EX-10.1






Exhibit 10.1




FIRST AMENDMENT TO SECOND AMENDED

AND RESTATED CREDIT AGREEMENT




     This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September
30, 2008 (this “Amendment”), is executed by and among JOHNSTOWN AMERICA CORPORATION, a
Delaware corporation, FREIGHT CAR SERVICES, INC., a Delaware corporation, JAC OPERATIONS, INC., a
Delaware corporation, JAIX LEASING COMPANY, a Delaware corporation (“JAIX”), and FREIGHTCAR
ROANOKE, INC., a Delaware corporation (each a “Co-Borrower”, and collectively the
“Co-Borrowers”), the financial institutions parties to the Credit Agreement referred to
below (together with their respective successors and assigns, the “Lenders”) and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders
(in such capacity, the “Administrative Agent”).



R E C I T A L S:




     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 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”). Capitalized words and
phrases used in these Recitals without definition shall have the respective meanings ascribed to
such words and phrases in the Credit Agreement.



     The Co-Borrowers have requested that the Lenders and the Administrative Agent (i) release JAIX
from its obligations as a Co-Borrower under the Credit Agreement and from certain other obligations
it may have under the other Loan Documents 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 this Amendment.



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:



     1. Recitals. The foregoing Recitals are hereby made a part of this Amendment.



     2. Definitions. Capitalized words and phrases used herein without definition shall
have the respective meanings ascribed to such words and phrases in the Credit Agreement.




     (a) In addition, Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of Restricted Loan Party and Unrestricted Loan
Party and by adding or amending, as the case may be, the following defined terms:




     Acceptable Purchase Order means a purchase order issued to a
Co-Borrower by a Person that is not an Affiliate of any Loan Party, other than JAIX,
for the sale of railcars by such Co-Borrower to such purchaser in the ordinary
course of business, which purchase order (a) has been fully executed and accepted by
such Co-Borrower and purchaser, (b) constitutes a non-cancellable contract for



 









 







the purchase and sale of the subject railcars and (c) to the extent such
purchase order is issued by JAIX, JAIX or FreightCar America has provided the
Administrative Agent with a fully executed copy of a lease acceptable to the
Administrative Agent for the subject railcars.




     Accrual for Loss Contracts means the liability reflected on the balance
sheet of the Consolidated Group in respect of Loss Contracts.




     Agent Fee Letter means, collectively, (i) the Fee Letter dated as of
May 24, 2007, among the Co-Borrowers and the Administrative Agent, (ii) the Fee
Letter dated as of September 30, 2008, among the Co-Borrowers and the Administrative
Agent and (iii) such other Fee Letters executed from time to time among the
Co-Borrowers and the Administrative Agent setting forth certain fees to be paid by
such Co-Borrowers to the Administrative Agent for the Administrative Agent’s own
account or for the account of the Lenders, as more fully set forth therein.




     Aggregate Revolving Commitment means the Commitments of all Lenders.
The amount of the Aggregate Revolving Commitment in effect as of the First
Amendment Effective Date is $50,000,000.




     Borrowing Base Reserve means the greater of (a) $20,000,000 or (b) as
of any date of determination, such amounts (expressed as either a specified amount
or as a percentage of a specified category or item) as the Required Lenders may,
from time to time, cooperate in good faith to establish (in the exercise of each
such party’s good-faith, reasonable discretion) to adjust the Revolving Loan
Availability (i) to reflect events, conditions, contingencies or risks which, as
determined by the Required Lenders, do or may affect (A) the Collateral or its
value, (B) the assets, business or prospects of the Borrower, or (C) the security
interest and other rights of the Administrative Agent in the Collateral (including
the enforceability, perfection and priority thereof), or (ii) to reflect the
good-faith judgment of the Required Lenders, who shall cooperate in good faith, that
any collateral report or financial information furnished by or on behalf of the
Co-Borrowers to the Administrative Agent is or may have been incomplete, inaccurate
or misleading in any material respect, or (iii) in respect of any state of facts
that the Administrative Agent determines constitutes a Default or an Event of
Default.




     Co-Borrowers means, collectively, Johnstown America Corporation,
Freight Car Services, Inc., JAC Operations, Inc., and FreightCar Roanoke, Inc., and
any future entity that executes and delivers a joinder to this Agreement and the
other Loan Documents.




     Commitment means, as to any Lender, such Lender’s commitment to make
Loans, and to issue or participate in Letters of Credit, under this Agreement. The
amount of each Lender’s commitment to make Loans is set forth on Annex A to
the First Amendment, as such annex may be amended, restated, modified or replaced
from time to time.



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     Consolidated Group means FreightCar America and its consolidated
subsidiaries, including, without limitation, JAIX, each Co-Borrower and each grantor
party to the Guaranty and Collateral Agreement.




     Danville Retooling Capital Expenditures means Capital Expenditures
incurred by the Co-Borrowers in connection with the Co-Borrowers’ retooling project
in Danville, Illinois, which have been approved for inclusion in this category by the
Required Lenders, in an aggregate amount not to exceed $5,000,000.




