CONTINUING GUARANTY
Exhibit
10.2
TO: XXXXX
FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to CORPORATE
RESOURCE SERVICES, INC., any of its direct or indirect subsidiaries, whether now
existing or hereafter formed, or any of their successors or assigns (each, an
“Obligor” and together, “Obligors”) by XXXXX FARGO BANK, NATIONAL ASSOCIATION
(together with all its participants, successors and assigns, “WFBC”), and for
other valuable consideration, the undersigned DIAMOND STAFFING SERVICES, INC., a
Delaware corporation (“Guarantor”), jointly and severally unconditionally
guarantees and promises to pay to WFBC, or order, on demand in lawful money of
the United States of America and in immediately available funds, any and all
Obligations. The term “Obligations” is used in its most comprehensive
sense and means any and all debts, obligations and liabilities of each Obligor
to WFBC, whether incurred in the past, present or future, whether voluntary or
involuntary, and however arising, and whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether or
not such Obligor may be liable individually or jointly or jointly and severally
with others, or whether recovery upon such Obligations may subsequently become
unenforceable. This Guaranty is a guaranty of payment and not
collection.
2. SUCCESSIVE TRANSACTIONS;
REVOCATION; OBLIGATION UNDER OTHER GUARANTIES. This is a
continuing guaranty and all rights, powers and remedies hereunder shall apply to
all past, present and future Obligations, including those arising under
successive transactions which shall either continue the Obligations, increase or
decrease them, or from time to time create new Obligations after all or any
prior Obligations have been satisfied, and notwithstanding the death,
incapacity, dissolution, liquidation or bankruptcy of any Obligor or Guarantor
or any other event or proceeding affecting any Obligor or
Guarantor. This Guaranty shall not apply to any new Obligations
created after actual receipt by WFBC of written notice of Guarantor’s revocation
as to such new Obligations; provided, however, that any financial accommodations
made by WFBC to any Obligor after revocation under commitments existing prior to
receipt by WFBC of such revocation, and extensions, renewals or modifications,
of any kind, of Obligations incurred by any Obligor or committed by WFBC prior
to receipt by WFBC of such notice of revocation, shall not be considered new
Obligations. Any such notice must be sent to WFBC by registered U.S.
mail, postage prepaid, addressed to its office at Xxxxx Fargo Bank, National
Association; MAC C7300-060; 0000 Xxxxxxxx, 0xx Xxxxx; Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, or at such
other address as WFBC shall from time to time designate. Any payment
made by Guarantor under this Guaranty shall be effective to reduce or discharge
Guarantor’s maximum obligation hereunder only if accompanied by a written notice
to that effect, received by WFBC, advising WFBC that such payment is made under
this Guaranty for such purpose. The obligations of Guarantor under
this Guaranty shall be in addition to any obligations of Guarantor under any
other guaranties of any liabilities or obligations of any Obligor or other
Persons that may be given to WFBC at any time, unless the other guaranties are
expressly modified or revoked in writing; and this Guaranty shall not, unless
expressly provided for in this Guaranty, affect or invalidate any such other
guaranties. As used herein, “Person” means any individual,
corporation, partnership, joint venture, limited liability company, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision of a governmental entity.
3. LIMITATION; INSOLVENCY
LAWS. As used in this paragraph: (a) the term “Applicable
Insolvency Laws” means the laws of the United States of America, or of any
state, province, nation or other governmental unit relating to bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other similar
laws (including, without limitation, 11 U.S.C. §547, §548, §550 and other
“avoidance” provisions of Title 11 of the United Stated Code) as applicable in
any proceeding in which the validity or enforceability of this Guaranty or any
Specified Lien is in issue; and (b) “Specified Lien” means any security
interest, mortgage, lien or encumbrance securing this Guaranty, in whole or in
part. Notwithstanding any other provision of this Guaranty, if, in any
proceeding, a court of competent jurisdiction determines that this Guaranty or
any Specified Lien would, but for the operation of this paragraph, be subject to
avoidance or recovery or be unenforceable by reason of Applicable Insolvency
Laws, this Guaranty and each such Specified Lien shall be valid and enforceable
only to the maximum extent that would not cause this Guaranty or such Specified
Lien to be subject to avoidance, recovery or unenforceability. To the
extent that any payment to, or realization by, WFBC on the guaranteed
Obligations exceeds the limitations of this paragraph and is otherwise subject
to avoidance and recovery in any such proceeding, the amount subject to
avoidance shall in all events be limited to the amount by which such actual
payment or realization exceeds such limitation, and this Guaranty as limited
shall in all events remain in full force and effect and be fully enforceable
against Guarantor. This paragraph is intended solely to reserve the rights
of WFBC hereunder against Guarantor in such proceeding to the maximum extent
permitted by Applicable Insolvency Laws and neither Guarantor, any Obligor, any
other guarantor of the Obligations, nor any other Person shall have any right,
claim or defense under this paragraph that would not otherwise be available
under Applicable Insolvency Laws in such proceeding. The Obligations may
be created and continued in any amount, whether or not in excess of the amount
not subject to avoidance, without affecting or impairing Guarantor’s liability
hereunder, and WFBC may pay (or allow for the payment of) the excess out of any
sums received by or available to WFBC on account of the Obligations from any
Obligor or any other Person (except Guarantor), from their properties, out of
any collateral security or from any other source, and such payment (or
allowance) shall not reduce, affect or impair Guarantor’s liability
hereunder.
