EXHIBIT 10.02
GUARANTY OF PAYMENT
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GUARANTY OF PAYMENT (this "Guaranty") dated as of December 31, 2007, by
by Cargo Connection Logistics Corp., a Delaware corporation with its principal
place of business located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 ("CCLC")
and Cargo Connection Logistics-International, Inc., an Illinois corporation with
its principal place of business located at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000 ("International", and individually and collectively with
International, the "Guarantor") in favor of Emplify HR Services, Inc., a Florida
corporation, with principal offices located at 000 XX 00xx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Lender has made a loan (the "Loan") to Cargo Connection
Logistics Holding, Inc., a Florida corporation (the "Borrower") in the principal
amount of $800,000.00 evidenced by a promissory note of even date herewith
issued by the Borrower to the Lender (the "Note");
WHEREAS, the Guarantor will derive substantial benefit as a result of the
accommodations to be granted by the Lender pursuant to the Note including,
without limitation the benefit of the financial accommodations provided to the
Borrower in connection therewith;
WHEREAS, the Lender requires, as a condition to the execution by it of
making the Loan, that the Guarantor execute and deliver this Guaranty; and
WHEREAS, the Guarantor wishes to execute and deliver to the Lender this
Guaranty, to induce the Lender to make the Loan.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby agrees with the Lender as follows:
SECTION 1. Defined Terms.
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The following terms when used herein shall have the following meanings when
used herein:
"Borrower" shall have the meaning set forth in the recitals.
"Default Rate" shall have the meaning set forth in the Note.
"Lender" shall have the meaning set forth in the recitals.
"Loan" shall have the meaning set forth in the recitals.
"Loan Documents" means, collectively, the Note, the Security Agreement, and
any and all other documents, affidavits and/or certificates evidencing, securing
or executed in connection with the Loan, all as may be modified from time to
time.
"Note" shall have the meaning set forth in the recitals.
"Obligations" shall have the meaning set forth in Section 2 hereof.
"Security Agreement" means that certain Security Agreement dated the date
hereof among the Borrower, the Guarantor and the Lender, to secure the Note, as
the same may hereafter, from time to time, be amended, modified, extended,
consolidated, increased, supplemented, spread or restated.
SECTION 2. Guaranty.
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The Guarantor hereby irrevocably, absolutely and unconditionally guarantees
the prompt payment by the Borrower, as and when due and payable (whether by
scheduled maturity, acceleration, demand or otherwise), of the following
(collectively, the "Obligations"):
(a) all principal payable under the Note; and
(b) all interest, additional interest, fees, late charges, penalties,
costs of collection or enforcement (including attorney's fees), if any, and
other charges payable in respect of the Note and the Loan Documents; and
Without limiting the generality of subparagraph (b) above, the Obligations
shall include the payment of any and all interest due under the Loan Documents
(including interest computed at any applicable default or post-maturity rate)
including, without limitation, (i) any and all interest due after the occurrence
of a default and the acceleration by the Lender of the principal balance of the
Loan and the Note; (ii) any and all interest due after the stated maturity date
of the Loan and the Note; and (iii) any and all interest due on the principal
portion of any deficiency between the outstanding principal balance of the Loan
and the Note and the amount realized in foreclosure (or deed in lieu thereof).
SECTION 3. Guarantor's Obligations Unconditional.
