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EXHIBIT 10.19
GUARANTY
THIS GUARANTY dated as of February 15, 2000 is executed in favor of BANK
OF AMERICA, N.A., as Agent, and the Lender Parties referred to below.
WITNESSETH:
WHEREAS, EARTHCARE COMPANY (the "Company") has entered into an Amended
and Restated Credit Agreement dated as of even date herewith (as amended or
otherwise modified from time to time, the "Credit Agreement"; terms used but not
defined herein are used as defined in the Credit Agreement) with various
financial institutions and BANK OF AMERICA, N.A., as agent (in its capacity as
agent, together with any successor in such capacity, the "Agent"), pursuant to
which such financial institutions have agreed to make loans to, and issue or
participate in letters of credit for the account of, the Company; and
WHEREAS, each of the undersigned is a significant investor in the
Company, and subject to the terms hereof, is willing to guaranty the Liabilities
(as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally, unconditionally and irrevocably, as primary obligor and
not merely as surety, guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, of all obligations of
the Company to each of the Agent and each Lender Party (as defined below) under
or in connection with the Credit Agreement, the Notes, any other Loan Document,
any Hedging Contract entered into with any Lender Party and any other instrument
or document executed in connection with any of the foregoing, in each case
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due (all such
obligations being herein collectively called the "Liabilities"); provided,
however, that the liability of the undersigned hereunder shall be limited to
$10,000,000 plus interest accruing on such amount (or such lesser amount of the
Liabilities as is outstanding) after demand by the Agent hereunder (including
interest at the rate specified in any applicable agreement accruing after any
bankruptcy or insolvency proceeding with respect to the Company regardless of
whether such interest is an allowed claim in such proceeding) plus all costs and
expenses paid or incurred by the Agent or any Lender Party in enforcing this
Guaranty against such undersigned). As used herein, "Lender Party" means each
Bank under and as defined in the Credit Agreement and any Affiliate of such a
Bank which is a party to a Hedging Contract with the Company.
Each of the undersigned agrees that, in the event of the dissolution or
insolvency of the Company, or the insolvency, death or legal incapacity of
either of the undersigned, or the
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inability or failure of the Company or either of the undersigned to pay debts as
they become due, or an assignment by the Company or either of the undersigned
for the benefit of creditors, or the occurrence of any other Event of Default
under Section 12.1.4 of the Credit Agreement, and if such event shall occur at a
time when any of the Liabilities may not then be due and payable, such
undersigned will pay to the Agent for the account of the Lender Parties
forthwith the full amount which would be payable hereunder by such undersigned
if all Liabilities were then due and payable.
This Guaranty shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty, and (except as expressly provided below)
shall remain in full force and effect (notwithstanding, without limitation, that
at any time or from time to time no Liabilities are outstanding) until all
Commitments have terminated and all Liabilities have been paid in full.
Each of the undersigned agrees that if at any time all or any part of any
payment theretofore applied by the Agent or any Lender Party to any of the
Liabilities is or must be rescinded or returned by the Agent or such Lender
Party for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of the Company or either of the undersigned), such Liabilities
shall, for the purposes of this Guaranty, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Agent or such Lender Party, 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 the Agent or such Lender
Party had not been made.
The Agent or any Lender Party may, from time to time, at its sole
discretion and without notice to the undersigned (or either of them), take any
or all of the following actions: (a) retain or obtain a security interest in any
property to secure any of the Liabilities or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any obligor or obligors,
in addition to the undersigned, with respect to any of the Liabilities, (c)
extend or renew any of the Liabilities for one or more periods (whether or not
longer than the original period), alter or exchange any of the Liabilities, or
release or compromise any obligation of either of the undersigned hereunder or
any obligation of any nature of any other obligor with respect to any of the
Liabilities, (d) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
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, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property, and (e) resort to the undersigned (or
either of them) for payment of any of the Liabilities when due, whether or not
the Agent or such Lender Party shall have resorted to any property securing any
of the Liabilities or any obligation hereunder or shall have proceeded against
the other undersigned or any other obligor primarily or secondarily obligated
with respect to any of the Liabilities.