     EBITDA means, for any period, Consolidated Net Income for such period
plus, to the extent deducted in determining such Consolidated Net Income, (c) net
Interest Expense, (d) depreciation, depletion, and amortization of tangible and
intangible assets, (e) non-cash Organizational Matters, (f) Tax Expense, (g) loss
from discontinued operations, (h) minority interests, (i) extraordinary gains and
losses, (j) other non-cash items, (k) reasonable fees and expenses incurred in
connection with the transactions contemplated by this Agreement and termination of
the Previous Credit Agreement and related documents, (l) the increase or decrease, as
the case may be, in the Accrual for Loss Contracts, and (m) transaction expenses
incurred in connection with the closing of any Permitted Acquisition in an amount
subject to the approval of the Administrative Agent, in each case for such period,
computed and calculated in accordance with GAAP.




     ERP Implementation Capital Expenditures means Capital Expenditures
incurred by the Co-Borrowers in connection with the Co-Borrowers’ ERP project, which
have been approved for inclusion in this category by the Required Lenders, in an
aggregate amount not to exceed $7,000,000.




     First Amendment means the First Amendment to Second Amended and Restated
Credit Agreement dated as of First Amendment Effective Date by and among JAIX, the
Co-Borrowers, the Lenders and the Administrative Agent.




     First Amendment Effective Date means the date of the First Amendment.




     Fixed Charge Coverage Ratio means, with respect to the applicable
Computation Period, the ratio of the Consolidated Group’s (a) EBITDA minus
Cash Taxes minus Unfinanced Capital Expenditures, to (b) Interest Expense
plus Restricted Payments (excluding the 2007 Capital Securities Repurchase)
plus scheduled principal repayments of Debt (including Capital Lease payments
but not including payments on account of the Revolving Loans and not including any
principal payments of JAIX under the JAIX Credit Facility deemed by Bank of America,
N.A., as administrative agent thereunder, to be made from the proceeds of the sale or
refinancing of Railcars, as defined in the JAIX Credit Facility.




     FreightCar Guarantee means any Guarantee Agreement of FreightCar America
made in favor of Bank of America, N.A., as administrative agent for the lenders party
to the JAIX Credit Agreement, guaranteeing payment of all obligations of JAIX
incurred in respect to the JAIX Credit Facility, as amended, restated, supplemented
or otherwise modified from time to time.




     JAIX means JAIX Leasing Company, a Delaware corporation.



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     JAIX Credit Agreement means any Credit Agreement by and among JAIX, Bank
of America, N.A., in its separate capacities as administrative agent and a lender
thereunder, and certain financial institutions from time to time party thereto, as
amended, restated, supplemented or otherwise modified from time to time.




     JAIX Credit Facility means all loans and other financial accommodations
extended pursuant to the JAIX Credit Agreement and related documentation.




     JAIX Guarantee means any Guarantee Agreement of JAIX made in favor of
the Administrative Agent for the Lenders guaranteeing payment of all obligations of
the Co-Borrowers incurred hereunder.




     JAIX Management Agreement means the Management Agreement dated as of
September 30, 2008, by and between JAIX and JAC Operations, Inc., a Delaware
corporation.




     Loan Documents means this Agreement, the Notes, the Letters of Credit,
the Master Letter of Credit Agreement, the L/C Applications, the JAIX Guarantee, the
Agent Fee Letter, the Collateral Documents, the Subordination Agreements and all
documents, instruments and agreements delivered in connection with the foregoing.




     Loss Contracts means any contract for the manufacture and sale of
railcars entered into by and between any Loan Party and a third-party purchaser prior
to May 31, 2008, which, after taking into account all costs to be incurred to
manufacture and deliver such railcars, could reasonably be expected to result in
revenue loss for such Loan Party, and, as a result thereof, a liability is recorded
by the Consolidated Group, in accordance with GAAP.




     Organizational Matters means charges taken in connection with the
closing of the Co-Borrowers’ Johnstown, Pennsylvania facility, including all related
labor termination charges, health and welfare benefits and the like during the 2007
and 2008 Fiscal Years.




     Payroll Deposit Account means a deposit account funded exclusively to
satisfy payroll obligations owing to one or more Loan Parties and the payroll taxes
associated therewith.




     PP&E means the tangible physical assets of the Consolidated Group (other
than any tangible physical assets utilized by Johnstown America Corporation in any
discontinued operations, as determined by the Administrative Agent in its reasonable
discretion), including, but not limited to, all land, improvements, vehicles,
equipment, office furniture and equipment, buildings, leasehold improvements, and
other facilities improvements reflected on the most recent balance sheet of
Consolidated Group.




     Subordinated Debt means any unsecured Debt of any Loan Party which has
subordination terms, covenants, pricing and other terms that have been approved or
accepted in writing by the Required Lenders.



