EXHIBIT 10.2
HOLDINGS GUARANTY
This Guaranty (this "GUARANTY") is dated as of September 30, 2004 by
COMSYS HOLDING, INC., a Delaware corporation ("COMSYS HOLDINGS"), COMSYS IT
Partners, Inc., a Delaware corporation ("HOLDINGS"), and PFI Corp., a Delaware
corporation ("PFI HOLDINGS"; PFI Holdings together with Holdings and COMSYS
Holdings 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 of even date hereof (as
the same may be amended, restated, modified or supplemented and in effect from
time to time, the "CREDIT AGREEMENT") by and among the Guarantors, COMSYS
Services LLC, a Delaware limited liability company ("COMSYS SERVICES"), COMSYS
Information Technology Services, Inc., a Delaware corporation ("COMSYS IT"),
Venturi Technology Partners, LLC, a North Carolina limited liability company
("VTP"; VTP together with COMSYS Services and COMSYS IT are sometimes referred
to herein individually as a "BORROWER" and collectively as the "BORROWERS"),
COMSYS Services, in its capacity as borrowing agent and funds administrator for
the Borrowers, the Lenders from time to time party thereto and the Agent. As one
of the conditions to making 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 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
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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 the
possession of Agent or any Lender or any Affiliates thereof, whether for deposit
or otherwise.
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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.
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
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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 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 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 Holdings Security Agreement dated of even date herewith by
and between each Guarantor 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.
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
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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 12 of the
Credit Agreement, mutatis mutandi.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantors
as of the date first written above.
GUARANTORS:
COMSYS HOLDING, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President - Corporate
Development
PFI CORP., a Delaware corporation
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President - Corporate
Development
COMSYS IT PARTNERS, INC., a Delaware
corporation
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
Holdings Guaranty
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