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EXHIBIT 10.5
CONTINUING UNCONDITIONAL GUARANTY
This CONTINUING UNCONDITIONAL GUARANTY is executed as of June 23, 1998
(the "Guaranty"), by XXXXX TRANSFER, INC. (the "Guarantor"), whose address is
c/o 00000 Xx. Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, to and for the benefit of
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking
association (together with any of its affiliate or subsidiary corporations, or
their successors or assigns, being collectively referred to herein as the
"Bank"), whose address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx and their successors in trust,
not individually but solely, as trustees under that certain Aasche
Transportation Services, Inc. Employees' Stock Ownership Trust, desires or may
desire at some time and/or from time to time to obtain financial accommodations
from the Bank; and
WHEREAS, the Guarantor desires the Bank to extend or continue the
extension of credit to the Borrower and the Bank has required that Guarantor
execute and deliver this Guaranty to the Bank as a condition to the extension
and continuation of credit by the Bank; and
WHEREAS, the extension or continued extension of credit, as aforesaid, by
the Bank is necessary and desirable to the conduct and operation of the
business of the Borrower and will inure to the financial benefit of the
Guarantor;
NOW, THEREFORE, FOR VALUE RECEIVED, it is agreed that the preceding
provisions and preambles are an integral part hereof and that this Guaranty
shall be construed in light thereof, and in consideration of advances, credit
or other financial accommodation heretofore afforded, concurrently herewith
being afforded or hereafter to be afforded to the Borrower by the Bank, the
Guarantor hereby unconditionally and absolutely guarantees to the Bank,
irrespective of the validity, regularity or enforceability of any instrument,
writing, arrangement or credit agreement relating to or the subject of any such
financial accommodation, the full and prompt payment in full to the Bank at
maturity, whether by acceleration or otherwise, and at all times thereafter, up
to the principal amount of One Hundred Ninety-One Thousand Six Hundred Ninety
and 47/100 Dollars ($191,690.47) of the Guaranteed Debt as hereafter defined,
plus all interest due and to become due thereon from the Borrower to the Bank
and all expenses incurred by the Bank in connection with the collection of the
Guaranteed Debt or the enforcement of this Guaranty. As used herein,
"Guaranteed Debt" shall mean any and all indebtedness, 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 may have been or may be a member thereof), howsoever
evidenced, whether now existing or hereafter created or arising, direct or
indirect, primary or secondary, absolute or contingent, due or to become due,
or joint or several, and howsoever owned, held or acquired, whether through
discount, overdraft, purchase, direct loan or as collateral, or otherwise, and
the prompt, full and faithful performance and discharge by the Borrower of each
of the terms, conditions, agreements, representations and warranties on the
part of the Borrower contained in any
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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 of the Guaranteed Debt.
The Guarantor agrees to pay all reasonable costs, legal expenses and
attorneys' and paralegals' fees of every kind (including those costs, expenses
and fees of attorneys and paralegals who may be employees of the Bank or its
indirect parent), paid or incurred by the Bank in endeavoring to collect the
Guaranteed Debt (hereinafter defined) or any part thereof, or in enforcing its
rights in connection with any collateral, or in enforcing this Guaranty, any
collateral, or in connection with any Repayment Claim (as hereinafter defined)
hereinbelow described, promptly on demand of the Bank or other person paying or
incurring the same.
It is hereby agreed that while the liability of the Guarantor under this
Guaranty is limited in amount as set forth above the Guaranteed Debt is no way
limited as to dollar amount.
In the case of 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 either the
Borrower or the Guarantor, all of the Guaranteed Debt then existing shall,
without notice to anyone, immediately become due or accrued and all amounts due
hereunder shall be payable, jointly and severally, from the Guarantor. The
Guarantor hereby expressly and irrevocably: (a) waives, to the fullest extent
possible, on behalf of itself and its successors and assigns (including any
surety) and any other person, any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification, set off
or to any other rights that could accrue to a surety against a principal, a
guarantor against a maker or obligor, an accommodation party against the party
accommodated, a holder or transferee against a maker, or to the holder of a
claim against any person, and which the Guarantor may have or hereafter acquire
against any person in connection with or as a result of the Guarantor's
execution, delivery and/or performance of this Guaranty, or any other documents
to which the Guarantor is a party or otherwise; (b) waives any "claim" (as such
term is defined in the United States Bankruptcy Code) of any kind against the
Borrower until indefeasible payable in full of the Guaranteed Debt, and further
agrees that it shall not have or assert any such rights against any person
(including any surety), either directly or as an attempted set off to any
action commenced against the Guarantor by the Bank or any other person; and (c)
acknowledges and agrees (i) that foregoing waivers are intended to benefit the
Bank and shall not limit or otherwise affect the Guarantor's liability
hereunder or the enforceability of this Guaranty, and (ii) the agreements set
forth in this paragraph and the Bank's rights under this paragraph shall
survive payment in full of the Guaranteed Debt.
