GUARANTY
Exhibit-10.3
EXECUTION VERSION
This Guaranty (this “Guaranty”) is dated as of June 15, 2006 by COMSYS IT CANADA, INC., a
North Carolina corporation, formerly known as VTP-CA, Inc. (“COMSYS Canada”; COMSYS Canada together
with each other Person who becomes a party to this Agreement by execution of a joinder in the form
of Exhibit A attached hereto are sometimes referred to hereinafter individually as a “Guarantor”
and collectively as the “Guarantors”) , in favor of XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., in its capacity as Administrative Agent under the Credit
Agreement described below (the “Agent”).
I. RECITALS
Reference is made to that certain Credit Agreement dated as of December 14, 2005 (as the same
may be amended, restated, modified or supplemented and in effect from time to time, the “Credit
Agreement”) by and among COMSYS Services LLC, a Delaware limited liability company (“COMSYS
Services”), Pure Solutions, Inc., a California corporation (“Pure Solutions”), COMSYS Information
Technology Services, Inc., a Delaware corporation (“COMSYS IT”; COMSYS IT together with COMSYS
Services and Pure Solutions are sometimes referred to herein individually as a “Borrower” and
collectively as the “Borrowers”), each other Credit Party (as such term is defined therein), COMSYS
Services, in its capacity as borrowing agent and funds administrator for the Borrowers, the Lenders
from time to time party thereto, Co-Documentation Agents, Syndication Agent and the Agent. As one
of the conditions to continuing to make the Loans and other financial accommodations available to
Borrowers under the Credit Agreement, the Lenders have required that each Guarantor guarantee the
obligations of the Borrowers to Agent and the Lenders. Capitalized terms used and not otherwise
defined herein shall have the respective meanings provided for in the Credit Agreement.
II. GUARANTY
Therefore, for value received, and in consideration of any loan, advance or financial
accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to the
Borrowers by Agent or any Lender, each Guarantor hereby unconditionally guarantees the full and
prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise,
and at all times thereafter, of all of the Obligations. Without limiting the foregoing, the
Obligations guaranteed hereby include all fees, costs and expenses (including attorneys’ fees and
expenses) incurred by Agent or any Lender in attempting to collect any amount due under this
Guaranty or in prosecuting any action against any Borrower, any Guarantor or any other guarantor of
all or part of the Obligations and all interest, fees, costs and expenses owing to Agent or any
Lender after the commencement of bankruptcy proceedings with respect to any Borrower, any Guarantor
or any other guarantor of all or part of the Obligations (whether or not the same may be collected
while such proceedings are pending).
Each Guarantor hereby agrees that this Guaranty is a present and continuing guaranty of
payment and not of collection and that its obligations hereunder shall be unconditional,
irrespective of (i) the validity or enforceability of the Obligations or any part thereof, or of
any of
the Financing Documents, (ii) the waiver or consent by Agent or any Lender with respect to any
provision of any Financing Document, or any amendment, modification or other change with respect to
any Financing Document, (iii) any merger or consolidation of any Borrower, any Guarantor or any
other guarantor of all or part of the Obligations into or with any Person or any change in the
ownership of the equity of any Borrower, any Guarantor or any other guarantor of all or part of the
Obligations, (iv) any dissolution of any Guarantor or any insolvency, bankruptcy, liquidation,
reorganization or similar proceedings with respect to any Borrower, any Guarantor or any other
guarantor of all or part of the Obligations, (v) any action or inaction on the part of Agent or any
Lender, including without limitation the absence of any attempt to collect the Obligations from any
Borrower, any Guarantor or any other guarantor of all or part of the Obligations or other action to
enforce the same or the failure by Agent to take any steps to perfect and maintain its Lien on, or
to preserve its rights to, any security or collateral for the Obligations, (vi) Agent’s election,
in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), as amended (the “Bankruptcy Code”) of the application of Section 1111(b)(2)
of the Bankruptcy Code, (vii) any borrowing or grant of a Lien by any Borrower, any Guarantor or
any other guarantor of all or part of the Obligations, as debtor-in-possession, under Section 364
of the Bankruptcy Code, (viii) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of Agent’s or any Lender’s claims for repayment of the Obligations, (ix) Agent’s or
any Lender’s inability to enforce the Obligations of any Borrower as a result of the automatic stay
provisions under Section 362 of the Bankruptcy Code, (x) the discharge or release by Agent and/or
Lenders of any Guarantor’s obligations and liabilities under this Guaranty, (xi) the discharge or
release by Agent and/or Lenders of any other guarantor’s obligations and liabilities under any
guaranty or (xii) any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of any Borrower, any Guarantor or any other guarantor of all or part of the
Obligations other than a defense of payment and performance in full in cash of all Obligations.
