DEED OF TRUST AND SECURITY
AGREEMENT
THIS DEED OF
TRUST AND SECURITY AGREEMENT , dated as of June 1,1995
(the “Deed of Trust”), from AMERICAN RAILCAR
INDUSTRIES, INC. , a Missouri corporation (the
“Company”) whose address is c/o ACF Industries,
Incorporated, 3301 Rider Trail South, Earth City, Missouri 63045,
to E. SID DOUGLAS, III, an individual resident of the State
of Missouri, as trustee (the “Mortgage Trustee”), and
THE INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF KENNETT,
MISSOURI, a Missouri industrial development corporation with
its principal office located at 1601 First Street in the City of
Kennett, Missouri (the “Issuer”), as beneficiary and
secured party.
1.
The Company owns the real estate (exclusive of buildings,
improvements and fixtures) described in Schedule 1
hereto and all buildings, structures, additions, improvements,
fixtures, machinery, Mortgaged Equipment and related support
facilities described in Schedule 2 hereto (the Land and
said buildings, improvements, fixtures, machinery and equipment and
related support facilities, together with certain improvements,
fixtures, machinery and equipment (but excluding any Land which may
from time to time be released as permitted under Section 9.4 of the
Loan Agreement and subject to easements, licenses and other rights
created in accordance with Section 9.5 of the Loan Agreement) being
collectively referred to herein as the
“Project”).
2.
The Issuer proposes to issue its Industrial Development
Revenue Bonds (American Railcar Industries, Inc./ACF Industries,
Incorporated Railcar Component Manufacturing Project)
Series 1995, in the principal amount of $5,500,000 (the
“Bonds”), pursuant to the Act and a Trust Indenture,
dated as of the date hereof (as amended and supplemented from time
to time, the “Indenture”), between the Issuer and the
Trustee, and to use the proceeds of the Bonds to make the loan
mentioned below.
3.
The Issuer and the Company have entered into a Loan Agreement
dated as of me date hereof (as amended and supplemented from time
to time, the “Loan Agreement”) to provide for the loan
by the Issuer to the Company of the proceeds of the Bonds and its
repayment and the Company has executed a note in the aggregate
principal amount of $5,500,000 (the “Note”), dated as
of the date of issuance of the Bonds, to evidence the
Company’s obligation to repay such loan.
4.
The Company desires to make and enter into this Deed of Trust
to secure the payment and performance of the duties and obligations
of the Company under the Note, the Loan Agreement, and this Deed of
Trust and as an inducement to the purchase of the Bonds by all who
shall at any time become holders thereof.
NOW,
THEREFORE, THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT WITNESSETH;
The Company, in
consideration of the premises and the sum of one dollar duly paid
to the Company by the Mortgage Trustee, and of other good and
valuable consideration, the receipt of which is hereby
acknowledged, and to secure the payment of the Note, and any and
all extensions, modifications, substitutions or renewals thereof,
and the payment and performance of the Company’s duties and
obligations under the Loan Agreement and this Deed of Trust, does
hereby GRANT, BARGAIN AND
SELL, CONVEY
AND CONFIRM unto the
Mortgage Trustee, and his successors in trust and his assigns, all
of the hereinafter described properties, rights and interests,
whether now owned or hereafter acquired (said properties, rights
and interests, together with any additions thereto which may be
subject to the lien of this instrument by means of supplements
hereto being hereinafter called the “Mortgaged
Property,” which solely consists of the Project, and all
Mortgaged Property constituting real properly being hereinafter
referred to as “Mortgaged Real Property”, and insofar
as the Mortgaged Property consists of the Mortgaged Equipment,
fixtures, proceeds of collateral or subject to the applicable
provisions of the Uniform Commercial Code (as in effect in the
appropriate jurisdiction with respect to the Mortgaged Property
wherever located), the Company hereby grants to the Mortgage
Trustee and the Issuer a security interest in all of the
Company’s right, title and interest therein (all said
personal property being hereinafter sometimes referred to as the
‘Mortgaged Personal Property”) namely:
1. All right,
title and interest of the Company in and to the Land as further
described in Schedule 1 hereto with the tenements,
hereditaments, appurtenances, rights, privileges, easements,
franchises, rights, appendages and immunities thereunto belonging
or appertaining.
2. All right,
title and interest of the Company in and to all buildings,
improvements, fixtures and other property constituting real
property or real estate under the laws of the State of Missouri now
located, or hereafter erected, upon the Land, including the
property constituting real property or real estate described in
Schedules 1 and 2 hereto, and all right, title and
interest of the Company, now owned or hereafter acquired, in and to
any and all strips and gores of land, in and to all real property
upon which any such buildings or improvements may now or hereafter
encroach, and in, to and under the real property within the
streets, roads and alleys adjoining all such real property, and in
and to all and singular the tenements, hereditaments, privileges,
easements, franchises, rights, appendages and appurtenances
whatsoever belonging to or in any wise appertaining to all such
real property.
