GUARANTY BY CORPORATION
Exhibit 10.7
GUARANTY BY CORPORATION
Denver, Colorado
April 29, 2008
April 29, 2008
This Guaranty, dated as of April 29, 2008, is made by GLOBAL EMPLOYMENT HOLDINGS, INC., a
Delaware corporation (the “Guarantor”), for the benefit of XXXXX FARGO BANK, NATIONAL ASSOCIATION
(with its participants, successors and assigns, the “Lender”), acting through its Xxxxx Fargo
Business Credit operating division.
The Lender, 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
Michaels & Associates, Inc. and successor by merger to Temporary Placement 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”), Southeastern Staffing VI, Inc., a Florida corporation
(“SEVI”), and Keystone Alliance, Inc., a Florida corporation (“Keystone”) (Global, Excell,
Friendly, TPS, Southeastern, SPM, Main Line, BHR, SGHR, SEII, SEIII, SEIV, SEV, SEVI, and Keystone
are each referred to herein as a “Borrower” and collectively as the “Borrowers”), are parties to a
Credit and Security Agreement of even date herewith (as the same may be amended, supplemented or
restated from time to time, the “Credit Agreement”) pursuant to which the Lender may make advances
and extend other financial accommodations to the Borrowers.
As a condition to extending such credit to the Borrowers, the Lender 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 Credit Agreement that are not otherwise
defined herein shall have the meanings given them in the Credit Agreement.
2. Indebtedness Guaranteed. The Guarantor hereby absolutely and unconditionally
guarantees to the Lender the full and prompt payment when due, whether at maturity or earlier by
reason of acceleration or otherwise, of the Indebtedness.
3. Guarantor’s Representations and Warranties. The Guarantor represents and warrants to
the Lender that (i) the Guarantor is a corporation, duly organized and existing in good standing
and has full power and authority to make and deliver this Guaranty; (ii) the execution, delivery
and performance of this Guaranty by the Guarantor have been duly authorized by all necessary action
of its directors and shareholders and do not and will not violate the provisions of, or constitute
a default under, any presently applicable law or its Constituent Documents or any agreement
presently binding on it; (iii) this Guaranty has been duly executed and delivered by the authorized
Officers of the Guarantor and constitutes its lawful, binding and legally enforceable obligation;
and (iv) the authorization, execution, delivery and performance of this Guaranty do not require
notification to, registration with, or consent or approval by, any federal, state or local
regulatory body or administrative agency. The Guarantor represents and warrants to the Lender that
the Guarantor has a direct and substantial economic interest in each 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 the
Indebtedness guarantied hereby, and that this Guaranty is given for a corporate purpose. The
Guarantor agrees to rely exclusively on the right to revoke this Guaranty prospectively as to
future transactions, in accordance with paragraph 4, if at any time, in the opinion of the
directors or officers, the benefits then being received by the Guarantor in connection with this
Guaranty are not sufficient to warrant the continuance of this Guaranty as to the future
Indebtedness of each Borrower. Accordingly, so long as this Guaranty is not revoked prospectively
in accordance with paragraph 4, the Lender may rely conclusively on a continuing warranty, hereby
made, that the Guarantor continues to be benefited by this Guaranty and the Lender shall have no
duty to inquire into or confirm the receipt of any such benefits, and this Guaranty shall be
effective and enforceable by the Lender without regard to the receipt, nature or value of any such
benefits.
4. Unconditional Nature. No act or thing need occur to establish the Guarantor’s
liability 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 the Lender, 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 the Lender, or as to any renewals, extensions,
refinancings or refundings thereof.
5. Dissolution or Insolvency of Guarantor. The dissolution or adjudication of
bankruptcy of the Guarantor shall not revoke this Guaranty, except upon actual receipt of written
notice thereof by the Lender and only prospectively, as to future transactions, as herein set
forth. If the Guarantor shall be dissolved or shall be or become insolvent (however defined), then
the Lender shall have the right to declare immediately due and payable, and the Guarantor will
forthwith pay to the Lender, 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 Indebtedness,
whether due and payable or unmatured, shall be immediately due and payable without demand or notice
thereof.
