MANUFACTURING SERVICES AGREEMENT
Exhibit 10.4
AGREEMENT dated as of October 1, 1994 between ACF INDUSTRIES, INCORPORATED a New Jersey
corporation (“ACF”) and AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation (“ARI”).
W I T N E S S E T H :
WHEREAS, pursuant to an Asset Transfer Agreement of even date hereto among ACF, ARI and
Xxxx X. Icahn (the “Transfer Agreement”), ACF has agreed to transfer to ARI certain assets and
liabilities, as more fully described therein;
WHEREAS, in connection with the transfer of such assets to ARI, ARI desires to retain ACF to
provide certain manufacturing services for and on behalf of ARI, and ACF desires to accept such
engagement.
WHEREAS,
the items of equipment listed on Schedule A hereto, which are being transferred to
ARI pursuant to the Transfer Agreement (the “Equipment”), are used by ACF in connection with
manufacturing industrial size mixing bowls and certain railcar parts, and, after such transfer
although owned by ARI, will continue to be used by ACF at ACF’s facility in Milton, Pennsylvania
to provide the services described herein.
NOW, THEREFORE, the parties hereto, desiring legally to be bound, hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the following
meanings:
“AAR” means the Association of American Railroads and any successor thereto.
An
“Affiliate” of a person means any individual, corporation, partnership, joint venture,
association or other entity that directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with such person. For purposes of this
definition, “control,” when used with respect to any person, means the power to direct the
management or policies of such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; the
terms “controlling” and “controlled” have the meanings correlative to the foregoing.
“DOL” means the United States Department of Labor.
“DOT” means the United States Department of Transportation.
“Event
of Default” shall have the meaning set forth in Section 8.1 hereof.
“ICC” means the United States Interstate Commerce Commission.
“Jobbing Order Services” means the manufacture
and, upon the instruction of ARI, distribution of various
railcar parts and components.
“month” means a calendar month and “year” means a calendar year.
“Pressed Steel Manufacturing Services” means the manufacture and, upon the
instruction of ARI, distribution of industrial sized mixing bowls.
“Regulatory Authorities” means the ICC, the DOT,
the DOL, the AAR or any other governmental authority or
industry agency or authority which has proper jurisdiction
to regulate the manufacture of parts for covered xxxxxx,
tank or other railcars.
“Services” means Pressed Steel Manufacturing
Services and Jobbing Order Services and each of them, a
“Service.”
“Term”
means the term of the manufacturing and other obligations of ARI and ACF hereunder,
commencing as of the date hereof and continuing until terminated as provided in Section 3 hereof.
2. Engagement of ARI. ARI hereby engages ACF to
provide certain Services to ARI on the terms and conditions
set forth herein, and ARI hereby accepts such engagement.
3. Term. The Term shall commence as of the date
hereof and, subject to the provisions of Section 9 hereof,
shall continue until July 2, 1997, provided, that the Term
shall automatically be extended for additional successive
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(_) year periods unless and until ARI gives ACF six (6)
months prior written notice of termination. The obligations
of ACF and ARI hereunder arising during the Term, or as may
otherwise be specifically provided for in this Agreement,
shall survive the expiration or earlier termination of the
Term.
4.
Duties of ACF. Subject to the terms and provisions hereof, ACF shall provide the
Services specified in this Section 4 to and on behalf of ARI during the Term.
4.1. Services.
(a) Subject to the terms and provisions hereof,
ACF shall provide the Services to and on behalf of ARI
during the Term in the same manner as ACF performed such
Services on its own behalf prior to the transfer of assets
contemplated by the Transfer Agreement; provided, that ACF
shall only be obligated to provide ARI with Jobbing Order
Services to the extent that the provision of such Service
does not materially interfere with ACF’s railcar and other
manufacturing business;
(b) ARI
shall furnish to ACF all such information
as may be necessary to enable ACF to provide, the Services,
including the specifications for any products to be
manufactured by ACF pursuant to this Agreement (the
“Specifications”). ARI shall also deliver to ACF an annual
forecast of its product requirements for each year during
the Term, which forecast shall set forth ARI’s good faith
best estimate of its product requirements for the year;
provided, that the delivery of any such forecast shall not
be deemed to be a binding order for the products described
therein.
