EXHIBIT 10.46
EXECUTION COPY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (as the same may be amended, restated,
supplemented or otherwise modified from time to time, this "Guaranty") is made
as of February 24, 2004 by each of the Subsidiaries of Roto-Rooter, Inc., a
Delaware corporation (the "Borrower"), listed on the signature pages hereto
(each an "Initial Guarantor") and those additional Subsidiaries which become
parties to this Guaranty by executing a Supplement hereto (a "Guaranty
Supplement") in the form attached hereto as Annex I (such additional
Subsidiaries, together with the Initial Guarantors, the "Guarantors"), in favor
of BANK ONE, NA (Main Office Chicago), as Administrative Agent (the
"Administrative Agent") for the benefit of the Holders of Secured Obligations
under the Credit Agreement described below.
WITNESSETH:
WHEREAS, the Borrower, certain financial institutions (the "Lenders"),
and the Administrative Agent are party to that certain Credit Agreement, dated
as of the date hereof (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") which provides,
subject to the terms and conditions thereof, for extensions of credit and other
financial accommodations by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Guarantors
execute and deliver this Guaranty, whereby each of the Guarantors, without
limitation and with full recourse, shall guarantee the payment when due of all
Secured Obligations, including, without limitation, all principal, interest,
letter of credit reimbursement obligations and other amounts that shall be at
any time payable by the Borrower under the Credit Agreement, certain Rate
Management Transactions or the other Loan Documents; and
WHEREAS, in consideration of the direct and indirect financial and
other support that the Borrower has provided, and such direct and indirect
financial and other support as the Borrower may in the future provide, to the
Guarantors, and in order to induce the Lenders and the Administrative Agent to
enter into the Credit Agreement, each of the Guarantors is willing to guarantee
the Secured Obligations under the Credit Agreement, certain Rate Management
Transactions and the other Loan Documents;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance
or Modification of any Facility LC) that:
(a) It (i) is a corporation, limited liability company, or partnership
duly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing under
the laws of its jurisdiction of incorporation or organization, (ii) is duly
qualified to do business as a foreign entity and (to the extent such
concept applies to such entity) is in good standing under the laws of each
jurisdiction in which failure to be so qualified or in good standing could
result in a Material Adverse Effect, and (iii) has all requisite corporate,
limited liability company or partnership power and authority, as the case
may be, to own, operate and encumber its Property and to conduct its
business in each jurisdiction in which its business is conducted.
(b) It has the requisite corporate, limited liability company or
partnership, as applicable, power and authority and legal right to execute
and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by it of this Guaranty and the performance by it of
its obligations hereunder have been duly authorized by proper proceedings,
and this Guaranty constitutes a legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor, in accordance with its
terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii)
general equitable principles whether considered in a proceeding in equity
or at law, and (iii) requirements of reasonableness, good faith, and fair
dealing.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance
by it with the terms and provisions hereof, will (i) violate the
certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) of such Guarantor, (ii)
conflict with, result in a breach of or constitute (with or without notice
or lapse of time or both) a default or violation under (A) any law, rule,
regulation, order, writ, judgment, injunction, decree or award (including,
without limitation, any environmental property transfer laws or
regulations) applicable to such Guarantor except for violations which
individually or in the aggregate would not reasonably be expected to result
in a Material Adverse Effect or (B) any provisions of any indenture,
material instrument or material agreement to which such Guarantor is party
or is subject or which it or its Property is bound except for violations
which individually or in the aggregate would not reasonably be expected to
result in a Material Adverse Effect, (iii) result in or require the
creation or imposition of any Lien whatsoever upon any of the property or
assets of such Guarantor, other than Liens permitted or created by the Loan
Documents, or (iv) require any approval of such Guarantor's board of
directors or shareholders or unitholders except such as have been obtained.
The execution, delivery and performance by the Guarantors of this Guaranty
do not and will not require any registration with, consent or approval of,
or notice to, or other action to, with or by any governmental authority,
including under any environmental property transfer laws or regulations,
except filings, consents or notices which have been made or to the extent
that the failure to make such filings, consents or notices would not
reasonably be expected to result in a
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Material Adverse Effect.
