EXHIBIT 10.02
GUARANTY OF LEASE
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This Guaranty of Lease ("Guaranty") is dated as of January 11, 2008 (the
"Effective Date"), and is made by Cargo Connection Logistics Holding, Inc., a
Florida Corporation ("Guarantor"), whose address is c/o Cargo Connection
Logistics, 000 Xxxxxxx Xxx., Xxxxxx, XX 00000, to MP CARGO ORD PROPERTY LLC, a
Delaware limited liability company ("Landlord"), whose address is c/o Cargo
Ventures LLC, 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, with respect to
certain obligations of CARGO CONNECTION LOGISTICS-INTERNATIONAL, INC., an
Illinois corporation ("Tenant").
RECITALS:
A. Pursuant to that certain Commercial Lease Agreement (the "Lease") dated
as of January 11, 2008, by and between Landlord and Tenant, Landlord has agreed
to lease to Tenant, and Tenant has agreed to lease from Landlord, certain
property and improvements located at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx
("Premises").
B. In order to induce Landlord to enter into the Lease with Tenant,
Guarantor has offered to execute this Guaranty, guaranteeing the full
performance of the obligations of Tenant under the Lease.
C. Guarantor is an affiliate of Tenant and will substantially benefit from
the Lease and, as such, Guarantor desires to enter into this Guaranty.
NOW THEREFORE, for valuable consideration herein acknowledged, Guarantor
hereby unconditionally guarantees the full performance of each and all of the
terms, covenants and conditions of the Lease to be kept and performed by Tenant,
or any successors in interest, including the payment of all rentals and other
charges that accrue under the Lease. The Lease is incorporated herein by this
reference. Guarantor further agrees as follows:
1. Guaranty. In order to induce Landlord to enter into the Lease, Guarantor
unconditionally, absolutely, and irrevocably guarantees and promises to
Landlord, full and complete payment and performance by Tenant of all covenants,
terms and conditions of the Lease, as the same may hereafter be modified,
amended, extended or renewed, including, but not limited to, payment when due of
rent and other sums due under the Lease and all damages to which Landlord is or
may be entitled whether under Illinois law upon a termination of the Lease or
otherwise, indemnification payments and payment of any and all legal fees, court
costs and litigation expenses incurred by Landlord in endeavoring to collect or
enforce any of the foregoing against Tenant, Guarantor, or any other person
liable thereon (whether or not suit be brought), or in connection with any
property securing any or all of the foregoing or this Guaranty. All sums due
under this Guaranty shall bear interest from the date due until the date paid at
the maximum contract rate permitted by law. This is a continuing guaranty of
payment and performance and not of collectibility, which shall remain in full
force and effect during the term of the Lease, as renewed or extended, and
thereafter until Tenant's obligations are fully satisfied. If all or any portion
of the obligations guaranteed are paid or performed, this Guaranty shall
continue in full force and effect in the event that all or any part of such
payment or performance is avoided by Tenant or recovered directly or indirectly
by Landlord as a preference, fraudulent transfer or otherwise. Guarantor's
liability is not conditioned or contingent upon the genuineness, validity,
regularity or enforceability of the Lease, and Guarantor waives any and all
benefits and defenses under Illinois law or otherwise, and agrees that by doing
so Guarantor is liable even if Tenant had no liability at the time of execution
of the Lease or thereafter ceases to be liable. Guarantor waives any and all
benefits and defenses under Illinois law or otherwise and agrees that by doing
so its liability may be larger in amount and more burdensome than that of
Tenant.