4.2. Use and Maintenance of Equipment; Insurance.
(a) ACF shall use the Equipment for the purpose for which the Equipment was designed and in
the same manner as the Equipment was used by ACF in the ordinary course of its business prior to
the transfer of assets contemplated by the Transfer Agreement. ACF shall keep the Equipment in
good working order and, at the expense of ARI, shall maintain the Equipment the same manner as ACF
maintained such Equipment prior to the transfer of assets contemplated -by the Transfer Agreement.
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(b) During the Term, the Equipment shall remain at is current location and ACF shall be
entitled to use the Equipment, without paying any fee, rent or similar charge to ARI, to perform
the Services and, to the extent that it does not interfere with the timely performance of the
Services, for its own purposes in the ordinary course of business.
(c) ACF shall maintain insurance policies in respect of the Equipment with financially
sound and responsible insurers against such casualties and contingencies of such types and in
such amounts as was maintained by ACF prior to the transfer of the assets contemplated by the
Transfer Agreement. ARI shall be named as an additional insured and loss payee to the extent of
its interest under all policies maintained by ACF which cover the Equipment.
(d) Upon the termination of the Agreement, at ARI’s expense, ACF shall cause the Equipment to
be removed and delivered to any site designated by ARI in the continental United States. ACF and
ARI shall reasonably cooperate in scheduling removal and delivery of the Equipment, method of
transport and other details so as to minimize disruption of ACF’s facility.
4.3.
Records and Information. ACF shall maintain separate, complete and accurate
records relating to the Services and all matters covered by this Agreement in the same form and to
the same extent as ACF has customarily maintained records in respect thereof prior to the date
hereof. ACF shall promptly, upon request of ARI, deliver to ARI or its designee originals or
copies of such records.
5. Representations and Warranties. Each of ACF and ARI represents and warrants to
the other as follows:
(a) It is a corporation duly organized, validly
existing and in good standing under the laws of the
State of New Jersey (in the case of ACF) and Missouri
(in the case of ARI) . It has all necessary corporate
power and authority and has taken all corporate action necessary to enter into this
Agreement, to consummate the transactions contemplated hereby and to
perform its
obligations hereunder.
(b) This Agreement has been duly executed and
delivered by it and is a legal, valid and binding
obligation of it, enforceable against it in accordance
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with its terms, except as such enforceability may be limited by (A) the effect of bankruptcy,
insolvency, reorganization, moratorium, marshalling or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors generally and (B) general
principles of equity, whether such enforceability is considered in a proceeding in equity — or at
law.
(c) Neither the execution and delivery by it of
this Agreement nor the performance by it of its obligations hereunder will (A) with or without the giving of
notice or the passage of time, or both, violate, or be
in conflict with, or permit the termination of, or
constitute a default under, or cause the acceleration
of the maturity of, any agreement, debt or obligations
of any nature of it or to which it is a party or bound;
(B) require the consent of any party to any agreement,
instrument or commitment to which it is a party or to
which it or its properties is bound; (C) violate any
statute or law or any judgment, decree, order,
regulation or rule of any court, Regulatory Authority
or other governmental authority to which it is subject;
or (D) result in the creation of any lien or security
interest or other incumbrance on its assets, which in
the case of (A), (B), (C), or (D) would cause the
transactions contemplated by this Agreement not to be
consummated or which would have a material adverse
effect on the business, financial-condition or
operations of the other party to this Agreement.
(d) No consent, approval or authorization of or
declaration, filing or registration with, any Xxxxxx
xxxx Authority or other governmental agency or author
ity is required to be made or obtained by it in connection with the execution, delivery and performance of
this Agreement, the performance by it of its obligations hereunder or the consummation of the transactions
contemplated hereby, the failure of which to have been
made or obtained would have a material adverse effect
on the ability of such party to perform its obligations
hereunder, on the right, title or interest of ACF in ACF Cars or on the business, financial condition, or
operations of any party to this Agreement.
