GUARANTY
THIS GUARANTY ("Guaranty") dated as of September 23, 2004, is given by
Critical Home Care, Inc., a Nevada corporation ("Guarantor") in favor of Xxx
Xxxxxxxx ("Xxxxxxxx"), Xxxx Xxxxxxx ("Benzine"), Xxxxx Xxxxxx, ("Xxxxxx") and
Xxxx Xxxxxxx ("Xxxxxxx"), as set forth herein. Hathcock, Benzine, Xxxxxx and
Xxxxxxx are sometimes individually referred to herein as a "Payee" and
collectively as the "Payees".
RECITALS:
A. SSAC, LLC, a Florida limited liability company (the "Maker") is
indebted to Xxxxxxxx and Benzine pursuant to the terms of a certain Six Hundred
Sixty Thousand and Seven Hundred Forty and No/100 ($660,740.00) Dollar Buyer
Promissory Note dated as of the date hereof (the "Note").
B. Pursuant to Section 1.4.2 of a certain Stock Purchase Agreement by
and among the Maker, Trinity Healthcare of Winston-Salem, Inc. ("Company"),
Hathcock, Benzine, Xxxxxx and Xxxxxxx dated as of the date hereof (the "Stock
Purchase Agreement"), the Maker is obligated to pay Xxxxxx and Xxxxxxx the sum
of Nine Hundred Seventy Five Thousand Five Hundred Ten ($975,510.00) Dollars on
or before January 15, 2005 (the "Deferred Payment").
C. The Maker is the wholly owned second tier subsidiary of the
Guarantor.
D. It is a condition precedent for the Payees to extend credit to the
Maker under the Note and Deferred Payment that the Guarantor guaranty the
obligations of the Maker to the Payees under the terms of this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. GUARANTY. Subject to the Maker's "Setoff Rights" (as hereinafter
defined), Guarantor unconditionally guarantees to the Payees the full and prompt
payment of all Indebtedness (as hereinafter defined) of Maker due and to become
due to the Payees after expiration of any applicable notice and cure period.
Subject to the Setoff Rights, the Payee shall have immediate recourse against
Guarantor for the full and immediate payment of the Indebtedness, or any part
thereof, which has not been paid in full whether by acceleration or otherwise
after expiration of any applicable notice and cure period. Notwithstanding
anything contained herein to the contrary, the Guarantor's guaranty of the
Indebtedness and its obligations to satisfy such guaranty are irrespective of
any subordination agreement entered into by and among the Payees, the Guarantor
and the Maker and the Payees shall have immediate recourse against the Guarantor
under this Guaranty regardless of whether the Maker has satisfied the and or all
of the senior indebtedness.
2. INDEBTEDNESS. The term "Indebtedness" shall mean the indebtedness
evidenced by and pursuant to the Note and the Deferred Payment and any and all
renewals, extensions or
modifications thereof, but subject to the right of the Maker to set-off or
recoup against all or a portion of the Indebtedness pursuant to the terms of the
Stock Purchase Agreement (the "Setoff Rights").
3. NATURE OF THE GUARANTY. This guaranty is an irrevocable,
unconditional (other than being subject to the Setoff Rights) and absolute
guaranty of payment and not of collection, and Guarantor agrees that upon a
default of Maker's obligations pursuant to the Note and the Deferred Payment
which shall remain uncured, the Payees shall not be obligated to further demand
payment or to take any further steps to collect the Indebtedness from the Maker
prior to seeking recourse against, or receiving payment from Guarantor.
4. WAIVERS. The Guarantor hereby waives: (a) notice of acceptance of
this Guaranty and of creations of Indebtedness of the Maker to each Payee; (b)
presentment and demand for payment of any Indebtedness of the Maker; (c)
protest, notice of protest, and notice of dishonor or default to the Guarantor
or to any other party with respect to any of the Indebtedness or the Note; (d)
any demand for payment under this Guaranty; (e)any duty on the part of a Payee
to disclose to any Guarantor any facts any Payee may now or hereafter know about
any Guarantor, and (f) any right or claim or claim of right to cause a
marshalling of Maker's assets. No notice to, or demand on a Guarantor shall be
deemed to be a waiver of the obligation of said Guarantor, or of the right of
the Payees to take further action without notice or demand as provided herein;
nor in any event shall any modification or waiver of the provisions of this
Guaranty be effective, unless in writing, nor shall any such waiver be
applicable except in the specific instance for which given.