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     Subordination Agreement means an agreement (in form and substance
satisfactory to the Required Lenders) executed and delivered by each holder of
Subordinated Debt in favor of the Administrative Agent, for the benefit of the
Lenders, and approved or accepted in writing by the Required Lenders, pursuant to
which such Person subordinates payment of such Subordinated Debt or other obligations
as therein provided to payment of the Obligations to the extent provided therein and
all amendments and supplements thereto and modifications thereof.




     Swing Line Commitment Amount means $5,000,000, as reduced from time to
time pursuant to Section 6.1, which commitment constitutes a subfacility of
the Aggregate Revolving Commitment of the Swing Line Lender.




     Unfinanced Capital Expenditures means, with respect to the Consolidated
Group, Capital Expenditures minus purchase money debt or similar debt (other than
Loans under this Agreement) incurred to make such Capital Expenditures; provided,
however, the Danville Retooling Capital Expenditures and the ERP Implementation
Capital Expenditures shall be excluded from Unfinanced Capital Expenditures during
the period from the First Amendment Effective Date through December 31, 2009.




     (b) The table in the definition of “Applicable Margin” is hereby deleted and
the following is substituted therefor:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LIBOR	 	Base Rate	 	L/C Fee
	Level	 	Revolving Loan Availability	 	Margin	 	Margin	 	Rate
	IV
	 	Greater than or equal to
$40,000,000

	 	 	1.50	%	 	 	0.25	%	 	 	1.50	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	III
	 	Greater than or equal to
$30,000,000 but less than
$40,000,000

	 	 	1.75	%	 	 	0.25	%	 	 	1.75	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	II
	 	Greater than or equal to
$20,000,000 but less than
$30,000,000

	 	 	2.00	%	 	 	0.50	%	 	 	2.00	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	I
	 	Less than $20,000,000

	 	 	2.25	%	 	 	0.75	%	 	 	2.25	%






	 	 	 	 	 	 	 
	 	 	 	 	Non-Use
	Level	 	Revolving Loan Availability	 	Fee Rate
	III
	 	Greater than or equal to $30,000,000

	 	 	0.25	%
	 	 	 
	 	 	 	 
	II
	 	Greater than or equal to $15,000,000 but less than
$30,000,000

	 	 	0.375	%
	 	 	 
	 	 	 	 
	I
	 	Less than $15,000,000

	 	 	0.50	%







     (c) Clause (g) of the definition of “Eligible Finished Inventory” is
hereby amended in its entirety to read as follows:



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     “(g) Inventory not subject to an Acceptable Purchase Order, to the extent such
Inventory exceeds 10% of the aggregate amount of the Eligible Finished Inventory;
and”




     (d) Clause (f) of the definition of “Eligible Semi-Finished Inventory”
is hereby amended in its entirety to read as follows:




     “(f) railcars being manufactured without Acceptable Purchase Orders, to the
extent such railcars exceed 10% of the of the aggregate amount of the Eligible
Semi-Finished Inventory; and”



     3. Financial Condition. Section 9.4 of the Credit Agreement is hereby amended
in its entirety to read as follows:




“Financial Condition. The audited consolidated financial statements of the
Consolidated Group as at December 31, 2007, copies of each of which have been
delivered to each Lender, were prepared in accordance with GAAP and present fairly
the consolidated financial condition of the Consolidated Group as at such dates and
the results of their operations for the periods then ended.”



     4. Deposit Accounts. A new Section 10.10(a-1) of the Credit Agreement is
hereby added immediately following Section 10.10(a) of the Credit Agreement to read as
follows:




     “(a-1) Notwithstanding Section 10.10(a), the Loan Parties may from time to time
maintain (i) Payroll Deposit Accounts and (ii) other deposit accounts that are not subject
to fully executed control agreements in favor of the Administrative Agent; provided,
however, that the aggregate amount maintained by the Loan Parties in deposit
accounts described in clause (ii) that are not maintained with the Administrative Agent
does not exceed $1,000,000 at any one time. A list of the deposit accounts referred to in
clauses (i) and (ii) of the previous sentence, as of the First Amendment Effective Date, is
set forth on Annex C hereto.




     In addition, unless the Loan Parties receive the written consent of the Administrative
Agent, the Loan Parties further agree that they shall not establish or maintain any Payroll
Deposit Accounts not identified on Annex C hereof.




     The Co-Borrowers further agree to deliver to the Administrative Agent fully executed
control agreements, each in form and substance satisfactory to the Administrative Agent in
its reasonable discretion, for each and every Dominion Account maintained by a Loan
Party that is not maintained with the Administrative Agent on or prior to November 30, 2008,
or such later date as otherwise agreed by the Administrative Agent.”