6. Payments and Fees.
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6.1. Fees for Services. For each of the Services provided under this Agreement
by ACF, ARI will pay ACF an amount equal to the aggregate direct costs incurred by or on behalf
of ACF in connection with the provision of such Services. ACF’s direct costs shall include the
cost of all raw materials not supplied by ARI and a reasonable allocation of that part of
ACF’s-labor and overhead expenses attributable to the provision of the Services, including the
cost of maintaining the employees who provide the Services, the plant cost attributable to the
space occupied by the Equipment and the cost of operating and insuring the Equipment
(collectively, the “Fees”). ACF will invoice ARI no less frequently than quarterly for all
Services performed hereunder, which invoice shall be accompanied by a summary, in reasonable
detail, of ACF’s calculation of the Fees, which calculation shall be binding upon ARI, absent
manifest, error. ARI will pay all invoiced amounts within thirty (30) days from the date of
invoice.
6.2. Verification of ACF’s Fees. Upon ARI’s written request given at least two (2)
business days in advance, ACF will provide ARI with access to ACF’s books and records relating to
the provision of the Services, during normal business hours, for the purpose of copying and making
extracts therefrom, at ARI’s expense, to verify ACF’s calculation of its Fees, including
those for labor and allocated overhead.
7 . Quality Control. ACF hereby warrants to and covenants and agrees with
ARI as follows:
(i) All products supplied hereunder will be manufactured in accordance with the
Specifications.
(ii) All
railcar parts supplied hereunder will be manufactured by ACF to
comply in all respects with all applicable laws and rules and
regulations of the Regulatory Authorities.
(iii) All products other than railcar parts supplied hereunder will be manufactured in
accordance with all applicable federal, state and local laws, rules and regulations in effect from
time to timer during the term hereof.
(iv) (x) all labor furnished to ARI
hereunder shall be free from all defects in workmanship, (y) all parts furnished to ARI hereunder
that are designed by
.
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ACF shall be free from all defects in design and materials and (z) all parts furnished to
ARI hereunder that are designed by ARI and manufactured by ACF shall be free from all defects in
materials.
8. Indemnification.
8.1. By ACF. ACF shall defend indemnify and hold
ARI harmless from and against any and all claims, actions,
damages, losses, liabilities, costs or expenses (including
reasonable attorneys’ fees) (each a “Claim”) incurred by or
asserted against ARI to the extent resulting or arising from
ACF’s failure to comply with or perform its obligations
under this Agreement, any claims for injury to or death of
persons arising out of or relating to the use or operation
of the Equipment, for loss or damage to property (including
the Equipment) and for economic loss to ARI or third parties
due to the unavailability for use of the Equipment or from
ACF’s bad faith, willful misconduct, recklessness, or
negligence; provided, however, that any claims for loss! or
damage to the Equipment shall be limited to the fair market
value of the Equipment at the time of such loss or damage,
as determined by an independent appraiser reasonable
satisfactory to both ACF and ARI, net of any actual
insurance recovery.
8.2. By ARI. ARI shall defend, indemnify and hold ACF harmless from and against any
and all Claims, incurred by or asserted against ACF to the extent resulting or arising from ARI’s
failure to comply with or perform its obligations under this Agreement.
