Guaranty Agreement between Marvin Winkler and Wells Fargo Business Credit, Inc. for Pulsar Data Systems, Inc.

Summary

This agreement, dated November 2, 2001, is a guaranty by Marvin Winkler in favor of Wells Fargo Business Credit, Inc. (WFBCI). It ensures that Winkler will pay any debts or obligations owed by Pulsar Data Systems, Inc. to WFBCI under an Account Purchase Agreement. The guaranty is unconditional and covers all current and future amounts owed by Pulsar. Winkler also agrees to cover any enforcement costs. The guaranty remains in effect until revoked in writing and is not affected by changes in the underlying agreement or the parties' circumstances.

EX-10.10 11 a77339ex10-10.txt EXHIBIT 10.10 EXHIBIT 10.10 GUARANTY This Guaranty, dated as of November 2, 2001, is made by Marvin Winkler (the "Guarantor") for the benefit of Wells Fargo Business Credit, Inc., a Minnesota corporation ("WFBCI"). WFBCI and Pulsar Data Systems, Incorporated, a Delaware corporation, a Delaware corporation (the "Customer"), are parties to an Account Purchase Agreement dated November 2nd, 2001 (the "Agreement") pursuant to which WFBCI shall purchase accounts receivable from the Customer and may make financial accommodations to the Customer. As a condition to entering into the Agreement and extending such accommodations to the Customer, WFBCI 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 Agreement that are not otherwise defined herein shall have the meanings given them in the Agreement. 2. Indebtedness Guaranteed. The Guarantor hereby absolutely and unconditionally guarantees to WFBCI the full and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of each and every sum now or hereafter owing to WFBCI by the Customer, including but not limited to, debts, liabilities and obligations arising out of purchases of property, financial accommodations, or other transactions with the Customer or for the Customer's account or out of any other transaction or event, owed to WFBCI, in each case whether now existing or hereafter arising, whether arising directly in a transaction or event involving WFBCI or acquired by WFBCI from another by purchase or assignment or as collateral security, whether owed by the Customer as drawer, maker, endorser, accommodation party, guarantor, principal, surety or as a member of any partnership, syndicate, association or group or in any other capacity, whether absolute or contingent, direct or indirect, primary or secondary, sole, joint, several or joint and several, secured or unsecured, due or not due, contractual, tortious or statutory, liquidated or unliquidated, arising by agreement or imposed by law or otherwise (all of said sums being hereinafter called 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 WFBCI, 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 WFBCI, 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 WFBCI 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 WFBCI shall have the right to declare immediately due and payable, and the Guarantor will forthwith pay to WFBCI, 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. Subrogation, etc. The Guarantor hereby waives all rights that the Guarantor may now have or hereafter acquire, whether by subrogation, contribution, reimbursement, recourse, exoneration, contract or otherwise, to recover from the Customer or from any property of the Customer any sums paid under this Guaranty. The Guarantor will not exercise or enforce any right of contribution to recover any such sums from any person who is a co-obligor with the Customer or a guarantor or surety of the Indebtedness or from any property of any such person until all of the Indebtedness shall have been fully paid and discharged. 6. Enforcement Expenses. The Guarantor will pay or reimburse WFBCI for all costs, expenses and attorneys' fees paid or incurred by WFBCI in endeavoring to collect and enforce the Indebtedness and in enforcing this Guaranty. 7. WFBCI's Rights. WFBCI shall not be obligated by reason of its acceptance of this Guaranty to engage in any transactions with or for the Customer. Whether or not any existing relationship between the Guarantor and the Customer has been changed or ended and whether or not this Guaranty has been revoked, WFBCI 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 WFBCI 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, discount rates, fees, expenses, 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 agreement under which the Indebtedness or any part thereof arose; (iii) any waiver or indulgence granted to the Customer, 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 Customer 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 WFBCI 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. 