit;

WHEREAS, FCNA, Parent, the other Guarantors (as defined therein), LC Provider, the Term Loan Disbursing Agent and the Term Loan Agent have entered into that certain Amendment No. 1 to Guarantee and Collateral Agreement, dated as of the date hereof (the “Amendment to Guarantee and Collateral Agreement”);

WHEREAS, Parent, the Subsidiary Guarantors (as defined therein), LC Provider, the Term Loan Disbursing Agent and the Term Loan Agent, have entered into that certain Amendment No. 2 to Amended and Restated Reimbursement Agreement, dated as of the date hereof (the “Amendment to Reimbursement Agreement”); and

WHEREAS, the Revolving Lender and Term Loan Agent desire to amend the Intercreditor Agreement as more fully described herein.

.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Capitalized Terms. All capitalized undefined terms used in this Amendment (including without limitation, in the Recitals hereto) shall have the meanings assigned thereto in the Intercreditor Agreement, as hereby amended.

SECTION 2. Amendments to Intercreditor Agreement.

On and as of the Fifth Amendment Effective Date, the Intercreditor Agreement is amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: ) and (ii) inserting the underlined text (indicated textually in the same manner as the following example: inserted text), in each case set forth on Exhibit A hereto.

SECTION 3. Effectiveness. This Amendment shall become effective on the date upon which each of the following conditions is satisfied (such date, the “Fifth Amendment Effective Date”):

3.1 This Amendment. The Revolving Lender and Term Loan Agent shall have received a copy of this Amendment duly executed and delivered by the Revolving Lender, Term Loan Agent, Parent and each Subsidiary Guarantor, in form and content acceptable to the Revolving Lender and Term Loan Agent.

3.2 Amendment to Guarantee and Collateral Agreement. The Revolving Lender and Term Loan Agent shall have received a duly executed and delivered Amendment to Guarantee and Collateral Agreement, in form and content acceptable to the Revolving Lender and Term Loan Agent.

3.3 Amendment to Reimbursement Agreement. The Revolving Lender and Term Loan Agent shall have received a duly executed and delivered Amendment to Reimbursement Agreement, in form and content acceptable to the Revolving Lender and Term Loan Agent.

SECTION 4. Limited Effect. Except as expressly provided herein, the Intercreditor Agreement shall remain unmodified and in full force and effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Intercreditor Agreement (except as expressly provided herein), (b) to prejudice any right or rights the Revolving Lender or Term Loan Agent may now have or may have in the future under or in connection with the Intercreditor Agreement, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with Parent or any other Person with respect to any waiver, amendment, modification or any other change to the Intercreditor Agreement or any rights or remedies arising in favor of Revolving Lender or Term Loan Agent thereunder.

SECTION 5. Representations and Warranties. Each of the Revolving Lender and the Term Loan Agent hereby represents and warrants that it is duly authorized to execute and deliver this Amendment.

SECTION 6. Costs and Expenses. Parent agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by Revolving Lender and Term Loan Agent in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel for Revolving Lender and Term Loan Agent with respect thereto and with respect to advising the Revolving Lender and Term Loan Agent as to its rights and responsibilities hereunder and thereunder.

SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

SECTION 8. Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.

SECTION 9. Entire Agreement; Section Heading; Severability. This Amendment is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The Section headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 10. Successors and Assigns. This Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.

SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

SECTION 12. Consent. Notwithstanding anything to the contrary set forth in the Intercreditor Agreement, and for the avoidance of doubt, the Revolving Lender hereby consents to the delivery and execution of the Amendment to Reimbursement Agreement and the Amendment to Guarantee and Collateral Agreement. The foregoing consent is a limited consent and shall not be deemed to constitute consent with respect to any other current or future departure from the requirements of any provision of the Term Loan Documents or the Intercreditor Agreement.

Except to the extent expressly set forth herein, the foregoing consent shall not constitute a modification or alteration of the terms, conditions or covenants of the Intercreditor Agreement.

SECTION 13. Term Loan Agent’s Rights. Term Loan Agent has executed this Amendment as directed under and in accordance with the Term Loan Documents, and will perform this Amendment solely in its capacity as Term Loan Agent and not individually. The Term Loan Agent shall be entitled to the same rights, protections, immunities and indemnities hereunder as are set forth in the Term Loan Documents, as if the provisions setting forth those rights, protections, immunities and indemnities were fully set forth herein.

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first written above.

REVOLVING LENDER:

SIENA LENDING GROUP LLC, as Revolving Lender

By: ____________________________

Name: Keith Holler

Title: Authorized Signatory

By: ____________________________

Name: Steve Sanicola

Title: Authorized Signatory

TERM LOAN AGENT:

U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Term Loan Agent and not in its individual capacity Each of the undersigned Loan Parties hereby (i) acknowledges that it has received a copy of the foregoing Amendment No.

By: ___________________________

Name: Crystal Crudup-Burt

Title: Vice President

ACKNOWLEDGEMENT

5 to Intercreditor Agreement (“Amendment No. 5”), (ii) agrees to the terms of the Intercreditor Agreement (as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and Amendment No. 5) applicable to any of the Loan Parties, and (iii) has caused this Acknowledgement to be executed by a duly authorized officer or representative of such Loan Party as of the date of Amendment No. 5.

LOAN PARTIES:

FREIGHTCAR AMERICA, INC.

By: ________________________________

Name:

Title:

FREIGHTCAR NORTH AMERICA, LLC

By: _______________________________

Name:

Title:

JAC OPERATIONS, INC.

By: _______________________________

Name:

Title:

FREIGHT CAR SERVICES, INC.

By: ______________________________

Name:

Title:

JAIX LEASING COMPANY

By: _______________________________

Name:

Title:

FREIGHTCAR SHORT LINE, INC.

By: _______________________________

Name:

Title:

JOHNSTOWN AMERICA, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR ALABAMA, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR RAIL SERVICES, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

By: _______________________________

Name:

Title:

FCA-FASEMEX, LLC

By: _______________________________

Name:

Title:

FCA-FASEMEX, S. DE R.L., DE C.V.

By: _______________________________

Name:

Title:

FCA-FASEMEX ENTERPRISE, S. DE R.L., DE C.V.

By: ______________________________

Name:

Title:

Exhibit A

Exhibit A

INTERCREDITOR AGREEMENT

This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of November 24, 2020 by and among SIENA LENDING GROUP LLC, in its capacity as the lender under the Revolving Credit Agreement (as defined herein) (in such capacity and together with any successor thereto, the “Revolving Lender”), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as the collateral agent for the Term Loan Lenders and LC Provider (as defined herein) under the Term Loan Agreement (as defined herein), and, after the Fifth Amendment Effective Date, the Reimbursement Agreement (as defined herein) (in such capacity and together with any successor collateral agent, the “Term Loan Agent” and, together with the Revolving Lender, collectively the “Secured Parties”), and acknowledged by the Borrowers and the other Loan Parties.

Recitals

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which are expressly recognized by all of the parties hereto, the parties agree as follows.

Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in Appendix I hereto. In the absence of such definitions, any other capitalized terms used and not otherwise defined herein will have the meanings (a) ascribed thereto by the Uniform Commercial Code to the extent the same are defined therein, (b) if such term refers to the Revolving Lender, the Revolving Claimholders, or the Revolving Loan Documents, as ascribed thereto in the Revolving Loan Documents as in effect on the date hereof, and (c) if such term refers to the Term Loan Agent, the Term Loan Claimholders, or the Term Loan Documents, as ascribed thereto in the Term Loan Documents as in effect on the Fifth Amendment Effective Date. The term “including” wherever used in this Agreement shall be deemed to mean “including, without limitation.”

any Liens thereon securing any Term Loan Excess Obligations shall be third in priority, subordinate to the Liens thereon securing the Secured Obligations in clauses (b)(i) and (b)(ii) above but prior to any Liens thereon securing any other Secured Obligations; and

The priorities of the Liens provided in this Section 2.1 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement, refunding or refinancing of the Revolving Loan Documents or the Revolving Obligations or the Term Loan Documents or the Term Loan Obligations, nor by any action or inaction which the Revolving Lender or any other Revolving Claimholder or the Term Loan Agent or any other Term Loan Claimholder may take or fail to take in respect of any of the Collateral. The Revolving Lender, for itself and on behalf of each other Revolving Claimholder, agrees that no Revolving Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Liens on any of the Term Loan Priority Collateral or the other Collateral (to the extent permitted under Section 2.2(b)) granted to the Term Loan Agent to secure the Term Loan Obligations. The Term Loan Agent, for itself and on behalf of each other Term Loan Lender, acknowledges and agrees that the Revolving Obligations represent indebtedness that is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed in accordance with terms of the Revolving Loan Documents. The Term Loan Agent, for itself and on behalf of each other Term Loan Claimholder, agrees that no Term Loan Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Liens on any of the Revolving Credit Priority Collateral or the other Collateral (to the extent permitted under Section 2.2(a)) granted to the Revolving Lender to secure the Revolving Obligations or any assignment of any other rights in favor of the Revolving Lender pursuant to the Assignment of Claims Act. Notwithstanding any failure by either the Revolving Lender, on the one hand, or the Term Loan Agent, on the other hand, to perfect its Lien on any of the Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any of the Liens on the Collateral granted to the Revolving Lender or the Term Loan Agent, the priority and rights as between the Liens of the Revolving Lender, on the one hand, and the Liens of the Term Loan Agent, on the other hand, shall be as set forth herein.

In the event that any Term Loan Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Term Loan Obligations are subject to the terms of this Agreement. In the event that any Revolving Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Revolving Obligations are subject to the terms of this Agreement.

If any Revolving Claimholder shall nonetheless acquire any Lien on any assets that constitute Term Loan Priority Collateral of any Loan Party (or any of its subsidiaries) to secure the Revolving Obligations, which assets are not also subject to a Lien in favor of the Term Loan Agent to secure the Term Loan Obligations, then such Revolving Claimholder shall, without the need for any further consent of any other Person and notwithstanding anything to the contrary in any Revolving Loan Document, also hold and be deemed to have held such Lien as a gratuitous bailee for the benefit of the Term Loan Agent as security for the Term Loan Obligations subject to the priorities set forth herein, with any amounts received in respect thereof subject to distribution and turnover hereunder to the extent otherwise required hereunder (subject to the priorities set forth herein).

Until the Revolving Obligations have been Paid In Full, the Term Loan Agent shall not (i) take, or support any other Person in taking, any Enforcement Action with respect to the Revolving Credit Priority Collateral except as provided in Sections 2.3(f) and (g), (ii) object to any forbearance from taking any Enforcement Action by the Revolving Lender and the Revolving Claimholders, (iii) exercise any rights under the Assignment of Claims Act with respect to any Collateral, or (iv) other than to enforce any rights of the Term Loan Agent expressly set forth herein, contest, protest or object, or support any other Person in contesting, protesting or objecting to, any Enforcement Action (or forbearance thereof) brought by or otherwise taken by the Revolving Lender with respect to the Revolving Obligations or the Revolving Credit Priority Collateral.

provided, in each case, that all Net Cash Proceeds therefrom (net of any amounts allocated or carved out for professional fees or expenses, which amounts shall not be deemed to be received by the Revolving Lender or applied to the Revolving Obligations) are applied in accordance with Section 2.4. Without limiting the foregoing, if the Revolving Lender shall determine, in connection with any such sale or other disposition of any Revolving Credit Priority Collateral that the release of its Lien and the Lien of the Term Loan Agent on any such Revolving Credit Priority Collateral in connection with any such sale or other disposition is necessary or advisable, the Term Loan Agent shall execute and deliver such release documents and instruments and shall take such further actions as the Revolving Lender shall reasonably request to effect such release. Solely in the event and to the extent that the Term Loan Agent fails to do so in accordance with the terms of this Agreement within five (5) Business Days after the Revolving Lender’s request therefor, the Term Loan Agent hereby appoints the Revolving Lender and any officer or duly authorized Person of the Revolving Lender, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Term Loan Agent, and in the name of the Term Loan Agent or in the Revolving Lender’s own name, from time to time, as determined in the Revolving Lender’s reasonable discretion, for the purposes of carrying out the terms of this Section 2.3(b), to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this Section 2.3(b), including any financing or termination statements, releases, endorsements, assignments or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable). The Term Loan Agent hereby ratifies all that said attorneys shall do or cause to be done under this Section 2.3(b).

Upon the Payment In Full of the Revolving Priority Obligations, any remaining Net Cash Proceeds of the Revolving Credit Priority Collateral shall be for the benefit of and be promptly paid over to the Term Loan Agent for application in accordance with the terms of the Term Loan Documents and, after Payment In Full of the Term Loan Priority Obligations, any remaining Net Cash Proceeds of the Revolving Credit Priority Collateral shall revert to the Revolving Lender to the extent of any Revolving Excess Obligations, then to the Term Loan Agent to the extent of any Term Loan Excess Obligations and then to the applicable Loan Party or as directed by an order issued by a court of competent jurisdiction.

provided, in each case, that all Net Cash Proceeds therefrom (net of any amounts allocated or carved out for professional fees or expenses, which amounts shall not be deemed to be received by the Term Loan Agent or applied to the Term Loan Obligations) are applied in accordance with Section 2.4; provided further, that the provisions set forth in Section 2.3(h) through (j) and Section 2.3(n) and (o) shall apply as set forth therein. Without limiting the foregoing, if the Term Loan Agent shall determine, in connection with any such sale or other disposition of any Term Loan Priority Collateral that the release of its Lien and the Lien of the Revolving Lender on any such Term Loan Priority Collateral in connection with any such sale or other disposition is necessary or advisable, the Revolving Lender shall execute and deliver such release documents and instruments and shall take such further actions as the Term Loan Agent shall reasonably request to effect such release.