8.3. Third Party Claims. In the event any party to be indemnified is entitled to
indemnification hereunder based upon a claim asserted by a third party, the indemnifying party
shall be given prompt notice thereof in reasonable detail;
provided, however, the failure
to give prompt notice shall not relieve the indemnifying party of any liability hereunder, except
to the extent the indemnifying party is prejudiced by such failure. The indemnifying party shall
have the right (without prejudice to the right of any party to be indemnified to participate at its
expense through counsel of its own choosing) to defend such claim at its expense and through
counsel of its own choosing which is reasonably acceptable to the party to be indemnified if the
indemnifying party gives notice of its intention to do so not later than twenty (20) days following
its receipt of notice of such claim from the party to be indemnified (or
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such shorter time period as is required so that the interests of the party to be indemnified would not be materially
prejudiced as a result of its failure to have received such
notice from the indemnifying party); provided, however, that
if the defendants in any action shall include both an indemnifying party and a party to be indemnified and the party to
be indemnified shall have reasonably concluded that counsel
selected by the indemnifying party has a conflict of interest because of the availability of different or additional
defenses to the party to be indemnified, the party to be
indemnified shall have the right to select separate counsel
to participate in the defense of such action on its behalf,
at the expense of the indemnifying party. The indemnifying
party shall not have the power to bind the indemnified
party, without the indemnified party’s prior written consent, which shall not be unreasonably withheld, with respect
to any. settlement pursuant to which anything is required
other than the payment of money and then only to the extent
that the indemnifying party shall make full payment of such,
money. If the indemnifying party does not so choose to
defend any such claim asserted by a third party for which
the party to be indemnified would be entitled to indemnification hereunder, then the party to be indemnified shall be
entitled to recover from the indemnifying party, on a
monthly basis, all of its reasonable attorneys’ fees and
other costs and expenses of litigation of any nature whatsoever incurred in the defense of such claim. If the indemnifying party assumes the defense of any such claim, the
indemnifying party will hold the party to be indemnified
harmless from and against any and all damages arising out of
any settlement approved by such indemnifying party or any
judgment in connection with such claim or litigation. Notwithstanding the assumption of the defense of any claim by
an indemnifying party pursuant to this paragraph, the party
to be indemnified shall have the right to approve the terms
of any settlement of a claim (which approvel shall not be
unreasonably withheld or delayed). Notwithstanding anything
to the contrary contained herein, an indemnifying party will
not be liable for any settlement of a claim effected without
its prior written consent.
8.4. Cooperation. The indemnifying party and the party to be indemnified shall
cooperate in furnishing evidence and testimony and in any other manner which the
other may reasonably request, and shall in all other respects have an obligation of good faith
dealing, one to the other, so as not to unreasonably expose the other to an undue risk of loss.
The party to be indemnified shall be
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entitled to reimbursement for out-of-pocket expenses reasonably incurred by it in connection with such cooperation
Except for fees and expenses for which indemnification is
provided pursuant to Sections 8.1 or 8.2 hereof, as the case
may be, and as provided in the preceding sentence, each
party shall bear its own fees and expenses incurred pursuant
to this Section 8.4.
8.5. Survival. The indemnity obligations of the
parties pursuant to this Section 8 (including, without
limitation, obligations to indemnify against third party
claims made after the expiration or termination of the Term)
shall survive forever the expiration or termination of the
Term.
9. Events of Default; Remedies.
9.1. Events of Default. The occurrence of any of the following events shall
constitute an “Event of Default” under this Agreement:
(a) The failure by ACF or ARI to pay when
due any amount payable by it hereunder unless such failure
shall have been remedied within ten (10) days after receipt
by the defaulting party of notice thereof from the other
party; .
(b) default shall be made in the due observance or performance of any covenant (other than a covenant
to make payments referred to in clause (a) hereof) to be observed or performed by ARI or ACF
hereunder, and such default shall not have been remedied within thirty (30) days after receipt
by the defaulting party of notice thereof from the other party hereto;
(c) the commencement of any case or
proceeding against ACF (A) under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) seeking to adjudge ACF a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect of ACF under any
applicable federal or state law,or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of ACF or of any substantial part of the property
of, or ordering the winding up or liquidation of the affairs of ACF, and (i) the entry of an
order for relief in any of the foregoing or any such adjudication or appointment shall occur or
(ii) the continuance of any such
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case or proceeding undismissed, undischarged or unbonded for a period of 60 consecutive
days; or
(d) the commencement by ACF of a voluntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of ACF in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against ACF, or the filing by ACF
of a petition or answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by ACF to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trust, sequestrator or similar
official of ACF or of any substantial part of ACF’s property, or the making by it of an assignment
for the benefit of creditors, or the admission by ACF in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by ACF in furtherance of any such
action;
(e) Any representation or warranty made
herein, shall prove to have been false or misleading as of the time made or furnished in any
material respect.
