MULTI-YEAR PURCHASE AND SALE AGREEMENT
Exhibit 10.18
MULTI-YEAR PURCHASE AND SALE AGREEMENT
This Multi Year Purchase and Sale Agreement (this “Agreement”) is made as of this
29th day of July, 2005, by and between The CIT Group/Equipment Financing, Inc.
(“Buyer”), a corporation organized under the laws of the State of Delaware, and American Railcar
Industries, Inc. (“Seller”), a corporation organized under the laws of the State of Missouri.
Seller is a manufacturer of railroad rolling stock that Buyer desires to purchase and Seller
desires to sell.
For and in consideration of the premises and the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller hereby agree as follows:
1. Sale of Railcars; Scope of Work.
(a) Subject to the provisions hereof, Seller agrees to manufacture and sell to Buyer railcars
of the types described in Exhibit A attached hereto (individually, a “Car,” and collectively, the
“Cars”), and Buyer agrees to purchase Cars from any such types. Except as otherwise provided in
this Agreement, Seller shall furnish all labor, materials and equipment required to manufacture the
Cars at its manufacturing facility or facilities listed on Exhibit A hereto (hereinafter referred
to as “Seller’s Plant”).
(b) In each of calendar 2006, 2007 and 2008 (each, an “Agreement Year”), Seller hereby offers
to sell to Buyer up to four thousand (4,000) Cars (the “Offered Quantity”) consisting of any
combination and number of types identified on Exhibit A hereto (“Offered Car Types”). Buyer agrees
to order from Seller in each Agreement Year pursuant to the terms of one or more schedules (each, a
“Schedule”) and one or more purchase orders (each, a “Purchase Order”) of not less than three
thousand (3,000) Cars (“Railcar Quantity Obligations”) from among the Offered Car Types for
delivery in each Agreement Year. The obligation of Seller to offer and the obligation of Buyer to
purchase Cars in any Agreement Year are subject to the provisions of this Agreement. Buyer shall
not be obligated to order any percentage or number of Cars from any particular Offered Car Types
provided that Buyer orders Cars which conform to one or more Offered Car Types. The parties shall
execute a separate Schedule with respect to specific Car purchases under this Agreement. Each
Schedule shall incorporate the provisions of this Agreement and the numbers and particulars of the
Cars to be ordered, delivery dates, any special terms and pricing. If pricing is not agreed or
cannot then be determined, the pricing terms may be deferred to resolution under the provisions of
this Agreement.
(c) The purchase and sale obligations set forth in paragraph (b) of this Section 1 in any
Agreement Year shall depend on the then current American Railway Car Institute’s (“ARCI”) most
recent reported quarterly backlog during the term of this Agreement. (For purposes of reference,
the ARCI 4th quarter backlog for 2004 was in excess of 58,000 railcars.) If the most recent ARCI
reported quarterly backlog for any quarter during the term of this Agreement falls below 45,000
railcars but remains above 35,000 railcars, Buyer shall have the right, on two hundred forty (240)
days’ prior notice, to cancel any pending Purchase Orders or reduce subsequent Railcar Quantity
Obligations in the then current Agreement Year, in either
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
case such that actual purchases by Buyer would not fall below 50% of that Agreement Year’s
original Railcar Quantity Obligations. If the ARCI quarterly backlog in any calendar quarter last
reported falls below 35,000 railcars, Buyer shall have the right to cancel or suspend all, or any,
pending Purchase Orders or remaining Railcar Quantity Obligations under this Agreement upon one
hundred eighty (180) days’ written notice to Seller (or lesser notice as agreed to by both Parties
in any case). If, during the term of this Agreement, the ARCI quarterly backlog again reaches
35,000 railcars, Buyer may elect, on ninety (90) days’ prior notice, to activate suspended Purchase
Orders or to place new Purchase Orders up to the Offered Quantity in each Agreement Year or pro
rata for any remaining partial Agreement Year. Buyer’s right to reactivate and Seller’s obligation
to honor such reactivation shall depend on Seller‘s available production capacity as at
the date of Seller’s receipt of Buyer’s notice of reactivation. * * * In the event Buyer elects to
cancel any pending Purchase Order under this paragraph within one hundred twenty (120) days of the
delivery date thereunder, Seller may require, by written notice to Buyer, that Buyer purchase from
Seller, at * * *, all material which Seller had theretofore purchased and identified to such
cancelled Purchase Orders. In the event Buyer purchases such material following a cancellation,
Buyer may elect to store such material at Seller’s facility for up to * * * at * * *. Buyer may at
any time have such material removed from Seller’s facility or resell such material to Seller at
cost for use in manufacture of Cars subsequently ordered by Buyer pursuant to a Purchase Order
under this Agreement.
