SERVICES AGREEMENT
Exhibit 10.12
This AMENDED AND RESTATED SERVICES AGREEMENT is dated as of June 30, 2005 (this “Services
Agreement”) between AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation (“ARI”) and AMERICAN
RAILCAR LEASING LLC, a Delaware limited liability company (“ARL”).
W I T N E S S E T H:
WHEREAS, ARI and ARL entered into that certain Services Agreement, dated as of April 1, 2005
(the “Original Agreement”) whereby ARI retained ARL to provide certain administrative services, and
ARL retained ARI to provide certain purchasing and engineering services;
WHEREAS, ARI and ARL desire to amend the Original Agreement in order that ARL will provide ARI
with access to its Accounting and Finance Services, as set forth in Section 5(g);
NOW, THEREFORE, the parties hereto, desiring legally to be bound, agree as follows:
1. Definitions and Rules of Interpretation.
1.1. Definitions. As used herein, the following terms shall have the following
meanings:
“Accounting and Finance Services” means the services described in Part 1 of Schedule A.
“Affiliate” of any 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.
“Agreement” shall have the meaning set forth in the preamble hereof.
“ARI” shall have the meaning set forth in the preamble hereof.
“ARI Services” means Engineering Services and Purchasing Services, and any one of them, an
“ARI Service.”
“ARL” shall have the meaning set forth in the preamble hereof.
“ARL Services” means Accounting and Finance Services, Employee Compensation and Benefits
Administration Services, Information Processing Services, Leasing Services, Rent and Building
Services, and Treasury Services, and any one of them, an “ARL Service.”
“Business Day” means each day that is neither a Saturday, Sunday nor other day on which
banking institutions or trust companies in New York, New York are legally authorized or required to
close.
“Employee Compensation and Benefits Administration Services” means the services described in
Part 2 of Schedule A.
“Engineering Services” means the services described in Part 1 of Schedule B.
“Event of Default” shall have the meaning set forth in Section 8.1.
“Fees” shall have the meaning set forth in Section 7.1.
“Information Processing Services” means the services described in Part 3 of Schedule A.
“Leasing Services” means the services described in Part 4 of Schedule A.
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization or other entity, or
governmental authority.
“Purchasing Services” means the services described in Part 2 of Schedule B.
“Rent and Building Services” means the services described in Part 5 of Schedule A.
“Services” means the ARI Services and the ARL Services, and any one of them, a “Service.”
“Term” means the term of the respective obligations of ARI and ARL hereunder, commencing as of
the date hereof and continuing until terminated in accordance with the terms and provisions set
forth herein.
“Treasury Services” means the services described in Part 6 of Schedule A.
1.2. Rules of Interpretation. For purposes of this Agreement, unless otherwise
specified herein:
(i) accounting terms used and not specifically defined therein shall be
construed in accordance with generally accepted accounting principles and
practices that are recognized as such by the American Institute of Certified
Public Accountants acting through its Accounting
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Principles Board or by the Financial Accounting Standards Board or
through other appropriate boards or committees thereof consistently applied
as to the party in question;
(ii) the term “including” means “including without limitation,” and
other forms of the verb “to include” have correlative meanings;
(iii) references to any Person include such Person’s permitted
successors (and references to any governmental authority include any Person
succeeding to such governmental authority’s functions);
(iv) in the computation of a period of time from a specified date to a
later specified date, the word “from” means “from and including” and the
words “to” and “until” each means “to but excluding”;
(v) “month” means a calendar month and “year” means a calendar year
unless specifically noted otherwise;
(vi) the words “hereof”, “herein” and “hereunder” and words of similar
import refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(vii) the term “or” means “and/or”, as applicable;
(viii) the meanings of defined terms are equally applicable to the
singular and plural forms of such defined terms;
(ix) references to “Section” or “Schedule” herein are references to
Sections in and Schedules to this Agreement;
(x) the various captions (including any table of contents) are provided
solely for convenience of reference and shall not affect the meaning or
interpretation of this Agreement;
(xi) references to any statute or regulation refer to that statute or
regulation as amended from time to time, and include any successor statute
or regulation of similar import; and
(xii) all references to any contract, document or agreement shall mean
such contract, document or agreement as amended, supplemented, restated and
otherwise modified and in effect from time to time.
2. Engagement.
2.1. Engagement of ARL. ARI hereby engages ARL to provide the ARL Services to and on
behalf of ARI on the terms and conditions set forth herein, and ARL hereby accepts such engagement.