9.2. Remedies Upon Default. (a) Default by Either Party. Upon the
occurrence and during the continuation of any Event of Default, the non-defaulting party, in its
sole discretion, may (i) terminate the Term by notice to the defaulting party, which termination
shall be effective as of the date of such notice or such later date, in the discretion of the
non-defaulting party, as such notice may specify, (ii) proceed by appropriate court action to
enforce performance of this Agreement by the defaulting party and/or (iii) xxx to recover actual
direct damages (including lost rents but not consequential damages) which result from a breach
hereof, and such defaulting party shall bear the other party’s costs and expenses, including
reasonable attorney’s fees, in securing such enforcement or damages.
(b) Default By ACF. Upon the occurrence of an Event of Default by ACF and the
termination of the Term by ARI as provided in Section 9.2
(a) hereof, ARI may (i)
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demand and be entitled to delivery of all products then in the possession or control of ACF and
(ii) demand and be entitled to receive copies of all of ACF’s records regarding the Services. ACF
hereby agrees to cooperate fully with ARI or its assignees in connection with the transfer of ACF’s
rights and duties hereunder to a third party. Notwithstanding the foregoing, ACF agrees that if it
breaches any of its obligations hereunder, ARI would sustain irreparable harm, and, therefore, in
addition to any other remedies which ARI may have under this Agreement or otherwise, ARI shall be
entitled to seek specific performance by ACF of its obligations hereunder and/or an injunction
from any court of competent jurisdiction restraining ACF from committing or continuing any
violation of this Agreement. ACF acknowledges that damages at law would not be an adequate remedy
in the event that ACF breaches its obligations hereunder and, therefore agrees that if ARI shall
institute any action or proceeding to enforce those obligations ACF hereby waives and agrees not
to assert the claim or defense that ARI has an adequate remedy at law. Nothing herein shall be
construed as prohibiting ARI from pursuing any other remedies available to it for any breach or
threatened breach, including the recovery of damages from ACF.
9.3. Remedies Cumulative. Each and every right, power and remedy herein specifically
given to ACF or ARI shall be in addition to every other right, power and remedy herein
specifically given or now or hereafter existing at law or in equity, and each and every right,
power and remedy may be exercised from time to time and simultaneously and as often and in such
order as may be deemed expedient by ACF or ARI. All such rights,
powers and remedies shall be
cumulative, and the exercise of one shall not be deemed a waiver of the right to exercise any
other or others. No delay or omission of ACF or ARI in the exercise of any such right,
power or remedy and no extension of time for any payment due hereunder shall impair any such power
or shall be construed to be a waiver of any default or an acquiescence therein. Any extension of
time for payment hereunder or other indulgence duly granted by either ACF to ARI or ARI to ACF
shall not otherwise alter or affect the respective rights and obligations of ACF and ARI.
The acceptance of any payment of ACF or ARI after it shall have become due hereunder shall not be
deemed to alter or affect the respective rights and obligations of ACF and ARI with respect to any
subsequent payments or defaults hereunder.
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10. Force Majeure. Neither party hereto shall be
deemed to be in breach or in violation of this Agreement if
such party is prevented from performing any of its obligations hereunder for any reason beyond its reasonable control, including, without limitation, acts of God, riots,
strikes, fires, storms, wars, insurrections, public disturbances or
any regulation of any Federal, state or local
government or any agency thereof.
11. Consents. Whenever the consent or approval
of ARI is required hereunder, such consent or approval may
be withheld by ARI in ARI’s sole, absolute and unrestricted
discretion except in such cases where this Agreement
specifically provides that such consent or approval shall
not be unreasonably withheld.
12. Entire Agreement; Modification and Waiver.
This Agreement (including the recitals herein and any schedules or exhibits hereto, each of which is an integral part
of this Agreement) sets forth the entire agreement and
understanding between ACF and ARI with respect to the
subject matter hereof. This Agreement may not be changed,
altered, modified or amended in any respect without a
writing to that effect, signed by both of the parties
hereto. Failure of a party to enforce one or more of the
provisions of this Agreement or to exercise any option or other rights hereunder or to
require at any time performance of any of the obligations hereof shall not in any manner be
construed (a) to be a waiver of such provisions by such party, (b) to affect the validity of
this Agreement or such party’s right thereafter to enforce each and every provision of this
Agreement, or (c) to preclude such party from taking any other action at any time which it
would be legally entitled to take.