2. Purchase Price.
(a) The
actual purchase price (“Purchase Price”) shall be
the lower of (i) the Adjusted Purchase Price, as hereinafter
defined, or (ii) the then-current Market Price, as hereinafter
defined, in each case, as in effect at the time such Purchase Order
is placed. The base purchase price of
the Cars (the “Base Purchase Price”) as of July 2005 for each Offered Car Type shall be as set
forth in Exhibit A hereto. The Base Purchase Price is firm and subject to escalation or other
adjustment after the date of this Agreement only as provided in this Agreement. The Base Purchase
Price shall be * * *. The Base Purchase Price, as increased or decreased pursuant to the
provisions of this Agreement, is referred to as the “Adjusted Purchase Price.” Neither the
Adjusted Purchase Price nor any Market Price includes any state or local sales, use or other
similar taxes, and any such sales, use or similar tax arising out of this transaction, if any,
shall be paid by Buyer together with the Base Purchase Price. Seller shall sell Cars to Buyer at
the lesser of the Adjusted Purchase Price or the best current market price (“Market Price”)
determined on a “most favored nations” basis.
(b) At the time of execution of each Schedule and Purchase Order, Seller shall provide Buyer
the Market Price for the delivery period quoted. “Most favored nations” pricing, for the purpose
of this Agreement, is defined as the lowest price of an Offered Car Type offered by Seller to the
marketplace in general.
(c) Seller shall also inform Buyer in connection with the execution of each Schedule, of
Seller’s estimated adjustments to the relevant Base Purchase Price. Seller shall inform Buyer
promptly of its final determination of the Adjusted Purchase Price and, in any event, prior to
rendering any Seller’s invoice with respect to such Schedule. * * *. No adjustments shall be made
in any Price for changes in any of the following * * *.
(d)
* * * by a mutually acceptable third party from the list
(“Approved Auditors List”) attached as Exhibit B
hereto * * *.
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
3. Specifications* * * . The. Cars shall be constructed in a good and
workmanlike manner in accordance with the specifications described on Exhibit C hereto, as the same
may be hereafter amended or supplemented from time to time (the
“Specifications”). The
Cars will be built in accordance with all then current Federal Railroad Administration, American
Association of Railroads and United States Department of Transportation design, testing and
approval requirements for new Cars.
Seller shall construct and equip each Car with components and appurtenances identified on * *
* attached hereto as Exhibit D. * * *
4. Buyer’s
Option to Modify Order. Within ten (10) days of the placement of
each Purchase Order, Seller shall give Buyer written notice of the date on which Seller will
commence manufacture of each type of Car (“Manufacture Start Date”). Buyer will have the option to
change either the quantity or type of Car to be purchased subject to the following conditions:
(a) The option must be exercised no later than * * * prior to any Manufacture Start Date by
Buyer notifying Seller in writing of the change.
(b) If
Buyer elects to change the quantity only,
(i) the
total number of Cars to be purchased must remain the same,
(ii) the
price of each type of Car purchased as well as the specifications for
the Cars shall remain the same, and
(iii) Seller may reasonably modify the delivery schedule in the event that Seller requires
additional time to manufacture the Cars with respect to which the order has been changed.
(c) If
Buyer elects to change the quantity and type of Car,
(i) the
total number of Cars to be purchased must remain the same,
(ii) change
in the type of Car may only be to a type of Car that Seller currently
manufactures or to a type that it manufactures at the time Buyer
notifies Seller of its election to change the type of Car,
(iii) the
* * * with respect to which the order has been changed as well as the
* * * shall be * * *, and
(iv) Seller may reasonably modify the delivery schedule in the event that it requires
additional time to manufacture the Cars with respect to which the order has been changed.