     5. Debt.




     (a) Section 11.1(c) of the Credit Agreement is hereby amended in its entirety
to read as follows:




“(c) (i) intercompany Debt and any other obligations due and owing from a Loan Party
(other than JAIX) to any other Loan Party (other than JAIX); and (ii) intercompany
Debt and any other obligations due and owing from JAIX to a Loan Party, provided that
any such Debt constitutes unsecured, Subordinated Debt;”



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     (b) Section 11.1 of the Credit Agreement is further revised in the following
manner: (i) the semicolon and word “and” following Section 11.1(g) of the Credit
Agreement are hereby deleted and a semicolon is substituted therefor; (ii) the period
following Section 11.1(h) of the Credit Agreement is hereby deleted and a semicolon
followed is substituted therefor; and (iii) new Sections 11.1(i) and 11.1(j)
of the Credit Agreement are hereby added immediately following Section 11.1(h) of
the Credit Agreement to read as follows:




“(i) Contingent Liabilities arising under the JAIX Guarantee or the FreightCar
Guarantee; and




(j) Debt incurred by JAIX pursuant to the JAIX Credit Agreement, provided that the
principal amount of such Debt does not exceed $85,000,000.”



     6. Liens. Section 11.2 of the Credit Agreement is further revised in the
following manner: (i) the semicolon and word “and” following Section 11.2(i) of the Credit
Agreement are hereby deleted and a semicolon is substituted therefor; (ii) the period following
Section 11.2(j) of the Credit Agreement is hereby deleted and a semicolon followed by the
word “and” is substituted therefor; and (iii) a new Section 11.2(k) of the Credit Agreement
is hereby added immediately following Section 11.2(j) of the Credit Agreement to read as
follows:




“(k) Liens arising under the “Loan Documents” as defined and described in the JAIX
Credit Agreement.”



     7. Transactions with Affiliates. Section 11.6 of the Credit Agreement is
hereby amended in its entirety to read as follows:




“Transactions with Affiliates. Not, and not permit any other Loan Party to,
enter into, or cause, suffer or permit to exist any transaction, arrangement or
contract with any of its other Affiliates (other than the Loan Parties) which
is on terms which are less favorable than are obtainable from any Person which
is not one of its Affiliates except for: (i) JAIX Management Agreement, and
(ii) sales of railcars to JAIX at a sale price equal to at least the fair
market value of such railcar.”



     8. Investments. Section 11.8 of the Credit Agreement is hereby amended by
(A) deleting the word, “and”, and the preceding semicolon at the end of clause (h) and
substituting a semicolon therefor, (B) amending clause (i) in its entirety and (C) adding the
following new clause (j) immediately following clause (i) to read as follows:




     “(i) other Investments not to exceed $10,000,000 in the aggregate outstanding at any
time; and




     (j) Investments by any Loan Party in JAIX not to exceed $10,000,000 in the aggregate
outstanding at any time; provided, however, that none of the following
investments in JAIX, however described, shall be subject to the foregoing $10,000,000
limitation: (i) payment made by any Loan Party under the JAIX Guarantee, (ii) investments by
any Loan Party in JAIX to fund JAIX’s obligation to make deposits from time to time into the
“Reserve Account” as defined and described in the JAIX Credit Agreement, in accordance with
the terms thereof, and (iii) any Loan Party’s extension of



7









 







credit, with respect to, or agreement to accept deferred payment of, up to 50% of the
purchase price of railcars sold to JAIX.”



     9. Fixed Charge Coverage Ratio. Section 11.11 of the Credit Agreement is
hereby amended in its entirety to read as follows:




     11.11 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage Ratio,
as of the last day of any Computation Period, to be less than the ratio set forth opposite
the applicable date below:



	 	 	 
	Computation Period Ending:	 	Minimum Fixed Charge Coverage Ratio
	September 30, 2008

	 	1.10 to 1.00
	 
	 	 
	December 31, 2008 and the last day of
each Computation Period thereafter

	 	1.50 to 1.00






     10. Capital Expenditures. A new Section 11.13 of the Credit Agreement is
hereby added immediately following Section 11.12 of the Credit Agreement to read as
follows:




     “11.13 Capital Expenditures. Not permit the Capital Expenditures to exceed
$10,000,000 in any Fiscal Year; provided, however, for the period commencing
on the First Amendment Effective Date through and including December 31, 2009, calculation
of Capital Expenditures shall not include the Danville Retooling Capital Expenditures or the
ERP Implementation Capital Expenditures.”



     11. Annexes and Exhibits. Annex A and Exhibit B of the Credit
Agreement are hereby deleted and Annex A and Exhibit B, respectively, to this
Amendment are substituted therefor. Annex C to the Credit Agreement is hereby added in the
form of Annex C to this Amendment.



     12. Release of JAIX as a Co-Borrower under the Credit Agreement and as a Grantor under the
Guaranty and Collateral Agreement. JAIX is hereby released as a Co-Borrower under the Credit
Agreement and as a grantor under the Guaranty and Collateral Agreement. In addition, from and
after the effectiveness of this Amendment, (i) all security interests, mortgages, leases, liens,
charges and assignments granted to the Administrative Agent for the benefit of the Lenders pursuant
to the Loan Documents by JAIX, whether or not described in such Loan Documents, are hereby released
and terminated and (ii) JAIX is authorized to file termination statements with respect to such
financing statements and filings described in the foregoing clause (i), together with any “in-lieu”
financing statements necessary or appropriate to be filed to facilitate the filing of such
termination statements.



