AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 1996
REGISTRATION NO. 333-1250
______________________________________________________________________________
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-1
Amendment No. 3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
ACF Industries, Incorporated
(Exact name of issuer as specified in its charter)
NEW JERSEY
(State or other jurisdiction of
incorporation or organization)
4741
(Primary Standard Industrial
Classification Code Number)
13-1875943
(I.R.S. Employer Identification Number)
________________________
620 North Second Street
St. Charles, Missouri 63301-2081
(314) 940-5000
(Address, including zip code, and telephone number, including
area code of Registrant's principal executive offices)
ROBERT J. MITCHELL
ACF Industries, Incorporated
620 North Second Street
St. Charles, Missouri 63301-2081
(314) 940-5000
(Name and address including zip code, and telephone number,
including area code of agent for service)
________________________
Copy to:
KEITH L. SCHAITKIN, ESQ. STEPHEN E. JACOBS, ESQ.
Gordon Altman Butowsky Weitzen Weil, Gotshal & Manges, LLP
Shalov & Wein 767 Fifth Avenue
114 West 47th Street New York, New York 10153
New York, New York 10036 (212) 310-8000
(212) 626-0800
________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this
Registration Statement.
________________________
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 check the following box.
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
To Be Registered Registered Per Security(2) Price Fee
_____________________________________________________________________________
Units(1) 250,000 100% $250,000,000 $86,207(3)
_____________________________________________________________________________
Common Stock
reserved for
issuance upon
exercise of
the Value (4) - - -
Appreciation
Rights
______________________________________________________________________________
(1) Each Unit consists of $1,000 principal amount of % Senior Secured
Notes due 2003, one Incremental Payment Obligation and one Value
Appreciation Right.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Previously paid.
(4) There are also being registered such number of shares of Common Stock
issuable upon exercise of the Value Appreciation Rights, and pursuant to
Rule 416, such additional shares of Common Stock as may be issuable upon
exercise of the Value Appreciation Rights pursuant to the anti-dilution
provisions thereof.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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This Amendment No. 3 to the Form S-1 Registration Statement
("Registration Statement") of ACF Industries, Incorporated (the
"Company") is being filed with the Securities and Exchange
Commission (the "Commission") solely to file as exhibits to the
Registration Statement the agreements listed below. Amendment
No. 2 to the Form S-1 Registration Statement of the Company filed
with the Commission on May 3, 1996 is incorporated herein by
reference.
Item 16. Exhibits and Financial Statements
(a) Exhibits
Exhibit No. Description of Exhibit
***1.1 Form of Underwriting Agreement
3(i) Restated Certificate of Incorporation of ACF
Industries, Incorporated
3(ii) By-Laws of ACF Industries, Incorporated, as
Amended.
***4.1 Form of Senior Note Indenture dated as of
_____________, 1996 by and between the Company and
________________________, as Trustee.
***4.2 Form of Incremental Payment Obligations Indenture
dated as of __________________, 1996 by and between
the Company and ________________, as Trustee.
***4.3 Form of Senior Note of the Company (included in
Exhibit 4.1).
*4.4 Form of Promissory Note, dated as of
______________, 1996, made by ______________ to the
Company.
*4.5 Promissory Note, dated as of June 28, 1984, made by
Buffalo Investors Corp. to the Company.
****4.6 Amended and Restated Credit Agreement, dated as of
May 20, 1993 (composite copy giving effect to
Amendment Nos. 1-9 and to Termination and Amendment
Agreement dated as of January 12, 1994) between
Tortoise Corp. and Internationale ederlanden Bank
N.V., New York Branch
****4.7 Eleventh Amendment, Waiver and Consent to Amended
and Restated Credit Agreement, dated as of December
29, 1995, between Tortoise Corp. and Internationale
Nederlanden (U.S.) Capital Corporation
***5.1 Opinion of Gordon Altman Butowsky Weitzen Shalov &
Wein.
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***8.1 Opinion of Gordon Altman Butowsky Weitzen Shalov &
Wein.
**10.1 Asset Purchase Agreement, dated as of April 28,
1993, by and between the Company and American Car
Line Company.
***10.4(a) Form of Tax Allocation Agreement, dated as of, by
and between the Company and Starfire Holding
Corporation.
*10.5 Lease Agreement dated May 1, 1995, between the
Company and St. Charles Properties.
**10.6 Settlement Agreement, dated as of January 5, 1993,
among Trans World Airlines, Inc., Official
Unsecured Creditors' Committee of Trans World
Airlines, Inc., Pension Benefit Guaranty
Corporation, International Association of
Machinists and Aerospace Workers, Independent
Federation of Flight Attendants, Air Line Pilots
Association, International, Transport Workers Union
of America, Carl C. Icahn, The Icahn Entities, and
Pichin Corp.
*10.7 Omnibus Amendment and Supplement to Agreements
between Trans World Airlines, Inc., as Borrower and
Karabu Corp., as Lender, dated as of March 28,
1994.
*10.8 Extension, Refinancing and Consent Agreement, dated
as of June 14, 1995, among Trans World Airlines,
Inc., Karabu Corp., Pichin Corp., and Carl C.
Icahn.
*10.9 Note Terms Agreement, dated as of August 23, 1995,
among Trans World Airlines, Inc., American National
Bank and Trust Company of Chicago, and the Pension
Benefit Guaranty Corporation.
*10.10 Assumption Agreement, dated as of June 28, 1984,
among Starfire Holding Corporation, Buffalo
Investors Corp., and the Company.
***10.11 Value Appreciation Rights Agreement.
*10.12 Agreement, dated October 17, 1995, among New Valley
Corporation, ALKI Corp., and High River Limited
Partnership.
*10.13 Letter Agreement, dated October 17, 1995, between
Bennett S. LeBow and High River Limited
Partnership.
*10.14 Letter Agreement, dated November 5, 1995, between
High River Limited Partnership, New Valley
Corporation and ALKI Corp.
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*10.15 Agreement, dated October 17, 1995, among Brooke
Group Ltd., BGLS Inc., and High River Limited
Partnership.
*10.16 Letter Agreement, dated November 5, 1995, among
High River Limited Partnership, Brooke Group Ltd.,
and BGLS Inc.
10.17 Administration Agreement, dated as of October 1,
1994, by and between American Railcar Industries,
Inc. and the Company.
*****10.18 Supply Agreement, dated as of October 1, 1994, by
and between American Railcar Industries, Inc. and
the Company.
*****10.19 Railcar Servicing Agreement, dated as of October 1,
1994, by and between American Railcar Industries,
Inc. and the Company.
10.20 License Agreement, dated as of October 1, 1994, by
and between the Company and American Railcar
Industries, Inc..
10.21 License Agreement, dated as of October 1, 1994, by
and between the Company and American Railcar
Industries, Inc..
10.22 Manufacturing Services Agreement, dated as of
October 1, 1994, by and between American Railcar
Industries, Inc. and the Company.
******10.23 Railcar Management Agreement, dated as of April 28,
1993, between American Car Line Company and the
Company.
******10.24 Lease Administration Agreement, dated as of April
28, 1993, among American Car Line Company, the
Company, ACF Lease Administrators, Inc., and First
Bank National Association.
*12.1 Computation of Earnings to Fixed Charges;
Computation of EBITDA, as adjusted, to Interest
Expense.
*21 Subsidiaries of the Company.
*23.1 Consents of KPMG Peat Marwick LLP
***23.2 Consent of Gordon Altman Butowsky Weitzen Shalov &
Wein.
***25.1 T-l Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of
___________________, as Trustee for the Senior
Notes due 2003.
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***25.2 T-l Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of
___________________, as Trustee for the Incremental
Payment Obligations.
______________________________________________________________
* Previously filed.
** Incorporated by reference to Amendment #2 to Form S-1
filed by the Company on November 12, 1993.
*** To be filed by amendment.
**** Incorporated by reference to Schedule 13D filed by High
River Limited Partnership, Riverdale Investors Corp,
Inc., Barberry Corp, and Carl C. Icahn on March 11,
1996 relating to the common stock, par value $.01 per
share of RJR Nabisco Holdings Corp.
***** Confidential Treatment has been requested.
****** Incorporated by reference to Form S-4 Registration
Statement filed by American Car Line Company on May 18,
1993.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant has duly caused this amendment to its
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 9th day of May, 1996.
ACF INDUSTRIES, INCORPORATED
By: /s/ Carl C. Icahn
Carl C. Icahn
Chairman of the Board, Chief
Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this amendment to the registration statement has been signed by
the following persons in the capacities and on the dates indicated.
May 9, 1996 By: /s/ Carl C. Icahn
Carl C. Icahn
Chairman of the Board,
Chief Executive Officer and
Director
May 9, 1996 By: /s/ James J. Unger
James J. Unger
Vice Chairman of the Board and
Director
May 9, 1996 By: /s/ James C. Bates
James C. Bates
Vice President and Chief
Financial Officer
(Chief Accounting Officer)
[Signature Page to Amendment No. 3 to Form S-1 for ACF Industries,
Incorporated]
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
***1.1 Form of Underwriting Agreement
3(i) Restated Certificate of Incorporation of ACF
Industries, Incorporated
3(ii) By-Laws of ACF Industries, Incorporated, as Amended.
***4.1 Form of Senior Note Indenture dated as of
_____________, 1996 by and between the Company and
________________________, as Trustee.
***4.2 Form of Incremental Payment Obligations Indenture
dated as of __________________, 1996 by and between
the Company and ________________, as Trustee.
***4.3 Form of Senior Note of the Company (included in
Exhibit 4.1).
*4.4 Form of Promissory Note, dated as of ______________,
1996, made by ______________ to the Company.
*4.5 Promissory Note, dated as of June 28, 1984, made by
Buffalo Investors Corp. to the Company.
****4.6 Amended and Restated Credit Agreement, dated as of
May 20, 1993 (composite copy giving effect to
Amendment Nos. 1-9 and to Termination and Amendment
Agreement dated as of January 12, 1994) between
Tortoise Corp. and Internationale ederlanden Bank
N.V., New York Branch
****4.7 Eleventh Amendment, Waiver and Consent to Amended and
Restated Credit Agreement, dated as of December 29,
1995, between Tortoise Corp. and Internationale
Nederlanden (U.S.) Capital Corporation
***5.1 Opinion of Gordon Altman Butowsky Weitzen Shalov &
Wein.
***8.1 Opinion of Gordon Altman Butowsky Weitzen Shalov &
Wein.
**10.1 Asset Purchase Agreement, dated as of April 28, 1993,
by and between the Company and American Car Line
Company.
***10.4(a) Form of Tax Allocation Agreement, dated as of, by and
between the Company and Starfire Holding Corporation.
*10.5 Lease Agreement dated May 1, 1995, between the
Company and St. Charles Properties.
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**10.6 Settlement Agreement, dated as of January 5, 1993,
among Trans World Airlines, Inc., Official Unsecured
Creditors' Committee of Trans World Airlines, Inc.,
Pension Benefit Guaranty Corporation, International
Association of Machinists and Aerospace Workers,
Independent Federation of Flight Attendants, Air Line
Pilots Association, International, Transport Workers
Union of America, Carl C. Icahn, The Icahn Entities,
and Pichin Corp.
*10.7 Omnibus Amendment and Supplement to Agreements
between Trans World Airlines, Inc., as Borrower and
Karabu Corp., as Lender, dated as of March 28, 1994.
*10.8 Extension, Refinancing and Consent Agreement, dated
as of June 14, 1995, among Trans World Airlines,
Inc., Karabu Corp., Pichin Corp., and Carl C. Icahn.
*10.9 Note Terms Agreement, dated as of August 23, 1995,
among Trans World Airlines, Inc., American National
Bank and Trust Company of Chicago, and the Pension
Benefit Guaranty Corporation.
*10.10 Assumption Agreement, dated as of June 28, 1984,
among Starfire Holding Corporation, Buffalo Investors
Corp., and the Company.
***10.11 Value Appreciation Rights Agreement.
*10.12 Agreement, dated October 17, 1995, among New Valley
Corporation, ALKI Corp., and High River Limited
Partnership.
*10.13 Letter Agreement, dated October 17, 1995, between
Bennett S. LeBow and High River Limited Partnership.
*10.14 Letter Agreement, dated November 5, 1995, between
High River Limited Partnership, New Valley
Corporation and ALKI Corp.
*10.15 Agreement, dated October 17, 1995, among Brooke Group
Ltd., BGLS Inc., and High River Limited Partnership.
*10.16 Letter Agreement, dated November 5, 1995, among High
River Limited Partnership, Brooke Group Ltd., and
BGLS Inc.
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10.17 Administration Agreement, dated as of October 1,
1994, by and between American Railcar Industries,
Inc. and the Company.
*****10.18 Supply Agreement, dated as of October 1, 1994, by and
between American Railcar Industries, Inc. and the
Company.
*****10.19 Railcar Servicing Agreement, dated as of October 1,
1994, by and between American Railcar Industries,
Inc. and the Company.
10.20 License Agreement, dated as of October 1, 1994, by
and between the Company and American Railcar
Industries, Inc..
10.21 License Agreement, dated as of October 1, 1994, by
and between the Company and American Railcar
Industries, Inc..
10.22 Manufacturing Services Agreement, dated as of October
1, 1994, by and between American Railcar Industries,
Inc. and the Company.
******10.23 Railcar Management Agreement, dated as of April 28,
1993, between American Car Line Company and the
Company.
******10.24 Lease Administration Agreement, dated as of April 28,
1993, among American Car Line Company, the Company,
ACF Lease Administrators, Inc., and First Bank
National Association.
*12.1 Computation of Earnings to Fixed
Charges; Computation of EBITDA, as
adjusted, to Interest Expense.
*21 Subsidiaries of the Company.
*23.1 Consents of KPMG Peat Marwick LLP
***23.2 Consent of Gordon Altman Butowsky Weitzen Shalov &
Wein.
***25.1 T-l Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of
___________________, as Trustee for the Senior Notes
due 2003.
***25.2 T-l Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of
___________________, as Trustee for the Incremental
Payment Obligations.
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______________________________________________________________
* Previously filed.
** Incorporated by reference to Amendment #2 to Form S-1
filed by the Company on November 12, 1993.
*** To be filed by amendment.
**** Incorporated by reference to Schedule 13D filed by
High River Limited Partnership, Riverdale Investors
Corp, Inc., Barberry Corp, and Carl C. Icahn on March
11, 1996 relating to the common stock, par value $.01
per share of RJR Nabisco Holdings Corp.
***** Confidential Treatment has been requested.
****** Incorporated by reference to Form S-4 Registration
Statement filed by American Car Line Company on May
18, 1993.
RESTATED CERTIFICATE OF INCORPORATION
OF
ACF INDUSTRIES, INCORPORATED
ACF Industries, Incorporated, a corporation organized and
existing under the laws of the State of New Jersey, restates,
integrates and amends its Certificate of Incorporation, as heretofore
amended and restated, to read in full as herein set forth:
FIRST. The name of the corporation is ACF
INDUSTRIES, INCORPORATED.
SECOND. The location of its registered office in the State
of New Jersey is 28 West State Street, Trenton, Mercer County, New
Jersey 08608. The name of its registered agent therein upon whom
process against this corporation may be served is The Corporation
Trust Company.
THIRD. The purposes for which the corporation is organized
are to engage in any activity within the purposes for which
corporations now or at any time hereafter may be organized under the
New Jersey Business Corporation Act, and under all amendments or
supplements thereto or any revision thereof.
FOURTH. The total number of shares which the corporation
shall have authority to issue is 20,000 common shares, without par
value.
No holder of any shares of the corporation of any class now
or hereafter authorized shall have any right as such holder (other
than such right, if any, as the Board of Directors in its discretion
may determine to purchase, subscribe for or otherwise acquire any
shares of the corporation of any class now or hereafter authorized, or
any securities convertible into or exchangeable for any such shares,
or any warrants or other instruments evidencing rights or options to
subscribe for, purchase or otherwise acquire any such shares, whether
such shares, certificates, securities, warrants or other instruments
be unissued or issued and thereafter acquired by the corporation.
FIFTH. Action by the shareholders to adopt a proposed
amendment to the Certificate of Incorporation or to approve a proposed
plan of merger or consolidation involving the corporation or to
approve a proposed sale, lease, exchange or disposition of all or
substantially all the assets of the corporation, if not in the usual
and regular course of its business as conducted by it, may be taken by
the affirmative vote of a majority of the votes cast by the holders of
shares entitled to vote thereon and, in addition, if any class or
series of shares is entitled to vote thereon as a class, by the
affirmative vote of a majority of the votes cast in each class vote.
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SIXTH. The number of directors may be increased or
decreased at any time by vote of the Board of Directors and in case of
an increase the Board of Directors shall have power to elect such
additional Directors, to hold office until the next meeting of the
shareholders or until their successors shall be elected.
The Board of Directors shall have power without the assent
or vote of the shareholders to authorize and cause to be executed
mortgages or liens upon the real or personal property of the
corporation; and from time to time, to sell, assign, transfer or
otherwise dispose of any and all of the property of the corporation,
but no such sale of all of the property shall be made except pursuant
to the vote of at least two-thirds of the Board of Directors.
The Board of Directors shall from time to time determine
whether and to what extent, and at what time, and places, and under
what conditions and regulations, the accounts and books of the
corporation, or any of them shall be open to the inspection of the
shareholders; and no shareholder shall have any right to inspect any
account, or book or document of the corporation, except as conferred
by statute or authorized by the Board of Directors, or by a resolution
of the shareholders.
SEVENTH. The corporation may lend money to or guarantee any
obligation of, or otherwise assist, any officer or other employee of
the corporation or any subsidiary, including any officer or employee
who is also a director of the corporation, whenever, in the judgment
of the Board of Directors, such loan, guarantee or assistance may
reasonably be expected to benefit the corporation; provided, however,
that the corporation may lend money to guarantee any obligation of, or
otherwise assist, an officer of employee who is also a director of the
corporation only if authorized by a majority of the entire Board of
Directors.
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EIGHTH. Meetings of the shareholders of the corporation may
be held at such place, within or without the State of New Jersey, as
may from time to time be provided in the By-laws or as may be fixed by
the Board of Directors pursuant to authority granted by the By-laws.
NINTH. The number of directors constituting the
corporation's current Board of Directors is three. The names and
addresses of the persons currently serving as directors are set forth
below:
CARL C. ICAHN 1370 Avenue of the Americas
New York, New York 10029
ALFRED D. KINGSLEY 1370 Avenue of the Americas
New York, New York 10029
D. JOSEPH CORR 3301 Rider Trail South
St. Louis, Missouri 63045
This Restated Certificate of Incorporation restates
integrates and amends that Certificate of Incorporation as theretofore
amended and restated by resolution of the Board of Directors or by
action of the shareholders as the case may be.
IN WITNESS WHEREOF, ACF Industries, Incorporated has made
this certificate under the signature of its Senior Vice President this
19th day of March, 1986.
ACF INDUSTRIES, INCORPORATED
By: /s/ Henry Parrish
Henry N. Parrish
Senior Vice President
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CERTIFICATE ATTACHED TO AND FILED WITH
RESTATED CERTIFICATE OF INCORPORATION
OF ACF INDUSTRIES INCORPORATED
Pursuant to Section 14A:9-5(5), of the New Jersey Business
Corporation Act, ACF Industries, Incorporated, a New Jersey
Corporation, hereby certifies as follows:
(a) The name of the corporation is ACF INDUSTRIES,
INCORPORATED.
(b) The Restated Certificate of Incorporation of the
corporation, to which this Certificate is attached, was adopted on
February 27, 1986.
