Exhibit 10.2
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GUARANTOR: Great Lakes Capital Investments, Inc. BORROWER: Great Lakes Capital Acceptance LLC
Great Lakes Funding I, LLC
ADDRESS: 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 ADDRESS: 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
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CONTINUING GUARANTY UNLIMITED
This Continuing Guaranty Unlimited (this "Guaranty") is made as of the l1th
day of December, 2002.
WITNESSETH
WHEREAS, Great Lakes Capital Acceptance LLC and Great Lakes Funding I, LLC
("Borrower," whether one or more) and Textron Financial Corporation ("Lender")
entered into a certain Loan and Security Agreement dated as of even date
herewith (as the same may be amended, restated, modified or supplemented from
time to time, the "Loan Agreement");
WHEREAS, pursuant to the Loan Agreement, Lender has agreed subject to
certain conditions precedent, to make loans and other financial accommodations
to the Borrower from time to time;
WHEREAS, Great Lakes Capital Investments, Inc. ("Guarantor") will directly
and indirectly benefit from the loans and other financial accommodations made to
the Borrower pursuant to the Loan Agreement;
WHEREAS, Lender has required as a condition, among others, of extending
credit to Borrower, that Guarantor enter into this Guaranty.
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
For the purpose of inducing Lender to lend money or extend credit to
Borrower, the Guarantor hereby unconditionally guarantees the prompt and full
payment to Lender when due, whether by acceleration or otherwise, of all
Obligations of any kind for which Borrower is now or may hereafter become liable
to Lender in any manner.
The word "Obligations" means, without limitation, all indebtedness, debts
and liabilities (including principal, interest, interest accruing following the
filing of a bankruptcy petition by or against Borrower at the applicable rates
specified in the Loan Agreement, whether or not such interest is allowed as a
claim in bankruptcy, late charges, collection costs, attorneys' fees and the
like) of Borrower to Lender, either created by Borrower alone or together with
another or others, primary or secondary, secured or unsecured, absolute or
contingent, liquidated or unliquidated, direct or indirect, whether evidenced by
the Loan Agreement, note, draft, application for letter of credit, agreements of
guaranty or otherwise, and any and all renewals of, extensions of or substitutes
therefor, including without limitation, all indebtedness owed by Borrower to
Lender by reason of credit extended or to be extended to Borrower in the
principal amount of $7,000,000, pursuant to the Loan Agreement or one or more
instruments of indebtedness and related documents.
Guarantor hereby promises that if one or more of the Obligations are not
paid promptly when due, Guarantor will, upon request of Lender, pay the
Obligations to Lender, irrespective of any action or lack of action on Lender's
part in connection with the acquisition, perfection, possession, enforcement or
disposition of any or all Obligations or any or all security therefor or
otherwise, and further irrespective of any invalidity in any or all Obligations,
the unenforceability thereof or the insufficiency, invalidity or
unenforceability of any security therefor.
Guarantor waives notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Borrower to Lender, will extend to all future Obligations of
Borrower to Lender, whether such Obligations are reduced, amended, or entirely
extinguished and thereafter increased or reincurred. This Guaranty is made and
will remain in effect until the Obligations are paid in full and until the
Borrower has no right to request further advances under the documents or
instruments evidencing the Obligations. Lender's rights hereunder shall be
reinstated and revived, and this Guaranty shall be fully enforceable, with
respect to any amount at any time paid on account of the Obligations which
thereafter shall be required to be restored or returned by Lender upon the
bankruptcy, insolvency or reorganization of Borrower, Guarantor, or any other
person, or as a result of any other fact or circumstance, all as though such
amount had not been paid.
In the event Guarantor at any time shall pay any sums on account of any
Obligations or take any other action in performance of any Obligations,
Guarantor shall be subrogated to the rights, powers, privileges and remedies of
the Lender in respect of such Obligations; provided that all such rights of
subrogation and all claims and indebtedness arising therefrom shall be, and
Guarantor hereby agrees that the same are, and shall be at all times, in all
respects subordinate and junior to all Obligations, and provided, further, that
Guarantor hereby agrees that Guarantor shall not seek to exercise any such
rights of subrogation, reimbursement, exoneration, or indemnity whatsoever or
any rights of recourse to any security for any of the Obligations unless or
until all Obligations shall have been indefeasibly paid in full in cash and duly
and fully performed.
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Guarantor waives presentment, demand, protest, notice of protest and notice
of dishonor or other nonpayment of any and all Obligations and further waives
notice of sale or other disposition of any collateral or security now held or
hereafter acquired by Lender. Guarantor agrees that no extension of time,
whether one or more, nor any other indulgence granted by Lender to Borrower, or
to Guarantor, and no omission or delay on Lender's part in exercising any right
against, or in taking any action to collect from or pursue Lender's remedies
against Borrower or Guarantor, or any of them, will release, discharge or modify
the duties of Guarantor. Guarantor agrees that Lender may, without notice to or
further consent from Guarantor, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantor hereunder. Guarantor further agrees that Lender
will not be required to pursue or exhaust any of its rights or remedies against
Borrower or Guarantor, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantor.
