Exhibit 10.2
[LOGO] American National Bank
and Trust Company of Chicago
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INTERCREDITOR (SUBORDINATION) AGREEMENT
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THIS INTERCREDITOR (SUBORDINATION) AGREEMENT ("Agreement") is effective as
of the 31st day of July, 2000 by and between Xxxxxxx X. Xxxxx, an individual
("Creditor") and American National Bank and Trust Company of Chicago ("Bank").
WHEREAS, Creditor deems the extension of credit to Alltech Associates,
Inc., an Illinois corporation "Borrower") necessary or desirable to the conduct
and operation of Borrower's business and therefore beneficial to its interest as
a creditor of Borrower and desires that Bank extend or continue to extend credit
to Borrower;
WHEREAS, the term "Creditor Indebtedness" shall mean the $2,500,000.00 debt
owed to Creditor by Borrower evidenced by a Note of even date herewith,
including any amendments, extensions and modifications thereto, together with
all other indebtedness of Borrower to Creditor (including, without limitation,
all debts, claims, indebtedness and all interest thereon) heretofore, now and/or
from time to time hereafter owing, due or payable, however evidenced or
incurred;
WHEREAS, to induce Bank to grant credit to Borrower pursuant to the Loan
and Security Agreement dated July 31, 2000, as amended or replaced from time to
time ("Loan Agreement"), Creditor has agreed to subordinate the Creditor
Indebtedness to all claims which Bank may now or hereafter have against Borrower
and/or any guarantor thereof on account of indebtedness owing to Bank pursuant
to any Note or other instrument or document executed pursuant thereto or in
connection therewith; and
NOW THEREFORE, to induce Bank to grant credit to Borrower pursuant to the
Loan Agreement and in consideration of the making of the loan pursuant thereto
and for other valuable consideration, receipt of which is hereby acknowledged,
the undersigned do hereby agree as follows:
1. Creditor hereby subordinates the Creditor Indebtedness to any and all
sums, debts, demands, claims, liabilities or causes of action for which Borrower
may be liable to Bank pursuant to the Loan Agreement and/or pursuant to any
note, security agreement, guaranty or other instrument or document executed
pursuant thereto or in connection therewith (herein collectively called the
"Bank Indebtedness ").
2 Creditor hereby subordinates all security interests, liens, encumbrances
and claims which in any way secure the Creditor Indebtedness (herein
collectively called the "Creditor Collateral") to all security interests,
liens, encumbrances and claims which in any way secure the payment of the Bank
Indebtedness (herein collectively called the "Bank Collateral") specifically
including but not limited to the Loan Agreement.
3. Creditor agrees to instruct Borrower not to pay, and Creditor agrees not
to accept payment of or seek to enforce against Borrower the Creditor
Indebtedness, unless and until Bank has notified Creditor, in writing, that the
Bank Indebtedness has been paid in full; provided that Creditor shall be
entitled to receive payments from or on behalf of Borrower of interest only so
long as Creditor shall not have been notified in writing by the Bank that
Borrower has breached, violated or not performed any of its covenants or
obligations under the Loan Agreement, or is otherwise in default
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pursuant to or in connection with the Bank Indebtedness or the Loan Agreement;
and provided further that Creditor may receive additional amounts upon Bank
approval. In the event Bank shall seek to enforce its rights as a secured party
under the Bank Collateral, Creditor shall have the right to initiate proceedings
to enforce its rights in, to and under the Creditor Collateral subject to the
priority interest hereunder of Bank; provided further that to the extent the
rights of Bank in, to and under the Bank Collateral shall be jeopardized or
lessened thereby, or in the event of the concurrent enforcement by Bank of its
rights in, to and under the Bank Indebtedness and/or Bank Collateral, any and
all proceeds of, or interests in and to, the Creditor Collateral obtained by
Creditor pursuant to any such enforcement proceedings shall inure to and be paid
to Bank to the extent of any then unpaid balance of the Bank Indebtedness.
4. Creditor agrees to turn over to Bank any sum or sums at any time paid,
or received by Creditor in violation of the terms of this Agreement and to
reimburse Bank for all costs, including reasonable attorneys' fees, incurred by
Bank in the course of collecting the sum or sums should Creditor fail to
voluntarily turn over same to Bank.
5.Creditor represents and warrants to Bank that Creditor has not assigned
or transferred the Creditor Indebtedness or Creditor Collateral, or any interest
therein, to any person, firm, association, corporation or party, that Creditor
will make no such assignment or transfer, and that all agreements, instruments
and documents evidencing the Creditor Indebtedness and Creditor Collateral will
be endorsed with a proper notice of this Agreement. Creditor shall have the
right to assign the Creditor Indebtedness provided that any such assignment
shall only be made upon prior written notice to Bank, and consent of Bank, and
shall be made expressly subject to the rights of the Bank hereunder
conspicuously noted in writing on any such assignment.