5. Delivery and Terms of Payment
(a) Seller shall (i) dedicate, for Buyer’s benefit, sufficient production capacity toward the
production and delivery of * * *
(b) If, with respect to Offered Car Types covered under this Agreement, Seller is unable to
meet engineering specifications required by Buyer, the quantity of Cars that Seller is unable to
provide will be deducted from the Railcar Quantity Obligations. From time to time in any Agreement
Year of the term of this Agreement, Seller * * * .
(c) Unless otherwise agreed in writing, delivery of the Cars shall be F.O.B. Seller’s Plant
not later than * * * following the date of the Purchase Order therefor. After a Certificate of
Acceptance (as hereinafter defined) has been executed with respect to a Car, such Car will be
shipped from Seller’s Plant to the railroad interchange designated in Exhibit A hereto (the
“Interchange Point”), and Seller shall invoice Buyer for payment of the Purchase Price. Unless
otherwise agreed, Seller shall, at its expense, deliver the Cars to the Interchange Point and all
subsequent switching and transportation charges shall be for Buyer’s account. Payment by Buyer of
Seller’s invoice shall be due * * * after Buyer’s receipt thereof Title to a Car shall pass
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
to Buyer upon payment in full for such Car. Following receipt of payment for a Car, Seller
shall deliver to Buyer a xxxx for sale for such Car substantially in the form of Exhibit E hereto.
6. Force Majeure. In the event that Seller is unable to deliver a Car to Buyer within
* * * after the date of a Purchase Order therefor as a result of a Force Majeure Event, Buyer shall
have the option to notify Seller that it will not purchase such Car(s) as to which delivery has
been delayed, and the Railcar Quantity Obligations in that Agreement Year shall be reduced by the
number of Cars that Seller is unable to deliver, the Purchase Price will be reduced accordingly for
each Car that Buyer has elected not to purchase, and such omitted Car will not be deemed a “Car”
under this Agreement. As used herein, a “Force Majeure Event” shall mean and include any delays in
the delivery of any Car caused by strikes, lockouts (other than lockouts by Seller) or other labor
disturbances; shortages or late delivery of material (due to no fault of Seller); unavailability,
interruptions or inadequacy of fuel supplies; acts of God; war, preparation for war or other acts
or interventions the military or other governmental agencies; governmental regulations; priorities
given to defense orders; riot, embargoes, sabotage, act of terrorism, vandalism, malicious
mischief, landslides, floods, hurricanes, earthquakes, collisions or fires; delays of
subcontractors or of carriers by land, sea or air (due to no fault of Seller); quarantine
restrictions, shortages of labor or components and any other circumstances or cause
beyond Seller’s reasonable control.
7. Inspection and Acceptance; Failure to Deliver. Seller shall give Buyer, and/or its
designated agent, reasonable opportunity to inspect the Cars during construction at Seller’s Plant
during normal operating hours or at such other time as may be mutually agreed. Prior to shipment
of a Car, Buyer and Seller shall mutually agree on a date for Buyer’s inspection of such completed
Car and the execution of a certificate of acceptance (“Certificate of Acceptance”) in the form of
Exhibit F hereto. If Buyer determines that a Car appears to have been manufactured according to
the applicable specifications and is in acceptable condition for delivery (hereinafter, a
“Conforming Car”), Buyer shall execute a Certificate of Acceptance. In the event Buyer does not
attend such inspection, or Buyer and Seller cannot mutually agree on an inspection date to occur
within three (3) days of the date of shipment of the Car, Seller is authorized and empowered to
inspect the Car and execute a Certificate of Acceptance on Buyer’s behalf if it determines that the
Car is a Conforming Car. If Buyer notifies Seller that a Car does not conform to the
specifications applicable to that Car (hereinafter a “Non-Conforming Car”), it shall be Seller’s
obligation to make the Car a Conforming Car. The execution of a Certificate of Acceptance shall
not preclude Buyer from asserting a claim for a breach of Seller’s Car warranty contained in
Section 9 herein within the applicable warranty period or that a Car was not manufactured in
accordance with the applicable Specifications.