In addition to the foregoing, each of the Guarantors covenants that, until the
Revolving Loan Commitments have expired or been terminated, the LC Obligations
have expired, been reimbursed or been cash collateralized (in each case in
accordance with the terms of the Credit Agreement), and the other Obligations
have been paid in full (other than obligations to pay fees and expenses with
respect to which the Borrower has not received an invoice, Rate Management
Obligations, contingent indemnity obligations and other contingent obligations)
it will, and, if necessary, will enable the Borrower to, fully comply with those
covenants and agreements of the Borrower applicable to such Guarantor set forth
in the Credit Agreement.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly and severally with the other Guarantors, the full and
punctual payment and performance when due (whether at stated maturity, upon
acceleration or otherwise) of the Secured Obligations, including, without
limitation, (i) the principal of and interest on each Advance made to the
Borrower pursuant to the Credit Agreement, (ii) any Reimbursement Obligations of
the Borrower or the performance by it of such Reimbursement Obligations, (iii)
all Rate Management Obligations of the Borrower owing to any Lender or any
affiliate of any Lender under any Rate Management Transactions (any such Rate
Management Transaction with any Lender or any affiliate of any Lender being
herein referred to as a "Guaranteed Rate Management Transaction") unless the
Borrower and any such Lender mutually agree that any such Rate Management
Transaction does not constitute a Guaranteed Rate Management Transaction
hereunder, (iv) all other amounts payable by the Borrower under the Credit
Agreement, any Guaranteed Rate Management Transaction and the other Loan
Documents, and (v) the punctual and faithful performance, keeping, observance,
and fulfillment by the Borrower of all of the agreements, conditions, covenants,
and obligations of the Borrower contained in the Loan Documents (all of the
foregoing being referred to collectively as the "Guaranteed Obligations"). Upon
failure by the Borrower or any of its Affiliates to pay punctually any such
amount, each of the Guarantors agrees that it shall forthwith on demand pay such
amount to the Collateral Agent at the place and in the manner specified in the
Intercreditor Agreement. Each of the Guarantors hereby agrees that this Guaranty
is an absolute, irrevocable and unconditional guaranty of payment and
performance and is not a guaranty of collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, indulgence, compromise, waiver
or release of or with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any failure
or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
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(b) any modification or amendment of or supplement to the Credit
Agreement, any Guaranteed Rate Management Transaction or any other Loan
Document, including, without limitation, any such amendment which may
increase the amount of, or the interest rates applicable to, any of the
Guaranteed Obligations guaranteed hereby;
(c) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
collateral securing the Guaranteed Obligations or any part thereof, any
other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity with respect to
the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed
Obligations;
(d) any change in the corporate, limited liability company,
partnership or other existence, structure or ownership of the Borrower or
any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower or any other guarantor of the Guaranteed
Obligations, or any of their respective assets or any resulting release or
discharge of any obligation of the Borrower or any other guarantor of any
of the Guaranteed Obligations;
(e) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against the Borrower, any other guarantor
of any of the Guaranteed Obligations, the Administrative Agent, any Holder
of Secured Obligations or any other Person, whether in connection herewith
or in connection with any unrelated transactions, provided that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) the enforceability or validity of the Guaranteed Obligations or
any part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against the Borrower or any other guarantor
of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any Guaranteed Rate Management Transaction or any other Loan
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any other guarantor of the
Guaranteed Obligations, of any of the Guaranteed Obligations;
(g) the failure of the Collateral Agent, the Administrative Agent or
any Holder of Secured Obligations to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or
collateral for the Guaranteed Obligations, if any;
(h) the election by, or on behalf of, any one or more of the Holders
of Secured Obligations, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
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(i) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(j) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of any of the Holders of Secured Obligations
or the Administrative Agent for repayment of all or any part of the
Guaranteed Obligations;
(k) the failure of any other Guarantor to sign or become party to this
Guaranty or any amendment, change, or reaffirmation hereof; or
(l) any other act or omission to act or delay of any kind by the
Borrower, any other guarantor of the Guaranteed Obligations, the Collateral
Agent, the Administrative Agent, any Holder of Secured Obligations or any
other Person or any other circumstance whatsoever which might, but for the
provisions of this Section 4, constitute a legal or equitable discharge of
any Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. Subject to Section 24, each of the Guarantors'
obligations hereunder shall remain in full force and effect until all
Guaranteed Obligations shall have been paid in full in cash and the
Revolving Loan Commitments and Term Loan Commitments and all Facility LCs
issued under the Credit Agreement shall have terminated or expired. If at
any time any payment of the principal of or interest on any Advance, any
Reimbursement Obligation or any other amount payable by the Borrower or any
other party under the Credit Agreement, any Guaranteed Rate Management
Transaction or any other Loan Document is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of
the Borrower or otherwise, each of the Guarantors' obligations hereunder
with respect to such payment shall be reinstated as though such payment had
been due but not made at such time.