All dividends or other payments received by the Bank on account of the
Guaranteed Debt, from whatever source derived, shall be taken and applied by
the Bank toward the payment of the Guaranteed Debt and in such order of
application as the Bank may, in its sole discretion, from time to time elect,
and this Guaranty shall apply to and secure any ultimate balance that shall
remain owing to the Bank. The Bank shall have the exclusive right to determine
how, when and what application of payments and credits, if any, whether derived
from the Borrower or any other source, shall be made on the Guaranteed Debt and
such determination shall be conclusive upon the Guarantor.
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This Guaranty shall in all respects be continuing, absolute and
unconditional, and shall remain in full force and effect with respect to the
Guarantor until: (i) written notice from the Bank to the Guarantor by United
States certified mail of its discontinuance as to the Guarantor; (ii) written
notice of the dissolution of the Guarantor shall have been actually received by
the Bank; or (iii) until all Guaranteed Debt created or existing before receipt
of either such notice shall have been fully paid. In case of any such
discontinuance or dissolution of the Guarantor and notice thereof to the Bank,
this Guaranty shall nevertheless continue and remain in force against any other
guarantor until discontinued as to such other guarantor as provided herein. In
the event of the dissolution of the Guarantor, this Guaranty shall continue as
to all of the Guaranteed Debt theretofore incurred by the Borrower even though
the Guaranteed Debt is renewed or the time of maturity of the Borrower's
obligations is extended without the consent of the successors or assigns of the
Guarantor.
No compromise, settlement, release or discharge of, or indulgence with
respect to, or failure, neglect or omission to enforce or exercise any right
against any other guarantor shall release or discharge the Guarantor.
The Guarantor's liability under this Guaranty shall in no way be modified,
affected, impaired, reduced, released or discharged 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): (a) any acceptance by the Bank of any new
or renewal note or notes of the Borrower, or of any security or collateral for,
or other guarantors or obligors upon, any of the Guaranteed Debt; (b) any
compromise, settlement, surrender, release, discharge, renewals, refinancing,
extension, alteration, exchange, sale, pledge or election with respect to the
Guaranteed Debt, or any note by the Borrower, or with respect to any collateral
under Section 1111 or take any action under Section 364, or any other section
of the United States Bankruptcy Code, now existing or hereafter amended, or
other disposition of, or substitution for, or indulgence with respect to, or
failure, neglect or omission to realize upon, or to enforce or exercise any
liens or rights of appropriation or other rights with respect to, any
Guaranteed Debt or any security or collateral therefor or any claims against
any person or persons primarily or secondarily liable thereon; (c) any failure,
neglect or omission to perfect, protect, secure or insure any of the foregoing
security interests, liens, or encumbrances of the properties or interests in
properties subject thereto; (d) any change in the Borrower's name or the merger
of the Borrower into another corporation; (e) any act of commission or omission
of any kind or at any time upon the part of the Bank with respect to any matter
whatsoever, other than the execution and delivery by the Bank to the Guarantor
of an express written release or cancellation of this Guaranty. The Guarantor
hereby consents to all acts of commission or omission of the Bank set forth
above.
In order to hold the Guarantor liable hereunder, there shall be no
obligation on the part of the Bank, at any time, to resort for payment to the
Borrower or to anyone else, or to any collateral, security, property, liens or
other rights and remedies whatsoever, all of which are hereby expressly waived
by the Guarantor.
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The Guarantor hereby expressly waives diligence in collection or
protection, presentment, demand or protest or in giving notice to anyone of the
protest, dishonor, default, or nonpayment or of the creation or existence of
any of the Guaranteed Debt or of any security or collateral therefor or of the
acceptance of this Guaranty or of extension of credit or indulgences hereunder
or of any other matters or things whatsoever relating hereto.
