EXHIBIT 10.2
GUARANTY
This Guaranty (this “
Guaranty ”) is dated as of December 14, 2005 by
COMSYS IT PARTNERS, INC. , a Delaware corporation (“
Holdings ”), PFI LLC , a Delaware limited
liability company (“ PFI ”; PFI together with
Holdings are sometimes referred to hereinafter individually as a
“ Guarantor ” and together as the “
Guarantors ”), in favor of MERRILL LYNCH
CAPITAL , a division of Merrill Lynch 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 ”), Pure Solutions,
Inc., a California corporation (“ Pure Solutions
”), COMSYS Information Technology Services, Inc., a Delaware
corporation (“ COMSYS IT ”; COMSYS IT together
with COMSYS Services and Pure Solutions 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, Co-Documentation Agents, Syndication Agent 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 right of
contribution or reimbursement by reason of any performance by any
Guarantor under
2
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