SECTION 6. General Waivers; Additional Waivers.
(a) General Waivers. To the fullest extent permitted by law, each of
the Guarantors irrevocably waives acceptance hereof, presentment, demand or
action on delinquency, protest, the benefit of any statutes of limitations
and any notice not provided for herein, as well as any requirement that at
any time any action be taken by any Person against the Borrower, any other
guarantor of the Guaranteed Obligations, or any other Person.
(b) Additional Waivers. Notwithstanding anything herein to the
contrary, each of the Guarantors hereby absolutely, unconditionally,
knowingly, and expressly waives to the fullest extent permitted by law:
(i) any right it may have to revoke this Guaranty as to future
indebtedness or notice of acceptance hereof;
(ii) (1) notice of acceptance hereof; (2) notice of any loans or
other
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financial accommodations made or extended under the Loan Documents or
the creation or existence of any Guaranteed Obligations; (3) notice of
the amount of the Guaranteed Obligations, subject, however, to each
Guarantor's right to make inquiry of the Administrative Agent and the
Holders of Secured Obligations to ascertain the amount of the
Guaranteed Obligations at any reasonable time; (4) notice of any
adverse change in the financial condition of the Borrower or of any
other fact that might increase such Guarantor's risk hereunder; (5)
notice of presentment for payment, demand, protest, and notice thereof
as to any instruments among the Loan Documents; (6) notice of any
Unmatured Event of Default or Event of Default; and (7) all other
notices (except if such notice is specifically required to be given to
such Guarantor hereunder or under the Loan Documents) and demands to
which each Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and
the other Holders of Secured Obligations to (A) institute suit
against, or to exhaust any rights and remedies which the
Administrative Agent and the other Holders of Secured Obligations has
or may have against, (1) the Borrower, the other Guarantors or any
third party or (2) against any Collateral provided by the Borrower,
the other Guarantors, or any third party, or (B) pursue any other
remedy of the Administrative Agent or the other Holders of Secured
Obligations; and any defense arising by reason of any disability or
other defense (other than the defense that the Guaranteed Obligations
shall have been fully and finally performed and indefeasibly paid) of
the Borrower, the other Guarantors or any other party by reason of the
cessation from any cause whatsoever of the liability of the Borrower
or the other Guarantors in respect thereof;
(iv) (1) any rights to assert against the Collateral Agent, the
Administrative Agent and the other Holders of Secured Obligations any
defense (legal or equitable), set-off, counterclaim, or claim which
such Guarantor may now or at any time hereafter have against the other
Guarantors or any other party liable to the Collateral Agent, the
Administrative Agent and the other Holders of Secured Obligations; (2)
any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guaranteed
Obligations or any security therefor; (3) any defense such Guarantor
has to performance hereunder, and any right such Guarantor has to be
exonerated, arising by reason of: the impairment or suspension of the
Collateral Agent's, the Administrative Agent's and the other Holders
of Secured Obligations' rights or remedies against the other
Guarantors; the alteration by the Administrative Agent and the other
Holders of Secured Obligations of the Guaranteed Obligations; any
discharge of the other Guarantors' obligations to the Administrative
Agent and the other Holders of Secured Obligations by operation of law
as a result of the Administrative Agent's and the other Holders of
Secured Obligations' intervention or omission; or the acceptance by
the Administrative Agent and the other Holders of Secured Obligations
of anything in partial satisfaction of the Guaranteed Obligations; and
(4) the benefit of any statute of limitations affecting
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such Guarantor's liability hereunder or the enforcement thereof, and
any act which shall defer or delay the operation of any statute of
limitations applicable to the Guaranteed Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor's liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any