3. All tangible
personal property (including, without limitation, all fixtures,
machinery and equipment and related support facilities of any
nature whatsoever) paid for out of the Construction Fund now or
hereafter constituting a part of the Project including the property
constituting personal property under the laws of the State of
Missouri described in Schedule 2 hereto.
4. All fixtures
and tangible personal properly (including, but not limited to,
machinery and equipment and related support facilities, building
materials, building machinery and building equipment) delivered on
site to the Land during the course of, or in connection with,
construction of the Project, but excluding Leased
Equipment.
5. All right,
title and interest of the Company in, to and under any contracts,
purchase orders or agreements for the acquisition, construction or
installation of the Mortgaged Property or any part
thereof.
6. All
leases of the Mortgaged Property (other than Leased Equipment), or
any part thereof, entered into and all right, title and interest of
the Company thereunder, including cash and securities deposited
under said leases.
7. All Net
Proceeds of insurance and condemnation awards (including Net
Proceeds (as defined in the Indenture)), all replacements and
substitutions for other than Leased Equipment, and other rights and
interests belonging to, any of the foregoing.
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8. Any and all
water and water rights, ditches and ditch rights, reservoirs and
reservoir rights, stock or interests in water, irrigation or ditch
companies, royalties, minerals, oil and gas rights, and lease or
leasehold interests owned by the Company, now or hereafter used or
useful in connection with, appurtenant to or related to the Land or
other Mortgaged Property or any part thereof.
9. To the extent
assignable, all licenses, permits (including building permits),
authorizations or approvals of any type or nature whatsoever, now
owned or held or hereafter acquired, which relate to the use,
development or occupancy of the Land or other Mortgaged Properly or
any part thereof.
10. Any and all
proceeds of any and all of the foregoing (including, without
limitation, proceeds which constitute property of the types
described in paragraphs 3,4, or 5 above).
TO HAVE AND TO
HOLD all and singular the Mortgaged Property with all rights
and privileges hereby mortgaged, conveyed, pledged and assigned or
agreed or intended so to be, to the Mortgage Trustee and his
successors and assigns as collateral security for the Loan
Agreement and the Note.
NOW,
THEREFORE, the condition of this Deed of Trust is such that if
the Company shall well and truly pay unto the Issuer the
indebtedness evidenced by the Note and shall perform, comply with
and abide by each and every agreement, condition and covenant
contained and set forth in the Loan Agreement, the Note, and this
Deed of Trust, then this Deed of Trust shall be void and this Deed
of Trust shall be released and the security interest herein granted
shall be terminated and all evidences of indebtedness cancelled,
all at the cost of the Company.
AND, the
Company does hereby covenant and agree as follows:
Section 1.1. Definitions of Words and Terms. All words
and terms defined in Section 101 of the Indenture or
Article I of the Loan Agreement shall have the same
meaning in this Deed of Trust unless otherwise defined herein. In
addition to words and terms defined in the Indenture, the Loan
Agreement or elsewhere in this Deed of Trust, the following words
and terms as used in this Deed of Trust shall have the following
meanings unless some other meaning is plainly indicated:
“Act” means the “Act” as defined in
the Indenture.
“Agreed
Rate” means eight and fifty hundredths percent (8.50%)
per annum.
“Authorized Company Representative” means the
person at the time designated to act on behalf of the Company by
written certificate furnished to the Trustee and the Issuer
containing me specimen signature of such person and signed on
behalf of the Company by its President. Such certificate may
designate an alternate or alternates each of whom shall be entitled
to perform all duties of the Authorized Company
Representative.
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“Bond
Fund” means “The Industrial Development Authority
of the City of Kennett, Missouri, Industrial Development Revenue
Bonds — American Railcar Industries, Inc./ACF Industries
Incorporated Project Bond Fund” created in Section 501
of the Indenture.
“Counsel” means an attorney duly admitted to
practice law before the court of any state, including legal counsel
for any of the Issuer, the Trustee, Co-Trustee or the
Company.
“event
of default” means (a) with respect to the Indenture,
any event of default as described in Section 1001 thereof,
(b) with respect to the Loan Agreement, any event of default
as described in Section 11.1 thereof, and (c) with
respect to the Hazardous Substance Certification and
Indemnification, any default thereunder after any applicable notice
and grace period.
“Hazardous Substances” shall mean:
(a) Those
substance included herein with the definitions of “hazardous
substance,” “hazardous materials,” “toxic
substances,” or “solid wastes” in CERCLA, RCRA,
and the Hazardous Materials Transportation Act, 49 U.S.C.
