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Exhibit 4.5
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WESTINGHOUSE AIR BRAKE COMPANY
Issuer
AND
THE BANK OF NEW YORK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
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Dated as of March 21, 1997
$100,000,000
9 3/8% Senior Notes Due 2005
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FIRST SUPPLEMENTAL INDENTURE (hereinafter, the "First
Supplemental Indenture"), dated as of March 21, 1997, between Westinghouse Air
Brake Company, a Delaware corporation, as Issuer (the "Company") and The Bank
of New York, a New York banking corporation, as Trustee (the "Trustee").
A. The Company has executed and delivered to the Trustee an Indenture
dated as of June 20, 1995 (the "Indenture"), providing for the issuance of
$100,000,000 principal amount of the Company's 9 3/8% Senior Notes due 2005
(the "Senior Notes").
B. The Company desires to amend the Indenture in accordance with
Article 9 thereof as follows, which amendments have been authorized by a
majority of the holders of the outstanding Senior Notes in accordance with
Section 9.2 of the Indenture.
C. The Company has executed and delivered to the Trustee (i)
resolutions by the board of directors of the Company authorizing the execution
of the First Supplemental Indenture and (ii) evidence of receipt by the Company
of the requisite consents of the Senior Note holders pursuant to Section 9.2 of
the Indenture.
D. The Company has executed and delivered to the Trustee (i) an
officers' certificate and (ii) an opinion from the Company's counsel as
conclusive evidence that the First Supplemental Indenture is permitted by the
Indenture, not inconsistent with the Indenture and valid and binding upon the
Company in accordance with its terms pursuant to Section 9.6 if the Indenture.
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In consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Trustee hereby amend the Indenture as follows:
1. Section 4.11(b) is hereby amended by deleting the word "and" at the
end of clause (vi) thereto, deleting "." at the end of clause (vii) thereto,
inserting ";" at the end of clause (vii) thereto, and adding the following new
clauses (viii) and (ix):
(viii) the redemption of up to 4,000,000 shares of Common
Stock from Scandinavian Incentive Holdings, B.V. on or prior
to April 30, 1997 at an aggregate price that, together with
Restricted Payments otherwise permitted under Section
4.11(a), would not exceed $44,000,000; provided, however,
that Restricted Payments made pursuant to this clause (viii)
shall be included in the calculation of Restricted Payments
for all purposes under Section 4.11(a)(3); and
(ix) up to an aggregate amount of $2,000,000 of additional
Restricted Payments from and after the effective date of the
First Supplemental
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Indenture to this Indenture until such time as the Company
has the authority under Section 4.11(a) to make such
Restricted Payments; provided, however, that Restricted
Payments made pursuant to this clause (viii) shall be
included in the calculation of Restricted Payments for all
purposes under Section 4.11(a)(3).
2. For all purposes of this First Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires,
the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture.
3. Except as hereby expressly amended, the Indenture and the Senior
Notes issued thereunder are in all respects ratified and confirmed and all
terms, conditions and provisions thereof shall remain in full force and effect.
4. This First Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Senior Notes theretofore or
hereafter authenticated and delivered shall be bound hereby.
5. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of which when taken together shall constitute one and the same
instrument.
6. This First Supplemental Indenture shall be governed by the laws of
the State of New York, without regard to conflicts of law principles thereof.
7. This First Supplemental Indenture shall become effective upon
execution by the Company and the Trustee in accordance with the terms of the
Indenture; however, the amendments to the Indenture set forth in this First
Supplemental Indenture shall not become operative until the Company has
deposited with the Trustee sufficient immediately available funds to make
payments equal to $15.00 for each $1,000 principal amount of Senior Notes held
by Holders who have delivered to the Trustee prior to 12:00 p.m., New York City
time, on March 19, 1997 valid and unrevoked consents in form and substance
satisfactory to the Company and the Trustee.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date and year first written above.
ISSUER
WESTINGHOUSE AIR BRAKE COMPANY
By:
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Title:
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TRUSTEE
THE BANK OF NEW YORK
By:
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Title:
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