(c) The Restated Certificate of Incorporation was adopted
by the shareholders of the corporation as follows:
(i) The number of shares entitled to vote on the adoption
of the Restated Certificate of Incorporation was 15.021 shares
itemized as follows:
Class Series No. of Shares
Common Shares None 15,021
(without par value)
(ii) The number of shares voted for adoption of the Restated
Certificate of Incorporation was 15,021 and the number of shares
against such adoption was 0.
ACF INDUSTRIES, INCORPORATED
By: /s/ Henry Parrish
Name Henry N. Parrish
Title Senior Vice President
and Secretary
Dated: March 19, 1986
BY-LAWS
OF
ACF INDUSTRIES, INCORPORATED
As Amended
Revised 7/6/89
<PAGE> <PAGE>
BY-LAWS
OF
ACF INDUSTRIES, INCORPORATED
ARTICLE I
Meetings of Shareholders
SECTION 1. Date, Time and Place of Meetings. Meetings of
shareholders of the Company may be held on such date and at such time
and place as may be fixed by the Board of Directors and stated in the
notice of the meeting.
SECTION 2. Call of Special Meetings. Special meetings of the
shareholders may be called by the Board of Directors or the Chairman
of the Board or the President whenever it or he shall deem it proper
to do so.
SECTION 3. Notice of Meetings. Except as otherwise provided
by law, written notice of each meeting of shareholders, stating the
date, time, place and purpose of the meeting, shall be given at least
ten days and not more than sixty days before the date fixed for such
meeting to each shareholder of record entitled to vote at the meeting
either personally or by mail to the address of such shareholder as the
same appears on the records of the Company. No business shall be
transacted at any meeting other than as set forth in the notice
thereof except that the directors shall be elected at the annual
meeting of the shareholders.
SECTION 4. Record Date. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or for the purpose of
determining shareholders entitled to receive payment of any dividend
or allotment of any right, or for the purpose of any other action, the
Board of Directors may fix, in advance, a date as the record date for
any such determination of shareholders. Such date shall not be more
than sixty nor less than ten days before the date of meeting nor more
than sixty days prior to any other action.
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SECTION 5. Quorum. Unless otherwise provided by law, at any
meeting of the shareholders the holders of shares entitled to cast a
majority of the votes thereat, present in person or by proxy, shall
constitute a quorum for all purposes. Less than a quorum may adjourn.
At any adjourned meeting at which a quorum shall be present any
business may be transacted which might have been transacted at the
original meeting.
SECTION 6. Organization. The Chairman of the Board, or in
his absence the President, shall act as chairman at all meetings of
shareholders. In the absence of the Chairman of the Board and the
President, the Board of Directors may appoint any shareholder or proxy
voter for any shareholder to act as chairman, or, in the absence of
such appointment, the shareholders present, in person or by proxy, may
elect a chairman from the shareholders and proxy voters present at the
meeting.
SECTION 7. Inspectors. The Chairman of the Board or such
other officer as may have been designated by the Board of Directors
may, at or in advance of any shareholders' meeting, appoint one or
more inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed or shall fail to qualify, the person
presiding at the meeting may, and at the request of any shareholder
entitled to vote thereat shall, make such appointment. In case any
person appointed as inspector fails to appear or act, the vacancy may
be filled by appointment made as above provided in advance of the
meeting or at the meeting by the person presiding at the meeting.
Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality.
The inspectors shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and
shall receive votes or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and
tabulate all votes or consents, determine the result, and do such acts
as a proper to conduct the election or vote with fairness to all
shareholders. If there are three or more inspectors, the act of a
majority shall govern. On request of the person presiding at the
meeting or any shareholder entitled to vote thereat, the inspectors
shall make a report in writing of any challenge, question or matter
determined by them. Any report made by them shall be prima facie
evidence of the facts therein stated, and such report shall be filed
with the minutes of the meeting.
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ARTICLE II
Board of Directors
SECTION 1. Number of Term of Office. The members of the
Board of Directors shall be elected annually by the shareholders at
the annual meeting of shareholders and shall hold office until the
next annual meeting and until their successors shall have been elected
and qualified.
The number of directors so elected shall be such number not less
than two nor more than seven, as shall be fixed from time to time by
resolution of the Board of Directors or shareholders.
SECTION 2. Vacancies. Any vacancy on the Board of Directors
resulting from an increase in the number of directors fixed by the
Board or from death, resignation, disqualification or other cause
shall be filled by the affirmative vote of a majority of the remaining
directors, even though less than a quorum of the Board, or by a sole
remaining director. Directors elected to fill vacancies shall hold
office until the next annual meeting of shareholders and until their
successors shall have been elected and qualified.
SECTION 3. Meetings. Regular meetings of the Board of
Directors may be held without notice on such dates and at such times
and places as shall be fixed from time to time by or pursuant to
resolution of the Board, except that the first regular meeting of each
newly elected Board, for the purpose of organization or otherwise,
shall be held without notice promptly following the annual meeting of
shareholders.
Special meetings of the Board of Directors may be called by the
Chairman of the Board, or in his absence by the President, or by any
five directors and shall be held on such date and at such time and
place as may be designated in the notice of the meeting. The Chairman
of the Board, or in the Chairman's absence the President, shall
preside at all meetings of the Board of Directors.
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SECTION 4. Notices. Notices required hereunder shall be
given by mailing, telephoning, telegraphing, cabling, radioing or
delivering the same to each director at least forty-eight hours before
the meetings; but neither failure to give notice nor any irregularity
therein shall affect the validity of any meeting or of any action
taken thereat.
SECTION 5. Quorum. One-half of the entire Board shall
constitute a quorum for the transaction of business. Less than a
quorum may adjourn the meeting from time to time.
SECTION 6. Interest in Transactions. No contract or other
transaction between the Company and any other corporation, firm or
association of any type or kind in which one or more of its directors
are directors or are otherwise interested shall be void or voidable
solely by reason of such common directorship or interest, or solely
because such director or directors are present at the meeting of the
Board or a committee thereof which authorizes or approves the contract
or transaction, or solely because the votes of such director or
directors are counted for such purpose, if (a) the contract or other
transaction is fair and reasonable as to the Company, at the time it
is authorized, approved or ratified, or (b) the fact of the common
directorship or interest is disclosed or known to the Board or
committee and the Board or committee authorizes, approves or ratifies
the contract or transaction by unanimous written consent, provided at
least one director so consenting is disinterested, or by affirmative
vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum, or (c) the fact of the
common directorship or interest is disclosed or known to the
shareholders and they authorize, approve or ratify the contract or
transaction.
SECTION 7. Standard of Care. Directors and members of any
committee of directors shall discharge their duties to the Company
when they act in good faith and with that degree of diligence, care
and skill which ordinary prudent persons would exercise under similar
circumstances in like positions. In discharging their duties, such
directors and members of any such committee shall not be liable if,
acting in good faith, they rely (a) upon the opinion of counsel for
the Company, or (b) upon written reports setting forth financial data
concerning the Company and prepared by an independent public
accountant or certified public accountant or firm of such accountants,
or (c) upon financial statements, books of account or reports of the
Company represented to them to be correct by the Chairman of the
Board, President, the officer of the Company having charge of its
books of account, or the person presiding at a meeting of the Board or
of such committee.
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ARTICLE III
Committees.
The Board of Directors, may from time to time, by resolution
adopted by a majority of the entire Board, create or discontinue an
executive committee and one or more other committees, consisting of
one or more directors, and may assign or delegate to each such
committee such powers, discretion and duties as the Board of Directors
may deem proper except that no such committee shall (a) make, alter or
repeal any by-law of the Company, (b) elect or appoint any director,
or remove any officer or director, (c) submit to the shareholders any
action that requires shareholders' approval or (d) amend or repeal any
resolution adopted by the Board of Directors which by its terms is
amendable or repealable only by the Board of Directors.
ARTICLE IV
Officers.
SECTION 1. Officers Generally. The officers of the Company
shall be a Chairman of the Board, a President, such number of Vice
Presidents as the Board shall from time to time determine, any one or
more of whom may be designated as Executive Vice President or as
Senior Vice President or in such special or limiting style as the
Board of Directors may determine, a Secretary, a Treasurer and a
Controller, and one or more Assistant Secretaries, Assistant
Treasurers and Assistant Controllers, and such other officers as the
Board of Directors may from time to time determine. All officers of
the Company shall be elected by the Board of Directors. Any two or
more offices may be held by one person.
Except as it may otherwise determine in specific cases, the Board of
Directors, at its first regular meeting after the annual meeting of
shareholders, shall elect the officers of the Company to serve until
the next annual election of officers. All officers shall be subject
to removal at any time with or without cause by the Board of
Directors. If any office shall become vacant, the Board of Directors
may fill the vacancy.
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SECTION 2. Chief Executive Officer. The chief executive
officer of the Company shall have general care, supervision and
control of the business and affairs of the Company, subject to the
direction of the Board of Directors, and shall have all powers which
are commonly incident to the office of chief executive. The Board of
Directors shall determine form time to time the officer who shall be
the chief executive officer of the Company, provided that in the
absence of any other determination, or in the absence of any other
officer who shall have been designated as chief executive officer, the
Chairman of the Board shall be chief executive officer.
SECTION 3. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of shareholders and of the Board of
Directors and, if he is not the chief executive officer, shall have
such duties, responsibilities and powers, if any, as may be assigned
by the chief executive officer or the Board of Directors.
SECTION 4. President. Unless the President shall be
designated chief executive officer, the President shall have such
duties, responsibilities and powers as may be assigned by the chief
executive officer or the Board of Directors and, in the absence of the
Chairman of the Board, shall have the powers and duties of that
office.
SECTION 5. Vice Presidents. The Vice Presidents, including
Executive and Senior Vice President, shall have such powers and
perform such duties as shall be assigned to them by the chief
executive officer. In the absence of the Chairman of the Board and
the President, the Executive Vice President (if any or, if there be
more than one, such of them as shall be designated by the Board of
Directors) shall have all the powers and duties of such offices.
SECTION 6. Secretary. The Secretary shall in general perform
all the duties incident to the office of Secretary, including giving
(or causing to be given) notices of, attending at the keeping the
minutes of all meetings of shareholders and the Board of Directors.
The Secretary shall have custody of the corporate seal and shall
attest the same, as well as the signatures of the officers of the
Company, when required in the Company's business.
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The Assistant Secretaries shall perform such duties as shall be
assigned to them from time to time by the Secretary and in the absence
of the Secretary shall perform all duties of that office.
SECTION 7. Treasurer. The Treasurer shall perform all duties
incident to that office. The Treasurer shall collect, receive and
have custody of all moneys, securities and instruments representing
obligations to pay moneys, belonging to or payable to or deliverable
to the Company, and shall give receipts and acquittances therefor;
shall open bank accounts for the Company in such banks as shall be
designated by, or by authority of, the Board of Directors and deposit
therein for credit or collection moneys, checks and other instruments
representing obligations to pay moneys; shall sign and issue checks,
bills of exchange and other orders for the payment of moneys; shall
execute applications for letters of credit; and shall have all the
authority normally incident to the office of Treasurer; subject in
every case to such limitations, including requirements for additional
signatures, countersignatures or approvals, as the Board of Directors
may from time to time determine.
The Assistant Treasurers shall perform such duties as shall be
assigned to them from time to time by the Treasurer and in the absence
of the Treasurer shall perform all duties of that office.
SECTION 8. Controller. The Controller shall perform all
duties incident to that office. The Controller shall have charge of
all the Company's general books and records of account and shall have
access to and the right to take copies of or extracts from all other
books and records of the Company.
The Assistant Controllers shall perform such duties as shall be
assigned to them from time to time by the Controller and in the
absence of the Controller shall perform all duties of that office.
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ARTICLE V
Shares of the Company Seals
SECTION 1. Transfer of Shares. Shares of the Company shall
be transferred on the records of the Company by the holder thereof in
person or by his attorney.
SECTION 2. Lost Certificates. The Company may issue a new
certificate in lieu of one alleged to be lost, stolen or destroyed
upon receiving such proof of such loss, theft or destruction, and such
other instruments, including a bond of indemnity, as may be required
by the Board of Directors pursuant to regulation adopted by the Board
of Directors or otherwise.
SECTION 3. Transfer Agent and Register. The Board of
Directors may from time to time appoint one or more transfer agents
and one or more registrars of the Company's shares. Any transfer
agent may also be a registrar. Share certificates shall bear the
signature of a transfer agent and of a registrar. Except in the case
of a transfer agent which is also a registrar, the signature of either
the transfer agent or the registrar, but not both, may be a facsimile.
The functions of transfer agents and of registrars shall conform to
such regulations as the Board may from time to time prescribe. The
Board may at any time terminate the appointment of any transfer agent
or registrar.
SECTION 4. Corporate Seal. The Board of Directors shall
provide a suitable corporate seal containing the name of the Company
and the year and State of its incorporation.
ARTICLE VI
Voting Securities of Other Corporations
The Chairman of the Board or the President, or any officer of the
company designated by the Board of Directors may, from time to time,
in person or by proxy, exercise in the name and on behalf of the
Company all voting rights and other rights to consent or dissent
appurtenant to any stock or other securities issued by other
corporations and owned by the Company.
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ARTICLE VII
Indemnification
The Company shall indemnify any person who is or was a director,
officer, employee or agent of the Company and any person who is or was
serving at the request of the Company a director, officer, trustee,
employee or agent of any other domestic corporation or foreign
corporation or any partnership, joint venture, sole proprietorship,
trust or other enterprise, whether or not for profit, and the legal
representative of any such persons (each of such persons, including
such legal representatives, being herein referred to as a "Corporate
Agent") to the full extent that the Company is empowered or required
to indemnify a Corporate Agent under the New Jersey Business
Corporation Act subject to the provisions of this Article. The
Company also shall indemnify any person who is or was a director,
officer, employee or agent of the Company and who is or was serving as
a "fiduciary" as such term is defined in paragraph (21)(A) of Section
3 of the Employee Retirement Income Security Act of 1974 ("Pension
Reform Act") under any of the Company's employee welfare benefit plans
or employee pension plans, all of which are herein referred to as
"plan", against his or her expenses and liabilities, as such terms are
defined in Section 3-5(1) of the New Jersey Business Corporation Act,
in connection with any proceedings, as that term is defined in Section
3-5(1) of the New Jersey Business Corporation Act, involving such
person or the legal representative of such person or his or her legal
representative was successful on the merits or otherwise, or in the
defense of any claim, issue or matter therein if (a) such fiduciary
was not grossly negligent in the actions or omissions alleged in the
proceedings; (b) such fiduciary did not, in a transaction prohibited
by the Pension Reform Act, deal with the assets of a plan in his or
her own interest or for his or her own account or in the interest or
for the account of any member of his or her family or of any
enterprise in which he or she had an interest; (c) the conduct of such
fiduciary in relation to the plan and its assets with respect to any
claim, issue or matter charged in the proceeding was such as to show
that such fiduciary had no reasonable cause to believe that such
conduct was otherwise than in or not opposed to the best interests of
the participants and their beneficiaries under the plan and (d) with
respect to any criminal proceeding, the fiduciary had no reasonable
cause to believe his or her conduct was unlawful. No such
indemnification shall be made if it is finally determined in the
proceedings that the fiduciary was grossly negligent or dealt with the
assets of a plan in his or her own interest or for his or her own
account or the account of any member of his or her family or of any
enterprise in which he or she had an interest, but otherwise the
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termination of any such proceeding by judgment, order, settlement
approved by the company, conviction or upon a plea of nolo contendere
or its equivalent, shall not of itself create a presumption that such
fiduciary did not meet the applicable standards of conduct.
Subsections (6), (8) and (9) of Section 3-5 of the New Jersey Business
Corporation Act shall be applicable to indemnification with respect to
a fiduciary. Unless such indemnification is ordered by a court or is
mandatory under Section 3-5 of the New Jersey Business Corporation Act
or this by-law, the determination of whether a Corporate agent or a
fiduciary met the applicable standard of conduct shall be made at the
election of the Board of Directors (a) in any manner provided by
Section 3-5 of the New Jersey Business Corporation Act or (b) by one
or more disinterested persons appointed by the Board of Directors or
by a committee of the Board authorized by the Board to make such
appointments. The Company shall pay the expenses incurred by the
Board or committee or independent counsel or disinterested persons and
reasonable compensation for any independent counsel and any such
disinterested person who is not a director, officer or employee of the
Company. Expenses incurred by a Corporate Agent or by a fiduciary or
his or her legal representative may be paid by the company in advance
of final disposition of any such proceeding, provided (i) the Board of
Directors, or a committee of directors authorized by the Board of
Directors to make such decision, determines that such advance is in
the interest of the Company and (ii) the Corporate Agent or fiduciary
or his or her legal representative delivers to the Company an
undertaking by or on behalf of the Corporate Agent or fiduciary or his
or her legal representative to repay the amount so advanced except to
the extent that it shall be determined that the Corporate Agent or
fiduciary or his or her legal representative is entitled to be
indemnified by the Company. The Board of Directors may in its
discretion purchase and maintain insurance on behalf of any Corporate
Agent or fiduciary against any expenses incurred in any proceeding and
any liabilities asserted against him or her by reason of being or
having been a Corporate Agent or a fiduciary whether or not the
Company would have the power to indemnify him or her against such
expenses and liability under provisions of the New Jersey Business
Corporation Act or this by-law.
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ARTICLE VIII
Amendments.
The Board of Directors shall have power to alter, amend or repeal
these by-laws, in whole or in part, at any time and from time to time.
ASSISTANT SECRETARY'S CERTIFICATE
I, Janet A. Kniffen, Assistant Secretary of ACF INDUSTRIES,
INCORPORATED, a New Jersey corporation, do hereby certify that the
foregoing is a true and complete copy of the By-Laws of said
corporation in effect at the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of said corporation this day of , 19 .
/s/ Janet Kniffen_
Assistant Secretary of
ACF INDUSTRIES, INCORPORATED
ADMINISTRATION AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation and
AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation.
PAGE
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TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Engagement of ACF. . . . . . . . . . . . . . . . . . . . . . . 3
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Duties of ACF. . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Records and Information. . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . 5
7. Payments and Fees. . . . . . . . . . . . . . . . . . . . . . . 6
7.1. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.2. Manner of Payment . . . . . . . . . . . . . . . . . . . . 6
8. Events of Default; Remedies. . . . . . . . . . . . . . . . . . 8
8.1. Events of Default . . . . . . . . . . . . . . . . . . . . 8
8.2. Remedies Upon Default . . . . . . . . . . . . . . . . . . 9
8.3. Remedies Cumulative . . . . . . . . . . . . . . . . . . . 9
9. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Entire Agreement; Modification and Waiver. . . . . . . . . . . 10
11. Communications . . . . . . . . . . . . . . . . . . . . . . . . 10
12. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 11
13. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. Headings and Terms . . . . . . . . . . . . . . . . . . . . . . 12
15. Disjunctive. . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 12
17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE<<PAGE>
ADMINISTRATION AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation ("ACF") and
AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation ("ARI").
W I T N E S S E T H :
WHEREAS, pursuant to an Asset Transfer Agreement of even
date hereto among ACF, ARI and Carl C. Icahn (the "Transfer
Agreement"), ACF has agreed to transfer to ARI certain assets and
liabilities, as more fully described therein;
WHEREAS, in connection with the transfer of such assets to
ARI, ARI desires to retain ACF to provide certain administrative
services for and on behalf of ARI, and ACF desires to accept such
engagement.
NOW, THEREFORE, the parties hereto, desiring legally to be
bound, hereby agree as follows:
1. Definitions. As used herein, the following terms
shall have the following meanings:
"Accounting and Financial Reporting Services" means general
ledger and subsidiary accounting and recordkeeping, cost accounting,
budget preparation and auditing and financial, regulatory and tax
reporting services.