-------------------------------------
(a) Guarantor hereby guarantees that the Obligations will be paid strictly
in accordance with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Lender with respect thereto. Subject to
Section 2 above, the Obligations of Guarantor hereunder shall be absolute and
unconditional irrespective of: (i) the validity, regularity or enforceability of
the Loan Documents or any other instrument or document executed or delivered in
connection therewith; (ii) any alteration, amendment, modification, release,
termination or cancellation of any Loan Document, or any change in the time,
manner or place of payment of, or in any other term in respect of, all or any of
the obligations of the Borrower contained in any of the Loan
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Documents; (iii) any extension of the maturity of the Loan or Note or any waiver
of, or consent to any departure from, any of the provisions of any Loan
Document; (iv) any exchange, addition, subordination or release of, or
non-perfection of any lien on or security interest in, any collateral; (v) any
alteration, modification, amendment, release, termination or cancellation of, or
waiver of or consent to any departure from, any other indemnity or guaranty
given in connection with the Loan; (vi) any negligence by the Lender in the
administration or enforcement of the Obligations or any delay in enforcing the
Obligations or in realizing on any collateral for the Obligations or any
extension in the maturity of the Loan or Note; (vii) the death, incompetence,
disability, insolvency or bankruptcy of any Guarantor; (viii) any failure by the
Lender to advise Guarantor of adverse changes in the financial condition of the
Borrower, or any matters relating to the Loan; or (ix) any other circumstance
which might otherwise constitute a defense (legal, equitable or otherwise)
available to, or a discharge of, the Borrower or any other guarantor with
respect to any or all of the Obligations of the Guarantor in respect hereof. The
Guarantor agrees that any exculpatory language contained in any of the Loan
Documents shall in no event apply to this Guaranty, and will not prevent the
Lender from proceeding against Guarantor to enforce this Guaranty.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full
force and effect until the satisfaction in full of all of the Obligations and
the payment in full of all amounts, if any, which become payable pursuant to
Section 4 hereof; and (ii) notwithstanding clause (i) above, shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment of any of the Obligations (to the extent payable in money) is rescinded
or must otherwise be returned by the Lender to the Borrower or Guarantor or to
any guarantor, trustee, receiver or other representative of any of them, upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all
as though such payment had not been made.
SECTION 4. Indemnity.
---------
Without limiting the generality of Section 2 hereof, Guarantor shall
indemnify, defend (with counsel acceptable to the Lender) and hold harmless the
Lender from and against all damages, losses, liabilities, obligations,
penalties, claims, demands, defenses, judgments, suits, proceedings, penalties,
expenditures, costs, disbursements and expenses (including, without limitation,
court costs and attorneys' and experts' fees and expenses) of any kind or nature
whatsoever which may, at any time or from time to time, be imposed upon,
incurred by or asserted or awarded against the Lender by reason of, or arising
from or out of, the Lender's enforcement (or attempted enforcement) of this
Guaranty or any of the other Loan Documents (except to the extent arising from
Lenders own gross negligence or willful misconduct).
SECTION 5. Waiver.
------
Guarantor hereby waives (i) promptness and diligence; (ii) notice of
acceptance and notice of the incurrence of any obligation by the Borrower; (iii)
notice of any actions taken by the Lender, the Borrower or any interested party
under any Loan Document or any other agreement or instrument relating thereto;
(iv) all other notices, demands and protests, and all other formalities of every
kind in connection with the enforcement of the Obligations or of the obligations
of Guarantor hereunder, the omission of or delay in which, but for the
provisions of
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this Section 5, might constitute grounds for relieving Guarantor of Guarantor's
obligations hereunder; (v) the right to a trial by jury of any dispute arising
under, or relating to, this Guaranty or the Loan Documents; (vi) any right or
claim of right to cause a marshaling of the Borrower's assets or to cause the
Lender to proceed against any security for the Note before proceeding against
Guarantor; and (vii) any requirement that the Lender protect, secure, perfect or
insure any security interest or lien in or on any property subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any collateral as a precondition to the Lender's right to enforce this Guaranty
in accordance with its terms. Without limiting the generality of the foregoing,
Guarantor hereby waives any defense which may arise by reason of (A) the
incapacity, lack of authority, death or disability of, or revocation hereof by,
any person or entity, (B) the failure of the Lender to file or enforce any claim
against the estate (in probate, bankruptcy or any other proceedings) of any
person or entity, or (C) any defense based upon an election of remedies by the
Lender. Until such date on which all of the Obligations and other obligations
arising under this Guaranty, including, without limitation, the obligations
arising under Section 4 hereof, have been satisfied in full.
SECTION 6. Subrogation; Subordination.
