Exhibit 10.26
CORPORATE GUARANTY
Date: November 12, 1998
General Electric Capital Corporation
One Lincoln Centre
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
To induce you to enter into, purchase or otherwise acquire, now or at
any time hereafter, any promissory notes, security agreements, and/or any other
documents or instruments evidencing or relating to, any lease, loan, extension
of credit or other financial accommodation (collectively "Account Documents"
and each an "Account Document") to KJ Transportation, Inc. and J&L Truck
Leasing of Farmington, Inc., each a corporation organized and existing under
the laws of the State of New York (collectively, "Customer"), but without in
any way binding you to do so the undersigned, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
does hereby guarantee to you, your successors and assigns, the due regular and
punctual payment of any sum or sums of money which the Customer may owe to you
now or at any time hereafter whether evidenced by an Account Document, on open
account or otherwise, and whether it represents principal, interest, rent, late
charges, indemnities, an original balance, an accelerated balance, liquidated
damages, a balance reduced by partial payment, a deficiency after sale or other
disposition of any leased equipment, collateral or security, or any other type
of sum of any kind whatsoever that the Customer may owe to you now or at any
time hereafter, and does hereby further guarantee to you, your successors and
assigns, the due, regular and punctual performance of any other duty or
obligation of any kind or character whatsoever that the Customer may owe to you
now or at any time hereafter (all such payment and performance obligations
being collectively referred to as "Obligations"). Undersigned does hereby
further guarantee to pay upon demand all losses, costs, attorneys' fees and
expenses which may be suffered by you by reason of Customer's default or
default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first
seek or exhaust any remedy against the Customer, its successors and assigns, or
any other person obligated with respect to the Obligations, or to first
foreclose, exhaust or otherwise proceed against any leased equipment,
collateral or security which may be given in connection with the Obligations.
It is agreed that you may, upon any breach or default of the Customer, or at
any time thereafter, make demand upon the undersigned and receive payment and
performance of the Obligations, with or without notice or demand for payment or
performance by the Customer, its successors or assigns, or any other person.
Suit may be brought and maintained against the undersigned at your election,
without joinder of the Customer or any other person as parties thereto. The
obligations of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall
be primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of any
notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification of
the Account Documents or any other document; (c) the absence of, or delay in,
any action to enforce the Account Documents, this Guaranty or any other
documents; (d) your failure or delay in obtaining any other guaranty of the
Obligations (including without limitation, your failure to obtain the signature
of any other guarantor hereunder); (e) the release of, extension of time for
payment or performance by or any other indulgence granted to the Customer or
any other person with respect to the Obligations by operation of law or
otherwise; (f) the existence, value, condition, loss, subordination or release
(with or without substitution) of or failure to have title to or perfect and
maintain a security interest in, or the time, place and manner of any sale or
other disposition of any leased equipment, collateral or security given in
connection with the Obligations, or any other impairment (whether intentional
or negligent, by operation of law or otherwise) of the rights of the
undersigned; (g) the Customer's voluntary or involuntary bankruptcy, assignment
for the benefit of creditors, reorganization, or similar proceedings affecting
the Customer or any of its assets; or (h) any other action or circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force
and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws affecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned
of all amounts and other sums that would be due to you upon a default with
respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the
Customer or any other person is hereby waived. Presentment, protest, demand,
and notice of protest, demand and dishonor of any of the Obligations, and the
exercise of possessory, collection or other remedies for the Obligations, are
hereby waived. The undersigned warrants that it has adequate means to obtain
from the Customer on a continuing basis financial data and other information
regarding the Customer and is not relying upon you to provide any such data or
other information. Without limiting the foregoing, notice of adverse change in
the Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and you shall be binding upon and shall
not affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to you of all
Obligations and is hereby assigned to you as security therefor. The undersigned
hereby irrevocably and unconditionally waives and relinquishes all statutory,
contractual, common law, equitable and all other claims against the Customer
and any other obligor for any of the Obligations, any collateral therefor, or
any other assets of the Customer or any such other obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect of sums paid of payable to you by the undersigned
hereunder, and the undersigned hereby further irrevocably and unconditionally
waives and relinquishes any and all other benefits which it might otherwise
directly or indirectly receive or be entitled to receive by reason of any
amounts paid by, or collected or due from, it, the Customer or any other
obligor for any of the Obligations, or realized from any of their respective
assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER
HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
US. The scope of this waiver is intended to be all encompassing of any and all
disputes that may be filed in any court (including, without limitation,
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE
OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS. In the event of
litigation this Guaranty may be filed as a written consent to a trial by the
court.
