GUARANTY
WHEREAS,
pursuant to that certain Stock Purchase Agreement (the “Stock
Purchase Agreement”)
made
by and among ELS HUMAN RESOURCE SOLUTIONS, INC. (“ELS
HRS”),
THE
XXXXXXX X. XXXXXXXX YEAR 2002 REVOCABLE TRUST DATED August 16, 2002, Xxxxxxx
X.
Xxxxxxxx Trustee, or successor (the “Xxxxxxxx
Trust”),
and
XXXXXXX X. XXXXXX (“Xxxxxx”);
that
certain Agreement and Plan of Merger (the “Forward
Merger Agreement”)
made
by and among ELS HRS, RESOLVE STAFFING, INC. (“Resolve”),
and
the Constituent Companies party thereto; that certain Agreement and Plan of
Merger made by and among RESOLVE, MANDALAY MERGER SUB LLC, and MANDALAY
SERVICES, INC. (the “Mandalay
Merger Agreement”);
that
certain Agreement and Plan of Merger made by and among RESOLVE, DIVERSIFIED
MERGER SUB LLC, and DIVERSIFIED SUPPORT SYSTEMS, LLC (the “Diversified
Merger Agreement”);
and
that certain Agreement and Plan of Merger made by and among RESOLVE, ELS
EMPLOYER MERGER SUB LLC, and ELS EMPLOYER SERVICES, INC. (the “ELS
Employer Merger Agreement”)
(the
Forward Merger Agreement, Mandalay Merger Agreement, Diversified Merger
Agreement, and ELS Employer Merger Agreement being referred to collectively
herein as the “Merger
Agreements”),
ELS
HRS (referred to herein as the “Obligor”)
and
Resolve have made and entered into or will make and enter into certain
Promissory Notes payable to each of Xxxxxxxx, the Xxxxxxxx Trust, and Xxxxxx
(each an “Obligee”
and
collectively, jointly and severally, “Obligees”),
respectively (each, as the same may be amended, restated, replaced,
supplemented, extended or otherwise modified from time to time, being referred
to as a “Note,”
and
collectively as the “Notes”);
and
WHEREAS,
as security for the obligations of Obligor under the Notes, the Stock Purchase
Agreement, the Merger Agreements, and other documents and instruments executed
and delivered in connection therewith, Obligor, Obligees, Resolve and Xxxxxxxx,
as agent for each of the Obligees (in such capacity, “Agent”),
have
entered into certain security documents (the “Security
Documents”),
including, but not limited to, that certain Security Agreement by and among
Obligor, Resolve, Mandalay Services, Inc., Diversified Support Systems, LLC,
ELS
Employer Services, Inc., the subsidiaries of Obligor signatory thereto, Agent,
and Obligees, dated of even date herewith (“Security
Agreement”),
and
that certain Stock Pledge Agreement by and among Obligor, Resolve, Agent,
Obligees, and the Pledged Stock Issuers party thereto, dated of even date
herewith (the “Pledge
Agreement”);
NOW
THEREFORE, due to the close business and financial relationships between Resolve
and Obligor, in consideration of the benefits that will accrue to Resolve,
and
as an inducement for and in consideration of Agent’s and Obligees’ entering into
the Notes, the Security Documents, the Stock Purchase Agreement, and the Merger
Agreements, Resolve hereby agrees in favor of Agent (for the benefit of himself
and Obligees) as follows:
| 1. |
(a) Resolve
hereby absolutely and unconditionally guarantees and agrees to be liable for
the
full and indefeasible payment and performance when due of the following (all
of
which are collectively referred to herein as the “Guaranteed
Obligations”):
(i)
all and each of Obligor’s debts, liabilities, and obligations owed to Agent and
Obligees, whether now in existence or hereafter created or arising, including
any extensions or renewals thereof, including,
| ||
but
not
limited to, principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
arising under the Notes, the Security Documents, the Stock Purchase Agreement,
and the Merger Agreements, whether now existing or hereafter arising, whether
before or after the commencement of any case with respect to Obligor under
the
United States Bankruptcy Code or any similar statute (including, without
limitation, the payment of interest and other amounts, which would accrue and
become due but for the commencement of such case, whether or not such amounts
are allowed or allowable in whole or in part in any such case and including
loans, interest, fees, charges and expenses related thereto and all other
obligations of Obligor or its successors to Agent or any Obligee arising after
the commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, secured or unsecured, and however acquired by Agent or any
Obligee, and (ii) all expenses (including, without limitation, attorneys’ fees
and legal expenses) incurred by Agent and any Obligee in connection with the
preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of Obligor’s obligations, liabilities and
indebtedness as aforesaid to Agent and any Obligee, the rights of Agent and
any
Obligee in any collateral, or under this Guaranty and all other Security
Documents, or in any way involving claims by or against Agent or any Obligee,
directly or indirectly arising out of or related to the relationships between
Obligor, Resolve, Agent and any Obligee, whether such expenses are incurred
before or after the commencement of any case with respect to Obligor under
the
United States Bankruptcy Code or any similar statute.