13. Communications. All notices, requests, demands, consents, approvals,
reports statements and other communications under this Agreement shall be in writing and shall be
deemed to have been given (a) upon receipt when delivered by hand, overnight delivery service or
facsimile transmission with respect to which receipt has been acknowledged or (b) three (3)
business days after mailing, by registered or certified mail, postage prepaid, return receipt
requested, and addressed to the party for whom intended at the following addresses or such
changed address as such parties may have fixed by notice:
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To ACF:
ACF Industries, Incorporated
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
To ARI:
American Railcar Industries, Inc.
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: President
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: President
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
provided,
however, that any notice of change of address shall be effective
only upon receipt.
14. Construction of ACF’s Expense. Any reference
to “ARI’s expense” with respect to any action which is
required to be performed by ACF pursuant to this Agreement
shall be performed at ACF’s cost without markup.
15.
Governing Law. In accordance with Section 5-1401 of the New York General Obligation Law, the parties
hereto agree that this Agreement shall be governed by and
construed and enforced under the laws of the State of New
York.
16. Severability. Any provision of this Agreement that may be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof so long as the
economic or legal substance of the transactions contemplated
thereby is not affected in any manner adverse to any party.
Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by law,
the parties hereby waive any provision of law that renders
any provision of this Agreement prohibited or unenforceable
in any respect. In addition, in the event of any such
prohibition or unenforceability, the parties agree that it
is their intention and agreement that any such provision
which is held or determined to be prohibited or unenforce
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able, as written, in any jurisdiction shall nonetheless be in force and binding to the fullest
extent permitted by the law of such jurisdiction as though such provision had been written in
such a manner and to such an extent as to be enforceable therein under the circumstances.
17. Headings and Terms. Headings to Sections
contained herein are for convenience and reference purposes
only and are not to be given any substantive effect or
meaning. Any term herein defined in the singular shall have
a corresponding meaning when used in the plural and the
converse applies.
18. Disjunctive. As used in this Agreement,
unless the context requires otherwise, the word “or” shall
have the conjunctive as well as disjunctive meaning and
refers to alternatives that are not necessarily exclusive.
As used in this Agreement, references to “include” and
similar terms shall be construed as if followed by the
phrase “without limitation.”
19. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the
parties hereto; provided, however, that no assignment hereof
by ACF or ARI or transfer of any party’s rights or
obligations hereunder whether by operation or law or otherwise shall be valid and effective as against ARI or ACF
without the prior consent of both ARI and ACF which consent
shall not be unreasonably withheld.
20.
Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed
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an original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Manufacturing
Services Agreement as of the date first above written.
| ACF INDUSTRIES, INCORPORATED | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| AMERICAN RAILCAR INDUSTRIES, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
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This RATIFICATION AND AMENDMENT, dated as of June 30, 2005 (this “Ratification and
Amendment”), to the Manufacturing Services Agreement (defined below), among ACF Industries LLC (as
successor to ACF Industries, Incorporated, a New Jersey corporation), a Delaware limited liability
company (“ACF”) and American Railcar Industries,
Inc., a Missouri corporation (“ARI”).
WITNESSETH:
WHEREAS, ACF and ARI have entered into that certain Manufacturing Services Agreement, dated
as of October 1, 1994 (the “Manufacturing Services
Agreement”);
WHEREAS, despite an ambiguity in Section 3 of the Manufacturing Services Agreement relating
to termination of the Manufacturing Services Agreement, ACF and ARI have continued to act in
accordance with their obligations and rights thereunder and wish to ratify the Manufacturing
Services Agreement as set forth herein; and
WHEREAS, ACF and ARI agree to amend the Manufacturing Services Agreement as set forth herein
in order to clarify any ambiguity regarding the term of the Manufacturing Services Agreement;
NOW, THEREFORE, in consideration of the premises and of the agreements contained herein, the
parties hereto agree as follows:
Section 1. Definitions; Interpretation. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Manufacturing Services Agreement. This
Ratification and Amendment shall be interpreted in accordance with the Manufacturing Services
Agreement. Each reference to a “Section” herein shall mean and be a reference to a Section of the
Manufacturing Services Agreement.
