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EXHIBIT 10.3
ESOP LOAN AND SECURITY AGREEMENT
American National Bank and Trust Company of Chicago
120 South LaSalle Street
Chicago, Illinois 60603
Ladies and Gentlemen:
The undersigned, Dennis D. Wilson and James A. Jalovec, not individually
but solely as trustees under that certain AASCHE TRANSPORTATION SERVICES, INC.
EMPLOYEES' STOCK OWNERSHIP TRUST (the "Borrower"), apply to you (the "Bank")
for your commitment, subject to all of the terms and conditions hereof and on
the basis of the representations and warranties hereafter set forth, to make a
term loan available to the Borrower as hereinafter set forth.
SECTION 1
THE TERM LOAN
SECTION 1.1 AMOUNT AND TERMS. By its acceptance hereof the Bank agrees,
subject to all of the terms and conditions hereof and on the basis of the
representations and warranties hereinafter set forth, to make a term loan (the
"Loan") of up to ONE HUNDRED NINETY-ONE THOUSAND SIX HUNDRED NINETY AND 47/100
DOLLARS ($191,690.47) to the Borrower, the proceeds of such Loan to be used by
the Borrower solely to repay existing indebtedness of the Borrower resulting
from loan facilities provided to the Borrower by LaSalle National Bank. There
shall be only one borrowing under the Loan and any portion of the Loan amount
noted above not requested by the Borrower on the occasion of such borrowing
shall thereupon automatically expire.
SECTION 1.2 THE NOTE. The Loan made pursuant to Section 1.1 hereof shall
be made against and evidenced by a promissory note of the Borrower in the form
(with appropriate insertions) attached hereto as Exhibit A (the "Note"), such
Note shall be dated the date of issuance thereof, be payable to the order of
the Bank in the face principal amount of ONE HUNDRED NINETY-ONE THOUSAND SIX
HUNDRED NINETY AND 47/100 DOLLARS ($191,690.47) and be expressed to mature on
April 30, 2000, the final maturity thereof. The principal amount of the Loan
from time to time remaining unpaid hereon shall bear interest as provided in
Section 2 hereof.
Without regard to the principal amount of the Note stated on its face, the
actual principal amount at any time outstanding and owing by the Borrower on
account of the Note shall be the amount of the Loan disbursed under Section 1.1
hereof less all payments of principal actually
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received by the Bank. The Bank shall record on its books and records or, at
its option, on a schedule to the Note the amount of the Loan disbursed by the
Bank under Section 1.1 hereof, any repayments of principal thereof and the
principal balance from time to time outstanding, provided that prior to any
transfer of the Note all such amounts shall be recorded on a schedule to the
Note. The Borrower agrees that the record thereof, whether shown on such books
and records or on a schedule to the Note, shall be prima facie evidence in any
action or proceeding instituted to collect or enforce collection of the Note of
the principal amount remaining unpaid thereon; provided, however, that the
failure of the Bank to record any of the foregoing shall not limit or otherwise
affect the obligation of the Borrower to repay the principal amount of the Loan
together with accrued interest thereon.
SECTION 2
INTEREST
SECTION 2.1 INTEREST RATE. The principal amount of the Loan from time to
time remaining unpaid shall bear interest (which the Borrower hereby promises
to pay) prior to maturity (whether by lapse of time, acceleration or otherwise)
at a rate per annum equal at all times to the Prime Rate as from time to time
in effect and any principal amount of the Loan from time to time remaining
unpaid after its maturity (whether by lapse of time, acceleration or otherwise)
shall bear interest (which the Borrower hereby promises to pay), whether before
or after judgment, until paid in full at a rate per annum determined by adding
3% to the interest rate which would otherwise be applicable thereto from time
to time. Any change in the interest rate on the Note resulting from a change
in the Prime Rate shall be effective on the date of the relevant change in the
Prime Rate.
SECTION 2.2 BASIS AND PAYMENT DATES. All interest accruing on the
principal amount of the Loan prior to maturity shall be due and payable monthly
on the fifteenth day of each and every month (commencing July 15, 1998) and at
maturity (unless prepaid in whole prior to such date, then on the date of such
prepayment in whole). Interest accruing on any principal amount of the Loan
from time to time remaining unpaid after its maturity shall be due and payable
upon demand. All interest on the Loan shall be computed on the basis of a year
of 360 days for the actual number of days elapsed.
