1
EXHIBIT 10.2
AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO
SECURED GUARANTY
WHEREAS, ASCHE TRANSFER, INC., is an Illinois corporation having its
principal office located at 10124 Mount Vernon Road, Shannon, Illinois 61087
("Asche"), and AG CARRIERS, INC. is a Florida corporation, having its principal
office located at 13349 Southridge Industrial Drive, Tavares, Florida 32778
("AG") (Asche and AG are hereafter referred to, individually and collectively,
as the "Borrower"); and
WHEREAS, the Borrower desires or may desire at some time and/or from time
to time to obtain financial accommodation from AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereafter referred to as the "Bank") with principal offices
at 120 South LaSalle Street, Chicago, Illinois 60603; and
WHEREAS, the undersigned guarantor is either a corporation or company,
desiring to induce the Bank, at its option, at any time, or from time to time,
to extend financial accommodation to the Borrower, and represents to the Bank
that it is organized under the laws of the state of Delaware, and that the
Borrower (a) is engaged in business as a corporate parent, affiliate or
subsidiary of the undersigned, and/or (b) expects to derive advantage by
assisting the Borrower in procuring financial assistance from the Bank; or the
undersigned is a(n) individual(s) or partnership desiring to induce the Bank at
its option, at any time, or from time to time, to extend financial
accommodation to the Borrower (said undersigned corporation, company,
individual(s) or partnership, as the case may be, is severally hereinafter
referred to as the "undersigned").
1. NOW THEREFORE, FOR VALUE RECEIVED, and in consideration of advances, credit
or other financial accommodation heretofore, now or hereafter at any time
extended to the Borrower by the Bank, the undersigned (jointly and severally if
there is more than one guarantor) hereby unconditionally guarantee(s) the full
and prompt payment to the Bank at maturity, whether by acceleration or
otherwise, and at all times thereafter of any and all "Indebtedness".
"Indebtedness" shall mean obligations and liabilities of every kind and nature
of the Borrower to the Bank (including all indebtedness, obligations and
liabilities of partnerships, created or arising while the Borrower is or was a
member thereof), including principal and interest, however evidenced, whether
now existing or hereafter created or arising, directly or indirectly, primary
or secondary, absolute or contingent, due or to become due, or joint or
several, and however owned, held or acquired, whether through discount,
overdraft, returned checks, purchase, direct loan or as collateral, or
otherwise, including without limitation all obligations and liabilities of the
Borrower to the Bank under that certain Loan and Security Agreement among and
between the Borrower and the Bank, of even date herewith (the "Loan
Agreement"). Capitalized terms used in this guaranty and not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
The undersigned further unconditionally guarantees the prompt, full and
faithful performance and discharge by the Borrower of all of the terms,
conditions, agreements, representations and warranties on the part of the
Borrower contained in any agreement, or in any modification or addenda thereto
or substitution thereof in connection with any advance, credit or financial
accommodation afforded by the Bank to the Borrower.
The undersigned further agree(s) to pay all expenses, including, without
limitation, reasonable legal fees and court costs paid or incurred by the Bank
in endeavoring to collect the Indebtedness, or any part thereof, in enforcing
this guaranty, arising out of any post-judgment proceedings, or in defending
any suit based on any act or omission of the Bank with respect to the
Indebtedness, collateral, or this guaranty or in connection with any Recovery
Claim hereinbelow defined (hereafter, collectively referred to as "Expenses").
2
2. The term "Guaranteed Debt," as used herein, shall be deemed to mean an
amount equal to all the Indebtedness plus Expenses, and the amount of the
Guaranteed Debt shall be unlimited.
3. In case of the death, incompetence, dissolution, liquidation or insolvency
(however evidenced) of the Borrower, a principal of the Borrower, or any
guarantor of the Indebtedness or in case any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy or insolvency law, or any
dissolution, liquidation or receivership proceeding, is instituted by or
against the Borrower, or any of the undersigned or any other guarantor of the
Indebtedness or the inability of the Borrower or any of the undersigned to pay
debts as they mature, or in case of the assignment by the Borrower or any of
the undersigned for the benefit of creditors, then upon the occurrence of any
such event, all Guaranteed Debt then existing shall at the option of the Bank,
without notice to anyone, immediately become due or accrued and be payable from
the undersigned (or any thereof if more than one guarantor).
