EXHIBIT 4.5
[Form of Guaranty Related to Intercompany Note]
GUARANTY
This GUARANTY (as amended, supplemented, amended and restated or otherwise
modified from time to time, this "Guaranty"), dated as of November __, 2004, is
made by each Subsidiary (such capitalized term and other terms used in this
Guaranty to have the meanings set forth in Article I) of Coinmach Corporation, a
Delaware corporation (the "Borrower"), party hereto and such other Subsidiaries
of the Borrower as may become parties to this Guaranty in accordance with
Section 3.9 (herein individually referred to as a "Guarantor" and collectively
as the "Guarantors"), in favor of COINMACH SERVICE CORP., a Delaware corporation
("Holdco"), as holder of the Intercompany Note.
WITNESSETH:
WHEREAS, pursuant to a Promissory Note, dated as of November __, 2004 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Intercompany Note"), made by the Borrower to the order of Holdco,
Holdco will make an initial advance in the principal amount of $_________ and
may from time to time make additional advances (collectively, the "Advances") to
the Borrower;
WHEREAS, each Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of each Guarantor to execute this
Guaranty inasmuch as each such Guarantor will derive substantial direct and
indirect benefits from the Advances made from time to time to the Borrower by
Holdco pursuant to the Intercompany Note;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce Holdco to make Advances
(including the initial Advance) to the Borrower pursuant to the Intercompany
Note, each Guarantor jointly and severally agrees, for the benefit of Holdco, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Advances" is defined in the first recital.
"Borrower" is defined in the preamble.
"Guarantor" and "Guarantors" are defined in the preamble.
"Guaranty" is defined in the preamble.
"Holdco" is defined in the preamble.
"Indenture" is defined in Section 3.11.
"Intercompany Note" is defined in the first recital.
"Pledgee" is defined in Section 3.11.
SECTION 1.2 Intercompany Note Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Intercompany Note.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. Each Guarantor jointly and severally hereby
absolutely, unconditionally and irrevocably:
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all obligations of the Borrower under the Intercompany
Note, whether for principal, premium, interest, fees, expenses or
otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. Section
502(b) and Section 506(b)), and
(b) indemnifies and holds harmless Holdco for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by
Holdco in enforcing any rights under this Guaranty;
provided, however, that each Guarantor shall be liable under this Guaranty only
for the maximum amount of such liability that can be incurred without rendering
this Guaranty, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment when due and not
of collection, and each Guarantor specifically agrees that it shall not be
necessary or required that Holdco exercise any right, assert any claim or demand
or enforce any remedy whatsoever against the Borrower or any other Guarantor (or
any other Person) before or as a condition to the obligations of such Guarantor
hereunder.
SECTION 2.2 Guaranty Absolute, etc. This Guaranty shall in all respects be
a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall remain in full force and effect until all obligations of the Borrower
under the Intercompany Note have been paid in full and all obligations of each
Guarantor hereunder shall have been paid in full;
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provided, however, that in the event of any sale of all the capital stock, or
all or substantially all of the assets, of a Guarantor pursuant to Section
7(b)(vi) of the Intercompany Note, such Guarantor and each Guarantor that is a
Subsidiary of such Guarantor shall be deemed automatically discharged and
released from this Guaranty without any consent or other action by Holdco or any
other Person, and this Guaranty shall, as to each such Guarantor, be
automatically terminated and of no further force and effect, and Holdco shall,
at the request of the Borrower or any of such Guarantor and at the Borrower's
and such Guarantor's sole cost and expense, execute and deliver such documents
(without recourse and without representation or warranty) as the Borrower or
such Guarantor may reasonably request to evidence such release. Each Guarantor
guarantees that the obligations of the Borrower under the Intercompany Note will
be paid strictly in accordance with the terms thereof regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of Holdco with respect thereto. The liability of
each Guarantor under this Guaranty shall be absolute, unconditional and
irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Intercompany Note or any other instrument or document relating to any
thereof;
(b) the failure of Holdco:
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Guarantor or any other Person
under the provisions of the Intercompany Note, any other instrument
or document relating to any thereof or otherwise, or
(ii) to exercise any right or remedy against any other Person,
any obligations of the Borrower under the Intercompany Note or any
obligations of any other Guarantor hereunder;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower under the
Intercompany Note or any other Guarantor hereunder, or any other
extension, compromise or renewal of any such obligation of the Borrower or
any other Guarantor;
(d) any reduction, limitation, impairment or termination of the
obligations of the Borrower under the Intercompany Note or any other
Guarantor hereunder for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and such Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, such
obligations of the Borrower, any other Guarantor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Intercompany
Note or any other instrument or document relating to any thereof;
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(f) any amendment to or waiver or release or addition of, or consent
to departure from, this Guaranty as it relates to any other Guarantor or
any other guaranty, held by Holdco in respect of any of the obligations of
the Borrower under the Intercompany Note; or
(g) any other circumstance which might otherwise constitute a
defense (other than the defense of payment in full of the obligations
under the Intercompany Note and hereunder) available to, or a legal or
equitable discharge of, the Borrower, any other Guarantor, any surety or
any guarantor.
