AMENDMENT TO GUARANTOR DOCUMENTS
Exhibit 10.37
THIS AMENDMENT (the “Amendment”), dated as of July 24, 2006, is entered into by and between
GLOBAL EMPLOYMENT HOLDINGS, Inc., a Delaware corporation (the “Guarantor”), and XXXXX FARGO BANK,
NATIONAL ASSOCIATION (with its participants, successors and assigns, the “Lender”), acting through
its Xxxxx Fargo Business Credit operating division.
Recitals
Global Employment Solutions, Inc., a Colorado corporation (“Global”), Excell Personnel
Services Corporation, an Illinois corporation (“Excell”), Friendly Advanced Software Technology,
Inc., a New York corporation (“Friendly”), Temporary Placement Service, Inc., f/k/a Xxxxxxx &
Associates, Inc. and successor by merger to Temporary Place Service, Inc., a Georgia corporation
(“TPS”), Southeastern Staffing, Inc., a Florida corporation (“Southeastern”), Southeastern
Personnel Management, Inc., a Florida corporation (“SPM”), Main Line Personnel Services, Inc., a
Pennsylvania corporation (“Main Line”), Bay HR, Inc., a Florida corporation (“BHR”), Southeastern
Georgia HR, Inc., a Georgia corporation (“SGHR”), Southeastern Staffing II, Inc., a Florida
corporation (“SEII”), Southeastern Staffing III, Inc., a Florida corporation (“SEIII”),
Southeastern Staffing IV, Inc., a Florida corporation (“SEIV”), Southeastern Staffing V, Inc., a
Florida corporation (“SEV”), and Southeastern Staffing VI, Inc., a Florida corporation (“SEVI”)
(Global, Excell, Friendly, TPS, Southeastern, SPM, Main Line, BHR, SGHR, SEII, SEIII, SEIV, SEV and
SEVI each a “Borrower” and collectively the “Borrowers”) (SEII, SEIII, SEIV, SEV and SEVI are each
referred to herein as a “New Borrower” and collectively as the “New Borrowers”), and the Lender are
parties to an Amended and Restated Credit and Security Agreement dated as of July 24, 2006 (as may
hereafter amended, the “Credit Agreement”), which amends that certain Credit and Security Agreement
dated as of March 7, 2002 between certain of the Borrowers and the Lender and subsequently amended
by a First Amendment to Credit and Security Agreement dated as of June 26, 2003, a Second Amendment
to Credit and Security Agreement and Waiver of Defaults dated as of August 30, 2004, a Third
Amendment to Credit and Security Agreement and Waiver of Defaults dated as of January 31, 2005, a
Fourth Amendment to Credit and Security Agreement and Waiver of Defaults dated as of May 13, 2005
and a Fifth Amendment to Credit and Security Agreement dated as of March 31, 2006 (as amended, the
“Former Credit Agreement”). Capitalized terms used in these recitals have the meanings given to
them in the Credit Agreement unless otherwise specified.
The Guarantor has a direct and substantial economic interest in each New Borrower 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 indebtedness of each New Borrower to the Lender.
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As a condition to continuing to extend credit to the Borrowers, the Lender required the
execution and delivery by the Guarantor of (a) a Guaranty by Corporation in favor of the Lender,
dated as of March 31, 2006 (the “Guaranty”), pursuant to which the Guarantor guaranteed the payment
and performance of all obligations of Global, Excell, FAST, TPS, Southeastern, BHR, SPM, SGHR and
Main Line arising under or pursuant to the Former Credit Agreement as well as (b) additional
documents including, without limitation the following, each dated as of March 31, 2006: a Patent
and Trademark Security Agreement by and between the Guarantor and the Lender, a Copyright Security
Agreement in favor of the Lender, a Pledge Agreement in favor of the Lender and a Security
Agreement by and between the Guarantor the Lender (with the Guaranty and all other agreements,
instruments and documents by and between the Guarantor and the Lender or by the Guarantor in favor
of the Lender, collectively, the “Guarantor Documents” and each, a “Guarantor Document”).
The Borrowers and the Lender have agreed to amend and restate the Former Credit Agreement
pursuant to the terms and conditions set forth in the Credit Agreement.
As a further condition to continuing to extend credit to each Borrower under the Credit
Agreement, the Lender has required the execution and delivery of this Amendment by the Guarantor.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment which are defined in the
Credit Agreement shall have the same meanings as defined therein, unless otherwise defined herein.
2. Amendment. Each reference in each Guarantor Document to the term “Borrowers” or
“Borrower” shall be deemed to have the meaning given to such term in this Amendment unless
otherwise specified.
3. No Other Changes. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Guarantor Documents shall remain in full force and effect.
4. Representations and Warranties. The Guarantor hereby represents and warrants to
the Lender as follows:
(a) The Guarantor has all requisite power and authority to execute this Amendment and any
other agreements or instruments required hereunder and to perform all of its obligations hereunder
and thereunder, and this Amendment and all such other agreements and instruments have been duly
executed and delivered by the Guarantor and constitute the legal, valid and binding obligation of
the Guarantor, enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Guarantor of this Amendment and any other
agreements or instruments required hereunder have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or
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instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or
regulation or of any order, writ, injunction or decree presently in effect, having applicability to
the Guarantor, or the certificate of incorporation or by-laws of the Guarantor, or (iii) result in
a breach of or constitute a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Guarantor is a party or by which it or its properties
may be bound or affected.
5. References. All references in the Guarantor Documents to “this Agreement” shall be
deemed to refer to such Guarantor Document as amended hereby.
6. No Waiver. The execution of this Amendment and the acceptance of all other
agreements and instruments related hereto shall not be deemed to be a waiver of any default or
event of default under the Guarantor Documents or a waiver of any breach, default or event of
default under any document held by the Lender, whether or not known to the Lender and whether or
not existing on the date of this Amendment.
7. Acknowledgment and Release.
(a) The Guarantor (i) acknowledges receipt of the Credit Agreement; (ii) consents to the terms
and execution thereof; (iii) reaffirms all obligations to the Lender pursuant to the terms of the
Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend, renew or otherwise
modify the Credit Agreement and any indebtedness or agreement of the Borrowers, or enter into any
agreement or extend additional or other credit accommodations, without notifying or obtaining the
consent of the undersigned and without impairing the liability of the undersigned under the
Guaranty for all of the Borrowers’ present and future indebtedness to the Lender.
(b) The Guarantor hereby absolutely and unconditionally releases and forever discharges the
Lender, and any and all participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together with all of the
present and former directors, officers, agents and employees of any of the foregoing, from any and
all claims, demands or causes of action of any kind, nature or description, whether arising in law
or equity or upon contract or tort or under any state or federal law or otherwise, which the
Guarantor has had, now has or has made claim to have against any such person for or by reason of
any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and
including the date of this Amendment, whether such claims, demands and causes of action are matured
or unmatured or known or unknown.
8. Miscellaneous. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and all of which counterparts,
taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| XXXXX FARGO BANK, NATIONAL | GLOBAL EMPLOYMENT HOLDINGS, | |||||
| ASSOCIATION | INC. | |||||
By:
|
/s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxxxx Xxxxx | |||
Name:
|
Xxxxxx X. Xxxxx | Name: | Xxxxxx Xxxxx | |||
Its:
|
Vice President | Its: | Chief Executive Officer and President | |||
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