EXHIBIT 10.2
GUARANTY OF BSST LLC IN FAVOR
OF
COMERICA BANK DATED AS OF OCTOBER
28, 2005
GUARANTY
The undersigned, BSST LLC (the
“Guarantor”), for value received, unconditionally and
absolutely guarantee(s) to Comerica Bank (Bank) a Michigan banking
corporation, and to the Bank’s successors and assigns,
payment when due, whether by stated maturity, demand, acceleration
or otherwise, of all existing and future indebtedness to the Bank
of Amerigon Incorporated (“Borrower) or any successor in
interest, including without limit any debtor-in-possession or
trustee in bankruptcy which succeeds to the interest of this party
or person (jointly and severally the “Borrower” arising
(a) under the Amended and Restated Credit Agreement dated as
of October 28, 2005 between Borrower and Bank, as amended,
modified or supplemented from time to time (“Credit
Agreement”), (b) in connection with any accounts
maintained by the Borrower with the Bank, or (c) in connection
with interest rate protection agreements between the Borrower and
the Bank (the “Indebtedness”).
The Indebtedness guaranteed includes
without limit: (a) any and all direct indebtedness of the
Borrower to the Bank, including indebtedness evidenced by any and
all promissory notes; (b) any and all obligations or
liabilities of the Borrower to the Bank arising under any guaranty
where the Borrower has guaranteed the payment of indebtedness owing
to the Bank from a third party; (c) any and all obligations or
liabilities of the Borrower to the Bank arising from applications
or agreements for the issuance of letters of credit; (d) any
and all obligations or liabilities of the Borrower to the Bank
arising out of any other agreement by the Borrower including
without limit any agreement to indemnify the Bank for environmental
liability or to clean up hazardous waste; (e) any and all
indebtedness, obligations or liabilities for which the Borrower
would otherwise be liable to the Bank were it not for the
invalidity, irregularity or unenforceability of them by reason of
any bankruptcy, insolvency or other law or order of any kind, or
for any other reason, including without limit liability for
interest and attorneys’ fees on, or in connection with, any
of the indebtedness from and after the filing by or against the
Borrower of a bankruptcy petition whether an involuntary or
voluntary bankruptcy case, including, without limitation, all
attorneys fees and costs incurred in connection with motions for
relief from stay, cash collateral motions, nondischargeability
motions, preference liability motions, fraudulent conveyance
liability motions, fraudulent transfer liability motions and all
other motions brought by Borrower, Guarantor, Bank or third parties
in any way relating to Bank’s rights with respect to such
Borrower, Guarantor, or third party and/or affecting any collateral
securing any obligation owed to Bank by Borrower, Guarantor, or any
third party, probate proceedings, on appeal or otherwise;
(f) any and all amendments, modifications, renewals and/or
extensions of any of the above, including without limit amendments,
modifications, renewals and/or extensions which are evidenced by
new or additional instruments, documents or agreements; and
(g) all costs of collecting indebtedness, including without
limit reasonable attorneys’ fees and costs.
The undersigned waive(s) notice of
acceptance of this Guaranty and presentment, demand, protest,
notice of protest, dishonor, notice of dishonor, notice of default,
notice of intent to accelerate or demand payment of any
indebtedness, and diligence in collecting any indebtedness, and
agree(s) that the Bank may modify the terms of any indebtedness,
compromise, extend, increase, accelerate, renew or forbear to
enforce payment of any or all indebtedness, or permit the Borrower
to incur additional indebtedness, all without notice to the
undersigned and without affecting in any manner the unconditional
obligation of the undersigned under this Guaranty. The undersigned
further waive(s) any and all other notices to which the undersigned
might otherwise be entitled. The undersigned acknowledge(s) and
agree(s) that the liabilities created by this Guaranty are direct
and are not conditioned upon pursuit by the Bank of any remedy the
Bank may have against the Borrower or any other person or any
security. No invalidity, irregularity or unenforceability of any
part or all of the Indebtedness or any documents evidencing the
same, by reason of any bankruptcy, insolvency or other law or order
of any kind or for any other reason, and no defense or setoff
available at any time to the Borrower, shall impair, affect or be a
defense or setoff to the obligations of the undersigned under this
Guaranty.
The undersigned deliver(s) this
Guaranty based solely on the undersigned’s independent
investigation of the financial condition of the Borrower and is
(are) not relying on any information furnished by the Bank. The
undersigned assume(s) full responsibility for obtaining any further
information concerning the Borrower’s financial condition,
the status of the Indebtedness or any other matter which the
undersigned may deem necessary or appropriate from time to time.
The undersigned waive(s) any duty on the part of the Bank, and
agree(s) that it is not relying upon nor expecting the Bank to
disclose to the undersigned any fact now or later known by the
Bank, whether relating to the operations or condition of the
Borrower, the existence, liabilities or financial condition of any
co-guarantor of the Indebtedness, the occurrence of any default
with respect to the Indebtedness, or otherwise, notwithstanding any
effect these facts may have upon the undersigned’s risk under
this Guaranty or the undersigned’s rights against the
Borrower. The undersigned knowingly accept(s) the full range of
risk encompassed in this Guaranty, which risk includes without
limit the possibility that the Borrower may incur Indebtedness to
the Bank after the financial condition of the Borrower, or its
ability to pay its debts as they mature, has
deteriorated.