2. Changes Do Not Affect Liability. Guarantor consents and agrees that
Landlord may, without notice or demand and in its sole and absolute discretion
and without affecting Guarantor's liability under this Guaranty, from time to
time (a) renew, compromise or settle, extend, accelerate, grant extensions of
time or otherwise change or amend the Lease or any of Tenant's obligations under
the Lease; (b) take, hold, release, waive, exchange, modify or enforce any
security for the payment and performance of this Guaranty or the payment and
performance of the Lease and make elections under the federal bankruptcy laws
concerning any such security; (c) apply such security and direct the order or
manner of sale thereof as Landlord in its sole discretion may determine; (d)
release or substitute any one or more of the persons liable for Tenant's
obligations under the Lease or guarantors of the Lease, including, but not
limited to, any other person signing this Guaranty; (e) accept or make
compromises or other arrangements or file or refrain from filing a claim in any
bankruptcy proceeding of Tenant or any other guarantor or pledgor; and (f)
otherwise deal with Tenant or any other guarantor or pledgor or party related to
the Lease or any security or collateral in such manner as Landlord may determine
in its sole and absolute discretion. Without limiting the generality of the
foregoing, Guarantor waives any rights and benefits under Illinois law or
otherwise, and agrees that by doing so, Guarantor's liability shall continue
even if Landlord alters any obligations under the Lease in any respect or
Landlord's rights or remedies against Tenant are in any way impaired or
suspended without Guarantor's consent. Landlord may, without notice, assign this
Guaranty in whole or in part. The Lease may be assigned either by Landlord or
Tenant or the Premises sublet in whole or in part without Guarantor's consent or
notice to Guarantor and without affecting the liability of Guarantor under this
Guaranty.
3. Waivers by Guarantor of Certain Rights and Defenses. Guarantor waives
and relinquishes any rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available
to Guarantor by reason of Illinois law or otherwise. Without limiting the
generality of the foregoing, Guarantor waives: (a) any right to require Landlord
to (i) proceed against Tenant or any other guarantor, pledgor or person liable
under the Lease; (ii) proceed against or exhaust any security for the Lease or
this Guaranty; or (iii) pursue any other remedy in Landlord's power whatsoever.
In other words, Landlord may proceed against Guarantor for the obligations
guaranteed without first taking any action against Tenant or any other
guarantor, pledgor or person liable under the Lease and without proceeding
against any security; (b) any right to any remedy which Landlord now has or may
hereafter have against Tenant; (c) any benefit of any security now or hereafter
held by Landlord; (d) all presentments, demands for performance, notices of
non-performance, protests, notices of protests and notices of dishonor; (e) all
other notices and demands to which Guarantor might be entitled, including,
without limitation, notice of all of the following: the acceptance hereof; any
adverse change in Tenant's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-payment under the
Lease; any and all agreements and arrangements between Landlord and Tenant and
any changes, modifications, or extensions thereof; and any revocation,
modification or release of any guaranty of any or all of the Lease by any person
(including, without limitation, any other person signing this Guaranty); (f) any
defense arising by reason of any failure of Landlord to obtain, perfect,
maintain or keep in force any security interest in any property of Tenant or any
other person; (g) any defense based upon or arising out of any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against Tenant or any other guarantor or
any person liable under the Lease, including, without limitation, any discharge
of, or bar against collecting, any of the obligations guaranteed hereby in or as
a result of any such proceeding, any rejection of the Lease and any limitation
on Landlord's claim for rejection damages under 11 U.S.C. 1165 [which contains a
limitation equal to the greater of one (1) year's rent or fifteen percent (15%)
of the rent for the remaining term of the Lease, not to exceed three (3) years)]
or otherwise; (h) any defense arising by reason of any disability or other
defense of Tenant or any other guarantor or any other person or by reason of the
cessation from any cause whatsoever of the liability of Tenant or any other
guarantor or any other person; (i) the right to a jury trial in any action under
this Guaranty or relating to this Guaranty; (j) the benefit of any and all
statutes of limitation with respect to any action based upon, arising out of or
related to this
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Guaranty; and (k) any and all benefits which might otherwise be available to
Guarantor under Illinois law or otherwise.
4. Independent Liability; Joint and Several Liability. Guarantor agrees
that one or more successive or concurrent actions may be brought on this
Guaranty against Guarantor, in the same action in which Tenant may be sued or in
separate actions, as often as deemed advisable by Landlord. The obligations
under this Guaranty are joint and several, and independent of the obligations of
Tenant. If Guarantor is a married person, Guarantor agrees that recourse may be
had against his separate property and/or community property for all of his
obligations under this Guaranty.
5. Remedies Cumulative; No Waiver. Landlord shall have the right to seek
recourse against Guarantor to the full extent provided for in this Guaranty and
in any other instrument or agreement evidencing obligations of Guarantor to
Landlord, and against Tenant to the full extent of the obligations guaranteed
hereby. No election in one form of action or proceeding, or against any party,
or on any obligation, shall constitute a waiver of Landlord's right to proceed
in any other form of action or proceeding or against any other party. The
failure of Landlord to enforce any of the provisions of this Guaranty at any
time or for a period of time shall not be construed to be a waiver of any such
provision or the right thereafter to enforce the same. All remedies under this
Guaranty shall be cumulative and shall be in addition to all rights, powers and
remedies given to Landlord by law or under any other instrument or agreement.
