GUARANTY AGREEMENT
Exhibit
10.50
THIS GUARANTY AGREEMENT dated as of December 28, 2007 (as amended, amended and restated or
otherwise modified from time to time, this “Agreement”) is entered into by American Railcar
Industries, Inc., a Delaware corporation (the “Guarantor”) in favor of LASALLE BANK
NATIONAL ASSOCIATION, as the Administrative Agent, for its benefit and the benefit of the Lenders
party to the Credit Agreement (as hereafter defined).
The Lenders have severally agreed to extend credit to Axis, LLC, a Delaware limited liability
company (the “Borrower”), pursuant to the Credit Agreement. The Borrower is affiliated
with Guarantor. The proceeds of credit extended under the Credit Agreement will be used in part to
enable the Borrower to make valuable transfers to the Guarantor. Guarantor will derive substantial
direct and indirect benefit from extensions of credit under the Credit Agreement. It is a
condition precedent to each Lender’s obligation to extend credit under the Credit Agreement that
the Guarantor shall have executed and delivered this Agreement to the Administrative Agent for its
benefit and the benefit of the Lenders.
In consideration of the premises and to induce the Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to extend credit thereunder, Guarantor
hereby agrees with the Administrative Agent, for its benefit and the benefit of the Lenders, as
follows:
SECTION 1. DEFINITIONS.
1.1. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
1.2. When used herein the following terms shall have the following meanings:
Credit Agreement means the Credit Agreement of even date herewith among the Borrower,
the financial institutions party thereto as lenders and the Administrative Agent, as the same may
be amended, amended and restated or otherwise modified from time to time.
Discharge Date means the first date upon which the last of the following shall have
occurred: (a) the Equipment has been in continuous production at a level sufficient to support
production of Inventory required to meet the projected financial performance of the Project and in
any event not less than 365 consecutive days from the Acceptance Date, (b) the Borrower has
provided Administrative Agent the Completion Date Financial Projections and (c) the Pledgor has
entered into the Pledge Agreement and the Administrative Agent has received such legal deliverables
in connection therewith reasonably requested by the Administrative Agent and in a form consistent
with the items delivered by the Transaction Parties to the Administrative Agent on the Closing
Date, including but not limited to a legal opinion.
Guaranteed Obligations means the Obligations, exclusive of Obligations consisting of
or relating to the expenses of seeking recourse against any other guarantor of the Obligations.
Paid in Full means (a) the payment in full in cash and performance of all Obligations
or the Guaranteed Obligations, as the context requires, (b) the termination of all Commitments and
(c) either (i) the cancellation and return to the Administrative Agent of all Letters of Credit or
(ii) the cash collateralization of all Letters of Credit in accordance with the Credit Agreement,
provided that the obligation in clause (c) shall be met with respect to the Guarantor if the
aggregate sum of the Letters of Credit that are returned and the cash collateralization that is
provided is equal to or exceeds the amount of the Guaranteed Obligations.
Qualification means, with respect to any report of independent public accountants
covering financial statements, a material qualification to such report (i) resulting from a
limitation on the scope of examination of such financial statements or the underlying data, (ii) as
to the capability of the Guarantor to continue operations as a going concern or (iii) which could
be eliminated by changes in financial statements or notes thereto covered by such report (such as
by the creation of or increases in a reserve or a decrease in the carrying value of assets) and
which if so eliminated by the making of any such change and after giving effect thereto would
result in an Unmatured Event of Default or Event of Default.
UCC means the Uniform Commercial Code as in effect on the date hereof and from
time to time in the State of Illinois, provided that if by reason of mandatory provisions
of law, the perfection or the effect of perfection or non-perfection of the security interests in
any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial
Code as in effect on or after the date hereof in any other jurisdiction, “UCC” means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or non-perfection or availability of
such remedy.
SECTION 2. GUARANTY.
2.1. Guaranty.
(a) The Guarantor hereby severally (but not jointly or jointly and severally with any other
guarantor), unconditionally and irrevocably, as a primary obligor and not only a surety, guaranties
to the Administrative Agent, for its benefit and the benefit of the Lenders, the prompt and
complete payment and performance by Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Guaranteed Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of Guarantor hereunder shall in no event exceed the lesser of (i) the amount which can be
guarantied by Guarantor under applicable federal and state laws relating to the insolvency of
debtors and (ii) the amount equal to fifty percent (50%) of the outstanding Guaranteed Obligations
as of the first date of demand by
-2-
Administrative Agent for payment hereunder; provided, that the outstanding principal
amount in respect of such Guaranteed Obligations, exclusive of any capitalized interests, fees
costs and expenses, shall not exceed $35,000,000.