4. All payments received from whatever source shall be applied toward the
payment of the Indebtedness in such order of application as the Bank may in its
sole discretion, from time to time elect, and this determination shall be
conclusive upon the undersigned.
5. This guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect with respect
to each guarantor until written notice shall have been actually received by the
Bank by first class or certified mail, of its discontinuance as to such
guarantor, or of the death or dissolution of such guarantor, and also until all
Guaranteed Debt created or existing before receipt of such notice shall have
been fully paid. In case of any such discontinuance, or death or dissolution
of any guarantor or guarantors and notice thereof to the Bank, this guaranty
shall nevertheless continue and remain in force against the other guarantor or
guarantors until discontinued as to such other guarantor or guarantors as
herein provided. No compromise, settlement, release or discharge of, or
indulgence with respect to, or failure, negligence or omission to enforce or
exercise any right against, any one or more guarantors or the fact that at any
time or from time to time, all the Guaranteed Debt may have been paid in full,
shall release or discharge the undersigned. In the event of the death of the
undersigned, this guaranty shall continue as to all Indebtedness theretofore
incurred by the Borrower even though said Indebtedness is renewed or the time
of maturity of Indebtedness is extended without the consent of the executors or
administrators of the undersigned. This guaranty shall be valid, irrespective
of the validity, regularity or enforceability of any instrument, writing or
agreement relating to any Indebtedness, whether or not such Indebtedness is due
or to become due before or after any bankruptcy or insolvency proceeding
involving the Borrower.
6. The liability hereunder shall in no way be affected or impaired by any of
the following, any or all of which may be done or omitted by the Bank in its
sole discretion without notice to anyone and irrespective of whether the
Guaranteed Debt shall be increased or decreased thereby (and the Bank is hereby
expressly authorized in its sole discretion to make from time to time, without
notice to anyone): any sale, pledge, surrender, compromise, settlement,
exchange, release, renewal, extension, modification, election with respect to
any collateral under Section 1111 or any other provision or section of
bankruptcy Code now existing or hereinafter amended; or other disposition of or
with respect to any of said Guaranteed Debt or any security or collateral
therefor, whether or not such disposition is commercially reasonable or
accomplished in a commercially reasonable manner; and such liability shall in
no way be affected or impaired by any acceptance by the Bank of any security
for, or other guarantors or obligors of, any of the Guaranteed Debt, or by any
forbearance or indulgence by the Bank in the collection of, or any failure,
negligence or omission on its part to realize upon any thereof, or to enforce
any claims against any person or persons primarily or secondarily liable
thereon, or upon any collateral or security therefor or to enforce any lien
upon or right of appropriation of any moneys, credits or property of the
Borrower in the possession and control of the Bank, or by an application of any
payments or credits on the Guaranteed Debt. Any act or omission of any kind or
at any time upon the part of the Bank with respect to any matter whatsoever
shall not in any manner affect or impair this guaranty nor the liability
thereunder. The undersigned hereby consents to all acts and omissions of the
Bank set forth herein.
2
3
7. In order to hold the undersigned liable hereunder and to enforce this
guaranty, there shall be no obligation on the part of the Bank at any time to
resort for payment to the Borrower, or to any other guarantor, or any person,
firm or corporation liable for the Guaranteed Debt, or to any collateral,
security, property, liens or other rights or remedies of the Bank in respect to
the Guaranteed Debt or any part thereof, all of which is hereby expressly
waived by the undersigned.
8. All diligence in collection, and any presentment for payment, demand,
protest and/or notice, as to any and everyone, of protest, dishonor, default or
nonpayment, and notice of the creation and existence of any and all of the
Guaranteed Debt, and of any security therefor, and of the acceptance of this
guaranty, or extensions of credit or indulgences hereunder or of any other
matters or things whatsoever relating hereto are expressly waived.