Solely in the event and to the extent that the Revolving Lender fails to do so in accordance with the terms of this Agreement within five (5) Business Days after the Term Loan Agent’s request therefor, the Revolving Lender hereby appoints the Term Loan Agent and any officer or duly authorized Person of the Term Loan Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Revolving Lender, and in the name of the Revolving Lender or in the Term Loan Agent’s own name, from time to time, as determined in the Term Loan Agent’s reasonable discretion, for the purposes of carrying out the terms of this Section 2.3(d), to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this Section 2.3(d), including any financing or termination statements, releases, endorsements, assignments or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable). The Revolving Lender hereby ratifies all that said attorneys shall do or cause to be done under this Section 2.3(d). Upon the Payment In Full of the Term Loan Priority Obligations, any remaining Net Cash Proceeds of the Term Loan Priority Collateral shall be for the benefit of and be promptly paid over to the Revolving Lender for application in accordance with the terms of the Revolving Loan Documents and, after Payment In Full of the Revolving Priority Obligations, any remaining Net Cash Proceeds of the Term Loan Priority Collateral shall revert to the Term Loan Agent to the extent of any Term Loan Excess Obligations, then to the Revolving Lender to the extent of any Revolving Excess Obligations and then to the applicable Loan Party or as directed by an order issued by a court of competent jurisdiction.

Except as specifically provided in Section 2.3(g), notwithstanding any rights or remedies available to the Term Loan Agent or any other Term Loan Claimholder under any of the Term Loan Documents, the Revolving Lender or any other Revolving Claimholder under any of the Revolving Loan Documents, or any Secured Party or other Claimholder under applicable law or otherwise, (x) prior to the Payment In Full of the Revolving Obligations, neither the Term Loan Agent nor any of the other Term Loan Claimholders shall, directly or indirectly, take any Enforcement Action, or otherwise seek to foreclose, enforce or realize upon (judicially or non- judicially) any Liens, on any Revolving Credit Priority Collateral or assert any interests therein (including by setoff or notification of account debtors owing Accounts included in the Revolving Credit Priority Collateral) and (y) prior to the Payment In Full of the Term Loan Obligations, neither the Revolving Lender nor any of the other Revolving Claimholders shall, directly or indirectly, take any Enforcement Action, or otherwise seek to foreclose, enforce or realize upon (judicially or non-judicially) any Liens, on any Term Loan Priority Collateral or assert any interests therein (including by setoff or notification of account debtors owing Accounts included in the Term Loan Priority Collateral); provided that (A) in the case of the Term Loan Agent and the other Term Loan Claimholders, upon the occurrence of an “Event of Default” as defined in the Term Loan Documents and for so long as such Event of Default is continuing, subject at all times to the other provisions of this Section 2, commencing 150 days after the receipt by the Revolving Lender of the written declaration of the Term Loan Agent of such Event of Default and written demand by the Term Loan Disbursing Agent to Parent for the accelerated payment of all Term Loan Obligations then outstanding (provided that such 150-day period shall be tolled for any period during which both the Revolving Lender and the Term Loan Agent are stayed by an order issued in any Insolvency Proceeding or by any other court of competent jurisdiction from exercising their respective default and enforcement rights and remedies against all or a material portion of the Collateral), the Term Loan Agent and the Term Loan Claimholders may take action to enforce their Liens on the Revolving Credit Priority Collateral so long as the Revolving Lender or the Revolving Claimholders are not then diligently pursuing in good faith the exercise of their Enforcement Actions against, or diligently attempting in good faith to vacate any stay of enforcement of their senior Liens on, all or a material portion of the Revolving Credit Priority Collateral (including commencement of any action to foreclose their senior Liens on all or any material portion of the Revolving Credit Priority Collateral, any action to take possession of all or any material portion of the Revolving Credit Priority Collateral, the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Revolving Credit Priority Collateral or the commencement of any marketing or sale process for the sale of any Revolving Credit Priority Collateral (including the engagement of investment bankers or brokers for such purpose)) and (B) in the case of the Revolving Lender and the Revolving Claimholders, upon the occurrence of an “Event of Default” as defined in the Revolving Loan Documents and for so long as such Event of Default is continuing, subject at all times to the other provisions of this Section 2, commencing 150 days after the receipt by the Term Loan Agent of the written declaration of the Revolving Lender of such Event of Default and written demand by the Revolving Lender to the Borrowers for the accelerated payment of all Revolving Obligations then outstanding (provided that such 150-day period shall be tolled for any period during which both the Revolving Lender and the Term Loan Agent are stayed by an order issued in any Insolvency Proceeding or by any other court of competent jurisdiction from exercising their respective default and enforcement rights and remedies against all or a material portion of the Collateral), the Revolving Lender and the Revolving Claimholders may take action to enforce their Liens on the Term Loan Priority Collateral so long as the Term Loan Agent or the Term Loan Claimholders are not then diligently pursuing in good faith the exercise of their Enforcement Actions against, or diligently attempting in good faith to vacate any stay of enforcement of their senior Liens on, all or a material portion of the Term Loan Priority Collateral (including commencement of any action to foreclose their senior Liens on all or any material portion of the Term Loan Priority Collateral, any action to take possession of all or any material portion of the Term Loan Priority Collateral, the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Term Loan Priority Collateral or the commencement of any marketing or sale process for the sale of any Loan Party or any other Term Loan Priority Collateral (including the engagement of investment bankers or brokers for such purpose)). In the event that the Term Loan Agent or any Term Loan Claimholder has commenced any action to enforce its subordinated Lien on any of the Revolving Credit Priority Collateral to the extent permitted under this Section 2.3(f) and is diligently pursuing such action, the Revolving Lender and the Revolving Claimholders shall not take any action of a similar nature with respect to such Revolving Credit Priority Collateral. In the event that the Revolving Lender or any Revolving Claimholder has commenced any action to enforce its subordinated Lien on any of the Term Loan Priority Collateral to the extent permitted under this Section 2.3(f) and is diligently pursuing such action, the Term Loan Agent and the Term Loan Claimholders shall not take any action of a similar nature with respect to such Term Loan Priority Collateral.

In the event that any Enforcement Action is taken pursuant to this Section 2.3(f) by either of the Priority Secured Parties or any Priority Claimholder, the Lien priorities established in Section 2.1 shall remain in effect, and the rights to Net Cash Proceeds from any such Enforcement Action shall be the same as provided in Section 2.4.

In connection with any such sale of any Real Property, the Term Loan Agent shall use commercially reasonable efforts (provided that “commercially reasonable efforts” shall not be deemed to require that the Term Loan Agent accept a purchase price that is reduced by more than a de minimis amount) to cause such Third Party Purchaser not to require as a condition of the sale that possession of such Real Property be given by the Term Loan Agent to such Third Party Purchaser prior to the end of the Disposition Period provided for above; provided that if such period is not acceptable to such Third Party Purchaser, then such sale shall not be consummated until the date that is at least 60 days after the date that the Disposition Period first commenced (it being understood and agreed that the purpose of the foregoing is to provide that, in no event shall the Disposition Period and the Revolving Lender’s access to the Term Loan Priority Collateral be less than 60 days). The Revolving Lender shall use reasonable diligence in seeking to obtain and in obtaining access to and in conducting all of its activities with respect to any Term Loan Priority Collateral during the Disposition Period, and shall use reasonable efforts to vacate the Term Loan Priority Collateral as soon as reasonably practicable. The Revolving Lender and the Term Loan Agent shall cooperate and use reasonable efforts to ensure that their activities during the Disposition Period in respect of any Term Loan Priority Collateral do not interfere materially with the activities of the other. The time periods set forth herein shall be tolled during the pendency of any Insolvency Proceeding of any Loan Party or other proceedings pursuant to which the Revolving Lender is effectively stayed from enforcing its rights against the Revolving Credit Priority Collateral. In no event shall the Term Loan Agent or any of the Term Loan Lenders take any action to interfere, limit or restrict the rights of the Revolving Lender or the exercise of such rights by the Revolving Lender to have access to or to use any of such Revolving Credit Priority Collateral pursuant to Section 2.3(i) prior to the expiration of such periods.

(i) any loss, liability, claim, damage (other than diminution in value thereof as a result of the removal of the Revolving Credit Priority Collateral) or expense (including the reasonable and documented fees and expenses of legal counsel) arising out of any claim asserted by any third party as a direct result of any acts or omissions of the Revolving Lender or any of its agents or representatives in connection with and during the period of its or their occupation or use of any Real Property or Equipment as set forth in Section 2.3(i), (ii) any physical damage to the Term Loan Priority Collateral directly caused by the Revolving Lender or its agents or representatives (other than diminution of value thereof as a result of the removal of the Revolving Credit Priority Collateral) while the Revolving Lender or its agents or representatives are using or occupying such Real Property or Equipment and (iii) any loss, liability, claim, damage or expense (including the reasonable and documented fees and expenses of legal counsel) resulting from any release of hazardous materials on any Real Property of any Loan Party directly caused by any act or omission of the Revolving Lender or its agents or representatives during such occupancy or use of such Real Property by the Revolving Lender or any of its agents or representatives and not as a result of any condition or factor that was in existence prior to such occupancy or use, or the continuation thereof. In no event shall the Revolving Lender have any liability to the Term Loan Agent, the Term Loan Lenders or any Third Party Purchaser pursuant to this Section 2.3(1) or otherwise as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Loan Priority Collateral or the Real Property existing prior to (and/or continuing after) the date of the exercise by the Revolving Lender of its rights under Section 2.3(i), and the Revolving Lender shall have no duty or liability to maintain the Term Loan Priority Collateral or the Real Property in a condition or manner better than that in which it was maintained prior to the access or use thereof by the Revolving Lender.

For purposes of this Section 2.4(a), (x) Net Cash Proceeds shall be calculated net of any amounts allocated or carved out for reasonable and customary professional fees or expenses (including the fees and expenses of the Term Loan Agent and its counsel in connection with any Enforcement Action) (excluding any such amounts paid to an Affiliate of the Loan Parties), which amounts shall not be deemed to be received by any Secured Party or applied to any obligations, (y) notwithstanding anything to the contrary contained herein, it is agreed that all Net Cash Proceeds resulting from an Enforcement Action by either Secured Party (for purposes of clarity including a sale or other disposition following the occurrence and during the continuance of an “Event of Default” as defined in the Revolving Credit Agreement or Reimbursement Agreement) of any of the applicable Priority Collateral with respect thereto and the required release of Liens thereon by the non-Priority Secured Party under Section 2.3(b)(i) or (iii) or Section 2.3(d)(i) or (iii) of this Agreement, as applicable) shall be applied to (I) the Revolving Obligations by the Revolving Lender to permanently reduce the Revolving Obligations and, to the extent applied to the outstanding principal amount of the Revolving Obligations, the revolving commitments of the Revolving Lender under the Revolving Credit Agreement (it being understood that, if the revolving commitments have not then been terminated, that such payment shall be accompanied by an equivalent permanent reserve against Excess Availability) and (II) the Term Loan Obligations by the Term Loan Agent, and (z) all applications of Net Cash Proceeds to any specified obligations shall be made in accordance with the Loan Documents governing such obligations.

For purposes of this Section 2.4(d), payments made by any Loan Party to the Revolving Lender or the Revolving Claimholders in respect of the Revolving Obligations with Proceeds of loans to FCNA by the Term Loan Lenders shall not be construed to constitute Proceeds of Term Loan Priority Collateral.

The Term Loan Agent acknowledges and agrees that to the extent that it (or its agent) has physical possession or control of any of the Collateral (or any endorsement in respect thereof), it (or its agent) shall hold or control such Collateral (and endorsement) on behalf of the Revolving Lender so that for purposes of perfecting any security interest or Lien in any Collateral it acts and holds or controls such Collateral (and endorsement) on behalf of the Term Claimholders and the Revolving Claimholders. Nothing in this Section 2.6 shall affect the relative priorities in and to such Revolving Credit Priority Collateral or such Term Loan Priority Collateral, all of which shall be governed by the other provisions of this Agreement.

(F) such cash collateral order or related documentation or DIP Financing order or related documentation does not require the liquidation of the Collateral prior to a default under such order or related documentation, and (G) any such DIP Financing or usage of cash collateral is otherwise subject to the terms of this Agreement.

