GUARANTY AGREEMENT
Exhibit 10.3
EXECUTION VERSION
THIS GUARANTY AGREEMENT, dated as of the 30th day of March, 2011 (this “Guaranty”), is
made by each of the undersigned Subsidiaries of XXXXXXX HYGIENE INC., a Delaware corporation (the
“Borrower”), and each other Subsidiary of the Borrower that, after the date hereof,
executes an instrument of accession hereto substantially in the form of Exhibit A (a
“Guarantor Accession”; the undersigned and such other Subsidiaries of the Borrower,
collectively, the “Guarantors”), in favor of the Guaranteed Parties (as hereinafter
defined). Capitalized terms used herein without definition shall have the meanings given to them
in the Credit Agreement referred to below.
RECITALS
A. The Borrower, certain Lenders, and Xxxxx Fargo Bank, National Association, as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”), are
parties to a Credit Agreement, dated as of March 30, 2011 (as amended, modified, restated or
supplemented from time to time, the “Credit Agreement”), providing for the availability of
certain credit facilities to the Borrower upon the terms and conditions set forth therein.
B. It is a condition to the extension of credit to the Borrower under the Credit Agreement
that each Guarantor shall have agreed, by executing and delivering this Guaranty, to guarantee to
the Guaranteed Parties the payment in full of the Guaranteed Obligations (as hereinafter defined).
The Guaranteed Parties are relying on this Guaranty in their decision to extend credit to the
Borrower under the Credit Agreement, and would not enter into the Credit Agreement without this
Guaranty.
C. The Borrower and the Guarantors are engaged in related businesses and undertake certain
activities and operations on an integrated basis. As part of such integrated operations, the
Borrower, among other things, will advance to the Guarantors from time to time certain proceeds of
the Loans made to the Borrower by the Lenders under the Credit Agreement. Each Guarantor will
therefore obtain benefits as a result of the extension of credit to the Borrower under the Credit
Agreement, which benefits are hereby acknowledged, and, accordingly, desires to execute and deliver
this Guaranty.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to induce the Guaranteed Parties to
enter into the Credit Agreement and to induce the Lenders to extend credit to the Borrower
thereunder, each Guarantor hereby agrees as follows:
1. Guaranty.
(a) Each Guarantor hereby irrevocably, absolutely and unconditionally, and jointly and
severally:
(i) guarantees (A) to the Lenders (including the Issuing Lender and the Swingline
Lender in their capacities as such) and the Administrative Agent (together with any Lender
(or any Affiliate of any Lender) in the capacity described in clause (B) below,
collectively, the “Guaranteed Parties”) the full and prompt payment, at any time and
from time to time as and when due (whether at the stated maturity, by acceleration or
otherwise), of all Obligations of the Borrower under the Credit Agreement and the other
Credit Documents, including, without limitation, all principal of and interest on the Loans,
all Reimbursement Obligations, all fees, expenses, indemnities and other amounts payable by
the Borrower under the Credit Agreement or any other Credit Document (including interest
accruing after the filing of a petition or commencement of a case by or with respect to the
Borrower seeking relief under any Insolvency Laws (as hereinafter defined), whether or not
the claim for such interest is allowed in such proceeding), and all Obligations that, but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due, and (B) to each applicable Lender or Affiliate of any Lender in its capacity as
a Hedge Party under any Hedge Agreement that is required or permitted by the Credit
Agreement to be entered into by the Borrower (a “Permitted Hedge Agreement”), all
obligations of the Borrower under such Permitted Hedge Agreement, in each case under (A) and
(B) whether now existing or hereafter created or arising and whether direct or indirect,
absolute or contingent, due or to become due (all liabilities and obligations described in
this clause (i), collectively, the “Guaranteed Obligations”); and
(ii) agrees to pay the reasonable fees and expenses of counsel to, and reimburse upon
demand all reasonable costs and expenses incurred or paid by, (y) any Guaranteed Party in
connection with any suit, action or proceeding to enforce or protect any rights of the
Guaranteed Parties hereunder and (z) the Administrative Agent in connection with any
amendment, modification or waiver hereof or consent pursuant hereto, and to indemnify and
hold each Guaranteed Party and its directors, officers, employees, agents and Affiliates
harmless from and against any and all claims, losses, damages, obligations, liabilities,
penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and
expenses) of any kind or nature whatsoever, whether direct, indirect or consequential, that
may at any time be imposed on, incurred by or asserted against any such indemnified party as
a result of, arising from or in any way relating to this Guaranty or the collection or
enforcement of the Guaranteed Obligations; provided, however, that no
indemnified party shall have the right to be indemnified
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hereunder for any such claims, losses, costs and expenses to the extent determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such indemnified party.
