EXHIBIT 10.03
GUARANTY
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WHEREAS, CARGO CONNECTION LOGISTICS CORP., A DELAWARE CORPORATION,
("CARGO"), is or may become indebted to Xxxxx Fargo Bank, National Association
through its Xxxxx Fargo Business Credit operating division ("Factor");
WHEREAS, this guaranty is being executed and delivered in order to induce
Factor to factor certain accounts receivable of CARGO.
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, the undersigned Guarantor hereby guarantees to Factor the prompt
payment, when such becomes due and payable to Factor, of the Guaranteed
Indebtedness (hereinafter defined), this guaranty being upon the following terms
and conditions:
1. The expression "Guaranteed Indebtedness," as that term is used herein,
means all indebtedness and/or obligations of every land and character, whether
now existing or hereafter arising, of CARGO to Factor, regardless of whether
evidenced by a purchase and sale agreement between CARGO and Factor, notes,
acceptances, or any written document of any kind between CARGO and Factor, or
otherwise, and without limit as to amount, together with interest thereon, and
penalties, fees, and expenses (including, but not limited to attorneys' fees) as
provided for under any instrument or document evidencing such indebtedness.
2. This instrument shall be an absolute and continuing guaranty, and the
circumstance that at any time or from time to time the Guaranteed Indebtedness
may be paid in full shall not affect the obligation of Guarantor with respect to
the indebtedness of CARGO to Factor thereafter incurred.
3. If Guarantor becomes liable for any indebtedness owing by CARGO to
Factor, by endorsement or otherwise, other than under this guaranty, such
liability shall not be in any manner impaired or affected hereby, and the rights
of Factor hereunder shall be cumulative of any and all other rights that Factor
may ever have against Guarantor. The exercise by Factor of any right or remedy
hereunder or under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
4. Upon the occurrence of a "Default," as defined in the Account Transfer
Agreement, or in the event of any other default by CARGO in respect to the
Guaranteed Indebtedness, or any part thereof, now or hereafter owed to Factor,
Guarantor shall, on demand and without further notice of dishonor, without any
notice having been given to Guarantor previous to such demand of the creating or
incurring of such indebtedness, pay the amount due thereon to Factor, and it
shall not be necessary for Factor, in order to enforce such payment by Guarantor
first or, contemporaneously to institute suit or exhaust remedies against CARGO
or others liable on such indebtedness, or to enforce rights against any security
which shall ever have been given to secure such indebtedness.
5. All principal of and interest on all indebtedness, liabilities, and
obligations of CARGO to Guarantor (the "SUBORDINATED DEBT"), whether direct,
indirect, fixed, contingent,
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liquidated, unliquidated, joint, several, or joint and several, now or hereafter
existing, due or to become due to Guarantor, or held or to be held by Guarantor,
whether created directly or acquired by assignment or otherwise, and whether
evidenced by written instrument or not, shall be expressly subordinated to the
Guaranteed Indebtedness. Guarantor agrees not to receive or accept any payment
from CARGO with respect to the Subordinated Debt at any time a default in
respect of any of the Guaranteed Indebtedness has occurred and is continuing;
and, in the event Guarantor receives any payment on the Subordinated Debt in
violation of the foregoing, Guarantor will hold any such payment in trust for
Factor and forthwith turn it over to Factor, in the form received, to be applied
to the Guaranteed Indebtedness.
6. Until such time as Factor is paid in full the Guaranteed Indebtedness,
Guarantor hereby agrees that it shall not assert, enforce or otherwise exercise
any right of subrogation to any of the rights of the Liens of Factor against
CARGO or any other obligor on the Guaranteed Indebtedness or any Collateral or
other security, any right of recourse, reimbursement, contribution,
indemnification or similar right against CARGO or any other obligor on all or
any part of the Guaranteed Indebtedness or any guarantor thereof, and Guarantor
hereby irrevocably waives the benefit of, and any right to participate in, any
Collateral or other security given to Factor to secure payment of the Guaranteed
Indebtedness.