--------------------------
Until such date on which all of the Obligations and other obligations
arising under this Guaranty, including without limitation the obligations
arising under Section 4 hereof, have been satisfied in full, the Guarantor shall
not exercise any claim, right or remedy which Guarantor may now have or
hereafter acquire against the Borrower that arises hereunder and/or from the
performance by Guarantor, including, without limitation, any claim, remedy, or
right of subrogation, reimbursement, exoneration, contribution, indemnification,
or participation in any claim, right, or remedy of the Lender against the
Borrower or in any security which the Lender now has or hereafter acquires,
whether or not such claim, right, or remedy arises by contract, statute, under
common law or otherwise.
SECTION 7. Events of Default; Remedies.
---------------------------
Each of the following events shall constitute an Event of Default under
this Guaranty:
(i) If any representation or warranty by Guarantor herein or in any
writing furnished in connection with or pursuant to this Guaranty shall be false
in any material respect on the date as of which made;
(ii) If Guarantor defaults in the performance or observance of any
agreement, covenant, term or condition contained in this Guaranty or in any of
the Loan Documents;
(iii) If Guarantor shall:
(A) call a meeting of or make an assignment for the benefit of
creditors,
(B) file a petition in bankruptcy, or be adjudicated insolvent
or bankrupt,
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(C) suffer an order for relief under any federal bankruptcy
law, or petition or apply to any tribunal for the appointment of a receiver or a
trustee for Guarantor or a substantial part of Guarantor's assets,
(D) commence any proceedings under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect,
(E) have filed against Guarantor a petition, application or
proceeding described above in subdivision (D) or such a petition, application or
proceeding shall have been commenced against Guarantor, which remains
undismissed or unstayed for a period of sixty (60) days or more,
(F) by any act or omission indicate Guarantor's consent to,
approval of or acquiescence in any petition, application or proceeding described
above in subdivision (D) or in the appointment of a custodian, receiver or any
trustee for it or any substantial part of any of Guarantor's property,
(G) suffer any such custodianship, receivership or trusteeship
to continue undischarged for a period of forty-five (45) days or more,
(H) conceal, remove or permit to be concealed or removed, any
part of Guarantor's property, with intent to hinder, delay or defraud its
creditors or any of them,
(I) make or suffer a transfer of any of its property which may
be fraudulent under any bankruptcy, fraudulent conveyance or similar law,
(J) make any transfer of Guarantor's property to or for the
benefit of a creditor at a time when other creditors similarly situated have not
been paid,
(K) shall suffer or permit, while insolvent, any creditor to
obtain a lien upon any of Guarantor's property through legal proceedings or
distraint which is not vacated within forty-five (45) days from the date
thereof,
(L) generally not pay Guarantor's debts as such debts become
due, or
(M) there shall be an Event of Default under the Security
agreement.
Upon the occurrence of an Event of Default, the Lender, at its option, may
declare all sums guaranteed hereunder to be and become forthwith due and payable
under the terms of and with the effect provided in this Guaranty, regardless of
whether (i) a default by the Borrower shall have occurred under any of the Loan
Documents or (ii) the Lender shall have exercised any of its rights or remedies
under any of the Loan Documents.
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SECTION 8. Representations and Warranties.
------------------------------
Guarantor represents and warrants to the Lender as follows:
(a) The execution, delivery and performance by Guarantor of this
Guaranty do not contravene any law or governmental rule, regulation or order
applicable to Guarantor, and no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by Guarantor of this
Guaranty.
(b) The execution, delivery and performance by Guarantor of this Guaranty
do not and will not (except to the extent such has been waived) contravene any
contractual restriction which is binding upon or which affects Guarantor, and do
not and will not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to any properties
of Guarantor.
(c) Guarantor (i) is a corporation duly organized, validly existing and in
good standing under the laws of the state of its organization, (ii) has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, (iii) has full corporate
power and authority to execute and deliver this Guaranty and/or the Security
Agreement, and (iv) is able to perform its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby,
(d) The execution and delivery of this Guaranty and/or the Security
Agreement, and the performance by Guarantor of its obligations hereunder and
thereunder, and the consummation of the transactions provided for herein and
therein have been duly and validly authorized by all necessary corporate action
on the part of Guarantor. This Guaranty and the Security Agreement have been
duly executed and delivered, and constitute the valid and binding agreements of
Guarantor, enforceable against Guarantor in accordance with their respective
terms.