6. Financial Condition of Tenant. Guarantor acknowledges that certain facts
concerning Tenant and Tenant's financial condition may be known or become known
to Landlord. Guarantor waives any right to require Landlord to furnish such
information to Guarantor and agrees not to assert any defense Guarantor may have
based upon Landlord's failure to furnish such information. Guarantor
acknowledges that, in executing this Guaranty and at all times hereafter,
Guarantor relies and will continue to rely upon its own investigation and
sources other than Landlord for all information and facts relating to Tenant and
Tenant's financial condition.
7. Subordination. Any indebtedness of Tenant now or hereafter held by
Guarantor is hereby subordinated to Tenant's obligations under the Lease; and
such indebtedness of Tenant to Guarantor, if Landlord so requests, shall be
collected, enforced and received by Guarantor as trustee for Landlord and be
paid over to Landlord on account of the obligations owed by Tenant to Landlord
but without reducing or affecting in any manner the liability of Guarantor under
the other provisions of this Guaranty.
8. Bankruptcy of Tenant. Guarantor shall not commence or join with any
other person in commencing any bankruptcy, reorganization or insolvency
proceedings against Tenant or any person liable for Tenant's obligations under
the Lease. Guarantor shall file in any bankruptcy or other proceeding, in which
the filing of claims is required or permitted by law, all claims which Guarantor
may have against Tenant relating to any indebtedness of Tenant to Guarantor and
will assign to Landlord all rights of Guarantor thereunder. Landlord shall have
the sole right to accept or reject any plan proposed in such proceedings and to
take any other action which a party filing a claim is entitled to do. In all
such cases, whether in administration, bankruptcy, or otherwise, the person or
persons authorized to pay such claim shall pay to Landlord the amount payable on
such claim and, to the full extent necessary for that purpose, Guarantor hereby
assigns to Landlord all of Guarantor's right to any such payments or
distributions to which Guarantor would otherwise be entitled; provided, however,
that Guarantor's obligations hereunder shall not be satisfied except to the
extent that Landlord receives cash by reason of any such payments or
distribution. If Landlord receives anything hereunder other than cash, the same
shall be held as collateral for amounts due under this Guaranty. If the Lease is
rejected in any bankruptcy proceeding, it shall not affect Guarantor's liability
under this Guaranty for all of the obligations of Tenant under the Lease due or
to become due thereunder, and in addition thereto, at the option of Landlord,
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Guarantor shall either assume the Lease and pay and perform all of the
obligations of Tenant thereunder or enter into a new lease with Landlord on
substantially all of the terms and conditions of the Lease for the remaining
term of the Lease.
9. Successors and Assigns; Amendment. All rights, benefits and privileges
under this Guaranty shall inure to the benefit of and be enforceable by Landlord
and its successors and assigns and shall be binding upon Guarantor and his
heirs, representatives, successors and assigns. Neither the death of Guarantor
nor notice thereof to Landlord shall terminate this Guaranty as to his estate,
and, notwithstanding the death of Guarantor or notice thereof to Landlord, this
Guaranty shall continue in full force and effect. The provisions of this
Guaranty may not be waived or amended except in a writing executed by Guarantor
and a duly authorized representative of Landlord.
10. Reports and Financial Statements of Guarantor. Guarantor shall, at its
sole cost and expense, at any time and from time to time, but not more often
than once annually or as otherwise required by Tenant under the Lease, deliver
to Landlord upon Landlord's request (i) such financial statements and reports
concerning Guarantor for such periods of time as Landlord may designate and (ii)
copies of any and all foreign, federal, state and local tax returns and reports
of or relating to Guarantor as Landlord may from time to time request. Guarantor
shall immediately deliver written notice to Landlord of any adverse change in
Guarantor's financial condition and of any condition or event which constitutes
a default of Guarantor's obligations under this Guaranty. Whenever requested,
Guarantor shall deliver to Landlord a certificate signed by Guarantor (and, if
Guarantor is a corporation, by the president and chief financial officer of
Guarantor in their individual capacities; and, if Guarantor is a partnership, by
all general partners of Guarantor, in their individual capacities) warranting
and representing that all reports, financial statements and other documents and
information delivered or caused to be delivered to Landlord under this Guaranty,
are complete, correct and thoroughly and accurately present the financial
condition of Guarantor, and that there exists on the delivery date of the
certificate to Landlord no condition or event which constitutes a default of
Guarantor's obligations under this Guaranty. Guarantor shall also be required to
deliver estoppel certificates in the form and at the times when Tenant shall be
required to deliver estoppel certificates under the Lease, which may include a
statement to the effect that this Guaranty remains in effect and that Guarantor
has no rights of offset or defenses to enforcement of this Guaranty.