claim or defense based upon an election of remedies by the
Administrative Agent and the other Holders of Secured Obligations; or
(b) any election by the Administrative Agent and the other Holders of
Secured Obligations under Section 1111(b) of Title 11 of the United
States Code entitled "Bankruptcy", as now and hereafter in effect (or
any successor statute), to limit the amount of, or any collateral
securing, its claim against the Guarantors.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(a) Subordination of Subrogation. Until the Guaranteed Obligations
have been fully and finally performed and indefeasibly paid in full in
cash, the Guarantors (i) shall not exercise any right of subrogation with
respect to such Guaranteed Obligations and (ii) shall not exercise any
right to enforce any remedy which the Holders of Secured Obligations, the
LC Issuer, the Collateral Agent or the Administrative Agent now have or may
hereafter have against the Borrower, any endorser or any guarantor of all
or any part of the Secured Obligations or any other Person in respect of
the Guaranteed Obligations, and the Guarantors shall not exercise any right
to participate in, any security or collateral given to the Holders of
Secured Obligations, the LC Issuer, the Administrative Agent and the
Collateral Agent to secure the payment or performance of all or any part of
the Guaranteed Obligations. Should any Guarantor have the right,
notwithstanding the foregoing, to exercise its subrogation rights in
respect of the Guaranteed Obligations, each Guarantor hereby expressly and
irrevocably (A) subordinates any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or
set off that the Guarantor may have in respect of the Guaranteed
Obligations to the indefeasible payment in full of the Guaranteed
Obligations and (B) to the extent permitted by applicable law, waives any
and all defenses (other than the defenses of payment and performance)
available to a surety, guarantor or accommodation co-obligor in respect of
the Guaranteed Obligations until the Guaranteed Obligations are
indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees
that this subordination is intended to benefit the Administrative Agent and
the Holders of Secured Obligations and shall not limit or otherwise affect
such Guarantor's liability hereunder or the enforceability of this
Guaranty, and that the Administrative Agent, the Holders of Secured
Obligations and their respective permitted successors and assigns are
intended third party beneficiaries of the waivers and agreements set forth
in this Section 7.
(b) Subordination of Intercompany Indebtedness. Each Guarantor agrees
that any and all claims of such Guarantor against the Borrower or any other
Guarantor hereunder (each an "Obligor") with respect to any "Intercompany
Indebtedness" (as hereinafter defined), shall be subordinate and subject in
right of payment to the prior
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payment, in full and in cash, of all Guaranteed Obligations; provided that,
and not in contravention of the foregoing, unless an Event of Default has
occurred and is continuing and such Guarantor receives from the
Administrative Agent a payment blockage notice hereunder that has not been
withdrawn such Guarantor may make loans to and receive payments with
respect to such Intercompany Indebtedness from each such Obligor to the
extent not prohibited by the terms of this Guaranty and the other Loan
Documents. Notwithstanding any right of any Guarantor to ask, demand, xxx
for, take or receive any payment from any Obligor, all rights, liens and
security interests of such Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor (whether
constituting a part of any Collateral given to any Holder of Secured
Obligations, the Collateral Agent or the Administrative Agent to secure
payment of all or any part of the Guaranteed Obligations or otherwise)
shall be and are subordinated to the rights of the Holders of Secured
Obligations, the Collateral Agent and the Administrative Agent in those
assets. No Guarantor shall have any right to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than obligations to pay fees and expenses
with respect to which the Borrower has not received an invoice, Rate
Management Obligations, contingent indemnity obligations and other
contingent obligations) shall have been fully paid and satisfied (in cash).