     13. Release of U.S. Bank National Association as a Lender under the Loan Documents.
U.S. Bank National Association (“U.S. Bank”) is hereby released as a Lender under the
Credit Agreement and the other Loan Documents.



     14. Representations, Warranties And Covenants. To induce Administrative Agent and the
Lenders to enter into this Amendment, the Co-Borrowers hereby certify, represent, warrant and
covenant that:




     (a) Authorization. The Co-Borrowers are duly authorized to execute and deliver
this Amendment and are and will continue to be duly authorized to borrow



8









 







monies under the Loan Documents, as amended hereby, and to perform their obligations
under the Loan Documents, as amended hereby.




     (b) No Conflicts. The execution and delivery of this Amendment and the
performance by the Co-Borrowers of their obligations under the Loan Documents to which such
Co-Borrowers are a party, as amended hereby, do not and will not conflict with any provision
of law or of the articles of incorporation or bylaws of the Co-Borrowers or of any material
agreement binding upon the Co-Borrowers.




     (c) Validity and Binding Effect. Each of the Loan Documents, as amended
hereby, are a legal, valid and binding obligation of the Co-Borrowers a party thereto,
enforceable against the Co-Borrowers a party thereto in accordance with their terms, subject
to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights
generally and to general principles of equity.




     (d) Compliance with Warranties. The representation and warranties set forth in
the applicable Loan Documents, as amended hereby, are true and correct in all material
respects with the same effect as if such representations and warranties had been made on the
date hereof, (except to the extent stated to relate to a specific earlier date, in which
case such representations and warranties are true and correct as of such earlier date).




     (e) No Event of Default. As of the date hereof, no Unmatured Event of Default
or Event of Default under the Loan Documents, as amended hereby, has occurred and is
continuing.



     15. Amendment Fee. On the date hereof, the Co-Borrowers shall pay the Administrative
Agent, for the ratable benefit of each Lender that has executed and delivered this Amendment prior
to 11:00 a.m. (Chicago time) on September 30, 2008 (each, a “Consenting Lender”), a fully
earned, non-refundable fee in an amount equal to 0.20% of the sum of each Consenting Lender’s
Commitment, together with such other fees as more fully set forth in the Agent Fee Letter.



     16. Conditions Precedent. This Amendment shall become effective as of the date above
first written after receipt by the Administrative Agent of the following:




     (a) Amendment. This Amendment duly executed by the parties hereto.




     (b) JAIX Credit Facility. Evidence of the consummation of the JAIX Credit
Facility and copies of all material documents related thereto.




     (c) JAIX Guarantee. The JAIX Guarantee duly executed by JAIX.




     (d) Agent Fee Letter. The Agent Fee Letter dated as of September 30, 2008,
executed by the Co-Borrowers in favor of the Administrative Agent, in form and substance
acceptable to the Administrative Agent.




     (e) Acknowledgement of U.S. Bank. The Acknowledgement of U.S. Bank set forth
at the end of this Amendment, duly executed by U.S. Bank.




     (f) Acknowledgement and Agreement of Guarantors. The Acknowledgement and
Agreement of Guarantors set forth at the end of this Amendment, duly executed by the parties
thereto.



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     (g) Amendment Fee. Payment of the fees described in Section 15.




     (h) Other Documents. Such other documents, certificates and/or opinions of
counsel as the Lenders may request.



     17. General.




     (a) Governing Law; Severability. This Amendment shall be construed in
accordance with and governed by the internal laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State, without regard to conflict of
laws principles. Wherever possible each provision of the Loan Documents and this Amendment
shall be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of the Loan Documents and this Amendment shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions
of the Loan Documents and this Amendment.




     (b) Successors and Assigns. This Amendment shall be binding upon the
Co-Borrowers, the Administrative Agent, the Lenders and their respective successors and
assigns, and shall inure to the benefit of the Co-Borrowers, the Administrative Agent, the
Lenders and their respective successors and assigns.




     (c) Continuing Force and Effect of Loan Documents. Except as specifically
modified or amended by the terms of this Amendment, all other terms and provisions of the
Loan Documents are incorporated by reference herein, and in all respects, shall continue in
full force and effect. Each of the Co-Borrowers, the Administrative Agent, and the Lenders
by execution of this Amendment, hereby reaffirms, assumes and binds themselves to all of the
obligations, duties, rights, covenants, terms and conditions that are contained in the Loan
Documents and all other documents executed in connection therewith, including all
guaranties, as applicable.




     (d) Expenses. The Co-Borrowers shall pay all reasonable out-of-pocket costs
and expenses of the Administrative Agent (including Attorney Costs and Taxes) in connection
with the preparation of this Amendment and other related loan documents.




     (e) Release. The Co-Borrowers, by signing this Amendment, each hereby
absolutely and unconditionally releases and forever discharges the Administrative Agent and
the Lenders, and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former directors, officers, agents and employees of any of the
foregoing, from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under any state or
federal law or otherwise, which any of the Co-Borrowers has had, now has or has made claim
to have against any such person for or by reason of any act, omission, matter, cause or
thing whatsoever arising from the beginning of time to and including the date of this
Amendment, whether such claims, demands and causes of action are matured or unmatured or
known or unknown.