"Billing and Accounts Receivable Services" means order
entry, credit approval and monitoring, billing, collections, and
maintenance of accounts receivable records.
"Cars" means at any time the covered hopper, tank and other
railcars owned or managed by ACF and leased or held for lease at such
time.
"Employee Compensation and Benefits Administration Services"
means management of human resources, maintenance of personnel records,
regulatory compliance, and administration of benefit plans.
"Event of Default" shall have the meaning set forth in
Section 9.1 hereof.
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"Financial Management Services" means management of banking
relations and maintenance of bank accounts, cash receipts and
disbursements, cash forecasting and investment of excess funds, and
negotiation and issuance of debt.
"Fleet Management Services" means (i) providing technical
and engineering assistance and acting as liaison to regulatory
agencies and industry groups, (ii) providing Car repair disposition
and processing of Cars through repair facilities so as to effect
necessary and proper repairs and maintenance while minimizing out-of-
service time, (iii) maintaining proper mechanical Car records for all
Cars and (iv) providing purchasing, inventory management and sales of
materials used in the repair and maintenance of Cars.
"Information Processing Services" means systems development
programming and maintenance, and data processing, transmission,
storage and retrieval.
"Manufacturing Agreement" means the agreement of even date
between ACF and ARI, pursuant to which ACF has agreed to manufacture
certain railcar parts and other products for ARI.
"month" means a calendar month and "year" means a calendar
year.
"Purchasing and Accounts Payable Services" means logistics,
requisitioning, vendor selection and purchasing, invoice processing
and accounts payable services.
"Safety and Environmental Services" means the education of
employees on safety and safety awareness, review of regulations,
performance of environmental and safety audits, and technical
assistance in the administration of legal matters involving
environmental and safety issues.
"Secretary and Administrative Services" means legal
compliance and administration, corporate recordkeeping, and
external communications services.
"Services" means Treasury Services, Secretary and
Administrative Services, Employee Compensation and Benefits, Fleet
Management Services, Administration Services, Information Processing
Services, Special Products Services, Safety and Environmental
Services, insurance and risk management services, general management
and strategic planning services, engineering, research and product
development, planning and control services, and marketing, sales,
order and contract administration and customer service and any one of
them, a "Service."
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"Servicing Agreement" means the agreement of even date
between ACF and ARI, pursuant to which ARI has agreed to perform
certain railcar maintenance and repair services to ACF.
"Special Products Services" means the sale of railcar parts
to ACF for use in the production of railcars and to railroad and
industrial customers and any administrative services related to such
sales.
"Supply Agreement" means the agreement of even date between
ACF and ARI pursuant to which ARI has been engaged to provide certain
railcar parts to ACF.
"Term" means the term of the administration and other
obligations of ARI and ACF hereunder, commencing as of the date hereof
and continuing until terminated as provided in Section 3 hereof.
"Treasury Services" means payroll processing, Accounting and
Financial Reporting Services, Billing and Accounts Receivable
Services, Financial Management Services and Purchasing and Accounts
Payable Services.
2. Engagement of ACF. ARI hereby engages ACF to provide
the Services on behalf of ARI on the terms and conditions set forth
herein, and ACF hereby accepts such engagement.
3. Term. The Term shall commence as of the date hereof
and, subject to the provisions of Section 9 hereof, shall continue
until the earlier of October 1, 1997 or the date which is ninety (90)
days after written notice from ARI to ACF of ARI's desire to terminate
all of the Services to be provided by ACF hereunder. In addition, ARI
shall be entitled to terminate ACF's obligations hereunder as to less
than all of the Services upon ARI's delivery of ninety (90) days prior
written notice with respect to the termination of any one or more of
such Services. The parties agree that ACF shall cease providing Fleet
Management Services, Safety and Environmental Services and Special
Products Services on December 31, 1994. The obligations of ACF and
ARI under this Agreement arising during the Term of this Agreement
will survive the expiration or earlier termination of the Term hereof.
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4. Duties of ACF.
(a) Subject to the terms and provisions hereof, ACF shall
provide or arrange for the provision of the Services to and on behalf
of ARI during the Term in the same manner as ACF performs such
services on its own behalf.
(b) ARI shall furnish to ACF all such information as may
be necessary to enable ACF to provide the Services.
(c) Any Services to be provided by ACF under this Agree-
ment shall be performed by ACF unless otherwise consented to in
writing by ARI.
5. Records and Information. (a) ACF shall maintain
separate, complete and accurate records relating to the Services
provided hereunder and all matters covered by this Agreement in the
same form and to the same extent as ACF has customarily maintained
records in respect of such Services prior to the date hereof.
(b) ARI shall have the right, at its expense, to examine
ACF's books and records relating to the provision by ACF of the
Services, and to make copies thereof or extracts therefrom, at any
time during normal business hours upon not less than two (2) days
prior written notice.
(c) Upon the expiration or termination of the Term or of
the termination by ARI of ACF's obligation with respect to any Service
provided hereunder, ACF shall promptly deliver to ARI or its designee
originals or copies of any records maintained by ACF in respect of the
Services or any such terminated Service and ACF shall reasonably
cooperate, at the expense of ARI, with ARI and/or its designees in
connection with the transfer of ACF's duties hereunder to a third
party so as to ensure, to the extent practicable, an orderly
transition to the provision of Services by ARI and/or any such third
party.
(d) Following the expiration of the Term or of the
provision of any Service, ACF and ARI shall each provide the other
with access to any records maintained by it relating to the Services
or any terminated Service for any valid business purpose, including
the preparation of financial statements and tax returns, in connection
with tax audits and in connection with litigation.
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6. Representations and Warranties. Each of ACF and ARI
represents and warrants to the other as follows:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey
(in the case of ACF) and Missouri (in the case of ARI). It has
all necessary corporate power and authority and has taken all
corporate action necessary to enter into this Agreement, to con-
summate the transactions contemplated hereby and to perform its
obligations hereunder.
(b) This Agreement has been duly executed and delivered
by it and is a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
such enforceability may be limited by (A) the effect of
bankruptcy, insolvency, reorganization, moratorium, marshalling
or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and (B)
general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.
(c) Neither the execution and delivery by it of this
Agreement nor the performance by it of its obligations hereunder
will (A) with or without the giving of notice or the passage of
time, or both, violate, or be in conflict with, or permit the
termination of, or constitute a default under, or cause the
acceleration of the maturity of, any agreement, debt or obli-
gations of any nature of it or to which it is a party or bound;
(B) require the consent of any party to any agreement, instrument
or commitment to which it is a party or to which it or its
properties is bound; (C) violate any statute or law or any
judgment, decree, order, regulation or rule of any court,
Regulatory Authority or other governmental authority to which it
is subject; or (D) result in the creation of any lien or security
interest or other incumbrance on its assets, which in the case of
(A), (B), (C), or (D) would cause the transactions contemplated
by this Agreement not to be consummated or which would have a
material adverse effect on the business, financial condition or
operations of the other party to this Agreement.
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(d) No consent, approval or authorization of, or
declaration, filing or registration with, any Regulatory
Authority or other governmental agency or authority is required
to be made or obtained by it in connection with the execution,
delivery and performance of this Agreement, the performance by it
of its obligations hereunder or the consummation of the
transactions contemplated hereby, the failure of which to have
been made or obtained would have a material adverse effect on the
ability of such party to perform its obligations hereunder, or on
the business, financial condition, or operations of any party to
this Agreement.
7. Payments and Fees.
7.1. Fees. For each of the Services provided under this
Agreement by ACF, ARI will pay ACF an amount equal to the aggregate
direct costs incurred by or on behalf of ACF in connection with the
provision of such Services. ACF's direct costs shall include a
reasonable allocation of that part of ACF's labor and overhead
expenses attributable to the provision of the Services, including the
costs of maintaining the employees who provide the Services
(collectively, the "Fees"). ACF will invoice ARI no less often than
quarterly for all Services performed hereunder, which invoice shall be
accompanied by a summary, in reasonable detail, of ACF's calculation
of the Fees, which calculation shall be binding upon ARI, absent
manifest error. ARI will pay all invoiced amounts within thirty (30)
days from the date of invoice.
7.2. Manner of Payment. (a) ACF shall establish an account
on its books in the name of ARI and shall (i) credit such account with
all amounts received by ACF from any source as payments to or for the
account of ARI (including collections of accounts receivable) and (ii)
debit such account for all amounts paid by ACF to or for the account
of ARI (including accounts payable) and any Fees due to ACF pursuant
to Section 7.1 hereof. Any debit balance in such account shall bear
interest at ACF's internal cost of funds, which interest shall be
payable by ARI at the same time and in the same manner as the Fees.
Any credit balance in such account shall also bear interest at ACF's
internal cost of funds, which interest shall be credited to such
account by ACF no less often than quarterly.
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(b) If, at any time during the Term, ARI shall determine,
or if, at any time ARI shall cease to be a member of the group of
companies with which ACF is "consolidated" (within the meaning of the
Internal Revenue Code of 1986, as amended), ACF shall determine, to
discontinue the internal accounting for the amounts described in
Section 7.2 (a) hereof, ARI shall establish one or more deposit
accounts in its own name (the "Bank Accounts"). At such time, ACF
shall pay to ARI the amount of any credit balance on its books in
favor of ARI or, if there shall be a debit balance in ARI' internal
account, ARI shall pay to ACF the amount of such debit balance. So
long as ACF continues to provide Treasury Services to ARI pursuant to
this Agreement, ACF shall be permitted access to and shall have
(through its designated employees) signing power with respect to the
Bank Accounts for the purpose of making deposits therein and making
payments therefrom for ARI's account. From and after the time that the
Bank Accounts have been established until ACF ceases to perform
Treasury Services pursuant to this Agreement, ACF shall deposit in the
Bank Accounts all amounts received by ACF from any source as payments
to or for the account of ARI (including collections of accounts
receivable) and shall pay from such account all amounts paid by ACF to
or for the account of ARI (including accounts payable) and shall have
the right to withdraw from the Bank Accounts the amount of any Fees
when due to ACF. At any time there shall be insufficient funds in the
Bank Account to pay any amounts required to be paid by ACF for ARI's
account or to pay Fees, ACF may, at its option, either require that
ARI deposit in the Bank Accounts any amounts which are in excess of
the balance in the Bank Accounts which are required to cover such
amounts or, at the request of ARI, advance such amounts to ARI;
provided, however, that the foregoing clause shall not be construed as
an obligation of ACF to make such advances. In the event that ACF
advances any amounts to ARI, such advance shall be treated as a demand
loan and shall bear interest at ACF's internal cost of funds, which
interest shall be payable at the same time and in the same manner as
the Fees.
(c) During the period that ACF provides Treasury
Services to ARI pursuant to this Agreement, ACF shall provide ARI with
a calendar monthly statement of all amounts received or paid by ACF
for the account of ARI.
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(d) During the period that ACF provides Treasury Services
to ARI pursuant to this Agreement, all amounts due from or to ARI
under any of the Supply Agreement, the Services Agreement or the
Manufacturing Agreement shall be processed by ACF in the same manner
as it processes all other of ARI's accounts receivable or accounts
payable, as the case may be, pursuant to this Agreement. Upon the
termination of the provision of Treasury Services, all amounts payable
or receivable by ARI and ACF pursuant to the above listed Agreements
shall be paid pursuant to the terms of such Agreements.
8. Events of Default; Remedies.
8.1. Events of Default. The occurrence of any of the
following events shall constitute an "Event of Default" under this
Agreement:
(a) The failure by ARI to pay when due any amount
payable by it hereunder unless such failure shall have been remedied
within ten (10) days after receipt by the defaulting party of notice
thereof from the other party;
(b) default shall be made in the due observance or
performance of any covenant (other than a covenant to make payments
referred to in clause (a) hereof) to be observed or performed by ARI
or ACF hereunder, and such default shall not have been remedied within
thirty (30) days after receipt by the defaulting party of notice
thereof from the other party hereto;
(c) the commencement of any case or proceeding
against either party (A) under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B)
seeking to adjudge such party a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of such party under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such party or of any
substantial part of the property of, or ordering the winding up or
liquidation of the affairs of such party, and (i) the entry of an
order for relief in any of the foregoing or any such adjudication or
appointment shall occur or (ii) the continuance of any such case or
proceeding undismissed, undischarged or unbonded for a period of 60
consecutive days; or
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(d) the commencement by either party of a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of such party in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against such party, or the filing of a
petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by either party to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trust,
sequestrator or similar official of such party or of any substantial
part of it's property, or the making by it of an assignment for the
benefit of creditors, or the admission by such party in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by it in furtherance of any such action;
(e) Any representation or warranty made herein,
shall prove to have been false or misleading as of the time made or
furnished in any material respect.
8.2. Remedies Upon Default. Upon the occurrence and
during the continuation of any Event of Default, the non-defaulting
party, in its sole discretion, may (i) terminate the Term by notice to
the defaulting party, which termination shall be effective as of the
date of such notice or such later date, in the discretion of the non-
defaulting party, as such notice may specify, (ii) proceed by
appropriate court action to enforce performance of this Agreement by
the defaulting party and/or (iii) sue to recover actual direct damages
(including lost revenues but not consequential damages) which result
from a breach hereof, and such defaulting party shall bear the other
party's costs and expenses, including reasonable attorney's fees, in
securing such enforcement or damages.
8.3. Remedies Cumulative. Each and every right, power and
remedy herein specifically given to ACF or ARI shall be in addition to
every other right, power and remedy herein specifically given or now
or hereafter existing at law or in equity, and each and every right,
power and remedy may be exercised from time to time and simultaneously
and as often and in such order as may be deemed expedient by ACF or
ARI. All such rights, powers and remedies shall be cumulative, and
the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the ACF or ARI
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in the exercise of any such right, power or remedy and no extension of
time for any payment due hereunder shall impair any such power or
shall be construed to be a waiver of any default or an acquiescence
therein. Any extension of time for payment hereunder or other
indulgence duly granted by either the ACF to ARI or ARI to ACF shall
not otherwise alter or affect the respective rights and obligations of
the ACF and ARI. The acceptance of any payment of the ACF or ARI
after it shall have become due hereunder shall not be deemed to alter
or affect the respective rights and obligations of the ACF and ARI
with respect to any subsequent payments or defaults hereunder.
9. Force Majeure. Neither party hereto shall be deemed
to be in breach or in violation of this Agreement if such party is
prevented from performing any of its obligations hereunder for any
reason beyond its reasonable control, including, without limitation,
acts of God, riots, strikes, fires, storms, wars, insurrections,
public disturbances or any regulation of any Federal, state or local
government or any agency thereof.
10. Entire Agreement; Modification and Waiver. This
Agreement (including the recitals herein and any schedules or exhibits
hereto, each of which is an integral part of this Agreement) sets
forth the entire agreement and understanding between the ACF and ARI
with respect to the subject matter hereof. This Agreement may not be
changed, altered, modified or amended in any respect without a writing
to that effect, signed by both of the parties hereto. Failure of a
party to enforce one or more of the provisions of this Agreement or to
exercise any option or other rights hereunder or to require at any
time performance of any of the obligations hereof shall not in any
manner be construed (a) to be a waiver of such provisions by such
party, (b) to affect the validity of this Agreement or such party's
right thereafter to enforce each and every provision of this
Agreement, or (c) to preclude such party from taking any other action
at any time which it would be legally entitled to take.
11. Communications. All notices, requests, demands,
consents, approvals, reports, statements and other communications
under this Agreement shall be in writing and shall be deemed to have
been given (a) upon receipt when delivered by hand, overnight delivery
service or facsimile transmission with respect to which receipt has
been acknowledged or (b) three (3) business days after mailing, by
registered or certified mail, postage prepaid, return receipt
requested, and addressed to the party for whom intended at the
following addresses or such changed address as such parties may have
fixed by notice:
<PAGE>
<PAGE>
To ACF:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, Missouri 63045-1393
Attention: Chief Financial Officer
Telecopy no.: (314) 344-4216
Telephone no.: (314) 344-4500
To ARI:
American Railcar Industries, Inc.
3301 Rider Trail South, Suite 234
Earth City, Missouri 63045-1393
Attention: President
Telecopy no.: (314) 344-4213
Telephone no.: (314) 344-4200
provided, however, that any notice of change of address shall be
effective only upon receipt.
12. Governing Law. In accordance with Section 5-1401 of
the New York General Obligation Law, the parties hereto agree that
this Agreement shall be governed by and construed and enforced under
the laws of the State of New York.
13. Severability. Any provision of this Agreement that
may be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
so long as the economic or legal substance of the transactions
contemplated thereby is not affected in any manner adverse to any
party. Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties
hereby waive any provision of law that renders any provision of this
Agreement prohibited or unenforceable in any respect. In addition, in
the event of any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provision
which is held or determined to be prohibited or unenforceable, as
written, in any jurisdiction shall nonetheless be in force and binding
to the fullest extent permitted by the law of such jurisdiction as
though such provision had been written in such a manner and to such an
extent as to be enforceable therein under the circumstances.
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14. Headings and Terms. Headings to Sections contained
herein are for convenience and reference purposes only and are not to
be given any substantive effect or meaning. Any term herein defined
in the singular shall have a corresponding meaning when used in the
plural and the converse applies.
15. Disjunctive. As used in this Agreement, unless the
context requires otherwise, the word "or" shall have the conjunctive
as well as disjunctive meaning and refers to alternatives that are not
necessarily exclusive. As used in this Agreement, references to
"include" and similar terms shall be construed as if followed by the
phrase "without limitation."
16. Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that no assignment hereof by ACF or ARI or transfer of any
party's rights or obligations hereunder whether by operation or law or
otherwise shall be valid and effective as against ARI or ACF without
the prior consent of both ARI and ACF which consent shall not be
unreasonably withheld.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Administration Agreement as of the date first above written.
ACF INDUSTRIES, INCORPORATED
By: /s/ James J. Unger
AMERICAN RAILCAR INDUSTRIES, INC.
By: /s/ Roger Wynkoop
CONFIDENTIAL TREATMENT REQUESTED
SUPPLY AGREEMENT
AGREEMENT dated as of October 1, 1994
between ACF INDUSTRIES,
INCORPORATED, a New Jersey corporation ("ACF"),
and AMERICAN RAILCAR INDUSTRIES,
a Missouri corporation
("ARI").
PAGE
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TABLE OF CONTENTS
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Term and Renewal . . . . . . . . . . . . . . . . . . . . . . . 4
3. Purchase and Sale of Products. . . . . . . . . . . . . . . . . 4
(a) Purchase and Sale . . . . . . . . . . . . . . . . . . . . 4
(b) Third Parties . . . . . . . . . . . . . . . . . . . . . . 4
(c) Sub-Suppliers . . . . . . . . . . . . . . . . . . . . . . 5
(d) Forecasts . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Adjustments . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Changes to Binding Forecasts and Binding Adjustments. . . 6
4. Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Prices; Changes in Price . . . . . . . . . . . . . . . . . 7
(b) Invoices. . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) Favorable Terms . . . . . . . . . . . . . . . . . . . . . 8
6. Representations and Warranties . . . . . . . . . . . . . . . . 8
7. Quality Control. . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Covenants of ARI. . . . . . . . . . . . . . . . . . . . . 10
(b) Access to Facilities. . . . . . . . . . . . . . . . . . . 10
(c) Changes in Manufacturing. . . . . . . . . . . . . . . . . 10
(d) Changes in Specifications . . . . . . . . . . . . . . . . 10
8. Events of Default; Remedies. . . . . . . . . . . . . . . . . . 10
(a) Events of Default . . . . . . . . . . . . . . . . . . . . 10
(b) Remedies Upon Default . . . . . . . . . . . . . . . . . . 12
(c) Other Remedies of ACF . . . . . . . . . . . . . . . . . . 12
(d) Remedies Cumulative . . . . . . . . . . . . . . . . . . . 12
9. Records and Inspection . . . . . . . . . . . . . . . . . . . . 13
10. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 13
11. Trade Names and Trademarks . . . . . . . . . . . . . . . . . . 15
12. Conflict in Terms. . . . . . . . . . . . . . . . . . . . . . . 15
13. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . 15
14. Entire Agreement; Modification and Waiver. . . . . . . . . . . 15
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15. Communications . . . . . . . . . . . . . . . . . . . . . . . . 16
16. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 17
17. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 17
18. Headings and Terms . . . . . . . . . . . . . . . . . . . . . . 18
19. Disjunctive. . . . . . . . . . . . . . . . . . . . . . . . . . 18
20. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 18
21. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 18
22. Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXHIBIT A
EXHIBIT B
EXHIBIT C
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SUPPLY AGREEMENT
AGREEMENT ("Agreement") dated as of October 1, 1994 (the
"Effective Date") between ACF Industries, Incorporated, a New Jersey
corporation having its principal offices in Earth City, Missouri
("ACF") and American Railcar Industries, a Missouri corporation having
its principal offices in Earth City, Missouri ("ARI").