(b) Notwithstanding the provisions of subsection (a) above and notwithstanding any other
provisions contained herein or in any other Credit Document:
(i) no provision of this Guaranty shall require or permit the collection from any
Guarantor of interest in excess of the maximum rate or amount that such Guarantor may be
required or permitted to pay pursuant to applicable law; and
(ii) the liability of each Guarantor under this Guaranty as of any date shall be
limited to a maximum aggregate amount (the “Maximum Guaranteed Amount”) equal to the
greatest amount that would not render such Guarantor’s obligations under this Guaranty
subject to avoidance, discharge or reduction as of such date as a fraudulent transfer or
conveyance under applicable federal and state laws pertaining to bankruptcy, reorganization,
arrangement, moratorium, readjustment of debts, dissolution, liquidation or other debtor
relief, specifically including, without limitation, the Bankruptcy Code and any fraudulent
transfer and fraudulent conveyance laws (collectively, “Insolvency Laws”), in each
instance after giving effect to all other liabilities of such Guarantor, contingent or
otherwise, that are relevant under applicable Insolvency Laws (specifically excluding,
however, any liabilities of such Guarantor in respect of intercompany indebtedness to the
Borrower or any of its Affiliates to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder, and after giving effect
as assets to the value (as determined under applicable Insolvency Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (y) applicable law or (z) any agreement (including this Guaranty) providing for
an equitable allocation among such Guarantor and other Affiliates of the Borrower of
obligations arising under guaranties by such parties).
(c) The Guarantors desire to allocate among themselves, in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is
made hereunder on any date by a Guarantor (a “Funding Guarantor”) that exceeds its Fair
Share (as hereinafter defined) as of such date, that Funding Guarantor shall be entitled to a
contribution from each of the other Guarantors in the amount of such other Guarantor’s Fair Share
Shortfall (as hereinafter defined) as of such date, with the result that all such contributions
will cause each Guarantor’s Aggregate Payments (as hereinafter defined) to equal its Fair Share as
of such date. “Fair Share” means, with respect to a Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum Guaranteed Amount (as
hereinafter defined) with respect to such Guarantor to (y) the aggregate of the Adjusted Maximum
Guaranteed Amounts with respect to all Guarantors, multiplied by (ii) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors hereunder in respect of the
obligations guarantied. “Fair Share Shortfall” means, with respect to a Guarantor as of
any date of determination, the excess, if any, of the Fair Share of such Guarantor over the
Aggregate Payments of such Guarantor. “Adjusted Maximum Guaranteed Amount” means, with
respect to a Guarantor as of any date of determination, the Maximum Guaranteed Amount of
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such Guarantor, determined in accordance with the provisions of subsection (b) above;
provided that, solely for purposes of calculating the “Adjusted Maximum Guaranteed Amount”
with respect to any Guarantor for purposes of this subsection (c), any assets or liabilities
arising by virtue of any rights to subrogation, reimbursement or indemnity or any rights to or
obligations of contribution hereunder shall not be considered as assets or liabilities of such
Guarantor. “Aggregate Payments” means, with respect to a Guarantor as of any date of
determination, the aggregate amount of all payments and distributions made on or before such date
by such Guarantor in respect of this Guaranty (including, without limitation, in respect of this
subsection (c)). The amounts payable as contributions hereunder shall be determined as of the date
on which the related payment or distribution is made by the applicable Funding Guarantor. Each
Funding Guarantor’s right of contribution under this subsection (c) shall be subject to the
provisions of Section 4. The allocation among Guarantors of their obligations as set forth in this
subsection (c) shall not be construed in any way to limit the liability of any Guarantor hereunder
to the Guaranteed Parties.