Notwithstanding any provision of this Guaranty to the contrary, it is intended that this
Guaranty, and any Liens granted by any Guarantor to secure the obligations and liabilities arising
pursuant to this Guaranty, not constitute a “Fraudulent Conveyance” (as defined below).
Consequently, each Guarantor agrees that if this Guaranty, or any Liens securing the obligations
and liabilities arising pursuant to this Guaranty, would, but for the application of this sentence,
constitute a Fraudulent Conveyance, this Guaranty and each such Lien shall be valid and enforceable
only to the maximum extent that would not cause this Guaranty or such Lien to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have been amended
accordingly at all relevant times. For purposes hereof, “Fraudulent Conveyance” means a fraudulent
conveyance or fraudulent transfer under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or
fraudulent transfer law or similar law of any state, nation or other governmental unit, as in
effect from time to time.
No payment made by or for the account or benefit of any Guarantor (including, without
limitation, (i) a payment made by any Borrower in respect of the Obligations, (ii) a payment made
by any Person under any other guaranty of the Obligations or (iii) a payment made by means of
set-off or other application of funds by Agent or any Lender) pursuant to this Guaranty shall
entitle any Guarantor, by subrogation or otherwise, to any payment by any Borrower or
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from or out of any property of any Borrower, and no Guarantor shall exercise any right or remedy
against any Borrower or any property of any Borrower including, without limitation, any right of
contribution or reimbursement by reason of any performance by any Guarantor under this Guaranty,
until the Obligations have been indefeasibly paid in full in cash and the Credit Agreement has been
terminated; provided that, any of the foregoing to the contrary notwithstanding, effective upon any
sale, registration, assignment or transfer of or foreclosure on, or any other disposition or
remedial action in respect of, any equity interests of any Borrower or any other Subsidiary of any
Guarantor or any Borrower by the Agent or Lenders pursuant to the Financing Documents and/or
applicable law, all such rights and claims of subrogation, contribution, exoneration, reimbursement
and enforcement against the Borrowers and their Subsidiaries shall be, and hereby are, forever
extinguished and indefeasibly waived and released by each Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of any bankruptcy proceeding (or other insolvency proceeding) of any Borrower,
protest or notice with respect to the Obligations and all demands whatsoever, and covenants that
this Guaranty will not be discharged, except by complete and irrevocable payment and performance of
the obligations and liabilities contained herein. No notice to the Guarantors or any other party
shall be required for Agent, on behalf of Agent or any Lender, to make demand hereunder. Such
demand shall constitute a mature and liquidated claim against Guarantors. Upon the occurrence and
during the continuance of any Event of Default, Agent may, at its sole election, proceed directly
and at once, without notice, against any Guarantor to collect and recover the full amount or any
portion of the Obligations, without first proceeding against any Borrower, any other Guarantor, any
other guarantor of the Obligations, or any other Person or any security or collateral for the
Obligations. Agent shall have the exclusive right to determine the application of payments and
credits, if any, from any Guarantor, any Borrower, any other Person, or any security or collateral
for the Obligations, on account of the Obligations or of any other liability of any Guarantor to
Agent and Lenders arising hereunder.
Agent and Lenders are hereby authorized, without notice or demand to any Guarantor and without
affecting or impairing the liability of any Guarantor hereunder, to, from time to time, (i) renew,
extend, accelerate or otherwise change the time for payment of, or other terms relating to, the
Obligations or otherwise modify, amend or change the terms of any Financing Document, (ii) accept
partial payments on the Obligations, (iii) take and hold collateral for the payment of the
Obligations, or for the payment of this Guaranty, or for the payment of any other guaranties of the
Obligations or other liabilities of any Borrower, and exchange, enforce, waive and release any such
collateral, (iv) apply such collateral and direct the order or manner of sale thereof as in their
sole discretion they may determine and (v) settle, release, compromise, collect or otherwise
liquidate the Obligations and any collateral therefor in any manner.