The Guarantor waives any and all defenses, claims and discharges of the
Borrower, or any other obligor, pertaining to the Guaranteed Debt, except the
defense of discharge by payment in full. Without limiting the generality of
the foregoing, the Guarantor will not assert, plead or enforce against the Bank
any defense of waiver, release, discharge in bankruptcy, statute of
limitations, res judicata, statute of frauds, anti-deficiency statute, fraud,
incapacity, minority, usury, illegality or unenforceability which may be
available to the Borrower or any other person liable in respect of any of the
Guaranteed Debt, or any set off available against the Bank to the Borrower or
any such other person, whether or not on account of a related transaction. The
Guarantor expressly agrees that the Guarantor shall be and remain liable for
any deficiency remaining after foreclosure of any mortgage or security interest
securing the Guaranteed Debt, whether or not the liability of the Borrower or
any other obligor for such deficiency is discharged pursuant to statute or
judicial decision.
To secure payment of the Guaranteed Debt, the Guarantor grants to the Bank
a security interest in all property of the Guarantor delivered concurrently
herewith or which is now, or at any time hereafter in transit to, or in the
possession, custody, or control of the Bank, and all proceeds of all such
property. The Guarantor agrees that the Bank shall have the rights and
remedies of a secured party under the Uniform Commercial Code in effect in
Illinois from time to time, with respect to all of the aforesaid property,
including, without limitation thereof, the right to sell or otherwise dispose
of any such property. The Bank may, without demand or notice of any kind 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 the
Guarantor against the amounts due hereunder and in such order of application as
the Bank may from time to time elect. Any notification of intended disposition
of any property required by law shall be deemed reasonably and properly given
if given in the manner provided by the applicable statute. The Guarantor
hereby assigns and transfers to the Bank any and all cash, negotiable
instruments, documents of titled, chattel paper, securities, certificates of
deposit, deposit accounts other cash equivalents and other assets of the
Guarantor in the possession or control of the Bank for any purpose.
THE GUARANTOR WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SET
OFF WHICH THE GUARANTOR MAY NOW HAVE TO ANY ACTION BY THE BANK IN ENFORCING
THIS GUARANTY. AS FURTHER SECURITY, ANY AND ALL DEBTS AND LIABILITIES NOW
ARISING AND OWING TO THE GUARANTOR BY THE BORROWER, OR TO ANY OTHER PARTY
LIABLE TO THE BANK, ARE HEREBY SUBORDINATED TO THE BANK'S CLAIMS AND ARE HEREBY
ASSIGNED TO THE BANK. THE GUARANTOR HEREBY AGREES THAT THE GUARANTOR MAY BE
JOINED AS A PARTY DEFENDANT IN ANY LEGAL PROCEEDING (INCLUDING, BUT NOT LIMITED
TO, A FORECLOSURE PROCEEDING) INSTITUTED BY THE BANK AGAINST THE BORROWER. THE
GUARANTOR AND THE BANK IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH
RESPECT
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TO ANY SUCH LEGAL PROCEEDING IN WHICH THE GUARANTOR AND THE BANK ARE ADVERSE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER AND ACCEPTING THIS GUARANTY.
Should a claim (a "Repayment Claim") be made upon the Bank at any time for
repayment of any amount received by the Bank in payment of the Guaranteed Debt,
or any part thereof, whether received from the Borrower, the Guarantor pursuant
hereto, or received by the Bank as the proceeds of collateral, by reason of:
(1) any judgment, decree or order of any court or administrative body having
jurisdiction over the Bank or any of its property; or (2) any settlement or
compromise of any such Repayment Claim effected by the Bank, in its sole
discretion, with the claimant (including the Borrower), the Guarantor 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 cancellation of any note or other
instrument evidencing any of the Guaranteed Debt.
The Bank may, without notice to anyone, sell or assign the Guaranteed
Debt, or any part thereof, or grant participations therein, and in any such
event each and every immediate or remote assignee or holder of, or participant
in, all or any of the Guaranteed Debt shall have the right to enforce this
Guaranty, by suit or otherwise for the benefit of such assignee, holder or
participant, as fully as if herein by name specifically given such right
herein, but the Bank shall have an unimpaired right, prior and superior to that
of any such assignee, holder or participant, to enforce this Guaranty for the
benefit of the Bank, as to any part of the Guaranteed Debt retained by the
Bank.