     (f) Counterparts. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall together



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constitute but one and the same Agreement. Receipt of an executed signature page to
this Agreement by facsimile or other electronic transmission shall constitute effective
delivery thereof. Electronic records of executed Loan Documents maintained by the Lenders
shall deemed to be originals.



Signature page follows.




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



	 	 	 	 	 
	 	FREIGHT CAR SERVICES, INC., 

FREIGHTCAR ROANOKE, INC.,

JAC OPERATIONS, INC.,

JAIX LEASING COMPANY and

JOHNSTOWN AMERICA CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	Kevin P. Bagby 	 
	 	 	Title:  	Vice President, Finance, Chief
Financial Officer and Treasurer 	 
	 



(Signature page to First Amendment to Second Amended and Restated Credit Agreement)




 









 








	 	 	 	 	 
	 	LASALLE BANK NATIONAL ASSOCIATION, 

as Administrative Agent, as Issuing Lender and 

as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	David J. Thomas 	 
	 	 	Title:  	Senior Vice President 	 
	 



(Signature page to First Amendment to Second Amended and Restated Credit Agreement)





 









 





	 	 	 	 	 
	 	NATIONAL CITY BUSINESS CREDIT, INC.,

as Collateral Agent and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	Thomas F. Karlov 	 
	 	 	Title:  	Director 	 
	 



(Signature page to First Amendment to Second Amended and Restated Credit Agreement)





 









 





ACKNOWLEDGMENT OF U.S. BANK NATIONAL ASSOCIATION




     U.S. Bank National Association, a national banking association (“U.S. Bank”) hereby
acknowledges receipt of the foregoing First Amendment to Second Amended and Restated Credit
Agreement dated as of September 30, 2008, by and among JOHNSTOWN AMERICA CORPORATION, a Delaware
corporation, FREIGHT CAR SERVICES, INC., a Delaware corporation, JAC OPERATIONS, INC., a Delaware
corporation, JAIX LEASING COMPANY, a Delaware corporation, and FREIGHTCAR ROANOKE, INC., a Delaware
corporation (each a “Co-Borrower”, and collectively the “Co-Borrowers”), various financial
institutions (the “Lenders”) and LaSalle Bank National Association, a national banking association,
as administrative agent (in such capacity, the “Administrative Agent”) (the “First Amendment”).



     U.S. Bank hereby acknowledges and agrees that it shall no longer be a party to the Second
Amended and Restated Credit Agreement dated as of August 24, 2007, by and among the Co-Borrowers,
the Lenders and the Administrative Agent (the “Credit Agreement”) or any other Loan Document (as
defined in the Credit Agreement), and that each and every commitment, obligation and agreement of
U.S. Bank under such documents is hereby terminated and that all outstanding Loans made by U.S.
Bank pursuant to the Credit Agreement, together with all accrued and unpaid interest thereon, shall
be paid to U.S. Bank as of the date hereof. Capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Credit Agreement.



     U.S. Bank further acknowledges that the Administrative Agent may take such actions as are
necessary or appropriate to adjust the Commitments and corresponding percentages of the Lenders to
reflect such Commitments and corresponding percentages set forth in Annex A of the First
Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





(Acknowledgment to First Amendment to Second Amended and Restated Credit Agreement)




 









 





ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS




     Each of the undersigned hereby expressly: (a) consents to the execution of the foregoing
Amendment; (b) acknowledges that the Co-Borrowers’ “Obligations” (as defined in the Credit
Agreement referred to in the foregoing Amendment) includes all of the obligations and liabilities
owing from the Co-Borrowers to the Administrative Agent and the Lenders, including, but not limited
to, the obligations and liabilities of the Co-Borrowers to the Administrative Agent and the Lenders
under and pursuant to the Loan Documents, as the case may be, as amended from time to time, and as
evidenced by the notes delivered in connection therewith, as the same may be modified, extended
and/or replaced from time to time; (c) reaffirms, assumes and binds itself in all respects to all
of the obligations, liabilities, duties, covenants, terms and conditions that are contained in the
Amended and Restated Guaranty and Collateral Agreement dated as of August 24, 2007, by and among
the undersigned and the Co-Borrowers for the benefit of the Administrative Agent (as amended,
restated, supplemented or otherwise modified form time to time, the “Guaranty”);
(d) consents to the terms (including, without limitation, the release set forth in Paragraph
17(e) of the Amendment) and execution thereof; (e) agrees that all such obligations and
liabilities under the Guaranty shall continue in full force and that the execution and delivery of
this Amendment to, and its acceptance by, the Administrative Agent and the Lenders shall not in any
manner whatsoever (i) impair or affect the liability of the undersigned to the Administrative Agent
under the Guaranty, (ii) prejudice, waive, or be construed to impair, affect, prejudice or waive
the rights and abilities of Administrative Agent or the Lenders at law, in equity or by statute,
against the undersigned pursuant to their Guaranty, and/or (iii) release or discharge, nor be
construed to release or discharge, any of the obligations and liabilities owing to the
Administrative Agent and the Lenders by the undersigned under the Guaranty; and (f) represents and
warrants that each of the representation and warranties set forth in the Guaranty are true and
correct in all material respects with the same effect as if such representations and warranties had
been made on the date hereof, (except to the extent stated to relate to a specific earlier date, in
which case such representations and warranties are true and correct as of such earlier date).