(c) The Guarantor agrees that the Obligations may at any time and from time to time exceed the
amount of the liability of the Guarantor hereunder without impairing the guaranty contained in this
Section 2 or affecting the rights and remedies of the Administrative Agent hereunder.
(d) The guaranty contained in this Section 2 shall remain in full force and effect
until the earlier of (i) the date the Guaranteed Obligations shall have been Paid in Full and
(ii) the Discharge Date.
(e) No payment made by Borrower, the Guarantor, any other guarantor or any other Person or
received or collected by the Administrative Agent or any Lender from Borrower, the Guarantor, any
other guarantor or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by
the Guarantor in respect of the Guaranteed Obligations or any payment received or collected from
the Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed
Obligations up to the maximum liability of the Guarantor hereunder.
2.2. No Subrogation. Notwithstanding any payment made by the Guarantor hereunder or
any set-off or application of funds of the Guarantor by the Administrative Agent or any Lender, the
Guarantor shall not be entitled to be subrogated to any of the rights of the Administrative Agent
or any Lender against Borrower or any other guarantor or any collateral security or guaranty or
right of offset held by the Administrative Agent or any Lender for the payment of the Obligations,
nor shall the Guarantor seek or be entitled to seek any contribution or reimbursement from Borrower
or any other guarantor in respect of payments made by the Guarantor hereunder, until all of the
Obligations are Paid in Full, no Letter of Credit shall be outstanding and the Commitments are
terminated. If any amount shall be paid to the Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been Paid in Full, such amount shall be held by
the Guarantor in trust for the Administrative Agent and the Lenders, segregated from other funds of
the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to the
Administrative Agent in the exact form received by the Guarantor (duly indorsed by the Guarantor to
the Administrative Agent, if required), to be applied against the Guaranteed Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
2.3. Amendments, etc. with respect to the Obligations. The Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against the Guarantor
and without notice to or further assent by the Guarantor, any demand
-3-
for payment of any of the Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender and any of the Obligations continued, and the
Obligations, or the liability of any other Person upon or for any part thereof, or any collateral
security or guaranty therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and the Credit Agreement and the
other Loan Documents and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders or all the Lenders, as the case may be) may deem advisable from time to time.
Neither the Administrative Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Obligations or for the
guaranty contained in this Section 2 or any property subject thereto.
The Administrative Agent or any Lender may, from time to time, at its sole discretion and
without notice to the Guarantor, take any or all of the following actions: (a) retain or obtain a
security interest in any property to secure any of the Obligations or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Obligations, (c) extend or renew any of the Obligations for
one or more periods (whether or not longer than the original period), alter or exchange any of the
Obligations, or release or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the Obligations, (d) release
any guaranty or right of offset or its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of the Obligations or
any obligation hereunder, or extend or renew for one or more periods (whether or not longer than
the original period) or release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property, and (e) resort to the undersigned for payment of any of
the Obligations when due, whether or not the Administrative Agent or such Lender shall have
resorted to any property securing any of the Obligations or any obligation hereunder or shall have
proceeded against any other of the undersigned or any other obligor primarily or secondarily
obligated with respect to any of the Obligations.
2.4. Waivers. The Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guaranty contained in this Section 2 or
acceptance of the guaranty contained in this Section 2; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guaranty contained in this Section 2, and all
dealings between Borrower and the Guarantor, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated
in reliance upon the guaranty contained in this Section 2. Guarantor waives (a) diligence,
presentment, protest, demand for payment and notice of default, dishonor or nonpayment and all
other notices whatsoever to or upon Borrower or the Guarantor with respect to the Obligations, (b)
notice of the existence or creation or non-
-4-
payment of all or any of the Obligations and (c) all diligence in collection or protection of
or realization upon any Obligations or any security for or guaranty of any Obligations.
2.5. Payments. Guarantor hereby guaranties that payments hereunder will be paid to
the Administrative Agent without set-off or counterclaim in Dollars at the office of the
Administrative Agent specified in the Credit Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower thereunder, the
Guarantor hereby represents and warrants to the Administrative Agent, for its benefit and the
benefit of the Lenders that:
3.1. Organization.
The Guarantor is validly existing and in good standing under the laws of its jurisdiction of
incorporation; and the Guarantor is duly qualified to do business in each jurisdiction where,
because of the nature of its activities or properties, such qualification is required, except for
such jurisdictions where the failure to so qualify could not reasonably be expected to have a
Material Adverse Effect.