9. The granting of additional credit from time to time by the Bank to the
Borrower in excess of the amount to which the right of recovery under this
guaranty is limited or in excess of the amount extended to the Borrower at the
time this guaranty is executed by the undersigned, without notice to the
undersigned, is hereby expressly authorized and shall in no way affect or
impair this guaranty.
10. (a) To secure payment of the Guaranteed Debt, the undersigned does hereby
pledge, assign, transfer and deliver to the Bank, and grants to the Bank, a
security interest in and to and a first lien on all of property of the
undersigned of any kind or description, tangible or intangible, of whatever
description (excluding tractors and trailers) whether now existing and/or owned
and hereafter arising and/or acquired, wherever located, including, but not
limited to, the following: (1) all Accounts; (2) certificated and
uncertificated securities; (3) moneys, reserves, deposits, deposit accounts and
interest or dividends thereon, securities, cash, cash equivalents and other
property now or at any time or times hereafter in the possession or under the
control of the Bank or its bailee; (4) liens, guarantees and other rights and
privileges pertaining to any of the foregoing; (5) all books, records and
computer records in any way relating to the foregoing; (6) all accessions,
substitutions, renewals, improvements and replacements of and additions to the
foregoing; and (7) products and proceeds of the foregoing including, without
limitation, proceeds of insurance policies insuring the same or other guaranty
of the same (all of the foregoing personal property and real property is
hereinafter sometimes individually and sometimes collectively referred to as
"Collateral"). The undersigned shall make appropriate entries upon its
financial statements and books and records disclosing the Bank's security
interest in the Collateral.
(b) The undersigned shall execute and/or deliver to the Bank, at any
time and from time to time hereafter at the request of the Bank, all agreements,
instruments, financing statements, continuation statements, authorizations,
documents and other written matter (sometimes hereinafter individually and
collectively referred to as "Supplemental Documentation") that the Bank
reasonably may request, in form and substance reasonably acceptable to the
Bank, to perfect and maintain perfected the Bank's security interest in the
Collateral and to consummate the transactions contemplated in or by this
guaranty. Upon the occurrence of any Event of Default, the undersigned
irrevocably, hereby makes, constitutes and appoints the Bank (and all Persons
designated by the Bank for that purpose) as the undersigned's true and lawful
attorney and agent-in-fact to sign the name of the undersigned on the
Supplemental Documentation and to deliver the Supplemental Documentation to
such Persons as the Bank may reasonably elect. The undersigned agrees that a
copy, electronic image or other reproduction of this Agreement or of any
financing statement shall be sufficient as a financing statement.
(c) The Bank (by any of its officers, employees and/or agents) shall have
the right, at reasonable times and intervals and upon notice to the undersigned
to inspect the Collateral and all related records (and the premises upon which
it is located) and to verify the amount and condition of or any other matter
relating to the Collateral. All reasonable costs, fees and expenses incurred by
the Bank, or for which the Bank has become obligated, in connection with such
inspection and/or verification shall constitute part of the Guaranteed Debt,
payable by the undersigned to the Bank on demand.
3
4
(d) The undersigned warrants and represents to and covenants with the Bank
that: (1) as of the Closing Date, the Bank's security interest in the
Collateral is now and at all times hereafter shall be perfected and have a
first priority; (2) the offices and/or locations where the undersigned keeps
the Collateral consisting of personal property and books and records concerning
the Collateral are solely located at the address indicated on the signature
page of this guaranty, and the undersigned shall not remove such books and
records and/or the Collateral therefrom and shall not keep any of such books
and records and/or the Collateral at any other office or location without the
prior written consent of the Bank; and (3) as of the Closing Date, the
undersigned's sole office and place of business is located at the address
indicated on the signature page of this guaranty. The undersigned, by written
notice delivered to the Bank at least thirty (30) days prior thereto, shall
advise the Bank of the opening by the undersigned of any new office or place of
business or its closing of any existing office or place of business and any new
office or place of business shall be within the continental United States of
America. There are no Liens on the Collateral other than the Lien of the Bank
pursuant hereto.
