EXHIBIT 10.6
GUARANTY OF LEASE
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THIS GUARANTY OF LEASE (this "GUARANTY") is dated as of January 31,
2005 (the "EFFECTIVE DATE") by CARGO CONNECTIONS LOGISTIC HOLDING, INC., a
Florida corporation ("GUARANTOR"), for the benefit of MP CARGO ORD PROPERTY LLC,
a Delaware limited liability company ("LANDLORD").
RECITALS:
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WHEREAS, pursuant to that certain Commercial Lease Agreement (the
"LEASE AGREEMENT") dated as of January 31, 2005, by and between the
Landlord and Underwing International, LLC, a Delaware limited liability company
("TENANT"), the Landlord has agreed to lease to the Tenant, and the Tenant has
agreed to lease from the Landlord, that certain property and the improvements
located thereon commonly known as 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx; and
WHEREAS, in order to entice the Landlord to enter into the Lease
Agreement, the Guarantor has offered to execute this Guaranty guaranteeing
the full performance of the obligations of the Tenant under the Lease Agreement;
and
WHEREAS, the Guarantor is an affiliate of the Tenant; and
WHEREAS, the Guarantor will substantially benefit from the Lease
Agreement; and
WHEREAS, the Guarantor desires that the Landlord enter into the Lease
Agreement with the Tenant;
NOW, THEREFORE, for valuable consideration herein acknowledged and the
execution of the Lease Agreement by the Tenant, the Guarantor hereby
unconditionally guarantees the full performance of each and all of the terms,
covenants, and conditions of the Lease Agreement to be kept and performed by
said Tenant, or any successors in interest, including the payment of all rentals
and other charges to accrue thereunder. The Lease Agreement is incorporated
herein by this reference. The Guarantor further agrees as follows:
1. GUARANTY. Guarantor absolutely, unconditionally and irrevocably
undertakes and guarantees, for the benefit of Landlord and each and every
present and future holder or holders of the Lease Agreement or assignee or
assignees of the Lease Agreement, that all obligations of Tenant and other
performance obligations of Tenant under the Lease Agreement, including but not
limited to the timely payment of Rent (as defined in the Lease Agreement)
(collectively such obligations shall be referred to herein as "OBLIGATIONS"),
shall be fully and faithfully completed, to the extent that Tenant fails to do
so at any and all applicable times.
2. REPRESENTATIONS AND WARRANTIES. The following shall constitute
representations and warranties of the Guarantor and the Guarantor hereby
acknowledges that Landlord intends to make the Lease Agreement in reliance
thereon:
a. Guarantor is not in default and no event has occurred that
with the passage of time and/or the giving of notice will constitute a
default under any agreement to which Guarantor is a party, the effect
of which will impair performance by Guarantor of its obligations under
this Guaranty. Neither the execution and delivery of this Guaranty nor
compliance with the terms and provisions hereof will, to the best of
Guarantor's knowledge, violate any applicable law, rule, regulation,
judgment, decree or order, or will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of any
indenture, mortgage, instrument, document, agreement or contract of any
kind that creates, represents, evidences or provides for any lien,
charge or encumbrance upon any of the property or assets of Guarantor,
or any other indenture, mortgage, instrument, document, agreement or
contract of any kind to which Guarantor is a party or to which
Guarantor or the property of Guarantor may be subject.
b. There is no litigation, arbitration, governmental or
administrative proceedings, actions, examinations, claims or demands
pending, or to Guarantor's knowledge, threatened that could adversely
affect performance by Guarantor of its obligations under this Guaranty.
c. Neither this Guaranty nor any statement or certification as
to facts previously furnished or required herein to be furnished to
Landlord by Guarantor contains any material inaccuracy or untruth in
any representation, covenant or warranty or omits to state a fact
material to this Guaranty.
d. Guarantor will derive substantial benefit, directly or
indirectly, from the Lease Agreement to Tenant and from the making of
this Guaranty by Guarantor.
e. This Guaranty is executed at the request of Tenant, the
Landlord has made no representation to the Guarantor as to the
creditworthiness of Tenant and the Guarantor assumes the responsibility
for keeping informed of the financial condition of Tenant and all other
circumstances related to the risk of nonpayment or nonperformance of
the Obligations, and agrees that Landlord shall have no duty to advise
the Guarantor of any information known to Landlord regarding any such
financial conditions or circumstances.