SECTION 3
COLLATERAL
SECTION 3.1 GRANT OF SECURITY INTEREST-PLEDGED SHARES. The Borrower
hereby grants to the Bank a continuing security interest in Thirty-four
Thousand Six Hundred Forty-seven (34,647) shares of the issued and outstanding
common stock of Aasche Transportation Services, Inc., a Delaware corporation
(the "Parent Company") which are owned by the Borrower (the "Pledged Shares")
together with all rights and remedies incident thereto and all dividends,
distributions and income at any time receivable in respect thereof (whether in
cash or additional shares or other property) and all other rights and remedies
incident thereto and all proceeds thereof (the Pledged Shares and all such
other dividends, distributions, income and proceeds
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being hereinafter referred to collectively as the "Collateral"). The security
interest herein granted and provided for is made and given to secure and shall
secure the prompt payment of principal of and interest on the Note as and when
the same becomes due and payable and the payment, observance and performance of
any and all obligations and liabilities arising under or provided for in this
Agreement or the Note or any of them, in each instance as the same may be
amended, modified or restated from time to time, and whether now existing or
hereafter arising.
SECTION 3.2 FURTHER ASSURANCES. Upon the request of the Bank, the
Borrower shall deliver, or cause to be delivered, the Pledged Shares, it being
agreed that the Bank is not requiring the delivery of the Pledged Shares as of
the date of this Agreement. The Borrower covenants and agrees that it will at
any time and from time to time as requested by the Bank execute and deliver
such further instruments and do and perform such other acts as the Bank may
deem necessary or desirable to provide for or perfect or protect the lien and
security interest of the Bank in the Collateral hereunder.
SECTION 3.3 VOTING. The Bank shall have the right at any time and from
time to time to transfer the Collateral or any part thereof into its name or
into the name of its nominee. The Bank shall not be entitled to vote the
Pledged Shares unless and until an Event of Default has occurred.
SECTION 3.4 DIVIDENDS AND DISTRIBUTIONS. Unless and until a Default or
Event of Default shall have occurred hereunder, all cash dividends on the
Pledged Shares (other than dividends issued in connection with the complete or
partial liquidation of the Parent Company) shall be paid to and may be retained
by the Borrower and any and all other dividends, payments or other
distributions (including cash liquidating dividends, stock dividends, shares
resulting from any split-up or other reclassification, dividends in kind and
shares issued pursuant to reorganization or merger involving the Parent
Company) which shall be paid or distributed upon or in respect of the Pledged
Shares, shall, upon the request of the Bank, be paid and/or delivered to the
Bank and held by the Bank as additional collateral security hereunder and, if
received by the Borrower, shall forthwith upon their receipt, upon the request
of the Bank, be delivered to the Bank. The Borrower agrees that it will from
time to time deliver to the Bank appropriate stock powers duly executed in
blank with all signatures guaranteed and otherwise in transferable form
covering any and all certificates evidencing any additional shares resulting
from any stock dividend on or split-up of the Pledged Shares or issued in
respect of the Pledged Shares in connection with a reorganization or merger
involving the Parent Company.
SECTION 3.5 PARTIAL RELEASES. The Bank agrees, provided always that no
Default or Event of Default shall have occurred and be continuing, as promptly
as is practicable after the last day of each calendar month and upon the
written request of the Borrower, to release that number of Pledged Shares then
being held by the Bank to secure the Loan and the other obligations secured
hereunder which is equal to the number of such Pledged Shares held as of the
last day of such month multiplied by a fraction, the numerator of which is the
aggregate amount of all principal payments made on the Loan during such month
and the denominator of which is the sum of the numerator plus the unpaid
principal balance of the Loan as of the last day of such month.
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SECTION 3.6 GUARANTY. The Note and the other obligations hereunder shall
be guaranteed by the Parent Company, Asche Transfer, Inc., an Illinois
corporation, and AG Carriers, Inc., a Florida corporation (collectively, the
"Guarantors"), pursuant to a Continuing Unconditional Guaranty dated of even
date herewith in form and substance satisfactory to the Bank (the "Guaranty"),
and the Guarantors' obligations thereunder shall at all times be secured by
that certain Loan and Security Agreement dated as of the date of this Loan and
Security Agreement, by and among the Guarantors and the Bank, as amended (the
"Guarantor Security Agreement").
SECTION 4
PAYMENTS AND APPLICATION
SECTION 4.1 PLACE AND APPLICATION. All payments of principal and interest
and all other amounts payable hereunder shall be made to the Bank at the
principal office of the Bank at 33 North LaSalle Street, Chicago, Illinois (or
at such other place for the account of the Bank as the Bank may from time to
time specify in writing to the Borrower) on the date any such payment is due
and payable. All such payments shall be made in lawful money of the United
States of America, in immediately available funds at the place of payment.
