EXHIBIT 10.8.30
CONTINUING
GUARANTY
[Parent
Guarantor]
FOR VALUE
RECEIVED, and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted
to WESTAFF (USA), INC., a California corporation (“
Borrower ”), by Agent or any Lender under (and as such
terms are defined in) the Financing Agreement referred to below,
the undersigned, WESTAFF, INC., a Delaware corporation (“
Guarantor ”), hereby agrees as follows:
1.
Guaranty of
Obligations . Guarantor unconditionally,
absolutely and irrevocably guarantees the full and prompt payment
and performance when due, whether by acceleration or otherwise, and
at all times thereafter, of all present and future Obligations of
Borrower to Agent or any Lender or other Secured Party
(collectively, the “ Benefited Parties ”) under
(and as such terms are defined in ) the Financing Agreement dated
as of even date herewith, by and among Borrower, Guarantor, the
Lenders party thereto, and U.S. Bank National Association, as Agent
(as the same may hereafter from time to time be amended, modified,
or restated, the “ Financing Agreement ”), and
each of the other agreements, documents and instruments entered
into by Borrower in connection therewith (all such Obligations are
hereinafter referred to collectively as the “
Liabilities ”). This Continuing Guaranty
(this “ Guaranty ”) is a guaranty of payment and
performance when due and not a guaranty of collection.
Capitalized terms used but not defined herein shall have the
meaning given to them in the Financing Agreement.
In the event of
any default by Borrower in making payment of, or default by
Borrower in performance of, any of the Liabilities, Guarantor
agrees on demand by Agent, on behalf of all of the Benefited
Parties, to pay and perform all of the Liabilities as are then or
thereafter become due and owing to any or all of the Benefited
Parties or are to be performed by Borrower under the terms of the
Loan Documents. Guarantor further agrees to pay all
expenses (including Attorneys’ Fees) paid or incurred by
Agent, on behalf of the Benefited Parties, in endeavoring to
collect the Liabilities, or any part thereof, and in enforcing this
Guaranty.
2.
Continuing Nature of
Guaranty and Liabilities . This Guaranty shall be continuing
and shall not be discharged, impaired or affected by:
(a)
the insolvency of Borrower or the payment in full of all of the
Liabilities at any time or from time to time;
(b)
the power or authority or lack thereof of Borrower to incur the
Liabilities;
(c)
the validity or invalidity of any of the Loan Documents or the
documents securing the same;
(d)
the existence or non-existence of Borrower as a legal entity;
(e)
any transfer by Borrower of all or any part of any collateral in
which Agent has been granted a lien or security interest pursuant
to the Loan Documents;
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(f)
any statute of limitations affecting the liability of Guarantor
under this Guaranty or the Loan Documents or the ability of Agent
to enforce this Guaranty or any provision of the Loan Documents;
or
(g)
any right of offset, counterclaim or defense of Guarantor,
including, without limitation, those which have been waived by
Guarantor pursuant to Paragraph 6(g) hereof.
3.
Insolvency of Borrower
or Guarantor . Without limiting the generality of
any other provision hereof, Guarantor agrees that, in the event of
the dissolution or insolvency of Borrower or Guarantor or the
inability of Borrower or Guarantor to pay its debts as they mature,
or an assignment by Borrower or Guarantor for the benefit of
creditors, or the institution of any proceeding by or against
Borrower or Guarantor alleging that Borrower or Guarantor is
insolvent or unable to pay its debts as they mature, Guarantor will
pay to Agent forthwith the full amount which would be payable
hereunder by Guarantor if all of the Liabilities were then due and
payable, whether or not such event occurs at a time when any of the
Liabilities are otherwise due and payable.
4.
Payment of the
Liabilities . Any amounts received by Agent from
whatever source on account of the Liabilities may be applied by
Agent toward the payment of such of the Liabilities in the order of
application set forth in the Financing Agreement, and
notwithstanding any payments made by or for the account of
Guarantor pursuant to this Guaranty. Guarantor agrees that,
if at any time all or any part of any payment theretofore applied
by Agent to any of the Liabilities is or must be rescinded or
returned by Agent for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of
Borrower), such Liabilities shall, for the purposes of this
Guaranty and to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence
notwithstanding such application by Agent, and this Guaranty shall
continue to be effective or be reinstated, as the case may be, as
to such Liabilities, all as though such application by Agent had
not been made. The guaranty set forth in Paragraph 1 of
this Guaranty is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Liabilities whenever
arising.
5.