In the event that the Revolving Lender or any other Revolving Claimholders are granted adequate protection of any interest in any Collateral in the form of a super-priority administrative expense claim, such super-priority administrative expense claim shall be deemed to be subject to the terms and priorities hereunder, meaning for example that the super-priority administrative expense claims for adequate protection of the interests of the Revolving Claimholders in the Term Loan Priority Collateral shall be junior and not senior to the Term Loan Claimholders’ claims in respect of the Term Loan Priority Collateral.

(ii) challenging the enforceability, validity, extent or priority, as and to the extent provided for in this Agreement, of any Lien on any assets or properties securing any of the Revolving Obligations.

which are used to pay the reimbursement, principal or face amount of such obligations and (ii) the Liens and other interests of the Revolving Lender and the other Revolving Claimholders in such Term Loan Priority Collateral attach to the Proceeds thereof, which shall then be distributed in accordance with, and subject to, the terms and priorities of this Agreement. For purposes of this Section 3.3(f), each non-Priority Secured Party, for itself and each other non-Priority Claimholder, shall be deemed to have consented, for purposes of Section 363(f) of the Bankruptcy Code and other applicable law, to any sale made under the terms and conditions set forth above, free and clear of all Liens and other interests of such non-Priority Secured Party and non-Priority Claimholders (other than the Lien on the Proceeds of such Collateral as noted above in this paragraph); provided that such consent and waiver shall not be deemed to be a waiver or other impairment with respect to the right of such non-Priority Secured Party or non-Priority Claimholders, as applicable, to credit bid on the applicable Priority Collateral pursuant to Section 363(k) of the Bankruptcy Code or other applicable law and in accordance with Section 2.3(g)(vii); and provided further that any such sale shall be subject to the access and use rights given to the Revolving Lender in respect of the Term Loan Priority Collateral pursuant to the provisions of Section 2.3.

(ii) because of, among other things, the Secured Parties’ and the Claimholders’ differing rights in the Collateral, the Revolving Obligations (and the claims related thereto) are fundamentally different from the Term Loan Obligations (and the claims related thereto) and must be separately classified in any plan of reorganization proposed or adopted in any Insolvency Proceeding.

To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the Revolving Claimholders and the Term Loan Claimholders in respect of the Collateral constitute only one secured claim (rather than separate classes of secured claims), then each of the parties hereto and the Loan Parties hereby acknowledges and agrees that, subject to Section 2.1 and Section 2.4, all distributions shall be made as if there were separate classes of secured claims against the Loan Parties in respect of the applicable Priority Collateral (with the effect being that, to the extent that the aggregate value of such Priority Collateral is sufficient (for this purpose ignoring all claims held by the applicable non-Priority Claimholders), the applicable Priority Claimholders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (including any additional interest payable pursuant to such Priority Claimholders’ Loan Documents, arising from or related to a default, which is disallowed as a claim in any Insolvency Proceeding) before any distribution is made in respect of the claims held by such non-Priority Claimholders, with each non-Priority Secured Party, on behalf of the applicable non-Priority Claimholders, hereby acknowledging and agreeing to turn over to such Priority Secured Party, on behalf of such Priority Claimholders, amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of such non- Priority Claimholders).

The Revolving Lender and the other Revolving Claimholders may at any time and from time to time and without consent of or notice to the Term Loan Agent or any other Term Loan Claimholders, without incurring any liability to the Term Loan Claimholders and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Revolving Loan Documents; provided, however, that without the written consent of the Term Loan Agent (acting at the direction of the LC Provider), the Revolving Lender and the other Revolving Claimholders shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace (including in connection with any DIP Financing provided by any of the Revolving Claimholders) any or all of the Revolving Loan Documents in a manner which would:

Nothing contained herein shall limit, restrict or impair the discretionary rights and ability of the Revolving Lender to impose or establish any and all Borrowing Base reserves, and to thereafter reduce or eliminate such Borrowing Base reserves, or to determine the eligibility of Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the Revolving Credit Agreement in effect as of the date hereof and as determined from time to time by the Revolving Lender in the exercise of its reasonable (from the perspective of a secured asset-based lender) business judgment.

Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Subject to Section 4.3, in the event of any refinancing, replacement, refunding, extension, renewal, restatement or similar transaction with respect to (i) the Revolving Credit Agreement or any other Revolving Loan Document or (ii) the Reimbursement Agreement or any other Term Loan Document, this Agreement and each of its provisions shall automatically, and without further act or deed on behalf of any Person, apply to the agreement or other document relating to any such refinancing, replacement, refunding, extension, renewal, restatement or similar transaction, as the case may be, and the holders of the indebtedness thereunder (provided that, without limiting the foregoing, the agent, trustee or other representative in respect of any such indebtedness, acting on behalf of the holders of such indebtedness, or if no such representative exists, the holders of such indebtedness, shall acknowledge and agree to the terms of this Agreement) and, for the avoidance of doubt, in the event any such refinancing, replacement, refunding, extension, renewal, restatement or similar transaction occurs, the related Revolving Obligations or Term Loan Obligations, as the case may be, shall not be deemed to be Paid In Full for purposes of this Agreement. Any sale, participation, assignment or other transfer of the Revolving Obligations or the Term Loan Obligations shall be expressly made subject to the terms of this Agreement. In connection with any such sale, participation, assignment or other transfer, the applicable Secured Party shall disclose to such purchaser, participant, assignee or transferee the existence and terms and conditions of this Agreement.

The Revolving Lender and the other Revolving Claimholders, on the one hand, and the Term Loan Agent and the other Term Loan Claimholders, on the other hand, shall be entitled to manage and supervise the obligations of the Borrowers, Parent and the other Loan Parties to them in accordance with applicable law and practices in effect from time to time without regard to the existence of the other Secured Party or Claimholders, and, subject to the limitations of this Agreement, neither the Revolving Lender or the other Revolving Claimholders, on the one hand, or the Term Loan Agent or the other Term Loan Claimholders, on the other hand, shall have any liability to the others for (i) any and all actions which such Persons, in good faith, take or omit to take in connection with their credit arrangement with the Borrowers, Parent or the other Loan Parties, including with respect to the creation, perfection or continuation of Liens in any of their respective Priority Collateral, the occurrence of a default, the foreclosure upon, sale, release or depreciation of, or a failure to realize upon, any such Priority Collateral and the collection of any indebtedness or of any claim from any account debtor or guarantor (or any other party), and (ii) any election of the application of Section 1111(b)(2) of the Bankruptcy Code.

and shall deliver such notices of termination of its interests in the Collateral or termination of its status as “Controlling Party” (or comparable concept) provided to it as the Revolving Lender may reasonably request in writing.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

1REVOL VING LENDER:

SIENA LENDING GROUP LLC, as Revolving Lender

Address for Notices:

SIENA LENDING GROUP LLC

9 W Broad Street, 5th Floor Stamford, CT 06902 Attention: Steven Sanicola

Email: ssanicola@sienalending.com

with a copy to (which shall not constitute notice): Otterbourg P.C.

New York, NY 10169-0075

Attention: Jason I. Miller

Email: JMiller@otterbourg.com

[Signature Page to lntercreditor Agreement)

TERM LOAN AGENT:

U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Term Loan Agent and not in its individual 214 N. Tryon Street, 27th Floor Charlotte, North Carolina 28202

capacity:

Address for Notices:

U.S. BANK NATIONAL ASSOCIATION

Attention: CDO Trust Services/James Hanley Telephone: (302) 576-3714

Telecopier: (704) 335-4670

E-mail: iames.hanleyl@usbank.com

[Signature Page to lntercreditor Agreement]

Each of the Loan Parties hereby acknowledges that it has received a copy of this Intercreditor Agreement, consents to the execution, delivery and performance thereof by the Secured Parties and agrees to recognize all rights granted thereby to the Revolving Lender and the Term Loan Agent, and agrees to the provisions of Sections 3.3(h) and 8.17 hereof. Each of the Loan Parties further acknowledges and agrees that it is not an intended beneficiary or third party beneficiary under this Intercreditor Agreement.

LOAN PARTIES:

FREIGHTCAR NORTH AMERICA, LLC

FREIGHT CAR SERVICES, INC.

FREIGHTCAR SHORT LINE, INC.

JOHNSTOWN AMERICA, LLC

FREIGHTCAR ALABAMA, LLC

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

FCA-FASEMEX, LLC

[Signature Page to Intercreditor Agreement]

Address for Notices to the Loan Parties:

FREIGHTCAR NORTH AMERICA, LLC

c/o FreightCar America, Inc. 125 S. Wacker Drive, Suite 1500

Chicago, Illinois 60606

Attention: Michael Riordan

Email: mriordan@freightcar.net

in each case, with a copy (which shall not constitute notice) to:

FREIGHTCAR NORTH AMERICA, LLC

c/o FreightCar America, Inc. 125 S. Wacker Drive, Suite 1500

Chicago, Illinois 60606

Attention: Celia Perez

Email: cperez@freightcar.net

WINSTON & STRAWN LLP

35 W.

.

APPENDIX I

Defined Terms

Wacker Drive Chicago, Illinois 60601-9703 Attention: Oscar David Email: odavid@winston.com “Affiliate” means, with respect to a specified Person, any other Person which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Person, including (a) any Person which beneficially owns or holds ten percent (10%) or more of any voting equity interests of such Person, (b) any Person of which such Person beneficially owns or holds ten percent (10%) or more of any voting equity interests and (c) any director or executive officer of such Person. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting equity interests, by agreement or otherwise.

“Asserted Indemnification Claim” means any matters or circumstances for which notice has been furnished to, or demand has been made upon or asserted against, the applicable Secured Party or Claimholder, whether in writing or threatened orally, that the applicable Secured Party has determined could reasonably be expected to result in direct or actual damages and expenses to the applicable Secured Party or any applicable Claimholder and which are subject to indemnification by any of the Loan Parties pursuant to the terms of the applicable Loan Documents.

“Assignment of Claims Act” means the Assignment of Claims Act of 1940, as amended, currently codified at 31 U.S.C. 3727 and 41 U.S.C. 6305, and includes the prior historically referenced Federal Anti-Claims Act (31 U.S.C. 3727) and the Federal Anti-Assignment Act (41 U.S.C. 6305).

“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. Section 101 et. seq.).

“Borrower” and “Borrowers” has the meaning set forth in the recitals to this Agreement.

“Borrowing Base” has the meaning ascribed to such term in the Revolving Credit Agreement as in effect as of the date hereof, including all component definitions thereof, and in each case as may be amended or otherwise modified as permitted pursuant to Section 4.2.

“Business Day” means any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York.

“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of such Person’s capital stock or partnership, limited liability company or other equity interests at any time outstanding, whether voting or nonvoting, and any and all rights, warrants or options exchangeable for or convertible into such capital stock or other interests, whether or not presently exchangeable or convertible.

“Claimholder” means a Revolving Claimholder or a Term Loan Claimholder, and “Claimholders” means the Revolving Claimholders or the Term Loan Claimholders, in each case, as the context requires.

“Closing Date License” has the meaning set forth in Section 2.3(o).

“Collateral” means all Property and interests in Property now owned or hereafter acquired by any Loan Party in which a security interest, Lien or mortgage Lien is now or hereafter granted or purported to have been granted to the Revolving Lender or the Term Loan Agent pursuant to the Revolving Loan Documents or the Term Loan Documents, including any Property subject to Liens or claims granted in any Insolvency Proceeding as permitted under this Agreement.

I-1

“Creditors” has the meaning set forth in Section 8.17.

“DIP Financing” has the meaning set forth in Section 3.1(a)(i).

“Disposition Period” means, with respect to any piece of Equipment constituting Term Loan Priority Collateral, a period of time not to exceed 120 days from the date the Revolving Lender receives written notice from the Term Loan Agent that the Term Loan Agent has acquired control or possession of any such Term Loan Priority Collateral or has, through the exercise of remedies under the Term Loan Documents or otherwise, sold such Term Loan Priority Collateral to any Third Party Purchaser.

