Exhibit 10.9.A
BOND GUARANTY AGREEMENT
THIS BOND GUARANTY AGREEMENT
is made and entered into as of July 1, 1996 (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 Jackson, Missouri
(“Issuer”), and Trustee.
WITNESSETH:
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 $2,500,000, designated Industrial
Development Revenue Bonds (American Railcar Industries, Inc./ACF
Industries, Incorporated Railcar Component Manufacturing Project),
Series 1996 ( the “Bonds”); and
WHEREAS , the Bonds will be
issued under and secured by a Trust Indenture, dated as of
July 1, 1996 (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 July 1, 1996
(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
duty 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 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
thought 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 my 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 me 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 me
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
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