Exhibit 10.3
EXECUTION VERSION
Reimbursement Agreement
This REIMBURSEMENT AGREEMENT (this “Agreement”) is entered into as of July 30, 2021, 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”), (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”), (iii) ALTER DOMUS (US) LLC, as calculation agent for LC Provider (in such capacity and together with its successors and permitted assigns in such capacity, “Calculation Agent”) and (iv) 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 “Lenders”), 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, and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “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, Borrower, the Lenders, Disbursing Agent and Collateral Agent are entering into that certain Amendment No. 3 to Credit Agreement dated as of the date hereof (the Credit Agreement, as amended by Amendment No. 3, the “Amended Credit Agreement”). All capitalized undefined terms used in this Agreement shall have the meanings assigned thereto in the Amended Credit Agreement.
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:
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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.
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LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
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[End of text; signature pages to follow]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.
COMPANY:
FREIGHTCAR AMERICA, INC.
By: /s/ Terence R. Rogers
Name: Terence R. Rogers
Title: Chief Financial Officer and Secretary
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LC PROVIDER:
CO FINANCE LVS VI LLC
By: /s/ Geoff Jones
Name: Geoff Jones
Title: Authorized Person
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DISBURSING AGENT:
U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Disbursing Agent and not in its individual capacity
By: /s/ Crystal Crudup-Burt
Name: Crystal Crudup-Burt
Title: Vice President
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CALCULATION AGENT:
ALTER DOMUS (US) LLC, solely in its capacity as Calculation Agent and not in its individual capacity
By /s/ Winnalyn N. Kantaris
Name: Winnalyn N. Kantaris
Title: Associate General Counsel
Address for Notices:
Alter Domus (US) LLC
225 W. Washington Street, 9th Floor
Chicago, Illinois 60606
Attention: Legal Department and
Rick Ledenbach
Facsimile No. (312) 376-0751
Telephone No. (312) 564-5100
Email: rick.ledenbach@alterdomus.com and legal@alterdomus.com)
With a copy (which does not constitute notice) to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Gregg Bateman
Facsimile No. (212) 480-8421
Telephone No. (212) 574-1436
Email: bateman@sewkis.com
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