If all or any part of the assets of any Obligor, or the proceeds thereof,
are subject to any distribution, division or application to the creditors
of such Obligor, whether partial or complete, voluntary or involuntary, and
whether by reason of liquidation, bankruptcy, arrangement, receivership,
assignment for the benefit of creditors or any other similar action or
proceeding, then, and in any such event (such events being herein referred
to as an "Insolvency Event"), any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any indebtedness of any
Obligor to any Guarantor ("Intercompany Indebtedness") shall be paid or
delivered directly to the Collateral Agent for application in accordance
with the Intercreditor Agreement on any of the Guaranteed Obligations, due
or to become due, until such Guaranteed Obligations (other than obligations
to pay fees and expenses with respect to which the Borrower has not
received an invoice, Rate Management Obligations, contingent indemnity
obligations and other contingent obligations) shall have been fully paid
and satisfied (in cash). Should any payment, distribution, security or
instrument or proceeds thereof be received by the applicable Guarantor upon
or with respect to the Intercompany Indebtedness after any Insolvency Event
and prior to the satisfaction of all of the Guaranteed Obligations (other
than obligations to pay fees and expenses with respect to which the
Borrower has not received an invoice, Rate Management Obligations,
contingent indemnity obligations and other contingent obligations), such
Guarantor shall receive and hold the same in trust, as trustee, for the
benefit of the Holders of Secured Obligations and shall forthwith deliver
the same to the Collateral Agent in precisely the form received (except for
the endorsement or assignment of the Guarantor where necessary), for
application in accordance with the Intercreditor Agreement to any of the
Guaranteed Obligations, due or not due, and, until so delivered, the same
shall be held in trust by the Guarantor as the property of the Collateral
Agent. If any such Guarantor fails to make any such endorsement or
assignment to the Collateral Agent, the Collateral Agent or any of its
officers or employees is irrevocably authorized to make the same. Each
Guarantor agrees
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that until the Guaranteed Obligations (other than obligations to pay fees
and expenses with respect to which the Borrower has not received an
invoice, Rate Management Obligations, contingent indemnity obligations and
other contingent obligations) have been paid in full (in cash) and
satisfied, no Guarantor will assign or transfer to any Person (other than
the Administrative Agent) any claim any such Guarantor has or may have
against any Obligor, except as otherwise permitted by the Loan Documents.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guarantor
Payment and the Guaranteed Obligations, and termination of the Credit Agreement,
such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each other Guarantor for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect
immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor or Guarantors
to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Credit
Agreement, including, without limitation, the termination of the Revolving Loan
Commitments and the Term Loan Commitments thereunder.
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SECTION 9. Stay of Acceleration. If the time for payment of any amount
payable by the Borrower under the Credit Agreement, any Guaranteed Rate
Management Transaction or any other Loan Document is accelerated pursuant to the
terms thereof, but such acceleration is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower or any of its Affiliates, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement, any
Guaranteed Rate Management Transaction or any other Loan Document shall, to the
extent permitted by law, nonetheless be payable by each of the Guarantors
hereunder forthwith on demand by the Administrative Agent.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be given in the manner prescribed in Article XIII of
the Credit Agreement with respect to the Administrative Agent at its notice
address therein and, with respect to any Guarantor, in the care of the Borrower
at the address of the Borrower set forth in the Credit Agreement, or such other
address or telecopy number as such party may hereafter specify for such purpose
by notice to the Administrative Agent in accordance with the provisions of such
Article XIII.
SECTION 11. No Waivers. No failure or delay by the Administrative
Agent, the Collateral Agent or any Holder of Secured Obligations in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in this Guaranty, the Credit Agreement, any
Guaranteed Rate Management Transaction and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit
of the Administrative Agent, the Collateral Agent and the Holders of Secured
Obligations and their respective permitted successors and assigns, provided,
that no Guarantor shall have any right to assign its rights or obligations
hereunder without the consent of all of the Lenders, and any such assignment in
violation of this Section 12 shall be null and void; and in the event of an
assignment of any amounts payable under the Credit Agreement, any Guaranteed
Rate Management Transaction or the other Loan Documents in accordance with the
respective terms thereof, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This
Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries, which become parties hereto by executing a
Guaranty Supplement, neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated orally, but only in writing signed by
each of the Guarantors, the Collateral Agent and the Administrative Agent with
the consent of the Required Lenders under the Credit Agreement (or all of the
Lenders if required pursuant to the terms of Section 8.2 of the Credit
Agreement).
SECTION 14. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
GUARANTY, ON BEHALF OF ITSELF AND THE HOLDERS OF SECURED
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OBLIGATIONS, AT NEW YORK, NEW YORK BY ACKNOWLEDGING AND AGREEING TO IT THERE.
ANY DISPUTE BETWEEN ANY GUARANTOR AND THE ADMINISTRATIVE AGENT OR ANY LENDER, OR
ANY HOLDER OF SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
GUARANTY, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS OR PRINCIPLES THEREOF) OF THE STATE OF NEW
YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
SECTION 15. CONSENT TO JURISDICTION; VENUE; JURY TRIAL.