(e) There is no action, suit or proceeding pending or, to the best of
Guarantor's knowledge, threatened against or otherwise affecting Guarantor
before any court, arbitrator or governmental departmental, commission, board,
bureau, agency or instrumentality, which may materially adversely affect the
financial condition of Guarantor or the ability of Guarantor to perform
Guarantor's obligations under this Guaranty.
(f) The Guarantor has reviewed and approved all the Loan Documents,
including, without limitation, the Note, the Security Agreement, and all
exhibits thereto.
SECTION 9. Notices, Etc.
------------
All notices, or other communications required or permitted hereunder shall
be in writing and shall be personally delivered, delivered by nationally
recognized overnight courier, mailed by registered or certified mail, postage
prepaid, with return receipt requested, or by facsimile transmission
electronically confirmed, and addressed as follows:
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If to Guarantor to: Cargo Connection Logistics Corp.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
and
Cargo Connection Logistics-International, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to: Davidoff Xxxxxx & Xxxxxxx LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Lender to: Emplify HR Services, Inc
000 XX 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
or at such other address as such party shall have furnished to each of the other
parties hereto in accordance with this paragraph 6(d), each such notice, demand,
request or other communication being deemed given (i) on the date of such
delivery by hand, (ii) on the first business day following the date of such
delivery to the overnight delivery service or facsimile transmission, or (iii)
three (3) business days following such mailing.
SECTION 10. Payments Free and Clear of Taxes, Etc.
-------------------------------------
All payments by Guarantor under this Guaranty shall be made without
set-off, counterclaim or other defense. All such payments shall be made free and
clear of and without deduction for any present or future income, stamp or other
taxes, levies, imposts, deductions, charges, fees, withholdings, liabilities,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, assessed or withheld by any jurisdiction or by any political
subdivision or taxing authority thereof or therein (whether pursuant to United
States federal, state or local law or foreign law), and all interest, penalties
or similar liabilities, excluding taxes on the Lender's overall net income (all
such non-excluded taxes, levies, imposts, deductions, charges, fees
withholdings, liabilities, restrictions and conditions hereinafter referred to
as "Taxes"). In the event that any withholding or deduction from any payment to
be made by Guarantor
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hereunder is required in respect of any Taxes pursuant to any applicable law,
rule, or regulation, then Guarantor will:
(a) pay to the relevant authority the full amount required to be so
withheld or deducted;
(b) promptly forward to the Lender an official receipt or other
documentation satisfactory to the Lender evidencing such payment to such
authority; and
(c) pay to the Lender such additional amount as is necessary to ensure
that the net amount actually received by the Lender after such withholding or
deduction (including withholdings or deductions on amounts payable under this
subsection (c) of this Section 10) will equal the full amount the Lender would
have received had no such withholding or deduction been required. If Guarantor
fails to perform its obligations under subsections (a) and (b) above, Guarantor
shall indemnify, defend (with counsel acceptable to the Lender, such approval
not to be withheld unreasonably) and hold harmless the Lender from and against
any incremental taxes, interests or penalties that may become payable as a
result to any such failure.
SECTION 11. Miscellaneous.
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(a) Guarantor shall make any payment required to be made hereunder in
lawful money of the United States of America and in same funds to the Lender at
its address specified in Section 9 hereof.
(b) In the event that any amount payable hereunder by Guarantor to the
Lender is not paid when due, the Guarantor shall pay interest on such amount at
an annual rate equal to the Default Rate set forth in the Note until such time
as such amount, together with any accrued interest thereon, shall have been paid
in full to the Lender.
(c) No provision of this Guaranty may be waived, changed, amended,
modified or discharged without an agreement in writing and signed by Guarantor
and the Lender, and no waiver of, or consent to, any departure by Guarantor from
any provision of this Guaranty shall be effective only if unless it is in
writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given and, notwithstanding anything contained to the contrary herein, all such
waivers and modifications may be given or withheld in the sole judgment of the
Lender. Guarantor hereby irrevocably waives any right to claim that any
provision of this Guaranty, including the provisions set forth in this
subsection, have been waived orally or by the acts or omissions of the Lender.