Payments received by the Bank after 11:00 a.m. (Chicago time) shall be deemed
received as of the opening of business on the next Business Day. All such
payments shall be made without set-off or counterclaim and without reduction
for, and free from, any and all present and future taxes, levies, imposts,
duties, fees, charges, deductions, withholdings, restrictions or conditions of
any nature imposed by any government or any political subdivision or taxing
authority thereof.
SECTION 4.2 PREPAYMENTS. The Borrower shall have the privilege of
prepaying, in whole or in part, the Loan at any time upon giving three (3)
Business Days' prior notice to the Bank, each such prepayment to be made by the
payment of the principal amount to be prepaid and accrued interest thereon to
the date fixed for prepayment. All such prepayments shall be made without
premium or penalty. No amount prepaid may be reborrowed and partial
prepayments shall be applied to the several installments of the note in the
inverse order of maturity.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank as follows:
SECTION 5.1 The Aasche Transportation Services, Inc. Employees' Stock
Ownership Trust (the "Trust") is a duly organized, validly existing employee
stock ownership trust exempt from tax under Section 501(a) of the Code. The
Borrower has submitted to the Bank a true and correct copy of The Restated
Aasche Transportation Services, Inc. Employees' Stock Ownership Trust dated
effective as of September 22, 1994 between the Parent Company and the Borrower
and all amendments thereto (the "Trust Agreement") and of The Amended and
Restated Aasche Transportation Services, Inc. Employees' Stock Ownership Plan
and all amendments thereto (the
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"Plan"). The Borrower has submitted to the Bank a true and correct copy of the
most recent determination letter from the Internal Revenue Service to the
effect that the Plan and the Trust, taken together, qualify as an employee
stock ownership plan for purposes of Section 4975(e)(7) of the Code. The Plan
is qualified under Section 401(a) of the Code. The Plan and the Trust, taken
together, constitute a valid employee stock ownership plan for purposes of
Section 4975(e)(7) of the Code and is entitled to all the benefits afforded to
employee stock ownership plans thereunder. The Plan and the Trust are in
compliance in all material respects with ERISA and the Code, and the Borrower
has received no notice to the contrary. The Plan has, at all times during its
existence, been administered in compliance with applicable law and with the
terms of the Plan.
SECTION 5.2 Concurrently herewith the Borrower shall apply the proceeds of
the Loan in their entirety to the repayment of loan obligations of the Borrower
to LaSalle National Bank (which loan was obtained by the Borrower to refinance
a loan which, in turn, funded the Borrower's purchase of the Pledged Shares).
The Pledged Shares purchased with the proceeds of the funds borrowed from
LaSalle National Bank were acquired for no more than adequate consideration
within the meaning of Section 3(18) of ERISA and in accordance with the other
requirements of Section 408(e) of ERISA. The acquisition of the Pledged Shares
did not, and consummation of the transactions provided for in this Agreement
and performance and observance by the Borrower with the provisions hereof and
of the Note shall not, constitute a prohibited transaction for purposes of
Section 406 of ERISA or Section 4975 of the Code. The Pledged Shares are
qualifying employer securities for purposed of ERISA and the Code.
SECTION 5.3 The Borrower has full right, power and authority to enter into
this Agreement, to make the borrowings hereunder provided for, to issue its
Note in evidence thereof, to grant to the Bank the security interest described
herein, and to perform each and all of the matters and things herein and
therein provided for. This Agreement and the Note do not, nor will the
performance or observance by the Borrower of any of the matters or things
herein or therein provided for, contravene or constitute a default under any
provision of law or any judgment, injunction, order or decree binding upon the
Borrower, the Plan or the Trust or any provision of the Plan or the Trust
Agreement or any other covenant, indenture or agreement of or affecting the
Borrower or any of its assets. The Pledged Shares have been validly issued
and, upon acquiring the Pledged Shares with the proceeds of the Loan, the
Pledged Shares will be fully paid and non-assessable owned by the Borrower free
and clear of all liens, charges, encumbrances and restrictions whatsoever,
except for the security interest of the Bank provided for herein. There are no
outstanding options or rights of any person, firm, corporation or other entity
to purchase, or of the Borrower to sell, any of the Pledged Shares.