(e) After the occurrence of an Event of Default, the undersigned shall
receive, as the sole and exclusive property of the Bank, and as trustee for the
Bank, all monies, checks, notes, drafts and all other payment for and/or
proceeds of Collateral which come into the possession or under the control of
the undersigned (or any of its partners, managers, shareholders, directors,
officers, employees, agents or those Persons acting for or in concert with the
undersigned) and immediately upon receipt thereof, the undersigned shall remit
the same (or cause the same to be remitted), in kind, to the Bank at the Bank's
office listed in the preamble of this guaranty.
(f) After the occurrence of an Event of Default, the Bank, at any time or
times in its sole and absolute discretion, may take control of, in any manner,
and may endorse the undersigned's name, as appropriate, to any of the items of
payment or proceeds described in Paragraph 10(e) above and, pursuant to the
provisions of this guaranty, the Bank may, in its sole and absolute discretion,
apply the same to and on account of the Guaranteed Debt. For the purposes of
this Paragraph, the undersigned hereby irrevocably makes, constitutes and
appoints the Bank (and all persons designated by the Bank for that purpose) as
the true and lawful attorney and agent-in-fact of the undersigned, with power,
without notice to the undersigned, to take any such actions.
(g) After the occurrence of an Event of Default, the Bank, in its sole and
absolute discretion, without waiving or releasing any Event of Default or
obligation, liability, or duty of the undersigned under this guaranty, may at
any time or times hereafter, but shall be under no obligation to, pay, acquire
and/or accept an assignment of any security interest, lien, encumbrance, or
claim asserted by any Person against the Collateral. All sums paid by the Bank,
in respect thereof and all reasonable costs, fees and expenses, including
reasonable attorney's fees, court costs, expenses and other charges relating
thereto that are incurred by the Bank, on account thereof shall be part of the
Guaranteed Debt payable by the undersigned to the Bank on demand.
(h) After the occurrence of an Event of Default, the Bank may, in its
sole and absolute discretion, retain as additional Collateral or release to the
undersigned, from time to time, such portion of the monies, reserves and/or
proceeds received by the Bank with respect to the Collateral as the Bank may
determine. All such monies, reserves, proceeds and other property of the
undersigned in the possession of the Bank at any time or times hereafter are
hereby pledged by the undersigned to the Bank as additional Collateral
hereunder and may be applied by the Bank on account of the Guaranteed Debt.
(i) No authorization given by the Bank pursuant to this guaranty to sell
any specified portion of Collateral or any items thereof and no waiver by the
Bank in connection therewith shall establish a custom or constitute a waiver of
the limitation contained in this Agreement against such sales with respect to
any portion of the Collateral or any item thereof not covered by said
authorization.
(j) Any of the Bank's officers, employees or agents shall have the right,
at any time or times, in name of the Bank or the undersigned, as the case may
be, or in the name of a firm of independent certified
4
5
public accountants acceptable to the Bank, to verify the validity,
amount or any other matters relating to any Accounts by mail, telephone,
telegraph or otherwise.
(k) The undersigned shall keep accurate and complete records of its
Accounts and as frequently as the Bank shall require, but not less frequently
than monthly, the undersigned shall deliver to the Bank an accounts payable
aging report, an accounts receivable aging report and formal written
assignments of all Accounts, together with copies of the invoices related
thereto, if requested. The undersigned shall also deliver to the Bank, upon
demand, the original copy of all documents, including without limitation,
repayment histories, present status reports and shipment reports, relating to
the Accounts included in any accounts receivable aging report and such other
matters and information relating to the status of then existing Accounts as the
Bank shall reasonably request.