(b) This
Guaranty is a guaranty of payment and not of collection. Resolve agrees that
Agent, on behalf of itself and Obligees, need not attempt to collect any
Guaranteed Obligations from Obligor or to realize upon any collateral, but
may
require Resolve to make immediate payment of all of the Guaranteed Obligations
to Agent when due, whether by maturity, acceleration or otherwise, or at any
time thereafter. Agent and Obligees may apply any amounts received in respect
of
the Guaranteed Obligations to any of the Guaranteed Obligations, in whole or
in
part (including attorneys’ fees and legal expenses) in accordance with the terms
of the Security Agreement.
(c) Payment
by Resolve shall be made to Agent at the office of Agent from time to time
on
demand as Guaranteed Obligations become due. Resolve shall make all payments
to
Agent on the Guaranteed Obligations free and clear of, and without deduction
or
withholding for or on account of, any setoff, counterclaim, defense, duties,
taxes, levies, imposts, fees, deductions, withholding, restrictions or
conditions of any kind. One or more successive or concurrent actions may be
brought hereon against Resolve either in the same action in which Obligor is
sued or in separate actions. In the event any claim or action, or action on
any
judgment, based on this Guaranty is brought against Resolve, Resolve agrees
not
to deduct, set-off, or seek any counterclaim for or recoup any amounts which
are
or may be owed by Agent or any Obligee to Resolve.
2. Primary
Obligations.
This
Guaranty is a primary and original obligation of Resolve, is not merely the
creation of a surety relationship, and is an absolute, unconditional, and
continuing guaranty of payment and performance which shall remain in full force
and effect without respect to future changes in conditions. Resolve agrees
that
(i) it is directly liable to the Agent and each Obligee, (ii) the obligations
of
Resolve hereunder are independent of the
| ||
obligations
of Obligor, and (iii) a separate action may be brought against Resolve, whether
such action is brought against Obligor or whether Obligor is joined in such
action. Resolve agrees that its liability hereunder shall be immediate and
shall
not be contingent upon the exercise or enforcement by Agent and Obligees of
whatever remedies they may have against Obligor, or the enforcement of any
lien
or realization upon any security Agent or Obligees may at any time possess.
Resolve agrees that any release which may be given by Agent and any Obligee
to
Obligor shall not release Resolve. Resolve consents and agrees that neither
Agent nor any Obligee shall be under any obligation to marshal any property
or
assets of Obligor in favor of Resolve, or against or in payment of any or all
of
the Guaranteed Obligations.
3. Performance
under this Guarantee.
In the
event that Obligor fails to make any payment of any Guaranteed Obligations,
on
or before the due date thereof, or if Obligor shall fail to perform, keep,
observe, or fulfill any other obligation referred to in Section 1(a) hereof
in
the manner provided in the Notes, the Security Documents, the Stock Purchase
Agreement or the Merger Agreements, as applicable, Resolve immediately shall
cause such payment to be made or each of such Guaranteed Obligations applicable
to Resolve to be performed, kept, observed, or fulfilled.
4. Limitation
on Guaranty.