At any time after maturity of the Obligations, Agent and Lenders may, in their sole
discretion, without notice to any Guarantor and regardless of the acceptance of any collateral for
the payment hereof, appropriate and apply toward payment of the Obligations (i) any indebtedness
due or to become due from Agent or any Lender to any Guarantor and (ii) any moneys, credits or
other property belonging to any Guarantor at any time held by or coming into
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the possession of Agent or any Lender or any Affiliates thereof, whether for deposit or otherwise.
Each Guarantor hereby assumes responsibility for keeping itself informed of the financial
condition of each Borrower, and any and all endorsers and other guarantors of all or any part of
the Obligations and of all other circumstances bearing upon the risk of nonpayment of the
Obligations or any part thereof that diligent inquiry would reveal, and each Guarantor hereby
agrees that neither Agent nor any Lender shall have any duty to advise any Guarantor of information
known to such Agent or Lender regarding such condition or any such circumstances. Each Guarantor
hereby acknowledges familiarity with each Borrower’s financial condition and that it has not relied
on any statements by Agent or any Lender in obtaining such information. In the event Agent or any
Lender, in its sole discretion, undertakes at any time or from time to time to provide any such
information to any Guarantor, neither Agent nor any Lender shall be under any obligation (i) to
undertake any investigation with respect thereto, (ii) to disclose any information which, pursuant
to accepted or reasonable commercial finance practices, Agent or such Lender wishes to maintain
confidential or (iii) to make any other or future disclosures of such information, or any other
information, to such Guarantor.
Each Guarantor consents and agrees that neither Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in payment of any or all
of the Obligations. Each Guarantor further agrees that, to the extent that any Borrower makes a
payment or payments to Agent or any Lender, or Agent or any Lender receives any proceeds of
Collateral, which payment or payments or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside or required to be repaid to any Borrower, its estate,
trustee, receiver or any other party, including without limitation any Guarantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Obligations or the part thereof which has been paid, reduced or satisfied
by such amount shall be reinstated and continued in full force and effect as of the date such
initial payment, reduction or satisfaction occurred, and this Guaranty shall continue to be in
existence and in full force and effect, irrespective of whether any evidence of indebtedness has
been surrendered or cancelled.
Each Guarantor also waives all set-offs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices
of acceleration, notices of intent to accelerate and notices of acceptance of this Guaranty. Each
Guarantor further waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to any Borrower or otherwise, and also
waives all notices that the principal amount, or any portion thereof, or any interest under or on
any Financing Document is due, notices of any and all proceedings to collect from the maker, any
endorser or any other guarantor of all or any part of the Obligations, or from anyone else, and, to
the extent permitted by law, notices of exchange, sale, surrender or other handling of any security
or collateral given to Agent to secure payment of the Obligations.
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III. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to Agent and Lenders that (i) it is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) the execution, delivery and performance by such Guarantor of this Guaranty and
the other Financing Documents to which it is a party are within its powers, have been duly
authorized by all necessary action pursuant to its Organizational Documents, require no further
action by or in respect of, or filing with, any governmental body, agency or official (other than
(a) routine corporate, tax, ERISA, intellectual property, environmental filings and other filings
from time to time necessary in connection with the conduct of such Guarantor’s business in the
ordinary course, and (b) recordings and filings in connection with the Liens granted to the Agent
under the Financing Documents) and do not violate, conflict with or cause a breach or a default
under any provision of applicable law or regulation, any of its Organizational Documents or any
agreement, judgment, injunction, order, decree or other instrument binding upon it, except for such
violations, conflicts, breaches or defaults as could not reasonably be expected to have a Material
Adverse Effect, and (iii) this Guaranty, and each other Financing Document to which it is a party,
constitutes a valid and binding agreement or instrument of such Guarantor, enforceable against such
Guarantor in accordance with its respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’
rights generally and by general equitable principles.