If Seller is unable to provide a Conforming Car within * * * of the scheduled delivery date
for any reason whatsoever other than a Force Majeure Event or as a result of a delay caused by
Buyer,* * *.
8. No Liens or Claims of Third Parties. Seller hereby represents and warrants to
Buyer that: (a) Seller is the sole owner of the Cars and has good and marketable title to all of
the Cars, free and clear of all liens, claims, demands, charges, security interests, privileges,
pledges or other encumbrances (“Liens”) other then the Liens created by Buyer and that Seller will
convey to Buyer good and marketable title to the Cars being sold free and clear of all Liens of
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
every nature and kind whatsoever other than Liens created by Buyer; and (b) neither Seller’s
rights in the Cars, nor the Cars, are subject to any contract, agreement, or understanding, whether
written or oral, which provides for any remarketing, residual sharing or similar arrangement or
which would be binding upon or enforceable against Buyer, the Cars, or the proceeds of any sale,
lease or any disposition of any thereof.
9. Seller’s Car Warranty; Car Cleaning. Seller warrants that each Car will be free
from defects in material and workmanship under normal use and service for a period of * * * from
the Closing Date and will be manufactured in accordance with the applicable Specifications. With
respect to parts and materials manufactured by others and incorporated by Seller in the Cars, such
parts and material shall be covered only by the warranty, if any, of the manufacturer thereof, and
Seller shall assign to Buyer any such warranty, to the extent assignable by Seller* * * . Seller’s
obligations with respect to any Car for breach of this warranty is limited at its option, to either
a credit or refund of the price of any non-conforming or defective component (or Car) or
replacement or repair of such non-conforming or defective component (or Car) at Seller’s Plant or
at such other location as Seller shall designate in order to minimize Purchaser’s transportation
expenses. Seller’s agreement set forth above to refund, repair or replace defective parts and
materials (other than with respect to parts and materials manufactured by others and incorporated
by Seller in the Cars, the remedy for which is provided for above in this Section 9) shall be
Buyer’s sole and exclusive warranty liability with respect to the Cars that are defective in any
respect or that fail to conform to any express or implied warranty, and Seller will not in any
event be liable for the cost of any labor or transportation charges expended on or in connection
with the repair, replacement or return of any component (or Car) or, except as provided herein, for
any special, indirect, incidental, or consequential damages.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT ITS SOLE
REMEDY FOR BREACH OF THIS WARRANTY BY SELLER IS AS PROVIDED ABOVE AND, EXCEPT AS PROVIDED HEREIN,
SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT OR OTHER INCIDENTAL OR CONSEQUENTIAL INJURY OR
DAMAGE; PROVIDED, HOWEVER, NOTHING CONTAINED HEREIN SHALL LIMIT SELLER’S LIABILITY TO BUYER FOR
CLAIMS OF CONTRIBUTION, IN TORT, PRODUCTS LIABILITY, OR ARE BASED ON ACTS OR OMISSIONS OF SELLER
WITHOUT ANY NEGLIGENCE ON THE PART OF BUYER.
THIS WARRANTY IS CONDITIONED UPON COMPLIANCE BY BUYER AND ALL OTHER USERS OF THE CARS WITH
OPERATION, LOADING, USE, HANDLING, MAINTENANCE AND STORAGE IN ACCORDANCE WITH GOOD COMMERCIAL
PRACTICES OF THE RAILROAD INDUSTRY. SELLER SHALL NOT BE RESPONSIBLE FOR FAILURES CAUSED BY
MISLOADING, OVERLOADING, OVERHEATING, IMPROPER CLEANING, PHYSICAL ABUSE, ACCIDENT, DERAILMENT OR
FOR OTHER DAMAGE CAUSED BY FIRE, FLOOD OR OTHER EXTERNAL CONDITIONS UNRELATED TO THE MANUFACTURE OF
THE CAR, OR FOR NORMAL WEAR AND TEAR.