Permitted Actions of
Agent . Agent, on behalf of the Benefited
Parties, may from time to time, in its sole discretion and without
notice to Guarantor, take any or all of the following
actions:
(a)
retain or obtain a security interest in any assets of Borrower or
any third party to secure any of the Liabilities or any obligations
of Guarantor hereunder;
(b)
retain or obtain the primary or secondary obligation of any obligor
or obligors, in addition to Guarantor, with respect to any of the
Liabilities;
(c)
extend or renew for one or more periods (whether or not longer than
the original period), alter or exchange any of the Liabilities;
(d)
waive, ignore or forbear from taking action or otherwise exercising
any of its default rights or remedies with respect to any default
by Borrower under the Loan Documents;
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(e)
release, waive or compromise any obligation of Guarantor hereunder
or any obligation of any nature of any other obligor primarily or
secondarily obligated with respect to any of the Liabilities;
(f)
release its security interest in, or surrender, release or permit
any substitution or exchange for, all or any part of any collateral
now or hereafter securing any of the Liabilities or any obligation
hereunder, or extend or renew for one or more periods (whether or
not longer than the original period) or release, waive, compromise,
alter or exchange any obligations of any nature of any obligor with
respect to any such property; and
(g)
upon the occurrence and at any time of from time to time during the
continuance of an Event of Default, demand payment of any of the
Liabilities from Guarantor, whether or not Agent shall have
exercised any of its rights or remedies with respect to any
property securing any of the Liabilities or any obligation
hereunder or proceeded against any other obligor primarily or
secondarily liable for payment or performance of any of the
Liabilities.
6.
Specific
Waivers .
Without limiting the generality of any other provision of this
Guaranty, Guarantor hereby expressly waives:
(a)
notice of the acceptance by Agent of this Guaranty;
(b)
notice of the existence, creation, payment, nonpayment, performance
or nonperformance of all or any of the Liabilities;
(c)
presentment, demand, notice of dishonor, protest, notice of protest
and all other notices whatsoever with respect to the payment or
performance of the Liabilities or the amount thereof or any payment
or performance by Guarantor hereunder;
(d)
all diligence in collection or protection of or realization upon
the Liabilities or any thereof, any obligation hereunder or any
security for or guaranty of any of the foregoing;
(e)
any right to direct or affect the manner or timing of Agent’s
enforcement of its rights or remedies;
(f)
any and all defenses which would otherwise arise upon the
occurrence of any event or contingency described in Paragraph
1 hereof or upon the taking of any action by Agent permitted
hereunder;
(g)
any defense, right of set-off, claim or counterclaim whatsoever and
any and all other rights, benefits, protections and other defenses
available to Guarantor now or at any time hereafter, including,
without limitation, under California Civil Code Sections 2787 to
2855, inclusive, and California Code of Civil Procedure Sections
580a, 580b, 580d or 726, and all successor sections; and
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(h)
all other principles or provisions of law, if any, that conflict
with the terms of this Guaranty, including, without limitation, the
effect of any circumstances that may or might constitute a legal or
equitable discharge of a guarantor or surety.
7.
Irrevocability . To the extent permitted under
applicable law, Guarantor hereby further waives all rights to
revoke this Guaranty at any time, and all rights to revoke any
agreement executed by Guarantor at any time to secure the payment
and performance of Guarantor’s obligations under this
Guaranty.
8.
Statutory Waiver of
Rights and Defenses Regarding Election of Remedies
. Guarantor
waives all rights and defenses arising out of an election of
remedies by Agent, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantor’s rights of subrogation
and reimbursement against Borrower by the operation of any
applicable law, including without limitation Section 580d of
the California Code of Civil Procedure, or otherwise.
9.
Subrogation
. Guarantor
will not exercise any rights which it may acquire by way of
subrogation under this Guaranty, by any payment hereunder or
otherwise, until all of the Obligations have been Paid in
Full. If any amount shall be paid to Guarantor on
account of such subrogation rights at any other time, such amount
shall be held in trust for the benefit of Agent and shall be
forthwith paid to Agent to be credited and applied to the
Liabilities, whether matured or unmatured, in such manner as Agent
shall determine in its sole discretion. Guarantor agrees that it shall
have no right of recourse to security for the Liabilities, except
through the exercise of rights of subrogation pursuant to this
Paragraph 9 .
10.
Remedies
. Guarantor agrees
that, to the fullest extent permitted by law, as between Guarantor,
on the one hand, and Agent and the Benefited Parties, on the other
hand, the Liabilities may be declared to be forthwith due and
payable as provided in the Financing Agreement (and shall be deemed
to have become automatically due and payable in the circumstances
provided in the Financing Agreement) for purposes of Paragraph
1 of this Guaranty notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the
Liabilities from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the
Liabilities being deemed to have become automatically due and
payable), the Liabilities (whether or not due and payable by any
other Person) shall forthwith become due and payable by Guarantor
for purposes of Paragraph 1 . Guarantor
acknowledges and agrees that its obligations hereunder are secured
in accordance with the terms of the Security Documents and that
Agent and the Benefited
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