THIS BOND
GUARANTY AGREEMENT is made and entered into as of June 1, 1995
(the “Guaranty”), by and among AMERICAN RAILCAR
INDUSTRIES, INC. , a Missouri corporation
(“Company”), ACF INDUSTRIES, INC ., a New Jersey
corporation (the “Corporate Guarantor”) and FLEET
NATIONAL BANK , as trustee (“Trustee”), a national
banking association duly organized, validly existing, and in good
standing under the laws of the United States, with all requisite
power and authority to act as trustee in the State of Missouri,
together with any successor trustee at the time serving as such
under the Trust Indenture (hereinafter identified) between The
Industrial Development Authority of the City of Kennett, Missouri
(“Issuer’), and Trustee.
WHEREAS ,
Issuer is a duly organized and existing industrial development
corporation under the laws of the State of Missouri and proposes to
issue its industrial development revenue bonds under the provisions
of the Industrial Development Corporation Act, Chapter 349 of
the Revised Statutes of Missouri, 1986, as amended (the
“Act”), in the principal amount of $5,500,000,
designated Industrial Development Revenue Bonds (American Railcar
Industries, Inc./ACF Industries, Incorporated Railcar Component
Manufacturing Project), Series 1995 (the “Bonds”);
and
WHEREAS ,
the Bonds will be issued under and secured by a Trust Indenture,
dated as of June 1, 1995 (the “Indenture”), by and
between Issuer and Trustee; and
WHEREAS ,
the proceeds to be derived from the sale of the Bonds will be
loaned by Issuer to Company pursuant to a Loan Agreement dated as
of June 1, 1995 (the “Loan Agreement”) to
finance the costs of acquiring, constructing, and equipping an
industrial facility for use in the manufacture, production,
processing, distribution, and sale of railcar components or related
industrial products with attached office; and
WHEREAS ,
Company desires that Issuer issue the Bonds and apply the proceeds
as aforesaid, and Company is willing to enter into this Guaranty in
order to enhance the marketability of the Bonds and thereby achieve
interest cost and other savings to Company; and
WHEREAS ,
Corporate Guarantor is the majority shareholder of the Company and
will derive substantial benefits from the facilities being financed
pursuant to the Loan Agreement;
NOW,
THEREFORE , in consideration of the premises and in order to
achieve the interest cost and other savings described above, and as
an inducement to the initial purchasers of the Bonds and all who
shall at any time become owners of the Bonds, Company and Corporate
Guarantor do hereby, subject to the terms hereof, jointly and
severally covenant and agree with Trustee as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.1. Company does hereby represent and warrant
that:
(a) Company
is a corporation duly incorporated and in good standing under the
laws of the State of Missouri, has power to enter into this
Guaranty, and has duly authorized the execution and delivery of
this Guaranty by proper corporate action;
(b) neither
this Guaranty, the execution and delivery hereof, nor the
agreements herein contained are prevented, limited by, or
contravene or constitute a material default under any agreement,
instrument, or indenture to which Company is a party or by which it
is bound or any provisions of Company’s Articles of
Incorporation or any requirements of law; and
(c) the
assumption by Company of its obligations hereunder will result in a
direct financial benefit to Company.
Section 1.2. Corporate Guarantor does hereby represent
and warrant that:
(a) Corporate
Guarantor is a corporation duly incorporated and in good standing
under the laws of the State of New Jersey, has power to enter into
this Guaranty, and has duly authorized the execution and delivery
of this Guaranty by proper corporate action;
(b) neither
this Guaranty, the execution and delivery hereof, nor the
agreements herein contained are prevented, limited by, or
contravene or constitute a material default under any agreement,
instrument, or indenture to which Corporate Guarantor is a party or
by which it is bound or any provisions of Corporate
Guarantor’s Articles of Incorporation or any requirements of
law; and
(c) the
assumption by Corporate Guarantor of its obligations hereunder will
result in a direct financial benefit to Corporate
Guarantor.