4. OBLIGATIONS JOINT AND
SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT OF
LIABILITY. The obligations of Guarantor under this Guaranty
are joint and several and independent of the obligations of Obligors, and a
separate action or actions may be brought and prosecuted against Guarantor,
whether the action is brought against any Obligor or other Persons, or whether
any Obligor or other Persons are joined in any such action or
actions. Guarantor acknowledges that this Guaranty is absolute and
unconditional, that there are no conditions precedent to the effectiveness of
this Guaranty, and that this Guaranty is in full force and effect and binding on
Guarantor as of the date written below, regardless of whether WFBC obtains
collateral or any guaranties from others or takes any other action contemplated
by Guarantor. Guarantor waives the benefit of any statute of
limitations affecting the enforcement of Guarantor’s liability under this
Guaranty, and Guarantor agrees that any payment of any Obligations or other act
which shall toll any applicable statute of limitations shall similarly toll the
statute of limitations applicable to Guarantor’s liability under this
Guaranty. The liability of Guarantor hereunder shall be reinstated
and revived and the rights of WFBC shall continue if and to the extent for any
reason any amount at any time paid on account of any Obligations guaranteed
hereby is rescinded or must otherwise be restored by WFBC, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, all as though
such amount had not been paid. The determination as to whether any
amount so paid must be rescinded or restored shall be made by WFBC in its sole
discretion; provided, however, that if WFBC chooses to contest any such matter
at the request of Guarantor, Guarantor agrees to indemnify and hold WFBC
harmless from and against all costs and expenses, including reasonable
attorneys’ fees of outside counsel, expended or incurred by WFBC in connection
therewith, including without limitation, in any litigation with respect
thereto.
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5. AUTHORIZATIONS TO
WFBC. Guarantor authorizes WFBC either before or after
revocation hereof, without notice to or demand on Guarantor, and without
affecting Guarantor’s liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Obligations or any portion thereof,
including increase or decrease of the rate of interest thereon; (b) take and
hold security for the payment of this Guaranty or the Obligations or any portion
thereof, and exchange, enforce, waive, subordinate or release any such security;
(c) apply such security and direct the order or manner of sale thereof,
including without limitation, a non-judicial sale permitted by the terms of the
controlling security agreement, mortgage or deed of trust, as WFBC in its
discretion may determine; (d) release or substitute any one or more of the
endorsers or any other guarantors of the Obligations, or any portion thereof, or
any other party thereto; and (e) apply payments received by WFBC from any
Obligor to any portion of the Obligations, in such order as WFBC shall determine
in its sole discretion, whether or not such Obligations are covered by this
Guaranty, and Guarantor hereby waives any provision of law regarding application
of payments which specifies otherwise. WFBC may without notice assign
this Guaranty in whole or in part. Upon WFBC’s request, Guarantor
agrees to provide to WFBC copies of Guarantor’s financial
statements.