“Enforcement Action” means, with respect to the Revolving Obligations or the Term Loan Obligations, (a) the taking of any action to enforce or realize upon any Lien on any of the Collateral, including the institution of any foreclosure proceedings or the noticing of any public or private sale or other disposition pursuant to Article 8 or Article 9 of the Uniform Commercial Code or other applicable law, (b) the exercise of any right or remedy provided to a secured creditor or otherwise on account of a Lien on any of the Collateral under the Revolving Loan Documents, the Term Loan Documents or applicable law, in an Insolvency Proceeding or otherwise, including the election to retain any Collateral in satisfaction of a Lien, (c) the taking of any action or the exercise of any right or remedy in respect of the collection on, set off against, marshaling of, or foreclosure on any of the Collateral or the Proceeds of any of the Collateral, (d) the sale, lease, license or other disposition of all or any portion of the Collateral by private or public sale or any other means permissible under applicable law at any time that an “Event of Default” as defined in any of the Loan Documents shall have occurred and is continuing in connection with the exercise or enforcement of rights relating to any of the Collateral and (e) the exercise of any other right of liquidation against any Collateral (including the exercise of any right of recoupment or set- off or any rights against any Collateral obtained pursuant to or by foreclosure of a judgment Lien obtained against any Loan Party) whether under the Revolving Loan Documents, the Term Loan Documents or applicable law, in an Insolvency Proceeding or otherwise; provided, however, that in no event shall the term “Enforcement Action” include (i) the imposition, establishment, elimination or reduction of Borrowing Base reserves in accordance with the terms of the Revolving Credit Agreement in effect as of the date hereof, (ii) the imposition of a default rate or late fee in accordance with Section 4.1 or 4.2, as applicable, (iii) the taking of any action by the Revolving Lender in connection with the attempt to receive, or the receipt of collections of the Loan Parties in the ordinary course or the exercise of rights by the Revolving Lender to monitor the Accounts and apply funds in Deposit Accounts to the payment of the Revolving Obligations (including by notifying the applicable depository institution to send such funds to the Revolving Lender) and, during the continuance of an Event of Default, the notification of account debtors, and any other Person to deliver Proceeds of the Revolving Credit Priority Collateral to the Revolving Lender, (iv) the exercise of rights by the Term Loan Agent with respect to any Term Loan Priority Accounts, including providing instructions to depository institutions and the notification of any other Person to deliver Term Loan Priority Proceeds to the Term Loan Agent, (v) making any argument, or filing any objection, motion or other pleading (in each case, not adverse to the priority of the Lien securing the Revolving Obligations or the Term Loan Obligations, as the case may be) to preserve or protect a Lien on Collateral, (vi) taking any action, not adverse to the priority of the Lien securing the Revolving Obligations or the Term Loan Obligations, as the case may be, in order to create, perfect, preserve or protect the Lien securing the Term Loan Obligations or the Revolving Obligations, as applicable, (vii) the acceleration of the Revolving Obligations or the Term Loan Obligations prior to their stated maturity or (viii) the provision of any DIP Financing or the implementation of any cash collateral order, in each case, in accordance with this Agreement. For the avoidance of doubt, the commencement and continuation of cash dominion under the Revolving Loan Documents in and of itself shall not constitute an Enforcement Action.

“Excess Availability” has the meaning ascribed to such term in the Revolving Credit Agreement as in effect as of the date hereof.

“Exigent Circumstances” means an event or circumstance that materially and imminently threatens the ability of the Revolving Lender or the Term Loan Agent, as applicable, to realize upon all or a material part of the Revolving Credit Priority Collateral or the Term Loan Priority Collateral, as applicable, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction (other than to the extent covered by insurance) or material waste thereof.

“FCNA” has the meaning set forth in the recitals to this Agreement.

“Fifth Amendment Effective Date” means May 22, 2023.

“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantor” means any Person who has guaranteed the Revolving Obligations or the Term Loan Obligations.

“Insolvency Proceeding” means any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, arrangement, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of any Loan Party.

“Intellectual Property” has the meaning set forth in clause (i) of the definition of “Term Loan Priority Collateral.”

“IP License Period” has the meaning set forth in Section 2.3(n).

“LC Provider” has the meaning set forth in the recitals to this Agreement.

“Lenders” means the Revolving Lender or the Term Loan Lenders, as the context requires.

“License Commencement Date” has the meaning set forth in Section 2.3(n).

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (whether statutory or otherwise), security interest, charge, claim or preference, priority or other preferential arrangement in the nature of a security interest or other lien of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).

“Loan Documents” means the Revolving Loan Documents or the Term Loan Documents, as the context requires.

“Loan Parties” means each Borrower, Parent, each Guarantor and each other Person that is a subsidiary of Parent liable on or in respect of the Revolving Obligations or the Term Loan Obligations or that has granted or purported to grant a Lien on any assets as Collateral to secure the Revolving Obligations or the Term Loan Obligations, together with such Person’s successors and assigns, including a receiver, trustee or debtor-in-possession on behalf of such Person, and “Loan Party” shall mean any of them.

“Mexican Subsidiaries” means FCA-Fasemex, S. de R.L., de C.V., an entity organized under the laws of Mexico, and FCA-Fasemex Enterprise, S. de R.L., de C.V., an entity organized under the laws of Mexico.

“Net Cash Proceeds” means the aggregate cash or cash equivalent Proceeds received by any Loan Party or any of its Subsidiaries or any Secured Party in respect of any disposition, equity issuance, debt issuance, involuntary disposition, payment under any insurance policy or in connection with any taking or condemnation or any other event giving rise to Proceeds, net of (a) direct costs incurred in connection therewith not paid to an Affiliate of any Loan Party (including legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof, and (c) the amount of any payments of any debt or other obligation that is secured by a Lien (excluding, for the avoidance of doubt, the Lien in favor of either Secured Party) on the related asset that under applicable law has priority to the Liens in favor of the Secured Parties; it being understood that “Net Cash Proceeds” shall include any cash or cash equivalents received upon the sale or other disposition of any non-cash consideration received by any Loan Party or any of its Subsidiaries or any Secured Party in any disposition, equity issuance, debt issuance, involuntary disposition, payment under any insurance policy or in connection with any taking or condemnation or any other event giving rise to Proceeds.

“Option Period” has the meaning set forth in Section 7.2 of this Agreement.

“Paid In Full” and “Payment In Full” means, with respect to any Secured Obligations, (i) termination or expiration of all commitments of the applicable Claimholders to extend credit or provide the Standby Letter of Credit under the applicable Loan Documents, (ii) the payment in full in cash of such Secured Obligations (other than (a) Asserted Indemnification Claims (which is provided for in clause (iii) below) and (b) unmatured or contingent Secured Obligations (which are provided for in clause (iv) below)), including the principal of, accrued (but unpaid) interest and premium, if any, on, and fees, costs, charges and expense reimbursements with respect to, all such Secured Obligations, (iii) with respect to an Asserted Indemnification Claim, delivery of cash collateral or other credit support in an amount reasonably determined by the applicable Secured Party with respect to such Secured Obligation, and (iv) with respect to any other unmatured or contingent Secured Obligation (other than (x) Asserted Indemnification Claims and (y) unknown and unasserted contingent claims against any Secured Party or any Claimholder which may be asserted after the date upon which the relevant Secured Obligations are paid in full), cash collateral or other credit support in an amount reasonably determined by the applicable Secured Party and on terms reasonably satisfactory to the applicable Secured Party to be held by the applicable Secured Party.

“Parent” means FreightCar America, Inc., a Delaware corporation.

“Person” has the meaning set forth in the Revolving Credit Agreement and the Reimbursement Agreement, as the context may require.

“Priority Claimholders” means, with respect to the Revolving Credit Priority Collateral, the Revolving Claimholders and, with respect to the Term Loan Priority Collateral, the Term Loan Claimholders; provided that, upon the Payment In Full of the Revolving Obligations, but subject to Section 3.3(d), the Priority Claimholders with respect to all Collateral shall mean the Term Loan Claimholders and, upon the Payment In Full of the Term Loan Obligations, but subject to Section 3.3(d), the Priority Claimholders with respect to all Collateral shall mean the Revolving Lender.

“Priority Collateral” means, with respect to the Revolving Lender and the other Revolving Claimholders, the Revolving Credit Priority Collateral and, with respect to the Term Loan Agent and the other Term Loan Claimholders, the Term Loan Priority Collateral; provided that, upon the Payment In Full of the Revolving Obligations, but subject to Section 3.3(d), the Priority Collateral with respect to the Term Loan Agent shall mean all Collateral and, upon the Payment In Full of the Term Loan Obligations, but subject to Section 3.3(d), the Priority Collateral with respect to the Revolving Lender shall mean all Collateral.

“Priority Secured Party” means, with respect to the Revolving Credit Priority Collateral, the Revolving Lender and, with respect to the Term Loan Priority Collateral, the Term Loan Agent.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“Purchase Notice” has the meaning set forth in Section 7.1.

“Real Property” has the meaning set forth in clause (iv) of the definition of “Term Loan Priority Collateral.”

“Recovery” has the meaning set forth in Section 3.3(d).

“Reimbursement Agreement” has the meaning set forth in the recitals to this Agreement.

“Revolving Claimholders” means, at any relevant time, the Revolving Lender and the holders of Revolving Obligations at such time.

“Revolving Credit Agreement” has the meaning set forth in the recitals to this Agreement.

“Revolving Credit Priority Collateral” means the following Property of each Loan Party, whether now owned or hereafter acquired and wheresoever located (including, for the avoidance of doubt, any such Property that, but for the application of Section 552 of the Bankruptcy Code (or any similar provision of any other Insolvency Laws), would be Revolving Credit Priority Collateral):

“Revolving Excess Obligations” shall mean any Revolving Obligations not constituting Revolving Priority Obligations.

“Revolving Lender” has the meaning set forth in the preamble to this Agreement.

“Revolving Loan Documents” means the Revolving Credit Agreement and each other “Loan Document” (as defined in the Revolving Credit Agreement), as each may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, including any agreements and documents governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, all or any of the Revolving Obligations.

“Revolving Maximum Amount” means, as of any date of determination, an amount equal to the result of:

Any refinancing of the Revolving Obligations permitted under this Agreement shall not be deemed to constitute a permanent reduction of the Revolving Maximum Amount for the purposes of this definition.

“Revolving Obligations” means all indebtedness, obligations and other liabilities (contingent or otherwise) payable directly or indirectly by each Loan Party to the Revolving Lender or any Affiliate of the Revolving Lender under the Revolving Credit Agreement or the other Revolving Loan Documents entered into among the Revolving Lender or any Affiliate of the Revolving Lender and any Loan Party, and in any event shall include all “Obligations” (as such term is defined in the Revolving Credit Agreement as in effect on the date hereof).

“Revolving Obligations” shall include (x) all interest accrued or accruing (or which would, absent commencement of an Insolvency Proceeding, accrue) in accordance with the rate specified in the relevant Revolving Loan Documents and (y) all fees, costs and charges charged or incurred pursuant to the provisions of the Revolving Loan Documents, including reasonable and documented legal fees and expenses, in the case of each of clause (x) and clause (y) whether before or after commencement of an Insolvency Proceeding and irrespective of whether any claim for such interest, fees, costs or charges is allowed as a claim in such Insolvency Proceeding.

“Revolving Priority Obligations” means all Revolving Obligations exclusive only of (a) that portion, if any, of the principal amount of the revolving loans outstanding under the Revolving Loan Documents which exceeds the Revolving Maximum Amount, (b) that portion, if any, of interest on account of the Revolving Obligations described in the foregoing clause (a) and (c) all fees, costs and expenses on account of the Revolving Obligations described in the foregoing clause (a), including any such amounts accruing or becoming due after the commencement of any Insolvency Proceeding and irrespective of whether any claim for such amounts is allowed as a claim in such Insolvency Proceeding.

“Revolving Purchase Price” has the meaning set forth in Section 7.2.

“Secured Obligations” means the Revolving Priority Obligations, the Revolving Excess Obligations, the Term Loan Priority Obligations and the Term Loan Excess Obligations, as the context requires.

“Secured Parties” has the meaning set forth in the preamble to this Agreement, and “Secured Party” refers to either of the Secured Parties.

“Term Loan Agent” has the meaning set forth in the preamble to this Agreement.

“Term Loan Agreement” has the meaning set forth in the recitals to this Agreement. For the avoidance of doubt, all parties hereto hereby acknowledge and agree that (a) the Term Loan Agreement has been terminated as of the Fifth Amendment Effective Date and (b) on and after the Fifth Amendment Effective Date, all Reimbursement Obligations (as defined in the Reimbursement Agreement as in effect on the Fifth Amendment Effective Date) shall be subject to the terms and conditions of the Reimbursement Agreement.

“Term Loan Claimholders” means, at any relevant time, the Term Loan Agent and the holders of Term Loan Obligations at such time, including the Term Loan Lenders and all other “Secured Parties” (as defined in the Reimbursement Agreement).

“Term Loan Documents” means the Term Loan Agreement, the Reimbursement Agreement, the Term Loan Guarantee and Collateral Agreement and each other “Loan Document” (as defined in the Reimbursement Agreement), as each may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, including any agreements and documents governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, all or any of the Term Loan Obligations.

“Term Loan Excess Obligations” shall mean any Term Loan Obligations not constituting Term Loan Priority Obligations.

“Term Loan Guarantee and Collateral Agreement” means the “Guarantee and Collateral Agreement” as defined in the Reimbursement Agreement.

“Term Loan Lenders” means (i) prior to the Fifth Amendment Effective Date, the “Lenders” from time to time under and as defined in the Term Loan Agreement as in effect immediately prior to the Fifth Amendment Effective Date and (ii) on and after the Fifth Amendment Effective Date, the LC Provider.

“Term Loan Maximum Amount” means, as of any date of determination, the sum of (a) the face amount of the Standby Letter of Credit, plus (ii) if provided pursuant to a DIP Financing, an additional $7,100,000, plus (iii) all Reimbursement Obligations under and as defined in the Reimbursement Agreement, minus (b) the amount of any permanent reductions in the face amount of the Standby Letter of Credit.

