Exhibit 10.11A
BOND GUARANTY AGREEMENT
THIS BOND GUARANTY AGREEMENT is made
and entered into as of April 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 Arkansas, together with any successor
trustee at the time serving as such under the Trust Indenture
(hereinafter identified) between the City of Paragould, Arkansas
(“Issuer”), and Trustee.
WITNESSETH:
WHEREAS, Issuer is a duly organized
and existing municipality under the laws of the State of Arkansas
and proposes to issue its industrial development revenue bonds
under the provisions of the Municipalities and Counties Industrial
Development Revenue Bond Law, Ark. Code Ann. §§
14-164-201 to -224 (1987) (the “Act”) , in the
principal amount of $9,500,000, designated Industrial Development
Revenue Bonds (American Railcar Industries, inc. /acf lndustries, Incorporated
Railcar Manufacturing Project), Series 1995 (the
“Bonds”); and
WHEREAS, the Bonds will be issued
under and secured by a Trust Indenture, dated as of April 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 used by issuer to finance the
costs of acquiring, constructing, and equipping an industrial
facility for use in the manufacture, production, processing,
distribution, and sale of railroad cars or related industrial
products with attached office, which is being leased by Issuer to
company pursuant to the provisions of a Lease Agreement, dated as
of April 1, 1995 (the “Lease Agreement”);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;
WHEREAS, corporate Guarantor is the
majority shareholder of the company and will derive substantial
benefits from the facilities being leased pursuant to the Lease
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.
ARTICLE II
GUARANTY
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 deceleration, 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
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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
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:
(a) the compromise, settlement,
release, or termination of any or all of the obligations,
covenants, or agreements of Issuer or the Company under this
Guaranty, the Indenture or the Lease 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 Lease
Agreement, the Hazardous Substance Certification and
Indemnification, or the indenture;
(c) the assignment or
mortgaging or the purported assignment or mortgaging of all or any
part of the interest of Issuer or Company in the Mortgaged Property
or any failure of title with respect to Issuer’s or
company’s interest in the Mortgaged property;
(d) the waiver by Trustee or
Issuer of the payment, performance, or observance by Issuer,
company, or Trustee of any of the obligations, covenants, or
agreements contained in the Indenture, the Lease Agreement, the
Hazardous Substance certification and indemnification, or this
Guaranty;
(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 Lease agreement, the Hazardous Substance
Certification and
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Indemnification, or this Guaranty or the extension or the renewal
of any thereof;
(f) the modification or
amendment (whether material or otherwise) of any obligation,
covenant, or agreement set forth in the Indenture, the Hazardous
Substance Certification and Indemnification or the Lease
Agreement;
(g) the taking or the omission
of any of the actions referred to in the Indenture, the Lease
Agreement, the Hazardous Substance Certification and
Indemnification, 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 Issuer or
Trustee in this Guaranty, the Lease Agreement, the Hazardous
Substance Certification and Indemnification, or the Indenture, or
any other act or acts on the part of Issuer, Trustee other than the
failure of the Trustee to make a required payment under the
Indenture, if the Company has made all the then required payments
under the Lease Agreement, or any of the owners from time to time
of the Bonds;
(i) the voluntary or involuntary
liquidation, dissolution, sale, or other disposition of all or
substantially all the assets, marshallin
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