6. Bank is hereby authorized by Creditor to: (a) renew, compromise, extend,
or otherwise change the time of payment or any other terms of the Bank
Indebtedness under the Loan Agreement; (b) exchange, enforce, waive or release
any security therefor; or (c) apply such security and direct the order or manner
of sale thereof in such manner as the Bank may in its sole discretion determine,
all without notice to Creditor and without affecting the subordination provided
by this Agreement; provided further that Bank shall not accelerate the time of
payment of the Bank Indebtedness unless otherwise permitted by the Loan
Agreement or related documents and/or the Bank Indebtedness or increase the rate
of interest payable thereon or any part thereof other than as permitted in the
Loan Agreement or related documents and/or the Bank Indebtedness.
7. Creditor further agrees that upon any distribution of the assets or
readjustment of the indebtedness of Borrower whether by reason of liquidation,
composition, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding involving the readjustment of all
or any of the indebtedness hereby subordinated, or the application of the assets
of Borrower to the payment or liquidation thereof. Bank shall be entitled to
receive payment in full of any and all Bank Indebtedness of any kind whatsoever
then owing to Bank by Borrower (including without limitation, obligations under
interest rate hedging agreements and post-petition interest whether or not
enforceable) prior to the payment of all or any part of the Creditor
Indebtedness, and in order to enable Bank, to enforce its rights hereunder in
any such action or proceeding. Bank is hereby irrevocably authorized and
empowered in its discretion to make and present for and on behalf of Creditor
such proofs of claims against Borrower on account of the Creditor Indebtedness
as Bank may deem expedient or proper and to vote such proofs of claims in any
such proceeding and to 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 to apply same on account of any Bank Indebtedness then owing to Bank.
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Creditor further agrees to execute and deliver to Bank such
assignments or other instruments as may be required by Bank in order to enable
Bank to enforce any and all such claims and to collect any and all dividends or
other payments or disbursements which may be made at any time on account of all
or any of the Creditor Indebtedness.
8. This Agreement shall continue in full force and effect until Creditor
shall receive from Bank notice in writing of its termination upon the full
payment of the entire Bank Indebtedness; provided that Borrower is not then
indebted in any manner to Bank and Bank has no further commitment to make any
further loans or credit accommodations to Borrower pursuant to the Loan
Agreement, otherwise this Agreement shall remain in full force and effect.
9. All notices, payments, requests, reports, information and demands which
any party may desire or may be required to give or make to any other party
shall be given or made upon such party by and hand delivery or by the deposit in
the United States Mail, postage prepaid, Certified or Registered addressed as
follows:
TO BANK: American National Bank and
Trust Company of Chicago
000 Xxxxx XxXxxxx Xxxxxx - Div. 744
Xxxxxxx, Xxxxxxxx 00000
TO CREDITOR: Xxxxxxx X. Xxxxx
000 Xxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Said notice shall be deemed given when delivered or mailed as aforesaid.
10. Creditor irrevocably agrees that subject to Bank's sole and absolute
election, all actions or proceedings in any way, manner or respect, arising out
of or from or related to this Agreement, the other agreements, or any collateral
shall be litigated only in the courts having situs within the City of Chicago,
State of Illinois. Creditor hereby consents and submits to the jurisdiction of
any local, state or federal court located within the City of Chicago and State
of Illinois. Creditor hereby waives any rights it may have to transfer or change
venue of any litigation brought against Creditor by Bank in accordance with this
paragraph.
11. This Agreement shall be binding upon the successors and assigns of the
Creditor, Borrower and Bank. This Agreement and any existing or future claim of
Bank hereunder may be assigned by Bank, in whole or in part, without notice to
Creditor or to Borrower. Bank may, without notice, assign this Agreement in
whole or in part in connection with an assignment of the Loan Agreement or a
sale of a participation thereunder.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the day and year first above written.
"CREDITOR"
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Individually
"BANK"
American National Bank and Trust
Company of Chicago
By: /s/ Illegible
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Its: FIRST VICE PRES.
ACCEPTANCE OF BORROWER
The undersigned Alltech Associates, Inc., an Illinois corporation, hereby
accepts and consents to the foregoing Agreement and agrees to be bound by all of
the provisions thereof and to recognize all priorities and rights granted
thereby to American National Bank and Trust Company of Chicago, and its
successors and assigns and to perform in accordance therewith.
"BORROWER"
Alltech Associates, Inc.
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chairman of the Board
Dated: July 31, 2000
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$2,500,000.00 July 31, 2000
For Value Received, the undersigned Alltech Associates, Inc., an Illinois
corporation promises to pay to the order of Xxxxxxx X. Xxxxx, an individual, TWO
MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS.
Alltech Associates, Inc.
an Illinois corporation
Due on Demand By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Chairman of the Board
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