3. CONTINUING GUARANTY. Guarantor agrees that performance of the
Obligations by Guarantor shall be a primary obligation, shall not be
subject to any counterclaim, set-off, abatement, deferment or defense based upon
any claim that Guarantor may have against Landlord (however, Guarantor may
pursue a separate action against Tenant, any other guarantor of the Obligations
or any other person or entity), and this Guaranty shall remain in full force and
effect without regard to, and shall not be released, discharged or affected in
any way by, any circumstance or condition (whether or not Guarantor shall have
any knowledge thereof), including without limitation:
a. any lack of validity or enforceability of any of the Lease
Agreement;
b. any termination, amendment, modification or other change
in the Lease Agreement;
c. any failure, omission or delay on the part of Tenant,
Guarantor, any other guarantor of the Obligations or Landlord
to conform or comply with any term of the Lease Agreement or any
failure of Landlord to give notice of any Default (as defined in
the Lease Agreement);
d. any waiver, compromise, release, settlement or extension of
time of payment or performance or observance of any of the obligations
or agreements contained in the Lease Agreement;
e. any action or inaction by Landlord under or in respect of
the Lease Agreement, any failure, lack of diligence, omission or delay
on the part of Landlord to perfect, enforce, assert or exercise any
lien, security interest, right, power or remedy conferred on it in the
Lease Agreement, or any other action or inaction on the part of
Landlord;
f. any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, liquidation, marshalling of
assets and liabilities or similar events or proceedings with respect to
Tenant, Guarantor or any other guarantor of the Obligations, as
applicable, or any of their respective property or creditors, or any
action taken by any trustee or receiver or by any court in any such
proceeding;
g. any merger or consolidation of Tenant into or with any
entity, or any sale, lease or transfer of any of the assets of Tenant,
Guarantor or any other guarantor of the Obligations to any other person
or entity;
h. any change in the ownership of Tenant or any change in the
relationship between Tenant, Guarantor or any other guarantor of the
Obligations, or any termination of any such relationship;
i. any release or discharge by operation of law of Tenant,
Guarantor or any other guarantor of the Obligations from any obligation
or agreement contained in the Lease Agreement;
j. any defense arising out of any disability of Tenant; or
k. any other occurrence, circumstance, happening or event,
whether similar or dissimilar to the foregoing and whether foreseen or
unforeseen, which otherwise might constitute a legal or equitable
defense or discharge of the liabilities of a guarantor or surety or
which otherwise might limit recourse against Tenant or Guarantor to the
fullest extent permitted by law.
4. WAIVERS. Each Guarantor expressly and unconditionally waives (i)
notice of any of the matters referred to in the Lease Agreement, (ii) all
notices which may be required by statute, rule of law or otherwise, now or
hereafter in effect, to preserve intact any rights against Guarantor, including,
without limitation, notice of acceptance of this Guaranty, any demand,
presentment and
protest, notice of protest, notice of dishonor, proof of notice of
non-payment under the Lease Agreement and notice of any Default or any failure
on the part of Tenant, Guarantor or any other guarantor of the Obligations to
perform or comply with any covenant, agreement, term or condition of the Lease
Agreement, (iii) any right to the enforcement, assertion or exercise against
Tenant, Guarantor or any other guarantor of the Obligations of any right or
remedy conferred under the Lease Agreement, (iv) any requirement of diligence on
the part of any person or entity, (v) to the fullest extent permitted by law and
except as otherwise expressly provided in this Guaranty or the Lease Agreement,
any claims based on allegations that Landlord has failed to act in a
commercially reasonable manner or failed to exercise Landlord's obligation of
good faith and fair dealing, (vi) any requirement to exhaust any remedies or to
mitigate the damages resulting from any default under the Lease Agreement, (vii)
any right to require Landlord to proceed against Tenant, to proceed against any
other person, or to proceed against or exhaust any security held from Tenant or
any other person, (viii) any right to have the property of Tenant first applied
to discharge the Obligations, allowing Landlord, at its option, to exercise any
right or remedy it may have against Tenant or any security held by Landlord,
(ix) any defense based upon Landlord's failure to disclose to Guarantor any
information concerning Tenant's financial condition or any other circumstances
bearing on Tenant's ability to pay and perform its obligations under the Lease
Agreement, (x) any defense based upon any statute or rule of law which provides
that the obligations of a surety may be neither larger in amount nor in any
other respects more burdensome than that of a principal, and (xi) the benefit of
or right to assert any statute of limitations affecting the liability of
Guarantor hereunder or the enforcement thereof, to the extent permitted by law,
and any part payment by Tenant or other circumstance which operates to toll any
statute of limitations as to Tenant shall also serve to toll the statute of
limitations as to Guarantor.