5. SUBROGATION. Guarantor hereby irrevocably and unconditionally waives
all rights Guarantor may have, at law or in equity, to seek or claim
subrogation, contribution, indemnification, or any other form of reimbursement
from the Maker or from any other Guarantor by virtue of any payment(s) made to
the Payees under this Guaranty until such time as the Indebtedness is paid in
full. Guarantor acknowledges and agrees with the Payees that if the Payees shall
at any time be required to return or restore to Maker or to any trustee in
bankruptcy, any payment(s) made upon the Indebtedness, this Guaranty shall
continue in full force and effect or shall be fully reinstated, as the case may
be, and Guarantor's obligations to the Payees under this Guaranty shall be
increased by the amount of any such payment(s) upon the Indebtedness as the
Payees shall be obliged to return or restore, plus interest thereon at the rate
provided in the evidence of Indebtedness applicable to any such payment(s) from
the date(s) the payment(s) upon the Indebtedness was originally made.
6. BINDING EFFECT. Each reference herein to the Payees shall be deemed
to include their successors and assigns, in whose favor the provisions of this
Guaranty shall also run.
7. TERMINATION. Except as otherwise provided herein, this Guaranty shall
become null and void and the liability of the Guarantor terminated only in the
event the Maker shall pay to the Payees in full the Indebtedness.
8. NOTICES. Any notices or demands required under this Guaranty shall be
in writing, delivered to the address set forth below and served as follows: (a)
by personal service with service being effective upon delivery, (b) by certified
mail, return receipt requested, with
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service being effective three (3) business days after mailing, (c) by telecopy,
facsimile or other form of telecommunication, with service being effective upon
the date of transmission with reasonable evidence that the transmission was
sent, or (d) by recognized overnight courier service, with service being
effective one (1) business day after delivery to such courier service.
If to Guarantor: Critical Home Care, Inc.
00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, XX
With a copy to: (which shall by itself not constitute notice)
Xxxx X. Xxxx, Esq.
Xxxx, Xxxxxxx and Xxxxx, PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
If to Payees: c/o Xxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx Xxxx., Xx.000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
With a copy to: (which shall not by itself constitute notice)
J. Xxxx Xxxxxxx, Esq.
Smith, Hawkins, Xxxxxxxxxxxxx & Xxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
9. ENTIRE AGREEMENT. This Guaranty contains the entire agreement, and
supersedes all prior agreements, representations, negotiations, and
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
10. AMENDMENTS AND MODIFICATIONS. Except as otherwise provided herein,
this Guaranty may be amended or supplemented in any respect only with the
written consent of all the parties hereto.
11. BINDING EFFECT; BENEFITS. All of the terms and provisions of this
Guaranty shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, successors and permitted
assigns.
12. SEVERABILITY. Whenever 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 unenforceable or
invalid under applicable law, such provision shall be ineffective only to the
extent of such unenforceability or invalidity, and the remaining provisions of
this Guaranty shall continue to be binding and in full force and effect.
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13. HEADINGS. The section and other headings contained in this Guaranty
are for convenience only and shall not be deemed to limit, characterize or
interpret any provisions of this Guaranty.
14. NO STRICT CONSTRUCTION. The parties hereto jointly participated in
the negotiation and drafting of this Guaranty. The language used in this
Guaranty shall be deemed to be the language chosen by the parties hereto to
express their collective mutual intent, this Guaranty shall be construed as if
drafted jointly by the parties hereto, and no rule of strict construction shall
be applied against any person.
15. INTERPRETATION. As used in this Guaranty, the masculine, feminine or
neuter gender shall be deemed to include the others whenever the context so
indicates or requires. Terms defined in the singular have a comparable meaning
when used in the plural and vice versa. Terms defined in the current tense shall
have a comparable meaning when used in the past or future tense and vice versa.
Terms defined as a noun shall have a comparable meaning when used as an
adjective, adverb, or verb and vice versa. Whenever the term "include" or
"including" is used in this Guaranty, it shall mean "including, without
limitation," (whether or not such language is specifically set forth) and shall
not be deemed to limit the range of possibilities to those items specifically
enumerated. Unless otherwise limited, the words "hereof", "herein" and
"hereunder" and words of similar import refer to this Guaranty as a whole and
not to any particular provision.
16. GOVERNING LAW. This Guaranty and the rights of the parties hereunder
shall be construed and interpreted in accordance with the laws of the State of
Florida without regards to conflicts of laws principles.
IN WITNESS WHEREOF, the Guarantor hereto has caused this Guaranty to be
executed as of the day and year first above written.
WITNESS: Guarantor:
Critical Home Care, Inc., a Nevada
corporation
Xxxxx X. Xxx By: /s/ Xxxx X. Xxxxxxx, XX
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Its: Chairman/CEO
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