“Term Loan Obligations” means (a) prior to the Fifth Amendment Effective Date, all indebtedness, obligations and other liabilities (contingent or otherwise) payable directly or indirectly by each Loan Party to the Term Loan Agent, the Term Loan Lenders or any Affiliate of a Term Loan Lender under the Term Loan Agreement or the other Term Loan Documents, and shall include all “Obligations” (as such term is defined in the Term Loan Agreement immediately prior to the Fifth Amendment Effective Date) and (b) on or after the Fifth Amendment Effective Date, all indebtedness, obligations and other liabilities (contingent or otherwise) payable directly or indirectly by each Loan Party to the Term Loan Agent, the LC Provider or any Affiliate of the LC Provider under the Reimbursement Agreement or the other Term Loan Documents, and shall include all “Reimbursement Obligations” (as such term is defined in the Reimbursement Agreement as in effect on the Fifth Amendment Effective Date). “Term Loan Obligations” shall include (x) any interest accrued or accruing (or which would, absent commencement of an Insolvency Proceeding, accrue) in accordance with the rate specified in the relevant Term Loan Documents, (y) all fees, costs and charges charged or incurred pursuant to the provisions of the Term Loan Documents, including reasonable and documented legal fees and expenses, in the case of each of clause (x) and clause (y) whether before or after commencement of an Insolvency Proceeding and irrespective of whether any claim for such interest, fees, costs or charges is allowed as a claim in such Insolvency Proceeding.

“Term Loan Priority Accounts” shall mean any and all Deposit Accounts (including the “Collateral Account” as defined in the Reimbursement Agreement), Securities Accounts and Commodities Accounts that are intended solely to contain Term Loan Priority Collateral or Term Loan Priority Proceeds.

“Term Loan Priority Collateral” means all Property of each Loan Party (other than Revolving Credit Priority Collateral), whether now owned or hereafter acquired and wheresoever located (including, for the avoidance of doubt, any such Property that, but for the application of Section 552 of the Bankruptcy Code (or any similar provision of any other Insolvency Laws), would be Term Loan Priority Collateral), including the following:

“Term Loan Priority Obligations” means all Term Loan Obligations exclusive only of (a) that portion, if any, of the principal amount of the loans outstanding under the Term Loan Documents which exceeds the Term Loan Maximum Amount, and (b) that portion, if any, of interest on account of the Term Loan Obligations described in the foregoing clause (a) and (c) all fees, costs and expenses on account of the Term Loan Obligations described in the foregoing clause (a), but including any such amounts accruing or becoming due after the commencement of any Insolvency Proceeding and irrespective of whether any claim for such amounts is allowed as a claim in such Insolvency Proceeding.

“Term Loan Priority Proceeds” means all identifiable Proceeds of the Term Loan Priority Collateral (including any rights to payments arising from any sale, lease or other disposition or any casualty or condemnation event in respect of any of the Term Loan Priority Collateral).

“Third Party Purchaser” has the meaning set forth in Section 2.3(h).

“Trigger Event” means the occurrence of any of the following:

“Uniform Commercial Code” means the Uniform Commercial Code as adopted in the State of New York from time to time; provided that in the event that any or all of the attachment, creation, perfection or priority of, or remedies with respect to, any of the Liens of the Revolving Lender or the Term Loan Agent on any of the Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the Term “Uniform Commercial Code” will mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, creation, perfection, priority or remedies and for purposes of definitions related to such provisions.

EXHIBIT A

Form of Closing Date License

LICENSE TO USE INTELLECTUAL PROPERTY RIGHTS

This LICENSE TO USE INTELLECTUAL PROPERTY RIGHTS is entered into as of November 24, 2020, by the Loan Parties (as defined in the Intercreditor Agreement referred to below) set forth on the signature pages hereto.

For the purpose of enabling SIENA LENDING GROUP LLC, in its capacity as the lender (in such capacity, the “Revolving Lender”) under that certain Loan and Security Agreement, dated as of October 8, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Revolving Credit Agreement”), by and among JAC Operations, Inc., a Delaware corporation (“JAC”), Freight Car Services, Inc., a Delaware corporation (“Freight”), JAIX Leasing Company, a Delaware corporation (“JAIX”), FreightCar Short Line, Inc., a Delaware corporation (“Short”), Johnstown America, LLC, a Delaware limited liability company (“Johnstown”), FreightCar Alabama, LLC, a Delaware limited liability company (“Alabama”), FreightCar Rail Services, LLC, a Delaware limited liability company (“Rail”), FreightCar Rail Management Services, LLC, a Delaware limited liability company (“Management”), FreightCar North America, LLC, a Delaware limited liability company (“FCNA” and together with JAC, Freight, JAIX, Short, Johnstown, Alabama, Rail, Management and any other Person who from time to time becomes a Borrower thereunder, collectively, the “Borrowers” and each individually, a “Borrower”), FreightCar America Inc., a Delaware corporation (“Parent”), the other Guarantors (as defined therein) party thereto from time to time, and the Revolving Lender, to enforce any Lien held by the Revolving Lender upon any of the Revolving Credit Priority Collateral (as such terms are defined in the Intercreditor Agreement, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), between the Revolving Lender and U.S. BANK NATIONAL ASSOCIATION, in its capacity as the collateral agent under that certain Term Loan Agreement (as defined therein) and Reimbursement Agreement (as defined therein), and acknowledged by the Loan Parties), and to the extent necessary, in the good faith opinion of the Revolving Lender, to collect against Accounts, sell or otherwise liquidate or enforce against its Lien in any of the Revolving Credit Priority Collateral, the Loan Parties hereby grant to the Revolving Lender, only to the extent set forth above, an irrevocable, nonexclusive license (exercisable upon the occurrence and during the continuation of an Event of Default, as defined in the Revolving Loan Documents, without payment of royalty or other compensation to the Loan Parties) to use, license or sublicense any intellectual property rights now owned or hereafter acquired by the Loan Parties, wherever the same may be located, and including in such license access to all data processing equipment necessary in connection with the license contained herein, any other media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The Loan Parties hereby agree and acknowledge that no further performance is required of the Revolving Lender under the terms of the license granted pursuant hereto and that this license shall not constitute an executory contract. The license granted hereunder shall automatically terminate on the earlier of (i) the last day of the IP License Period (as defined in the Intercreditor Agreement on the date hereof) or (ii) the termination of the Intercreditor Agreement. Capitalized terms not otherwise defined herein shall have the meanings given thereto in the Intercreditor Agreement.

THIS LICENSE TO USE INTELLECTUAL PROPERTY RIGHTS SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

[SIGNATURE PAGE FOLLOWS]

A-1

LOAN PARTIES:

FREIGHTCAR NORTH AMERICA, LLC

By: Name:

Title:

FREIGHTCAR AMERICA, INC.

By: Name:

Title:

JAC OPERATIONS, INC.

By: Name:

Title:

FREIGHT CAR SERVICES, INC.

By: Name:

Title:

JAIX LEASING COMPANY

By: Name:

Title:

FREIGHTCAR SHORT LINE, INC.

By: Name:

Title:

A-2

JOHNSTOWN AMERICA, LLC

By: Name:

Title:

FREIGHTCAR ALABAMA, LLC

By: Name:

Title:

FREIGHTCAR RAIL SERVICES, LLC

By: Name:

Title:

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

By: Name:

Title:

FCA-FASEMEX, LLC

By: Name:

Title:

A-3

EXHIBIT B

Form of Loan Party Joinder

Reference is made to that certain Intercreditor Agreement, dated as of November 24, 2020 (as amended, amended and restated, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), between Siena Lending Group LLC (together with its successors and permitted assigns, the “Revolving Lender”), and U.S. Bank National Association, in its capacity as collateral agent for the Term Loan Claimholders (in such capacity, together with its successors and permitted assigns in such capacity, the “Term Loan Agent”) and acknowledged and agreed to by the Loan Parties. Capitalized terms used herein without definition shall have the meaning assigned thereto in the Intercreditor Agreement.

This Loan Party Joinder, dated as of , 20 (this “Joinder”), is being executed and delivered pursuant to Section 8.18 of the Intercreditor Agreement.

The undersigned, , a (the “Additional Loan Party”), hereby agrees to become a party to the Intercreditor Agreement as a Loan Party thereunder, for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the Additional Loan Party had executed and delivered the Intercreditor Agreement as of the date thereof.

This Joinder may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.

THIS JOINDER SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

The provisions of Section 8.6 of the Intercreditor Agreement shall apply with like effect to this IN WITNESS WHEREOF, the Additional Loan Party has caused this Joinder to be duly executed by its authorized representative as of the day and year first above written.

Joinder.

[SIGNATURE PAGE FOLLOWS]

Annex B-1

EXHIBIT B

[ADDITIONAL GRANTOR]

By: Name: Title:

Annex B-2

Exhibit C

Amendment No.

[attached]

Annex B-3

Execution Version

AmericasActive:18517413.5

AMENDMENT NO. 1 TO

GUARANTEE AND COLLATERAL AGREEMENT

1 to Guarantee and Collateral Agreement THIS AMENDMENT NO. 1 TO GUARANTEE AND COLLATERAL AGREEMENT (this “Amendment”), dated as of May 22, 2023 is made by and among FREIGHTCAR AMERICA, INC., a Delaware corporation (“Company”), FREIGHTCAR NORTH AMERICA, LLC, a Delaware limited liability company (the “Borrower’), each other signatory party hereto as a Grantor (the “Subsidiary Grantors” and together with the Company and the Borrower, the “Loan Parties”) CO FINANCE LVS VI LLC, a Delaware limited liability company (“LC Provider”), U.S. BANK, NATIONAL ASSOCIATION (“Disbursing Agent”), U.S. BANK NATIONAL ASSOCIATION as collateral agent for the Secured Parties (“Collateral Agent”, and together with the Disbursing Agent, the “Agents” and each, an “Agent”).

R E C I T A L S:

WHEREAS, certain of the parties have entered into that certain Credit Agreement, dated as of October 13, 2020 (as amended, supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”), among Borrower, Company, LC Provider, the several other financial institutions or entities from time to time parties thereto as lenders, the Disbursing Agent and the Collateral Agent;

WHEREAS, the Company had Reimbursement Obligations owing to LC Provider under the Credit Agreement in connection with a standby letter of credit (the “Letter of Credit Obligations”);

WHEREAS, in connection with the Letter of Credit Obligations, the Company and LC Provider entered into that certain Reimbursement Agreement dated as of July 30, 2021 as amended and restated on December 30, 2021, and as further amended by Amendment No. 1 to Amended and Restated Reimbursement Agreement dated as of March 23, 2023, and Amendment No. 2 to Amended and Restated Reimbursement Agreement dated as of May 22, 2023, as so amended, the “Reimbursement Agreement”), among the Company, LC Provider, Disbursing Agent, and Collateral Agent;

WHEREAS, on March 23, 2023, the Company and certain funds affiliated with LC Provider entered into the Securities Purchase Agreement pursuant to which purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Credit Agreement other than the Letter of Credit Obligations (the “Conversion Transaction”);

WHEREAS, Company, Borrower and certain of their Affiliates (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated as of November 24, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the Collateral Agent for the benefit of the Secured Parties under the Credit Agreement, and after the Conversion Transaction, under the Reimbursement Agreement;

WHEREAS, in connection with the Conversion Transaction, the Credit Agreement was terminated, and the Reimbursement Agreement was amended to reflect the obligations of the Company in respect of the Letter of Credit Obligations;

WHEREAS, to effectuate the foregoing, the parties desire to amend the Guarantee and Collateral Agreement to reflect the continuing security interest of the Collateral Agent in the Collateral to secure the Company’s Reimbursement Obligations with respect to the Letter of Credit Obligations.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Capitalized Terms. All capitalized undefined terms used in this Amendment (including without limitation, in the Recitals hereto) shall have the meanings assigned thereto in the Reimbursement Agreement.

SECTION 2. Amendments to Guarantee and Collateral Agreement.

On and as of the Amendment Effective Date (as defined below), the Guarantee and Collateral Agreement (including all Schedules attached thereto) is amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: ) and (ii) inserting the underlined text (indicated textually in the same manner as the following example: inserted text), in each case set forth on Exhibit A hereto.

SECTION 3. Effectiveness. This Amendment shall become effective on the date upon which each of the following conditions is satisfied (such date, the “Amendment Effective Date”):

3.1 This Amendment. LC Provider, Disbursing Agent and Collateral Agent shall have received a copy of this Amendment duly executed and delivered by the Disbursing Agent, Collateral Agent, LC Provider, the Company, the Borrower and each Subsidiary Guarantor, in form and content acceptable to the Disbursing Agent, Collateral Agent and LC Provider.

3.2 Amendment to Intercreditor Agreement. LC Provider and the Collateral Agent shall have received a duly executed and delivered Amendment No. 5 to Intercreditor Agreement, in form and content acceptable to the Collateral Agent and LC Provider.

3.3 Amendment to Reimbursement Agreement. The Disbursing Agent, Collateral Agent and LC Provider shall have received a duly executed and delivered Amendment No. 2 to Reimbursement Agreement, in form and content acceptable to the Disbursing Agent, Collateral Agent and LC Provider.

