EXHIBIT 10.12
CONTINUING GUARANTY
1. OBLIGATIONS GUARANTIED. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned ("Guarantor")
unconditionally guaranties and promises to pay to Tender Loving Care Health Care
Services, Inc., a Delaware corporation ("Beneficiary"), in lawful United States
money, all obligations of American Reimbursement, LLC ("Buyer") to Beneficiary
with respect to the payment of the "Purchase Price" under, and as defined in,
that certain Receivables Purchase Agreement dated as of March 29, 2002 between
Buyer and Beneficiary, including each Note issued by Buyer pursuant thereto
(collectively, the "Obligations"), whether incurred before, during or after any
bankruptcy, reorganization, insolvency, receivership or similar proceeding
("Insolvency Proceeding"), and whether recovery thereof is or becomes barred by
a statute of limitations or is or becomes otherwise unenforceable, together with
all expenses of, for and incidental to collection, including reasonable
attorneys' fees.
2. CONTINUING NATURE/REINSTATEMENT. This Guaranty is in addition to any other
guaranties of the Obligations, is continuing and covers all Obligations,
including those arising under successive transactions which continue or increase
the Obligations from time to time, renew all or part of the Obligations after
they have been satisfied, or create new Obligations. All of Beneficiary's rights
pursuant to this Guaranty continue with respect to amounts previously paid to
Beneficiary on account of any Obligations which are thereafter restored or
returned by Beneficiary, whether in an Insolvency Proceeding of Buyer or for any
other reason, all as though such amounts had not been paid to Beneficiary; and
Guarantor's liability under this Guaranty (and all its terms and provisions)
shall be reinstated and revived, notwithstanding any surrender or cancellation
of this Guaranty. Beneficiary, at its sole discretion, may determine whether any
amount paid to it must be restored or returned; provided, however, that if
Beneficiary elects to contest any claim for return or restoration, Guarantor
agrees to indemnify and hold Beneficiary harmless from and against all costs and
expenses, including reasonable attorneys' fees, expended or incurred by
Beneficiary in connection with such contest. If any Insolvency Proceeding is
commenced by or against Buyer or Guarantor, at Beneficiary's election,
Guarantor's obligations under this Guaranty shall immediately and without notice
or demand become due and payable, whether or not then otherwise due and payable.
3. AUTHORIZATION. Guarantor authorizes Beneficiary, without notice and without
affecting Guarantor's liability under this Guaranty, from time to time, to (a)
renew, compromise, extend, accelerate, release, subordinate, waive, amend and
restate, or otherwise amend or change, the interest rate, time or place for
payment or any other terms of all or any part of the Obligations; (b) accept
delinquent or partial payments on the Obligations; (c) take or not take security
or other credit support for this Guaranty or for all or any part of the
Obligations, and exchange, enforce, waive, release, subordinate, fail to enforce
or perfect, sell, or otherwise dispose of any such security or credit support;
(d) apply proceeds of any such security or credit support and direct the order
or manner of its sale or enforcement as Beneficiary, at its sole discretion, may
determine; and (e) release or substitute Buyer or any guarantor or other person
or entity liable on the Obligations.
4. WAIVERS. This Guaranty is a primary obligation of Guarantor, and Guarantor
hereby waives, to the maximum extent permitted by law, (a) all rights to require
Beneficiary to
proceed against Buyer, or any other guarantor, or proceed against, enforce or
exhaust any security for the Obligations or to marshal assets or to pursue any
other remedy in Beneficiary's power whatsoever (and any defense based upon
Beneficiary's failure or delay in pursuing any such remedy); (b) all defenses
arising by reason of any disability or other defense of Buyer (other than the
full payment and performance of the Obligations), the cessation for any reason
of the liability of Buyer, any defense that any other indemnity, guaranty or
security was to be obtained, any claim that Beneficiary has made Guarantor's
obligations more burdensome or more burdensome than Buyer's obligations
(including without limitation any change in the underlying obligations), and the
use of any proceeds of the Obligations other than as intended or understood by
Beneficiary or Guarantor; (c) all presentments, demands for performance, notices
of nonperformance, protests, notices of dishonor, notices of acceptance of this
Guaranty and of the existence or creation of new or additional Obligations, and
all other notices or demands to which Guarantor might otherwise be entitled; (d)
all conditions precedent to the effectiveness of this Guaranty; (e) all rights
to file a claim in connection with the Obligations in an Insolvency Proceeding
filed by or against Buyer; (f) all rights to require Beneficiary to enforce any
of its remedies; and (g) until the Obligations are satisfied or fully paid with
such payment not subject to return: (i) all rights of subrogation, contribution,
indemnification or reimbursement, (ii) all rights of recourse to any assets or
property of Buyer, or to any collateral or credit support for the Obligations,
(iii) all rights to participate in or benefit from any security or credit
support Beneficiary may have or acquire, and (iv) all rights, remedies and
defenses Guarantor may have or acquire against Buyer.
5. GUARANTOR TO KEEP INFORMED. Guarantor warrants having established with Buyer
adequate means of obtaining, on an ongoing basis, such information as Guarantor
may require concerning all matters bearing on the risk of nonpayment or
nonperformance of the Obligations. Guarantor assumes sole, continuing
responsibility for obtaining such information from sources other than from
Beneficiary. Beneficiary has no duty to provide any information to Guarantor
until Beneficiary receives Guarantor's written request for specific information
in Beneficiary's possession which is reasonably related to the collection of the
accounts receivable sold by Beneficiary pursuant to the Receivables Purchase
Agreement referred to in Section 1 above, and Buyer has authorized Beneficiary
to disclose such information to Guarantor.
6. ASSIGNMENT. This Guaranty shall inure to the benefit of Beneficiary and
Beneficiary's successors and assigns. Beneficiary may assign Beneficiary's
rights under this Guaranty in whole or in part.
7. INTEGRATION/SEVERABILITY/AMENDMENTS. This Guaranty is intended by Guarantor
and Beneficiary as the complete, final expression of their agreement concerning
its subject matter. It supersedes all prior understandings or agreements with
respect thereto and may be changed only by a writing signed by Guarantor and
Beneficiary. No course of dealing, or parole or extrinsic evidence shall be used
to modify or supplement the express terms of this Guaranty. If any provision of
this Guaranty is found to be illegal, invalid or unenforceable, such provision
shall be enforced to the maximum extent permitted, but if fully unenforceable,
such provision shall be severable, and this Guaranty shall be construed as if
such provision had never been a part of this Guaranty, and the remaining
provisions shall continue in full force and effect.
8. NOTICES. Any notice shall be effective only upon its receipt by the other
party and only if (a) given in writing and (b) personally delivered or sent by
United States mail, postage prepaid, and addressed to Beneficiary or Guarantor
at their respective addresses for notices indicated below. Guarantor and
Beneficiary may change the place to which notices, requests, and other
communications are to be sent to them by giving written notice of such change to
the other.
9. VENUE. Guarantor submits to the non-exclusive jurisdiction of the state or
federal courts of the State of California.
This Guaranty is executed as of March 29, 2002. Guarantor acknowledges having
received a copy of this Guaranty and having made each waiver contained in this
Guaranty with full knowledge of its consequences.
TENDER LOVING CARE HEALTH MED DIVERSIFIED, INC.
CARE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Its: S.V.P., Chief Financial Officer Its: President & CEO
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Address for notices to Beneficiary: Address for notices to Guarantor:
1983 Marcus Avenue 200 Brickstone Square
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Lake Success, NY 11042 Suite 403
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Andover, MA 01810
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Attn: Xxxxx Xxxxxxxxxxxx
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