FREIGHTCAR AMERICA, INC.
Exhibit 10.25
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
December 29, 2004
To the entities and individuals listed on Schedule A
attached hereto
| Re: | Purchase Agreement dated as of June 3, 1999 among FreightCar America, Inc. (formerly JAC Holdings International, Inc.) (the “Company”) and the Purchasers named therein( as amended, the “Purchase Agreement”) |
Gentlemen:
As you are aware, the Company intends to increase the capitalization of the Company by means of selling shares of its common stock (the “Offering”) and to file a Registration Statement on Form S-1 with the Securities and Exchange Commission in connection with the Offering.
We have been working closely with our independent accountants in connection with the Offering. The independent accountants have requested that the Company and its Subsidiaries reissue their financial statements for the fiscal years ended 1999, 2000, 2001, 2002 and 2003 due to accounting issues related to how the Company and its Subsidiaries recognize revenue which, in the opinion of the independent accountants, is necessary in order to comply with SEC review in connection with the Offering.
In addition, in accordance with Section 16(a) of the Shareholders’ Agreement of the Company dated as of June 3, 1999 (as amended, the “Shareholders’ Agreement”), the Company may elect to issue options to certain directors, officers and/or employees to purchase, in the aggregate, 1,014 shares of the Company’s Class A Voting Stock, $.01 par value per share and 1,014 shares of the Company’s Series A Voting Preferred Stock, $500.00 par value per share, at prices which are less than “fair equivalent value” (the “Options”). The Company issued the Options on December 22, 2004, upon the terms and conditions of (i) the Company’s board approval dated as of December 7, 2004 and (ii) certain Option Agreements dated as of December 22, 2004 entered into between the Company and each of Xxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxxxx, III, Xxxx Xxxxxx, S. Xxxx Xxx, Xxxxx Xxxxx, Xxxx Xxxxx and Xxxxx X. Xxxxx.
The purpose of this letter is to (1) request your consent to such a restatement of the financial statements for the fiscal years referenced above, (2) obtain a waiver of any Events of Default (as defined in the Purchase Agreement) that may have resulted from (i) the restatement of the financial statements for the fiscal years ended 1999, 2000, 2001, 2002 and 2003 and (ii) the granting of the New Options, including, without limitation, due to any breach under Sections 8.02 (Restricted Payments) and 8.06 (Affiliated Transactions) of the Purchase Agreement.
Kindly indicate your consent and waiver to the foregoing by signing in the space indicated below and returning a signed copy of this letter to the attention of Xxxxxxxx Xxxxx at Xxxxx Xxxxxxx LLP via facsimile to (000) 000-0000.
| FREIGHTCAR AMERICA, INC. (formerly JAC Holdings International, Inc.) | ||
| By: |
/s/ Xxxxx X. Xxxxx | |
| Name: |
Xxxxx Xxxxx | |
| Title: |
||
Acknowledged and Agreed
as of this 29th day of December, 2004
| GOLDENTREE HIGH YIELD OPPORTUNITIES I, LP |
GOLDENTREE HIGH YIELD OPPORTUNITIES II, L.P. | |||||||
| By: GoldenTree Asset Management LP as agent |
By: GoldenTree Asset Management LP as agent | |||||||
| By |
/s/ Xxxxxx X. Xxxxxxxx |
By |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: |
Xxxxxx X. Xxxxxxxx |
Name: |
Xxxxxx X. Xxxxxxxx | |||||
| Title: |
Partner |
Title: |
Partner | |||||
| GOLDENTREE HIGH YIELD MASTER FUND, LTD. |
GOLDENTREE HIGH YIELD MASTER FUND II, LTD. | |||||||
| By: GoldenTree Asset Management LP as agent |
By: GoldenTree Asset Management LP as agent | |||||||
| By |
/s/ Xxxxxx X. Xxxxxxxx |
By |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: |
Xxxxxx X. Xxxxxxxx |
Name: |
Xxxxxx X. Xxxxxxxx | |||||
| Title: |
Partner |
Title: |
Partner | |||||
| GOLDENTREE HIGH YIELD VALUE MASTER FUND, L.P. |
SAFETY NATIONAL CASUALTY CORPORATION | |||||||
| By: GoldenTree Asset Management LP as agent |
By: GoldenTree Asset Management LP as agent | |||||||
| By |
/s/ Xxxxxx X. Xxxxxxxx |
By |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: |
Xxxxxx X. Xxxxxxxx |
Name: |
Xxxxxx X. Xxxxxxxx | |||||
| Title: |
Partner |
Title: |
Partner | |||||
| ALPHA U.S. SUBFUND II, LLC |
||||||||
| By: GoldenTree Asset Management LP as agent |
||||||||
| By |
/s/ Xxxxxx X. Xxxxxxxx |
|||||||
| Name: |
Xxxxxx X. Xxxxxxxx |
|||||||
| Title: |
Partner |
|||||||
| DELPHI FINANCIAL GROUP |
TRANSPORTATION INVESTMENT PARTNERS, L.L.C. | |||||||
| By: GoldenTree Asset Management LP as agent |
||||||||
| By |
/s/ Xxxxxx X. Xxxxxxxx |
By: |
/s/ Xxxxxx X. Flyer | |||||
| Name: |
Xxxxxx X. Xxxxxxxx |
Name: |
Xxxxxx X. Flyer | |||||
| Title: |
Partner |
Title: |
Managing Director | |||||
| CARAVELLE INVESTMENT FUND, L.L.C. |
XXXX XXXXXXX LIFE INSURANCE COMPANY | |||||||
| By: Trimaran Advisors, L.L.C., its Investment Manager and Attorney-in-Fact |
||||||||
| By: |
/s/ Xxx X. Xxxxx |
By: |
/s/ S. Xxxx Xxx | |||||
| Name: |
Xxx X. Xxxxx |
Name: |
S. Xxxx Xxx | |||||
| Title: |
Managing Director |
Title: |
Senior Managing Director | |||||
| /s/ Xxxxx Xxxxx |
/s/ Xxxxxxx X. Xxxxxxxxx | |||
| XXXXX XXXXX |
XXXXXXX X. XXXXXXXXX | |||
| XXXXXXX MEZZANINE PARTNERS, L.P. | ||
| By: Xxxx Xxxxxxx Life Insurance Company, its Investment Manager | ||
| By | /s/ Xxxx Xxxxx | |
| Name: |
Xxxx Xxxxx | |
| Title: |
Managing Director | |
Schedule A
Purchasers
CARAVELLE INVESTMENT FUND L.L.C.,
XXXXXXX MEZZANINE PARTNERS, L.P.,
XXXX XXXXXXX LIFE INSURANCE COMPANY
XXXXXXX X. XXXXXXXXX III
XXXXX X. XXXXX
TRANSPORTATION INVESTMENT PARTNERS, L.L.C
GOLDENTREE HIGH YIELD MASTER FUND, LTD.
GOLDENTREE HIGH YIELD OPPORTUNITIES II, L.P.
GOLDENTREE HIGH YIELD MASTER FUND II, LTD.
GOLDENTREE HIGH YIELD VALUE MASTER FUND, L.P.
SAFETY NATIONAL CASUALTY CORPORATION
ALPHA U.S. SUBFUND II, LLC
DELPHI FINANCIAL GROUP
GOLDENTREE HIGH YIELD OPPORTUNITIES I, LP