	 	 	 	 	 	 	 	 	 
	 	 	FREIGHTCAR AMERICA, INC.,	 	 
	 	 	JAC INTERMEDCO, INC and	 	 
	 	 	JAC PATENT COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kevin P. Bagby	 	 
	 

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






(Acknowledgment to First Amendment to Second Amended and Restated Credit Agreement)




 









 





Annex A to Second Amended and Restated Credit Agreement

Annex A to First Amendment




LENDERS AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	 
	Lender	 	Commitment Amount	 	Pro Rata Share*/
	LaSalle Bank National Association
	 	$	25,000,000	**/	 	 	50.000000000	%
	 
	 	 	 	 	 	 	 	 
	National City Business Credit, Inc.
	 	$	25,000,000	 	 	 	50.000000000	%
	 
	 	 	 	 	 	 	 	 
	TOTALS
	 	$	50,000,000	 	 	 	100	%








 




			
	*/	 	Carry out to nine decimal places.
	 
	**/	 	Includes Swing Line Commitment Amount of $5,000,000.





A-1




 









 





Exhibit B to Second Amended and Restated Credit Agreement

Exhibit B to First Amendment




FORM OF COMPLIANCE CERTIFICATE



To: LaSalle Bank National Association, as Administrative Agent




     Please refer to the Second Amended and Restated Credit Agreement dated as of August 24, 2007
(as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) among JOHNSTOWN AMERICA CORPORATION, a Delaware corporation, FREIGHT CAR SERVICES,
INC., a Delaware corporation, JAC OPERATIONS, INC., a Delaware corporation, and FREIGHTCAR ROANOKE,
INC., a Delaware corporation (each a “Co-Borrower”, and collectively the “Co-Borrowers”), various
financial institutions and LaSalle Bank National Association, as Administrative Agent. Terms used
but not otherwise defined herein are used herein as defined in the Credit Agreement.




	I.	 	     Reports. Enclosed herewith is a copy of the [annual audited/quarterly/monthly]
report of the Co-Borrowers as at                     , ___(the “Computation Date”), which
report fairly presents in all material respects the financial condition and results of
operations (subject to the absence of footnotes and to normal year-end adjustments) of the
Co-Borrowers as of the Computation Date and has been prepared in accordance with GAAP
consistently applied.
	 
	II.	 	     Financial Tests. The Co-Borrowers hereby certify and warrant to you that the
following is a true and correct computation as at the Computation Date of the following ratios
and/or financial restrictions contained in the Credit Agreement:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	A.	 	EBITDA	 	 	 	 
	 	 	 	1.	 	 	Consolidated Net Income	 	$                    

	 

	 	 	2.	 	 	Plus:
	 	net Interest Expense
	 	$                    

	 

	 	 	 	 	 	 	 	depreciation
	 	$                    

	 

	 	 	 	 	 	 	 	depletion
	 	$                    

	 

	 	 	 	 	 	 	 	amortization
	 	$                    

	 

	 	 	 	 	 	 	 	cash and non-cash Organizational Matters
	 	$                    

	 

	 	 	 	 	 	 	 	Tax Expense
	 	$                    

	 

	 	 	 	 	 	 	 	loss/(income) from discontinued
operations
	 	$                    

	 

	 	 	 	 	 	 	 	minority interests/(income)
	 	$                    

	 

	 	 	 	 	 	 	 	extraordinary losses/(gains)
	 	$                    

	 

	 	 	 	 	 	 	 	other non-cash items
	 	$                    

	 

	 	 	 	 	 	 	 	reasonable fees and expenses
	 	$                    

	 

	 	 	 	 	 	 	 	incurred in connection with this
Agreement and the Previous
Agreement and related documents
increase/decrease in Accrual for Loss
Contracts
	 	$                    







B-1 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	fees and expenses
incurred in connection with a
Permitted Acquisition (as approved by the
Administrative Agent)
	 	$                    

	 	 	 	3.	 	 	Total EBITDA	 	$                    

	B.	 	Section 11.11 – Fixed Charge Ratio	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	1.	 	 	EBITDA

(from Item A(3) above)	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	2.	 	 	Plus: rental expense	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	3.	 	 	Minus: Cash Taxes	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	4.	 	 	Minus: Restricted Payments	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	5.	 	 	Sum of B.1 + B.2 - B.3 - B.4	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	6.	 	 	Interest Expense	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	7.	 	 	Plus: Principal Repayments	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	8.	 	 	Plus: rental expense	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	9.	 	 	Sum of B.6 + B.7 + B.8	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	10.	 	 	Fixed Charge Coverage Ratio: B.5 ÷ B.9	 	____ to 1.00