§1801 et seq., and in the regulations promulgated pursuant
thereto;
(b) Those
substances defined as “hazardous substances” under
state, county or local rules, regulations or ordinances;
(c) Those
substances listed in the United States Department of Transportation
Table (49 C.F.R. 172,1001 and amendments thereto) or by the
Environmental Protection Agency as hazardous substances (40 C.F.R.
Part 302 and amendments thereto); and
(d) All other
substances, materials and wastes that are, or that become,
classified as “hazardous” or “toxic” under,
any Environmental taw.
“Land” means the real estate (exclusive of
buildings, improvements and fixtures) described in
Schedule 1 hereto and any other real estate added
thereto, together will all buildings, improvements and fixtures
situated thereon at the time of delivery of the Loan Agreement, the
Indenture and the Deed of Trust, or at any time thereafter,
constituting red property or real estate under the laws of the
State of Missouri.
“Mortgaged Equipment” means the fixtures,
machinery and equipment and related support facilities described in
Schedule 2 hereto purchased in whole or in part with
the Net Proceeds of any Bonds (as defined above) or any Net
Proceeds described in Section 7.5 of the Loan Agreement
and any fixtures, machinery and equipment and related support
facilities substituted for Mortgaged Equipment (other than Leased
Equipment) removed and disposed of pursuant to
Section 2.2.
“Mortgage Trustee” means E. Sid Douglas,
III.
“Mortgaged Personal Property” shall have the
meaning set forth in the Granting Clauses hereof.
“Mortgaged Property” shall have the meaning set
forth in the Granting Clauses hereof, and shall include the
Mortgaged Real Property and the Mortgaged Personal
Property.
“Mortgaged Real Property” shall have the meaning
set forth in the Granting Clauses hereof.
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“Permitted Encumbrances” means the Permitted
Encumbrances set forth in Schedule 3 hereto.
“Project” means the Project referred to in the
recitals of this Deed of Trust, the Loan Agreement and the
Indenture, any additions, modifications, improvements, restoration
or substitutions thereof, therefor or thereto, restorations,
improvements, or substitutions thereof or thereto pursuant to the
Loan Agreement, and all real property, including easements, deemed
necessary in connection therewith, as they may at any time exist,
exclusive of any Land which may from time to time be released, as
permitted under Section 9.4 of the Loan Agreement and subject
to easements, licenses and other rights created in accordance with
Section 9.5 of the Loan Agreement.
Section 1.2. Rules of Construction. Words of the
masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the words importing the singular
number shall include the plural and vice versa, and words importing
person shall include firms, partnerships, associations and
corporations, including public bodies, as well as natural
persons.
“Herein,”
“hereby,” “hereunder,”
“hereof,” “hereto,”
“hereinbefore,” “hereinafter” and other
equivalent words refer to this Deed of Trust and not solely to the
particular article, section, paragraph or subparagraph hereof in
which such word is used.
Reference herein
to a particular article or a particular section shall be construed
to be a reference to the specified article or section hereof unless
the context or use clearly indicates another or different meaning
or intent.
Whenever an item
or items are listed after the word “including,” such
listing is not intended to be a listing that excludes items not
listed.
The table of
contents, captions and headings in this Deed of Trust are for
convenience only and in no way define, limit or describe the scope
or intent of any provisions or sections of this Deed of
Trust.
Section 2.1. General Covenant. The Company will
perform, comply with and abide by each and every one of the
agreements, conditions and covenants contained and set forth in the
Loan Agreement, the Note, and this Deed of Trust.
Section 2.2. Removal, Disposition and Substitution of
Mortgaged Equipment. Provided an event of default shall not
have occurred and be continuing. If the Company in its sole
discretion determines that any items of Mortgaged Equipment have
become inadequate, obsolete, worn-out, unsuitable, undesirable, or
unnecessary, Company may remove such items of Mortgaged Equipment
from the Buildings and the Land and sell, trade-in, exchange, or
otherwise dispose of them (as a whole or in part) without any
responsibility or accountability to Issuer or Trustee therefor,
provided that Company shall:
(a) Substitute (by
direct payment of the costs thereof) and install anywhere in the
Buildings or on the Land, other machinery or equipment having equal
or greater utility (but not necessarily having the same function)
in the operation of the Buildings as a modern
manufacturing
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facility
(provided such removal and substitution shall not impair the
operating unity of the remaining property), all of which
substituted machinery or equipment shall be free of all liens and
encumbrances (other than Permitted Encumbrances) but shall become a
part of the Mortgaged Equipment provided, however, during the first
three (3) years commencing from and after June 22, 1995,
the Company may substitute Leased Equipment (as defined in the
Indenture) leased by the Company from any lessor in place of any
Mortgaged Equipment removed from the Mortgaged Property, which
Leased Equipment shall not be or be deemed to be part of the
Mortgaged Equipment; or
(b) Not make any
such substitution and installation unless, (i) in the case of
the sale of any such Mortgaged Equipment to anyone other than
itself or in the case of the scrapping thereof, Company shall pay
into the Bond Fund the proceeds from such sale or the scrap value
thereof, as the case may be, (ii) in the case of the trade-in
of any such Mortgaged Equipment for other machinery or equipment
not to be installed in the Buildings or on the Land, Company shall
pay into the Bond Fund the amount of the credit received by it in
such trade-in, and (iii) in the case of the sale of any such
Mortgaged Equipment to Company or in the case of any other
disposition thereof Company shall pay into the Bond Fund an amount
equal to the original cost thereof less depreciation at rates
calculated in accordance with generally accepted accounting
principles; provided, however, that no such payment into the Bond
Fund need be made until the amount to be paid into the Bond Fund on
account of all such dispositions not previously reported aggregates
at least $100,000 in any calendar year; provided further, that
Company may not fail to make any such substitution and installation
if such failure would impair the operating utility of the remaining
property.