Section 2. Ratification. ACF and ARI ratify and confirm all of their actions in
accordance with the Manufacturing Services Agreement, and that the Manufacturing Services
Agreement continues in full force and effect, from and after July 2, 1997 through and including
the date hereof.
Section 3. Amendments. The Manufacturing Services Agreement shall be
amended by replacing Section 3 thereof in its entirety as follows:
“3. Term. The Term shall commence as of the date hereof
and, subject to the provisions of Section 9 hereof, shall
continue until July 2, 1997, provided, that the Term shall
automatically be extended for additional successive one (1)
year periods unless and until ARI gives ACF six (6) months
prior written notice of termination. The obligations of ACF
and ARI hereunder arising during the Term, or as may
otherwise be specifically provided for in this Agreement,
shall survive the expiration or earlier termination of the
Term.”
Section 4. Reference to and Effect on the Manufacturing Services Agreement and
Related Documents.
(a) Upon the due execution and delivery of this Ratification and Amendment
by each of the parties hereto, this Ratification and Amendment shall be effective as of the
date hereof and, on and after the date hereof, each reference in the Manufacturing Services
Agreement to “this Agreement”, “hereunder”,
“hereof”, and “herein”, and in any other document
related to the Manufacturing Services Agreement to the “Manufacturing Services Agreement”, or
words of like import referring to the Manufacturing Services Agreement, shall mean and be a
reference to the Manufacturing Services Agreement, as amended hereby.
(b) Except as specifically ratified and amended above, the Manufacturing
Services Agreement shall remain in full force and effect and is hereby ratified and confirmed.
(c) The execution, delivery, and effectiveness of this Ratification and
Amendment shall be limited precisely as written and, except as expressly provided herein,
shall not be deemed to (i) be a consent to any waiver or modification of any other term or condition
of the Manufacturing Services Agreement or any of the instruments or documents referred to
therein, (ii) create, or be evidence of, alone or taken with any consent to, waiver or
modification of, or other ratification or amendment of the provisions
of the Manufacturing Services
Agreement or any of the instruments or documents referred to therein, a course of conduct, or
(iii) prejudice any right or rights that any party thereto may now have or may have in the
future under or in connection with the Manufacturing Services
Agreement, as ratified and amended hereby, or any of the instruments or documents referred to therein.
Section 5. Governing Law. THIS RATIFICATION AND AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
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Section 6. Counterparts. This Ratification and Amendment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
Section 7. Headings. Section headings in this Ratification and Amendment are included
herein for convenience of reference only and shall not constitute a part of this Ratification and
Amendment for any other purpose.
Section 8. Severability. Any provision of this Ratification and Amendment that may be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof so long as the economic or legal substance of the transactions contemplated thereby is not
affected in any manner adverse to any party. Any such prohibition or
unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by law, the parties hereto waive any
provision of law that renders any
provision of this Ratification and Amendment prohibited or unenforceable in any respect. In
addition, in the event of any such prohibition or unenforceability, the parties agree that it is
their intention and agreement that any such provision that is held or determined to be prohibited
or unenforceable, as written, in any jurisdiction shall nonetheless be in force and binding to the
fullest extent permitted by the law of such jurisdiction as though such provision had been written
in such a manner and to such an extent as to be enforceable therein under the circumstances.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Ratification and Amendment as of the
date first above written.
| ACF INDUSTRIES LLC | ||||||
| By: | /s/ Xxxx Xxxxxxxx | |||||
| Name: Xxxx Xxxxxxxx | ||||||
| Title: Treasurer | ||||||
| AMERICAN RAILCAR INDUSTRIES, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: Xxxxx X. Xxxxx Title: President |
||||||
[Signature Page
to Ratification and Amendment to Manufacturing Services
Agreement]
Agreement]