Unless and until all of the Guaranteed Debt has been paid in full, no
release or discharge of the 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 the
Guarantor or person, or the entry of any restraining or other order in any such
proceedings, shall release or discharge the Guarantor, or any other guarantor
of the indebtedness, or any other person, firm or corporation liable to the
Bank for the Guaranteed Debt.
All references herein to the Borrower and to the Guarantor, respectively,
shall be deemed to include any successors or assigns, whether immediate or
remote to such corporations or any successors in trust to such trust.
If this Guaranty contains any blanks when executed by the Guarantor, the
Bank is hereby authorized, without notice to the Guarantor, to complete any
such blanks according to the terms upon which this Guaranty is executed by the
Guarantor and is accepted by the Bank.
This Guaranty has been delivered to the Bank at its offices in Chicago,
Illinois, and the rights, remedies and liabilities of the parties shall be
construed and determined in accordance with the laws of the State of Illinois,
in which State it shall be performed by the Guarantor.
TO INDUCE THE BANK TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE
GUARANTOR IRREVOCABLY AGREES THAT ALL ACTIONS
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ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF THIS GUARANTY
SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING SITUS IN THE CITY OF
CHICAGO, ILLINOIS. THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION
AND VENUE OF ANY STATE OR FEDERAL COURT LOCATED AND HAVING ITS SITUS IN
CHICAGO, ILLINOIS, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS, AND TO THE
SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE
GUARANTOR AT THE ADDRESS INDICATED IN THE BANK'S RECORDS IN THE MANNER PROVIDED
BY APPLICABLE STATUTE, LAW, RULE OF COURT OR OTHERWISE. FURTHERMORE, THE
GUARANTOR WAIVES ALL NOTICES AND DEMANDS IN CONNECTION WITH THE ENFORCEMENT OF
THE BANK'S RIGHTS HEREUNDER, AND HEREBY CONSENTS TO, AND WAIVES NOTICE OF THE
RELEASE, WITH OR WITHOUT CONSIDERATION, OF THE BORROWER OR ANY OTHER PERSON
RESPONSIBLE FOR PAYMENT OF THE GUARANTEED DEBT, OR OF ANY COLLATERAL THEREFOR.
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.
It is agreed that the Guarantor's liability is independent of any other
guaranties at any time in effect with respect to all or any part of the
Borrower's indebtedness to the Bank, and that the Guarantor's liability
hereunder may be enforced regardless of the existence of any such other
guaranties.
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 other or further exercise thereof,
or the exercise of any other right or remedy. No modification, termination,
discharge or waiver of any of the provisions hereof shall be binding upon the
Bank, except as expressly set forth in a writing duly signed and delivered on
behalf of the Bank.
The Guarantor represents and warrants to the Bank that the execution and
delivery of this Guaranty has been duly authorized by resolutions heretofore
adopted by the Board of Directors and/or Shareholders of the Guarantor in
accordance with law and its bylaws, that said resolutions have not been amended
or rescinded, are in full force and effect and that the officer or officers
executing and delivering this Guarantor for and on behalf of the Guarantor,
is/are duly authorized so to act. The Bank, in extending financial
accommodations to the Borrower, is expressly acting and relying upon the
aforesaid representations and warranties.
This Guaranty: (i) is valid, binding and enforceable in accordance with
its provisions, and no conditions exist to the legal effectiveness of this
Guaranty as to the Guarantor; (ii) contains the entire agreement between the
Guarantor and the Bank; (iii) is the final expression of
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their intentions; and (iv) supersedes all negotiations, representations,
warranties, commitments, offers, contracts (of any kind or nature, whether oral
or written) prior to or contemporaneous with the execution hereof. No prior or
contemporaneous representations, warranties, understandings, offers or
agreements of any kind or nature, whether oral or written, have been made by the
Bank or relied upon by the Guarantor in connection with the execution hereof.
The provisions hereof shall be binding upon the Guarantor and upon its
executors, administrators, successors and assigns and shall inure to the
benefit of the Bank and its successors and assigns.
SIGNED AND DELIVERED by the Guarantor as of the date set forth above.
XXXXX TRANSFER, INC.
By: /s/ Xxxx Xxxxxxxx
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Its: Vice President-Finance
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