SECTION 5.4 There is no litigation or governmental proceeding pending, nor
to the knowledge of the Borrower threatened, against the Borrower or any of its
assets.
SECTION 5.5 The Borrower has no material liabilities, whether absolute or
contingent, except for those heretofore disclosed to the Bank.
SECTION 6
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CONDITIONS PRECEDENT
The obligation of the Bank to make the Loan shall be subject to
satisfaction of the following conditions precedent:
a. the Bank shall have received a certified copy of the Plan and
Trust Agreement and all amendments thereto, and the same shall be
satisfactory to the Bank;
b. the Bank shall have received executed originals of this Agreement
and the Note duly signed and properly completed;
c. the Bank shall have received the Guaranty and the Guarantor
Security Agreement properly executed and delivered by the Guarantors,
together with all financing statements required by the Bank in connection
therewith;
d. the Bank shall have received copies (executed or certified, as
may be appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Agreement, the Note,
the Guaranty and the Guarantor Security Agreement to the extent the Bank
or its counsel may reasonably request;
e. legal matters incident to this Agreement, the Note, the Guaranty
and the Guarantor Security Agreement and to the transactions contemplated
hereby shall be acceptable to the Bank and its counsel; and the Bank
shall have received the favorable written opinion of counsel for the
Borrower and for the Guarantors, in form and substance satisfactory to
the Bank and its counsel;
f. the Bank shall have received for each Guarantor a good standing
certificate (dated as of the date no earlier than 30 days prior to the
date hereof) from the office of the Secretary of State of the state of
its corporation and each state in which it is qualified to do business as
a foreign corporation;
g. each and all of the representations and warranties contained in
Section 5 hereof and in the Guarantor Security Agreement shall be and
remain true and correct as of the date of the making of the Loan;
h. the Borrower and the Guarantors shall be in full compliance with
all of the terms and conditions hereof, the Note, the Guaranty and the
Guarantor Security Agreement, and no Default or Event of Default shall
have occurred or be continuing; and
i. the Bank shall have received such valuations and certifications
as it may require in order to satisfy itself as to the value of the
Pledged Shares, the financial condition of the Borrower and the
Guarantors, and the lack of material contingent liabilities of the
Borrower and the Guarantors.
SECTION 7
COVENANTS
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The Borrower covenants and agrees that so long as any amount remains
unpaid on the Note or the Commitment is outstanding, except to the extent
compliance in any case or cases is waived in writing by the Bank:
SECTION 7.1 COMPLIANCE. The Plan's status as a qualified employee stock
ownership plan under the Code will continuously be maintained. The Borrower
will comply in all material respects with all requirements of the Code, ERISA
and any other law, rule or regulation applicable to it.
SECTION 7.2 AMENDMENTS OF THE PLAN AND THE TRUST AGREEMENT. Except as may
be required under the Code for purposes of maintaining the Plan's status as a
qualified employee stock ownership plan, the Plan and the Trust Agreement will
not be amended in any respect which under any circumstances adversely affects
the rights of the Bank hereunder or under the Note. The Borrower shall give
the Bank prior notice of any proposed amendment to the Plan or the Trust
Agreement (and will furnish copies of such proposed amendment to the Bank
concurrently with such notice), and shall deliver to the Bank certified copies
of any such amendment within 10 days of the adoption thereof.
SECTION 7.3 FINANCIAL REPORTS. The Borrower will maintain a system of
accounting for the Plan and the Trust in accord with sound accounting practice
and will furnish to the Bank and its duly authorized representatives such
information and data with respect to the financial condition of the Plan and
the Trust as the Bank may reasonably request; and without any request, will
furnish to the Bank:
a. as soon as available, but in any event within 120 days after the
close of each annual accounting period of the Plan and the Trust, a
statement of assets available for plan benefits and a statement of
changes in assets available for plan benefits, all as certified as true
and correct by the Borrower; and
b. promptly after knowledge thereof shall have come to the attention
of the Borrower, written notice of the occurrence of any Default or Event
of Default hereunder or of any threatened or pending litigation or
governmental proceeding against the Borrower or the Plan or the Trust or
against the assets of the Trust.
SECTION 7.4 INDEBTEDNESS. The Borrower will not issue, incur, assume,
create or have outstanding any indebtedness for borrowed money (including as
such any indebtedness representing the deferred purchase price of property, and
any indebtedness, whether or not assumed, secured by liens on property acquired
by the Borrower at the time of the acquisition thereof); provided, however,
that the foregoing provisions shall not restrict nor operate to prevent (i) the
indebtedness of the Borrower on the Note, (ii) other indebtedness of the
Borrower to the Bank, and (iii) obligations of the Borrower to participants in
the Plan created pursuant to the Plan as now in effect, or as hereinafter
amended in accordance with Section 7.2 hereof.