SECTION 4. Limited Effect. Except as expressly provided herein, the Guarantee and Collateral Agreement shall remain unmodified and in full force and effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Guarantee and Collateral Agreement or a waiver of any other Default or Event of Default (except as expressly provided herein), (b) to prejudice any right or rights the LC Provider or any Agent may now have or may have in the future under or in connection with the Guarantee and Collateral Agreement, as the same may be amended, restated, supplemented or modified from time to time, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Company or any other Person with respect to any waiver, amendment, modification or any other change to the Guarantee and Collateral Agreement or any rights or remedies arising in favor of any Agent or the LC Provider, under or with respect to any such documents.

SECTION 5. Representations and Warranties. Each Loan Party represents and warrants that (a) it has the organizational power and authority to make, deliver and perform this Amendment, (b) it has taken all necessary organizational or other action to authorize the execution, delivery and performance of this Amendment, (c) this Amendment has been duly executed and delivered by it, (d) this Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law, (e) each of the representations and warranties made by such Loan Party in Section 4 of the Guarantee and Collateral Agreement is true and correct in all material respects on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects, (f) as of the date hereof, it has no defenses, setoffs, rights of recoupment, counterclaims or claims of any nature whatsoever with respect to the obligations due thereunder, and to the extent any such defenses, setoffs, rights of recoupment, counterclaims or claims may exist on or prior to the date hereof, the same are hereby expressly waived, released and discharged, and (g) after giving effect to this Amendment, Amendment No. 5 to Intercreditor Agreement and Amendment No. 2 to Reimbursement Agreement, no Default or Event of Default has occurred and is continuing as of the date hereof or after giving effect hereto.

SECTION 6. Costs and Expenses. The Company agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by the LC Provider and each Agent and their respective Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel for LC Provider and each Agent with respect thereto and with respect to advising LC Provider and each Agent as to its rights and responsibilities hereunder and thereunder.

SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

SECTION 8. Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.

SECTION 9. Entire Agreement; Section Heading; Severability. This Amendment is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The Section headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 10. Successors and Assigns. This Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.

SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

SECTION 12. Reaffirmation; Other Agreements. Each Loan Party, as of the Amendment Effective Date, (i) acknowledges and agrees that that all of its obligations in respect of the Credit under the Credit Agreement remain outstanding under the Reimbursement Agreement, and that all of its Reimbursement Obligations under the Reimbursement Agreement and other Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis as and to the extent provided in the Loan Documents; (ii) reaffirms each Lien granted by it to the Collateral Agent for the benefit of the Secured Parties and reaffirms its guarantee as and to the extent provided in the Loan Documents; and (iii) acknowledges and agrees that the grants of security interests by and the guarantee of the Loan Parties, and all Security Documents are, and shall remain, in full force and effect after giving effect to this Amendment as and to the extent provided in the Loan Documents.

Nothing in this Amendment shall be construed as a substitution or novation of the obligations in respect of the Credit outstanding under the Credit Agreement, the Reimbursement Agreement or any other Loan Document, and such obligations remain in full force and effect, except to any extent modified hereby.

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first written above.

COMPANY:

FREIGHTCAR AMERICA, INC.

By: ________________________________

Name: Michael Riordan

Title: Vice President, Finance, Chief Financial Officer and Treasurer

LC PROVIDER:

CO FINANCE LVS VI LLC

By:______________________________

Name: Christopher Neumeyer

Title: Authorized Person

SUBSIDIARY GUARANTORS:

FREIGHTCAR NORTH AMERICA, LLC

By: _______________________________

Name:

Title:

JAC OPERATIONS, INC.

By: _______________________________

Name:

Title:

FREIGHT CAR SERVICES, INC.

By: ______________________________

Name:

Title:

JAIX LEASING COMPANY

By: _______________________________

Name:

Title:

FREIGHTCAR SHORT LINE, INC.

By: _______________________________

Name:

Title:

JOHNSTOWN AMERICA, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR ALABAMA, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR RAIL SERVICES, LLC

By: _______________________________

Name:

Title:

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

By: _______________________________

Name:

Title:

FCA-FASEMEX, LLC

By: _______________________________

Name:

Title:

FCA-FASEMEX, S. DE R.L., DE C.V.

By: _______________________________

Name:

Title:

FCA-FASEMEX ENTERPRISE, S. DE R.L., DE C.V.

By: ______________________________

Name:

Title:

DISBURSING AGENT:

U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Disbursing Agent and not in its individual capacity

By: ____________________________

Name:

Title:

COLLATERAL AGENT:

U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Collateral Agent and not in its individual capacity

By: ____________________________

Name:

Title:

Exhibit A

Exhibit A

GUARANTEE AND COLLATERAL AGREEMENT

among FREIGHTCAR AMERICA, INC.,

FREIGHTCAR NORTH AMERICA, LLC,

and

THE OTHER PARTIES HERETO, as Grantors

and

U.S. BANK NATIONAL ASSOCIATION,

as Collateral Agent

Dated as of November 24, 2020*

* As amended on May 22, 2023

TABLE OF CONTENTS

PAGE

1

Page

SECTION 1. DEFINED TERMS 2

SECTION 2. GUARANTEE 10

SECTION 3. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY

UNDER COLLATERAL 16

SECTION 4. REPRESENTATIONS AND WARRANTIES 19

SECTION 5. COVENANTS 24

Documents, Investment Property and Deposit Accounts 24

Page

2

Page

SECTION 6. REMEDIAL PROVISIONS 32

SECTION 7. POWER OF ATTORNEY AND FURTHER ASSURANCES 37

SECTION 8. THE COLLATERAL AGENT 40

SECTION 9. MISCELLANEOUS 43

3

Page

Page

4

Page

PAGE

5

Page

SCHEDULES:

Schedule 1 Notice Addresses of Guarantors 1-1

Schedule 2 Description of Pledged Investment Property 2-1

Schedule 3 Filings and Other Actions Required to Perfect Security Interests 3-1

Schedule 4 Exact Legal Name, Location of Jurisdiction of Organization and

Chief Executive Office 4-1

Schedule 5 Location of Inventory and Equipment 5-1

Schedule 6 Material Excluded Assets 6-1

Schedule 7 Government Receivables 7-1

Schedule 8 Copyrights; Patents; Trademarks; Intellectual Property Licenses;

Other Intellectual Property 8-1

Schedule 9 Vehicles 9-1

Schedule 10 Letter of Credit Rights 10-1

Schedule 11 Commercial Tort Claims 11-1

EXHIBITS:

Exhibit A [RESERVED] A-1

Exhibit B Form of Uncertificated Securities Control Agreement .....................................B-1 Exhibit C-1 Form of Copyright Security Agreement ...........................................................C-1

Exhibit C-2 Form of Patent Security Agreement .................................................................C-2

Exhibit C-3 Form of Trademark Security Agreement ..........................................................C-3 ANNEXES:

Annex 1 Assumption Agreement ANNEX 1-1

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GUARANTEE AND COLLATERAL AGREEMENT

GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 24, 2020, and amended on May 22, 2023 (this “Agreement”), is entered into among (i) FREIGHTCAR AMERICA, INC., a Delaware corporation (“HoldingsCompany”), FREIGHTCAR NORTH AMERICA, LLC, a Delaware limited liability company (the “Borrower”), (ii) each other Person signatory hereto as a Grantor (Borrower, Company, and such other Persons, together with any other Person that becomes a Grantor party hereto as provided herein, each a “Grantor”, and collectively, the “Grantors”), and (iii) U.S. BANK NATIONAL ASSOCIATION, as collateral agent (in such capacity and together with its successors and assigns in such capacity, the “Collateral Agent”) for (A) itself, (B) U.S. Bank National Association, as disbursing agent (in such capacity and together with its successors and assigns in such capacity, the “Disbursing Agent”), (C) CO FINANCE LVS VI LLC (the “LC Provider”) and the other financial institutions or entities (collectively, the “Lenders”) from time to time parties to that certain Credit Agreement, dated as of October 13, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified or replaced from time to time, the “Credit Agreement”), among the Borrower, Company, LC Provider, the Lenders, the Disbursing Agent and the Collateral Agent, and (iv) the other Secured Parties (as hereinafter defined).

W I T N E S S E T H:

WHEREAS, Company has previously requested, and LC Provider has obtained, a standby letter of credit (the “Credit”) for the account of the Company and for the benefit of Siena Lending Group LLC (the “Beneficiary”);

WHEREAS, Company agreed, pursuant to that certain Reimbursement Agreement dated as of July 30, 2021 (the “Original Reimbursement Agreement” as amended and restated on December 30, 2021, the “Amended and Restated Reimbursement Agreement”, and as further amended by Amendment No. 1 to Amended and Restated Reimbursement Agreement dated as of March 23, 2023, and Amendment No. 2 to Amended and Restated Reimbursement Agreement dated as of May 22, 2023, the “Reimbursement Agreement”) to reimburse Disbursing Agent, for the account of LC Provider, in the event of any drawings under the Credit by the Beneficiary, and the obligations of Company under the Reimbursement Agreement in respect of the Credit are Obligations under the Credit Agreement;

WHEREAS, on March 23, 2023, the Company and certain funds affiliated with the LC Provider entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) pursuant to which the purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Credit Agreement other than the Reimbursement Obligations in respect of the Credit (the “Conversion Transaction”);

WHEREAS, in connection with the Conversion Transaction, the parties intend to terminate the Credit Agreement and amend the Reimbursement Agreement to reflect the company’s continuing obligations to LC Provider in respect of the Credit, which obligations shall continue to be secured by the Collateral; and

WHEREAS, the Company is a member of an affiliated group of companies that includes each other Grantor;

WHEREAS, the Credit has been and will be used in part to enable the Borrower to obtain extensions of credit under the Revolving Loan Agreement and to make valuable transfers to one or more of the other Grantors in connection with the operation of their respective businesses;

WHEREAS, the Company and the other Grantors are engaged in related businesses, and each Grantor has derived substantial direct and indirect benefit from the Credit; and

WHEREAS, to effectuate the foregoing, the parties desire to amend this Agreement to reflect the continuing security interest of the Collateral Agent in the Collateral to secure the Company’s Reimbursement Obligations.

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NOW, THEREFORE, in consideration of the premises and to induce the Collateral Agent, the Disbursing Agent and the LC Provider to enter into the Reimbursement Agreement and to induce the LC Provider to continue to make the Credit available to the Company and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

SECTION 1. DEFINED TERMS

(b) The following terms shall have the following meanings:

“After-Acquired Intellectual Property” shall have the meaning set forth in Section 5.10(c).

“Agreement” shall mean this Guarantee and Collateral Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Amendment Effective Date” means May 22, 2023.

“Bankruptcy Proceeding” shall mean (a) any case, action or proceeding before any court or Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other similar arrangement in respect of a Person’s creditors generally or any substantial portion of its creditors undertaken under any Debtor Relief Law.

“Collateral” shall have the meaning set forth in Section 3.

“Collateral Account” shall mean any collateral account established by the Collateral Agent as provided in Section 6.1 or 6.3.

Commodity Exchange Act

“Copyright Licenses” shall mean all agreements, licenses and covenants providing for the grant to or from a Grantor of any right in or to any Copyright or otherwise providing for a covenant not to sue for infringement or other violation of any Copyright (including, without limitation, those listed on Schedule 8).

“Copyrights” shall mean, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all works of authorship and all intellectual property rights therein, all United States and foreign copyrights (whether or not the underlying works of authorship have been published), including but not limited to copyrights in software and databases, all designs (including but not limited to all industrial designs, “Protected Designs” within the meaning of 17 U.S.C. 1301 et. Seq. and Community designs), and all “Mask Works” (as defined in 17 U.S.C.

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901 of the U.S. Copyright Act), whether registered or unregistered, and with respect to any and all of the foregoing: (i) all registrations and applications for registration thereof including, without limitation, the registrations and applications listed on Schedule 8, (ii) all extensions, renewals, and restorations thereof, (iii) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (v) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

“Credit Agreement” shall have the meaning set forth in the preamble hereto. “Deposit Account” shall mean all “deposit accounts” as defined in Article 9 of the

UCC and all other accounts maintained with any financial institution (other than Securities Accounts or Commodity Accounts), and shall include, without limitation, all of the accounts listed on Schedule 2 hereto under the heading “Deposit Accounts” together, in each case, with all funds held therein and all certificates or instruments representing any of the foregoing.

“Discharge of the Secured Obligations” shall mean and shall have occurred when

(i) all Secured Obligations shall have been paid in full in cash and all other obligations under the Loan Documents shall have been performed (other than (a) those expressly stated to survive termination and (b) contingent obligations as to which no claim has been asserted) and (ii) all Commitments shall have terminated or expired.

“Equity Interests” (i) shall mean, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or non-voting), of the equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), if such Person is a limited liability company, membership interests, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such Person, whether outstanding on the date hereof or issued on or after the date hereof and (ii) shall include, without limitation, all Pledged Stock, Pledged Partnership Interests and Pledged LLC Interests.