3.2. Authorization; No Conflict.
The Guarantor is duly authorized to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by the Guarantor of this Agreement
do not and will not (a) require any consent or approval, including permits and/or licenses of any
governmental agency or authority (other than any consent, approval, license or permit which has
been obtained and is in full force and effect or any license or permit, the failure of which to
obtain could not reasonably be expected to have a Material Adverse Effect), (b) conflict with (i)
any provision of law (which conflict could reasonably be expected to have a Material Adverse
Effect), (ii) the charter, by-laws or other organizational documents of the Guarantor or (iii) any
agreement, indenture, instrument or other document, or any judgment, order or decree, which is
binding upon the Guarantor or any of its properties (which conflict could reasonably be expected to
have a Material Adverse Effect) or (c) require, or result in, the creation or imposition of any
Lien on any asset of the Guarantor.
3.3. Validity and Binding Nature.
This Agreement is the legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency and similar
laws affecting the enforceability of creditors’ rights generally and to general principles of
equity.
-5-
3.4. Solvency, etc.
On the Closing Date, and immediately prior to and after giving effect to the issuance of each
Letter of Credit and each borrowing under the Credit Agreement and the use of the proceeds thereof,
with respect to the Guarantor, individually, (a) the fair value of its assets is greater than the
amount of its liabilities (including disputed, contingent and unliquidated liabilities) as such
value is established and liabilities evaluated in accordance with GAAP, (b) the present fair
saleable value of its assets is not less than the amount that will be required to pay the probable
liability on its debts as they become absolute and matured, (c) it is able to realize upon its
assets and pay its debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business, (d) it does not intend to, and does
not believe that it will, incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature and (e) it is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which its property would constitute unreasonably small
capital.
3.5. Compliance with Material Debt Agreements.
On the Closing Date, the Guarantor is in compliance on a pro forma basis with all financial
covenants contained the Material Debt Agreements, to which it is a party.
3.6. Information.
All information heretofore or contemporaneously herewith furnished in writing by the Guarantor
to the Administrative Agent or any Lender for purposes of or in connection with the Credit
Agreement, this Agreement and the transactions contemplated thereby and hereby is, and all written
information hereafter furnished by or on behalf of the Guarantor to the Administrative Agent or any
Lender pursuant thereto or hereto or in connection therewith or herewith will be, true and accurate
in every material respect on the date as of which such information is dated or certified, and none
of such information is or will be incomplete by omitting to state any material fact necessary to
make such information not misleading in light of the circumstances under which made (it being
recognized by the Administrative Agent and the Lenders that any projections and forecasts provided
by the Guarantor are based on good faith estimates and assumptions believed by the Guarantor to be
reasonable as of the date of the applicable projections or assumptions and that actual results
during the period or periods covered by any such projections and forecasts may differ from
projected or forecasted results).
SECTION 4. COVENANTS.
The Guarantor covenants and agrees with the Administrative Agent, for its benefit and the
benefit of the Lenders that, from and after the date of this Agreement until the Guaranteed
Obligations shall have been Paid in Full, the Guarantor shall:
-6-
4.1. Reports, Certificates and Other Information.
Furnish to the Administrative Agent and each Lender (in each case, any reports which are
publicly available with the SEC need not be separately delivered to the Administrative Agent and
each Lender):
4.1.1. Annual Report. Promptly when available and in any event within 90 days after
the close of each fiscal year of the Guarantor: (a) a copy of the annual audit report of the
Guarantor and its Subsidiaries for such fiscal year, including therein consolidated balance sheets
and statements of earnings and cash flows of the Guarantor and its Subsidiaries as at the end of
such fiscal year, together with an opinion without Qualification by independent auditors of
recognized standing selected by the Guarantor and reasonably acceptable to the Administrative Agent
(provided, however, that any nationally recognized independent auditor acceptable to a financial
institution that provides the Guarantor’s senior credit facilities shall be deemed acceptable by
Administrative Agent) and a “Management Letter”, and (b) (to the extent prepared) a consolidating
balance sheet of the Guarantor and its Subsidiaries as of the end of such fiscal year and (to the
extent prepared) consolidating statement of earnings and cash flows for the Guarantor and its
Subsidiaries for such fiscal year, certified by a Senior Officer of the Guarantor.
4.1.2. Interim Reports. Promptly when available and in any event within 45 days after
the end of each fiscal quarter of the Guarantor, consolidated and (to the extent prepared)
consolidating balance sheets of the Guarantor and its Subsidiaries as of the end of such fiscal
quarter, together with consolidated and (to the extent prepared) consolidating statements of
earnings for such fiscal quarter and statements of earnings and cash flows for the period beginning
with the first day of such fiscal year of the Guarantor and ending on the last day of such fiscal
quarter, together with a comparison with the corresponding period of the previous fiscal year of
the Guarantor.