W I T N E S S E T H :
WHEREAS, pursuant to an Asset Transfer Agreement of even
date herewith among ACF, ARI and Carl C. Icahn (the "Asset Transfer
Agreement"), ACF has agreed to transfer to ARI certain assets and
liabilities, as more fully described therein;
WHEREAS, in connection with the transfer of such assets to
ARI, ACF desires to retain ARI to manufacture and to sell to ACF
certain products to be used by ACF, and ARI desires to accept such
engagement, all in accordance with the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Definitions. As used herein, the following terms shall
have the following meanings:
"AAR" means the Association of American Railroads and any
successor thereto.
"ACF Cost" of any Product means the average cost to ACF of
manufacturing such Product during the nine (9) month period ending on
the Effective Date, taking into account: (i) the costs incurred by
ACF during such period for raw materials and direct labor necessary in
the manufacture of such Product during such period; and (ii) the
portion of the aggregate indirect labor and general overhead expenses
incurred by ACF during such period that is allocable to the
manufacture of such Product during such period.
"Adjustment" has the meaning set forth in Section 3(e).
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"Applicable Gross Profit Percentage", in respect of each
Product, means a percentage calculated in accordance with Exhibit A
hereto.
"Binding Adjustment" has the meaning set forth in Section
3(f).
"Binding Forecast" has the meaning set forth in Section
3(f).
"Business Day" means any day other than a Saturday, Sunday
or day on which banks in New York are authorized or permitted to be
closed.
"Change of Law" means any change in applicable federal,
state or local laws, rules or regulations.
"DOL" means the United States Department of Labor.
"DOT" means the United States Department of Transportation.
"Estimated Cost" of a unit of any Product in respect of any
Forecast Period means the amount obtained by dividing: (a) the sum,
as reasonably estimated in advance by ARI in good faith, of (i) the
costs to be incurred by ARI during such period for raw materials and
direct labor necessary in the manufacture during such period of the
volume of such Product specified by ACF in the Forecast for such
period, and (ii) the portion of the aggregate indirect labor and
general overhead expenses to be incurred by ARI during such period
that is allocable to the manufacture during such period of such
volume; by (b) the number of units of such Product specified by ACF in
such Forecast.
"Event of Default" has the meaning set forth in Section
8(a).
"First Forecast" has the meaning set forth in Section 3(d).
"First Period" means the period commencing on the Effective
Date and ending on December 31, 1994.
"Forecast Period", when used with respect to the First
Period, means such First Period, and otherwise means each calendar
year thereafter during the term of this Agreement.
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"Forecasts" has the meaning set forth in Section 3(d).
"ICC" means the United States Interstate Commerce
Commission.
"License Agreement" means that certain agreement of even
date herewith by and between the parties hereto, relating to the
license by ACF to ARI of certain intellectual property.
"Licensed Information" has the meaning ascribed to it in the
License Agreement.
"Market Price" for any Product at any time means the then-
prevailing price, net of freight, being paid for such Product (or
similar products), as determined based on surveys of the three largest
manufacturers (other than ARI) of such Product (or similar products,
as the case may be). If there are fewer than three such manufacturers
of such Product or of similar products at the time of such survey, the
survey shall be of the maximum number of such manufacturers at such
time.
"Other Products" means all products manufactured by ARI,
other than the Products, from time to time after the Effective Date.
"Products" has the meaning set forth in Section 3(a).
"Proposed Price" has the meaning set forth in Section 5.
"Quarter", when used with respect to the First Period, means
such First Period, and otherwise means any of the four successive
three-month periods contained in any Forecast Period.
"Regulatory Authorities" means the ICC, the DOT, the DOL,
the AAR or any other governmental authority or industry agency or
authority which has proper jurisdiction to regulate the ownership,
leasing, operation, maintenance or use of covered hopper, tank or
other railcars.
"Specifications" has the meaning set forth in Section 3(a).
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"Standard Purchase Order" means ACF's standard purchase
order as of the Effective Date, a copy of which is attached hereto as
Exhibit B, or, if ARI uses a standard purchase order in its dealings
with third parties, such standard purchase order as changed by ARI
from time to time; provided, however, that to the extent that the
terms of ARI's standard purchase order are less favorable to ACF than
the terms of ACF's standard purchase order as of the Effective Date,
"Standard Purchase Order" shall be deemed to incorporate such more
favorable terms.
"Sub-Suppliers" has the meaning set forth in Section 3(c).
2. Term and Renewal. The term of this Agreement will
begin as of the Effective Date and, subject to termination in
accordance with Section 8(b), will continue until October 1, 1999,
provided that: (i) ACF may, at its option (to be exercised by giving
written notice to ARI at least six months prior to the date on which
such term would otherwise end), not more than three (3) times, extend
such term for an additional three (3) year period; and (ii) if the
term is so extended by ACF three (3) times, the term will
automatically be extended thereafter for additional three (3) year
periods unless and until ACF gives ARI, or ARI gives ACF, written
notice of termination at least six months prior to the date on which
such term would otherwise end. The obligations of ACF and ARI under
this Agreement arising during the term of this Agreement will survive
the expiration or earlier termination of the term hereof.
3. Purchase and Sale of Products. (a) Purchase and Sale.
Pursuant to the terms and conditions set forth in this Agreement, ACF
will purchase from ARI, and ARI will sell to ACF, the products that
are manufactured by ARI as of the Effective Date at the Locations (as
such term is defined in the Asset Transfer Agreement) as listed and
described on Exhibit C hereto (collectively, the "Products"), in
accordance with the specifications, if any, in respect of each Product
set forth in the applicable Forecast or Adjustment (the
"Specifications"). In addition, ARI shall sell to ACF such Other
Products as are ordered by ACF, on terms not less favorable than the
terms on which ARI sells such Other Products to third parties.
(b) Third Parties. This Agreement shall not preclude
either (i) ACF from purchasing from any person or entity any
materials, supplies and products (including Products and products that
are similar to the Products), and (ii) ARI from selling (subject to
the provisions of Sections 3(a) and 5(c)) to any person or entity any
materials, supplies and products (including Products, Other Products,
products that are similar to the foregoing and any other products) so
long as such materials, supplies and products do not use or
incorporate any Licensed Information; provided, however, that ARI
will give ACF priority over all third parties with respect to the
manufacture and delivery of Products for so long as ACF is providing
Forecasts in accordance with this Agreement and satisfying its
obligations to purchase Products pursuant to the terms hereof.
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(c) Sub-Suppliers. Notwithstanding any provision of this
Agreement to the contrary, ARI may agree with any one or more third
parties ("Sub-Suppliers") for such Sub-Suppliers to take any action
that is contemplated by this Agreement to be taken by ARI, including
manufacturing Products, so long as ACF's rights under this Agreement
are not adversely affected thereby.
(d) Forecasts. Simultaneously with the execution and
delivery of this Agreement by the parties hereto, ACF is giving to ARI
a notice containing a forecast of ACF's Products requirements for
calendar year 1995 (such notice being referred to herein as the "First
Forecast"). On the first Business Day of October in each calendar
year during the term of this Agreement, ACF will give a notice to ARI
containing a forecast of ACF's Products requirements for the next
following calendar year (such notices being referred to herein,
collectively with the First Forecast, as "Forecasts"). Each Forecast
will also specify the dates on which such Products are to be delivered
to ACF. A Forecast will be binding on the parties hereto with respect
to each Quarter in the Forecast Period to which such Forecast relates
and will represent a firm commitment of ACF to purchase and of ARI to
sell the Products specified therein on the terms specified therein (to
the extent that such Forecast relates to periods during which this
Agreement is in effect), unless (A) ACF delivers one or more Adjust-
ments relating to any such Quarter in accordance with Section 3(e) or
(B) such Forecast is amended as contemplated by Section 3(f).
Notwithstanding the immediately preceding sentence or any other
provision of this Agreement, the First Forecast, when given by ACF to
ARI, will be binding on the parties hereto to the extent it relates to
the first Quarter of calendar year 1995 and will represent a firm
commitment of ACF to purchase and of ARI to sell the Products
specified therein in respect of such Quarter on the terms specified
therein, subject to the provisions of Section 3(f).
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(e) Adjustments. Throughout the term of this Agreement,
ACF may, at its option, no later than thirty (30) days prior to the
commencement of any Quarter with respect to which a Forecast has been
given by ACF in accordance with Section 3(d), change the forecast of
the Products requirements (including changes in the list and volumes
of Products) that was specified for such Quarter in such Forecast, by
written notice to ARI (each such notice being referred to herein as an
"Adjustment"). An Adjustment will be binding on the parties hereto
and will represent a firm commitment of ACF to purchase and of ARI to
sell the Products specified therein on the terms specified therein (to
the extent that such Adjustment relates to periods during which this
Agreement is in effect), unless (A) ACF changes any Adjustment by
giving ARI one or more subsequent Adjustments with respect to, and at
least thirty (30) days prior to the commencement of, the applicable
Quarter or (B) such Adjustment is amended as contemplated by Section
3(f). An Adjustment given in accordance with this Section 3(e) may
relate to any one or more Quarters in a Forecast Period.
(f) Changes to Binding Forecasts and Binding Adjustments.
Once a Forecast or an Adjustment becomes binding on the parties hereto
in accordance with the provisions of Sections 3(d) and 3(e) (a
"Binding Forecast" or a "Binding Adjustment", as the case may be),
such Binding Forecast or Binding Adjustment, as the case may be, may
be amended: (i) by ACF alone only to the extent permitted by the terms
of the Standard Purchase Order; and (ii) by ACF and ARI to the extent
they agree orally or in writing. If any Binding Forecasts or Binding
Adjustments are amended orally in accordance with this Section 3(f),
each of ACF and ARI will record the date and the substance of such
amendment in its books in a manner consistent with such party's
ordinary recordkeeping procedures.
4. Delivery. ARI will deliver Products in such quantities
and on or prior to such dates as are set forth in each Binding
Forecast or Binding Adjustment (as amended in accordance with Section
3(f), if applicable). All deliveries will be F.O.B. to the ACF
facility specified as the delivery point in the relevant Binding
Forecast or Binding Adjustment (as amended in accordance with Section
3(f), if applicable). Notwithstanding anything to the contrary
contained herein, to the extent ACF amends a Binding Forecast or
Binding Adjustment as contemplated in clause (i) of Section 3(f), ARI
may change the time for performance of such Binding Forecast or
Binding Adjustment to the extent, if any, contemplated by, and in a
manner consistent with, the Standard Purchase Order, but in any event
subject to Section 5(c).
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5. Payment. (a) Prices; Changes in Price.
Subject to and in accordance with the provisions of this Agreement,
ACF will pay ARI a price in respect of each unit of each Product equal
to the sum of: (A) in respect of each Forecast Period other than the
First Period, the Estimated Cost of such Product, and in respect of
the First Period, the ACF Cost of such Product; and (B) an amount
equal to the product of: (i) such Estimated Cost or ACF Cost, as
applicable; and (ii) the Applicable Gross Profit Percentage in respect
of such Product. Within forty-five (45) days of each date on which
ACF gives ARI a Forecast, ARI will furnish to ACF a written statement
specifying the Estimated Cost of each Product ordered by ACF in such
Forecast.
Within the first sixty (60) days of each Forecast Period
other than the First Period, ACF and ARI will negotiate in good faith
to agree on the Applicable Gross Profit Percentage in respect of each
Product for such Forecast Period.
Subject to the provisions contained in this Section 5(a),
ARI may, no more than twice annually, propose increasing the price of
any Product if: (i) ARI's costs for raw materials used to manufacture
such Product increase; or (ii) other than as permitted by the Standard
Purchase Order, ACF reduces the aggregate volumes of Product specified
in any Binding Forecast or Binding Adjustment (as amended in
accordance with Section 3(f), if applicable) by more than twenty
percent (20%), measured by number of units. At least sixty (60) days
prior to the date on which any proposed price increase is to become
effective, ARI will give notice to ACF of the proposed new price (the
"Proposed Price") and the proposed effective date therefor. Such
notice to ACF will include reasonable evidence of the then-current
Market Price for the applicable Product and, if applicable, reasonable
evidence of the increased raw material costs. The Proposed Price will
become effective on the proposed effective date specified in such
notice unless ACF objects in writing to the Proposed Price or to the
evidence contained in such notice within ten (10) days after ARI gives
ACF such notice; in such event, ACF and ARI will negotiate in good
faith to agree on the price for such Product at such time.
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Notwithstanding any provision of this Agreement to the
contrary: (i) in no event will the price for any Product supplied
hereunder exceed at any time the then-current Market Price of such
Product; and (ii) to the extent ACF amends a Binding Forecast or
Binding Adjustment as contemplated in clause (i) of Section 3(f), ARI
may, to the extent, if any, contemplated by, and in a manner
consistent with, the Standard Purchase Order (but in any event subject
to Section 5(c) and the foregoing clause (i) of this sentence),
increase the price of the Products to which such amendment relates
unless ACF objects to such increase within ten (10) days of ARI's
notice to ACF thereof, in which case ACF and ARI will negotiate in
good faith to agree on the amount, if any, of such increase.
(b) Invoices. ARI will invoice ACF quarterly for Products
sold and delivered in accordance with this Agreement and ACF will pay
all invoiced amounts within thirty (30) days after ACF's receipt of
each such invoice, subject to: (i) any adjustment to prices
contemplated in Sections 5(a), 5(c) or 7(d); and (ii) offset by ACF in
respect of aggregate amounts then owed and unpaid by ACF to ARI
pursuant to any agreement to which ACF and ARI are parties.
(c) Favorable Terms. If, at any time during the term of
this Agreement, ARI provides any Product to a party other than ACF on
terms (including price) more favorable than those being offered to ACF
in respect of such Product, ARI will promptly notify ACF in writing of
such more favorable terms and will offer and make available to ACF
such more favorable terms in respect of such Product for so long as
such more favorable terms are being provided to any party other than
ACF.
6. Representations and Warranties. Each of ACF and ARI
represents and warrants to the other as follows:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey (in the
case of ACF) and Missouri (in the case of ARI). It has all necessary
corporate power and authority and has taken all corporate action
necessary to enter into this Agreement, to consummate the transactions
contemplated hereby and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by
it and is a legal, valid and binding obligation of it, enforceable
against it in accordance with its terms, except as such enforceability
may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium, marshalling or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies
of creditors generally and (ii) general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
PAGE
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(c) Neither the execution and delivery by it of this
Agreement nor the performance by it of its obligations hereunder will:
(i) with or without the giving of notice or the passage of time, or
both, violate, or be in conflict with, or permit the termination of,
or constitute a default under, or cause the acceleration of the
maturity of, any agreement, debt or obligation of any nature of it or
to which it is a party or bound; (ii) require the consent of any party
to any agreement, instrument or commitment to which it is a party or
to which it or its properties is bound; (iii) violate any statute or
law or any judgment, decree, order, regulation or rule of any court,
Regulatory Authority or other governmental agency or authority to
which it is subject; or (iv) result in the creation of any lien or
security interest or other encumbrance on its assets, which, in the
case of clauses (i), (ii), (iii), or (iv) would cause the transactions
contemplated by this Agreement not to be consummated or which would
have a material adverse effect on the business, financial condition or
operations of the other party to this Agreement.
(d) No consent, approval or authorization of, or
declaration, filing or registration with, any Regulatory Authority or
other governmental agency or authority is required to be made or
obtained by it in connection with the execution, delivery and
performance of this Agreement, the performance by it of its obliga-
tions hereunder or the consummation of the transactions contemplated
hereby, the failure of which to have been made or obtained would have
a material adverse effect on the ability of such party to perform its
obligations hereunder or on the business, financial condition or
operations of either party to this Agreement.
PAGE
<PAGE>
7. Quality Control.
(a) Covenants of ARI. All Products supplied hereunder
will, when supplied to ACF, comply with all of the seller's warranties
set forth in the Standard Purchase Order.
(b) Access to Facilities. Upon ACF's written request given
at least two (2) Business Days in advance, ARI will provide ACF with
access to ARI's facility, during normal business hours, for the
purpose of observing production of Products for delivery hereunder and
confirming compliance with ARI's manufacturing obligations hereunder.
(c) Changes in Manufacturing. ARI may make changes in its
manufacturing procedures, provided that such changes do not result in
a violation of the terms of this Agreement or applicable federal,
state or local laws, rules and regulations.
(d) Changes in Specifications. If a change in the
Specifications is required by a Change of Law or is otherwise agreed
to by ARI and ACF, ARI will cause the Products to conform to the
Specifications as so changed, as promptly, and in the most cost-
efficient manner, as possible. In such event, ACF and ARI will
cooperate in good faith to determine the extent, if any, to which
doing so requires changes in the prices for Products or in the
delivery dates therefor. If ACF and ARI are unable to agree on such
changes, if any, to prices and delivery dates, they will together
designate a third party that is capable of making such determination;
if ACF and ARI cannot agree on such a third party, then each of ACF
and ARI will designate a third party that is capable of making such
determination, and such third parties will together designate another
third party that is capable of making such determination. The
determination of such other third party will be final and binding on
ACF and ARI. The reasonable costs and expenses of such third party
will be shared equally by ACF and ARI. All documented obsolescence
costs attributable to such change in Specifications will be borne by
ACF.
8. Events of Default; Remedies. (a) Events of Default.
The occurrence of any of the following events shall constitute an
"Event of Default" under this Agreement:
(i) the failure by either party to pay when due any amount
payable by it hereunder unless such failure shall have been remedied
within thirty (30) days after receipt by the defaulting party of
notice thereof from the other party;
PAGE
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(ii) default shall be made in the due observance or
performance of any covenant contained in Sections 3(a), 3(b), 3(c), 4,
5(c) or 7 to be observed or performed by either party hereunder, and
such default shall not have been remedied within ten (10) days after
receipt by the defaulting party of notice thereof from the other party
hereto;
(iii) default shall be made in the due observance or
performance of any covenant to be observed or performed by either
party hereunder, other than (A) any covenant to make payments referred
to in clause (i) of this Section 8(a) and (B) the covenants referred
to in clause (ii) of this Section 8(a), and such default shall not
have been remedied within thirty (30) days after receipt by the
defaulting party of notice thereof from the other party hereto;
(iv) any representation or warranty made herein shall
prove to have been false or misleading as of the time made or
furnished in any material respect;
(v) the commencement of any case or proceeding against
either party (i) under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (ii) seeking to
adjudge such party a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of such party
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of such party or of any substantial part of the property of,
or ordering the winding up or liquidation of the affairs of such
party, and (A) the entry of an order for relief in any of the
foregoing or any such adjudication or appointment shall occur or (B)
the continuance of any such case or proceeding undismissed,
undischarged or unbonded for a period of sixty (60) consecutive days;
(vi) the commencement by either party of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by such party to the entry of a decree or order for relief in
respect of such party in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against such party or the filing by such
party of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by
such party to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trust, sequestrator or similar official of such party or of any
substantial part of such party's property, or the making by such party
of an assignment for the benefit of creditors, or the admission by
such party in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by such party in
furtherance of any such action.