In this regard, ARL will act as an independent contractor on behalf of ARI and not as an agent or
employee of ARI or any other Person.
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2.2. Engagement of ARI. ARL hereby engages ARI to provide the ARI Services to and on
behalf of ARL on the terms and conditions set forth herein, and ARI hereby accepts such engagement.
In this regard, ARI will act as an independent contractor on behalf of ARL and not as an agent or
employee of ARL or any other Person.
3. Term.
3.1. Duration of Term. The Term of each of the ARL Services and the ARI Services
shall commence as of the date hereof and shall continue until December 31, 2007 unless terminated
on an earlier date by ARL or ARI in accordance with the terms and conditions set forth herein. The
obligations of ARL 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.
3.2. Elective Termination of Services.
(a) ARI, in its sole discretion, may terminate the Term with respect to any or all of the ARL
Services by six (6) months’ prior notice to ARL, which termination shall be effective as of the
date as such notice may specify, and upon the effective date of any such termination ARI shall no
longer be responsible for the payment of any Fees or other expenses associated with such terminated
ARL Services.
(b) ARL, in its sole discretion, may terminate the Term with respect to any or all of the ARI
Services by six (6) months’ prior notice to ARI, which termination shall be effective as of the
date as such notice may specify, and upon the effective date of any such termination ARL shall no
longer be responsible for the payment of any Fees or other expenses associated with such terminated
ARI Services.
3.3. Performance of Services.
(a) In each case when ARI is able to perform any ARL Service without assistance from ARL, ARI
shall promptly terminate ARL’s provision of such ARL Service pursuant to Section 3.2(a).
(b) In each case when ARL is able to perform any ARI Service without assistance from ARI, ARL
shall promptly terminate ARI’s provision of such ARI Service pursuant to Section 3.2(b).
3.4. Resignation.
(a) ARL may not resign from its obligations and duties to perform the ARL Services hereunder,
except (i) with the prior written consent of ARI or (ii) upon a determination that ARL’s
performance of the ARL Services is no longer permissible under applicable law. Any such
determination permitting the resignation of ARL pursuant to clause (ii) above shall be evidenced by
an opinion of independent counsel, in form and substance reasonably satisfactory to ARI, to such
effect delivered to ARI.
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(b) ARI may not resign from its obligations and duties to perform the ARI Services hereunder,
except (i) with the prior written consent of ARL or (ii) upon a determination that ARI’s
performance of the ARI Services is no longer permissible under applicable law. Any such
determination permitting the resignation of ARI pursuant to clause (ii) above shall be evidenced by
an opinion of independent counsel, in form and substance reasonably satisfactory to ARL, to such
effect delivered to ARL.
4. Duties.
4.1. Duties of ARL. Subject to the terms and provisions hereof, ARL shall provide or
arrange for the provision of the ARL Services to and on behalf of ARI during the Term in the same
manner as ARL performs such services on its own behalf. ARI shall furnish to ARL all such
information as may be reasonably necessary to enable ARL to provide the ARL Services. Any ARL
Service to be provided by ARL under this Agreement shall be performed by ARL, any of its
Affiliates, or any other Person with the capability to provide such ARL Service that ARL arranges
to provide such ARL Service.
4.2. Duties of ARI. Subject to the terms and provisions hereof, ARI shall provide or
arrange for the provision of the ARI Services to and on behalf of ARL during the Term in the same
manner as ARI performs such services on its own behalf. ARL shall furnish to ARI all such
information as may be reasonably necessary to enable ARI to provide the ARI Services.
5. Records and Information.
(a) ARL and ARI each shall maintain separate, complete and accurate records relating to the
Services provided by it hereunder and all matters covered by this Agreement in equivalent or better
form and to an equivalent or better extent as it customarily maintains records for itself or in
respect of its performance of similar services for and on behalf of other Persons. During the
period that ARL provides any of the Accounting and Finance Services and Treasury Services to ARI
pursuant to this Agreement, ARL shall provide ARI with a calendar monthly statement of all amounts
received by ARL for the account of ARI.
(b) ARI and its designees shall have the right, at ARI’s expense, for their respective
representatives to examine ARL’s books and records relating to the provision by ARL of the ARL
Services to ARI, and to make copies thereof or extracts therefrom, at any time during normal
business hours upon not less than two (2) Business Days’ prior written notice.