(A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS GUARANTY OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, AND EACH GUARANTOR HEREBY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD OR DETERMINED IN ANY SUCH COURT. ANY JUDICIAL
PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY
HOLDER OF SECURED OBLIGATIONS OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY
LENDER OR ANY HOLDER OF SECURED OBLIGATIONS INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH MAY BE BROUGHT IN A COURT IN THE BOROUGH OF MANHATTAN IN NEW
YORK, NEW YORK. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY HOLDER OF SECURED OBLIGATIONS TO BRING PROCEEDINGS
AGAINST SUCH GUARANTOR OR LIMIT THE RIGHTS OF ANY GUARANTOR TO BRING PROCEEDINGS
AGAINST SUCH OTHER PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
(B) VENUE. EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH
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ABOVE.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(D) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 15, WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, Etc.
(a) Taxes. Each Guarantor agrees to be bound by the terms and
provisions of Section 3.5 of the Credit Agreement (including, without
limitation, the promises made and the obligations accepted by the Borrower
therein), as if each reference in such Section (i) to a "Borrower" were a
reference to such Guarantor, (ii) to the Credit Agreement (including any
reference to "this Agreement", "hereunder", "hereof", "herein" or words of
like import referring thereto) were a reference to this Guaranty, and (iii)
to any "Lender" or the "Lenders" were a reference to any "Holder of Secured
Obligations" or the "Holders of Secured Obligations".
(b) Expenses of Enforcement, Etc. During the continuation of an Event
of Default under the Credit Agreement, the Required Lenders shall have the
right at any time to direct the Administrative Agent or, in accordance with
the Intercreditor Agreement, the Collateral Agent to commence enforcement
proceedings with respect to the Guaranteed Obligations. The Guarantors
agree to reimburse the Administrative Agent, the Collateral Agent and the
Holders of Secured Obligations for any reasonable out-of-pocket costs and
expenses (including reasonable out-of-pocket attorneys' fees)
12
paid or incurred by the Administrative Agent, the Collateral Agent or any
Holders of Secured Obligations in connection with the collection and
enforcement of amounts due under the Loan Documents, including without
limitation this Guaranty. Each of the Collateral Agent and the
Administrative Agent agrees to distribute payments received from any of the
Guarantors hereunder in accordance with the terms of the Credit Agreement
and the Intercreditor Agreement.
SECTION 18. Setoff. Subject to the terms of the Intercreditor
Agreement, at any time after all or any part of the Guaranteed Obligations have
become due and payable (by acceleration or otherwise), each Holder of Secured
Obligations and the Administrative Agent may, without notice to any Guarantor
and regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations (i) any indebtedness due or to become due from such
Holder of Secured Obligations or the Administrative Agent to any Guarantor, and
(ii) any monies, credits or other property belonging to any Guarantor, at any
time held by or coming into the possession of such Holder of Secured Obligations
or the Administrative Agent or any of their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers and/or other Guarantors of all or any part of
the Guaranteed Obligations, and of all other circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent
inquiry would reveal, and each Guarantor hereby agrees that none of the Holders
of Secured Obligations or the Administrative Agent shall have any duty to advise
such Guarantor of information known to any of them regarding such condition or
any such circumstances. In the event any Holder of Secured Obligations or the
Administrative Agent, in its sole discretion, undertakes at any time or from
time to time to provide any such information to a Guarantor, such Holder of
Secured Obligations or the Administrative Agent shall be under no obligation (i)
to undertake any investigation not a part of its regular business routine, (ii)
to disclose any information which such Holder of Secured Obligations or the
Administrative Agent, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (iii) to make any other or
future disclosures of such information or any other information to such
Guarantor.
SECTION 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 21. Merger. This Guaranty represents the final agreement of
each of the Guarantors with respect to the matters contained herein and may not
be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between any Guarantor and any Holder of Secured
Obligations, the Administrative Agent or the Collateral Agent.
SECTION 22. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
13
SECTION 23. Counterparts. This Guaranty may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
constituting an original, but all together one and the same instrument. SECTION
24. Termination or Release.
(a) This Guaranty and the guarantees made herein shall terminate when
all the Guaranteed Obligations have been paid in full (other than obligations to
pay fees and expenses with respect to which the Borrower has not yet received an
invoice, Rate Management Obligations, contingent indemnity obligations and other
contingent obligations) and the Lenders have no further commitment to lend under
the Credit Agreement, the LC Obligations have been reduced to zero and the LC
Issuer has no further obligations to issue Facility LCs under the Credit
Agreement.
