EX-10.10.A



 





Exhibit 10.10.A




BOND GUARANTY AGREEMENT




     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.



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 $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.



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 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 sums deposited into the Bond Fund), whether made in cash
or cash equivalents or by tendering Bonds (as, when and to the extent permitted under the
Indenture)) 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, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with
creditors, or readjustment of, or other similar proceedings affecting Company or Corporate
Guarantor or any of the assets of any of them, or any allegation or contest of the validity of
this Guaranty in any such proceeding; or



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     (j) to the extent permitted by law, the release or discharge of Company or
Corporate Guarantor from the performance or observance of any obligation, covenant, or
agreement contained in this Guaranty by operation of law.



     Section 2.3. Other than the payment of any obligation (including payments under the
Indenture), no set-off, counterclaim, reduction, or diminution of such obligation, if any, which
Company or Corporate Guarantor has or may have against Issuer or Trustee shall be available
hereunder to the Company or the Guarantor against Trustee.



     Section 2.4.
In the event of a default under the Indenture or the Loan Agreement in the
payment of principal of or 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, or in
the event of a default in the payment of any interest on any Bond when and as the same shall
become due, Trustee may, and if requested so to do by the Owners of not less than a majority in
aggregate principal amount of the Bonds then outstanding and upon indemnification as hereinafter
provided, shall be obligated to proceed hereunder, and Trustee, in its sole discretion, shall have
the right to proceed first and directly against Company or Corporate Guarantor under this Guaranty
without proceeding against any other person or exhausting any other remedies which it may have and
without resorting to any other security held by Issuer or Trustee.



     Before taking any action hereunder, Trustee may require that satisfactory indemnity be
furnished by the Owners requesting such action for the reimbursement of all expenses and to
protect against all liability, determined in a reasonable manner, except liability which is
adjudicated to have resulted from its gross negligence or willful default by reason of any action
so taken.



     Section 2.5. Company or Corporate Guarantor hereby expressly waive notice from Trustee
or the owners from time to time of any of the Bonds, if any, of their acceptance and reliance on
this Guaranty. Company or Corporate Guarantor agrees to pay all reasonable costs, expenses, and
fees, including all reasonable attorneys’ fees, which may be incurred by Trustee in enforcing or
attempting to enforce this Guaranty following any default on the part of Company or Corporate
Guarantor, whether the same shall be enforced by suit or otherwise.



     Section 2.6. This Guaranty is entered into by the parties hereto for the benefit of
Trustee, the Owners from time to time of the Bonds, and any successor trustee or trustees under
the Indenture, all of whom shall be entitled to enforce performance and observance of this
Guaranty.



ARTICLE III

COVENANTS




     Section 3.1. Corporate Guarantor shall not enter into any transaction of merger or
consolidation or change the form of organization of its business unless the Corporate Guarantor is
the surviving entity or the surviving entity expressly assumes the obligations of the Corporate
Guarantor under this Guaranty.



     Section 3.2. Corporate Guarantor will deliver to Trustee and the Original Purchaser:




     (a) Promptly upon their becoming available, and in any event not later than
120 days after the end of each fiscal year, the audited financial statements of Corporate
Guarantor,



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accompanied by an unqualified opinion from KPMG Peat Marwick or another independent accounting
firm reasonably satisfactory to Trustee.




     (b) Not later than 90 days after the end of each of the first 3 quarterly periods in each
fiscal year, unaudited financial statements of Corporate Guarantor for such quarter.




     (c) As soon as practicable but in any event within ten (10) days upon becoming aware of the
existence of any condition or event that constitutes an event of default under this Guaranty or the
Loan Agreement, a written notice specifying the nature and period of existence thereof and what
action Company and Corporate Guarantor are taking or propose to take with respect thereto.




     (d)
Immediately upon becoming aware that the Owner of any Bond has given notice or taken any
other action with respect to a claimed event of default, a written notice specifying the notice
given or action taken by such Bondowner and the nature of the claimed event of default and what
action Company and Corporate Guarantor are taking or propose to take with respect thereto.