7. Guarantor hereby agrees that its obligations under the terms of this
guaranty shall not be released, diminished, impaired, reduced, or affected by
the occurrence of anyone or more of the following events: (a) The taking or
accepting of any other security or guaranty for any or all of the Guaranteed
Indebtedness; (b) any release, surrender, exchange, subordination, or loss of
any security at any time existing in connection with any or all of the
Guaranteed Indebtedness; (c) any partial release of the liability of Guarantor
hereunder, or, if there is more than one person or entity signing this guaranty
or otherwise guarantying the Guaranteed Indebtedness, the release of anyone or
more of them hereunder; (d) the death, insolvency, bankruptcy, disability, or
lack of partnership or corporate power of CARGO, any of the undersigned, or any
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness, whether now existing or hereafter occurring; (e) any renewal,
extension, or rearrangement of the payment of any or all of the Guaranteed
Indebtedness, either with or without notice to or consent of Guarantor, or any
adjustment, indulgence, forbearance, or compromise that may he granted or given
by Factor to CARGO or Guarantor; (f) any neglect, delay, omission, failure, or
refusal of Factor to take or prosecute any action for the collection of any of
the Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Indebtedness; (g) any failure of Factor to notify the
Guarantor of any renewal, extension, or assignment of the Guaranteed
Indebtedness or any part thereof, or the release of any security or of any other
action taken or refrained from being taken by Factor against CARGO or any new
agreement between Factor and CARGO, it being understood that Factor shall not be
required to give Guarantor any notice of any kind under any circumstances
whatsoever with respect to or in connection with the Guaranteed Indebtedness;
(h) in the event that CARGO is a corporation, joint stock association,
partnership or trust, or is hereafter incorporated, the unenforceability of all
or any part of the Guaranteed Indebtedness against CARGO by reason of the fact
that the Guaranteed Indebtedness exceeds the amount permitted by law, the act of
creating the Guaranteed Indebtedness, or any part thereof, is ultra
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xxxxx, or the officers, partners, or trustees creating same acted in excess of
their authority or violated any fiduciary duties in connection therewith; or (i)
any payment by CARGO to Factor is held to constitute a preference under the
bankruptcy laws or if for any other reason Factor is required to refund such
payment or pay the amount thereof to someone else.
8. Guarantor hereby waives all rights by which it might be entitled to
require suit on an accrued right of action in respect of any of the Guaranteed
Indebtedness or require suit against CARGO or others, whether arising pursuant
to Section 34.02 of the Texas Business and Commerce Code, as amended, Section
17.001 of the Texas Civil Practice and Remedies Code, as amended, Rule 31 of the
Texas Rules of Civil Procedure, as amended, or otherwise.
9. Should Guarantor die, or become insolvent, or fail to pay such
Guarantor's debts generally as they become due, or voluntarily seek, consent to,
or acquiesce in the benefit or benefits of any Debtor Relief Law, or become a
party to (or be made the subject of) any proceeding provided for by any Debtor
Relief Law (other than as a creditor or claimant) that could suspend or
otherwise adversely affect the rights of Factor granted hereunder, then, in any
such event, the Guaranteed Indebtedness shall be, as between Guarantor and
Factor, a fully matured, due, and payable obligation of Guarantor to Factor
(without regard to whether CARGO is then in default under the Account Transfer
Agreement or whether the Obligation, or any part thereof is then due and owing
by CARGO to Factor), payable in full by Guarantor to Factor upon demand, which
shall be the estimated amount owing in respect to the contingent claim created
hereunder. Notwithstanding the foregoing, prior to the occurrence of Default
under the Account Transfer Agreement, and only in the case of the death of
Guarantor, Factor agrees to accept, in payment of any such matured, due, and
payable obligation of Guarantor to Factor, the endorsement by the personal
representatives of such Guarantor's estate of each instrument evidencing the
Guaranteed Indebtedness and the agreement by such personal representatives that
they and such Guarantor's estate shall be bound by the terms of this guaranty
the same as if they were original signatories hereto.
10. Guarantor represents and warrants to Factor as follows:
(a) If Guarantor is a corporation, Guarantor is a corporation duly
organized, validly existing, and in good standing under the Laws of the state of
its incorporation and is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the nature and
extent of its assets, business, properties, or operations require the same,
except where failure to be so duly qualified and in good standing would not,
individually or collectively, have a material adverse effect on the validity or
enforceability of this guaranty, the financial condition or business operations
of Guarantor, or Guarantor's ability to fulfill its obligations under this
guaranty (such circumstances or events being herein called a "MATERIAL ADVERSE
EFFECT").