PAGE
<PAGE>
(b) Remedies Upon Default. Upon the occurrence and during
the continuation of any Event of Default, the non-defaulting party, in
its sole discretion, may: (i) terminate the term of this Agreement by
notice to the defaulting party, which termination shall be effective
as of the date of such notice or such later date, in the discretion of
the non-defaulting party, as such notice may specify; (ii) proceed by
appropriate court action to enforce performance of this Agreement by
the defaulting party; and/or (iii) sue to recover actual direct
damages (but not consequential damages) which result from a breach
hereof, and such defaulting party shall bear the other party's costs
and expenses, including reasonable attorneys' fees, in securing such
enforcement or damages.
(c) Other Remedies of ACF. Notwithstanding anything to
the contrary in this Agreement, if ARI fails to sell Products to ACF
in accordance with this Agreement or if any Product supplied hereunder
is defective or otherwise does not meet the Specifications therefor,
then ACF will have all of the rights and remedies that are afforded to
a buyer pursuant to the terms of the Standard Purchase Order.
(d) Remedies Cumulative. Each and every right, power and
remedy herein specifically given to ACF or ARI shall be in addition to
every other right, power and remedy herein specifically given or now
or hereafter existing at law or in equity, and each and every right,
power and remedy may be exercised from time to time and simultaneously
and as often and in such order as may be deemed expedient by ACF or
ARI, as the case may be. All such rights, powers and remedies shall
be cumulative, and the exercise of one shall not be deemed a waiver of
the right to exercise any other or others. No delay or omission of
ACF or ARI in the exercise of any such right, power or remedy and no
extension of time for any payment due hereunder shall impair any such
power or shall be construed to be a waiver of any default or an
acquiescence therein. Any extension of time for payment hereunder or
other indulgence duly granted by either ACF to ARI or ARI to ACF shall
not otherwise alter or affect the respective rights and obligations of
ACF and ARI. The acceptance by ACF or ARI of any payment after it
shall have become due hereunder shall not be deemed to alter or affect
the respective rights and obligations of ACF and ARI with respect to
any subsequent payments or defaults hereunder.
PAGE
<PAGE>
9. Records and Inspection. ARI will assure that all
records relating to the manufacture and quality control of each
shipment of Products are retained and are available to ACF for a
period of not less than five (5) years from the date of delivery to
ACF of such shipment of Products. At any time and from time to time
during the term of this Agreement, ACF may, by giving written notice
to ARI at least two (2) Business Days in advance, examine ARI's books
and records and make copies thereof and extracts therefrom, during
normal business hours, in order to confirm the prices for Products
(including any estimates or calculations by ARI and the basis
therefor).
10. Indemnification. (a) ARI shall defend, indemnify and
hold ACF harmless from and against any and all costs and expenses
(including reasonable attorneys' fees) attributable to third party
claims or suits for any damages: (i) resulting from ARI's delivery to
ACF of (A) any defectively designed Product, if such Product was
designed by ARI or (B) any defectively manufactured Product; (ii)
ARI's bad faith, willful misconduct, recklessness or negligence; or
(iii) which claims or suits are independent of the transactions
contemplated by this Agreement.
(b) If any party to be indemnified is entitled to
indemnification hereunder based upon a claim asserted by a third
party, the indemnifying party shall be given prompt notice thereof in
reasonable detail; provided, however, the failure to give prompt
notice shall not relieve the indemnifying party of any liability
hereunder, except to the extent the indemnifying party is prejudiced
by such failure. The indemnifying party shall have the right (without
prejudice to the right of any party to be indemnified to participate
at its expense through counsel of its own choosing) to defend such
claim at its expense and through counsel of its own choosing which is
PAGE
<PAGE>
reasonably acceptable to the party to be indemnified if the indemni-
fying party gives notice of its intention to do so not later than
twenty (20) days following its receipt of notice of such claim from
the party to be indemnified (or such shorter time period as is
required so that the interests of the party to be indemnified would
not be materially prejudiced as a result of its failure to have
received such notice from the indemnifying party); provided, however,
that if the defendants in any action shall include both an indemni-
fying party and a party to be indemnified and the party to be indemni-
fied shall have reasonably concluded that counsel selected by the
indemnifying party has a conflict of interest because of the
availability of different or additional defenses to the party to be
indemnified, the party to be indemnified shall have the right to
select separate counsel to participate in the defense of such action
on its behalf, at the expense of the indemnifying party. The
indemnifying party shall not have the power to bind the indemnified
party, without the indemnified party's prior written consent, which
shall not be unreasonably withheld or delayed, with respect to any
settlement pursuant to which anything is required other than the
payment of money and then only to the extent that the indemnifying
party shall make full payment of such money. If the indemnifying
party does not so choose to defend any such claim asserted by a third
party for which the party to be indemnified would be entitled to
indemnification hereunder, then the party to be indemnified shall be
entitled to recover from the indemnifying party, on a monthly basis,
all of its reasonable attorneys' fees and other costs and expenses of
litigation of any nature whatsoever incurred in the defense of such
claim. If the indemnifying party assumes the defense of any such
claim, the indemnifying party will hold the party to be indemnified
harmless from and against any and all damages arising out of any
settlement approved by such indemnifying party or any judgment in
connection with such claim or litigation. Notwithstanding the
assumption of the defense of any claim by an indemnifying party
pursuant to this Section 10, the party to be indemnified shall have
the right to approve the terms of any settlement of a claim (which
approval shall not be unreasonably withheld or delayed).
Notwithstanding anything to the contrary contained herein, an
indemnifying party will not be liable for any settlement of a claim
effected without its prior written consent.
PAGE
<PAGE>
(c) The indemnifying party and the party to be indemnified
shall cooperate in furnishing evidence and testimony and in any other
manner which the other may reasonably request, and shall in all other
respects have an obligation of good faith dealing, one to the other,
so as not to unreasonably expose the other to an undue risk of loss.
The party to be indemnified shall be entitled to reimbursement for
out-of-pocket expenses reasonably incurred by it in connection with
such cooperation. Except as otherwise specified in this Section 10,
each party shall bear its own fees and expenses incurred pursuant to
this Section 10.
(d) The indemnity obligations of the parties pursuant to
this Section 10 (including obligations to indemnify against third
party claims made after the expiration or termination of the term of
this Agreement) shall survive forever the expiration or termination of
the term of this Agreement.
11. Trade Names and Trademarks. Each party hereto hereby
acknowledges that it does not have, and will not acquire, any interest
in any of the other party's trademarks or trade names appearing on the
labels or packaging materials for the Products, unless otherwise
expressly agreed.
12. Conflict in Terms. To the extent, if any, that there
is a conflict between the provisions of the Standard Purchase Order
and the provisions of this Agreement, the provisions of this Agreement
shall govern.
13. Force Majeure. Neither party hereto shall be deemed to
be in breach or in violation of this Agreement if such party is
prevented from performing any of its obligations hereunder for any
reason beyond its reasonable control, including acts of God, riots,
strikes, labor disputes affecting supplies, fires, floods, explosions,
storms, wars, insurrections, public disturbances or any regulation of
any Federal, state or local government or any agency thereof.
14. Entire Agreement; Modification and Waiver. This
Agreement (including the recitals herein and any schedules or exhibits
hereto, each of which is an integral part of this Agreement) sets
forth the entire agreement and understanding between ACF and ARI with
respect to the subject matter hereof. This Agreement may not be
changed, altered, modified or amended in any respect without a writing
to that effect, signed by both of the parties hereto. Failure of a
party to enforce one or more of the provisions of this Agreement or to
exercise any option or other rights hereunder or to require at any
time performance of any of the obligations hereof shall not in any
manner be construed (a) to be a waiver of such provisions by such
party, (b) to affect the validity of this Agreement or such party's
right thereafter to enforce each and every provision of this
Agreement, or (c) to preclude such party from taking any other action
at any time which it would be legally entitled to take.
PAGE
<PAGE>
15. Communications. Except as otherwise specified in this
Agreement, all notices, requests, demands, consents, approvals,
reports, statements and other communications under this Agreement
shall be in writing and shall be deemed to have been given (a) upon
receipt when delivered by hand, overnight delivery service or
facsimile transmission with respect to which receipt has been acknowl-
edged or (b) three (3) Business Days after mailing, by registered or
certified mail, postage prepaid, return receipt requested, and ad-
dressed to the party for whom intended at the following addresses or
such changed address as such parties may have fixed by notice:
To ACF:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, Missouri 63045-1393
Attention: Chief Financial Officer
Telecopy No.: (314) 344-4216
Telephone No.: (314) 344-4500
with a required copy to:
Gordon Altman Butowsky Weitzen
Shalov & Wein
114 West 47th Street
New York, New York 10036
Attention: Douglas S. Rich, Esq.
Telecopy No.: (212) 626-0799
Telephone No.: (212) 626-0836
PAGE
<PAGE>
To ARI:
American Railcar Industries, Inc.
3301 Rider Trail South
Earth City, Missouri 63045-1393
Attention: President
Telecopy No.: (314) 344-4213
Telephone No.: (314) 344-4200
with a required copy to:
Gordon Altman Butowsky Weitzen
Shalov & Wein
114 West 47th Street
New York, New York 10036
Attention: Douglas S. Rich, Esq.
Telecopy No.: (212) 626-0799
Telephone No.: (212) 626-0836
provided, however, that any notice of change of address shall be
effective only upon receipt.
16. Governing Law. In accordance with Section 5-1401 of
the New York General Obligation Law, the parties hereto agree that
this Agreement shall be governed by and construed and enforced under
the laws of the State of New York.
17. Severability. Any provision of this Agreement that may
be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
so long as the economic or legal substance of the transactions
contemplated thereby is not affected in any manner adverse to any
party. Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties
hereby waive any provision of law that renders any provision of this
Agreement prohibited or unenforceable in any respect. In addition, in
the event of any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provision
which is held or determined to be prohibited or unenforceable, as
written, in any jurisdiction shall nonetheless be in force and binding
to the fullest extent permitted by the law of such jurisdiction as
though such provision had been written in such a manner and to such an
extent as to be enforceable therein under the circumstances.
PAGE
<PAGE>
18. Headings and Terms. Headings to Sections contained
herein are for convenience and reference purposes only and are not to
be given any substantive effect or meaning. Any term herein defined
in the singular shall have a corresponding meaning when used in the
plural and the converse applies. All references to Sections are
references to sections of this Agreement except as otherwise
specified.
19. Disjunctive. As used in this Agreement, unless the
context requires otherwise, the word "or" shall have the conjunctive
as well as disjunctive meaning and refers to alternatives that are not
necessarily exclusive. As used in this Agreement, references to
"include" and similar terms shall be construed as if followed by the
phrase "without limitation."
20. Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that no assignment hereof by ACF or ARI or transfer of any
party's rights or obligations hereunder whether by operation or law or
otherwise shall be valid and effective as against ARI or ACF without
the prior consent of both ARI and ACF, which consent shall not be
unreasonably withheld or delayed.
21. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
22. Costs. Except as otherwise specified herein, each
party shall bear its own costs and expenses relating to the
transactions contemplated by this Agreement.
PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the
day and year first above written.
ACF INDUSTRIES, INCORPORATED
By: /s/ James J. Unger
Name: James Unger
Title: President
AMERICAN RAILCAR INDUSTRIES, INC.
By: /s/ Roger Wynkoop
Name: Roger Wynkoop
Title: Vice President
PAGE
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EXHIBIT A
During the First Period, all Applicable Gross Profit
Percentages will be set as follows:
All Products from Corbitt Manufacturing, a division of Corbitt Holding
Corporation ("Corbitt Manufacturing"):
Applicable Gross Profit Percentage to be determined by Corbitt
Manufacturing based on the actual cost of manufacture by Corbitt
Manufacturing and price paid by ACF as of the Effective Date for
each product manufactured at Corbitt Manufacturing's
manufacturing facility for the Product.
All Products from Southwest Steel Casting Company:
[CONFIDENTIAL TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) of actual manufacturing costs of each
Product as of the Effective Date.
All Products from Jackson, Missouri manufacturing facility:
[CONFIDENTIAL TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED%) of actual manufacturing costs of each
Product as of the Effective Date.
Following the First Period, all Applicable Gross Profit
Percentages will be set as contemplated by Section 5(a).
PAGE
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EXHIBIT C
EXHIBIT C
to SUPPLY AGREEMENT
General description of items sold by Corbitt Mfg. to ACF Industries:
Aluminum Castings:
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
Fabricated Steel:
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
Fabricated Stainless Steel:
[CONFIDENTIAL TREATMENT REQUESTED]
PAGE
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EXHIBIT C
TO SUPPLY AGREEMENT
TO: HARRY McKINGTRY - ACF
FROM: JOHN GLEGHORN - SWS
SUBJECT: ACF PARTS MANUFACTURED BY SOUTHWEST STEEL
THE FOLLOWING IS THE LISTING OF PARTS WE MANUFACTURE FOR THE ACF
LOCATIONS.
PATT # DESCRIPTION
-------- -----------------------
HUNTINGTON [CONFIDENTIAL TREATMENT REQUESTED]
MILTON [CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
[CONFIDENTIAL TREATEMENT REQUESTED]
ST. CHARLES [CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
RAILCAR SERVICING AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation and
AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation.
PAGE
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TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Engagement of ARI. . . . . . . . . . . . . . . . . . . . . . . 3
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Duties of ARI. . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1. Maintenance; ARI's Expenses. . . . . . . . . . . . . . . 4
4.2. Compliance with Law. . . . . . . . . . . . . . . . . . . 6
4.3. Services . . . . . . . . . . . . . . . . . . . . . . . . 6
4.4. Records and Information. . . . . . . . . . . . . . . . . 6
4.5. Services Under Management Agreement. . . . . . . . . . . 7
4.6. Additional Services. . . . . . . . . . . . . . . . . . . 7
5. Representations and Warranties . . . . . . . . . . . . . . . . 7
6. Payments and Fees. . . . . . . . . . . . . . . . . . . . . . . 8
6.1. Maintenance Fees. . . . . . . . . . . . . . . . . . . . . 8
6.2. Annual Adjustments to Maintenance Fees. . . . . . . . . . 9
6.3. Fees for Services. . . . . . . . . . . . . . . . . . . . 9
6.4. Verification of ARI's Fees.. . . . . . . . . . . . . . . 10
7. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 10
7.1. By ACF. . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2. By ARI. . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.3. Third Party Claims. . . . . . . . . . . . . . . . . . . . 10
7.4. Cooperation . . . . . . . . . . . . . . . . . . . . . . . 12
7.5. Survival. . . . . . . . . . . . . . . . . . . . . . . . . 12
8. Events of Default; Remedies. . . . . . . . . . . . . . . . . . 12
8.1. Events of Default . . . . . . . . . . . . . . . . . . . . 12
8.2. Remedies Upon Default . . . . . . . . . . . . . . . . . . 13
8.3. Remedies Cumulative . . . . . . . . . . . . . . . . . . . 14
9. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . 15
10. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11. Entire Agreement; Modification and Waiver. . . . . . . . . . . 15
12. Communications . . . . . . . . . . . . . . . . . . . . . . . . 16
PAGE
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13. Construction of ACF's Expense. . . . . . . . . . . . . . . . . 16
14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 16
15. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 17
16. Headings and Terms . . . . . . . . . . . . . . . . . . . . . . 17
17. Disjunctive. . . . . . . . . . . . . . . . . . . . . . . . . . 17
18. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 17
19. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 18
PAGE
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RAILCAR SERVICING AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation ("ACF") and
AMERICAN RAILCAR INDUSTRIES, Inc., a Missouri corporation ("ARI").
W I T N E S S E T H :
WHEREAS, pursuant to an Asset Transfer Agreement of even
date hereto among ACF, ARI and Carl C. Icahn (the "Transfer
Agreement"), ACF has agreed to transfer to ARI certain assets and
liabilities, as more fully described therein;
WHEREAS, in connection with the transfer of such assets to
ARI, ACF desires to retain ARI to provide railcar maintenance services
for and on behalf of ACF, and ARI desires to accept such engagement.
NOW, THEREFORE, the parties hereto, desiring legally to be
bound, hereby agree as follows:
1. Definitions. As used herein, the following terms
shall have the following meanings:
"AAR" means the Association of American Railroads and any
successor thereto.
"AAR Value" with respect to any Car means the value of such
Car, as determined in accordance with Rule 107 of the AAR for
determining the value of railcars (or any successor rule promulgated
by the AAR).
An "Affiliate" of a person means any individual,
corporation, partnership, joint venture, association or other entity
that directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with such
person. For purposes of this definition, "control," when used with
respect to any person, means the power to direct the management or
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"Cars" means at any time the covered hopper, tank and other
railcars owned or managed by ACF and leased or held for lease at such
time.
"DOL" means the United States Department of Labor.
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"DOT" means the United States Department of Transportation.
"Event of Default" shall have the meaning set forth in
Section 8.1 hereof.
"Fleet Management Services" means (i) providing technical
and engineering assistance and acting as liaison to regulatory
agencies and industry groups, (ii) providing Car repair disposition
and processing of Cars through repair facilities so as to effect
necessary and proper repairs and maintenance while minimizing out-of-
service time, (iii) maintaining proper mechanical Car records for all
Cars and (iv) providing purchasing, inventory management and sales of
materials used in the repair and maintenance of Cars.
"ICC" means the United States Interstate Commerce
Commission.
"Maintenance" shall have the meaning set forth in Section
4.1 hereof.
"Management Agreements" means the railcar management
agreement dated as of April 28, 1993 between American Car Line Company
and ACF and the railcar management agreement dated as of December 30,
1993 between ACF Railcar Acquisition Company and ACF, pursuant to each
of which ACF was engaged to provide marketing, maintenance, billing
and other services with respect to certain railcars, as well as any
other existing management agreement between ACF and any User.
"month" means a calendar month and "year" means a calendar
year.
"Regulatory Authorities" means the ICC, the DOT, the DOL,
the AAR or any other governmental authority or industry agency or
authority which has proper jurisdiction to regulate the ownership,
leasing, operation, maintenance or use of the Cars.
"Safety and Environmental Services" means the education of
employees on safety and safety awareness, review of regulations,
performance of environmental and safety audits, and technical
assistance in the administration of legal matters involving
environmental and safety issues.
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"Services" means Fleet Management Services and Safety and
Environmental Services and each of them, a "Service."
"Term" means the term of the maintenance and other
obligations of ARI and ACF hereunder with respect to the Cars,
commencing as of the date hereof and continuing until terminated as
provided in Section 3 hereof.
"User Lease" means any car service contract or other lease
of Cars or any separate schedule or rider to a master car service
contract or other lease and which schedule or rider incorporates by
reference all of the terms and conditions of such master contract or
lease other than those in other schedules or riders thereto or as
specifically identified in such schedule or rider.
"User" means any shipper, railroad or other party not an
Affiliate of ACF or ARI who uses Cars pursuant to a User Lease.
2. Engagement of ARI. ACF hereby engages ARI (i) to
maintain the Cars on behalf of ACF and (ii) to provide certain
Services to ACF, in each case on the terms and conditions set forth
herein, and ARI hereby accepts such engagement.