(l) The undersigned shall give the Bank prompt notice of any Account
in excess of Ten Thousand Dollars ($10,000) which is in dispute between any
Account Debtor and the undersigned. The undersigned shall provide such
additional reports concerning the Accounts (including, without limitation
Accounts Receivable Aging Reports) as the Bank shall reasonably request.
(m) The undersigned shall not, without the prior written consent of
the Bank, sell, transfer, grant a security interest in or otherwise dispose of
or encumber any of its Accounts to any Person other than the Bank.
(n) The undersigned agrees that the Bank shall have the rights and
remedies of a secured party under the Uniform Commercial Code of Illinois with
respect to all of the aforesaid property, including, without limitation
thereof, the right to sell or otherwise dispose of any or all of such property.
THE UNDERSIGNED WAIVES EVERY DEFENSE, COUNTERCLAIM OR SETOFF WHICH THE
UNDERSIGNED MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE BANK IN
ENFORCING THIS GUARANTY, INCLUDING, WITHOUT LIMITATION, EVERY DEFENSE,
COUNTERCLAIM OR SETOFF WHICH THE UNDERSIGNED MAY NOW HAVE, OR HEREAFTER MAY
HAVE, AGAINST THE BORROWER OR ANY OTHER PARTY LIABLE TO THE BANK IN ANY MANNER.
As further security, any and all debts and liabilities now or hereafter
arising and owing to any of the undersigned by the Borrower, or any other party
liable to the Bank are hereby subordinated to the Bank's claims and are hereby
assigned to the Bank. The undersigned ratifies and confirms whatever the Bank
may do pursuant to the terms hereof and with respect to any collateral for the
Guaranteed Debt, and agrees that the Bank shall not be liable for any error of
judgment or mistakes of fact or law. The Bank may, without notice to anyone,
apply or set off any balances, credits, deposits, accounts, moneys or other
indebtedness at any time credited by or due from the Bank to any of the
undersigned against the Guaranteed Debt. Any notification of intended
disposition of any property required by law shall be deemed reasonable and
properly given if given at least five (5) calendar days before such
disposition.
11. Should a claim ("Recovery Claim") be made upon the Bank at any time for
recovery of any amount received by the Bank in payment of the Guaranteed Debt
(whether received from the Borrower, the undersigned pursuant hereto, or
otherwise) and should the Bank repay all or part of said amount by reason of
(i) any judgment, decree, or order of any court or administrative body having
jurisdiction over the Bank or any of its property; or (ii) any settlement or
compromise of any such Recovery Claim effected by the Bank with the claimant
(including the Borrower), the undersigned shall remain jointly and severally
liable to the Bank for the amount so repaid to the same extent as if such
amount had never originally been received by the Bank, notwithstanding any
termination hereof or the return of this document to any of the undersigned or
the cancellation of any note, this guaranty or other instrument evidencing any
of the Indebtedness.
12. In the event the Bank shall sell, assign or transfer the Indebtedness or
Guaranteed Debt, or any part thereof, or grant participations therein, each and
every immediate or remote successive assignee, transferee, holder of or
participant therein, of all or any part of the Indebtedness or Guaranteed Debt
shall have the right to enforce this guaranty by suit or otherwise for the
benefit of such assignee, transferee, holder or participant, as fully as if
such assigned transferee, holder or participant were herein by name
specifically given such rights,
5
6
powers and benefits; but the Bank shall have an unimpaired, prior and superior
right to enforce this guaranty for its benefit as to so much of the
Indebtedness or Guaranteed Debt as it has not been sold, assigned or
transferred.
13. No release or discharge of any one or more of the undersigned (if there is
more than one guarantor), or of any other person, whether primarily or
secondarily liable for and obligated with respect to the Guaranteed Debt, or
the institution of bankruptcy, receivership, insolvency, reorganization,
dissolution or liquidation proceedings by or against any such guarantor or
person, or the entry of any restraining or other order in any such proceeding,
shall release or discharge the undersigned or any other guarantor of the
Guaranteed Debt, or any other person, firm or corporation liable to the Bank
for the Guaranteed Debt, unless and until all of the Guaranteed Debt shall have
been fully paid and this guaranty stamped "Canceled" and returned to the
undersigned.
