GUARANTY
Exhibit
10.36
THIS
GUARANTY,
dated
as of April 6, 2007, is made by XXXXXX XXX (the “Guarantor”) for the benefit of
Xxxxx Fargo Bank, National Association (with its participants, successors and
assigns, the “Lender”), acting through its Xxxxx 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.
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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 xxx, 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 readjustment of, or other similar
event or proceeding affecting, the Borrowers or any of their assets. The
Guarantor will not assert, plead or enforce against the Lender any claim,
defense or setoff available to the Guarantor against the Borrowers. The
Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment and protest of any instrument evidencing the Indebtedness. The Lender
shall not be required first to resort for payment of the Indebtedness to the
Borrowers or other persons, or their properties, or first to enforce, realize
upon or exhaust any collateral security for the Indebtedness, before enforcing
this Guaranty.
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10. If
Payments Set Aside, etc.
If any
payment applied by the Lender to the Indebtedness is thereafter set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of the
Borrowers or any other obligor), the Indebtedness to which such payment was
applied shall for the purpose of this Guaranty be deemed to have continued
in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
11. Additional
Obligation of Guarantor.
The
Guarantor’s liability under this Guaranty is in addition to and shall be
cumulative with all other liabilities of the Guarantor to the Lender as
guarantor, surety, endorser, accommodation co-obligor or otherwise of any of
the
Indebtedness or obligation of the Borrowers, without any limitation as to
amount, unless the instrument or agreement evidencing or creating such other
liability specifically provides to the contrary.
12. Financial
Information.
The
Guarantor will provide to the Lender annually a personal financial statement
prepared as of December 31st
listing
all assets, liabilities and net worth of the Guarantor and copies of his federal
and state tax returns and all schedules thereto. The statement will be signed
and dated and will be forwarded with the tax returns to the Lender not later
than April 30th of each year. The Guarantor acknowledges and agrees that
the Lender may at any time and from time to time without notice to the
Guarantor, investigate the Guarantor’s background, personal and credit history
and perform other due diligence concerning the Guarantor and his
creditworthiness and, in its discretion, conduct an “investigative consumer
report” (as defined in the Fair Credit Reporting Act) which may include, among
other things, interviews with persons acquainted with the Guarantor, and other
potentially intrusive investigative techniques.
13. No
Duties Owed by Lender.
The
Guarantor acknowledges and agrees that the Lender (i) has not made any
representations or warranties with respect to, (ii) does not assume any
responsibility to the Guarantor for, and (iii) has no duty to provide
information to the Guarantor regarding, the enforceability of any of the
Indebtedness or the financial condition of the Borrowers or any guarantor.
The
Guarantor has independently determined the creditworthiness of the Borrowers
and
the enforceability of the Indebtedness and until the Indebtedness is paid in
full will independently and without reliance on the Lender continue to make
such
determinations.
14. Governing
Law; Consent to Jurisdiction.
(a) This
Guaranty is to be executed and delivered within the State of New York is to
be
principally performed within the State of New York, and the Guarantor
acknowledges and agrees that the laws of the State of New York shall govern
the
construction of this Guaranty and the rights, remedies, warranties,
representations, covenants, and provisions hereof without giving effect to
the
conflict of laws rules of the State of New York.
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(b) Any
legal
action or proceeding with respect to this Guaranty or any other document,
instrument, writing or agreement related hereto, may be brought in the courts
of
the State of New York or of the United States for the Southern District of
New
York and, by execution and delivery of this Guaranty, the Guarantor hereby
irrevocably accepts for itself in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Guarantor further
irrevocably consents to the service of process out of any of the aforementioned
courts and in any action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth on the signature page hereof, such service to become effective thirty
(30) days after Guarantor has received or has refused to accept delivery of
same. Nothing contained herein shall affect the right of the Lender to service
of process in any other manner permitted by law or to commence any legal
proceedings or otherwise proceed against the Guarantor in any
jurisdiction.