“Excluded Account” shall mean (a) a Deposit Account exclusively used for trust, payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees, (b) a Deposit Account used solely as a zero balance account, (c) escrow, trust, fiduciary or similar Deposit Account exclusively holding funds or property for the benefit of third parties, and (d) any Deposit Account that, as of any applicable date of determination, has not had a balance at any time in the preceding thirty

(30) days in excess of $100,000.

“Foreign Security Documents” shall mean the collective reference to the security agreements, debentures, pledge agreements, charges and other similar documents and agreements pursuant to which any Grantor purports to pledge or grant a security interest in any property or assets located outside of the United States (including any Pledged Equity Interests of any Issuer organized under a jurisdiction other than the United States or any state or locality thereof securing the Secured Obligations).

“General Intangibles” shall mean all “general intangibles” as such term is defined in Section 9-102(a)(42) of the UCC and, in any event, shall include, without limitation, with respect to any Grantor, all rights of such Grantor to receive any tax refunds, all Swap Contracts, contracts, agreements, instruments and indentures and all licenses, permits, concessions, franchises and authorizations issued by Governmental Authorities in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented, replaced or otherwise modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) all rights of such Grantor to damages arising thereunder, and (iv) all rights of such Grantor to terminate and to perform, compel performance and to exercise all remedies thereunder.

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“Guarantors” shall mean the collective reference to each Grantor and, for the avoidance of doubt, shall include the Company.

“Insurance” shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any key man life insurance policies.

“Intellectual Property” shall mean, with respect to any Grantor, the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets and Trade Secret Licenses, and all rights to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation or impairment thereof, including the right to receive all Proceeds therefrom, including without limitation license fees, royalties, income payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.

“Intellectual Property Security Agreements” shall mean, collectively, the Copyright Security Agreement substantially the form of Exhibit C-1, the Patent Security Agreement substantially in the form of Exhibit C-2, and the Trademark Security Agreement substantially in the form of Exhibit C-3.

“Intercompany Note” shall mean any promissory note evidencing loans made by any Grantor to the Company, the Borrower or any of their Subsidiaries, including, without limitation, the Subordinated Intercompany Note.

“Investment Property” shall mean the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the UCC including, without limitation, all Certificated Securities and Uncertificated Securities, all Security Entitlements, all Securities Accounts, all Commodity Contracts and all Commodity Accounts (other than any Excluded Assets), (ii) all security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such book-entry securities, and (iii) whether or not constituting “investment property” as so defined, all Pledged Notes, all Pledged Equity Interests, all Pledged Security Entitlements and all Pledged Commodity Contracts.

“Issuers” shall mean the collective reference to each issuer of Pledged Equity Interests.

“Material Intellectual Property” shall mean any Intellectual Property included in the Collateral that is material to the business of any Grantor or is otherwise of material value.

“Mexican Grantors” means FCA-Fasemex, S. de R.L. de C.V., FCA-Fasemex Enterprise, S. de R.L. de C.V. and any other Grantor incorporated under the laws of the United Mexican States.

“Mexican Security Documents” means (i) the Equity Quota Pledge Agreement (Contrato de Prenda sobre Partes Sociales) executed by and between FreightCar North America, LLC and FCA-Fasemex, LLC, as pledgors, the Collateral Agent, as pledgee and the Mexican Grantors as issuers with respect to the equity quotas (partes sociales) representing all of the equity of the Mexican Grantors and (ii) the Non-Possessory Pledge Agreement (Contrato de Prenda sin Transmisión de Posesión) executed by the Mexican Grantors, as pledgors, and the Collateral Agent, as pledgee, with respect to all current and future personal property of the Mexican Grantors.

“Obligations” shall mean all “Reimbursement Obligations” (as defined in the Reimbursement Agreement) including, without limitation, those arising under Section 2.

“Obligee Guarantor” shall have the meaning set forth in Section 2.6.

“Patent Licenses” shall mean all agreements, licenses and covenants providing for the grant to or from a Grantor of any right in or to any Patent or otherwise providing for a covenant not to sue for infringement or other violation of any Patent (including, without limitation, those listed on Schedule 8).

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“Patents” shall mean, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all patentable inventions and designs, all United States, foreign, and multinational patents, certificates of invention, and similar industrial property rights, and applications for any of the foregoing, including, without limitation, (i) each patent and patent application listed on Schedule 8, (ii) all reissues, substitutes, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, (iii) all inventions and improvements described and claimed therein, (iv) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, proceeds of suit and other payments now or hereafter due and/or payable with respect thereto, and (vi) all other rights accruing thereunder or pertaining thereto throughout the world.

“Pledged Commodity Contracts” shall mean all Commodity Contracts listed on Schedule 2 and all other Commodity Contracts to which any Grantor is party from time to time.

“Pledged Debt Securities” shall mean all debt securities now owned or hereafter acquired by any Grantor, including, without limitation, the debt securities listed on Schedule 2, together with any other certificates, options, rights or security entitlements of any nature whatsoever in respect of the debt securities of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect.

“Pledged Equity Interests” shall mean all Equity Interests, and shall include Pledged LLC Interests, Pledged Partnership Interests and Pledged Stock; provided, however, that in no event shall “Pledged Equity Interests” include any Excluded Assets.

“Pledged LLC Interests” shall mean all membership interests and other interests now owned or hereafter acquired by any Grantor in any limited liability company including, without limitation, all limited liability company interests listed on Schedule 2 hereto under the heading “Pledged LLC Interests” and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and any securities entitlements relating thereto and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and any other warrant, right or option or other agreement to acquire any of the foregoing, all management rights, all voting rights, any interest in any capital account of a member in such limited liability company, all rights as and to become a member of the limited liability company, all rights of the Grantor under any shareholder or voting trust agreement or similar agreement in respect of such limited liability company, all of the Grantor’s right, title and interest as a member to any and all assets or properties of such limited liability company, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing; provided, however, that Pledged LLC Interests shall not include any Excluded Assets.

“Pledged Notes” shall mean all promissory notes now owned or hereafter acquired by any Grantor including, without limitation, those listed on Schedule 2 and all the Intercompany Notes.

“Pledged Partnership Interests” shall mean all partnership interests and other interests now owned or hereafter acquired by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 2 hereto under the heading “Pledged Partnership Interests” and the certificates, if any, representing such partnership interests, and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other warrant, right or option to acquire any of the foregoing, all management rights, all voting rights, any interest in any capital account of a partner in such partnership, all rights as and to become a partner of such partnership, all of the Grantor’s rights, title and interest as a partner to any and all assets or properties of such partnership, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing; provided, however, that Pledged Partnership Interests shall not include any Excluded Assets.

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“Pledged Securities” shall mean the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Equity Interests regardless of whether constituting Securities under the UCC.

“Pledged Security Entitlements” shall mean all security entitlements with respect to the financial assets listed on Schedule 2 and all other security entitlements of any Grantor.

“Pledged Stock” shall mean all shares of capital stock now owned or hereafter acquired by such Grantor, including, without limitation, all shares of capital stock described on Schedule 2 hereto under the heading “Pledged Stock”, and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares and any other warrant, right or option to acquire any of the foregoing; provided, however, that Pledged Stock shall not include any Excluded Assets.

“Preferred Documents” means the Securities Purchase Agreement and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Loan Party in connection therewith.

“Proceeds” shall mean all “proceeds” as such term is defined in Section 9- 102(a)(64) of the UCC and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections thereon and distributions or payments with respect thereto.

“Receivable” shall mean all Accounts and any other right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance. References herein to Receivables shall include any Supporting Obligation or collateral securing such Receivable.

“Reimbursement Obligations” shall have the meaning set forth in the Reimbursement Agreement.

“Secured Obligations” shall mean (i) the Obligations, (ii) each guarantee of the Obligations and (iii) whether or not constituting Obligations, any unpaid draw on the Credit and interest thereon (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any other Grantor, whether or not a claim for post- filing or post-petition interest is allowed in such proceeding) and all other obligations and liabilities of the Company or any other Grantor to any Agent or LC Provider which may arise under or in connection with any Loan Document.

“Secured Parties” shall mean collectively, the Collateral Agent, the Disbursing Agent, the LC Provider, each Indemnitee pursuant to Section 4(a) of the Reimbursement Agreement and each co-agent or sub-agent appointed by the Collateral Agent or the Disbursing Agent, as applicable, from time to time pursuant to the Reimbursement Agreement.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Trademark Licenses” shall mean all agreements, licenses and covenants providing for the grant to or from a Grantor of any right in or to any Trademark or otherwise providing for a covenant not to sue for infringement, dilution, or other violation of any Trademark or permitting co-existence with respect to a Trademark (including, without limitation, those listed on Schedule 8).

“Trademarks” shall mean, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all domestic, foreign and multinational trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, trade styles, logos, Internet domain names, other indicia of origin or source identification, and general intangibles of a like nature, whether registered or unregistered, and, with respect to any and all of the foregoing, (i) all registrations and applications for registration thereof including, without limitation, the registrations and applications listed on Schedule 8, (ii) all extensions and renewals thereof, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) all rights to sue or otherwise recover for any past, present and future infringement, dilution, or other violation thereof, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, proceeds of suit and other payments now or hereafter due and/or payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

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“Trade Secret Licenses” shall mean all agreements, licenses and covenants providing for the grant to or from a Grantor of any right in or to any Trade Secret or otherwise providing for a covenant not to sue for misappropriation or other violation of a Trade Secret.

“Trade Secrets” shall mean, with respect to any Grantor, all of such Grantor’s right, title and interest in and to (i) all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information, and with respect to any and all of the foregoing (i) all rights to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, proceeds of suit and other payments now or hereafter due and/or payable with respect thereto, and (iii) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.

“Uniform Electronic Transactions ActUETA” shall have the meaning set forth in Section 4.3.

“Vehicles” shall mean all cars, trucks, trailers, construction and earth moving equipment and other Equipment of any nature covered by a certificate of title law of any jurisdiction and includes, without limitation, the vehicles (limited, in the case of rail cars, to rail cars owned by any Grantor that are leased, or intended to be leased, to third parties) listed on Schedule 9, and all tires and other appurtenances to any of the foregoing.

“Voidable Transfer” shall have the meaning set forth in Section 2.10.

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SECTION 2. GUARANTEE

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(b) Each Guarantor agrees that Secured Obligations may at any time and from time to time be incurred or permitted in an amount exceeding the maximum liability of such Guarantor under Section 2.2(a) without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of any Secured Party hereunder.

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2850, 2855, 2899 and 3433; and

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Until a Discharge of the Secured Obligations, no Guarantor shall, without the prior written consent of the Collateral Agent, commence or join with any other person in commencing any Bankruptcy Proceeding of or against the Company or any other Guarantor. The obligations of the Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or Bankruptcy Proceeding, voluntary or involuntary, involving the Company or any other Guarantor or by any defense which the Company or any other Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.

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To the fullest extent permitted by applicable law, the Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay the Collateral Agent, or allow the claim of the Collateral Agent in respect of, any interest, fees, costs, expenses or other Secured Obligations accruing or arising after the date on which such case or proceeding is commenced.

SECTION 3. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL

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Notwithstanding anything to the contrary in this Agreement: (1) the Collateral shall not include, and no Grantor is pledging, nor granting a Lien on or security interest hereunder, in any Excluded Assets or Excluded Accounts and (2) the Collateral shall not include any assets located in the United Mexican States owned by the Mexican Grantors or the equity quotas (partes sociales) of the Mexican Guarantors to the extent pledged under the Mexican Security Documents.

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SECTION 4. REPRESENTATIONS AND WARRANTIES

To induce the Collateral Agent, the Disbursing Agent and the LC Provider to enter into the Reimbursement Agreement and to induce the LC Provider to make the Credit available to the Company, each Grantor hereby represents and warrants to the Secured Parties on the Amendment Effective Date, that:

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Such Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of formation or organization), jurisdiction of organization, organizational identification number, if any, and the location of such Grantor’s chief executive office or sole place of business are specified on Schedule 4. Each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. Except as otherwise indicated on Schedule 4, the jurisdiction of each such Grantor’s organization of formation is required to maintain a public record showing the Grantor to have been organized or formed. Except as specified on Schedule 4, it has not changed its name, jurisdiction of organization, chief executive office or sole place of business (if applicable) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past five years and has not within the last five years become bound (whether as a result of merger or otherwise) as Grantor under a security agreement entered into by another Person, which has not heretofore been terminated. Unless otherwise stated on Schedule 4, such Grantor is not a transmitting utility as defined in UCC § 9-102(a)(80).

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Schedule 2 hereto sets forth under the heading “Pledged Debt Securities” or “Pledged Notes” all of the Pledged Debt Securities and Pledged Notes owned by any Grantor, and all of such Pledged Debt Securities and Pledged Notes, have been, in the case of those issued by Affiliates of such Grantor, or, in the case of those issued by Persons that are not Affiliates of such Grantor, to the knowledge of such Grantor have been, duly authorized, authenticated, issued, and delivered and are the legal, valid and binding obligation of the issuers thereof enforceable in accordance with their terms and are not in default and, in the case of those issued by Affiliates of such Grantor, constitute all of the issued and outstanding inter-company indebtedness owed by such Affiliates to such Grantor evidenced by an instrument or certificated security of the respective issuers thereof. Schedule 2 hereto sets forth under the headings “Securities Accounts,” “Commodities Accounts,” and “Deposit Accounts,” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts (other than Excluded Accounts) in which each Grantor has an interest. Each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto.