3. Term. The Term shall commence as of the date hereof
and, subject to the provisions of Section 8 hereof, shall continue
until October 1, 2009, provided, that the Term shall automatically be
extended for additional successive five (5) year periods unless and
until ACF gives ARI six (6) months prior written notice of
termination. Notwithstanding anything contained in this Agreement to
the contrary, in the event of any termination of this Agreement,
unless and until an Event of Default by ACF (as defined in Section 8.1
hereof) shall have occurred, ARI shall continue to provide Maintenance
hereunder until a replacement commences to perform substantially
similar functions. The obligations of ACF and ARI hereunder arising
during the Term, or as may otherwise be specifically provided for in
this Agreement, shall survive the expiration or earlier termination of
the Term.
4. Duties of ARI. Subject to the terms and provisions
hereof, ARI shall provide or arrange for the provision of the services
specified in this Section 4 to and on behalf of ACF during the Term.
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4.1. Maintenance; ARI's Expenses. (a) ARI shall use
reasonable commercial efforts to cause the Cars to be maintained (the
"Maintenance") in good operating order and condition. The standard
for Maintenance shall be the highest of (i) standard industry
practice, (ii) any standard required or set forth for the Cars or
railcars of a similar class by law or any Regulatory Authority; and
(iii) with respect to the Cars leased to each User, any standard set
by such User, whether by terms of a User Lease or by other under-
standing or agreement between a User and ACF; provided, however, that
such standard shall never be lower than the better of (i) the standard
for Maintenance provided to any other customer of ARI to which ARI
provides general maintenance services for a fleet of owned or leased
railcars and (ii) the same level and priority of Maintenance provided
to ACF prior to the transfer of assets contemplated by the Transfer
Agreement; provided, further, that subject to Section 4.2 hereof, (1)
expenditures for Maintenance in excess of those expenditures which
ARI, in the exercise of its reasonable commercial judgment, would make
if the relevant Cars were owned by it, shall not be made without the
prior written consent of ACF unless such Maintenance is required
pursuant to applicable law or the rules and regulations of any
Regulatory Authority and (2) unless required pursuant to applicable
law or the rules and regulations of any Regulatory Authority or
consented to in writing by ACF, no action shall be taken hereunder by
ARI, regardless of cost, which reduces the value or utility of any
Car. Maintenance shall include, without limitation, all maintenance,
repairs, servicing, painting, alterations, modifications, improvements
or additions to the Cars in order to meet any of the foregoing
standards. Simultaneously with the execution and delivery of this
Agreement, ACF shall provide ARI with guidelines with respect to
certain Cars, which guidelines may be amended by ACF from time to
time. In the event that Maintenance is to be provided in respect of
any Car covered by such guidelines, ARI shall notify ACF prior to the
performance of such Maintenance. ARI shall also periodically inspect
such Cars as it deems reasonably necessary in order to determine
whether the Cars are being properly used and maintained and shall
notify ACF promptly upon obtaining actual knowledge of (i) the loss or
destruction of, or damage beyond repair to, any Car, (ii) the
occurrence of any other event which would cause any Car to be taken
out of service for more than one hundred twenty (120) consecutive days
or (iii) the imposition of any new law or any rules or regulations by
any Regulatory Authority which may have a material impact on the ACF's
revenues or expenses relating to the Cars. Should unusual wear,
premature failure or other such events require any Cars to be taken
out of service or be subject to unusually high Maintenance costs, ARI
will inform ACF of any special engineering investigations or other
expenses required in connection therewith, and will advise ACF of the
cost of such investigations prior to performing necessary work. Such
investigations shall be performed at ACF's expense, but shall not be
commenced without ACF's prior written approval.
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(b) Maintenance may be performed by ARI or third
parties as may be designated by ACF from time-to-time. All other
services to be provided by ARI under this Agreement shall be performed
by ARI unless otherwise consented to in writing by ACF.
(c) If material supplied by ARI or work performed by
it is found to be defective, ACF shall notify ARI and ACF shall have
the right to require the prompt correction thereof by ARI at ARI's
expense and risk or, at ACF's option, ACF may correct the work or have
the same corrected, charging ARI for the cost of making such
correction. Such correction shall not affect ARI's warranty pursuant
to Section 4.1(d). If correction of such work is impractical, in the
opinion of ACF, ARI shall bear all risk after notice of rejection and
ARI will, if requested in writing to do so by ACF, at ARI's expense,
promptly replace such work or the parts thereof which are defective
or, if ARI fails to replace promptly such work or parts, ACF may by
contract or otherwise replace such work or such parts and charge ARI
the excess cost occasioned to ACF thereby. In lieu of the foregoing,
ACF may reject and/or return any defective work or materials and ARI
shall refund to ACF any payment made therefor.
(d) ARI warrants to ACF that (i) all labor furnished
to ACF hereunder shall be performed in a workmanlike manner, (ii) all
parts furnished to ACF hereunder that are designed by ARI shall be
free from all defects in design and materials and (iii) all parts
furnished to ACF hereunder that are designed by ACF and manufactured
by ARI shall be free from all defects in materials. ARI agrees that
this warranty shall survive acceptance of and payment for such
Maintenance. In the event that ACF requests that ARI obtain any parts
from a third party, ARI shall assign to ACF any warranties obtained
from such third party in respect of such parts or, if such third party
warranties are not assignable, shall cooperate with ACF so as to
afford ACF the benefit of such third party warranties.
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4.2. Compliance with Law. ARI, at ACF's expense, shall use
reasonable commercial efforts to cause the Cars to comply, and ACF
agrees that each User Lease entered into or renewed after the date
hereof shall require the User thereunder to comply, in all respects
with all applicable laws and rules and regulations of the Regulatory
Authorities. In the event that such laws, rules or regulations
require any alteration of a Car, or in the event that any equipment or
appliance of a Car shall be required to be changed or replaced, or in
the event that any additional or other equipment or appliance is
required to be installed on a Car in order to comply with such laws,
rules or regulations (a "Mandatory Alteration"), ARI shall notify ACF
that a Mandatory Alteration is required and, if ACF so instructs, at
ACF's expense, shall make such alteration, change, replacement or
addition. In addition, promptly after ARI has notice that any laws,
rules or regulations will or may require a Mandatory Alteration, ARI
shall notify ACF whether ARI believes, in the exercise of its good
faith business judgement, that such law, rule or regulation should be
contested.
4.3. Services.
(a) Subject to the terms and provisions hereof, ARI shall
provide the Services to and on behalf of ACF during the Term in the
same manner, and in the case of Safety and Environmental Services, at
the same locations, as ACF performed such Services on its own behalf
prior to the transfer of assets contemplated by the Transfer
Agreement;
(b) ACF shall furnish to ARI all such information as may
be necessary to enable ARI to provide the Services.
4.4. Records and Information. ARI shall maintain separate,
complete and accurate records relating to the Cars and all matters
covered by this Agreement in the same form and to the same extent as
ACF has customarily maintained records in respect of the Cars prior to
the date hereof. ARI shall promptly, upon request of ACF, deliver to
ACF or its designee originals or copies of such records.
4.5. Services Under Management Agreement. ARI acknowledges
receipt of a copy of each of the Management Agreements, pursuant to
which ACF has agreed to provide Maintenance with respect to certain
Cars. ARI shall provide or cause to be provided Maintenance with
respect to such Cars at the standard set forth in the Management
Agreement and otherwise ensure compliance by ACF with the terms and
conditions for Maintenance set forth in the Management Agreement.
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4.6. Additional Services. ARI shall be responsible for the
provision of such other services incidental to the foregoing as may
from time to time be required under the User Leases with respect to
Cars or may be reasonably necessary in connection with the maintenance
of the Cars.
5. Representations and Warranties. Each of ACF and ARI
represents and warrants to the other as follows:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey
(in the case of ACF) and Missouri (in the case of ARI). It has
all necessary corporate power and authority and has taken all
corporate action necessary to enter into this Agreement, to con-
summate the transactions contemplated hereby and to perform its
obligations hereunder.
(b) This Agreement has been duly executed and delivered
by it and is a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
such enforceability may be limited by (A) the effect of
bankruptcy, insolvency, reorganization, moratorium, marshalling
or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and (B)
general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.
(c) Neither the execution and delivery by it of this
Agreement nor the performance by it of its obligations hereunder
will (A) with or without the giving of notice or the passage of
time, or both, violate, or be in conflict with, or permit the
termination of, or constitute a default under, or cause the
acceleration of the maturity of, any agreement, debt or obli-
gations of any nature of it or to which it is a party or bound;
(B) require the consent of any party to any agreement, instrument
or commitment to which it is a party or to which it or its
properties is bound; (C) violate any statute or law or any
judgment, decree, order, regulation or rule of any court,
Regulatory Authority or other governmental authority to which it
is subject; or (D) result in the creation of any lien or security
interest or other incumbrance on its assets, which in the case of
(A), (B), (C), or (D) would cause the transactions contemplated
by this Agreement not to be consummated or which would have a
material adverse effect on the business, financial condition or
operations of the other party to this Agreement.
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(d) No consent, approval or authorization of, or
declaration, filing or registration with, any Regulatory
Authority or other governmental agency or authority is required
to be made or obtained by it in connection with the execution,
delivery and performance of this Agreement, the performance by it
of its obligations hereunder or the consummation of the
transactions contemplated hereby, the failure of which to have
been made or obtained would have a material adverse effect on the
ability of such party to perform its obligations hereunder, on
the right, title or interest of ACF in the ACF Cars or on the
business, financial condition, or operations of any party to this
Agreement.
6. Payments and Fees.
6.1. Maintenance Fees. For Maintenance and all other
services provided under this Agreement by ARI (including the services
provided pursuant to Section 4.1(a) hereof, but excluding the
Services), ACF will pay for (i) materials at ARI's actual costs
therefor plus [CONFIDENTIAL TREATMENT REQUESTED] ([CONFIDENTIAL
TREATMENT REQUESTED]%) percent and (ii) labor at the initial hourly
rate of $[CONFIDENTIAL TREATMENT REQUESTED], as adjusted by the
parties pursuant to the terms of Section 6.2. ARI will invoice ACF no
less frequently than quarterly for all services covered by this
Section 6.1 and ACF will pay all invoiced amounts within thirty (30)
days from the date of invoice.
6.2. Annual Adjustments to Maintenance Fees. (a) ACF and
ARI will meet, no less frequently than annually, to review the hourly
labor rate. In the event that ARI desires that such hourly labor rate
be increased, or ACF desires that such rate be decreased ARI shall
submit to ACF or ACF shall submit to ARI, as the case may be, a
proposed hourly rate which shall be based upon the average costs of
labor provided by third parties, as determined jointly by the parties
based on independent surveys, and shall take into account ARI's direct
costs of labor and shall include amounts for ARI's plant or facility
overhead based on ARI's job cost system for allocating overhead. ACF
and ARI shall negotiate in good faith to arrive at any increase or
decrease. Anything to the contrary notwithstanding, the hourly rates
for labor that are in effect at any time shall not exceed the then
current standard rates published by the AAR for such types of labor.
The costs to ACF for Maintenance performed by third parties will be
the charges therefor as invoiced by such third parties, without mark-
up by ARI. Such third party charges will be reviewed and audited by
ARI on behalf of ACF.
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(b) If, at any time during the Term, ARI provides
maintenance to any third party on terms (including price and priority)
more favorable than those offered to ACF, ARI will promptly notify ACF
in writing and will offer and make available to ACF such terms for
such period as such more favorable terms are provided to any third
party.
(c) Nothing in this Section 6.2 shall affect the
rights of the parties to terminate this Agreement pursuant to Section
3 or 8 hereof.
6.3. Fees for Services. For each of the Services provided
under this Agreement by ARI, ACF will pay ARI an amount equal to the
aggregate direct costs incurred by or on behalf of ARI in connection
with the provision of such Services plus five (5%) percent. ARI's
direct costs shall include a reasonable allocation of that part of
ARI's labor and overhead expenses attributable to the provision of the
Services, including the costs of maintaining the employees who provide
the Services (collectively, the "Fees"). ARI will invoice ACF no less
frequently than quarterly for all Services performed hereunder, which
invoice shall be accompanied by a summary, in reasonable detail, of
ARI's calculation of the Fees, which calculation shall be binding upon
ACF, absent manifest error. ACF will pay all invoiced amounts within
thirty (30) days from the date of invoice.
6.4. Verification of ARI's Fees. Upon ACF's written
request given at least two (2) business days in advance, ARI will
provide ACF with access to ARI's books and records relating to the
Maintenance for the Cars and to the provision of the Services, during
normal business hours, for the purpose of copying and making extracts
therefrom, at ACF's expense, to verify ARI's calculation of the
maintenance fees and the Fees, including those for labor and allocated
overhead and, in the case of Maintenance, to confirm the costs of
Maintenance performed by third parties.
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7. Indemnification.
7.1. By ACF. ACF shall defend, indemnify and hold ARI
harmless from and against any and all claims, actions, damages,
losses, liabilities, costs or expenses (including reasonable
attorneys' fees) (each a "Claim") incurred by or asserted against ARI
to the extent resulting or arising from ACF's failure to comply with
or perform its obligations under this Agreement, the use, operation,
possession, control, maintenance, repair or storage of the Cars,
claims for injury to or death of persons, loss or damage to property
(including the Cars) and economic loss to Users or other third parties
due to the unavailability for use of the Cars; provided, however, that
ACF shall not defend, indemnify or hold ARI harmless from and against,
and ARI shall not be exculpated from, any Claim, to the extent caused
by or arising from ARI's bad faith, willful misconduct, recklessness,
negligence, or from ARI's failure to comply with or perform its
obligations under this Agreement (including, the failure to provide
any service as required hereunder in accordance with the standard of
care provided herein).
7.2. By ARI. ARI shall defend, indemnify and hold ACF
harmless from and against any and all Claims, incurred by or asserted
against ACF to the extent resulting or arising from ARI's failure to
comply with or perform its obligations under this Agreement (in-
cluding, a failure to provide any service as required hereunder in
accordance with the standard of care provided herein) or from ARI's
bad faith, willful misconduct, recklessness, or negligence.
7.3. Third Party Claims. In the event any party to be
indemnified is entitled to indemnification hereunder based upon a
claim asserted by a third party, the indemnifying party shall be given
prompt notice thereof in reasonable detail; provided, however, the
failure to give prompt notice shall not relieve the indemnifying party
of any liability hereunder, except to the extent the indemnifying
party is prejudiced by such failure. The indemnifying party shall
have the right (without prejudice to the right of any party to be
indemnified to participate at its expense through counsel of its own
choosing) to defend such claim at its expense and through counsel of
its own choosing which is reasonably acceptable to the party to be
indemnified if the indemnifying party gives notice of its intention to
do so not later than twenty (20) days following its receipt of notice
of such claim from the party to be indemnified (or such shorter time
period as is required so that the interests of the party to be
indemnified would not be materially prejudiced as a result of its
PAGE
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failure to have received such notice from the indemnifying party);
provided, however, that if the defendants in any action shall include
both an indemnifying party and a party to be indemnified and the party
to be indemnified shall have reasonably concluded that counsel
selected by the indemnifying party has a conflict of interest because
of the availability of different or additional defenses to the party
to be indemnified, the party to be indemnified shall have the right to
select separate counsel to participate in the defense of such action
on its behalf, at the expense of the indemnifying party. The
indemnifying party shall not have the power to bind the indemnified
party, without the indemnified party's prior written consent, which
shall not be unreasonably withheld, with respect to any settlement
pursuant to which anything is required other than the payment of money
and then only to the extent that the indemnifying party shall make
full payment of such money. If the indemnifying party does not so
choose to defend any such claim asserted by a third party for which
the party to be indemnified would be entitled to indemnification
hereunder, then the party to be indemnified shall be entitled to
recover from the indemnifying party, on a monthly basis, all of its
reasonable attorneys' fees and other costs and expenses of litigation
of any nature whatsoever incurred in the defense of such claim. If
the indemnifying party assumes the defense of any such claim, the
indemnifying party will hold the party to be indemnified harmless from
and against any and all damages arising out of any settlement approved
by such indemnifying party or any judgment in connection with such
claim or litigation. Notwithstanding the assumption of the defense of
any claim by an indemnifying party pursuant to this paragraph, the
party to be indemnified shall have the right to approve the terms of
any settlement of a claim (which approval shall not be unreasonably
withheld or delayed). Notwithstanding anything to the contrary
contained herein, an indemnifying party will not be liable for any
settlement of a claim effected without its prior written consent.
7.4. Cooperation. The indemnifying party and the party to
be indemnified party shall cooperate in furnishing evidence and
testimony and in any other manner which the other may reasonably
request, and shall in all other respects have an obligation of good
faith dealing, one to the other, so as not to unreasonably expose the
other to an undue risk of loss. The party to be indemnified shall be
entitled to reimbursement for out-of-pocket expenses reasonably
incurred by it in connection with such cooperation. Except for fees
and expenses for which indemnification is provided pursuant to
Sections 7.1 or 7.2 hereof, as the case may be, and as provided in the
preceding sentence, each party shall bear its own fees and expenses
incurred pursuant to this Section 7.4.
7.5. Survival. The indemnity obligations of the parties
pursuant to this Section 7 (including, without limitation, obligations
to indemnify against third party claims made after the expiration or
termination of the Term) shall survive forever the expiration or
termination of the Term.
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8. Events of Default; Remedies.
8.1. Events of Default. The occurrence of any of the
following events shall constitute an "Event of Default" under this
Agreement:
(a) The failure by ACF or ARI to pay when due any
amount payable by it hereunder unless such failure shall have been
remedied within ten (10) days after receipt by the defaulting party of
notice thereof from the other party;
(b) default shall be made in the due observance or
performance of any covenant (other than a covenant to make payments
referred to in clause (a) hereof) to be observed or performed by ARI
or ACF hereunder, and such default shall not have been remedied within
thirty (30) days after receipt by the defaulting party of notice
thereof from the other party hereto;
(c) the commencement of any case or proceeding
against ARI (A) under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) seeking to
adjudge ARI a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of ARI under
any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of ARI or of any substantial part of the property of, or
ordering the winding up or liquidation of the affairs of ARI, and (i)
the entry of an order for relief in any of the foregoing or any such
adjudication or appointment shall occur or (ii) the continuance of any
such case or proceeding undismissed, undischarged or unbonded for a
period of 60 consecutive days; or
(d) the commencement by ARI of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of ARI in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against ARI, or the filing by ARI of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by ARI to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trust, sequestrator or
similar official of ARI or of any substantial part of ARI's property,
or the making by it of an assignment for the benefit of creditors, or
the admission by ARI in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by ARI
in furtherance of any such action;
(e) Any representation or warranty made herein,
shall prove to have been false or misleading as of the time made or
furnished in any material respect.
<PAGE>
8.2. Remedies Upon Default. (a) Default by Either Party.
Upon the occurrence and during the continuation of any Event of
Default, the non-defaulting party, in its sole discretion, may
(i) terminate the Term by notice to the defaulting party, which
termination shall be effective as of the date of such notice or such
later date, in the discretion of the non-defaulting party, as such
notice may specify, (ii) proceed by appropriate court action to
enforce performance of this Agreement by the defaulting party and/or
(iii) sue to recover actual direct damages (including lost rents but
not consequential damages) which result from a breach hereof, and such
defaulting party shall bear the other party's costs and expenses,
including reasonable attorney's fees, in securing such enforcement or
damages.