SECTION 7.5 LIENS. The Borrower will not pledge, mortgage or otherwise
encumber, or subject to or permit to exist upon or be subjected to any lien,
security interest or charge upon, any
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assets or property of any kind or character at any time owned by the Trust or
the Borrower as trustees; provided, however, that nothing contained in this
Section 7.5 shall operate to prevent (i) the lien and security interest created
for the benefit of the Bank hereby and (ii) any other liens in favor of the
Bank.
SECTION 7.6 GUARANTIES. The Borrower will not be or become, nor will it
permit the Trust assets to be or become, liable as endorser, guarantor, surety
or otherwise for any debt, obligation or undertaking of any other person, firm,
corporation or entity or otherwise agree to provide funds for payment of the
obligations of another, or supply funds thereto or invest therein or otherwise
assure a creditor of another against loss, or subordinate any claim or demand
it may have to the claim or demand of any other person, firm, corporation or
entity.
SECTION 7.7 DETERMINATION LETTERS. The Borrower shall obtain and furnish
to the Bank, as soon as available and in any event within ninety (90) calendar
days after the date of this Agreement a copy of favorable determination letter
received from the Internal Revenue Service on account of the Plan and the
Trust, confirming that the Plan and the Trust, taken together, qualify as an
employee stock ownership plan for purposes of Section 4975(e)(7) of the Code.
The Borrower shall also furnish to the Bank, as soon as available and in any
event within ten (10) days after receipt thereof, a copy of each determination
letter or other communications from the Internal Revenue Service concerning the
qualification of the Plan and the Trust, taken together, as an employee stock
ownership plan for purposes of the Code.
SECTION 8
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1 Any one or more of the following shall constitute an "Event of
Default" hereunder:
a. default in the payment when due of any part of the principal of
or interest on the Note or of any other amounts payable under this
Agreement;
b. the Borrower shall default in the observance or performance by it
of any other provision hereof or in any other instrument or document
securing the Note or setting forth terms and conditions applicable to any
of the indebtedness evidenced thereby and such default shall continue
unremedied for a period of thirty (30) days after notice to the Borrower
by the Bank or any other holder of the Note;
c. any representation, warranty or statement made by the Borrower
herein or in connection with the making of the Loan proves to be
incorrect in any material respect as of the date of the issuance or
making thereof or (with respect to the representations contained in
Sections 5.1 and 5.2 above) as of any subsequent date during the term of
this Agreement;
d. default shall occur under any evidence of indebtedness issued,
assumed or guaranteed by the Borrower or any Guarantor or under any
indenture, agreement or other
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instrument under which the same may be issued, and such default shall continue
for a period of time sufficient to permit the acceleration of the maturity of
any such indebtedness, or any such indebtedness shall not be paid when due
(whether by lapse of time, acceleration or otherwise);
e. any judgment or judgments, writ or writs, or warrant or warrants
of attachment, or any similar process or processes in an aggregate amount
in excess of $100,000 shall be entered or filed against the Borrower or
any Guarantor or against any of their respective properties or assets and
which remains unvacated, unbonded, unstayed or unsatisfied for a period
of thirty (30) days;
f. any indebtedness, obligation or liability of any Guarantor at any
time owing to the Bank shall not be paid when due (whether by demand,
lapse of time, acceleration, or otherwise), or any event occurs or
condition exists which is specified as an event of default under the
Guarantor Security Agreement, or any Guarantor shall purport to
terminate, repudiate, revoke or disavow its Guaranty or the Guarantor
Security Agreement or any of its obligations thereunder, or the Guaranty
or the Guarantor Security Agreement (or any part thereof) shall for any
reason not be or shall cease to be in full force and effect or is
declared to be null and void;
g. dissolution or termination of the existence of any Guarantor or
the Borrower;
h. the Borrower or any Guarantor shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy Code,
as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, or (vi) fail to contest in good faith any appointment,
proceeding described in Section 8.1(i) hereof; or
i. a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Guarantor or any
substantial part of any of their properties or assets, or a proceeding
described in Section 8.1(j)(v) shall be instituted against the Borrower
or such Guarantor, and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of thirty (30)
days.