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SECTION 5. COVENANTS

Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this Agreement until the Discharge of the Secured Obligations:

(i) Certificated Security or (ii) Instrument, Negotiable Document or Tangible Chattel Paper, in each case under this clause (ii) with an individual value in excess of $500,000 or an aggregate value in excess of $1,000,000, such Instrument (other than checks received in the ordinary course of business), Certificated Security, Negotiable Document or Tangible Chattel Paper shall be immediately delivered to the Collateral Agent, duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement.

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If any of the Collateral with a value in excess of $500,000 is or shall become Electronic Chattel Paper, such Grantor shall use commercially reasonable efforts to ensure that (i) a single authoritative copy exists which is unique, identifiable and unalterable (except as provided in clauses (iii), (iv) and (v) of this paragraph), (ii) such authoritative copy identifies the Collateral Agent as the assignee and is communicated to and maintained by the Collateral Agent or its designee, (iii) copies or revisions that add or change the assignee of the authoritative copy can only be made with the participation of the Collateral Agent, (iv) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy and not the authoritative copy and (v) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.

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Such Grantor will not, except upon ten (10) days’ prior written notice (or such earlier day as shall be agreed by the LC Provider) to the Collateral Agent and the LC Provider and delivery to the Collateral Agent of duly authorized and, where required, executed copies of (a) all additional financing statements and other documents necessary, or reasonably requested by the Collateral Agent or the LC Provider, to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 5 showing any additional location at which Inventory or Equipment (other than mobile goods) shall be kept:

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(b) Such Grantor will deliver to the Collateral Agent and the LC Provider a copy of each material written demand, notice or document received by it that questions or calls into doubt the validity or enforceability of more than 10% of the aggregate amount of the then outstanding Receivables.

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(f) Such Grantor shall promptly notify the Collateral Agent and the LC Provider if it knows or has reason to know that any item of Material Intellectual Property may become (i) abandoned or dedicated to the public or placed in the public domain, (ii) invalid or unenforceable, (iii) subject to any adverse determination or development regarding such Grantor’s ownership, registration or use or the validity or enforceability of such item of Material Intellectual Property (including the institution of, or any adverse development with respect to, any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court) or (iv) the subject of any reversion or termination rights.

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(b) With respect to any Vehicles with an individual book value of at least $200,000 and an aggregate book value of $350,000 or greater acquired by such Grantor subsequent to the date hereof, upon request by the Collateral Agent, within thirty (30) days after the date of acquisition thereof, all applications for certificates of title or ownership indicating the Collateral Agent’s first priority security interest in the Vehicle covered by such certificate, and any other necessary documentation, shall be filed in each office in each jurisdiction which is necessary to perfect the Collateral Agent’s security interests in the Vehicles, in each case, excluding Excluded Assets.

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SECTION 6. REMEDIAL PROVISIONS

(b) The Collateral Agent may at any time notify, or require any Grantor to so notify, the Account Debtor or counterparty on any Receivable of the security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent, acting at the instruction of the LC Provider, may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the Account Debtor or counterparty to make all payments under the Receivable directly to the Collateral Agent.

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First, to the Collateral Agent and the Disbursing Agent to pay incurred and unpaid fees, expenses (including, but not limited to, the fees and expenses of its counsel) and indemnities under the Loan Documents;

Second, to the Disbursing Agent in respect of the Secured Obligations then due and owing and remaining unpaid for application by the Disbursing Agent in accordance with the terms of the Reimbursement Agreement;

Third, to the Disbursing Agent in respect of all Secured Obligations (other than those under clause Second above) for prepayment of such Secured Obligations in accordance with the terms of the Reimbursement Agreement;

Fourth, any balance of such Proceeds remaining after a Discharge of the Secured Obligations shall be paid over to the Company or to whomsoever may be lawfully entitled to receive the same and any Collateral remaining after a Discharge of Secured Obligations shall be returned to the applicable Grantor or to whomsoever may be lawfully entitled to receive the same.

Any Proceeds not applied shall be held by the Collateral Agent as Collateral for the benefit of the Secured Parties.

In addition, with respect to any proceeds of Insurance received by the Collateral Agent, (x) if no Event of Default shall have occurred and be continuing, (i) such Insurance Proceeds shall be returned to the Grantors (y) if an Event of Default shall have occurred and be continuing, then such Insurance Proceeds shall be applied in accordance with this Section 6.4.

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SECTION 7. POWER OF ATTORNEY AND FURTHER ASSURANCES

(a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:

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Anything in this Section 7.1(a) to the contrary notwithstanding, the Collateral Agent agrees that, except as provided in Section 7.1(b), it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing.

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SECTION 8. THE COLLATERAL AGENT

(b) The Collateral Agent has been appointed to act as Collateral Agent hereunder by the LC Provider and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Reimbursement Agreement. The provisions of the Reimbursement Agreement relating to the Collateral Agent, including without limitation, the provisions relating to resignation or removal of the Collateral Agent and the rights, protections, powers, indemnities and duties and immunities of the Collateral Agent, are incorporated herein by this reference and shall survive any termination of the Reimbursement Agreement or this Agreement or, as to any Person serving as Collateral Agent hereunder, the earlier resignation or removal of such person as Collateral Agent hereunder.

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44

The Collateral Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Security Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Article 8 shall apply to any such sub-agent and to any of the Affiliates of the Collateral Agent and any such sub- agents, and shall apply to their respective activities as if such sub-agent and Affiliates were named herein in connection with the transactions contemplated hereby and by the Security Documents. The Collateral Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that the Collateral Agent acted with gross negligence or willful misconduct in the selection of such sub-agents as determined by a court of competent jurisdiction in a final and non-appealable judgment. Notwithstanding anything herein to the contrary, each sub-agent appointed by the Collateral Agent or Affiliate of the Collateral Agent or Affiliate of any such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of the Loan Parties and the Secured Parties, and such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent or Affiliate acting in such capacity.

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SECTION 9. MISCELLANEOUS

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S. Wacker Drive, Suite 1500, Chicago, Illinois 60606, as its agent for service of process in any matter related to this Agreement or the other Loan Documents and shall provide written evidence of acceptance of such appointment by such agent on or before the Closing Date. Furthermore, each Mexican Grantor undertakes to grant an irrevocable power of attorney in favor of the aforementioned agent for service of process for lawsuits and collections in connection with Article 2554 of the Federal Civil Code and similar provisions of the civil codes of the different states of the United Mexican States and to deliver to the Collateral Agent a certified copy of the public deed containing such power of attorney, duly notarized before a Mexican Notary Public. The power of attorney shall be irrevocable since it is granted in order to comply with an obligation and as a condition in a bilateral agreement;

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[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.

GRANTORS: FREIGHTCAR NORTH AMERICA, LLC

By:

Name:

Title:

FREIGHTCAR AMERICA, INC.

By:

Name:

Title:

JAC OPERATIONS, INC.

By:

Name:

Title:

FREIGHT CAR SERVICES, INC.

By:

Name:

Title:

JAIX LEASING COMPANY

By:

Name:

Title:

[Signature Page to Guarantee and Collateral Agreement]

FREIGHTCAR SHORT LINE, INC.

By:

Name:

Title:

JOHNSTOWN AMERICA, LLC

By:

Name:

Title:

FREIGHTCAR ALABAMA, LLC

By:

Name:

Title:

FREIGHTCAR RAIL SERVICES, LLC

By:

Name:

Title:

FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC

By:

Name:

Title:

FCA-FASEMEX, LLC

By:

Name:

Title:

[Signature Page to Guarantee and Collateral Agreement]

FCA-FASEMEX, S. DE R.L., DE C.V.

By:

Name:

Title:

FCA-FASEMEX ENTERPRISE, S. DE R.L., DE C.V.

By:

Name:

Title:

[Signature Page to Guarantee and Collateral Agreement]

[Signature Page to Guarantee and Collateral Agreement]

[Signature Page to Guarantee and Collateral Agreement]

COLLATERAL AGENT: U.S. BANK NATIONAL ASSOCIATION,

solely in its capacity .as Collateral Agent and not in its individual capacity

[Signature Page to Guarantee and Collateral Agreement]

[Signature Page to Guarantee and Collateral Agreement]

[UPDATED SCHEDULES TO BE INSERTED]

Control AgreementGrantorCollateral AgentIssuer

Pledged SecuritiesCollateralGuarantee and Collateral Agreement GOVERNING LAW AND JURISDICTION.

UCC

Notice of Security Interest

Collateral

Schedule 1

Control

Other Agreements

Protection of Issuer

Termination

Notices

Amendments in Writing

Entire Agreement

Execution in Counterparts

Successors and Assigns

provided

Severability

Section Headings

Submission to Jurisdiction; Waivers

WAIVER OF JURY TRIAL

AgreementGrantorGrantorsCollateral Agent

BorrowerHoldingsLendersCredit Agreement

Guarantee and Collateral Agreement

Copyright Collateral

Schedule ACopyrights

Schedule A

COPYRIGHT REGISTRATIONS

COPYRIGHT APPLICATIONS

EXCLUSIVE COPYRIGHT LICENSES

AgreementGrantorGrantorsCollateral Agent

BorrowerHoldingsLendersCredit Agreement

Guarantee and Collateral Agreement

Patent Collateral

Schedule APatents

Schedule A

PATENTS AND PATENT APPLICATIONS

PATENT LICENSES

AgreementGrantorGrantorsCollateral Agent

BorrowerHoldingsLendersCredit Agreement

Guarantee and Collateral Agreement

Trademark Collateral

Schedule ATrademarks

Schedule A

TRADEMARK REGISTRATIONS AND APPLICATIONS

TRADEMARK LICENSES

Annex 1 to Guarantee and Collateral Agreement

ASSUMPTION AGREEMENT, dated as of , , made by , a [corporation][limited liability company][other entity type] (the “Additional Grantor”), in favor of [U.S. BANK NATIONAL ASSOCIATION], as Collateral Agent (in such capacity, the “Collateral Agent”) for (i) the financial institution (the “LendersLC Provider”) parties to the Reimbursement Agreement referred to below, and (ii) the other Secured Parties (as defined in the Guarantee and Collateral Agreement (as hereinafter defined)). All capitalized terms not defined herein shall have the meaning ascribed to them in such Reimbursement Agreement.

W I T N E S S E T H:

WHEREAS, FREIGHTCAR NORTH AMERICA, LLC, a Delaware limited liability company (the “Borrower”), FREIGHTCAR AMERICA, INC., a Delaware corporation (“HoldingsCompany”), CO FINANCE LVS VI LLC (“LC Provider”) and the several other financial institutions or entities from time to time parties hereto (the “Lenders”) and U.S. Bank National Association, as disbursing agent for the Lenders and as collateral agent for the Secured Parties, have entered into a Credit Agreement, dated as of October 13, 2020 (as amended, supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”);

WHEREAS, the Company had Reimbursement Obligations owing to the LC Provider under the Credit Agreement in connection with a standby letter of credit (the “Letter of Credit Obligations”);

WHEREAS, in connection with the Letter of Credit Obligations, the Company and LC Provider entered into that certain Reimbursement Agreement dated as of July 30, 2021 as amended and restated on December 30, 2021, and as further amended by Amendment No. 1 to Amended and Restated Reimbursement Agreement dated as of March 23, 2023, and Amendment No. 2 to Amended and Restated Reimbursement Agreement dated as of [___], 2023, the “Reimbursement Agreement”), among the Company, LC Provider, Disbursing Agent, and Collateral Agent;

WHEREAS, on March 23, 2023, the Company and certain funds affiliated with LC Provider entered into the Securities Purchase Agreement pursuant to which purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which were used to pay in full in cash all of the outstanding Obligations under the Credit Agreement other than the Letter of Credit Obligations (the “Conversion Transaction”);

WHEREAS, in connection with the Conversion Transaction, the Credit Agreement was terminated, and the Reimbursement Agreement was amended to reflect the obligations of the Company in respect of the Letter of Credit Obligations;

WHEREAS, Company, Borrower and certain of their Affiliates (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated as of November 24, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the Collateral Agent for the benefit of the Secured Parties

under the Credit Agreement, and after the Conversion Transaction, under the Reimbursement Agreement; WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee and Collateral Agreement;

NOW, THEREFORE, IT IS AGREED:

By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 9.14 of the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Guarantor and Grantor thereunder with the same force and effect as if originally named therein as a Guarantor and Grantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Guarantor and Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the information set forth in Schedules 1-11 to the Guarantee and Collateral Agreement. The Additional Grantor hereby represents and warrants that, as to the Additional Grantor and its Collateral, each of the representations and warranties contained in Section 4 of the Guarantee and Collateral Agreement is true and correct on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.

THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.

[ADDITIONAL GRANTOR]

By:

Name:

Title:

Annex 1-A