(b) Default By ARI. Upon the occurrence of an Event
of Default by ARI and the termination of the Term by ACF as provided
in Section 8.2(a) hereof, ACF may (i) demand and be entitled to
delivery of each Car then in the possession or control of ARI and (ii)
demand and be entitled to receive copies of all of ARI's records
regarding the Cars and the Services. ARI hereby (x) agrees to
cooperate fully with ACF or its assignees in connection with the
transfer of ARI's rights and duties hereunder to a third party and (y)
expressly waives any and all claims against ACF for damages of
whatever nature arising out of or resulting from the termination of
ARI's servicing rights as to the Cars as properly permitted hereunder.
Notwithstanding the foregoing, ARI agrees that if it breaches any of
its obligations hereunder, ACF would sustain irreparable harm, and,
therefore, in addition to any other remedies which ACF may have under
this Agreement or otherwise, ACF shall be entitled to seek specific
performance by ARI of its obligations hereunder and/or an injunction
from any court of competent jurisdiction restraining ARI from
committing or continuing any violation of this Agreement. ARI
acknowledges that damages at law would not be an adequate remedy in
the event that ARI breaches its obligations hereunder and, therefore
agrees that if ACF shall institute any action or proceeding to enforce
those obligations, ARI hereby waives and agrees not to assert the
claim or defense that ACF has an adequate remedy at law. Nothing
herein shall be construed as prohibiting ACF from pursuing any other
remedies available to it for any breach or threatened breach,
including the recovery of damages from ARI.
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8.3. Remedies Cumulative. Each and every right, power and
remedy herein specifically given to ACF or ARI shall be in addition to
every other right, power and remedy herein specifically given or now
or hereafter existing at law or in equity, and each and every right,
power and remedy may be exercised from time to time and simultaneously
and as often and in such order as may be deemed expedient by ACF or
ARI. All such rights, powers and remedies shall be cumulative, and
the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the ACF or ARI
in the exercise of any such right, power or remedy and no extension of
time for any payment due hereunder shall impair any such power or
shall be construed to be a waiver of any default or an acquiescence
therein. Any extension of time for payment hereunder or other
indulgence duly granted by either the ACF to ARI or ARI to ACF shall
not otherwise alter or affect the respective rights and obligations of
the ACF and ARI. The acceptance of any payment of the ACF or ARI
after it shall have become due hereunder shall not be deemed to alter
or affect the respective rights and obligations of the ACF and ARI
with respect to any subsequent payments or defaults hereunder.
9. Force Majeure. Neither party hereto shall be deemed
to be in breach or in violation of this Agreement if such party is
prevented from performing any of its obligations hereunder for any
reason beyond its reasonable control, including, without limitation,
acts of God, riots, strikes, fires, storms, wars, insurrections,
public disturbances or any regulation of any Federal, state or local
government or any agency thereof.
10. Consents. Whenever the consent or approval of ACF is
required hereunder, such consent or approval may be withheld by ACF in
ACF's sole, absolute and unrestricted discretion except in such cases
where this Agreement specifically provides that such consent or
approval shall not be unreasonably withheld.
11. Entire Agreement; Modification and Waiver. This
Agreement (including the recitals herein and any schedules or exhibits
hereto, each of which is an integral part of this Agreement) sets
forth the entire agreement and understanding between the ACF and ARI
with respect to the subject matter hereof. This Agreement may not be
changed, altered, modified or amended in any respect without a writing
to that effect, signed by both of the parties hereto. Failure of a
party to enforce one or more of the provisions of this Agreement or to
exercise any option or other rights hereunder or to require at any
time performance of any of the obligations hereof shall not in any
manner be construed (a) to be a waiver of such provisions by such
party, (b) to affect the validity of this Agreement or such party's
right thereafter to enforce each and every provision of this
Agreement, or (c) to preclude such party from taking any other action
at any time which it would be legally entitled to take.
PAGE
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12. Communications. All notices, requests, demands,
consents, approvals, reports, statements and other communications
under this Agreement shall be in writing and shall be deemed to have
been given (a) upon receipt when delivered by hand, overnight delivery
service or facsimile transmission with respect to which receipt has
been acknowledged or (b) three (3) business days after mailing, by
registered or certified mail, postage prepaid, return receipt
requested, and addressed to the party for whom intended at the
following addresses or such changed address as such parties may have
fixed by notice:
To ACF:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, Missouri 63045-1393
Attention: Chief Financial Officer
Telecopy no.: (314) 344-4216
Telephone no.: (314) 344-4500
To ARI:
American Railcar Industries, Inc.
3301 Rider Trail South, Suite 234
Earth City, Missouri 63045-1393
Attention: President
Telecopy no.: (314) 344-4213
Telephone no.: (314) 344-4200
provided, however, that any notice of change of address shall be
effective only upon receipt.
13. Construction of ACF's Expense. Any reference to
"ACF's expense" with respect to any action which is required to be
performed by ARI pursuant to this Agreement shall be performed at
ARI's cost without markup.
14. Governing Law. In accordance with Section 5-1401 of
the New York General Obligation Law, the parties hereto agree that
this Agreement shall be governed by and construed and enforced under
the laws of the State of New York.
PAGE
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15. Severability. Any provision of this Agreement that
may be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
so long as the economic or legal substance of the transactions
contemplated thereby is not affected in any manner adverse to any
party. Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties
hereby waive any provision of law that renders any provision of this
Agreement prohibited or unenforceable in any respect. In addition, in
the event of any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provision
which is held or determined to be prohibited or unenforceable, as
written, in any jurisdiction shall nonetheless be in force and binding
to the fullest extent permitted by the law of such jurisdiction as
though such provision had been written in such a manner and to such an
extent as to be enforceable therein under the circumstances.
16. Headings and Terms. Headings to Sections contained
herein are for convenience and reference purposes only and are not to
be given any substantive effect or meaning. Any term herein defined
in the singular shall have a corresponding meaning when used in the
plural and the converse applies.
17. Disjunctive. As used in this Agreement, unless the
context requires otherwise, the word "or" shall have the conjunctive
as well as disjunctive meaning and refers to alternatives that are not
necessarily exclusive. As used in this Agreement, references to
"include" and similar terms shall be construed as if followed by the
phrase "without limitation."
18. Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that no assignment hereof by ACF or ARI or transfer of any
party's rights or obligations hereunder whether by operation or law or
otherwise shall be valid and effective as against ARI or ACF without
the prior consent of both ARI and ACF which consent shall not be
unreasonably withheld.
PAGE
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19. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Railcar Servicing Agreement as of the date first above written.
ACF INDUSTRIES, INCORPORATED
By: /s/ James J. Unger
AMERICAN RAILCAR INDUSTRIES, INC.
By: /s/ Roger Wynkoop
LICENSE AGREEMENT
THIS AGREEMENT, dated as of October 1, 1994, by
and between ACF Industries, Incorporated, a New Jersey
corporation ("ACF") and American Railcar Industries, Inc., a
Missouri corporation ("Licensee").
W I T N E S S E T H:
WHEREAS, ACF and the Licensee have entered into an
Asset Transfer Agreement dated as of October 1, 1994 (the
"Transfer Agreement"), whereby ACF has agreed to transfer,
and the Licensee has agreed to buy, certain assets used by
ACF in the manufacture of railcar parts and the repair and
refurbishment of railcars, including, without limitation,
formulae, patents, trademarks, trade secrets and other
technical knowledge owned by ACF which specifically and
exclusively relate to the Business;
WHEREAS, ACF possess certain other patents,
technical information and procedures and other know-how
which is or could be used by ACF and/or Licensee in the
conduct of the Business and otherwise; and
WHEREAS, a condition of the transactions
contemplated by the Transfer Agreement is the execution by
ACF and the Licensee of this License Agreement pursuant to
which ACF will license to Licensee the use of such patents,
technical information and procedures and know-how;
PAGE
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WHEREAS, the Licensee wishes to obtain a license
for such technical information and procedures upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants and agreements hereinafter
set forth, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this
License Agreement, the terms set forth herein shall be
defined as follows:
(a) "Licensed Information" shall mean the
formula, patents, trade secrets and other technical
knowledge owned by ACF which have been or could be used by
ACF and/or Licensee in the conduct of the Business but do
not specifically and exclusively relate to the Business,
including, without limitation, those patents set forth on
Schedule A hereto and incorporated herein by reference.
(b) "Territory" shall mean the world.
All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them
in the Transfer Agreement.
PAGE
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2. LICENSE. ACF hereby grants to the Licensee
and the Licensee hereby accepts from ACF, in consideration
of the payment by Licensee of $1.00, upon the terms and
conditions herein specified, a non-exclusive license to use
the Licensed Information in the Territory.
3. RESTRICTIONS ON LICENSED INFORMATION.
Notwithstanding the foregoing, without the prior written
consent of ACF, Licensee shall not use the Licensed
Information listed on Schedule A hereto for the production
of railcar parts for third parties.
4. TERM. This License Agreement shall become
effective on the date first above written and shall remain
in effect in perpetuity.
5. ASSIGNMENT. This Agreement shall not be
assignable by either party without the prior written consent
of the other, other than in connection with the sale of
substantially all of the business in whatever form of the
Licensee or ACF; provided, however, that any such assignment
shall not relieve the parties whereto from any obligations
under this Agreement and that the assigning party shall
remain jointly and severally liable under this Agreement
with its successor.
PAGE
<PAGE>
6. SECRECY. Except as expressly provided in
this Agreement, the Licensee will treat as confidential and
will not, without the prior written approval of ACF, reveal
to any person, firm, association or corporation any of the
Licensed Information or any other information or data
furnished to the Licensee by ACF pursuant to this Agreement.
ACF and the Licensee and each of them and their
respective agents, servants, employees, attorneys and those
acting in privity with each of them acknowledge and agree
that none of them will issue publicity releases as to the
making of this Agreement, nor as to the terms and conditions
of this Agreement.
7. ENTIRE AGREEMENT. This License Agreement
constitutes the entire agreement between the parties as to
the Licensed Information and the other matters treated
herein.
8. NOTICES. All notices or other communications
hereunder shall be in writing and shall be made by hand
delivery, telex, telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as
follows:
If to the Licensee, to:
American Railcar Industries, Inc.
3301 Rider Trail South
Earth City, MO 63045
PAGE
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If to ACF, to:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, MO 63045
In each case with a copy to:
Gordon Altman Butowsky
Weitzen Shalov & Wein
114 West 47th Street
New York, New York 10036
Attention: Douglas S. Rich
Telecopy: (212)626-0799
or at such other addresses as shall be furnished by the
parties by like notice, and such notice or communication
shall be deemed to have been given or made as of the date so
delivered, if delivered personally; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and
two calendar days after so mailed, if sent by registered or
certified mail.
9. GOVERNING LAW. This License Agreement is
subject to and shall be construed and enforced in accordance
with the laws of the State of Missouri.
PAGE
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set
their hands and seals and duly executed this Agreement the
day and year first above written.
ACF Industries, Incorporated
By: /s/ James J. Unger
Name: James J. Unger
Title: President
American Railcar Industries, Inc.
By: /s/ Roger Wynkoop
Name: Roger Wynkoop
Title: Vice President
LICENSE AGREEMENT
THIS AGREEMENT, dated as of October 1, 1994, by
and between American Railcar Industries, Inc., a Missouri
corporation ("ARI") and ACF Industries, Incorporated, a New
Jersey corporation ("Licensee").
W I T N E S S E T H:
WHEREAS, ARI and the Licensee have entered into an
Asset Transfer Agreement dated as of October 1, 1994 (the
"Transfer Agreement"), whereby the Licensee has agreed to
transfer, and ARI has agreed to buy, certain assets used by
the Licensee in the manufacture of railcar parts and the
repair and refurbishment of railcars, including, without
limitation, formulae, patents, trademarks, trade secrets and
other technical knowledge owned by the Licensee which
specifically and exclusively relate to the Business;
WHEREAS, a condition of the transactions
contemplated by the Transfer Agreement is the execution by
ARI and the Licensee of this License Agreement pursuant to
which ARI will license back to Licensee the use of the
patents, technical information and procedures and know-how
transferred to ARI pursuant to the Transfer Agreement;
PAGE
<PAGE>
WHEREAS, the Licensee wishes to obtain a license
for such technical information and procedures upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants and agreements hereinafter
set forth, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this
License Agreement, the terms set forth herein shall be
defined as follows:
(a) "Licensed Information" shall mean the
formula, patents, trade secrets and other technical
knowledge owned by the Licensee prior to the Effective Date
of the Transfer Agreement and transferred to ARI pursuant to
thereto which have been or could be used by the Licensee
and/or ARI in the conduct of the Business and which
specifically and exclusively relate to the Business,
including, without limitation, those patents set forth on
Schedule A hereto and incorporated herein by reference.
(b) "Territory" shall mean the world.
All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them
in the Transfer Agreement.
PAGE
<PAGE>
2. LICENSE. ARI hereby grants to the Licensee
and the Licensee hereby accepts from ARI, in consideration
of the payment by Licensee of $1.00, upon the terms and
conditions herein specified, a non-exclusive license to use
the Licensed Information in the Territory.
3. TERM. This License Agreement shall become
effective on the date first above written and shall remain
in effect in perpetuity.
4. ASSIGNMENT. This Agreement shall not be
assignable by either party without the prior written consent
of the other, other than in connection with the sale of
substantially all of the business in whatever form of ARI or
the Licensee; provided, however, that any such assignment
shall not relieve the parties whereto from any obligations
under this Agreement and that the assigning party shall
remain jointly and severally liable under this Agreement
with its successor.
5. SECRECY. Except as expressly provided in
this Agreement, the Licensee will treat as confidential and
will not, without the prior written approval of ARI, reveal
to any person, firm, association or corporation any of the
Licensed Information or any other information or data
furnished to the Licensee by ARI pursuant to this Agreement.
PAGE
<PAGE>
ARI and the Licensee and each of them and their
respective agents, servants, employees, attorneys and those
acting in privity with each of them acknowledge and agree
that none of them will issue publicity releases as to the
making of this Agreement, nor as to the terms and conditions
of this Agreement.
6. ENTIRE AGREEMENT. This License Agreement
constitutes the entire agreement between the parties as to
the Licensed Information and the other matters treated
herein.
7. NOTICES. All notices or other communications
hereunder shall be in writing and shall be made by hand
delivery, telex, telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as
follows:
If to ARI, to:
American Railcar Industries, Inc.
3301 Rider Trail South
Earth City, MO 63045
If to the Licensee, to:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, MO 63045
PAGE
<PAGE>
In each case with a copy to:
Gordon Altman Butowsky
Weitzen Shalov & Wein
114 West 47th Street
New York, New York 10036
Attention: Douglas S. Rich
Telecopy: (212)626-0799
or at such other addresses as shall be furnished by the
parties by like notice, and such notice or communication
shall be deemed to have been given or made as of the date so
delivered, if delivered personally; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and
two calendar days after so mailed, if sent by registered or
certified mail.
8. GOVERNING LAW. This License Agreement is
subject to and shall be construed and enforced in accordance
with the laws of the State of Missouri.
PAGE
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set
their hands and seals and duly executed this Agreement the
day and year first above written.
ACF Industries, Incorporated
By: /s/ James J. Unger
Name: James J. Unger
Title: President
American Railcar Industries, Inc.
By: /s/ Roger Wynkoop
Name: Roger Wynkoop
Title: Vice President
MANUFACTURING SERVICES AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation and
AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation.
PAGE
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Engagement of ARI. . . . . . . . . . . . . . . . . . . . . . . 2
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Duties of ACF. . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1. Services . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2. Use and Maintenance of Equipment; Insurance. . . . . . . 3
4.3. Records and Information. . . . . . . . . . . . . . . . . 4
5. Representations and Warranties . . . . . . . . . . . . . . . . 4
6. Payments and Fees. . . . . . . . . . . . . . . . . . . . . . . 5
6.1. Fees for Services. . . . . . . . . . . . . . . . . . . . 6
6.2. Verification of ACF's Fees.. . . . . . . . . . . . . . . 6
7. Quality Control. . . . . . . . . . . . . . . . . . . . . . . . 6
8. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 7
8.1. By ACF. . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2. By ARI. . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.3. Third Party Claims. . . . . . . . . . . . . . . . . . . . 7
8.4. Cooperation . . . . . . . . . . . . . . . . . . . . . . . 8
8.5. Survival. . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Events of Default; Remedies. . . . . . . . . . . . . . . . . . 9
9.1. Events of Default . . . . . . . . . . . . . . . . . . . . 9
9.2. Remedies Upon Default . . . . . . . . . . . . . . . . . . 10
9.3. Remedies Cumulative . . . . . . . . . . . . . . . . . . . 11
10. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Entire Agreement; Modification and Waiver. . . . . . . . . . . 12
13. Communications . . . . . . . . . . . . . . . . . . . . . . . . 12
14. Construction of ACF's Expense. . . . . . . . . . . . . . . . . 13
PAGE
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15. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 13
16. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 13
17. Headings and Terms . . . . . . . . . . . . . . . . . . . . . . 14
18. Disjunctive. . . . . . . . . . . . . . . . . . . . . . . . . . 14
19. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 14
20. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 14
PAGE
<PAGE>
MANUFACTURING SERVICES AGREEMENT
AGREEMENT dated as of October 1, 1994 between ACF
INDUSTRIES, INCORPORATED, a New Jersey corporation ("ACF") and
AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation ("ARI").
W I T N E S S E T H :
WHEREAS, pursuant to an Asset Transfer Agreement of even
date hereto among ACF, ARI and Carl C. Icahn (the "Transfer
Agreement"), ACF has agreed to transfer to ARI certain assets and
liabilities, as more fully described therein;
WHEREAS, in connection with the transfer of such assets to
ARI, ARI desires to retain ACF to provide certain manufacturing
services for and on behalf of ARI, and ACF desires to accept such
engagement.
WHEREAS, the items of equipment listed on Schedule A hereto,
which are being transferred to ARI pursuant to the Transfer Agreement
(the "Equipment"), are used by ACF in connection with manufacturing
industrial size mixing bowls and certain railcar parts, and, after
such transfer, although owned by ARI, will continue to be used by ACF
at ACF's facility in Milton, Pennsylvania to provide the services
described herein.
NOW, THEREFORE, the parties hereto, desiring legally to be
bound, hereby agree as follows:
1. Definitions. As used herein, the following terms
shall have the following meanings:
"AAR" means the Association of American Railroads and any
successor thereto.
An "Affiliate" of a person means any individual,
corporation, partnership, joint venture, association or other entity
that directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with such
person. For purposes of this definition, "control," when used with
respect to any person, means the power to direct the management or
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"DOL" means the United States Department of Labor.
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"DOT" means the United States Department of Transportation.
"Event of Default" shall have the meaning set forth in
Section 8.1 hereof.
"ICC" means the United States Interstate Commerce
Commission.
"Jobbing Order Services" means the manufacture and, upon the
instruction of ARI, distribution of various railcar parts and
components.
"month" means a calendar month and "year" means a calendar
year.
"Pressed Steel Manufacturing Services" means the manufacture
and, upon the instruction of ARI, distribution of industrial sized
mixing bowls.
"Regulatory Authorities" means the ICC, the DOT, the DOL,
the AAR or any other governmental authority or industry agency or
authority which has proper jurisdiction to regulate the manufacture of
parts for covered hopper, tank or other railcars.
"Services" means Pressed Steel Manufacturing Services and
Jobbing Order Services and each of them, a "Service."
"Term" means the term of the manufacturing and other
obligations of ARI and ACF hereunder, commencing as of the date hereof
and continuing until terminated as provided in Section 3 hereof.
2. Engagement of ARI. ARI hereby engages ACF to provide
certain Services to ARI on the terms and conditions set forth herein,
and ARI hereby accepts such engagement.
