THIS
GUARANTEE AGREEMENT dated as of September 30, 2008 (this
“Guarantee” ) is entered into by JAIX LEASING
COMPANY, a Delaware corporation (the “Guarantor”
), in favor of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as the administrative agent (in such capacity,
the “Administrative Agent” ) for certain
financial institutions (each a “Lender” , and
collectively the “Lenders” ) from time to time
party to the Credit Agreement (defined below).
JOHNSTOWN
AMERICA CORPORATION, a Delaware corporation, FREIGHT CAR SERVICES,
INC., a Delaware corporation, JAC OPERATIONS, INC., a Delaware
corporation, the Guarantor, and FREIGHTCAR ROANOKE, INC., a
Delaware corporation (each a “Co-Borrower” , and
collectively the “Co-Borrowers” ), the Lenders
and the Administrative Agent are parties to a Second Amended and
Restated Credit Agreement dated as of August 24, 2007, by and
among the Co-Borrowers, the Administrative Agent and the Lenders
(as the same may be amended, supplemented, restated or otherwise
modified from time to time, the “Credit
Agreement” ).
The
Co-Borrowers have requested that the Lenders and the Administrative
Agent (i) release the Guarantor from its obligations as a
Co-Borrower under the Credit Agreement and from certain other
obligations it may have under the other Loan Documents (as defined
in the Credit Agreement) and (ii) make certain other
amendments to the Credit Agreement. The Lenders and the
Administrative Agent are willing to grant the Co-Borrowers’
requests subject to the terms and conditions of a First Amendment
to Second Amended and Restated Credit Agreement of even date
herewith by and among the Co-Borrowers, the Administrative Agent
and the Lenders (the “First Amendment”
).
As
a condition to the effectiveness of the First Amendment, the
Administrative Agent and the Lenders have required the execution
and delivery of this Guarantee by the Guarantor.
The
Guarantor is an affiliate of the Co-Borrowers and expects to derive
economic benefits from the extensions of credit and other financial
accommodations from the Administrative Agent and the Lenders to the
Co-Borrowers.
In
consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the First Amendment and to
induce the Lenders to continue to extend credit under the Credit
Agreement, the Guarantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders, as
follows:
1.1
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
1.2
When used herein the following terms shall have the following
meanings:
“Administrative Agent” has the meaning set forth
in the preamble hereto.
“Co-Borrower” has the meaning specified in the
Recitals.
“Credit
Agreement” has the meaning specified in the
Recitals.
“First
Amendment” has the meaning specified in the
Recitals.
“FreightCar America” means FreightCar America,
Inc., a Delaware corporation, the sole owner of the
Guarantor.
“Guarantee” has the meaning set forth in the
preamble hereto.
“Guarantor” has the meaning set forth in the
preamble hereto.
“Lender” has the meaning set forth in the
preamble hereto.
“Obligations” has the meaning specified in the
Credit Agreement.
“Satisfaction Time” means the payment in full in
cash and performance of all Obligations, except for contingent
obligations under any provision of any Loan Document that by its
terms survives termination of such Loan Document.
(a) The
Guarantor hereby, absolutely, unconditionally, and irrevocably, as
a primary obligor and not only a surety, guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and
their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Co-Borrowers
of the Obligations when due (whether at the stated maturity, by
acceleration or otherwise).
(b) Anything
herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of the Guarantor hereunder
and under the other Loan Documents shall in no event exceed the
amount which can be guaranteed by the Guarantor under applicable
federal and state laws relating to the insolvency of
debtors.
(c) The
Guarantor agrees that the Obligations may at any time and from time
to time exceed the amount of the liability of the Guarantor
hereunder without impairing this Guarantee or affecting the rights
and remedies of the Administrative Agent or any Lender
hereunder.
2
(d) This
Guarantee shall remain in full force and effect until the
Satisfaction Time.
(e) No
payment made by any Co-Borrower, the Guarantor, any other guarantor
or any other Person or received or collected by the Administrative
Agent or any Lender from any Co-Borrower, the Guarantor, any other
guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of the Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by the Guarantor in
respect of the Obligations or any payment received or collected
from the Guarantor in respect of the Obligations), remain liable
for the Obligations up to the maximum liability of the Guarantor
hereunder until the Satisfaction Time.
2.2
No Subrogation . Notwithstanding any payment made by the
Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Administrative Agent or any Lender, the Guarantor
shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any Co-Borrower or any
collateral security or guaranty or right of offset held by the
Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek
any contribution or reimbursement from any Co-Borrower in respect
of payments made by the Guarantor hereunder, until the Satisfaction
Time. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time before the Satisfaction Time,
such amount shall be held by the Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds
of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Administrative Agent in the exact
form received by the Guarantor (duly indorsed by the Guarantor to
the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
2.3
Amendments, etc. with respect to the Obligations . The
Guarantor shall remain obligated hereunder without any reservation
of rights against the Guarantor and without notice to or further
assent by the Guarantor notwithstanding that: (a) any demand
for payment of any of the Obligations made by the Administrative
Agent or any Lender may be rescinded by the Administrative Agent or
such Lender and any of the Obligations continued; (b) the
Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guaranty therefor or
right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender; and (c) the First
Amendment, the Credit Agreement, other Loan Documents and any other
documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part,
as the Administrative Agent (or the Required Lenders or all the
Lenders, as the case may be) may deem advisable from time to
time.
The
Administrative Agent or any Lender may, from time to time, at its
sole discretion and without notice to the Guarantor, take any or
all of the following actions: (i) retain or obtain a security
interest in any property of any other Person to secure any of the
Obligations; (ii) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to
3
the
undersigned, with respect to any of the Obligations;
(iii) extend or renew any of the Obligations for one or more
periods (whether or not longer than the original period), alter or
exchange any of the Obligations, or release or compromise any
obligation of any of the undersigned hereunder or any obligation of
any nature of any other obligor with respect to any of the
Obligations; (iv) release any guaranty or right of offset or
its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property
securing any of the Obligations or any obligation hereunder, or
extend or renew for one or more periods (whether or not longer than
the original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such
property; and (v) resort to the undersigned for payment of any
of the Obligations when due, whether or not the Administrative
Agent or any Lender has proceeded against any other obligor
primarily or secondarily obligated with respect to any of the
Obligations.
2.4
Waivers . The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations
and notice or proof of reliance by the Administrative Agent or any
Lender upon this Guarantee or the acceptance hereof. The
Obligations shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended, or waived in
reliance upon this Guarantee. Likewise, all dealings among the
Co-Borrowers and the Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, shall be
conclusively presumed to have been had or consummated in reliance
upon this Guarantee. The Guarantor waives:
(a) diligen
|
