Exhibit
10.36
GUARANTY
THIS GUARANTY, dated as of April 6, 2007, is
made by ALFRED LAM (the “Guarantor”) for the benefit of
Wells Fargo Bank, National Association (with its participants,
successors and assigns, the “Lender”), acting through
its Wells Fargo Business Credit operating division.
The Lender and Airgate International
Corporation, a New York corporation, Airgate International
Corporation (Chicago), an Illinois corporation, and Paradigm
International Inc., a Florida corporation (collectively and
individually referred to as the “Borrowers”), are
parties to a Credit and Security Agreement of even date herewith
(as the same may be amended, supplemented or restated from time to
time, the “Credit Agreement”) pursuant to which the
Lender may make advances and extend other financial accommodations
to the Borrowers.
As a condition to extending such credit to the
Borrowers, the Lender has required the execution and delivery of
this Guaranty.
ACCORDINGLY, the Guarantor, in consideration of
the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, hereby agrees as
follows:
1. Definitions . All terms defined in the Credit Agreement that
are not otherwise defined herein shall have the meanings given them
in the Credit Agreement.
2. Indebtedness Guaranteed . The Guarantor hereby absolutely and
unconditionally guarantees to the Lender the full and prompt
payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, of the Indebtedness.
3. Unconditional Guaranty . No act or thing need occur to establish the
liability of the Guarantor hereunder, and no act or thing, except
full payment and discharge of all of the Indebtedness, shall in any
way exonerate the Guarantor hereunder or modify, reduce, limit or
release the Guarantor’s liability hereunder. This is an
absolute, unconditional and continuing guaranty of payment of the
Indebtedness and shall continue to be in force and be binding upon
the Guarantor, whether or not all of the Indebtedness is paid in
full, until this Guaranty is revoked prospectively as to future
transactions, by written notice actually received by the Lender,
and such revocation shall not be effective as to the amount of
Indebtedness existing or committed for at the time of actual
receipt of such notice by the Lender, or as to any renewals,
extensions, refinancings or refundings thereof. The death or
incompetence of the Guarantor shall not revoke this Guaranty,
except upon actual receipt of written notice thereof by the Lender
and only prospectively, as to future transactions, as herein set
forth.
4. Death or Insolvency of Guarantor
. If the Guarantor shall die or
shall be or become insolvent (however defined), then the Lender
shall have the right to declare immediately due and payable, and
the Guarantor will forthwith pay to the Lender, the full amount of
all of the Indebtedness whether due and payable or unmatured. If
the Guarantor voluntarily commences or there is commenced
involuntarily against the Guarantor a case under the United States
Bankruptcy Code, the full amount of all of the Indebtedness,
whether due and payable or unmatured, shall be immediately due and
payable without demand or notice thereof.
5. Limited Guaranty . Notwithstanding the aggregate amount of the
Indebtedness which may from time to time be outstanding, the
liability of the Guarantor hereunder shall be limited to a
principal amount of One Million Five Hundred Thousand Dollars
($1,500,000), plus accrued interest thereon and all
attorneys’ fees, collection costs and enforcement expenses
referable thereto. The Indebtedness may be created and continued in
any amount, whether or not in excess of such principal amount,
without affecting or impairing the Guarantor’s liability
hereunder, and the Lender may pay (or allow for the payment of) the
excess out of any sums received by or available to the Lender on
account of the Indebtedness from the Borrowers or any other person
(except the Guarantor), from their properties, out of any
collateral security or from any other source, and such payment (or
allowance) shall not reduce, affect or impair the Guarantor’s
liability hereunder. Any payment made by the Guarantor under this
Guaranty shall be effective to reduce or discharge such liability
only if accompanied by a written transmittal document, received by
the Lender, advising the Lender that such payment is made under
this Guaranty for such purpose.
6. Subrogation . The Guarantor will not exercise or enforce any
right of contribution, reimbursement, recourse or subrogation
available to the Guarantor as to any of the Indebtedness, or
against any person liable therefor, or as to any collateral
security therefor, unless and until all of the Indebtedness shall
have been fully paid and discharged.
7. Enforcement Expenses . The Guarantor will pay or reimburse the
Lender for all costs, expenses and reasonable attorneys’ fees
paid or incurred by the Lender in endeavoring to collect and
enforce the Indebtedness and in enforcing this Guaranty.
8. Lender’s Rights . The Lender shall not be obligated by reason of
its acceptance of this Guaranty to engage in any transactions with
or for the Borrowers. Whether or not any existing relationship
between the Guarantor and the Borrowers has been changed or ended
and whether or not this Guaranty has been revoked, the Lender may
enter into transactions resulting in the creation or continuance of
the Indebtedness and may otherwise agree, consent to or suffer the
creation or continuance of any of the Indebtedness, without any
consent or approval by the Guarantor and without any prior or
subsequent notice to the Guarantor. The Guarantor’s liability
shall not be affected or impaired by any of the following acts or
things (which the Lender is expressly authorized to do, omit or
suffer from time to time, both before and after revocation of this
Guaranty, without consent or approval by or notice to the
Guarantor): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all of the
Indebtedness; (ii) one or more extensions or renewals of the
Indebtedness (whether or not for longer than the original period)
or any modification of the interest rates, maturities, if any, or
other contractual terms applicable to any of the Indebtedness or
any amendment or modification of any of the terms or provisions of
any loan agreement or other agreement under which the Indebtedness
or any part thereof arose; (iii) any waiver or indulgence
granted to the Borrowers, any delay or lack of diligence in the
enforcement of the Indebtedness or any failure to institute
proceedings, file a claim, give any required notices or otherwise
protect any of the Indebtedness; (iv) any full or partial
release of, compromise or settlement with, or agreement not to sue,
the Borrowers or any guarantor or other person liable in respect of
any of the Indebtedness; (v) any release, surrender,
cancellation or other discharge of any evidence of the Indebtedness
or the acceptance of any instrument in renewal or substitution
therefor; (vi) any failure to obtain collateral security
(including rights of setoff) for the Indebtedness, or to see to the
proper or sufficient creation and perfection thereof, or to
establish the priority thereof, or to preserve, protect, insure,
care for, exercise or enforce any collateral security; or any
modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment,
limitation, loss or discharge of any collateral security;
(vii) any collection, sale, lease or disposition of, or any
other foreclosure or enforcement of or realization on, any
collateral security; (viii) any assignment, pledge or other
transfer of any of the Indebtedness or any evidence thereof;
(ix) any manner, order or method of application of any
payments or credits upon the Indebtedness; and (x) any
election by the Lender under Section 1111(b) of the United States
Bankruptcy Code. The Guarantor waives any and all defenses and
discharges available to a surety, guarantor or accommodation
co-obligor.
9. Waivers by Guarantor . The Guarantor waives any and all defenses,
claims, setoffs and discharges of the Borrowers, or any other
obligor, pertaining to the Indebtedness, except the defense of
discharge by payment in full. Without limiting the generality of
the foregoing, the Guarantor will not assert, plead or enforce
against the Lender any defense of waiver, release, discharge or
disallowance in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be
available to the Borrowers or any other person liable in respect of
any of the Indebtedness, or any setoff available against the Lender
to the Borrowers or any other such person, whether or not on
account of a related transaction. The Guarantor expressly agrees
that the Guarantor shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the
Borrowers or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision. The liability of the
Guarantor shall not be affected or impaired by any voluntary or
involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition
or rea