3. Term. The Term shall commence as of the date hereof
and, subject to the provisions of Section 9 hereof, shall continue
until July 2, 1997, provided, that the Term shall automatically be
extended for additional successive _____(_) year periods unless and
until ARI gives ACF six (6) months prior written notice of
termination. The obligations of ACF and ARI hereunder arising during
the Term, or as may otherwise be specifically provided for in this
Agreement, shall survive the expiration or earlier termination of the
Term.
PAGE
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4. Duties of ACF. Subject to the terms and provisions
hereof, ACF shall provide the Services specified in this Section 4 to
and on behalf of ARI during the Term.
4.1. Services.
(a) Subject to the terms and provisions hereof, ACF shall
provide the Services to and on behalf of ARI during the Term in the
same manner as ACF performed such Services on its own behalf prior to
the transfer of assets contemplated by the Transfer Agreement;
provided, that ACF shall only be obligated to provide ARI with Jobbing
Order Services to the extent that the provision of such Service does
not materially interfere with ACF's railcar and other manufacturing
business;
(b) ARI shall furnish to ACF all such information as may
be necessary to enable ACF to provide the Services, including the
specifications for any products to be manufactured by ACF pursuant to
this Agreement (the "Specifications"). ARI shall also deliver to ACF
an annual forecast of its product requirements for each year during
the Term, which forecast shall set forth ARI's good faith best
estimate of its product requirements for the year; provided, that the
delivery of any such forecast shall not be deemed to be a binding
order for the products described therein.
4.2. Use and Maintenance of Equipment; Insurance.
(a) ACF shall use the Equipment for the purpose for which
the Equipment was designed and in the same manner as the Equipment was
used by ACF in the ordinary course of its business prior to the
transfer of assets contemplated by the Transfer Agreement. ACF shall
keep the Equipment in good working order and, at the expense of ARI,
shall maintain the Equipment the same manner as ACF maintained such
Equipment prior to the transfer of assets contemplated by the Transfer
Agreement.
(b) During the Term, the Equipment shall remain at is
current location and ACF shall be entitled to use the Equipment,
without paying any fee, rent or similar charge to ARI, to perform the
Services and, to the extent that it does not interfere with the timely
performance of the Services, for its own purposes in the ordinary
course of business.
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(c) ACF shall maintain insurance policies in respect of the
Equipment with financially sound and responsible insurers against such
casualties and contingencies of such types and in such amounts as was
maintained by ACF prior to the transfer of the assets contemplated by
the Transfer Agreement. ARI shall be named as an additional insured
and loss payee to the extent of its interest under all policies
maintained by ACF which cover the Equipment.
(d) Upon the termination of the Agreement, at ARI's
expense, ACF shall cause the Equipment to be removed and delivered to
any site designated by ARI in the continental United States. ACF and
ARI shall reasonably cooperate in scheduling removal and delivery of
the Equipment, method of transport and other details so as to minimize
disruption of ACF's facility.
4.3. Records and Information. ACF shall maintain separate,
complete and accurate records relating to the Services and all matters
covered by this Agreement in the same form and to the same extent as
ACF has customarily maintained records in respect thereof prior to the
date hereof. ACF shall promptly, upon request of ARI, deliver to ARI
or its designee originals or copies of such records.
5. Representations and Warranties. Each of ACF and ARI
represents and warrants to the other as follows:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey
(in the case of ACF) and Missouri (in the case of ARI). It has
all necessary corporate power and authority and has taken all
corporate action necessary to enter into this Agreement, to con-
summate the transactions contemplated hereby and to perform its
obligations hereunder.
(b) This Agreement has been duly executed and delivered
by it and is a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
such enforceability may be limited by (A) the effect of
bankruptcy, insolvency, reorganization, moratorium, marshalling
or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and (B)
general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.
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(c) Neither the execution and delivery by it of this
Agreement nor the performance by it of its obligations hereunder
will (A) with or without the giving of notice or the passage of
time, or both, violate, or be in conflict with, or permit the
termination of, or constitute a default under, or cause the
acceleration of the maturity of, any agreement, debt or obli-
gations of any nature of it or to which it is a party or bound;
(B) require the consent of any party to any agreement, instrument
or commitment to which it is a party or to which it or its
properties is bound; (C) violate any statute or law or any
judgment, decree, order, regulation or rule of any court,
Regulatory Authority or other governmental authority to which it
is subject; or (D) result in the creation of any lien or security
interest or other incumbrance on its assets, which in the case of
(A), (B), (C), or (D) would cause the transactions contemplated
by this Agreement not to be consummated or which would have a
material adverse effect on the business, financial condition or
operations of the other party to this Agreement.
(d) No consent, approval or authorization of, or
declaration, filing or registration with, any Regulatory
Authority or other governmental agency or authority is required
to be made or obtained by it in connection with the execution,
delivery and performance of this Agreement, the performance by it
of its obligations hereunder or the consummation of the
transactions contemplated hereby, the failure of which to have
been made or obtained would have a material adverse effect on the
ability of such party to perform its obligations hereunder, on
the right, title or interest of ACF in ACF Cars or on the busi-
ness, financial condition, or operations of any party to this
Agreement.
6. Payments and Fees.
6.1. Fees for Services. For each of the Services provided
under this Agreement by ACF, ARI will pay ACF an amount equal to the
aggregate direct costs incurred by or on behalf of ACF in connection
with the provision of such Services. ACF's direct costs shall include
the cost of all raw materials not supplied by ARI and a reasonable
allocation of that part of ACF's labor and overhead expenses
attributable to the provision of the Services, including the cost of
maintaining the employees who provide the Services, the plant cost
attributable to the space occupied by the Equipment and the cost of
operating and insuring the Equipment (collectively, the "Fees"). ACF
will invoice ARI no less frequently than quarterly for all Services
performed hereunder, which invoice shall be accompanied by a summary,
in reasonable detail, of ACF's calculation of the Fees, which
calculation shall be binding upon ARI, absent manifest error. ARI
will pay all invoiced amounts within thirty (30) days from the date of
invoice.
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6.2. Verification of ACF's Fees. Upon ARI's written
request given at least two (2) business days in advance, ACF will
provide ARI with access to ACF's books and records relating to the
provision of the Services, during normal business hours, for the
purpose of copying and making extracts therefrom, at ARI's expense, to
verify ACF's calculation of its Fees, including those for labor and
allocated overhead.
7. Quality Control. ACF hereby warrants to and covenants
and agrees with ARI as follows:
(i) All products supplied hereunder will be
manufactured in accordance with the Specifications.
(ii) All railcar parts supplied hereunder will be
manufactured by ACF to comply in all respects with all applicable laws
and rules and regulations of the Regulatory Authorities
(iii) All products other than railcar parts supplied
hereunder will be manufactured in accordance with all applicable
federal, state and local laws, rules and regulations in effect from
time to time during the term hereof.
(iv) (x) all labor furnished to ARI hereunder shall
be free from all defects in workmanship, (y) all parts furnished to
ARI hereunder that are designed by ACF shall be free from all defects
in design and materials and (z) all parts furnished to ARI hereunder
that are designed by ARI and manufactured by ACF shall be free from
all defects in materials.
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8. Indemnification.
8.1. By ACF. ACF shall defend, indemnify and hold ARI
harmless from and against any and all claims, actions, damages,
losses, liabilities, costs or expenses (including reasonable
attorneys' fees) (each a "Claim") incurred by or asserted against ARI
to the extent resulting or arising from ACF's failure to comply with
or perform its obligations under this Agreement, any claims for injury
to or death of persons arising out of or relating to the use or
operation of the Equipment, for loss or damage to property (including
the Equipment) and for economic loss to ARI or third parties due to
the unavailability for use of the Equipment or from ACF's bad faith,
willful misconduct, recklessness, or negligence; provided, however,
that any claims for loss or damage to the Equipment shall be limited
to the fair market value of the Equipment at the time of such loss or
damage, as determined by an independent appraiser reasonable
satisfactory to both ACF and ARI, net of any actual insurance
recovery.
8.2. By ARI. ARI shall defend, indemnify and hold ACF
harmless from and against any and all Claims, incurred by or asserted
against ACF to the extent resulting or arising from ARI's failure to
comply with or perform its obligations under this Agreement.
8.3. Third Party Claims. In the event any party to be
indemnified is entitled to indemnification hereunder based upon a
claim asserted by a third party, the indemnifying party shall be given
prompt notice thereof in reasonable detail; provided, however, the
failure to give prompt notice shall not relieve the indemnifying party
of any liability hereunder, except to the extent the indemnifying
party is prejudiced by such failure. The indemnifying party shall
have the right (without prejudice to the right of any party to be
indemnified to participate at its expense through counsel of its own
choosing) to defend such claim at its expense and through counsel of
its own choosing which is reasonably acceptable to the party to be
indemnified if the indemnifying party gives notice of its intention to
do so not later than twenty (20) days following its receipt of notice
of such claim from the party to be indemnified (or such shorter time
period as is required so that the interests of the party to be
indemnified would not be materially prejudiced as a result of its
failure to have received such notice from the indemnifying party);
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provided, however, that if the defendants in any action shall include
both an indemnifying party and a party to be indemnified and the party
to be indemnified shall have reasonably concluded that counsel
selected by the indemnifying party has a conflict of interest because
of the availability of different or additional defenses to the party
to be indemnified, the party to be indemnified shall have the right to
select separate counsel to participate in the defense of such action
on its behalf, at the expense of the indemnifying party. The
indemnifying party shall not have the power to bind the indemnified
party, without the indemnified party's prior written consent, which
shall not be unreasonably withheld, with respect to any settlement
pursuant to which anything is required other than the payment of money
and then only to the extent that the indemnifying party shall make
full payment of such money. If the indemnifying party does not so
choose to defend any such claim asserted by a third party for which
the party to be indemnified would be entitled to indemnification
hereunder, then the party to be indemnified shall be entitled to
recover from the indemnifying party, on a monthly basis, all of its
reasonable attorneys' fees and other costs and expenses of litigation
of any nature whatsoever incurred in the defense of such claim. If
the indemnifying party assumes the defense of any such claim, the
indemnifying party will hold the party to be indemnified harmless from
and against any and all damages arising out of any settlement approved
by such indemnifying party or any judgment in connection with such
claim or litigation. Notwithstanding the assumption of the defense of
any claim by an indemnifying party pursuant to this paragraph, the
party to be indemnified shall have the right to approve the terms of
any settlement of a claim (which approval shall not be unreasonably
withheld or delayed). Notwithstanding anything to the contrary
contained herein, an indemnifying party will not be liable for any
settlement of a claim effected without its prior written consent.
8.4. Cooperation. The indemnifying party and the party to
be indemnified shall cooperate in furnishing evidence and testimony
and in any other manner which the other may reasonably request, and
shall in all other respects have an obligation of good faith dealing,
one to the other, so as not to unreasonably expose the other to an
undue risk of loss. The party to be indemnified shall be entitled to
reimbursement for out-of-pocket expenses reasonably incurred by it in
connection with such cooperation. Except for fees and expenses for
which indemnification is provided pursuant to Sections 8.1 or 8.2
hereof, as the case may be, and as provided in the preceding sentence,
each party shall bear its own fees and expenses incurred pursuant to
this Section 8.4.
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8.5. Survival. The indemnity obligations of the parties
pursuant to this Section 8 (including, without limitation, obligations
to indemnify against third party claims made after the expiration or
termination of the Term) shall survive forever the expiration or
termination of the Term.
9. Events of Default; Remedies.
9.1. Events of Default. The occurrence of any of the
following events shall constitute an "Event of Default" under this
Agreement:
(a) The failure by ACF or ARI to pay when due any
amount payable by it hereunder unless such failure shall have been
remedied within ten (10) days after receipt by the defaulting party of
notice thereof from the other party;
(b) default shall be made in the due observance or
performance of any covenant (other than a covenant to make payments
referred to in clause (a) hereof) to be observed or performed by ARI
or ACF hereunder, and such default shall not have been remedied within
thirty (30) days after receipt by the defaulting party of notice
thereof from the other party hereto;
(c) the commencement of any case or proceeding
against ACF (A) under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) seeking to
adjudge ACF a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of ACF under
any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of ACF or of any substantial part of the property of, or
ordering the winding up or liquidation of the affairs of ACF, and (i)
the entry of an order for relief in any of the foregoing or any such
adjudication or appointment shall occur or (ii) the continuance of any
such case or proceeding undismissed, undischarged or unbonded for a
period of 60 consecutive days; or
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(d) the commencement by ACF of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of ACF in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against ACF, or the filing by ACF of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by ACF to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trust, sequestrator or
similar official of ACF or of any substantial part of ACF's property,
or the making by it of an assignment for the benefit of creditors, or
the admission by ACF in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by ACF
in furtherance of any such action;
(e) Any representation or warranty made herein,
shall prove to have been false or misleading as of the time made or
furnished in any material respect.
9.2. Remedies Upon Default. (a) Default by Either Party.
Upon the occurrence and during the continuation of any Event of
Default, the non-defaulting party, in its sole discretion, may
(i) terminate the Term by notice to the defaulting party, which
termination shall be effective as of the date of such notice or such
later date, in the discretion of the non-defaulting party, as such
notice may specify, (ii) proceed by appropriate court action to
enforce performance of this Agreement by the defaulting party and/or
(iii) sue to recover actual direct damages (including lost rents but
not consequential damages) which result from a breach hereof, and such
defaulting party shall bear the other party's costs and expenses,
including reasonable attorney's fees, in securing such enforcement or
damages.
(b) Default By ACF. Upon the occurrence of an Event
of Default by ACF and the termination of the Term by ARI as provided
in Section 9.2(a) hereof, ARI may (i) demand and be entitled to
delivery of all products then in the possession or control of ACF and
(ii) demand and be entitled to receive copies of all of ACF's records
regarding the Services. ACF hereby agrees to cooperate fully with ARI
or its assignees in connection with the transfer of ACF's rights and
duties hereunder to a third party. Notwithstanding the foregoing, ACF
agrees that if it breaches any of its obligations hereunder, ARI would
sustain irreparable harm, and, therefore, in addition to any other
remedies which ARI may have under this Agreement or otherwise, ARI
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shall be entitled to seek specific performance by ACF of its
obligations hereunder and/or an injunction from any court of competent
jurisdiction restraining ACF from committing or continuing any
violation of this Agreement. ACF acknowledges that damages at law
would not be an adequate remedy in the event that ACF breaches its
obligations hereunder and, therefore agrees that if ARI shall
institute any action or proceeding to enforce those obligations, ACF
hereby waives and agrees not to assert the claim or defense that ARI
has an adequate remedy at law. Nothing herein shall be construed as
prohibiting ARI from pursuing any other remedies available to it for
any breach or threatened breach, including the recovery of damages
from ACF.
9.3. Remedies Cumulative. Each and every right, power and
remedy herein specifically given to ACF or ARI shall be in addition to
every other right, power and remedy herein specifically given or now
or hereafter existing at law or in equity, and each and every right,
power and remedy may be exercised from time to time and simultaneously
and as often and in such order as may be deemed expedient by ACF or
ARI. All such rights, powers and remedies shall be cumulative, and
the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of ACF or ARI in
the exercise of any such right, power or remedy and no extension of
time for any payment due hereunder shall impair any such power or
shall be construed to be a waiver of any default or an acquiescence
therein. Any extension of time for payment hereunder or other
indulgence duly granted by either ACF to ARI or ARI to ACF shall not
otherwise alter or affect the respective rights and obligations of ACF
and ARI. The acceptance of any payment of ACF or ARI after it shall
have become due hereunder shall not be deemed to alter or affect the
respective rights and obligations of ACF and ARI with respect to any
subsequent payments or defaults hereunder.
10. Force Majeure. Neither party hereto shall be deemed
to be in breach or in violation of this Agreement if such party is
prevented from performing any of its obligations hereunder for any
reason beyond its reasonable control, including, without limitation,
acts of God, riots, strikes, fires, storms, wars, insurrections,
public disturbances or any regulation of any Federal, state or local
government or any agency thereof.
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11. Consents. Whenever the consent or approval of ARI is
required hereunder, such consent or approval may be withheld by ARI in
ARI's sole, absolute and unrestricted discretion except in such cases
where this Agreement specifically provides that such consent or
approval shall not be unreasonably withheld.
12. Entire Agreement; Modification and Waiver. This
Agreement (including the recitals herein and any schedules or exhibits
hereto, each of which is an integral part of this Agreement) sets
forth the entire agreement and understanding between ACF and ARI with
respect to the subject matter hereof. This Agreement may not be
changed, altered, modified or amended in any respect without a writing
to that effect, signed by both of the parties hereto. Failure of a
party to enforce one or more of the provisions of this Agreement or to
exercise any option or other rights hereunder or to require at any
time performance of any of the obligations hereof shall not in any
manner be construed (a) to be a waiver of such provisions by such
party, (b) to affect the validity of this Agreement or such party's
right thereafter to enforce each and every provision of this
Agreement, or (c) to preclude such party from taking any other action
at any time which it would be legally entitled to take.
13. Communications. All notices, requests, demands,
consents, approvals, reports, statements and other communications
under this Agreement shall be in writing and shall be deemed to have
been given (a) upon receipt when delivered by hand, overnight delivery
service or facsimile transmission with respect to which receipt has
been acknowledged or (b) three (3) business days after mailing, by
registered or certified mail, postage prepaid, return receipt
requested, and addressed to the party for whom intended at the
following addresses or such changed address as such parties may have
fixed by notice:
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To ACF:
ACF Industries, Incorporated
3301 Rider Trail South
Earth City, Missouri 63045-1393
Attention: Chief Financial Officer
Telecopy no.: (314) 344-4216
Telephone no.: (314) 344-4500
To ARI:
American Railcar Industries, Inc.
3301 Rider Trail South, Suite 234
Earth City, Missouri 63045-1393
Attention: President
Telecopy no.: (314) 344-4213
Telephone no.: (314) 344-4200
provided, however, that any notice of change of address shall be
effective only upon receipt.
14. Construction of ACF's Expense. Any reference to
"ARI's expense" with respect to any action which is required to be
performed by ACF pursuant to this Agreement shall be performed at
ACF's cost without markup.
15. Governing Law. In accordance with Section 5-1401 of
the New York General Obligation Law, the parties hereto agree that
this Agreement shall be governed by and construed and enforced under
the laws of the State of New York.
16. Severability. Any provision of this Agreement that
may be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
so long as the economic or legal substance of the transactions
contemplated thereby is not affected in any manner adverse to any
party. Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties
hereby waive any provision of law that renders any provision of this
Agreement prohibited or unenforceable in any respect. In addition, in
the event of any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provision
which is held or determined to be prohibited or unenforceable, as
written, in any jurisdiction shall nonetheless be in force and binding
to the fullest extent permitted by the law of such jurisdiction as
though such provision had been written in such a manner and to such an
extent as to be enforceable therein under the circumstances.
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17. Headings and Terms. Headings to Sections contained
herein are for convenience and reference purposes only and are not to
be given any substantive effect or meaning. Any term herein defined
in the singular shall have a corresponding meaning when used in the
plural and the converse applies.
18. Disjunctive. As used in this Agreement, unless the
context requires otherwise, the word "or" shall have the conjunctive
as well as disjunctive meaning and refers to alternatives that are not
necessarily exclusive. As used in this Agreement, references to
"include" and similar terms shall be construed as if followed by the
phrase "without limitation."
19. Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that no assignment hereof by ACF or ARI or transfer of any
party's rights or obligations hereunder whether by operation or law or
otherwise shall be valid and effective as against ARI or ACF without
the prior consent of both ARI and ACF which consent shall not be
unreasonably withheld.
20. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Manufacturing Services Agreement as of the date first above written.
ACF INDUSTRIES, INCORPORATED
By: /s/ James J. Unger
AMERICAN RAILCAR INDUSTRIES, INC.
By: /s/ uRoger Wynkoop