SECTION 2.3 Reinstatement, etc. Each Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the obligations under the
Intercompany Note or hereunder is rescinded or must otherwise be restored by
Holdco upon the insolvency, bankruptcy or reorganization of the Borrower, any
other Guarantor or otherwise, all as though such payment had not been made.
SECTION 2.4 Waiver, etc. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
obligations of the Borrower under the Intercompany Note or any other Guarantor
hereunder and this Guaranty and any requirement that Holdco exhaust any right or
take any action against the Borrower, any other Guarantor or any other Person
(including any other guarantor), as the case may be.
SECTION 2.5 Waiver of Subrogation and Contribution. Each Guarantor hereby
irrevocably waives any claim or any other rights which it may now or hereafter
acquire against the Borrower or any other Guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Guaranty, including any right of subrogation, reimbursement,
exoneration, contribution or indemnification, any right to participate in any
claim or remedy of Holdco against the Borrower or any other Guarantor, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from the Borrower or any
other Guarantor, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the obligations under the Intercompany Note or hereunder shall not have been
paid in full, such amount shall be deemed to have been paid to such Guarantor
for the benefit of, and held in trust for, Holdco, and shall forthwith be paid
to Holdco to be credited and applied upon the obligations under the Intercompany
Note or hereunder, whether matured or unmatured. Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by the Intercompany Note and that the waiver set forth
in this Section is knowingly made in contemplation of such benefits.
SECTION 2.6 Successors, Transferees and Assigns; Transfers of the
Intercompany Note, etc. This Guaranty shall:
(a) be binding upon each Guarantor and their respective successors,
transferees and assigns; and
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(b) inure to the benefit of and be enforceable by Holdco.
Without limiting the generality of the preceding clause (b), Holdco may assign
or otherwise transfer (in whole or in part) the Intercompany Note held by it to
the Pledgee without the consent of any Guarantor, and the Pledgee shall
thereupon become vested with all rights and benefits in respect thereof granted
to Holdco under the Intercompany Note and this Guaranty or otherwise.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Enforceability. This Guaranty has been duly authorized,
executed and delivered by each Guarantor and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
to the extent the enforceability hereof may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors generally and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law.
SECTION 3.2 Binding on Successors, Transferees and Assigns; Assignment. In
addition to, and not in limitation of, Section 2.6, this Guaranty shall be
binding upon each Guarantor and its respective successors, transferees and
assigns and shall inure to the benefit of and be enforceable by (including the
Pledgee) and its successors, transferees and assigns.
SECTION 3.3 No Waiver; Amendments. No failure or delay on the part of
Holdco in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No amendment, modification or waiver of, or consent with respect
to, any provision of this Guaranty shall in any event be effective unless (a)
the same shall be in writing and signed and delivered by each Guarantor and
Holdco and (b) consented to in writing by the Pledgee; provided, however, that
the consent of the Pledgee shall not be required:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption of the obligations of any
Guarantor under this Guaranty in the case of a merger or consolidation of
Guarantor with, or sale of all or substantially all of the Maker's assets
to, any Person that in connection therewith becomes a Domestic Restricted
Subsidiary of the Company;
(c) to make any change that would provide any additional rights or
benefits to Holdco or, indirectly, to the holders of the Notes (as defined
in the Indenture), or that does not adversely affect the legal rights of
Holdco hereunder; and
(d) to conform to the text of the terms of this Guaranty to any
provision of the prospectus dated November __, 2004 that relates to the
Notes (as defined in and issued under the Indenture) to the extent that
such provision in such prospectus was intended to be a verbatim recitation
of a provision of this Guaranty.
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SECTION 3.4 Addresses for Notices to the Guarantors. Any notices or other
communications required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed (a) in the
case to any Guarantor, to it at the address or facsimile number set forth below
its signature hereto and (b) in the case of Holdco, to Holdco at its address or
facsimile number set forth in Section 10 of the Intercompany Note. Each
Guarantor and Holdco by written notice to each other such Person may designate
additional or different addresses for notices to such Person. Any notice or
communication shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
SECTION 3.5 No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.2 and 2.4, no failure on the part of Holdco to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 3.6 Captions. Section captions used in this Guaranty are provided
for convenience of reference only and shall not affect the meaning or
interpretation of any provision of this Guaranty.
SECTION 3.7 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 3.8 Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts and additional Persons may become a Guarantor
under this Guaranty by executing a counterpart of this Guaranty, each of which
shall be deemed an original and all of which shall constitute but one and the
same agreement.
SECTION 3.9 Additional Guarantors. Upon the execution and delivery by any
other Person of a supplement in the form of Exhibit A hereto, such Person shall
become a "Guarantor" hereunder with the same force and effect as if it were
originally a party to this Guaranty and named as a "Guarantor" hereunder. The
execution and delivery of such supplement shall not require the consent of any
other party hereto, and the rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any other
new Guarantor as a party to this Guaranty.
SECTION 3.10 GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY HAS BEEN
DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS
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PRINCIPLES. This Guaranty and the Intercompany Note constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 3.11 Guaranty. This Guaranty is the Intercompany Note Guaranty
referred to in that certain Indenture dated as of November __, 2004 (as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time, the "Indenture"), among Holdco, Coinmach Laundry Corporation, a
Delaware corporation, and The Bank of New York, as trustee and collateral agent
(in such capacity, the "Pledgee") and has been pledged by Holdco to Pledgee
under the Security Agreement (as defined in the Indenture). Upon the occurrence
and during the continuance of any Event of Default under the Indenture, and
notice thereof by the Pledgee to the Guarantors and Holdco, the Pledgee shall
have all rights of Holdco under this Guaranty.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[GUARANTOR], a[n]______________
corporation
By:_______________________________
Name:
Title:
Address:___________________________
___________________________
___________________________
Facsimile:_________________________
[GUARANTOR], a[n]______________
corporation
By:________________________________
Name:
Title:
Address:___________________________
___________________________
___________________________
Facsimile:_________________________
ACKNOWLEDGED AND ACCEPTED:
COINMACH SERVICE CORP.
By:____________________________
Name:
Title:
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EXHIBIT A
to Guaranty
SUPPLEMENT NO. __
TO GUARANTY
SUPPLEMENT NO. ___ dated as of ________ __, 20___ (this "Supplement"), to
the Guaranty, dated as of November __, 2004 (as amended, supplemented, amended
and restated or otherwise modified from time to time, the "Guaranty"), among
each subsidiary of Coinmach Corporation, a Delaware corporation (the
"Borrower"), initial party thereto and such other subsidiaries of the Borrower
as have become parties thereto in accordance with Section 3.9 (each individually
referred to as a "Guarantor" and collectively as the "Guarantors"), in favor of
COINMACH SERVICE CORP., a Delaware corporation ("Holdco"), as holder of the
Intercompany Note.
WITNESSETH:
WHEREAS, pursuant to the provisions of Section 3.9 of the Guaranty, the
undersigned is becoming a Guarantor under the Guaranty; and
WHEREAS, the undersigned Guarantor desires to become a "Guarantor" under
the Guaranty in order to induce Holdco to continue to extend Advances (such
capitalized term and other terms used in this Supplement to have the meanings
set forth in Article I of the Guaranty) under the Intercompany Note;
NOW, THEREFORE, in consideration of the premises, and for other
consideration (the receipt and sufficiency of which is hereby acknowledged), the
undersigned agrees, for the benefit of Holdco, as follows.
SECTION 1. Party to Guaranty, etc. In accordance with the terms of the
Guaranty, by its signature below the undersigned hereby irrevocably agrees to
become a Guarantor under the Guaranty with the same force and effect as if it
were an original signatory thereto and the undersigned Guarantor hereby (a)
agrees to be bound by and comply with all of the terms and provisions of the
Guaranty applicable to it as a Guarantor and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct as of the date hereof, unless stated to relate solely to an earlier
date, in which case, such representations and warranties shall be true and
correct in all material respects as of such earlier date. In furtherance of the
foregoing, each reference to a "Guarantor" in the Guaranty shall be deemed to
include the undersigned Guarantor.
SECTION 2. Enforceability. This Supplement has been duly authorized,
executed and delivered by the undersigned and each of this Supplement and the
Guaranty as supplemented hereby constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except to the
extent the enforceability hereof may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors generally
and (ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law.
SECTION 3. Full Force of Guaranty. Except as expressly supplemented
hereby, the Guaranty shall remain in full force and effect in accordance with
its terms.
SECTION 4. Severability. In the event any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guaranty shall not in any way be affected
or impaired.
SECTION 5. Counterparts. This Supplement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 6. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS SUPPLEMENT HAS BEEN
DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES. This Supplement, the Guaranty and the Intercompany
Note constitute the entire understanding among the parties hereto with respect
to the subject matter hereof and supersede any prior agreements, written or
oral, with respect thereto.
Exh. A-2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed and delivered by its officer as of the date first above written.
[ADDITIONAL GUARANTOR], a[n]
___________ corporation
By:________________________________
Name:
Title:
Address:___________________________
___________________________
___________________________
Facsimile:_________________________
ACKNOWLEDGED AND ACCEPTED:
COINMACH SERVICE CORP.
By:_________________________________
Name:
Title:
Xxx. X-0