2
6. Subrogation. The Guarantor will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to the Guarantor as to any of the Indebtedness, or
against any Person liable therefor, or as to any collateral security therefor, unless and until all
of the Indebtedness shall have been fully paid and discharged.
7. Enforcement Expenses. The Guarantor will pay or reimburse the Lender for all
costs, expenses and attorneys’ fees paid or incurred by the Lender in endeavoring to collect and
enforce the Indebtedness and in enforcing this Guaranty.
8. Lender’s Rights. The Lender shall not be obligated by reason of its acceptance of
this Guaranty to engage in any transactions with or for any Borrower. Whether or not any existing
relationship between the Guarantor and any Borrower has been changed or ended and whether or not
this Guaranty has been revoked, the Lender 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 the Lender 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, 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 loan agreement or other agreement under which the
Indebtedness or any part thereof arose; (iii) any waiver or indulgence granted to any Borrower, 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 xxx, any
Borrower 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 the Lender 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.
3
9. Waivers by Guarantor. The Guarantor waives any and all defenses, claims, setoffs and
discharges of any Borrower, 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 the Lender 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 any Borrower or any other Person liable in respect of any of the Indebtedness,
or any setoff available against the Lender to any Borrower 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
interest securing the Indebtedness, whether or not the liability of any Borrower 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 of 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, any Borrower or any assets of any Borrower. The Guarantor will not assert,
plead or enforce against the Lender any claim, defense or setoff available to the Guarantor against
any Borrower. The Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment and protest of any instrument evidencing the Indebtedness. The Lender shall not be
required first to resort for payment of the Indebtedness to any Borrower or other Persons, or their
properties, or first to enforce, realize upon or exhaust any collateral security for the
Indebtedness, before enforcing this Guaranty.
10. If Payments Set Aside, etc. If any payment applied by the Lender 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 any Borrower
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.
11. 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 the Lender
as guarantor, surety, endorser, accommodation co-obligor or otherwise of any of the Indebtedness or
obligation of any Borrower, without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the contrary.
12. Financial Information. The Guarantor will deliver to the Lender all financial
information concerning the Guarantor required to be delivered under the Credit Agreement.
4
13. No Duties Owed by Lender. The Guarantor acknowledges and agrees that the Lender
(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 any Borrower
or any guarantor. The Guarantor has independently determined the creditworthiness of each Borrower
and the enforceability of the Indebtedness and until the Indebtedness is paid in full will
independently and without reliance on the Lender continue to make such determinations.
14. Miscellaneous. This Guaranty shall be effective upon delivery to the Lender,
without further act, condition or acceptance by the Lender, shall be binding upon the Guarantor and
the successors and assigns of the Guarantor and shall inure to the benefit of the Lender 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 the Lender. 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 any argument that
venue in any such forum is not convenient, (iii) agrees that any litigation initiated by the Lender
or the Guarantor in connection with this Guaranty may be venued in either the state or federal
courts located in the City and County of Denver, 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. Waiver of Jury Trial. THE GUARANTOR 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.
[The remainder of this page intentionally left blank.]
5
IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor the date first
written above.
| GLOBAL EMPLOYMENT HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Its: Chief Financial Officer | ||||
Address: |
00000 Xxxx Xxxxxxx Xx., Xxxxx 000 | |||
| Lone Tree, Colorado 80124 | ||||
STATE OF COLORADO |
) | |||
| ) ss | ||||
CITY AND COUNTY OF DENVER |
) | |||
The foregoing instrument was acknowledged before me this 29th day of April, 2008,
by Xxxxxx X. Xxxxxxxxxx, the Chief Financial Officer of Global Employment Holdings, Inc., a
Delaware corporation, on behalf of the corporation.
| Notary Public |
||||