6. REPRESENTATIONS, WARRANTIES
AND COVENANTS. Guarantor represents, warrants and covenants to
WFBC that: (a) this Guaranty is executed at each Obligor’s request; (b)
Guarantor shall not, without WFBC’s prior written consent, sell, lease, assign,
encumber, hypothecate, transfer or otherwise dispose of all or a substantial or
material part of Guarantor’s assets other than in the ordinary course of
Guarantor’s business; (c) WFBC has made no representation to Guarantor as to the
creditworthiness of any Obligor; and (d) Guarantor has established adequate
means of obtaining from each Obligor on a continuing basis financial and other
information pertaining to such Obligor’s financial
condition. Guarantor agrees to keep adequately informed of any facts,
events or circumstances which might in any way affect Guarantor’s liability
under this Guaranty, and Guarantor further agrees that WFBC shall have no
obligation to disclose to Guarantor any information or material about any
Obligor which is acquired by WFBC in any manner.
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7. GUARANTOR’S
WAIVERS.
(a)
Guarantor waives any right to require WFBC to: (i) proceed against any
Obligor or any other Person; (ii) marshal assets or proceed against or
exhaust any security granted by any Obligor or any other Person; (iii) give
notice of the terms, time and place of any public or private sale or other
disposition of personal property security granted by any Obligor or any other
Person; (iv) take any other action or pursue any other remedy in WFBC’s power;
or (v) make any presentment or demand for performance, or give any notice
of nonperformance, protest, notice of protest or notice of dishonor hereunder or
in connection with any obligations or evidences of indebtedness held by WFBC as
security for or which constitute in whole or in part the Obligations guaranteed
hereunder, or in connection with the creation of new or additional
Obligations.
(b)
Guarantor waives any defense to its obligations hereunder based upon or arising
by reason of: (i) any disability or other defense of any Obligor or any other
Person; (ii) the cessation or limitation from any cause whatsoever, other than
payment in full, of the Obligations or the indebtedness of any other Person;
(iii) any lack of authority of any officer, director, partner, agent or any
other Person acting or purporting to act on behalf of any Obligor, if it is a
corporation, partnership or other type of entity, or any defect in the formation
of any Obligor; (iv) the application by any Obligor of the proceeds of any
Obligations for purposes other than the purposes represented by such Obligor to,
or intended or understood by, WFBC or Guarantor; (v) any act or omission by WFBC
which directly or indirectly results in or aids the discharge of any Obligor or
any portion of the Obligations by operation of law or otherwise, or which in any
way impairs or suspends any rights or remedies of WFBC against any Obligor; (vi)
any impairment of the value of any interest in any security for the Obligations
or any portion thereof, including without limitation, the failure to obtain or
maintain perfection or recordation of any interest in any such security, the
release of any such security without substitution, or the failure to preserve
the value of, or to comply with applicable law in disposing of, any such
security; (vii) any modification of the Obligations, in any form
whatsoever, including any modification made after revocation hereof to any
Obligations incurred prior to such revocation, and including without limitation
the renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Obligations or any portion thereof; or (viii)
any requirement that WFBC give any notice of acceptance of this
Guaranty. Until all Obligations have been paid in full, Guarantor
shall have no right of subrogation, and Guarantor waives any right to enforce
any remedy which WFBC now has or may hereafter have against any Obligor or any
other Person, and waives any benefit of, or any right to participate in, any
security now or hereafter held by WFBC. Guarantor further waives all
rights and defenses Guarantor may have arising out of (A) any election of
remedies by WFBC, even though that election of remedies, such as a non-judicial
foreclosure with respect to any security for any portion of the Obligations,
destroys Guarantor’s rights of subrogation or Guarantor’s rights to proceed
against any Obligor for reimbursement, or (B) any loss of rights Guarantor
may suffer by reason of any rights, powers or remedies of any Obligor in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging the Obligations, whether by operation of law or otherwise,
including any rights Guarantor may have to a fair market value hearing to
determine the size of a deficiency following any foreclosure sale or other
disposition of any real property security for any portion of the
Obligations.
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8. WFBC’S RIGHTS WITH RESPECT
TO GUARANTOR’S PROPERTY IN WFBC’S POSSESSION. In addition to
all liens upon and rights of setoff against the monies, securities or other
property of Guarantor given to WFBC by law, WFBC shall have a lien upon and a
right of setoff against all monies, securities and other property of Guarantor
now or hereafter in the possession of or on deposit with WFBC, whether held in a
general or special account or deposit or for safekeeping or otherwise, and every
such lien and right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of WFBC, or by any neglect to exercise
such right of setoff or to enforce such lien, or by any delay in so doing, and
every right of setoff and lien shall continue in full force and effect until
such right of setoff or lien is specifically waived or released by WFBC in
writing.