(c) ARL and its designees shall have the right, at ARL’s expense, for their respective
representatives to examine ARI’s books and records relating to the provision by ARI of the ARI
Services to ARL, and to make copies thereof or extracts therefrom, at any time during normal
business hours upon not less than two (2) Business Days’ prior written notice.
(d) Upon the expiration or termination of the Term or of the termination by ARI of ARL’s
obligation with respect to any ARL Service provided hereunder, ARL shall promptly deliver to ARI or
its designees originals or copies of any records maintained by ARL in respect of all of the ARL
Services or any such terminated ARL Service, as the case may be, and
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ARL shall reasonably cooperate, at the expense of ARI, with ARI or its designees in connection
with the transfer of ARL’s duties hereunder to ARI or a third Person so as to ensure, to the extent
practicable, an orderly transition to the provision of ARL Services by ARI or any such third
Person.
(e) Upon the expiration or termination of the Term or of the termination by ARL of ARI’s
obligation with respect to any ARI Service provided hereunder, ARI shall promptly deliver to ARL or
its designees originals or copies of any records maintained by ARI in respect of all of the ARI
Services or any such terminated ARI Service, as the case may be, and ARI shall reasonably
cooperate, at the expense of ARL, with ARL or its designees in connection with the transfer of
ARI’s duties hereunder to ARL or a third Person so as to ensure, to the extent practicable, an
orderly transition to the provision of ARI Services by ARL or any such third Person.
(f) Following the expiration or termination of the Term or of the termination of ARI’s or
ARL’s obligation with respect to any Service provided hereunder, ARL and ARI shall each provide the
other with access to any records maintained by it relating to the Services or any terminated
Service for any valid business purpose, including the preparation of financial statements and tax
returns, in connection with tax audits and in connection with litigation.
(g) Without limiting any of the provisions and terms of this Agreement, if ARI shall have a
class of securities registered under the Securities and Exchange Act of 1934, as amended, or
otherwise be required to file periodic reports under said Act:
(i) ARL will, and will use its commercially reasonable efforts to cause its independent
auditors to, provide ARI with such information, records, reports or documentation as ARI may
reasonably request (to the extent in ARL’s possession or otherwise generally available to ARL) to
permit ARI to comply with applicable laws, including, without limitation, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the Xxxxxxxx-Xxxxx Act of 2002
and rules and regulations promulgated under such Acts or any successor provisions. Such
information, records, reports and documentation and testing thereof may include, without
limitation, a SAS 70 Type II Report within 45 days of the end of each calendar year commencing with
the calendar year ending December 31, 2006 prepared by ARL’s independent auditors in accordance
with Statement on Auditing Standards No. 70, Service Organizations (“SAS 70”), which report shall
include an opinion with respect to the controls that are in effect at ARL over the practices and
procedures relating to ARL’s performance of such Services under this Agreement (“SAS 70 Type II
Report”), and such other information, records, reports or documentation as may be reasonably
requested of ARL and its management for ARI to comply with Section 404, entitled “Management’s
Assessment of Internal Controls”, of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated thereunder or any successor provisions;
(ii) ARL will, and will use its commercially reasonable efforts to cause its independent
auditors to, provide to the independent public accountants of ARI such information, records,
reports or documentation as ARI or its independent public accountants may reasonably request (to
the extent in ARL’s possession or otherwise generally available to ARL) to allow ARI’s independent
public accountants to complete audits and limited reviews of the financial
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statements and other accounting or financial data or information of ARI (including, without
limitation, such information, records, reports (including SAS 70 Type II Reports) and documentation
and testing thereof as may be necessary for such independent public accountants to provide the
attestation to, and report on, the internal control assessment made by ARI and its management
required under the Xxxxxxxx-Xxxxx Act of 2002, the rules and regulations promulgated thereunder or
any successor provisions and the rules of the Public Company Accounting Oversight Board);
(iii) ARL shall correct as promptly as practicable, any deficiencies in books and records and
associated controls and procedures relating to the information provided under this Section 5 that
are identified by ARI in writing in reasonable detail in connection with any internal control
assessment, audit or similar review or report conducted or to be conducted by ARI, its management
or its independent public accountants pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or any successor provisions. If at any time ARI reasonably
determines that any changes are needed to be made to ARL’s internal controls and identifies such
changes in reasonable detail in writing then ARL shall work diligently to make such changes as
promptly as practicable. ARL shall have no responsibility for determining what changes or
corrections are necessary and shall follow only those instructions provided by ARI; and
(iv) All direct and indirect costs and expenses relating to any of the requests made by ARI of
ARL under and pursuant to this Section 5(g) (including employee time required to compile
information or otherwise comply with this Section 5(g), changes to systems maintained by ARL to
provide information in a specific format, fees and expenses charged by ARL’s independent auditor or
other third parties) shall be at the expense of ARI, unless (A) ARL prepares the same exact
information for itself in its ordinary course of business, in which case the cost shall be a
nominal processing fee, or (B) ARL provides the same exact information or report to ARI as a
service hereunder, in which case the cost shall be covered by the applicable Exhibit’s cost
calculation(s). The intent of the parties is not to double charge for any service or other work
performed by one party for the other hereunder.
