THIS GUARANTEE
AGREEMENT dated as of September 30, 2008 (this
“Guarantee” ) is entered into by FREIGHTCAR
AMERICA, INC., a Delaware corporation (the
“Guarantor” ), in favor of BANK OF AMERICA,
N.A., 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).
JAIX LEASING
COMPANY, a Delaware corporation (the “Borrower”
), is party to a Credit Agreement dated as of September 30,
2008, by and among the Borrower, the Administrative Agent and the
Lenders (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the “Credit
Agreement” ).
As a condition to
the effectiveness of the Credit Agreement, the Administrative Agent
and the Lenders have required the execution and delivery of this
Guarantee by the Guarantor.
The Borrower is a
wholly-owned subsidiary of the Guarantor, and the Guarantor expects
to derive economic benefits from the extensions of credit and other
financial accommodations from the Administrative Agent and the
Lenders to the Borrower.
In consideration
of the premises and to induce the Administrative Agent and the
Lenders to enter into the Credit Agreement and to induce the
Lenders to extend credit thereunder, 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.
“Borrower” has the meaning specified in the
Recitals.
“Credit
Agreement” has the meaning specified in the
Recitals.
“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 Borrower 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.
(d) This
Guarantee shall remain in full force and effect until the
Satisfaction Time.
(e) No
payment made by the Borrower, the Guarantor, any other guarantor or
any other Person or received or collected by the Administrative
Agent or any Lender from the 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 the 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
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reimbursement
from the 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 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 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 between the Borrower 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
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upon this
Guarantee. The Guarantor waives: (a) diligence, presentment,
protest, demand for payment, notice of default, dishonor,
nonpayment and all other notices whatsoever to or upon the Borrower
or the Guarantor with respect to the Obligations; (b) notice
of the existence, creation or non-payment of all or any of the
Obligations; (c) all diligence in collection, protection of,
or realization upon any Obligations or any guaranty of any
Obligations; and (d) any and all defenses and claims which may
be available to the Borrower, whether or not on account of a
related transaction, against the Administrative Agent or any
Lender, including defense of waiver, release, discharge,
disallowance in bankruptcy,
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