14. No delay on the part of the Bank in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Bank of any right or remedy shall preclude any other or further exercise
thereof, or the exercise of any other right or remedy. No action of the Bank
permitted hereunder shall in any way affect or impair the rights of the Bank
and the obligation of the undersigned under this guaranty.
15. To the extent that the Borrower or any of the undersigned is a corporation,
limited liability company or partnership, all references herein to the Borrower
and to the undersigned, respectively, shall be deemed to include any successor
or successors, whether immediate or remote, to such corporation, limited
liability company or partnership.
16. This guaranty has been delivered at Chicago, Illinois, and shall be
construed according to the laws of the State of Illinois, in which state it
shall be performed by the undersigned. All actions arising directly or
indirectly as a result or in consequence of this guaranty shall, in the sole
and absolute discretion of the Bank, be instituted and litigated only in courts
having situs in the City of Chicago, Illinois, and the undersigned hereby
consents to the jurisdiction of any State or Federal Court located and having
its situs in said city and waives any right to transfer or change the venue of
any litigation.
17. Wherever possible, each provision of this guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this guaranty.
18. It is agreed that the undersigned's liability hereunder is several and is
independent of any other guaranties at any time in effect with respect to all
or any part of the Indebtedness and that the undersigned's liability hereunder
may be enforced regardless of the existence of any such other guaranties.
19. This guaranty, and each and every part hereof, shall be binding upon the
undersigned (jointly and severally, if there is more than one guarantor) and
upon the heirs, legal representatives, successors and assigns of the
undersigned, and shall inure to the benefit of the Bank, its successors and
assigns.
20. If the undersigned guarantor is a corporation, then and in such event, the
undersigned guarantor expressly represents and warrants unto the Bank that the
execution and delivery of this guaranty has been duly authorized by resolutions
heretofore duly adopted by its Board of Directors in accordance with law and
its by-laws, that said resolutions have not been amended nor rescinded, are in
full force and effect, that the officers of the undersigned executing and
delivering this guaranty, for and on behalf of the undersigned, are duly
authorized and empowered so to act. The Bank in accepting this guaranty is
expressly relying upon the aforesaid representations and warranties.
21. This guaranty constitutes the entire agreement between the parties relating
to the subject matter hereof and is the final and complete expression of their
intent. No prior or contemporaneous negotiations, promises, agreements,
covenants or representations of any kind or nature, whether made orally or in
writing, have been
6
7
made by the parties, or any of them, in negotiations leading to this guaranty
or relating to the subject matter hereof, which are not expressly contained
herein, or which have not become merged and finally integrated into this
guaranty; it being the intention of the parties hereto that in the event of any
subsequent litigation, controversy or dispute concerning the terms and
provisions of this guaranty, no party shall be permitted to offer to introduce
oral or extrinsic evidence concerning the terms and conditions hereof that are
not included or referred to herein and not reflected in writing. This guaranty
can only be changed, modified, waived or discharged if consented to in a
writing duly signed and delivered on behalf of the Bank. No conditions exist
to the legal effectiveness of this guaranty.
22. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING (i) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION
WITH THIS GUARANTY OR AN AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
IN CONNECTION HEREWITH, OR (ii) ARISING FROM ANY DISPUTE OR CONTROVERSY IN
CONNECTION WITH OR RELATED TO THIS GUARANTY, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, THIS GUARANTY IS SIGNED AND SEALED by the undersigned
at Shannon, Illinois, effective this 23rd day of June, 1998.
ADDRESS: CORPORATION, PARTNERSHIP OR LIMITED
LIABILITY CO.:
10124 North Mt. Vernon Road AASCHE TRANSPORTATION SERVICES, INC.,
Shannon, Illinois 61078 a Delaware corporation
By: /s/ Leon Monachos
---------------------------------
Its: Chief Financial Officer
-----------------------------
7