IV. MISCELLANEOUS
No delay on the part of Agent in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by Agent of any right or remedy shall preclude any
further exercise thereof; nor shall any modification or waiver of any of the provisions of this
Guaranty be binding upon Agent or Lenders, except as expressly set forth in a writing duly signed
and delivered on Agent’s behalf by an authorized officer or agent of Agent. Agent’s or any
Lender’s failure at any time or times hereafter to require strict performance by Borrowers or
Guarantors of any of the provisions, warranties, terms and conditions contained in this Guaranty
shall not waive, affect or diminish any right of Agent and Lenders at any time or times hereafter
to demand strict performance thereof and such right shall not be deemed to have been waived by any
act or knowledge of Agent or any Lender, or its respective agents, officers or employees, unless
such waiver is contained in an instrument in writing signed by an officer or agent of Agent, and
directed to Borrowers or Guarantors, as applicable, specifying such waiver. No failure or delay by
Agent or any Lender in exercising any right, power or privilege under this Guaranty shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
The obligations of each Guarantor under this Guaranty are secured by, among other things, that
certain Security Agreement dated of even date herewith by and among the Guarantors and Agent.
This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall
inure to the benefit of Agent and Lenders and their respective successors and assigns, except that
no Guarantor may assign its obligations hereunder without the written consent of Agent.
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All notices, approvals, requests, demands and other communications hereunder shall be given
and deemed effective in accordance with the notice provision of the Credit Agreement;
provided, that such notices shall be given to each Guarantor at its address or facsimile
number set forth on the signature pages hereof.
THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. AGENT AND EACH
GUARANTOR HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
COUNTY OF XXXX, STATE OF ILLINOIS AND IRREVOCABLY AGREE THAT, SUBJECT TO AGENT’S ELECTION, ALL
ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY SHALL BE LITIGATED IN SUCH
COURTS. AGENT AND EACH GUARANTOR EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID
COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. AGENT AND EACH GUARANTOR HEREBY WAIVE
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
SUCH PARTY BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PARTY IN
ACCORDANCE WITH THE PROVISIONS OF THE IMMEDIATE PRECEDING PARAGRAPH HEREOF AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
EACH GUARANTOR AND AGENT HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
This Guaranty may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument.
In addition to and without limitation of any of the foregoing, this Guaranty shall be deemed
to be a Financing Document and shall otherwise be subject to all of general terms and conditions
contained in Article XII of the Credit Agreement, mutatis mutandi.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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EXECUTION VERSION
IN WITNESS WHEREOF, this Guaranty has been duly executed as of the date first written
above.
| GUARANTOR: | ||||
| COMSYS IT CANADA, INC., a North Carolina corporation, | ||||
| formerly known as VTP-CA, Inc. | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President – Corporate Development | |||
| AGENT: | ||||
| XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc., as Agent | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Vice President | |||
Guaranty
EXECUTION VERSION
Exhibit A
Form of Joinder to Guaranty
Joinder to Guaranty
The undersigned, , for consideration received, including its affiliation with
COMSYS IT Holdings, Inc. and its Subsidiaries (and the support and benefits therefrom), hereby
joins in the execution of that certain Guaranty dated as of June 15, 2006 (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Guaranty”) made by COMSYS
IT Canada, Inc., a North Carolina corporation, and each of the other Persons signatories thereto as
Guarantors and each other Person that becomes a Guarantor under the Guaranty after the date and
pursuant to the terms thereof, to and in favor of XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., as Agent. By executing this Joinder, the undersigned
hereby agrees that it is a Guarantor thereunder with the same force and effect as if originally
named therein as a Guarantor. The undersigned agrees to be bound by all of the terms and
provisions of the Guaranty, which are incorporated herein by reference as fully as though set forth
herein verbatim, and represents and warrants that the representations and warranties set forth in
the Guaranty are, with respect to the undersigned, true and correct as of the date hereof. Each
reference to a Guarantor in the Guaranty shall be deemed to include the undersigned.
IN WITNESS WHEREOF, the undersigned has executed this Joinder this ___day of
.
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Guaranty