Any Mortgaged
Equipment removed from the Project by the Company pursuant to this
Section shall be released from the lien and security interest
created by this Deed of Trust and may be sold or otherwise disposed
of by the Company without accounting to the Issuer. The Issuer will
promptly, upon the request of the Company, execute, acknowledge and
deliver all supplemental deeds of trust and all appropriate
financing statements, including UCC-3 Termination Statements,
releases and other security instruments as may reasonably be
required to evidence the removal and replacement of any Mortgaged
Equipment pursuant to this Deed of Trust.
Section 2.3. Compliance with Laws. The Company shall
comply with all material laws, ordinances, regulations, covenants,
conditions and restrictions affecting said Mortgaged Property or
the operation thereof, and shall pay all fees or charges of any
kind in connection therewith. The Company will perform and comply
promptly with, and cause the Project to be maintained, used and
operated in accordance with, any and all (i) present laws,
ordinances, rules, regulations and requirements of every duly
constituted governmental or quasi-governmental authority or agency
applicable to the Company or the Project, including without
limitation, all applicable federal, state and local laws pertaining
to air and water quality, hazardous waste, waste disposal, air
emissions and other environmental matters, all zoning and other
land use matters, and rules, regulations and ordinances of the
United States Environmental Protection Agency and all other
applicable federal, state and local agencies and bureaus;
(ii) similarly applicable orders, rules and regulations of any
regulatory, licensing, accrediting, insurance underwriting or
rating organization or other body exercising similar functions;
(iii) similarly applicable duties or obligations of any kind
imposed under any Permitted Encumbrances, or otherwise by law,
covenant, condition, agreement or easement, public or private; and
(iv) policies of insurance at any time in force with respect to the
Project. If the Company receives any notice that the Company or the
Project is in default under or is not in compliance with any of the
foregoing, or receives notice of any proceeding initiated under or
with
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respect to any
of the foregoing, file Company will promptly furnish a copy of such
notice to the Issuer and the Trustee.
The Company
represents and warrants that it has obtained all required licenses,
permits, franchise agreements and other necessary agreements which
are materially necessary to operate the Project. The Company agrees
to provide the Issuer and the trustee with written notice of any
suspension, revocation, termination or default under any such
agreements or any threatened suspension, revocation, termination or
default thereunder.
Section 2.4. Release of Certain Land. Provided no event
of default shall have occurred and be continuing, the Company shall
have the right to have the Issuer release from this Deed of Trust a
part or parts of the real property constituting the Land upon
compliance with Section 9.4 of the Loan Agreement.
Section 2.5. Granting of Easements. Company shall have
the right to grant easements, licenses, rights-of-way (including
dedication of public highways) and other rights and privileges in
the nature of easements, free from the lien of the Indenture, the
Loan Agreement and this Deep of Trust, or Company may release
existing easements, licenses, rights-of-way and other rights or
privileges, and Issuer shall execute and deliver and shall cause
and direct Trustee to execute and deliver instruments in recordable
form to confirm the release of lien and subordination of lien of
this Deed of Trust, all as provided and in accordance with
Section 9.5 of the Loan Agreement.
Section 3.1. Maintenance of Mortgaged Property; Compliance
with Laws. The Company covenants and agrees to permit, commit
or suffer no waste of the Mortgaged Property and to maintain the
Mortgaged Property at all times in a state of good repair and
condition to the best of its ability and in the ordinary course of
business; to comply with, or cause to be complied with, all
statutes, ordinances and requirements of any governmental or other
authority relating to the Mortgaged Property; and to do or permit
to be done to the Mortgaged Prope
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