Exhibit 10.48


 


WELLS


FARGO


logo


 


GUARANTY BY CORPORATION


 


This
Guaranty, dated as December 1, 2003 is made by Diversified Corporate
Resources, Inc., a Texas corporation (the “Guarantor”), for the benefit of
Wells Fargo Business Credit, Inc., a Minnesota corporation (with its successors
and assigns, the “WFBCI”,).


 


WFBCI
and Management Alliance Corporation, a Texas corporation (the “Customer”), are
parties to an Account Purchase Agreement dated December 1, 2003 (the “Agreement”)
herewith pursuant to which WFBCI shall purchase accounts receivable from the
Customer and may make financial accommodations to the Customer.


 


As a
condition to entering into the Agreement and extending such accommodations to
the Customer, WFBCI 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 Agreement that are
not otherwise defined herein shall have the meanings given them in the
Agreement.


 


2. Indebtedness
Guaranteed.  The Guarantor hereby
absolutely and unconditionally guarantees to WFBCI the full and prompt payment
when due, whether at maturity or earlier by reason of acceleration or
otherwise, of each and every sum now or hereafter owing to WFBCI by the
Customer, including but not limited to, debts, liabilities and obligations
arising out of purchases of property, financial accommodations, or other
transactions with the Customer or for the Customer’s account or out of any
other transaction or event, owed to WFBCI, in each case whether now existing or
hereafter arising, whether arising directly in a transaction or event involving
WFBCI or acquired by WFBCI from another by purchase or assignment or as
collateral security, whether owed by the Customer as drawer, maker, endorser,
accommodation party, guarantor, principal, surety or as a member of any
partnership, syndicate, association or group or in any other capacity, whether
absolute or contingent, direct or indirect, primary or secondary, sole, joint
several or joint and several, secured or unsecured, due or not due,
contractual, tortuous or statutory, liquidated or unliquidated, arising by agreement
or imposed by law or otherwise (all of said sums being hereinafter called the “Indebtedness”).


 


3. Guarantor’s
Representations and Warranties.  The
Guarantor represents and warrants to WFBCI 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 as required by the by-laws of the
Guarantor and do not and will not violate the provisions of, or constitute a
default under, any presently applicable law or its articles of incorporation or
bylaws 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 wan-ants to
WFBCI that the Guarantor has a direct and substantial economic interest in the
Customer and expects to derive substantial benefits therefrom and from any
purchases of property, financial accommodations, discounts, and other
transactions and events resulting in the creation of the Indebtedness
guarantied hereby, and that this Guaranty is given for a corporate
purpose.  ‘ne 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 the Customer.  Accordingly, so long as this Guaranty is not
revoked prospectively in accordance with paragraph 4, WFBCI may rely
conclusively on a continuing warranty, hereby made, that the Guarantor
continues to be benefited by this Guaranty and WFBCI shall have no duty to
inquire into or confirm the receipt of any such benefits, and this Guaranty
shall be effective and enforceable by WFBCI 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 WFBCI 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 WFBCI 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 WFBCI
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 WFBCI shall have the right to
declare immediately due and payable, and the Guarantor will forthwith pay to
WFBCI, 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.


 


6. Enforcement
Expenses.  The Guarantor will pay or
reimburse WFBCI for all costs, expenses and attorneys’ fees paid or incurred by
WFBCI in endeavoring to collect and enforce the Indebtedness and in enforcing
this Guaranty.


 


7. WFBCI’s
Rights. WFBCI shall not be obligated by reason of its acceptance of this
Guaranty to engage in any transactions with or for the Customer.  Whether or not any existing relationship
between the Guarantor and the Customer has been changed or ended and whether or
not this Guaranty has been revoked, WFBCI 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 WFBCI 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, discount rates, fees, expenses, 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 agreement
under which the Indebtedness or any part thereof arose; (iii) any waiver or
indulgence granted to the Customer, 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 sue, the Customer 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 WFBCI 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.


 


8. Waivers
by Guarantor.  The Guarantor waives
any and all defenses, claims, setoffs and discharges of the Customer, 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 WFBCI 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 unenfbrceability which may be
available to the Customer or ajay other person liable in respect of any of the
Indebtedness, or any setoff available against )MCI to the Customer 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 the Customer 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, the
Customer or any of its assets.  The
Guarantor will not assert, plead or enforce against WFBCI any claim, defense Or setoff available to the Guarantor against the
Customer.  The Guarantor waives presentment,
demand for payment, notice of dishonor or nonpayment and protest of any
instrument evidencing the Indebtedness. 
VYTBCI shall not be required first to resort for payment of the
Indebtedness to the Customer or other persons, or their properties, or first to
enforce, realize upon or exhaust any collateral security for the Indebtedness,
before enforcing this Guaranty.


 


9. If
Payments Set Aside, etc, If any payment applied by WFBCI 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 the Customer 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.


 


10. 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 WFBCI as guarantor,
surety, endorser, accommodation co-obligor or otherwise of any of the
Indebtedness or obligation of the Customer, without any limitation as to
amount, unless the instrument or agreement evidencing or creating such other
liability specifically provides to the contrary.


 


11. No
Duties Owed by WFBCI.  The Guarantor
acknowledges and agrees that WFBCI (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 the Customer or any guarantor. 
The Guarantor has independently determined the creditworthiness of the
Customer and the enforceability of the Indebtedness and until the Indebtedness
is paid in full will independently and without reliance on WFBCI continue to
make such determinations.


 


12. Acknowledgement.  The Guarantor acknowledges that it or s/he
has read this Guaranty in its entirety, has consulted such legal, tax or other
advisors as it or s/he deems appropriate and understands and agrees to each of
the provisions of this Guaranty and further acknowledges that it or s/he has
entered into this Guaranty voluntarily.


 


13. Miscellaneous:
This Guaranty shall be effective upon delivery to WFBCL without further act,
condition or acceptance by WFBCI, shall be binding upon the Guarantor and the
successors and assigns of the Guarantor and shall inure to the benefit of WFBCI
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 WFBCI. 
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 WFBCI or the Guarantor in connection
with this Guaranty shall be venued in either the District Court of Denver
County, Denver Colorado, or the United States District Court District of
Colorado Division; 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.


 


14. Termination.  This Guaranty may not be terminated by the
Guarantor until all of the Customer’s obligations to WFBCI have been paid in
full or otherwise satisfied and the Guarantor provides WFBCI with written
notice of the termination of this Guaranty. 
By execution hereof, the Guarantor knowingly accepts the full range of
risk encompassed within a contract of “continuing guaranty” which risk
includes, without limitation, the possibility that the Customer will incur
additional obligations for which the Guarantor may be liable hereunder after
the Customer’s financial condition or ability to pay its lawful debts when they
are due has deteriorated, and the Guarantor understands that the amount of the
obligations may be increased or decreased.


 


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.


 





















 


IN
WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor the date
first written above.


 


	
   

  	
   

  	
   

  	
  Diversified
  Corporate Resources, Inc. 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /S/ W. Brown
  Glenn, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Its President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
								



 


STATE OF TEXAS


 


COUNTY OF DALLAS


 


The
foregoing instrument was acknowledged before me this 1st day of
December, 2003 by W. Brown Glenn, the President of Diversified Corporate
Resources, Inc., on behalf of the corporation.


 


	
   

  	
   

  	
   

  	
  /S/ Claudia
  Jones

  	
   

  
	
   

  	
  Notary Public

  



 


	
   

  	
  SEAL

  	
  CLAUDIA JONES

  MY COMMISSION EXPIRES

  October 7, 2006