In general, Cars shall be delivered clean and free from debris or other matter. Certain of
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
the Cars may require that particular cleaning procedures be followed. Any such procedures and
the Cars to which such procedures apply shall be described in Exhibit G hereto. Notwithstanding
the fact that a Certificate of Acceptance has been executed with
respect to a Car, if a Car is not
clean prior to first load by Buyer’s customer so as to make it suitable for loading the commodities
described on Exhibit G hereto, then Buyer and Seller may jointly inspect the Car or Cars in
question. Seller will either pay, or reimburse Buyer, for the expenses to clean any such Car, up
to a maximum of * * *per car, provided, however, Seller’s payment or reimbursement obligation will
not apply if the Car is not clean because foreign matter was introduced while in transit or through
loading operations or other actions of third parties.
10. Sales Tax. Buyer shall pay, and shall indemnify and hold Seller harmless on an
after-tax basis against, all sales, use, transfer or similar taxes (and any fines, penalties,
additions to tax or interest relating thereto), if any, imposed or assessed on or with respect to
the sale and the transfer of the Cars as contemplated herein.
11. No Finder. Each party represents and warrants to the other that neither it not
any party acting on its behalf has paid, or become obligated to pay, or committed any other party
to pay any fee or commission to any broker, finder or intermediary for or on account of the
transactions contemplated by this Agreement.
12. Patents. In lieu of any other warranty by Seller against patent infringement,
statutory or otherwise, Seller agrees to defend, hold harmless and indemnify Buyer against all
claims, demands, losses, suits, damages, liabilities and expenses (including reasonable attorneys’
fees) arising out of any suit, claim, or action for actual or alleged direct or contributory
infringement of, or inducement to infringe, any patent, trademark, copyright or other intellectual
property right by reason of the manufacture, use or sale of the Cars unless such actual or alleged
infringement arises out of the compliance with designs, instructions or specifications furnished by
Buyer. In case the Cars or any part thereof are held to constitute such infringement or the use
thereof is enjoined, Seller shall, at its option, take one of the following three corrective
actions (each, a “Corrective Action”): (a) procure for Buyer the right to continue using the Cars
or part thereof, (b) replace the Cars or part thereof with a non infringing Car or part thereof, or
(c) take such measures as may be required to make the Cars or part thereof non infringing, in which
event Buyer shall deliver the Cars to Seller for that purpose. In the event that Seller fails to
effect a Corrective Action within * * * after Buyer’s written request, Seller shall * * *. The
foregoing states Seller’s entire liability with respect to any patent infringement by the Cars or
part thereof.
13. Expenses. Whether or not the transactions contemplated hereby are consummated,
each party hereto shall pay its own expenses in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, the fees and disbursements of its counsel.
14. Entire Agreement. This Agreement and the Exhibits hereto contain the entire
agreement and understanding between the parties hereto with respect to the subject matter contained
herein and therein and supersede all prior agreements, understandings and representations; oral or
written. No modification, limitation or release of any terms and conditions contained herein or in
the Exhibits hereto shall be made except by mutual agreement to that effect in writing and signed
by the parties hereto.
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
15. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
NEW YORK, SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THE RIGHTS AND
LIABILITIES OF THEPARTIES
HEREUNDER SHALL BE GOVERNED BY, THE LAWS OF SUCH STATE, WITHOUT REGARD TO ITS CONFLICTS OF LAW
DOCTRINE, AND THIS AGREEMENT SHALL BE DEEMED IN ALL RESPECTS TO BE A CONTRACT OF SUCH STATE. BOTH
PARTIES CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN NEW YORK, NEW YORK,
FOR ANY ACTION THAT MAY BE BROUGHT UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
16. Notice. All communications under this Agreement shall be in writing or by a
telecommunications device capable of creating a written record, and any such notice shall become
effective (a) upon personal delivery thereof, including, without limitation, by overnight mail and
courier service, (b) five (5) days after the date on which it shall have been mailed by United
States mail (by certified mail, postage prepaid, return receipt requested), or (c) in the case of
notice by such a telecommunications device, when properly transmitted, addressed to each party at
the following addresses:
| If to Seller: |
||
| American Railcar Industries, Inc. 000 Xxxxx Xxxxxx Xx. Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxx, Senior Vice President Facsimile No.: (636) 940-600 |
||
| If to Buyer: |
||
| The CIT Group/Equipment Financing, Inc. 00 XxXxxxx Xxxxxx Xxxxxxx, XX 00000 Attn: Xxxxxxx Xxxxxxxx, Vice President Mechanical Operations Facsimile No.: (000) 000-0000 |
or to any other address as may be given by any party to the other by notice pursuant
to the provisions of this Section 16.
17. Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, modified, supplemented or terminated,
and the terms hereof may be waived, only by written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof. No waiver on the part
of any party of any such right, power or privilege, nor any single or partial exercise of any such
right, power or privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or in equity.
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
18. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns. No assignment of
this Agreement or of any rights hereunder shall relieve the assigning party of any of its
obligations or liabilities hereunder. This Agreement, and the certificates, schedules, annexes and
other documents executed and delivered at the closing in connection herewith are the complete
agreement of the parties regarding the subject matter hereof and thereof and supersede all prior
understandings (written or oral), communications and agreements.
19. Counterparts. This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
20. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be effective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision and the remaining provisions of this Agreement, and the remainder of
such provision and the remaining provisions of this Agreement shall be interpreted, to the maximum
extent possible, so as to conform to the original intent of this Agreement.
21. Indemnification. Each party agrees that it shall indemnify and hold harmless the
other party from and against any loss, claim, damage or expense (including attorneys’ fees and
costs) attributable to a breach by such party of any of its obligations, representations or
warranties contained herein.
22. Non-Disclosure. Seller agrees that the information contained in this Agreement as
well as other information provided to Seller by Buyer in connection with Buyer’s purchase of the
Cars (including but not limited to the price, type and number of railcars to be purchased,
particular configurations, designs or modifications, delivery locations and identity of Buyer’s
customers and parties to whom the Cars are to be delivered) is confidential and, except as provided
in this Agreement or required by Seller in order to fulfill the terms and conditions of Buyer’s
purchase, Seller shall not disclose any thereof to any third party. Seller shall similarly treat
any information provided to Seller by Buyer in connection with the purchase of the Cars prior to or
subsequent to the date of this Agreement as confidential in accordance with the terms hereof. All
of the foregoing is hereinafter referred to as the “Confidential Information.” In particular,
Seller agrees that it will not disclose any of the Confidential Information to any affiliate of
Seller engaged in the leasing of railcars or in the management of railcars or to the employees,
officers or directors of any such affiliate.
Neither party, without the prior written consent of the other, shall issue any press release
or make any other public announcement or statement relating to Buyer’s purchase of the Cars or
containing any Confidential Information.
Notwithstanding the foregoing, Confidential information shall not include: (a) such
information as is required to be made to UMLER and the Association of American Railroads, (b) such
information as is required to be disclosed by law, court or governmental agency or authority, (c)
such information as is required by either party’s accountants, auditors, insurance
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
carriers or other legal or financial advisors, and (d) information that becomes known to a
party on a non-confidential basis from a source as to which the party has no actual knowledge that
such source was bound by a confidentiality agreement with respect to such information.
Seller shall take reasonable security precautions, at least as great as the precautions it
takes to protect its own confidential information, to keep confidential the Confidential
Information, and will not otherwise use such Confidential Information for the benefit of any
affiliate engaged in the leasing or management of railcars or other third party.
Seller shall notify Buyer immediately upon discovery of any unauthorized use or disclosure of
Confidential Information, and will cooperate with Buyer in every reasonable way to help Buyer
regain possession and control of the Confidential Information, and prevent its further unauthorized
use. Seller acknowledges that monetary damages may be inadequate to protect Buyer against actual
or threatened breach of this Agreement with respect to the Confidential Information. Accordingly,
Seller agrees that Buyer shall be entitled to seek injunctive relief for any such breach of
Seller’s obligations or representations under this Agreement with respect to the Confidential
Information. BUYER STIPULATES ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FOR ANY BREACH OF THIS AGREEMENT WITH RESPECT TO THE
CONFIDENTIAL INFORMATION BY SELLER OR BREACH OF SELLER’S REPRESENTATIONS HEREIN.