As used in this Guaranty, the word "person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure
by you to exercise your rights hereunder shall give rise to any estoppel
against you, or excuse the undersigned from performing hereunder. Your waiver
of any right to demand performance hereunder shall not be a waiver of any
subsequent or other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and
the benefits thereof shall extend to and include your successors and assigns.
In the event of default hereunder, you may at any time inspect undersigned's
records, or at your option, undersigned shall furnish you with a current
independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL, IN ALL RESPECTS, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. The parties agree that any action or proceeding arising out of or
relating to this Guaranty shall be commenced in any state or Federal court
located in Xxx Xxxx Xxxxxx, Xxxx xx Xxx Xxxx, Xxxxx of New York, and that such
courts shall have exclusive jurisdiction to hear and determine any claims or
disputes between or among any of the parties hereto or thereto relating to the
transaction contemplated by this Guaranty, and any investigation, litigation or
proceeding related to or arising out of any such matters; provided, however,
that the parties hereto acknowledge that any appeals from those courts may be
heard by a court located outside of such jurisdiction. Each party hereto
expressly submits and consents in advance to such jurisdiction in any action or
suit commenced in any such court, and hereby waives any objection which such
party may have based upon lack of personal jurisdiction, improper venue or
inconvenient form. The parties further agree that a summons and complaint
commencing an action or proceeding in any such court shall be properly served
and shall confer personal jurisdiction if served personally or by certified
mail to it at its address set forth herein, or as it may provide in writing
from time to time, or as otherwise provided under the laws of the State of New
York.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Corporate Guaranty is executed the day and
year above written.
TRANSIT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
CAROLINA-PACIFIC DISTRIBUTORS, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
CERTIFIED TRANSPORT, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 X. Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
RAINBOW TRUCKING SERVICES, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000)000-0000
TRANSPORTATION RESOURCES
AND MANAGEMENT, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
5003 XX 00 Xxxx
Xxxxx 0
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
XXXXXXX XXXXXX & CO., INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
KJ TRANSPORTATION, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
SERVICE EXPRESS, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
000 Xxxx Xxxxx Xxx Xxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
DIVERSIFIED TRUCKING CORP.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000-)000-0000
NORTHSTAR TRANSPORTATION, INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
TRANSIT LEASING, INC. f/k/a
CAPITOL WAREHOUSE INC.
Lessee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
Facsimile:(000)000-0000
J&L TRUCK LEASING OF FARMINGTON, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: CEO
Facsimile:(000)000-0000
CERTIFIED RESOLUTION
The undersigned hereby certifies that he/she is Secretary of each of
Transit Group, Inc., Carolina-Pacific Distributors, Inc., Certified Transport,
Inc., Rainbow Trucking Services, Inc., Transportation Resources and Management,
Inc., Xxxxxxx Xxxxxx & Co., Inc., Service Express, Inc., Diversified Trucking
Corp., Northstar Transportation, Inc., and Transit Leasing, Inc. f/k/a Capitol
Warehouse Inc.; that the following resolution was passed by unanimous consent
of the Board of Directors of said corporations, that said resolution has not
since been revoked or amended, and that the form of guaranty referred to
therein is the form shown attached hereto:
"RESOLVED, that it is to the benefit of this corporation that it
execute a guaranty of the obligations of KJ Transportation, Inc. and J&L Truck
Leasing of Farmington, Inc. to General Electric Capital Corporation ("GE
Capital") and that the benefit to be received by this corporation from such
guaranty is reasonably worth the obligations thereby guaranteed, and further
that such guaranty shall be substantially in the form annexed to these minutes,
and further that the Xxxxxx X. Xxxxxx (title of officer) of this corporation is
authorized to execute such guaranty on behalf of this corporation."
WITNESS my hand on this 12th day of November, 1998.
(SEAL)
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Secretary
CERTIFICATION AND REPRESENTATION BY SIGNING OFFICER
The undersigned being the CEO of each of the corporations which
executed the guaranty attached hereto, hereby certifies and represents to
General Electric Capital Corporation that the undersigned executed the guaranty
for and on behalf of said corporations and that in so executing said instrument
the undersigned was duly authorized to do so in his/her named capacity as
officer and by so executing to hereby bind said guarantor corporations to the
terms of said instrument as therein set forth.
/s/ Xxxxxx X. Xxxxxx
Dated: November 12, 1998 Xxxxxx X. Xxxxxx(L.S.)