     Company and Corporate Guarantor will permit any of Trustee’s representatives, at Trustee’s expense,
to visit and inspect the Mortgaged Property, to examine an of the Company’s and Corporate
Guarantor’s books of account, records, reports, and other papers relating to the Mortgaged
Property, and to make copies and extracts therefrom, and to discuss their respective affairs,
finances, and accounts relating to the Mortgaged Property with their respective officers,
employees, and independent public accountants (and by this provision Company authorizes its
accountants to discuss the same) all at such reasonable times and as often as may be reasonably
requested; provided, however, that Trustee shall hold such information in confidence and shall not
use such information for any purpose other than to determine whether the covenants, terms, and
provisions of this Guaranty have been complied with by Company and Corporate Guarantor and to
protect their interests under this Guaranty or where disclosure may be required by law. Nothing
herein shall be deemed to constitute a waiver of any accountant-client privilege during the
pendency of litigation between Trustee, Company and Corporate Guarantor.



ARTICLE IV

EVENTS OF DEFAULT




     Section 4.1.
An “event of default” shall exist if any of the following occurs and is continuing:




     (a)
Section 2.1 Defaults. Either Company or Corporate Guarantor fails to perform or observe
any covenant contained in Section 2.1 of this Guaranty and such failure continues for two (2) days
after written notice of the Company’s failure to make any Loan Payment is given to the person
identified in Section 5.2 as the representative of the Company and the Corporate Guarantor,
together with a request to remedy the same.




     (b)
Other Defaults. Either Company or Corporate Guarantor fails to comply with any other
provision of this Guaranty, and such failure continues for more than 30 days after written
notice of such failure shall be given to the person identified in Section 5.2 as the
representative of Company and Corporate Guarantor together with a
request to remedy the
same, or if such failure to comply cannot be cured within such 30-day period, then if either Company or Corporate Guarantor fails to commence to cure such
failure to comply within such 30-day





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period and thereafter fails to prosecute to completion with diligence and continuity the
performance required to cure such failure to comply.




     (c) Bankruptcy.




     (i) Company, Corporate Guarantor (or any other Person obligated, as guarantor or otherwise, to make
payments on the Bonds or under the Loan Agreement or this Guaranty) shall (A) apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator,
or the like of Company, Corporate Guarantor (or such other Person) or of all or any substantial
part of its property, (B) commence a voluntary case under the United States Bankruptcy Code (as now
or hereafter in effect), or (C) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; or




     (ii) A proceeding or case shall be commenced, which case or proceeding shall not be dismissed
within 90 days, without the application or consent of Company, Corporate Guarantor (or any other
Person obligated, as guarantor or otherwise, to make payments on the Bonds or under the Loan
Agreement), in any court of competent jurisdiction, seeking (A) the liquidation, reorganization,
dissolution, winding-up, or composition of adjustment of debts, of Company, Corporate Guarantor,
(B) the appointment of a trustee, receiver, custodian, liquidator, or the like of Company,
Corporate Guarantor (or any such other Person) or of all or any substantial part of its respective
property, or (C) similar relief in respect of Company or Corporate Guarantor (or any such other
Person) under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts.




     (d)
Warranties. Any material warranty or representation made by or on behalf of Company or
Corporate Guarantor in the Loan Agreement, the Deed of Trust, this Guaranty, or any writing
furnished in connection with or pursuant thereto, as applicable, shall be false or misleading in
any material respect as of the date made.



ARTICLE V

NOTICE AND SERVICE OF PROCESS,

PLEADINGS AND OTHER PAPERS




     Section 5.1. Company covenants that it is qualified to do business and subject to service of
process in the State of Missouri and that it will remain so qualified so long as any of the Bonds
are outstanding and Company and Corporate Guarantor each covenant that each is qualified to do
business in each jurisdiction where failure to so qualify would have a material adverse affect on
its business or property.