Notwithstanding any other provision of this Guaranty to the contrary, if the
obligations of Resolve hereunder would otherwise be held or determined by a
court of competent jurisdiction in any action or proceeding involving any state
corporate law or any state, Federal or other bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other law affecting the
rights of creditors generally, to be void, invalid or unenforceable to any
extent on account of the amount of Resolve’s liability under this Guaranty, then
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by Resolve or any other
party, be automatically limited and reduced to the highest amount which is
valid
and enforceable as determined in such action or proceeding. In any such
instance, Resolve agrees that such court should give effect as assets of value
(as determined under the applicable provisions of the relevant laws) of any
rights to subrogation or contribution of Resolve pursuant to applicable
law.
5. Waivers
and Consents.
(a) Notice
of
acceptance of this Guaranty, the providing of financial accommodations to
Obligor and presentment, demand, protest, notice of protest, notice of
nonpayment or default and all other notices to which Obligor or Resolve may
be
entitled are hereby waived by Resolve. Resolve also waives notice of and hereby
consents to (i) any amendment, modification, supplement, extension, renewal,
or
restatement of the Notes and any of the other Security Documents, the Stock
Purchase Agreement, or the Merger Agreements, including, without limitation,
extensions of time of payment of or increase or decrease in the amount of any
of
the Guaranteed Obligations, the interest rate, fees, other charges, or any
collateral, and the guaranty made herein shall apply to the Notes and the other
Security Documents and the Guaranteed Obligations as so amended, modified,
supplemented, renewed, restated or extended, increased or decreased, (ii) the
taking, exchange, surrender and releasing of collateral or guaranties now or
at
any time held by or available to Agent or any Obligee for the obligations of
Obligor or any other party at any time liable on or in respect of the Guaranteed
Obligations or who is the owner of any property which is security for the
Guaranteed
| ||
Obligations,
(iii) the exercise of, or refraining from the exercise of, any rights against
Obligor or any collateral, and (iv) the settlement, compromise or release of,
or
the waiver of any default with respect to, any of the Guaranteed Obligations.
Resolve also waives notice of any adverse change in the financial condition
of
Obligor or of any other fact that might increase Resolve’s risk hereunder.
Resolve agrees that the amount of the Guaranteed Obligations shall not be
diminished and the liability of Resolve hereunder shall not be otherwise
impaired or affected by any of the foregoing.
(b) No
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations shall affect, impair or be a defense to this Guaranty,
nor shall any other circumstance which might otherwise constitute a defense
available to or legal or equitable discharge of Obligor in respect of any of
the
Guaranteed Obligations, or Resolve in respect of this Guaranty, affect, impair
or be a defense to this Guaranty. Without limitation of the foregoing, the
liability of Resolve hereunder shall not be discharged or impaired in any
respect by reason of any failure by Agent or any Obligee to perfect or continue
perfection of any lien or security interest in any collateral or any delay
by
Agent or any Obligee in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the commencement
of
any case with respect to Obligor under the United States Bankruptcy Code or
any
similar statute, Resolve shall be liable therefor, even if Obligor’s liability
for such amounts does not, or ceases to, exist by operation of law. Resolve
acknowledges that neither the Agent nor any Obligee has made any representations
to Resolve with respect to Obligor or otherwise in connection with the execution
and delivery by Resolve of this Guaranty and Resolve is not in any respect
relying upon Agent or any Obligee or any statements by Agent or any Obligee
in
connection with this Guaranty.
(c) Resolve
hereby irrevocably and unconditionally waives and relinquishes all statutory,
contractual, common law, equitable and all other claims against Obligor, any
collateral for the Guaranteed Obligations or other assets of Obligor, for
subrogation, reimbursement, exoneration, contribution, indemnification, setoff
or other recourse in respect to sums paid or payable to Agent or any Obligee
by
Resolve hereunder and hereby further irrevocably and unconditionally waives
and
relinquishes any and all other benefits which Resolve might otherwise directly
or indirectly receive or be entitled to receive by reason of any amounts paid
by
or collected or due from Resolve or Obligor upon the Guaranteed Obligations or
realized from their property.