(b) A Guarantor shall automatically be released from its obligations
hereunder upon the consummation of any transaction permitted by the Loan
Documents as a result of which such Guarantor ceases to be a Subsidiary of the
Borrower.
(c) In connection with any termination or release pursuant to
paragraph (a) or (b), the Administrative Agent shall execute and deliver to any
Guarantor, at such Guarantor's expense, all documents that such Guarantor shall
reasonably request to evidence such termination or release.
SECTION 25. Guaranty Enforceable by the Collateral Agent.
Notwithstanding anything to the contrary contained elsewhere in this Guaranty,
the Administrative Agent and the Holders of Secured Obligations acknowledge and
agree (by their acceptance of the benefits of this Guaranty) that this Guaranty
may be enforced only by the action of the Collateral Agent, in each case acting
upon the instructions of the Instructing Group (as defined in the Intercreditor
Agreement) and that neither the Administrative Agent nor any Holder of Secured
Obligations shall have any right individually to enforce this Guaranty or to
realize upon the security to be granted by the Collateral Documents, it being
understood and agreed that such rights and remedies may be exercised by the
Collateral Agent for the benefit of the Administrative Agent and the Holders of
Secured Obligations upon the terms of this Guaranty and the Collateral
Documents; provided, however, that all proceeds of such enforcement or
realization shall be applied as among the Guaranteed Obligations in the manner
provided in the Intercreditor Agreement.
SECTION 26. Payments by Guarantors. Any term or provision of this
Guaranty to the contrary notwithstanding, the maximum aggregate amount of the
Secured Obligations guaranteed hereunder by any Guarantor shall not exceed the
maximum amount that can be hereby guaranteed without rendering this Guaranty, as
it relates to such Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
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IN WITNESS WHEREOF, the Initial Guarantors have caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
CCR of Ohio, Inc.
Comfort Care Holdings CO.
Complete Plumbing Services, Inc.
Consolidated HVAC, Inc.
Jet Resource, Inc.
Nurotoco of Massachusetts, Inc.
Nurotoco of New Jersey, Inc.
R.R. UK, Inc.
Roto-Rooter Corporation
Roto-Rooter Development Company
Roto-Rooter Management Company
Roto-Rooter Services Company
R.R. Plumbing Services Corporation
Service America Network, Inc.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
Hospice Care Incorporated
Hospice, Inc.
Vitas Healthcare Corporation
Vitas Healthcare Corporation of California
Vitas Healthcare Corporation of Central Florida
Vitas Healthcare Corporation of Florida
Vitas Healthcare Corporation of Illinois
Vitas Healthcare Corporation of Ohio
Vitas Healthcare Corporation of Pennsylvania
Vitas Healthcare Corporation of Wisconsin
Vitas HME Solutions, Inc.
Vitas Holdings Corporation
Vitas Hospice Services, L.L.C.
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: President
Vitas Healthcare of Texas, L.P.
By: Vitas Hospice Services, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: President
Acknowledged and Agreed
as of February 24, 2004
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Annex I
ANNEX I TO GUARANTY AGREEMENT
Reference is hereby made to the Guaranty Agreement (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Guaranty"), dated as of February 24, 2004, made by certain Subsidiaries of
Roto-Rooter, Inc. (each an "Initial Guarantor", and together with any additional
Subsidiaries which become parties to the Guaranty by executing a Supplement
thereto substantially similar in form and substance hereto, the "Guarantors"),
in favor of the Administrative Agent, for the ratable benefit of the Holders of
Secured Obligations, under the Credit Agreement. Each capitalized term used
herein and not defined herein shall have the meaning given to it in the
Guaranty. By its execution below, the undersigned, [NAME OF NEW GUARANTOR], a
[corporation] [partnership] [limited liability company], agrees to become, and
does hereby become, a Guarantor under the Guaranty and agrees to be bound by
such Guaranty as if originally a party thereto. By its execution below, the
undersigned represents and warrants as to itself that all of the representations
and warranties contained in Section 2 of the Guaranty are true and correct in
all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:____________________________________
Name:
Title:
