Exhibit
10.34
GUARANTY BY
CORPORATION
This Guaranty, dated as of April 6, 2007, is
made by Pacific CMA, Inc, a Delaware corporation (the
“Guarantor”), for the benefit of Well 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. Guarantor’s Representations and
Warranties . The
Guarantor represents and warrants to the Lender that (i) the
Guarantor is a corporation, duly organized and existing in good
standing and has full power and authority to make and deliver this
Guaranty; (ii) the execution, delivery and performance of this
Guaranty by the Guarantor have been duly authorized by all
necessary action of its directors and shareholders and do not and
will not violate the provisions of, or constitute a default under,
any presently applicable law or its Constituent Documents or any
agreement presently binding on it; (iii) this Guaranty has
been duly executed and delivered by the authorized Officers of the
Guarantor and constitutes its lawful, binding and legally
enforceable obligation; and (iv) the authorization, execution,
delivery and performance of this Guaranty do not require
notification to, registration with, or consent or approval by, any
federal, state or local regulatory body or administrative agency.
The Guarantor represents and warrants to the Lender that the
Guarantor has a direct and substantial economic interest in the
Borrowers and expects to derive substantial benefits therefrom and
from any loans, credit transactions, financial accommodations,
discounts, purchases of property and other transactions and events
resulting in the creation of the Indebtedness guarantied hereby,
and that this Guaranty is given for a corporate purpose. The
Guarantor agrees to rely exclusively on the right to revoke this
Guaranty prospectively as to future transactions, in accordance
with paragraph 4, if at any time, in the opinion of the directors
or officers, the benefits then being received by the Guarantor in
connection with this Guaranty are not sufficient to warrant the
continuance of this Guaranty as to the future Indebtedness of the
Borrowers. Accordingly, so long as this Guaranty is not revoked
prospectively in accordance with paragraph 4, the Lender may rely
conclusively on a continuing warranty, hereby made, that the
Guarantor continues to be benefited by this Guaranty and the Lender
shall have no duty to inquire into or confirm the receipt of any
such benefits, and this Guaranty shall be effective and enforceable
by the Lender without regard to the receipt, nature or value of any
such benefits.
4. Unconditional Nature . No act or thing need occur to establish the
Guarantor’s liability 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.
5. Dissolution or Insolvency of
Guarantor . The
dissolution or adjudication of bankruptcy 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. If the Guarantor shall be
dissolved 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 Indebtedness,
whether due and payable or unmatured, shall be immediately due and
payable without demand or notice thereof.
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 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