4.1.3. Reports to the SEC and to Shareholders. As soon as available, but not later
than five days after the same are sent or filed, as the case may be, copies of all financial
statements and reports that the Guarantor sends to all shareholders qua shareholders or files
publicly with the SEC.
4.1.4. Other Information. Promptly from time to time, such other information
concerning the Guarantor as the Administrative Agent may reasonably request.
4.2. Books and Records.
Keep its books and records in accordance with sound business practices sufficient to allow the
preparation of financial statements in accordance with GAAP.
4.3. Maintenance of Property; Insurance.
Keep all property useful and necessary in the business of the Guarantor in good working order
and condition, ordinary wear and tear excepted in accordance with its
-7-
past operating practices except to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
4.4. Compliance with Laws; Payment of Taxes and Liabilities.
Comply in all material respects with all applicable laws, rules, regulations, decrees, orders,
judgments, licenses and permits, except where failure to comply could not reasonably be expected to
have a Material Adverse Effect; (b) without limiting clause (a) above, ensure that no person who
owns a controlling interest in or otherwise controls the Guarantor is or shall be (i) listed on the
Specially Designated Nationals and Blocked Person List maintained by the Office of Foreign Assets
Control (“OFAC”), Department of the Treasury, and/or any other similar lists maintained by
OFAC pursuant to any authorizing statute, Executive Order or regulation or (ii) a person designated
under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar Executive Orders, (c) without limiting clause (a) above,
comply with all applicable Bank Secrecy Act (“BSA”) and anti-money laundering laws and
regulations and (d) pay prior to delinquency, all taxes and other governmental charges against it
or any collateral, as well as claims of any kind which, if unpaid, could become a Lien on any of
its property; provided that the foregoing shall not require the Guarantor to pay any such
tax or charge so long as it shall contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves with respect thereto in accordance
with GAAP.
4.5. Maintenance of Existence, etc.
Maintain and preserve (a) its existence and good standing in the jurisdiction of its
organization and (b) its qualification to do business and good standing in each jurisdiction where
the nature of its business makes such qualification necessary (other than such jurisdictions in
which the failure to be qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect).
SECTION 5. MISCELLANEOUS.
5.1. Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 15.1
of the Credit Agreement.
5.2. Notices. All notices, requests and demands to or upon the Administrative Agent
or the Guarantor hereunder shall be in writing (including facsimile transmission) and shall be sent
to the applicable party at its address shown below its signature hereto with a copy to Icahn
Associates Corp., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy (000)
000-0000, Attn.: Xxxxxx Xxxxxxx, Esq., or at such other address as such party may, by written
notice received by the other parties, have designated as its address for such purpose. Notices
sent by facsimile transmission shall be deemed to have been given when sent; notices sent by mail
shall be deemed to have been given three Business Days after the date when sent by registered or
certified mail, postage
-8-
prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to
have been given when received.
5.3. Indemnification by Guarantor. THE GUARANTOR HEREBY AGREES TO INDEMNIFY,
EXONERATE AND HOLD EACH LENDER PARTY FREE AND HARMLESS FROM AND AGAINST ANY AND ALL INDEMNIFIED
LIABILITIES, INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR
RELATING TO (A) ANY TRANSACTION FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY
OR INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE USE, HANDLING, RELEASE, EMISSION,
DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY
PROPERTY OWNED OR LEASED BY THE GUARANTOR, (C) ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT
TO CONDITIONS AT ANY PROPERTY OWNED OR LEASED BY THE GUARANTOR OR THE OPERATIONS CONDUCTED THEREON,
(D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH ANY LOAN PARTY OR THEIR
RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES
OR (E) THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED LIABILITIES ARISING ON
ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A
FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION. IF AND TO THE EXTENT THAT THE
FOREGOING UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE GUARANTOR HEREBY AGREES TO MAKE THE
MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH
IS PERMISSIBLE UNDER APPLICABLE LAW. ALL GUARANTEED OBLIGATIONS PROVIDED FOR IN THIS SECTION
5.3 SHALL SURVIVE REPAYMENT OF ALL (AND SHALL BE) OBLIGATIONS (AND TERMINATION OF ALL
COMMITMENTS UNDER THE CREDIT AGREEMENT), ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR
DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT.
5.4. Enforcement Expenses.
(a) The Guarantor agrees, on a joint and several basis, to pay or reimburse on demand each
Lender and the Administrative Agent for all reasonable out-of-pocket costs and expenses (including
Attorney Costs) incurred in collecting against the Guarantor under the guaranty contained in
Section 2 or otherwise enforcing or preserving any rights under this Agreement with respect
to the Guarantor.