     Section 5.2. Any notice, process, pleadings, or other papers served upon the agents or officers of
Company or Corporate Guarantor shall be sent by registered or certified mail as follows:



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If to Company:



American Railcar Industries, Inc.

c/o ACF Industries, Incorporated

3301 Rider Trail South

Earth City, MO 63045

Attention: Umesh Choksi, Assistant Treasurer




If to Corporate Guarantor:



ACF Industries, Incorporated

3301 Rider Trail South

Earth City, MO 63045

Attention: Umesh Choksi, Treasurer




If to the Trustee:



Fleet National Bank

111 Westminster Street

Providence, Rhode Island 02903

Attention: Corporate Trust Department



or to such other address as may be furnished by any party hereto or by Trustee in writing.




ARTICLE VI

MISCELLANEOUS




     Section 6.1. The obligations of Company and Corporate Guarantor hereunder shall arise jointly,
severally and absolutely when the Bonds shall have been issued, sold, and delivered by Issuer and
the proceeds thereof paid to Trustee for the account of Issuer under the Indenture.



     Section 6.2. No remedy herein conferred upon or reserved to Trustee is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Guaranty or now or hereafter existing
at law or in equity. No delay or omission to exercise any right or power accruing upon any default,
omission, or failure of performance hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from time to time
as often as may be deemed expedient. In order to entitle Trustee to exercise any remedy reserved to
it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be
herein expressly required. In the event any provision contained in this Guaranty should be breached
by Company or Corporate Guarantor and thereafter duly waived by Trustee, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other breach
hereunder. No waiver, amendment, release, or modification of this Guaranty shall be established by
conduct, custom, or course of dealing, but solely by an instrument in writing duly executed by
Trustee.



     Section 6.3. Trustee shall not consent to any amendment or modification of this Guaranty except in
accordance with the provisions of Article XIII of the Indenture. Nothing contained herein or in the
Indenture shall permit, or be construed as permitting, any amendment, change, or modification of
this Guaranty which would change the amount of any sums payable by Company or Corporate Guarantor



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hereunder or the time for payment of such amounts or change the unconditional nature of the
Guaranty herein contained.




     Section 6.4. This Guaranty constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the subject matter
hereof and may be executed in several counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument.



     Section 6.5. The invalidity or unenforceability
of any one or more phrases, sentences, clauses, or Sections in this Guaranty shall not affect the validity or
enforceability of the remaining
portions of this Guaranty or any part hereof.



     Section 6.6. All words and phrases defined in the Indenture and not otherwise defined herein shall
have the same meanings for purposes of this Guaranty.



     Section 6.7. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MISSOURI.



     IN WITNESS WHEREOF, Company and Corporate Guarantor have caused this Guaranty to be executed
in their respective names and behalfs and attested by the duly authorized officers, all as of the
date first above written.



	 	 	 	 	 	 	 
	 	 	AMERICAN RAILCAR INDUSTRIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	William L. Finn	 	 
	 

	 	 	 	 

     Its: Executive Vice President
	 	 






Attest:




	 	 	 	 	 
	By:

	 	Umesh Choksi	 	 
	Its:

	 	 

Assistant Treasurer
	 	 






	 	 	 	 	 	 	 
	 	 	ACF INDUSTRIES, INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Umesh Choksi	 	 
	 

	 	 	 	 

     Its: Treasurer
	 	 






Attest:




	 	 	 	 	 
	By:
	 	[ILLEGIBLE]	 	 
	Its:

	 	 

Vice President
	 	 






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Approved and Accepted this 22nd day of June, 1995:




	 	 	 	 	 
	FLEET NATIONAL
BANK, as Trustee	 	 
	 
	 	 	 	 
	By:
	 	[ILLEGIBLE]	 	 
	Its:

	 	 

Vice President
	 	 







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