23. Drawings. Seller agrees that all drawings and technical material, including
specifications, descriptions and tolerances relating to the Cars of any components thereof supplied
by Seller to Buyer (the “Drawings”), are the exclusive properly of Seller and contain confidential
and proprietary information. By accepting the Drawings from Seller, Buyer agrees to limit its use
of the Drawings solely to matters relating to Buyer’s use of the Cars, including the repair and
maintenance of the Cars. Buyer further agrees not to disclose the Drawings, or to disclose any
information contained in or derived from the Drawings to any person, including, but not limited to,
any other manufacturer of Cars or components; provided, however, in the event Buyer
sells any of the Cars, Buyer may deliver any Drawings relating to such Cars to the purchaser.
Seller agrees on Buyer’s written request, to provide Drawings to any car repair shop reasonably
satisfactory to Seller or other party reasonably satisfactory to Seller (other than another
manufacturer of Cars or components) provided that such car repair shop or other party agrees in
advance, in writing, to be bound by confidentiality provisions similar to those contained herein
and reasonably satisfactory to Seller.
24. Termination. Without prejudice to any other right or remedy:
(a) Either party may terminate this Agreement by written notice to the other party in the
event that:
(i) the other party should breach this Agreement and such breach shall not be remedied within
* * * of the giving of notice of the breach; or
(ii) a petition or complaint in bankruptcy or for reorganization is filed by or against the
other party or the other party becomes insolvent.
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
25. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience of reference only and shall not effect in any way the meaning or interpretation of this
Agreement.
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Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the day and year first
hereinabove set forth.
| SELLER: | ||
| AMERICAN RAILCAR INDUSTRIES, INC. | ||
| By: /s/ Xxxxx X. Xxxxx Title: President CEO |
||
| BUYER: | ||
| THE CIT GROUP/EQUIPMENT FINANCING, INC. |
||
| By: [ILLEGIBLE] Title: 07-29-05 |
EXHIBIT A TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
OFFERED CAR TYPES
JULY 2005 BASE PURCHASE PRICES
DESCRIPTION
Covered Hoppers:
3,256 cu.
ft suitable for cement service - **** each
5,200 cu ft suitable for grain - **** each.
5,400 cu ft suitable for grain - **** each
6,224 cu ft suitable for plastic pellets - **** each
5,750 cu ft pressure differential covered xxxxxx - **** each
5,200 cu ft suitable for grain - **** each.
5,400 cu ft suitable for grain - **** each
6,224 cu ft suitable for plastic pellets - **** each
5,750 cu ft pressure differential covered xxxxxx - **** each
Tanks:
25,500
gallons general purpose - **** each
30,000 gallons general purpose - **** each
33,600 gallons pressure - **** each
30,000 gallons general purpose - **** each
33,600 gallons pressure - **** each
If Buyer successfully executes lease arrangements with customers for specialty tanks (those outside
the above three tank Offered Car Types) and Buyer elects to utilize Seller as the builder, those
tanks may count toward the Railcar Quantity Obligations.
The above prices include current estimate of surcharges and lining for the covered hoppers for
plastic pellets and for the pressure differential covered hoppers. These selling prices are
subject to steel surcharges, specialty surcharges and material cost increases applicable at time of
production.
If Buyer documents that Seller’s lowest Purchase Price is * * *, Buyer may exit from its Railcar
Quantity Obligations by that amount unless Seller chooses to match the lower price.
MANUFACTURING LOCATION:
Seller’s Plant, Paragould, Arkansas, or
Marmaduke, Arkansas
Marmaduke, Arkansas
INTERCHANGE POINT:
To be included in each Purchase Order as applicable
EXHIBIT A
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EXHIBIT B TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
APPROVED AUDITORS LIST
Xxxxxxx X. Xxxxxxxx of Xxxxxxxxx Consulting Group
EXHIBIT B
Page 1
EXHIBIT
C TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
SPECIFICATIONS
The
attached Specifications for various tank Cars and xxxxxx Cars are
indicative and may vary with each new Purchase Order.