(c) The
Guarantor hereby waives any rights it may have to transfer or change the venue
of any litigation brought against it by the Lender which is in any way related
to this Guaranty or any other document, instrument, writing or agreement related
hereto.
(d) The
Guarantor further agrees that final judgment against it in any action, suit
or
proceeding referred to herein shall be conclusive and may be enforced in any
other jurisdiction, within or outside the United States of America, by suit
on
the judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of its indebtedness.
(e) The
provisions of this Section 14 shall survive the repayment of the Indebtedness
of
the Borrowers to the Lender and the termination of this Guaranty.
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15. Agent
for Process.
The
Guarantor hereby irrevocably designates and appoints Xxxx Xxxx
(the
“Process Agent”) with an address 00 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as the designee, appointee and agent of the Guarantor
to receive, accept and acknowledge for and on behalf of the Guarantor and its
property service of any and all legal process, summons, notices and documents
which may be served in any such action, suit or proceeding in the case of United
States Courts for the Southern District of New York and the courts of the State
of New York, which service may be made on such designee, appointee and agent
in
accordance with legal procedures prescribed for such courts. The appointment
by
Guarantor of the Process Agent or any other process agent hereunder and
acceptance thereof by the Process Agent or any other process agent shall be
evidenced by a Process Agent Appointment Form, fully executed, substantially
in
the form of Exhibit A hereto. It is agreed that if any legal process, summons,
notice or document shall be served upon the Process Agent with respect to the
Guarantor in connection herewith, notice thereof shall promptly be provided
to
the Guarantor at the address set forth on the signature page hereof; provided,
that the failure to provide any such notice shall not affect the validity of
such service upon the Process Agent. The Guarantor agrees to take any and all
such action necessary to continue such designation in full force and effect
and
to advise the Lender of any change of address of such designee, appointee and
agent; and should said designee, appointee and agent become unavailable for
this
purpose for any reason, the Guarantor shall, within two (2) Business Days (as
such term is defined in the Loan Agreement), (i) designate a new designee,
appointee and agent within the State of New York which shall consent to act
as
such, with the powers and for the purposes specified in this Section, and
(ii) deliver to Lender a new fully executed Process Agent Appointment Form.
The Guarantor (for itself and for the Process Agent) further irrevocably
consents and agrees to the service of any and all legal process, summons,
notices, and documents out of any of the aforesaid courts in any such action,
suit or proceeding by personal delivery to its offices set forth with its
signature below or by sending copies thereof by United States registered or
certified mail, postage prepaid, or by overnight mail or by courier, to the
Guarantor at its address set forth on the signature page hereof or to its then
designee, appointee and agent for service. The Guarantor agrees that service
upon it or its Process Agent as provided for herein shall constitute a valid
and
effective personal service upon it and that the failure of any such Process
Agent to give any notice of such service to it shall not impair or affect in
any
way the validity of such service. Nothing herein contained shall, or shall
be
construed so as to, limit the right of the Lender to bring actions, suits or
proceedings with respect to the obligations and liabilities of the Guarantor
under, or any other matter arising out of or in connection with, the Loan
Documents, or for recognition or enforcement of any judgment rendered in any
such action, suit or proceeding, in the courts of whatever jurisdiction in
which
the office of the Lender may be located or assets of the Guarantor may be found
or otherwise shall to the Lender seem appropriate, or to affect the right to
service of process in any jurisdiction in any other manner permitted by the
law.
16. Judgment
Currency.
If, for
the purposes of obtaining judgment in any court in any jurisdiction with respect
to this Guaranty or any other Loan Document, it becomes necessary to convert
into the currency of such jurisdiction (the “Judgment Currency”) any amount due
under this Guaranty or under any other Loan Document in any currency other
than
the Judgment Currency (the “Currency Due”), the parties agree that the rate of
exchange used shall be the rate of exchange on the Business Day before the
day
on which judgment is given. For this purpose “rate of exchange” means the rate
at which Lender is able, on the relevant date, to purchase the Currency Due
with
the Judgment Currency in accordance with its normal practice in New York City.