Guarantor agrees to furnish true and complete financial statements from
time to time on request of Lender as provided in the Loan Agreement and agrees
that failure to furnish such financial statements may constitute or be deemed to
constitute a default or event of default of the Obligations. Guarantor agrees
that any legal suit, action or proceeding arising out of or relating to this
Guaranty may be instituted in a state or federal court of appropriate subject
matter jurisdiction in the State of Ohio; waives any objection which Guarantor
may have now or acquire hereafter to the venue of any such suit, action or
proceeding; and irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding.
Except as provided below, Guarantor agrees that any and all claims of
Guarantor against Borrower, any other guarantor or any endorser of all or any
part of the Obligations, or against any of their respective properties, shall be
subordinated to all of the Obligations, and any right of Guarantor to ask,
demand, xxx for, take or receive any payment from Borrower, all rights and
liens of Guarantor, whether now or hereafter arising and howsoever existing, in
any assets of Borrower (whether constituting part of the collateral securing the
Obligations or otherwise) shall be and hereby are subordinated to the rights of
Lender in those assets; provided, however (subject to any applicable provisions
of the Loan Agreement), if no Event of Default under the Loan Agreement shall
have occurred and be continuing, Borrower may make, and Guarantor may accept
regularly scheduled payments of principal of and interest on indebtedness owing
to Guarantor until Lender notifies Guarantor otherwise. If all or any part of
the assets of Borrower, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of Borrower, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of Borrower
is dissolved or if substantially all of the assets of Borrower are sold, then,
and in any such event, any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of Borrower to Guarantor
("Borrower Indebtedness")
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shall be paid or delivered directly to Lender for application on any of the
Obligations, due or to become due, until such Obligations shall have first been
fully paid and satisfied. Guarantor irrevocably authorizes and empowers Lender
to demand, xxx for, collect and receive every such payment or distribution and
give acquittance therefor and to make and present for and on behalf of Guarantor
such proofs of claim and take such other action, in Lender's own name or in the
name of Guarantor or otherwise, as Lender may deem necessary or advisable for
the enforcement of this Guaranty. Lender may vote such proofs of claim in any
such proceeding, receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
apply the same on account of any of the Obligations. Should any payment,
distribution, security or instrument or proceeds thereof be received by
Guarantor upon or with respect to Borrower Indebtedness prior to the
satisfaction of all of the Obligations and the termination of all financing
arrangements between Borrower and Lender, Guarantor shall receive and hold the
same in trust, as trustee, for the benefit of Lender and shall forthwith deliver
the same to Lender, in precisely the form received (except for the endorsement
or assignment of Guarantor where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by Guarantor as the property of Lender. If Guarantor fails to make any
such endorsement or assignment to Lender, Lender or any of its officers or
employees are hereby irrevocably authorized to make the same. Guarantor agrees
that until the Obligations have been paid in full (in cash) and satisfied and
all financing arrangements between Borrower and Lender have been terminated,
Guarantor will not assign or transfer any claim Guarantor has or may have
against Borrower.
WAIVER OF RIGHT TO TRIAL BY JURY
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS GUARANTY OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
GUARANTOR OR LENDER WITH RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE WAIVER OF
THE RIGHT OF GUARANTOR TO TRIAL BY JURY.
If any Obligation of Borrower is assigned by Lender, this Guaranty will
inure to the benefit of Lender's assignee, and to the benefit of any subsequent
assignee, to the extent of the assignment or assignments, provided that no
assignment will operate to relieve Guarantor from
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any duty to Lender hereunder with respect to any unassigned Obligation. In the
event that any one or more of the provisions contained in this Guaranty or any
application thereof shall be determined to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and any other applications thereof shall not in any
way be affected or impaired thereby. This Guaranty shall be construed in
accordance with the law of the State of Ohio.
The liabilities evidenced hereby may from time to time be evidenced by
another guaranty or guaranties given in substitution or reaffirmation hereof.
Any security interest or mortgage which secures the liabilities evidenced hereby
shall remain in full force and effect notwithstanding any such substitution or
reaffirmation.
If at the time of payment of the Obligations and any discharge hereof,
Guarantor shall be then directly or contingently liable to Lender as maker,
indorser, surety or guarantor of any other loan or obligation whether the same
shall be evidenced by a note, xxxx of exchange, agreement of guaranty or other
instrument, then Lender may continue to hold any collateral of Guarantor as
security therefor, even though this Guaranty shall have been surrendered to
Guarantor. Lender shall not be bound to take any steps necessary to preserve any
rights in the collateral against prior parties. If any Obligations hereunder are
not paid when due, Lender may, at its option, demand, xxx for, collect or make
any compromise or settlement it deems desirable with reference to any
collateral, and shall have the rights of a secured party under the law of the
State of Ohio. Guarantor shall be liable for any deficiency. In the event the
Lender shall institute any action for the enforcement or collection of the
obligations evidenced hereby, the undersigned agrees to pay all costs and
expenses of such action, including reasonable attorneys' fees, to the extent
permitted by law.
Executed and delivered at Columbus, Ohio, as of the date set forth above.
GUARANTOR:
Great Lakes Capital Investments, Inc.
By: /s/ Xxxxxx Xxxxxxxx, XX
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Printed Name: Xxxxxx Xxxxxxxx, XX
Title: President
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