Section 2.1. Company and Corporate Guarantor hereby
jointly and severally guarantee to Trustee for the benefit of the
Owners from time to time of the Bonds (a) the full and prompt
payment of the principal of and premium, if any, on any Bond when
and as the same shall become due, whether at the stated maturity
thereof, by acceleration, call for redemption, or otherwise, and
(b) the full and prompt payment of any interest on any Bond
when and as the same shall become due. The liability of Company and
Corporate Guarantor hereunder and the rights of the Trustee for the
benefits of the Owners hereunder shall be reinstated and revived
with respect to any amount at any time paid with respect to the
obligations of Company or Corporate Guarantor that thereafter is
required to be returned or restored by Trustee or any Owner as a
result of insolvency, bankruptcy, reorganization or other similar
proceedings affecting Borrower or Corporate Guarantor or any of the
assets of either of them, all as though such amount had not been
paid. All payments by Company or Corporate Guarantor shall be paid
in lawful money of the United States of America. Each and every
default in payment of the principal of or premium, if any, or
interest on any Bond shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each
cause of action arises.
Section 2.2. The obligations of Company and Corporate
Guarantor under this Guaranty arise upon the issue, sale and
delivery of the Bonds by Issuer and the deposit of the net proceeds
of such sale with the Trustee so as to make the loan to the Company
pursuant to the Loan Agreement. The obligations of the Company and
the Guarantor shall be joint, several, absolute and unconditional,
and shall remain in full force and effect until the entire
principal of and premium, if any, and interest on the Bonds shall
have been paid or provided for under the Indenture and such
obligations shall not be affected, modified, or impaired upon the
happening from time to time of any event, including, without
limitation, any of the following, whether or not with notice to, or
the consent of, Company or Corporate Guarantor:
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(a) the
compromise, settlement, release, or termination of any or all of
the obligations, covenants, or agreements of the Company under this
Guaranty, the Indenture or the Loan Agreement;
(b) the failure to
give notice to Company or Corporate Guarantor of the occurrence of
an event of default under the terms and provisions of this
Guaranty, the Loan Agreement, the Deed of Trust, or the
Indenture;
(c) the assignment
or mortgaging or the purported assignment or mortgaging of all or
any part of the interest of Company in the Mortgaged Property or
any failure of title with respect to Company’s interest in
the Mortgaged Property;
(d) the waiver by
Trustee or Issuer of the payment, performance, or observance by
Company or Trustee of any of the obligations, covenants, or
agreements contained in the Indenture, the Loan Agreement, the Deed
of Trust, or this Guaranty, other than the failure of the Trustee
to make a required payment under the Indenture;
(e) the extension
of the time for payment of any principal of or premium, if any, or
interest on any Bonds under this Guaranty or of the time for
performance of any other obligations, covenants, or agreements
under or arising out of the Indenture, the Loan Agreement, the Deed
of Trust, or this Guaranty or the extension or the renewal of any
thereof (other than the extension of the time for payment by the
Trustee of a required payment under the Indenture, if the Company
and/or Corporate Guarantor has made the payment due under the Note,
the Loan Agreement, or the Deed of Trust from which such payment by
the Trustee shall derive or provision thereof shall have been made
(as in the case of sums deposited into the Bond Fund), whether in
cash or cash equivalents or by tendering Bonds (as, when and to the
extent permitted under the Indenture));
(f) the
modification or amendment (whether material or otherwise) of any
obligation, covenant, or agreement set forth in the Indenture, the
Deed of Trust, or the Loan Agreement;
(g) the taking or
the omission of any of the actions referred to in the Indenture,
the Loan Agreement, the Deed of Trust, and of any actions under
this Guaranty;
(h) any failure,
omission, delay, or lack on the part of Issuer or Trustee to
enforce, assert, or exercise any right, power, or remedy conferred
on Trustee in this Guaranty, the Loan Agreement, the Deed of Trust,
or the Indenture, or any other act or acts on the part of Trustee
(other than the failure of the Trustee to make a required payment
under the Indenture, if the Company and/or the Corporate Guarantor
has made the payment due under the Note, the Loan Agreement, or the
Deed of Trust from which such payment by the Trustee shall derive
or provision therefor shall have been made (as in the case of
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