(d) To
the
fullest extent permitted by applicable law, Resolve waives the right, by statute
or otherwise, to require Agent or any Obligee to institute suit against Obligor
or to exhaust any rights and remedies which Agent and any Obligee have or may
have against Obligor. In this regard, Resolve agrees that it is bound to the
payment of each and all Guaranteed Obligations, whether now existing or
hereafter arising, as fully as if such Guaranteed Obligations were directly
owing to Agent and Obligees by Resolve. Resolve further waives any defense
arising by reason of any disability or other defense (other than the defense
that the Guaranteed Obligations shall have been fully and finally performed
and
indefeasibly paid in full in cash) of Obligor or by reason of the cessation
from
any cause whatsoever of the liability of Obligor in respect
thereof.
| ||
6. Subordination.
Payment
of all amounts now or hereafter owed to Resolve by Obligor is hereby
subordinated in right of payment to the indefeasible payment in full to Agent
and Obligees of the Guaranteed Obligations and all such amounts and any security
and guaranties therefor, except as otherwise permitted by the Notes and the
Security Documents, are hereby assigned to Agent and Obligees as security for
the Guaranteed Obligations.
7. Acceleration.
Notwithstanding anything to the contrary contained herein or any of the terms
of
any of the other Security Documents, the liability of Resolve for the entire
Guaranteed Obligations shall mature and become immediately due and payable
(even
if the liability of Obligor therefor does not) upon the occurrence of any act,
condition or event which constitutes an Event of Default as such term is defined
in any of the Notes and the Security Documents.
8. Termination.
This
Guaranty is continuing, unlimited, absolute and unconditional. All Guaranteed
Obligations shall be conclusively presumed to have been created in reliance
on
this Guaranty. Without limiting the foregoing, this Guaranty may not be
terminated and shall continue so long as any amounts remain outstanding under
the Notes.
9. Reinstatement.
If
after receipt of any payment of, or proceeds of collateral applied to the
payment of, any of the Guaranteed Obligations, Agent or any Obligee is required
to surrender or return such payment or proceeds to any person for any reason,
then the Guaranteed Obligations intended to be satisfied by such payment or
proceeds shall be reinstated and continue and this Guaranty shall continue
in
full force and effect as if such payment or proceeds had not been received
by
Agent, for the benefit of itself and Obligees, or such Obligee. Resolve does
indemnify and hold Agent and each Obligee harmless for the amount of any
payments or proceeds surrendered or returned. This Section
9
shall
remain effective notwithstanding any contrary action that may be taken by Agent
and any Obligee in reliance upon such payment or proceeds. This Section
9
shall
survive the termination or revocation of this Guaranty.
10. Amendments
and Waivers.
Neither
this Guaranty nor any provision hereof shall be amended, modified, waived or
discharged orally or by course of conduct, but only by a written agreement
signed by Agent, for the benefit of himself and Obligees. Agent shall not by
any
act, delay, omission or otherwise be deemed to have expressly or impliedly
waived any of his rights, powers and/or remedies unless such waiver shall be
in
writing and signed by Agent. Any such waiver shall be enforceable only to the
extent specifically set forth therein. A waiver by Agent of any right, power
and/or remedy on any one occasion shall not be construed as a bar to or waiver
of any such right, power and/or remedy which Agent would otherwise have on
any
future occasion, whether similar in kind or otherwise.
11. Corporate
Existence, Power and Authority.
Resolve
represents and warrants to Agent and Obligees as follows: (a) Resolve is a
corporation duly organized and in good standing under the laws of its state
of
incorporation and is duly qualified as a foreign corporation in good standing
in
all states or other jurisdictions where the nature and extent of the business
transacted by it or the ownership of assets makes such qualification necessary;
(b) the execution, delivery and performance of this Guaranty is within the
powers of Resolve, has been duly authorized and is not in contravention of
law
or the terms of the certificate of incorporation, by-laws, or other
| ||
organizational
documentation of Resolve, or any indenture, agreement or undertaking to which
Resolve is a party or by which Resolve or its property are bound; (c) this
Guaranty constitutes the legal, valid and binding obligation of Resolve
enforceable in accordance with its terms, except as such enforceability may
be
limited by (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
and (ii) general principles of equity.
12. Financial
Condition of Obligor.
Resolve
represents and warrants to Agent and Obligees that Resolve is currently informed
of the financial condition of Obligor and of all other circumstances that a
diligent inquiry would reveal and which bear upon the risk of nonpayment of
the
Guaranteed Obligations. Resolve further represents and warrants to Agent and
Obligees that Resolve has read and understands the terms and conditions of
the
Notes and other Security Documents. Resolve hereby covenants that it will
continue to keep informed of Obligor’s financial condition and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the
Guaranteed Obligations.