(b) The execution and delivery of this guaranty has been duly
authorized and approved by all necessary corporate action and constitutes the
legal, valid, and binding obligations of Guarantor against it in accordance with
their terms except as the enforceability thereof may be limited by applicable
Debtor Relief Laws.
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(c) Guarantor is not, nor will the execution, delivery, and the
performance of and compliance with the terms of this guaranty cause Guarantor to
be, in violation of (a) any laws, other than such violations which could not,
individually or collectively, cause a Material Adverse Effect, or (b) its bylaws
or articles or certificate of incorporation (as amended). The execution,
delivery, and the performance of and compliance with the terms of this guaranty
are not inconsistent with, and will not conflict with or result in any breach
of, or constitute a default under, or result in the creation or imposition of
any Lien (except pursuant to this guaranty) upon any of the property, assets, or
revenues of Guarantor pursuant to the terms of, any indenture, mortgage, lease,
deed of trust, agreement, contract, instrument, or Law to which Guarantor is a
party or by which Guarantor or any of Guarantor's property, assets, or revenue
is bound or to which it is subject.
(d) No order, consent, approval, license, permit, waiver, exemption,
authorization of or validation of, or filing, recording or registration with
(except as heretofore have been obtained or made), or exemption by, any Person
is required to authorize, or is required in connection with, the execution,
delivery, performance, legality, validity, binding effect, or enforceability of
this guaranty.
(e) The value of the consideration received and to be received by
Guarantor is reasonably worth at least as much as the liability and obligation
of Guarantor hereunder, such liability and obligation may reasonably be expected
to benefit Guarantor directly or indirectly.
12. Guarantor agrees to provide to Factor at Factor's request, Financial
Statements in a form acceptable to Factor.
13. This guaranty is for the benefit of Factor and Factor's successors and
assigns, and in the event of an assignment of the Guaranteed Indebtedness, or
any part thereof, the rights and benefits hereunder, to the extent applicable to
the indebtedness so assigned, may be transferred with such indebtedness. This
guaranty is binding not only on Guarantor, but on Guarantor's heirs, personal
representatives, successors, and assigns, and if this guaranty is signed by more
than one person or entity, then an of the obligations of Guarantor arising
hereunder shall be jointly and severally binding on each of the undersigned and
their respective heirs, personal representative, successors, and assigns.
14. THIS GUARANTY IS EXECUTED AND DELIVERED AS AN INCIDENT TO A LENDING
TRANSACTION NEGOTIATED, CONSUMMATED, AND PERFORMABLE IN DALLAS COUNTY, TEXAS,
AND SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS.
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15. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES. THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN GUARANTOR AND
FACTOR AND SUPERSEDES ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS
RELATING TO THE SUBJECT MATTER HEREOF. GUARANTOR, FOR ITSELF, ITS SUCCESSORS AND
ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS OF THE STATE OF TEXAS AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THE GUARANTY AND THE OBLIGATION BY SERVICE OF PROCESS AS
PROVIDED BY TEXAS LAW, (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE GUARANTY AND THE
OBLIGATION BROUGHT IN DISTRICT COURTS OF DALLAS COUNTY, TEXAS, OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION, (C)
IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, TO SUCH GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, AND (E) IRREVOCABLY
AGREES THAT ANY LEGAL PROCEEDING AGAINST FACTOR ARISING OUT OF OR IN CONNECTION
WITH THE GUARANTY OR THE OBLIGATION SHALL BE BROUGHT IN THE DISTRICT COURT OF
DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, DALLAS DIVISION. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
FACTOR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST GUARANTOR IN
ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY APPLICABLE LAW.
(INTENTIONALLY LEFT BLANK)
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EXECUTED this [20th] day of November, 2007.
GUARANTOR:
CARGO CONNECTION LOGISTICS HOLDING, INC.
a Florida Corporation
By: /s/ Xxxxx Xxxxxxx
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Printed Name: Xxxxx Xxxxxxx
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Its: Chief Financial Officer
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