6. Representations and Warranties. Each of ARI and ARL represents and warrants to the
other as follows:
(a) It is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. It has all necessary entity power and authority and has taken all
entity 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 with its terms, except as such
enforceability may be limited by (i) 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 (ii) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law.
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(c) Neither the execution and delivery by it of this Agreement, the performance by it of its
obligations hereunder nor the consummation of the transactions contemplated hereby will (i) 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, (ii)
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, (iii) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other governmental authority to which it is
subject, or (iv) result in the creation of any lien, security interest or other encumbrance on its
assets, which in the case of (i), (ii), (iii) or (iv) would cause the transactions contemplated by
this Agreement not to be consummated or that 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
governmental authority 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 or on the business, financial condition, or operations of any party to this
Agreement.
7. Fees.
7.1. Fees. For each of the ARL Services provided under this Agreement by ARL, ARI
will pay ARL the fees set forth on Schedule A, and for each of the ARI Services provided
under this Agreement by ARI, ARL will pay ARI the fees set forth on Schedule B
(collectively, the “Fees”). The Fees are intended to include all direct costs and expenses
relating to the performance by ARI and ARL of their respective Services under this Agreement.
7.2. ARL Service Invoices. ARL will invoice ARI monthly in advance for all ARL
Services performed hereunder, and each such invoice shall be accompanied by a summary, in
reasonable detail, of ARL’s calculation of the Fees for such ARL Services, which calculation shall
be binding upon ARI absent manifest error. ARI will pay all such invoiced amounts within ten (10)
days from the date of delivery of each such invoice.
7.3. ARI Service Invoices. ARI will invoice ARL monthly in advance for all ARI
Services performed hereunder, and each such invoice shall be accompanied by a summary, in
reasonable detail, of ARI’s calculation of the Fees for such ARI Services, which calculation shall
be binding upon ARL absent manifest error. ARL will pay all such invoiced amounts within ten (10)
days from the date of delivery of each such invoice.
8. Events of Default; Remedies.
8.1. Events of Default. The occurrence of any of the following events shall
constitute an “Event of Default” under this Agreement:
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(a) the failure by ARI or ARL, as the case may be, to pay when due any amount payable by it
hereunder unless such failure shall have been remedied within ten (10) days;
(b) breach or failure to comply with or perform any covenant (other than the covenants
referred to in clause (a) hereof) to be complied with or performed by ARI or ARL hereunder, and
such default shall not have been remedied within thirty (30) days;
(c) the commencement of any case or proceeding against any party hereto (i) under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (ii)
seeking to adjudge such party a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of such party under any applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of such party or of any substantial part of the property of such party, or ordering the
winding up or liquidation of the affairs of such party, and (x) the entry of an order for relief in
any of the foregoing or any such adjudication or appointment shall occur or (y) the continuance of
any such case or proceeding undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days;
(d) the commencement by any party hereto 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 such party 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 such party, or
the filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it 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 such party or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of limited liability
company action by it in furtherance of any such action;
(e) any representation or warranty made herein by any party hereto shall prove to have been
false or misleading as of the time made or furnished in any material respect; or
(f) (i) with respect to ARL only, if, other than as provided for in this Agreement, ARL shall
cease to be actively involved in the business of providing the services constituting the ARL
Services or (ii) with respect to ARI only, if, other than as provided for in this Agreement, ARI
shall cease to be actively involved in the business of providing the services constituting the ARI
Services.
8.2. Remedies Upon Default.
(a) Upon the occurrence and during the continuation of any Event of Default by ARL, ARI, as
the non-defaulting party, in its sole discretion, may (i) terminate the Term or
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the provision of any Services hereunder by notice to ARL, which termination shall be effective
as of the date of such notice or such later date, in the discretion of ARI, as such notice may
specify, (ii) proceed by appropriate court action to enforce performance of this Agreement by ARL,
or (iii) xxx to recover actual direct damages (including lost revenues but not consequential
damages) that result from a breach hereof, and ARL shall bear ARI’s costs and expenses, including
reasonable attorney’s fees, in securing such enforcement or damages.