SECTION 8.2 When any Event of Default described in clauses (a) through
(g), both inclusive, of Section 8.1 has occurred and is continuing, the Bank or
the holder of the Note may, by notice to the Borrower, declare the principal of
and the accrued interest on the Note to be
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forthwith due and payable and thereupon the Note, including both principal and
interest and all other sums payable under this Agreement, shall be and become
due and payable without further demand, presentment, protest or notice of any
kind.
SECTION 8.3 When any Event of Default described in clauses (h) or (i) of
Section 8.1 hereof has occurred and is continuing, then the entire principal
balance of the Note and all interest thereon and all other amounts payable
under this Agreement shall immediately become due and payable without
presentment, demand, protest or notice of any kind.
SECTION 8.4 When any Event of Default has occurred and is continuing, the
Bank may, in addition to such other rights or remedies as it may have, then or
at any time or times thereafter exercise with respect to the Collateral any and
all of the rights, options and remedies of a secured party under the Uniform
Commercial Code of Illinois (the "UCC") including, without limitation, the sale
of all or any part of the Collateral at any brokers' board or any public or
private sale, provided that prior to such exercise the Bank shall release from
the Collateral so much thereof as it would have been required to release under
Section 3.5 hereof if no Event of Default had occurred. The net proceeds of
any such sale, after deducting all costs and expenses incurred in the
collection, protection, sale and delivery of the Collateral (which expenses
Borrower hereby promises to pay) shall be applied first to the payment of any
costs and expenses incurred by the Bank in selling or otherwise disposing of
the Collateral, second, to the payment of the principal of and the interest on
the Note, and, third, ratably as among any other items of the indebtedness
hereby secured. Any surplus remaining after the full payment and satisfaction
of the foregoing shall be returned to the Borrower or to whomsoever the Bank
reasonably determines to be entitled thereto. Any requirement of said UCC as
to reasonable notice shall be met by the Bank personally delivering or mailing
notice (by certified or registered mail - return receipt requested) to the
Borrower at its address as provided in Section 10.7 hereof at least ten (10)
days prior to the event giving rise to the requirement of such notice. In
connection with any offer, solicitation or sale of the Collateral, the Bank may
restrict bidders and otherwise proceed in whatever manner it reasonably
believes appropriate in order to comply or assure compliance with applicable
legal requirements pertaining to the offer and sale of securities of the same
type as the Collateral (the Borrower agreeing that such restrictions may
include restrictions appropriate to assure that the offering and sale of the
Collateral does not require registration under applicable state and federal
laws and regulations and that Bank shall not be required to conduct a public
offering of the Collateral) and to the change of control of corporations such
as the Parent Company, and the Borrower acknowledges and agrees that the
foregoing shall not affect the commercial reasonableness of any sale of the
Collateral.
SECTION 9
DEFINITIONS
"BUSINESS DAY" means any day on which the Bank is generally open for
business in Chicago, Illinois other than a Saturday or Sunday.
"CODE" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder.
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"PRIME RATE" means for any day the rate of interest per annum announced
from time to time by the Bank as its prime announced or basic rate of interest,
which the Borrower expressly acknowledges is not intended to be an expression
of a set rate of interest upon which credit is available to commercial
borrowers or the public but is merely a reference rate used by the Bank; it
being understood and agreed that such rate may not be the Bank's lowest or most
favorable rate of interest. A certificate of the Bank as to its Prime Rate in
effect on any day shall be conclusive (in the absence of manifest error) for
purposes hereof, as to the Prime Rate in effect on such day.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 8.1 hereof and the term "Default" means any event or condition the
occurrence of which, with the lapse of time or the giving of notice, or both,
would constitute an Event of Default.
Capitalized terms defined elsewhere in this Agreement shall have the
meanings as defined in all provisions hereof.
SECTION 10
MISCELLANEOUS
SECTION 10.1 HOLIDAYS. If any payment of principal or interest on the
Note shall fall due on a day which is not a Business Day, principal together
with interest at the rate the Note bears for the period prior to maturity shall
continue to accrue from the stated due date thereof to and including the next
succeeding Business Day, on which the same is payable.
SECTION 10.2 NO WAIVER, CUMULATIVE REMEDIES. No delay or failure on the
part of the Bank or on the part of the holder of the Note in the exercise of
any power or right shall operate as a waiver thereof or as an acquiescence in
any default, nor shall any single or partial exercise of any power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. The rights and remedies hereunder of the Bank and of the
holder of the Note are cumulative to, and not exclusive of, any rights or
remedies which any of them would otherwise have.