9. SUBORDINATION. Any
and all indebtedness of each Obligor now or hereafter held by Guarantor is
hereby subordinated to the Obligations. Such indebtedness of each
Obligor to Guarantor is assigned to WFBC as security for this Guaranty and the
Obligations and, if WFBC requests, shall be collected and received by Guarantor
as trustee for WFBC and paid over to WFBC on account of the Obligations but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty. Any notes or other instruments now
or hereafter evidencing such indebtedness of an Obligor to Guarantor shall be
marked with a legend that indicates that the notes or other instruments are
subject to this Guaranty and, if WFBC so requests, such notes and instruments
shall be delivered to WFBC. WFBC is hereby authorized in the name of Guarantor
from time to time to file financing statements and continuation statements and
execute such other documents and take such other action as WFBC deems necessary
or appropriate to perfect, preserve and enforce its rights
hereunder.
10. REMEDIES; NO
WAIVER. All rights, powers and remedies of WFBC hereunder are
cumulative. No delay, failure or discontinuance of WFBC in exercising
any right, power or remedy hereunder shall affect or operate as a waiver of such
right, power or remedy; nor shall any single or partial exercise of any such
right, power or remedy preclude, waive or otherwise affect any other or further
exercise thereof or the exercise of any other right, power or
remedy. Any waiver, permit, consent or approval of any kind by WFBC
of any breach of this Guaranty, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent
set forth in writing.
11. COSTS, EXPENSES AND
ATTORNEYS’ FEES. Guarantor shall pay to WFBC immediately upon
demand the full amount of all payments, advances, charges, costs and expenses,
including reasonable attorneys’ fees of
outside counsel, expended or incurred by WFBC in connection with the enforcement
of any of WFBC’s rights, powers or remedies or the collection of any amounts
which become due to WFBC under this Guaranty, and the prosecution or defense of
any action in any way related to this Guaranty, whether incurred at the trial or
appellate level, in an arbitration proceeding or otherwise, and including any of
the foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought
by WFBC or any other Person) relating to Guarantor or any other
Person. All of the foregoing shall be paid by Guarantor with interest
from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or WFBC’s Prime Rate in effect from time to
time.
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12. SUCCESSORS;
ASSIGNMENT. This Guaranty shall be binding upon and inure to
the benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided, however, that Guarantor may not
assign or transfer any of its interests or rights hereunder without WFBC’s prior
written consent. Guarantor acknowledges that WFBC has the right to
sell, assign, transfer, negotiate or grant participations in all or any part of,
or any interest in, the Obligations and any obligations with respect thereto,
including this Guaranty. In connection therewith, WFBC may disclose
all documents and information which WFBC now has or hereafter acquires relating
to Guarantor or this Guaranty, whether furnished by an Obligor, Guarantor or
otherwise; provided that, to the extent that such documents and information are
identified as confidential, WFBC shall inform each Person to whom such
disclosures are made of the confidential nature of such documents and
information and each such Person shall agree to treat such documents and
information as confidential in accordance with terms and conditions no less
protective than those applicable to WFBC. Guarantor further agrees
that WFBC may disclose such documents and information to any
Obligor.
13. AMENDMENT. This
Guaranty may be amended or modified only in writing signed by WFBC and
Guarantor.
14. INTERPRETATION. When
this Guaranty is executed by more than one Guarantor, the word “Guarantor” shall
mean all or any one or more of them as the context requires. Unless
the context clearly requires otherwise, the word “or” has the inclusive meaning
represented by the phrase “and/or”.
15. UNDERSTANDING WITH RESPECT
TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor warrants and
agrees that each of the waivers set forth herein is made with Guarantor’s full
knowledge of its significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any waiver or other provision of this Guaranty shall be held
to be prohibited by or invalid under applicable public policy or law, such
waiver or other provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such waiver or
other provision or any remaining provisions of this Guaranty.
16. GOVERNING
LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Colorado.
17. WAIVER OF
JURY TRIAL. GUARANTOR
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO THIS
GUARANTY.
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IN WITNESS WHEREOF, the undersigned
Guarantor has executed this Guaranty as of January 31, 2011.
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DIAMOND
STAFFING SERVICES, INC.
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By:
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/s/ Xxx X. Xxxxxxxx
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Name: Xxx
X. Xxxxxxxx
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Its: Chief
Executive Officer
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Signature
Page to Diamond Staffing Services, Inc’s Guaranty