13. Representation
and Warranties.
Resolve
acknowledges and agrees that each of the representations and warranties made
by
itself or Obligor in the Notes and the Security Documents with respect to itself
or Obligor are true, correct and complete.
14. Covenants.
Until
the termination or expiration of the Notes and the Security Documents and
payment and satisfaction of all Guaranteed Obligations due or to become due
thereunder, Resolve agrees that, unless Obligees shall have otherwise consented
in writing, Resolve shall not take, or fail to take, any action which would
cause it or Obligor to be in violation or breach of any or all of the covenants
contained in the Notes and the Security Documents.
15. Governing
Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The
validity, interpretation and enforcement of this Guaranty and any dispute
arising out of the relationship between Resolve, Agent and any Obligee, whether
in contract, tort, equity or otherwise, shall be governed by the internal laws
of the State of Ohio (without giving effect to principles of conflicts of
law).
(b) Resolve
hereby irrevocably consents and submits to the non-exclusive jurisdiction of
the
state and federal courts located in Xxxxxxxx County in the State of Ohio and
waives any objection based on venue or forum non conveniens with respect to
any
action instituted therein arising under this Guaranty or any of the other
Security Documents or in any way connected with or related or incidental to
the
dealings of Resolve, Obligor, Agent and Obligees in respect of this Guaranty
or
any of the other Security Documents or the transactions related hereto or
thereto, in each case whether now existing or hereafter arising and whether
in
contract, tort, equity or otherwise. Resolve agrees that any dispute arising
out
of the relationship between Resolve, Obligor, and Agent and Obligees or the
conduct of any such persons in connection with this Guaranty, the other Security
Documents or otherwise shall be heard only in the courts described above (except
that Agent shall have the right to bring any action or proceeding against
Resolve or its property in the courts of any other jurisdiction which Agent
deems necessary or appropriate in order to realize on any collateral at any
time
granted by
| ||
Obligor
or Resolve to Agent and Obligees or to otherwise enforce its rights against
Resolve or its property).
(c) Resolve
hereby waives personal service of any and all process upon it and consents
that
all such service of process may be made by certified mail (return receipt
requested) directed to its address set forth in Section
16
hereof
and service so made shall be deemed to be completed three (3) business days
after the same shall have been so deposited in U.S. mail, or, at Agent’s option,
by service upon Resolve in any other manner provided under the rules of any
such
courts. Within thirty (30) days after such service, Resolve shall appear in
answer to such process, failing which Resolve shall be deemed in default and
judgment may be entered by Agent against Resolve for the amount of the claim
and
other relief requested.
(d) RESOLVE
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION (i) ARISING UNDER THIS GUARANTY OR ANY OF THE OTHER SECURITY DOCUMENTS
OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF
RESOLVE AND AGENT AND OBLIGEES IN RESPECT OF THIS GUARANTY OR ANY OF THE OTHER
SECURITY DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY
OR OTHERWISE. RESOLVE HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT RESOLVE OR AGENT OR OBLIGEES MAY FILE AN ORIGINAL COUNTERPART OF A COPY
OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF RESOLVE,
AGENT AND OBLIGEES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Resolve
hereby irrevocably authorizes and empowers any attorney-at-law to appear for
Resolve in any action upon or in connection with this Guaranty at any time
after
any of the obligations of Resolve under this Guaranty becomes due in any court
in or of the State of Ohio or elsewhere, and waives the issuance and service
of
process with respect thereto, and irrevocably authorizes and empowers any such
attorney-at-law to confess judgment in favor of Agent or any Obligee against
Resolve, the amount due thereon or hereon, plus interest as herein provided,
and
all costs of collection, and waive and release all errors in any said
proceedings and judgments and all rights of appeal from the judgment rendered.
Resolve agrees and consents that the attorney confessing judgment on behalf
of
Resolve hereunder may also be counsel to Agent, any Obligee, and/or any
affiliate or affiliates of Agent or any Obligee, and Resolve hereby further
waives any conflict of interest which might otherwise arise and consents to
Agent's or any Obligee’s paying such confessing attorney a legal fee or allowing
such attorneys' fees to be paid from proceeds of collection of this Guaranty
and/or any and all collateral and security for the obligations of Resolve
hereunder. This
power-of-attorney shall be deemed to be a power coupled with an interest, and
is
irrevocable.