SECTION 10.3 AMENDMENTS, ETC. No amendment, modification, termination or
waiver of any provision of this Agreement or of the Note, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Bank, and then such consent,
modification or waiver shall be effective only in the specific instance and for
the specific purpose for which given. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or demand
in similar or other circumstances.
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SECTION 10.4 COSTS AND EXPENSES. The Borrower agrees to pay on demand the
costs and expenses of the Bank in connection with the negotiation, preparation,
execution and delivery of this Agreement, the Note, the Guaranty, the Guarantor
Security Agreement and the other instruments and documents to be delivered
hereunder or thereunder and in connection with the transactions contemplated
hereby or thereby and in connection with any consents hereunder or waivers or
amendments hereto or thereto, including the fees and expenses of counsel to the
Bank, with respect to all of the foregoing (whether or not the transactions
contemplated hereby are consummated), and all costs and expenses (including
attorneys' fees), if any, incurred by the Bank or any other holder of the Note
in connection with the enforcement of this Agreement, the Note or the Guaranty
or any other instrument or document to be delivered hereunder and in connection
with any action, suit or proceeding brought against the Bank by any person
which in any way arises out of the transactions contemplated or financed hereby
or out of any action or inaction by the Bank hereunder or thereunder except for
such thereof arising solely from the Bank's gross negligence or willful
misconduct.
SECTION 10.5 DOCUMENTARY TAXES. The Borrower agrees to pay on demand any
documentary, stamp or similar taxes payable in respect of this Agreement or the
Note, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
SECTION 10.6 SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given in connection with the Loan
shall survive the execution and delivery of this Agreement and of the Note, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
SECTION 10.7 NOTICES. Except as otherwise specified herein, all notices
hereunder shall be in writing (including cable, telecopy or telex) and shall be
given to the relevant party at its address, telecopier number or telex number
set forth below, or such other address, telecopier number or telex number as
such party may hereafter specify by notice to the other given by United States
certified or registered mail, by telecopy or by other telecommunication device
capable of creating a written record of such notice and its receipt. Notices
hereunder shall be addressed:
to the Borrower: James A. Jalovec, Trustee
Dennis D. Wilson, Trustee
Aasche Transportation Services, Inc.
Employee Stock Ownership Trust
c/o Aasche Transportation Services, Inc.
10214 North Mount Vernon Road
Shannon, Illinois 61078
800/775-3034 Telephone
815/864-2646 Telecopy
to the Bank: American National Bank and Trust Company of Chicago
Rockford Division
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6323 Riverside Boulevard
Rockford, Illinois 61114
Attention: Steven B. Towne
815/282-7911 Telephone
815/282-7925 Telecopy
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 10.7 and a confirmation of such telecopy has been
received by the sender, (ii) if given by telex, when such telex is transmitted
to the telex number specified in this Section 10.7 and the answer back is
received by sender, (iii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address specified in this Section 10.7.
SECTION 10.8 HEADINGS. Section headings used in this Agreement are for
convenience of reference only and are not a part of this Agreement for any
other purpose.
SECTION 10.9 SEVERABILITY OF PROVISIONS. Any provision of this Agreement
which is unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and by different parties hereto on separate counterpart
signature pages, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 10.11 BINDING NATURE, GOVERNING LAW, ETC. This Agreement shall be
binding upon the Borrower and its successors and assigns, and shall inure to
the benefit of the Bank and the benefit of its successors and assigns,
including any subsequent holder of the Note. This Agreement and the rights and
duties of the parties hereto shall be construed and determined in accordance
with the laws of the State of Illinois without regard to principles of
conflicts of laws. This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and any prior agreements,
whether written or oral, with respect thereto are superseded hereby.
SECTION 10.12 CONCERNING THE BORROWER. The term "Borrower" as used herein
shall mean and include the undersigned as trustees of the Trust and their
successors in trust not individually but solely as Trustees under that certain
Aasche Transportation Services, Inc. Employees' Stock Ownership Trust dated
effective as of September 22, 1994, between the undersigned and the Parent
Company, and this Agreement shall be binding upon the undersigned and their
successors and assigns and upon the trust estate. Subject to Section 10.13
hereof, the undersigned assume no personal liability or responsibility for
payment of the indebtedness evidenced by the Note or for observance or
performance of the covenants and agreements herein contained or for the
truthfulness of the representations and warranties herein contained, the
undersigned having executed this Agreement and the Note solely in their
capacity as trustees as aforesaid to bind the undersigned, their successors in
trust and the trust estate.