5. SUBORDINATION. Guarantor agrees that any and all present and
future debts and obligations of Tenant to Guarantor hereby are subordinated
to the claims of Landlord and hereby are assigned by Guarantor to Landlord as
security for the Obligations and Guarantor's obligations under this Guaranty.
6. SUBROGATION WAIVER. Until the Obligations are paid in full and
all periods under applicable bankruptcy law for the contest of any payment
by Guarantor or Tenant as a preferential or fraudulent payment have expired,
Guarantor knowingly, and with advice of counsel, waives, relinquishes, releases
and abandons all rights and claims to indemnification, contribution,
reimbursement, subrogation and payment which Guarantor may now or hereafter have
by and from Tenant and the successors and assigns of Tenant, for any payments
made by Guarantor to Landlord, including, without limitation, any rights which
might allow Tenant, Tenant's successors, a creditor of Tenant, or a trustee in
bankruptcy of Tenant to claim in bankruptcy or any other similar proceedings
that any payment made by Tenant or Tenant's successors and assigns to Landlord
was on behalf of or for the benefit of Guarantor and that such payment is
recoverable by Tenant, a creditor or trustee in bankruptcy of Tenant as a
preferential payment, fraudulent conveyance, payment of an insider or any other
classification of payment which may otherwise be recoverable from Landlord.
7. REINSTATEMENT. The obligations of Guarantor pursuant to this
Guaranty shall continue to be effective or automatically be reinstated, as
the case may be, if at any time payment of any of the Obligations or Guarantor's
obligations under this Guaranty are rescinded or otherwise
must be restored or returned by Landlord upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Guarantor or Tenant or otherwise,
all as though such payment had not been made.
8. FINANCIAL STATEMENTS. Guarantor represents and warrants to
Landlord that no material adverse condition has occurred in the financial
condition of Guarantor from the date hereof until the Effective Date. Guarantor
shall furnish to Landlord annual financial statements for each calendar year no
later than 90 days after the end of such years certified by Guarantor as true,
complete and correct.
9. ENFORCEMENT COSTS. If: (a) this Guaranty is placed in the hands
of one or more attorneys for collection or is collected through any legal
proceeding, (b) one or more attorneys is retained to represent Landlord in any
bankruptcy, reorganization, receivership or other proceedings affecting
creditors' rights and involving a claim under this Guaranty, or (c) one or more
attorneys is retained to represent Landlord in any other proceedings whatsoever
in connection with this Guaranty, then Guarantor shall pay to Landlord upon
demand all reasonable fees, costs and expenses incurred by Landlord in
connection therewith, including, without limitation, reasonable attorney's fees,
court costs and filing fees (all of which are referred to herein as "ENFORCEMENT
COSTS"), in addition to all other amounts due hereunder.
10. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY. This
Guaranty shall inure to the benefit of Landlord and its successors and
assigns. This Guaranty shall be binding on Guarantor and the heirs, legatees,
successors and assigns of Guarantor. If this Guaranty is executed by more than
one person, it shall be the joint and several undertaking of each of the
undersigned. Regardless of whether this Guaranty is executed by more than one
person, it is agreed that the undersigned's liability hereunder is several and
independent of any other guarantees or other obligations at any time in effect
with respect to the Obligations or any part thereof and that Guarantor's
Liability hereunder may be enforced regardless of the existence, validity,
enforcement or non-enforcement of any such other guarantees or other
Obligations.
11. NO WAIVER OF RIGHTS. No delay or failure on the part of
Landlord to exercise any right, power or privilege under this Guaranty or
the other Lease Agreement shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege shall preclude any other or
further exercise thereof or the exercise of any other power or right, or be
deemed to establish a custom or course of dealing or performance between the
parties hereto. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law. No notice to or demand on
Guarantor in any case shall entitle Guarantor to any other or further notice or
demand in the same, similar or other circumstance.