(f) Agent
and
Obligees shall not have any liability to Resolve (whether in tort, contract,
equity or otherwise) for losses suffered by Resolve in connection with, arising
out of, or in any way related to the transactions or relationships contemplated
by this Guaranty, or any act, omission or event occurring in connection
herewith, unless it is determined by a final and non-appealable judgment or
court order binding on Agent and Obligees that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct of the
Agent and Obligees. In any such litigation, Agent and Obligees shall be entitled
to the benefit of the rebuttable presumption that they acted in good faith
and
with the exercise of ordinary care in the performance by them of the terms
of
the Notes and the other Security Documents.
16. Notices.
All
notices and correspondences hereunder shall be in writing and sent by certified
or registered mail return receipt requested, or by overnight delivery service,
with all charges prepaid, or by facsimile transmission, promptly confirmed
in
writing sent by first class mail, as follows:
If
to the
Agent: Xxxxxx
X.
Xxxxxxxx
0000
Xxxx
Xxxxx
Xxxxxxxxxx,
Xxxx 00000
Facsimile:
(___) ___-____
with
a
copy to: Xxxxxx
X.
Xxxxxxx, Esq.
Xxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxx 00000-0000
Facsimile:
(000) 000-0000
If
to
Resolve: Resolve
Staffing, Inc.
0000
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Facsimile:
(___) ___-____
with
a
copy to: Xxxx
Xxxxxx, Esq.
0000
Xxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
All
such
notices and correspondence shall be deemed given (i) if sent by certified or
registered mail, three (3) business days after being postmarked, (ii) if sent
by
overnight delivery service, when received at the above stated addresses or
when
delivery is refused and (iii) if sent by facsimile transmission, when receipt
of
such transmission is acknowledged; provided
that
notices to the Agent shall not be effective until received.
17. Partial
Invalidity.
If any
provision of this Guaranty is held to be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate this Guaranty as a whole,
but this Guaranty shall be construed as though it did not contain the particular
provision held to be invalid or unenforceable and the rights and obligations
of
the parties shall be construed and enforced only to such extent as shall be
permitted by applicable law.
18. Entire
Agreement.
This
Guaranty represents the entire agreement and understanding of this parties
concerning the subject matter hereof, and supersedes all other prior agreements,
understandings, negotiations and discussions, representations, warranties,
commitments, proposals, offers and contracts concerning the subject matter
hereof, whether oral or written.
19. Successors
and Assigns.
This
Guaranty shall be binding upon Resolve and its successors and assigns and shall
inure to the benefit of Agent and Obligees and their successors, endorsees,
transferees and assigns; provided,
however,
that
Resolve shall not assign this Guaranty or delegate any of its duties hereunder
without the prior written consent of Agent and Obligees and any assignment
obtained without such consent shall be absolutely void. The liquidation,
dissolution or termination of Resolve shall not terminate this Guaranty as
to
Resolve.
20. Construction.
All
references to “Resolve” wherever used herein shall mean Resolve and its
successors and assigns (including, without limitation, any receiver, trustee
or
custodian for Resolve or any of its assets or Resolve in its capacity as debtor
or debtor-in-possession under the United States Bankruptcy Code). All references
to “Agent” or “Obligees” wherever used herein shall mean Agent or Obligees and
their respective personal representatives, heirs, and assigns and all references
to “Obligor” wherever used herein shall mean Obligor and its successors and
assigns (including, without limitation, any receiver, trustee or custodian
for
Obligor or any of its assets or Obligor in its capacity as debtor or
debtor-in-possession under the United States Bankruptcy Code). All references
to
the plural shall also mean the singular and to the singular shall also mean
the
plural.
WARNING--BY
SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU
DO
NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS,
FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
[signature
page follows]
| ||
IN
WITNESS WHEREOF, Resolve has executed and delivered this Guaranty as of October
1st,
2006
first above written.
RESOLVE
STAFFING, INC.
By:
/s/ Xxxxxx Xxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxx
Title:
Director and Authorized Representative