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SECTION 10.13 LIMITED LIABILITY. Anything contained herein or in the Note
to the contrary notwithstanding, the sole and only recourse of the Bank and any
other holder of the Note as against the Borrower for the payment of the
obligations hereunder and under the Note shall be to (i) the Collateral, (ii)
contributions made to the Plan and the Trust by sponsoring employers to enable
the Borrower to meet its obligations hereunder and under the Note, and (iii)
earnings attributable to the Collateral and to the investment of sponsoring
employer contributions as aforesaid. The foregoing limitations shall not
affect the rights of the Bank, which are unconditional and absolute, to declare
the indebtedness evidenced by the Note to be immediately due and payable upon
the occurrence of any Event of Default or to proceed against any Guarantor or
the Collateral.
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 23 day of June, 1998.
--------------
Dennis D. Wilson and James A.
Jalovec and their successors in
trust, not individually but solely
as trustees under that certain
Aasche Transportation Services, Inc.
Employees' Stock Ownership Trust
dated effective as of September 22,
1994 between the undersigned and
Aasche Transportation Services, Inc.
/s/ Dennis D. Wilson
-----------------------------------------
Dennis D. Wilson, as Trustee as aforesaid
/s/ James A. Jalovec
-----------------------------------------
James A. Jalovec, as Trustee as aforesaid
Accepted and Agreed to at Chicago, Illinois
as of the date last above written.
AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO
By: /s/ Steven B. Towne
---------------------------
Its: Vice President
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EXHIBIT A
PROMISSORY NOTE
Chicago, Illinois
$191,690.47 June [____], 1998
FOR VALUE RECEIVED, the undersigned, Dennis D. Wilson and James A.
Jalovec, not individually but solely as trustees under that certain AASCHE
TRANSPORTATION SERVICES, INC. EMPLOYEES' STOCK OWNERSHIP TRUST (the "Borrower")
promises to pay to the order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO (the "Bank") at its office at 33 North LaSalle Street, Chicago,
Illinois, the principal sum of ONE HUNDRED NINETY-ONE THOUSAND SIX HUNDRED
NINETY AND 47/100 DOLLARS ($191,690.47) or, if less, the aggregate principal
amount of the Loan made to the Borrower under Section 1.1 of the Loan and
Security Agreement hereinafter referred to on April 30, 2000, the final
maturity hereof.
The Borrower promises to pay interest (computed on the basis of a year of
360 days for the actual number of days elapsed) at said office on the balance
of principal from time to time remaining outstanding and unpaid hereon at the
times and rates and in the manner specified in the Loan and Security Agreement
referred to below.
The Bank shall record on its books and records or, at its option, on a
schedule to the Note, the principal amount of the Loan disbursed by the Bank,
any payment of principal and the principal balance from time to time
outstanding, provided that prior to the transfer of this Note all such amounts
shall be recorded on a schedule to this Note. The record thereof, whether
shown on such books and records or on a schedule to this Note, shall be prima
facie evidence in any action or proceeding instituted to collect or enforce
collection of this Note of the principal amount remaining unpaid hereon.
This Note is issued under the terms and provisions of that certain Loan
and Security Agreement dated as of the date of this Note, between the Borrower
and the Bank (the "Loan and Security Agreement"), and this Note and the holder
hereof are entitled to all the benefits and security provided for thereby or
referred to therein to which Loan and Security Agreement reference is hereby
made for a statement thereof.
This Note may be declared due prior to its express maturity and voluntary
prepayments may be made hereon and the interest rates applicable to this Note
may be automatically changed and adjusted, all in the events, on the terms, and
in the manner as provided in the Loan and Security Agreement.
Recourse for the payment of this Note has been limited by the provisions
of the Loan and Security Agreement and this Note is expressly made subject to
such provisions. This Note shall be governed by and construed in accordance
with the laws of the State of Illinois without regard
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to principles of conflicts of laws. The Borrower hereby waives presentment for
payment and demand.
Dennis D. Wilson and James A.
Jalovec and their successors in
trust, not individually but solely
as trustees under that certain
Aasche Transportation Services, Inc.
Employees' Stock Ownership Trust
dated effective as of September 22,
1994 between the undersigned and
Aasche Transportation Services, Inc.
-----------------------------------------
Dennis D. Wilson, as Trustee as aforesaid
-----------------------------------------
James A. Jalovec, as Trustee as aforesaid
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