In the event that there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given and the date
of
receipt by Lender of the amount due, the Guarantor will, on the date of receipt
by Lender, pay such additional amounts, if any, or be entitled to receive
reimbursement of such amount, if any, as may be necessary to ensure that the
amount received by Lender on such date is the amount in the Judgment Currency
which when converted at the rate of exchange prevailing on the date of receipt
by Lender is the amount then due under this Guaranty or such other Loan Document
in the Currency Due. If the amount of the Currency Due which Lender is so able
to purchase is less than the amount of the Currency Due originally due to it,
the Guarantor shall indemnify and save Lender harmless from and against all
loss
or damage arising as a result of such deficiency. This indemnity shall
constitute an obligation separate and independent from the other obligations
contained in this Guaranty and the other Loan Documents, shall give rise to
a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by Lender from time to time, shall continue in full force
and
effect notwithstanding any judgment or order for a liquidated sum in respect
of
an amount due under this Guaranty or any other Loan Document or under any
judgment or order.
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17. Miscellaneous.
This
Guaranty shall be effective upon delivery to the Lender, without further act,
condition or acceptance by the Lender, shall be binding upon the Guarantor
and
the heirs, representatives, successors and assigns of the Guarantor and shall
inure to the benefit of the Lender and its participants, successors and assigns.
Any invalidity or unenforceability of any provision or application of this
Guaranty shall not affect other lawful provisions and application thereof,
and
to this end the provisions of this Guaranty are declared to be severable. This
Guaranty may not be waived, modified, amended, terminated, released or otherwise
changed except by a writing signed by the Guarantor and the Lender.
18. Waiver
of Jury Trial.
THE
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO THIS
GUARANTY.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN
WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor as of
the
date first written above.
| /s/ Xxxxxx Xxx | ||
|
Xxxxxx Xxx |
||
| Address: | ||
| 11/F., Xxxxxx Centre | ||
| 16-22 Kung Yip Street, Xxxx Xxxxx, | ||
| New Territories, Hong Kong | ||
HONG
KONG )
SAR
)
The
foregoing instrument was acknowledged before me the 10th
day of
April, 2007, by Xxxxxx Xxx.
| /s/ Xxxxxx Xxx Xxx Xxxxxxx | ||
|
Notary Public, Hong Kong SAR |
||
| Messrs. Liu, Chan and Xxx, | ||
| Solicitors and Notaries | ||
PROCESS
AGENT APPOINTMENT FORM
April
6,
2007
| To: |
Xxxxx
Fargo Bank, National Association
|
| 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx |
| Xxx Xxxx, Xxx Xxxx 00000 |
|
Re:
|
Guaranty
dated April 6, 2007 (the "Guaranty") by Xxxxxx Xxx (“Guarantor”) in favor
of Xxxxx Fargo Bank, National Association (the
“Lender”)
|
Ladies
and Gentlemen:
Reference
is made to Section
15
of the
Guaranty. Pursuant thereto, the undersigned Guarantor hereby appoints Xxxx
Xxxx
with his office at 00 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, as its Process Agent for the purposes set forth
in the Guaranty. The undersigned Process Agent acknowledges receipt of a copy
of
the Guaranty and agrees to serve in such capacity as Process Agent. Process
Agent agrees to give sixty (60) days prior written notice to Lender at its
office located at 000 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 or to such other address as to which Lender shall
have notified Process Agent and the Guarantor of any change of his address
or
his proposed resignation as Process Agent. As long as Process Agent shall serve
in its capacity as such, Process Agent shall maintain his address in the State
of New York.
| Very truly yours, | ||
| /s/ Xxxxxx Xxx | ||
|
Xxxxxx Xxx |
||
| Agreed and Accepted | |||
|
Process
Agent
|
|||
|
|
|||
| By: /s/ Xxxx Xxxx | |||
|
Xxxx
Xxxx
|