12. AUTHORITY. If Tenant is a corporation, each individual signing
this Lease Agreement on behalf of Tenant represents and warrants that he is
duly authorized to execute and deliver this Lease Agreement on behalf of the
corporation and that this Lease Agreement is binding on Tenant in accordance
with its terms. Tenant shall, at Landlord's request, deliver a certified copy of
a resolution of its board of directors authorizing such execution. If Tenant is
a partnership, each individual signing this Lease Agreement on behalf of Tenant
represents and warrants that he is a general partner duly authorized to execute
and deliver this Lease Agreement on behalf of the
partnership and that this Lease Agreement is binding on Tenant in
accordance with its terms. Tenant shall, at Landlord's request, deliver a copy
of Tenant's partnership agreement showing authority for such execution.
13. MODIFICATION. The terms of this Guaranty may be waived,
discharged, or terminated only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. No amendment, modification, waiver or other change of any of the
terms of this Guaranty shall be effective without the prior written consent of
Landlord.
14. JOINDER. Any action to enforce this Guaranty may be brought
against Guarantor without any reimbursement or joinder of Tenant or any
other guarantor of the Obligations in such action.
15. SEVERABILITY. If any provision of this Guaranty is deemed to be
invalid by reason of the operation of law, or by reason of the
interpretation placed thereon by any administrative agency or any court,
Guarantor and Landlord shall negotiate an equitable adjustment in the provisions
of the same in order to effect, to the maximum extent permitted by law, the
purpose of this Guaranty and the validity and enforceability of the remaining
provisions, or portions or applications thereof, shall not be affected thereby
and shall remain in full force and effect.
16. APPLICABLE LAW. This Guaranty is governed as to validity,
interpretation, effect and in all other respects by laws and decisions of the
State of Illinois.
17. NOTICE. All notices, communications and waivers under this
Guaranty shall be in writing and shall be (i) delivered in person or (ii)
mailed, postage prepaid, either by registered or certified mail, return receipt
requested, (iii) by facsimile, or (iv) by overnight express carrier, addressed
in each case as follows:
To Landlord: Cargo ORO Property LLC
c/o Cargo Ventures LLC
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to: Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
To Guarantor: Cargo Connection Logistics Holding, Inc.
000 Xxxxxxx Xxx.
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000 (Fax)
With a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
or to any other address as to any of the parties hereto, as such party
shall designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this Section 18 shall be deemed received (i) if
personally delivered or delivered by facsimile, then on the date of delivery,
(ii) if sent by overnight, express carrier, then on the next federal banking day
immediately following the day sent, or (iii) if sent by registered or certified
mail, then on the earlier of the third federal banking day following the day
sent or when actually received.
18. CONSENT TO JURISDICTION. TO INDUCE LANDLORD TO ACCEPT THIS
GUARANTY, THE GUARANTOR IRREVOCABLY AGREES THAT, SUBJECT TO LANDLORD'S
SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF
OR RELATED TO THIS GUARANTY WILL BE LITIGATED IN COURTS HAVING SITUS IN CHICAGO,
ILLINOIS. THE GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
COURT LOCATED WITHIN XXXX COUNTY, ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS
AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL
DIRECTED TO GUARANTOR AT THE ADDRESS STATED HEREIN AND SERVICE SO MADE WILL BE
DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.
19. WAIVER OF JURY TRIAL. GUARANTOR AND LANDLORD (BY ACCEPTANCE
HEREOF), HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. GUARANTOR AGREES THAT IT WILL NOT ASSERT
ANY CLAIM AGAINST LANDLORD ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
20. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement
between Landlord and Guarantor with respect to the guaranty by Guarantor of
the Obligations. This Guaranty supersedes all prior agreements and
understandings, if any, with respect to guaranty by Guarantor
of the Obligations. No condition or conditions precedent to the effectiveness
of this Guaranty exist. This Guaranty shall be effective upon execution by
Guarantor and delivery to Landlord.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Guarantor has executed: this Guaranty of Lease as
of the Effective Date.
CARGO CONNECTION LOGISTICS
HOLDING, INC., a Florida corporation
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Its: President
WITNESS: By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