TANK
CAR DETAIL SPECIFICATION
***
ADDENDUM
NO. 1
REINFORCED
OPENING CALCULATIONS
***
COVERED
XXXXXX CAR SPECIFICATION
***
CENTER
FLOWâ
COVERED XXXXXX CAR SPECIFICATION
COVERED XXXXXX CAR SPECIFICATION
***
EXHIBIT C
Page 1
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
EXHIBIT D TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
* * *
* * *
EXHIBIT D
Page 1
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Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
EXHIBIT E TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
WARRANTY XXXX OF SALE
American Railcar Industries, Inc., a Missouri corporation (the “Seller”), in consideration of
the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, from THE CIT GROUP/EQUIPMENT FINANCING, INC., a
Delaware corporation (“Buyer”), hereby grants, sells, assigns, conveys, transfers, delivers and
sets over unto Buyer, all of Seller’s right, title and interest in and to the equipment identified
in Schedule 1 attached hereto and made a part hereof, together with all parts, appurtenances or
other property attached or installed on such items of equipment (collectively with and including
such parts, appurtenances and other property, the “Equipment”).
To have and to hold to Buyer and its successors and assigns forever.
This Warranty Xxxx of Sale is being delivered in connection with the Multi-Year Purchase and
Sale Agreement between Seller and Buyer, dated as of July 29, 2005. Seller hereby warrants to
Buyer and its successors and assigns on the date hereof that Seller is the lawful owner of good and
marketable legal and beneficial title to the Equipment, that Seller has the right to sell the same,
that good and marketable title to the Equipment is conveyed to Buyer free and clear of all claims,
liens, security interests, encumbrances and rights of others of any nature whatsoever arising prior
to the delivery of the Equipment hereunder, except any claims, liens, security interests and other
encumbrances arising from, through or under Buyer, and Seller covenants that it shall warrant and
defend such title to the Equipment against all such claims and demands whatsoever.
IN WITNESS WHEREOF, Seller has caused this Warranty Xxxx of Sale to be duly executed by its
officer thereunto duly authorized on this day of , 2000 .
| AMERICAN RAILCAR INDUSTRIES, INC. | ||
| By: Name: Title: |
STATE OF COUNTY OF |
) ) ) |
On this day of , 200_, before me personally appeared , to me
personally known, who, being by me duly sworn, says that he is a of American
Railcar Industries, Inc., and that the foregoing Warranty Xxxx of Sale was signed on
EXHIBIT E
Page 1
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Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
behalf of said corporation by authority of its Board of Directors. Further, he acknowledged
that the execution of the foregoing Warranty Xxxx of Sale was the free act and deed of said
corporation.
| Notary Public |
[Notarial Seal]
My commission expires:
EXHIBIT E
Page 2
Page 2
SCHEDULE 1 TO
WARRANTY XXXX OF SALE
WARRANTY XXXX OF SALE
EQUIPMENT
Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
EXHIBIT F TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
CERTIFICATE OF ACCEPTANCE
Contract/Order No.:
|
Certificate No. | |
Place Accepted: |
||
Date Accepted: |
I, the duly authorized representative of The CIT Group/Equipment Financing, Inc. (“Buyer”), under
the Multi-Year Purchase and Sale Agreement, dated July 29, 2005 (the “Agreement”), for the purpose
of accepting and inspecting the following Cars, hereby certifies that the Cars have been inspected,
approved, delivered, received and accepted on behalf of Buyer or its assigns and found to be in
apparent good order and running condition and in apparent conformance with applicable
specifications and drawings. The execution of this Certificate of Acceptance shall not relieve
American Railcar Industries, Inc. (“Seller”), of its duty or decrease its responsibility to produce
and deliver the Cars in accordance with the terms, including warranties, contained in the
Agreement.
| Description of Cars | Quantity | Light Weight | Reporting Marks | |||||||||
Capitalized terms used herein and not otherwise defined shall have the meaning given to them in the
Agreement.
Authorized Representative of The CIT
Group/Equipment Financing, Inc.
Group/Equipment Financing, Inc.
EXHIBIT F
Page 1
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Confidential Treatment has been requested for portions
of this document marked with asterisks.
of this document marked with asterisks.
[Multi-Year Purchase and Sale Agreement]
EXHIBIT G TO
MULTI-YEAR PURCHASE AND SALE AGREEMENT
MULTI-YEAR PURCHASE AND SALE AGREEMENT
Special Cleaning Procedures: To be included in each Purchase Order as applicable.
Commodities to be Loaded: To be included in each Purchase Order as applicable.
EXHIBIT G
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