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	11.	 	 	Minimum required	 	 	 	As of 9/30/08, 1.10 to 1.00;

as of 12/31/08 and the last

day of each Computation

Period thereafter, 1.50 to 1.00

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	C.	 	Section 11.13 – Capital Expenditures	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	1.	 	Capital Expenditures	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	Minus: Danville Retooling Capital Expenditures	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	3.	 	Minus: ERP Implementation Capital Expenditures	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4.	 	Capital Expenditures:

Sum of C.1 + C.2 + C.3	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5.	 	Maximum allowed	 	 	 	$
10,000,000           






B-2 









 





     The Co-Borrowers further certify to you that no Event of Default or Unmatured Event of Default
has occurred and is continuing.



     The Co-Borrowers have caused this Certificate to be executed and delivered by their duly
authorized officer on                     , ___.



	 	 	 	 	 	 	 	 	 
	 	 	FREIGHT CAR SERVICES, INC.,	 	 
	 	 	FREIGHTCAR ROANOKE, INC.,	 	 
	 	 	JAC OPERATIONS, INC. and	 	 
	 	 	JOHNSTOWN AMERICA CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





B-3




 









 





Annex C to Second Amended and Restated Credit Agreement

Annex C to First Amendment




DEPOSITORY BANKS OF THE CO-BORROWERS 




	 	 	 	 	 	 	 	 	 
	Account	 	Account	 	 	 	 	 	 
	Name	 	Type	 	Bank Name	 	Account Number	 	Bank Mailing Address
	Cashier Account
	 	Checking	 	First National Bank	 	148988	 	534 Main St.

	 
	 	 	 	 	 	 	 	Johnstown, PA 15901
	 
	 	 	 	 	 	 	 	 
	Payroll
	 	Checking	 	Ameriserv	 	50797638	 	P.O. Box 520

	 
	 	 	 	Financial, Inc.	 	 	 	216 Franklin Street

	 
	 	 	 	 	 	 	 	Johnstown, PA 15907-0520
	 
	 	 	 	 	 	 	 	 
	FCS-Cashier
	 	Checking	 	Old National Bank	 	101606645	 	2 West Main Street

	 
	 	 	 	 	 	 	 	Danville, IL 61832
	 
	 	 	 	 	 	 	 	 
	Payroll
	 	Checking	 	Old National Bank	 	101706778	 	2 West Main Street

	 
	 	 	 	 	 	 	 	Danville, IL 61832
	 
	 	 	 	 	 	 	 	 
	FCR-Cashier
	 	Checking	 	BB&T	 	5235253971	 	1620 Hershberger Road

	 
	 	 	 	 	 	 	 	Roanoke, VA 24012
	 
	 	 	 	 	 	 	 	 
	JAIX Leasing
	 	Checking	 	Bank of America	 	5800440298	 	Bank of America

	 
	 	 	 	 	 	 	 	Surface Transportation
	 
	 	 	 	 	 	 	 	Division

	 
	 	 	 	 	 	 	 	C135-842

	 
	 	 	 	 	 	 	 	135 S. LaSalle St. Suite 840

	 
	 	 	 	 	 	 	 	Chicago, IL 60603
	 
	 	 	 	 	 	 	 	 
	FreightCar America, Inc.
	 	Investment	 	US Bank	 	190009612300	 	US Bank Institutional Trust
	 
	 	 	 	 	 	 	 	& Custody

	 
	 	 	 	 	 	 	 	136 S. Washington St., 2nd
	 
	 	 	 	 	 	 	 	Floor

	 
	 	 	 	 	 	 	 	Naperville, IL 60540
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	US Bank

	 
	 	 	 	 	 	 	 	209 S. LaSalle St. Suite 410

	 
	 	 	 	 	 	 	 	Chicago, IL 60604
	 
	 	 	 	 	 	 	 	 
	FreightCar America, Inc.
	 	Investment	 	National City Corp.	 	4052100171081	 	Allegiant Asset Management

	 
	 	 	 	 	 	 	 	1 E. Fourth St.

	 
	 	 	 	 	 	 	 	25-C3194

	 
	 	 	 	 	 	 	 	Cincinnati, OH 45202
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	National City Bank

	 
	 	 	 	 	 	 	 	1900 E. Ninth St., 8th Floor

	 
	 	 	 	 	 	 	 	01-2083

	 
	 	 	 	 	 	 	 	Cleveland, OH 44114
	 
	 	 	 	 	 	 	 	 
	FreightCar America, Inc.
	 	Investment	 	Fifth Third Bank	 	7236000076	 	Fifth Third Bank

	 
	 	 	 	 	 	 	 	222 South Riverside Plaza

	 
	 	 	 	 	 	 	 	32nd Floor

	 
	 	 	 	 	 	 	 	Chicago, IL 60606






C-1