Manufacturing Services Agreement

Exhibit 10.4 MANUFACTURING SERVICES AGREEMENT AGREEMENT dated as of October 1, 1994 between ACF INDUSTRIES, INCORPORATED a New Jersey corporation (" ACF" ) and AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation (" ARI" ). W I T N E S S E T H : WHEREAS, pursuant to an Asset Transfer Agreement of even date hereto among ACF, ARI and Carl C. Icahn (the " Transfer Agreement" ), ACF has agreed to transfer to ARI certain assets and liabilities, as more fully described therein; WHEREAS, in connection with the transfer of such assets to ARI, ARI desires to retain ACF to provide certain manufacturing services for and on behalf of ARI, and ACF desires to accept such engagement. WHEREAS, the items of equipment listed on Schedule A hereto, which are being transferred to ARI pursuant to the Transfer Agreement (the " Equipment" ), are used by ACF in connection with manufacturing industrial size mixing bowls and certain railcar parts, and, after such transfer although owned by ARI, will continue to be used by ACF at ACF' s facility in Milton, Pennsylvania to provide the services described herein. NOW, THEREFORE, the parties hereto, desiring legally to be bound, hereby agree as follows: 1. Definitions. As used herein, the following terms shall have the following meanings: " AAR" means the Association of American Railroads and any successor thereto. An " Affiliate" of a person means any individual, corporation, partnership, joint venture, association or other entity that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such person. For purposes of this definition, " control," when used with respect to any person, means the power to direct the management or policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; the


terms " controlling" and " controlled" have the meanings correlative to the foregoing. " DOL" means the United States Department of Labor. " DOT" means the United States Department of Transportation. " Event of Default" shall have the meaning set forth in Section 8.1 hereof. " ICC" means the United States Interstate Commerce Commission. " Jobbing Order Services" means the manufacture and, upon the instruction of ARI, distribution of various railcar parts and components. " month" means a calendar month and " year" means a calendar year. " Pressed Steel Manufacturing Services" means the manufacture and, upon the instruction of ARI, distribution of industrial sized mixing bowls. " Regulatory Authorities" means the ICC, the DOT, the DOL, the AAR or any other governmental authority or industry agency or authority which has proper jurisdiction to regulate the manufacture of parts for covered hopper, tank or other railcars. " Services" means Pressed Steel Manufacturing Services and Jobbing Order Services and each of them, a " Service." " Term" means the term of the manufacturing and other obligations of ARI and ACF hereunder, commencing as of the date hereof and continuing until terminated as provided in Section 3 hereof. 2. Engagement of ARI. ARI hereby engages ACF to provide certain Services to ARI on the terms and conditions set forth herein, and ARI hereby accepts such engagement. 3. Term. The Term shall commence as of the date hereof and, subject to the provisions of Section 9 hereof, shall continue until July 2, 1997, provided, that the Term shall automatically be extended for additional successive

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(_) year periods unless and until ARI gives ACF six (6) months prior written notice of termination. The obligations of ACF and ARI hereunder arising during the Term, or as may otherwise be specifically provided for in this Agreement, shall survive the expiration or earlier termination of the Term. 4. Duties of ACF. Subject to the terms and provisions hereof, ACF shall provide the Services specified in this Section 4 to and on behalf of ARI during the Term. 4.1. Services . (a) Subject to the terms and provisions hereof, ACF shall provide the Services to and on behalf of ARI during the Term in the same manner as ACF performed such Services on its own behalf prior to the transfer of assets contemplated by the Transfer Agreement; provided, that ACF shall only be obligated to provide ARI with Jobbing Order Services to the extent that the provision of such Service does not materially interfere with ACF' s railcar and other manufacturing business; (b) ARI shall furnish to ACF all such information as may be necessary to enable ACF to provide, the Services, including the specifications for any products to be manufactured by ACF pursuant to this Agreement (the " Specifications" ). ARI shall also deliver to ACF an annual forecast of its product requirements for each year during the Term, which forecast shall set forth ARI' s good faith best estimate of its product requirements for the year; provided, that the delivery of any such forecast shall not be deemed to be a binding order for the products described therein. 4.2. Use and Maintenance of Equipment; Insurance. (a) ACF shall use the Equipment for the purpose for which the Equipment was designed and in the same manner as the Equipment was used by ACF in the ordinary course of its business prior to the transfer of assets contemplated by the Transfer Agreement. ACF shall keep the Equipment in good working order and, at the expense of ARI, shall maintain the Equipment the same manner as ACF maintained such Equipment prior to the transfer of assets contemplated -by the Transfer Agreement.