8. Waivers by Guarantor. The Guarantor waives any and all defenses, claims, setoffs and discharges of the Customer, 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 WFBCI 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 Customer or any other person liable in respect of any of the Indebtedness, or any setoff available against WFBCI to the Customer 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 2 interest securing the Indebtedness, whether or not the liability of the Customer 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 Customer or any of its assets. The Guarantor will not assert, plead or enforce against WFBCI any claim, defense or setoff available to the Guarantor against the Customer. The Guarantor waives presentment, demand for payment, notice of dishonor or nonpayment and protest of any instrument evidencing the Indebtedness. WFBCI shall not be required first to resort for payment of the Indebtedness to the Customer or other persons, or their properties, or first to enforce, realize upon or exhaust any collateral security for the Indebtedness, before enforcing this Guaranty. 9. If Payments Set Aside, etc. If any payment applied by WFBCI 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 Customer 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. 10. 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 WFBCI as guarantor, surety, endorser, accommodation co-obligor or otherwise of any of the Indebtedness or obligation of the Customer, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary. 11. Financial Information. The Guarantor will provide to WFBCI annually a current personal financial statement 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 WFBCI not later than April 30th of each year. The Guarantor acknowledges and agrees that WFBCI 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. 12. No Duties Owed by WFBCI. The Guarantor acknowledges and agrees that WFBCI (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 Customer or any guarantor. The Guarantor has independently determined the creditworthiness of the Customer and the enforceability of the Indebtedness and until the Indebtedness is paid in full will independently and without reliance on WFBCI continue to make such determinations. 13. Acknowledgement. The Guarantor acknowledges that it or s/he has read this Guaranty in its entirety, has consulted such legal, tax or other advisors as it or s/he deems appropriate and understands and agrees to each of the provisions of this Guaranty and further acknowledges that it or s/he has entered into this Guaranty voluntarily. 14. Miscellaneous. This Guaranty shall be effective upon delivery to WFBCI, without further act, condition or acceptance by WFBCI, shall be binding upon the Guarantor and the heirs, representatives, successors and assigns of the Guarantor and shall inure to the benefit of WFBCI 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 WFBCI. This Guaranty shall be governed by and construed in accordance with the substantive laws (other than conflict laws) of the State of Colorado. The Guarantor hereby (i) consents to the personal jurisdiction of the state and federal courts located in the State of Colorado in connection with any controversy related to this Guaranty; (ii) waives 3 any argument that venue in any such forum is not convenient, (iii) agrees that any litigation initiated by WFBCI or the Guarantor in connection with this Guaranty shall be venued in either the District Court of Denver County, Denver Colorado, or the United States District Court, District of Colorado; and (iv) agrees that a final judgment in any such suit, 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. 15. Termination. This Guaranty may not be terminated by the Guarantor until all of the Customer's obligations to WFBCI have been paid in full or otherwise satisfied and the Guarantor provides WFBCI with written notice of the termination of this Guaranty. By execution hereof, the Guarantor knowingly accepts the full range of risk encompassed within a contract of "continuing guaranty" which risk includes, without limitation, the possibility that the Customer will incur additional obligations for which the Guarantor may be liable hereunder after the Customer's financial condition or ability to pay its lawful debts when they are due has deteriorated, and the Guarantor understands that the amount of the obligations may be increased or decreased and the ratios of obligations to Collateral may be changed adversely to the Guarantor at the sole discretion of WFBCI. 16. Waiver of Jury Trial. THE UNDERSIGNED 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. IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor as of the date first written above. Signature /s/ MARVIN WINKLER ---------------------------- Marvin Winkler 25502 Rodeo Circle Laguna Hills, CA 92656 STATE OF CALIFORNIA ) ###-##-#### ) COUNTY OF ORANGE ) The foregoing instrument was acknowledged before me the 2nd day of November, 2001, by Marvin Winkler. /s/ NANCY R. McKENNA -------------------------------------- Notary Public Nancy R. McKenna [SEAL] 4