(b) Upon the occurrence and during the continuation of any Event of Default by ARI, ARL, as
the non-defaulting party, in its sole discretion, may (i) terminate the Term or the provision of
any Services hereunder by notice to ARI, which termination shall be effective as of the date of
such notice or such later date, in the discretion of ARL, as such notice may specify, (ii) proceed
by appropriate court action to enforce performance of this Agreement by ARI, or (iii) xxx to
recover actual direct damages (including lost revenues but not consequential damages) that result
from a breach hereof, and ARI shall bear ARL’s costs and expenses, including reasonable attorney’s
fees, in securing such enforcement or damages.
8.3. Remedies Cumulative. Each and every right, power and remedy herein specifically
given to ARI or ARL 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 ARI or ARL, as the case may be. 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 ARI or ARL 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 any party hereto to any other party hereto
shall not otherwise alter or affect the respective rights and obligations of the parties hereto.
The acceptance of any payment by any party hereto after it shall have become due hereunder shall
not be deemed to alter or affect the respective rights and obligations of the parties hereto with
respect to any subsequent payments or defaults hereunder.
9. Force Majeure. Neither party hereto shall be deemed to be in breach or in
violation of this Agreement if such Person is prevented from performing any of its obligations
hereunder for any reason beyond its reasonable control, including acts of God, riots, strikes,
fires, storms, wars, terrorism, insurrections, or public disturbances, or any regulation of any
Federal, state or local government or any agency thereof.
10. 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 ARI and ARL with respect to the subject
matter hereof. This Agreement may not be waived, changed, altered, modified or amended in any
respect without a writing to that effect, signed by all of the parties hereto affected by such
waiver, change, alteration, modification, or amendment. 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
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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
that it would be legally entitled to take.
11. 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:
To ARL:
American Railcar Leasing LLC
000 Xxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
000 Xxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
To ARI:
American Railcar Industries, Inc.
000 Xxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy no.: (000) 000-0000
Telephone no.: (000) 000-0000
000 Xxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
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.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES)
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
13. 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
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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.
14. Successors and Assigns. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted assigns of the parties
hereto; provided, however, that no assignment hereof by ARI or transfer of ARI’s
rights or obligations hereunder whether by operation or law or otherwise shall be valid and
effective as against ARL without the prior consent of ARL.
15. Third Party Beneficiaries. The terms and provisions of this Agreement are
intended for the benefit of each party hereto and their respective successors or permitted assigns,
and it is not the intention of the parties to confer third-party beneficiary rights upon any other
Person.
16. Counterparts. This Agreement 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.
17. CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ARI OR ARL
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXX XX XXX XXXX AND ARI AND ARL
EACH WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING AND, SOLELY FOR THE PURPOSES OF ENFORCING THIS AGREEMENT, ARI AND ARL
EACH IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
18. Limitation on Liability; Non-Recourse. Notwithstanding anything in this Agreement
to the contrary, none of ARL’s Affiliates shall have any liability with respect to, and ARI
expressly waives, releases and agrees not to xxx for, any special, indirect or consequential, and,
to the extent permitted under applicable law, punitive damages suffered by ARI or any other Person
in connection with any breach or default hereunder by ARL. This Agreement is solely and
exclusively between ARL and ARI and any obligations of ARL created herein shall be the sole
obligations of ARL, and ARI shall not have recourse to any of ARL’s Affiliates for the performance
of ARL’s obligations hereunder, unless such obligations are expressly assumed in writing by the
Person against whom recourse is sought. ARL or any successor thereto shall be acting hereunder
solely in its capacity as provider of the ARL Services.
19. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, AS AGAINST
THE OTHER PARTY HERETO, ANY RIGHTS IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR
PROCEEDING (WHETHER ARISING IN CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING
UNDER OR
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RELATING TO THIS AGREEMENT, INCLUDING IN RESPECT OF THE NEGOTIATION, ADMINISTRATION OR
ENFORCEMENT HEREOF OR THEREOF.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Services Agreement as of the date
first above written.
| AMERICAN RAILCAR LEASING LLC |
||||
| By: | American Railcar Industries, Inc., | |||
| its managing member | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
| AMERICAN RAILCAR INDUSTRIES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