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(b) During the Term, the Equipment shall remain at is current location and ACF shall be entitled to use the Equipment, without paying any fee, rent or similar charge to ARI, to perform the Services and, to the extent that it does not interfere with the timely performance of the Services, for its own purposes in the ordinary course of business. (c) ACF shall maintain insurance policies in respect of the Equipment with financially sound and responsible insurers against such casualties and contingencies of such types and in such amounts as was maintained by ACF prior to the transfer of the assets contemplated by the Transfer Agreement. ARI shall be named as an additional insured and loss payee to the extent of its interest under all policies maintained by ACF which cover the Equipment. (d) Upon the termination of the Agreement, at ARI' s expense, ACF shall cause the Equipment to be removed and delivered to any site designated by ARI in the continental United States. ACF and ARI shall reasonably cooperate in scheduling removal and delivery of the Equipment, method of transport and other details so as to minimize disruption of ACF' s facility. 4.3. Records and Information. ACF shall maintain separate, complete and accurate records relating to the Services and all matters covered by this Agreement in the same form and to the same extent as ACF has customarily maintained records in respect thereof prior to the date hereof. ACF shall promptly, upon request of ARI, deliver to ARI or its designee originals or copies of such records. 5. Representations and Warranties. Each of ACF and ARI represents and warrants to the other as follows: (a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of New Jersey (in the case of ACF) and Missouri (in the case of ARI) . It has all necessary corporate power and authority and has taken all corporate action necessary to enter into this Agreement, to consummate the transactions contemplated hereby and to perform its obligations hereunder. (b) This Agreement has been duly executed and delivered by it and is a legal, valid and binding obligation of it, enforceable against it in accordance

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with its terms, except as such enforceability may be limited by (A) the effect of bankruptcy, insolvency, reorganization, moratorium, marshalling or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors generally and (B) general principles of equity, whether such enforceability is considered in a proceeding in equity - or at law. (c) Neither the execution and delivery by it of this Agreement nor the performance by it of its obligations hereunder will (A) with or without the giving of notice or the passage of time, or both, violate, or be in conflict with, or permit the termination of, or constitute a default under, or cause the acceleration of the maturity of, any agreement, debt or obligations of any nature of it or to which it is a party or bound; (B) require the consent of any party to any agreement, instrument or commitment to which it is a party or to which it or its properties is bound; (C) violate any statute or law or any judgment, decree, order, regulation or rule of any court, Regulatory Authority or other governmental authority to which it is subject; or (D) result in the creation of any lien or security interest or other incumbrance on its assets, which in the case of (A), (B), (C), or (D) would cause the transactions contemplated by this Agreement not to be consummated or which would have a material adverse effect on the business, financial-condition or operations of the other party to this Agreement. (d) No consent, approval or authorization of or declaration, filing or registration with, any Regula tory Authority or other governmental agency or author ity is required to be made or obtained by it in connection with the execution, delivery and performance of this Agreement, the performance by it of its obligations hereunder or the consummation of the transactions contemplated hereby, the failure of which to have been made or obtained would have a material adverse effect on the ability of such party to perform its obligations hereunder, on the right, title or interest of ACF in ACF Cars or on the business, financial condition, or operations of any party to this Agreement. 6. Payments and Fees.

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6.1. Fees for Services. For each of the Services provided under this Agreement by ACF, ARI will pay ACF an amount equal to the aggregate direct costs incurred by or on behalf of ACF in connection with the provision of such Services. ACF' s direct costs shall include the cost of all raw materials not supplied by ARI and a reasonable allocation of that part of ACF' s-labor and overhead expenses attributable to the provision of the Services, including the cost of maintaining the employees who provide the Services, the plant cost attributable to the space occupied by the Equipment and the cost of operating and insuring the Equipment (collectively, the " Fees" ). ACF will invoice ARI no less frequently than quarterly for all Services performed hereunder, which invoice shall be accompanied by a summary, in reasonable detail, of ACF' s calculation of the Fees, which calculation shall be binding upon ARI, absent manifest, error. ARI will pay all invoiced amounts within thirty (30) days from the date of invoice. 6.2. Verification of ACF' s Fees . Upon ARI' s written request given at least two (2) business days in advance, ACF will provide ARI with access to ACF' s books and records relating to the provision of the Services, during normal business hours, for the purpose of copying and making extracts therefrom, at ARI' s expense, to verify ACF' s calculation of its Fees, including those for labor and allocated overhead. 7 . Quality Control. ACF hereby warrants to and covenants and agrees with ARI as follows: (i) All products supplied hereunder will be manufactured in accordance with the Specifications. (ii) All railcar parts supplied hereunder will be manufactured by ACF to comply in all respects with all applicable laws and rules and regulations of the Regulatory Authorities. (iii) All products other than railcar parts supplied hereunder will be manufactured in accordance with all applicable federal, state and local laws, rules and regulations in effect from time to timer during the term hereof. (iv) (x) all labor furnished to ARI hereunder shall be free from all defects in workmanship, (y) all parts furnished to ARI hereunder that are designed by .

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ACF shall be free from all defects in design and materials and (z) all parts furnished to ARI hereunder that are designed by ARI and manufactured ...