11. Representations and Warranties. Guarantor represents and warrants that
(i) if Guarantor is a corporation or partnership, it is duly organized, validly
existing, and in good standing under the laws of the state of its organization,
(ii) it is in Guarantor's direct interest to assist Tenant in procuring the
Lease, because Tenant has a direct or indirect corporate or business
relationship with Guarantor, (iii) this Guaranty has been duly and validly
authorized, executed and delivered and constitutes the binding obligation of
Guarantor, enforceable in accordance with its terms, and (iv) the execution and
delivery of this Guaranty does not violate (with or without the giving of
notice, the passage of time, or both) any order, judgment, decree, instrument or
agreement to which Guarantor is a party or by which it or its assets are
affected or bound.
12. Authority of Tenant's Representatives. If Tenant is a corporation,
partnership or other entity, Landlord shall have no obligation to inquire into
the power or authority of Tenant or any of its officers, directors, partners, or
agents acting or purporting to act on its behalf.
13. Construction; Severability; Integration. When this Guaranty is executed
by more than one Guarantor, the word "Guarantor" shall mean all and any one or
more of them. Words used in this Guaranty in the masculine or neuter gender
shall include the masculine, neuter and feminine gender, and words used in this
Guaranty in the singular shall include the plural and vice versa, wherever the
context so reasonably requires. If any provision of this Guaranty or the
application thereof to any party or
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circumstance is held invalid, void, inoperative, or unenforceable, the remainder
of this Guaranty and the application of such provision to other parties or
circumstances shall not be affected thereby, the provisions of this Guaranty
being severable in any such instance. This Guaranty is the entire and only
agreement between Guarantor and Landlord respecting the guaranty of the Lease,
and all representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth in this Guaranty, are
superseded.
14. Governing Law; Jurisdiction. This Guaranty is governed by and construed
according to the laws of the State of Illinois applicable to contracts made and
to be performed in such state. In order to induce Landlord to accept this
Guaranty, and as a material part of the consideration therefor, Guarantor (i)
agrees that all actions or proceedings relating directly or indirectly to this
Guaranty shall, at the option of Landlord, be litigated in courts located within
the State of Illinois, and (ii) consents to the jurisdiction of any such court
and consents to the service of process in any such action or proceeding by
personal delivery or any other method permitted by law. Guarantor designates
_____________________________________ as its agent for service of process, and
service may, at the option of Landlord, be made upon such person.
15. Paragraph Headings. Paragraph headings are used in this Guaranty for
convenience only and shall not be used in any manner to construe, limit, define
or interpret any provision of this Guaranty.
16. Time of Essence. Time is of the essence in the performance by Guarantor
of each and every obligation under this Guaranty.
17. Notices. Any notice which a party shall be requested or shall desire to
give to the other under this Guaranty shall be given by personal delivery or by
depositing the same in the United States mail, first class postage pre-paid,
addressed to Landlord at its address set forth above and to Guarantor at its
address set forth above, and such notices shall be deemed duly given on the date
of personal delivery or three (3) days after the date of mailing as aforesaid.
Landlord and Guarantor may change their address for purposes of receiving
notices under this Guaranty by giving written notice thereof to the other party
in accordance with this Section. Guarantor shall give Landlord immediate written
notice of any change in its address.
18. Advice of Counsel. Guarantor has had the opportunity to review this
Guaranty with its legal counsel, and such counsel has explained to it the
meaning and significance of the provisions of this Guaranty, including, but not
limited to, the waivers and consents contained in this Guaranty, and answered
any questions that it had regarding the meaning, significance and effect of the
provisions of this Guaranty.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty the day and year
first above written.
GUARANTOR:
Cargo Connection Logistics Holding, Inc.
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a Florida Corporation
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By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Its: President
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