The undersigned jointly and severally agree that, if the Company has not
completed the Equity Offering on or before September 30, 2000, the undersigned
will deliver to the Agent cash collateral, or other collateral reasonably
satisfactory to the Agent, in an amount (with the value
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of any non-cash collateral being determined by the Agent in its discretion) not
less than $10,000,000. Such collateral shall be held by the Agent as security
for the obligations of the undersigned hereunder pursuant to documentation
reasonably satisfactory to the Agent. Upon any demand by the Agent hereunder,
the Agent may immediately apply such collateral (or the proceeds thereof in the
case of non-cash collateral) to the payment of the Liabilities.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Agent or any Lender Party of this Guaranty, (b) notice of the
existence or creation or non- payment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (d) all diligence in collection or protection of or realization
upon any Liabilities or any security for or guaranty of any Liabilities.
Notwithstanding any payment made by or for the account of either of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any right of the Agent or any Lender Party until such time as the Agent and
the Lender Parties shall have received final payment in cash of the full amount
of all Liabilities.
Each of the undersigned further agrees to pay all expenses (including the
reasonable attorneys' fees and charges) paid or incurred by the Agent or any
Lender Party in endeavoring to collect the Liabilities of such undersigned, or
any part thereof, and in enforcing this Guaranty against such undersigned.
The creation or existence from time to time of additional Liabilities to
the Agent or the Lender Parties or any of them is hereby authorized, without
notice to the undersigned (or either of them), and shall in no way affect or
impair the rights of the Agent or the Lender Parties or the obligations of the
undersigned under this Guaranty.
The Agent and any Lender Party may from time to time without notice to
the undersigned (or either of them), assign or transfer any or all of the
Liabilities or any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such Liabilities
shall be and remain Liabilities for the purposes of this Guaranty, and each and
every immediate and successive assignee or transferee of any of the Liabilities
or of any interest therein shall, to the extent of the interest of such assignee
or transferee in the Liabilities, be entitled to the benefits of this Guaranty
to the same extent as if such assignee or transferee were an original Lender
Party.
No delay on the part of the Agent or any Lender Party in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Agent or any Lender Party of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy;
nor shall any modification or waiver of any provision of this Guaranty be
binding upon the Agent or the Lender Parties, except as expressly set forth in a
writing duly signed and delivered on behalf of the Agent. No action of the Agent
or any Lender Party permitted hereunder shall in any way affect or impair the
rights of the Agent or any Lender Party or the obligations of the undersigned
under this Guaranty. For purposes of this Guaranty,
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Liabilities shall include all obligations of the Company to the Agent or any
Lender Party arising under or in connection with the Credit Agreement, any Note,
any other Loan Document, any Swap Contract or any other document or instrument
executed in connection with any of the foregoing, notwithstanding any right or
power of the Company or anyone else to assert any claim or defense as to the
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of any of the undersigned
hereunder.
Pursuant to the Credit Agreement, (a) this Guaranty has been delivered to
the Agent and (b) the Agent has been authorized to enforce this Guaranty on
behalf of itself and each of the Lender Parties. All payments by the undersigned
pursuant to this Guaranty shall be made to the Agent for the benefit of the
Lender Parties.
This Guaranty shall be binding upon the undersigned and the heirs and
legal representatives of the undersigned. All references herein to the Company
shall be deemed to include any successor or successors, whether immediate or
remote, to such corporation. The term "undersigned" as used herein shall mean
all parties executing this Guaranty and each of them, and all such parties shall
be jointly and severally obligated hereunder.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Illinois applicable to contracts made and to be fully
performed in such State. 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.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty.
This Guaranty may be secured by one or more security agreements, pledge
agreements or other similar documents.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR (THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED), THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
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ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE
UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE HIS SIGNATURE HERETO
(OR SUCH OTHER ADDRESS AS SUCH UNDERSIGNED SHALL HAVE SPECIFIED IN WRITING TO
THE AGENT AS HIS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
HE MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF
THE AGENT AND EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY,
ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as
of the day and year first above written.
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Address: Xxxxxx X. Xxxxxxxxx, Xx.
c/o EarthCare Company
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
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Address: Xxxxxxx X. Xxxx
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
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