-9-
(b) The Guarantor agrees to pay, and to save the Administrative Agent and the Lenders harmless
from, any and all liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be payable in connection
with any of the transactions contemplated by this Agreement.
(c) The agreements in this Section 5.4 shall survive repayment of all (and shall be)
Obligations (and termination of all commitments under the Credit Agreement), any foreclosure under,
or any modification, release or discharge of, any or all of the Collateral Documents and
termination of this Agreement.
5.5. Captions. Section captions used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
5.6. Nature of Remedies. All Guaranteed Obligations of the Guarantor and rights of
the Administrative Agent and the Lenders expressed herein shall be in addition to and not in
limitation of those provided by applicable law. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
5.7. Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts and each such counterpart shall be deemed
to be an original, but all such counterparts shall together constitute but one and the same
Agreement. Receipt by telecopy of any executed signature page to this Agreement shall constitute
effective delivery of such signature page.
5.8. Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or any instrument or
agreement required hereunder.
5.9. Entire Agreement. This Agreement, together with the other Loan Documents,
embodies the entire agreement and understanding among the parties hereto and supersedes all prior
or contemporaneous agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof and any prior arrangements made with respect to the payment
by the Guarantor of (or any indemnification for) any fees, costs or expenses payable to or incurred
(or to be incurred) by or on behalf of the Administrative Agent or the Lenders.
5.10. Successors; Assigns. This Agreement shall be binding upon the Guarantor, the
Lenders and the Administrative Agent and their respective successors and assigns, and shall inure
to the benefit of the Guarantor, Lenders and the Administrative Agent and the successors and
assigns of the Lenders and the Administrative Agent. No other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect
-10-
cause of action or claim in connection with, this Agreement or any of the other Loan
Documents. The Guarantor may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
5.11. Governing Law. THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
5.12. Forum Selection; Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE GUARANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
5.13. Waiver of Jury Trial. THE GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
5.14. Set-off. The Guarantor agrees that the Administrative Agent and each Lender
have all rights of set-off and bankers’ lien provided by applicable law, and in addition thereto,
the Guarantor agrees that at any time any Event of Default exists, the Administrative Agent and
each Lender may apply to the payment of any Guaranteed Obligations guaranteed hereunder, whether or
not then due, any and all balances, credits,
-11-
deposits, accounts or moneys of the Guarantor then or thereafter with the Administrative Agent
or such Lender.
5.15. Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Guarantor arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or otherwise exists by virtue of the transactions
contemplated hereby among the Guarantor and the Lenders.
5.16. Guaranteed Obligations and Liens Absolute and Unconditional. The Guarantor
understands and agrees that the obligations of the Guarantor under this Agreement shall be
construed as a continuing, absolute and unconditional without regard to (a) the validity or
enforceability of any Loan Document, any of the Obligations or any other collateral security
therefor or guaranty or right of offset with respect thereto at any time or from time to time held
by the Administrative Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be asserted by the
Guarantor or any other Person against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor
for the Guaranteed Obligations, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to, make a similar demand
on or otherwise pursue such rights and remedies as it may have against any other guarantor or any
other Person or against any collateral security or guaranty for the Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any Lender to make any
such demand, to pursue such other rights or remedies or to collect any payments from any other
guarantor or any other Person or to realize upon any such collateral security or guaranty or to
exercise any such right of offset, or any release of any other guarantor or any other Person or any
such collateral security, guaranty or right of offset, shall not relieve the Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or any Lender against
the Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of
any legal proceedings.
5.17. Reinstatement. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Guarantor for liquidation
or reorganization, should the Guarantor become insolvent or make an
-12-
assignment for the benefit of creditors or should a receiver or trustee be appointed for all
or any significant part of the Guarantor’s assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Guaranteed
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount,
or must otherwise be restored or returned by any obligee of the Guaranteed Obligations, whether as
a “voidable preference”, “fraudulent conveyance”, or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Guaranteed Obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
[Signature page follow]
-13-
Each of the undersigned has caused this Guaranty Agreement to be duly executed and delivered
as of the date first above written.
| AMERICAN RAILCAR INDUSTRIES, INC. | ||||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||||
| Title: | President and Chief Executive Officer | |||||||
| Address: | 000 Xxxxx Xxxxxx | |||||||
| Xx. Xxxxxxx, XX 00000 | ||||||||
| LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent | ||||||||
| By: | /s/ Xxxxxx Xxxx | |||||||
| Title: | Vice President | |||||||
Signature Page to Guaranty Agreement