The undersigned represent(s) and
warrant(s) that: (a) the Bank has made no representation to
the undersigned as to the creditworthiness of the Borrower; and
(b) the undersigned has (have) established adequate means of
obtaining from the Borrower on a continuing basis financial and
other information pertaining to the Borrower’s financial
condition. The undersigned agree(s) to keep adequately informed of
any facts, events or circumstances which might in any way affect
the risks of the undersigned under this Guaranty .
The undersigned grant(s) to the Bank
a security interest in and the right of setoff as to any and all
property of the undersigned now or later in the possession of the
Bank. The undersigned subordinate(s) any claim of any nature that
the undersigned now or later has (have) against the Borrower to and
in favor of all Indebtedness.
2
The undersigned agree(s) that no
security now or later held by the Bank for the payment of any
Indebtedness, whether from the Borrower, any guarantor, or
otherwise, and whether in the nature of a security interest,
pledge, lien, assignment, setoff, suretyship, guaranty, indemnity
insurance or otherwise, shall affect in any manner the
unconditional obligation of the undersigned under this Guaranty,
and the Bank, in its sole discretion, without notice to the
undersigned, may release, exchange, enforce and otherwise deal with
any security without affection in any manner the unconditional
obligation of the undersigned under this Guaranty. The undersigned
acknowledges(s) and agree(s) that the Bank has no obligation to
acquire or perfect any lien on or security interest in any asset(s)
whether realty or personalty, to secure payment of the
indebtedness, and the undersigned is (are) not relying upon any
asset(s) in which the Bank has or may have a lien or security
interest for payment of the Indebtedness.
The undersigned acknowledge(s) that
the effectiveness of this Guaranty is not conditioned on any or all
of the Indebtedness being guaranteed by anyone else.
Until the Indebtedness is
irrevocably paid in full, the undersigned waive(s) any and all
rights to be subrogated to the position of the Bank or to have the
benefit of any lien, security interest or other guaranty now or
later held by the Bank for the Indebtedness or to enforce any
remedy which the Bank now or later has against the Borrower or any
other person. Until the Indebtedness is irrevocably paid in full,
the undersigned shall have no right of reimbursement indemnity,
contribution or other right of recourse to or with respect to the
Borrower or any other person. The undersigned agree(s) to indemnify
and hold harmless the Bank from and against any and all claims,
actions, damages, costs and expenses, including without limit
reasonable attorneys’ fees, incurred by the Bank in
connection with the undersigned’s exercise of any right of
subrogation, contribution, indemnification or recourse with respect
to this Guaranty. The Bank has no duty to enforce or protect any
rights which the undersigned may have against the Borrower or any
other person and the undersigned assume(s) full responsibility for
enforcing and protecting these rights.
Notwithstanding any provision of the
preceding paragraph or anything else in this Guaranty to the
contrary, if any of the undersigned is or becomes an
“Insider” or “affiliate” (as defined in
Section 101 Or the Federal Bankruptcy Code, as it may be
amended) with respect to the Borrower, then that undersigned
irrevocably and absolutely waives any and all rights of
subrogation, contribution, indemnification, recourse, reimbursement
and any similar rights against the Borrower (or any other
guarantor) with respect to this Guaranty, whether such rights arise
under an express or implied contract or by operation of law. It is
the intention of the parties that the undersigned shall not be (or
be deemed to be) a “Creditor” (as defined in
Section 101 of the Federal Bankruptcy Code, as it may be
amended) of the Borrower (or any other guarantor) by reason of the
existence of this Guaranty in the event that the Borrower becomes a
debtor in any proceeding under the Federal Bankruptcy Code. This
waiver is given to induce the Bank to enter into certain written
contracts with the Borrower included in the Indebtedness. The
undersigned warrant(s) and agree(s) that none of Bank’s
rights, remedies or interests shall be directly or indirectly
impaired because of any of the undersigned’s status as an
“insider” or affiliate of the Borrower, and undersigned
shall take any action, and shall execute any document, which the
Bank may request in order to effectuate this warranty to the
Bank.
3
If any Indebtedness is guaranteed by
two or more guarantors, the obligation of the undersigned shall be
several and also joint, each with all and also each with any one or
more of the others, and may be enforced at the option of the Bank
against each severally, any two or more jointly, or some severally
and some jointly The Bank, in its sole discretion, may release any
one or more of the guarantors for any consideration which it deems
adequate, and may fail or elect not to prove a claim against the
estate of any bankrupt, insolvent, incompetent or deceased
guarantor; and after that, without notice to any other guarantor,
the Bank may extend or renew any or all Indebtedness and may permit
the Borrower to incur additional Indebtedness, without affecting in
any manner the unconditional obligation of the remaining
guarantor(s). This action by the Bank shall not, however, be deemed
to affect any right to contribution which may exist among the
guarantors.
Any of the undersigned may terminate
their obligation under this Guaranty as to future indebtedness
(except as provided below) by (and only by) delivering written
notice of termination to an officer of the Bank and receiving from
an officer of the Bank written acknowledgment of delivery;
provided, the termination shall not be effective until the opening
of business on the fifth (5th) day following written
acknowledgment of delivery. Any termination shall not affect in any
way the unconditional obligations of the remaining guarantor(s),
whether or not the termination is known to the remaining
guarantor(s). Any termination shal