(d) The Lender may take or release other security for the payment of the
Loan, may release any party primarily or secondarily liable therefor and may
apply any other security held by it to the reduction or satisfaction of the Loan
without prejudice to any of its rights under this Guaranty.
(e) No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder or under any other Loan Document shall operate
as a waiver thereof, nor shall
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any single or partial exercise of any right preclude any other or further
exercise thereof or the exercise of any other right. The rights and remedies of
the Lender provided herein and in the Loan Documents are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law. The
rights of the Lender under any Loan Document against any party thereto are not
conditional or contingent on any attempt by the Lender to exercise any of its
rights under any other Loan Document against such party or against any other
person or entity or collateral.
(f) Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction or prohibited or unenforceable as to any person or entity
shall, as to such jurisdiction or person or entity, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction or as to any other person or entity.
(g) This Guaranty shall (i) be binding upon Guarantor and Guarantor's
successors and assigns, and (ii) inure, together with all rights and remedies of
the Lender hereunder, to the benefit of the Lender and its successors,
transferees and assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, the Lender may assign or otherwise transfer all
or any portion of its rights and obligations under this Guaranty and any Loan
Document, to any other person or entity, and such other person or entity shall
thereupon become vested with all of the rights and obligations in respect
thereof granted to the Lender herein or otherwise. None of the rights or
obligations of Guarantor hereunder may be assigned or otherwise transferred
without the prior written consent of the Lender.
(h) Guarantor hereby irrevocably and unconditionally (i) submits for
Guarantor and Guarantor's property in any legal action or proceeding relating to
this Guaranty or any Loan Document to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Eastern District of New York, and appellate courts
thereof, (ii) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court, including, without
limitation, any objection that such action or proceeding was brought in an
inconvenient court and agrees not be plead or claim the same, (iii) agrees not
to commence any legal action or proceeding relating to this Guaranty in any
jurisdiction other than those set forth in clause (i) above, (iv) agrees to
service of any and all process in any such action or proceeding to the address
set forth in Section 9 hereof, (v) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction and (vi) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(i) The Guarantor hereby acknowledges that this Guaranty is an instrument
for the payment of money only and hereby agrees that in any action brought by
the Lender in order to enforce the terms of this Guaranty, the Lender may serve
with the summons a notice of motion for summary judgment in lieu of a complaint
in accordance with the provisions of Section 3213 of the New York Civil Practice
Law and Rules.
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(j) The title of this document and the captions used herein are inserted
only as a matter of convenience and for reference and shall in no way define,
limit or describe the scope or the intent of this Guaranty or any of the
provisions hereof.
(k) If there is more than one signatory to this Guaranty, the obligations
of the signatories shall be joint and several.
(l) This Guaranty shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York applicable to contracts
made and to be performed in the State of New York, without regard to its
conflicts of laws principles.
SECTION 12. Limitation on Liability.
------------------------
NO CLAIM MAY BE MADE BY ANY GUARANTOR AGAINST THE LENDER OR THE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF THE LENDER FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR, TO THE FULLEST EXTENT PERMITTED
BY LAW, FOR ANY PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM OR CAUSE OF ACTION
(WHETHER BASED ON CONTRACT, TORT, STATUTORY LIABILITY, OR ANY OTHER GROUND)
BASED ON, ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OBLIGATIONS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH, AND EACH GUARANTOR HEREBY WAIVES, RELEASES AND AGREES
NEVER TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM NOW EXISTS
OR HEREAFTER ARISES AND WHETHER OR NOT IT IS NOW KNOWN OR SUSPECTED TO EXIST IN
ITS FAVOR.
IN WITNESS WHEREOF, each Guarantor has duly executed this Guaranty as of
the date first written above.
CARGO CONNECTION LOGISTICS CORP.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
CARGO CONNECTION LOGISTICS-INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: CEO
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF Nassau )
On the 31 day of December in the year 2007, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxxxxxxx ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacit(y/ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person(s) upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Xxxxx Demerce
---------------------------
Notary Public
ID# 01DE5099299
Expires ) 4/18/2008