(d) The guaranty of each Guarantor set forth in this Section is a guaranty of payment as a
primary obligor, and not a guaranty of collection. Each Guarantor hereby acknowledges and agrees
that the Guaranteed Obligations, at any time and from time to time, may exceed the Maximum
Guaranteed Amount of such Guarantor and may exceed the aggregate of the Maximum Guaranteed Amounts
of all Guarantors, in each case without discharging, limiting or otherwise affecting the
obligations of any Guarantor hereunder or the rights, powers and remedies of any Guaranteed Party
hereunder or under any other Credit Document.
2. Guaranty Absolute. Each Guarantor agrees that its obligations hereunder and under
the other Credit Documents to which it is a party are irrevocable, absolute and unconditional, are
independent of the Guaranteed Obligations and any Collateral or other security therefor or other
guaranty or liability in respect thereof, whether given by such Guarantor or any other Person, and
shall not be discharged, limited or otherwise affected by reason of any of the following, whether
or not such Guarantor has notice or knowledge thereof:
(i) any change in the time, manner or place of payment of, or in any other term of, any
Guaranteed Obligations or any guaranty or other liability in respect thereof, or any
amendment, modification or supplement to, restatement of, or consent to any rescission or
waiver of or departure from, any provisions of the Credit Agreement, any other Credit
Document or any agreement or instrument delivered pursuant to any of the foregoing;
(ii) the invalidity or unenforceability of any Guaranteed Obligations, any guaranty or
other liability in respect thereof or any provisions of the Credit Agreement, any other
Credit Document or any agreement or instrument delivered pursuant to any of the foregoing;
(iii) the addition or release of Guarantors hereunder or the taking, acceptance or
release of other guarantees of any Guaranteed Obligations or additional Collateral or other
security for any Guaranteed Obligations or for any guaranty or other liability in respect
thereof;
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(iv) any discharge, modification, settlement, compromise or other action in respect of
any Guaranteed Obligations or any guaranty or other liability in respect thereof, including
any acceptance or refusal of any offer or performance with respect to the same or the
subordination of the same to the payment of any other obligations;
(v) any agreement not to pursue or enforce or any failure to pursue or enforce (whether
voluntarily or involuntarily as a result of operation of law, court order or otherwise) any
right or remedy in respect of any Guaranteed Obligations, any guaranty or other liability in
respect thereof or any Collateral or other security for any of the foregoing; any sale,
exchange, release, substitution, compromise or other action in respect of any such
Collateral or other security; or any failure to create, protect, perfect, secure, insure,
continue or maintain any Liens in any such Collateral or other security;
(vi) the exercise of any right or remedy available under the Credit Documents, at law,
in equity or otherwise in respect of any Collateral or other security for any Guaranteed
Obligations or for any guaranty or other liability in respect thereof, in any order and by
any manner thereby permitted, including, without limitation, foreclosure on any such
Collateral or other security by any manner of sale thereby permitted, whether or not every
aspect of such sale is commercially reasonable;
(vii) any bankruptcy, reorganization, arrangement, liquidation, insolvency,
dissolution, termination, reorganization or like change in the corporate structure or
existence of the Borrower or any other Person directly or indirectly liable for any
Guaranteed Obligations;
(viii) any manner of application of any payments by or amounts received or collected
from any Person, by whomsoever paid and howsoever realized, whether in reduction of any
Guaranteed Obligations or any other obligations of the Borrower or any other Person directly
or indirectly liable for any Guaranteed Obligations, regardless of what Guaranteed
Obligations may remain unpaid after any such application; or
(ix) any other circumstance that might otherwise constitute a legal or equitable
discharge of, or a defense, set-off or counterclaim available to, the Borrower, any
Guarantor or a surety or guarantor generally, other than the occurrence of all of the
following: (x) the payment in full in cash of the Guaranteed Obligations (other than
contingent and indemnification obligations not then due and payable), (y) the termination of
the Commitments and the termination or expiration of all Letters of Credit under the Credit
Agreement, and (z) the termination of, and settlement of all obligations of the Borrower
under, each Permitted Hedge Agreement to which any Hedge Party is a party (the events in
clauses (x), (y) and (z) above, collectively, the “Termination Requirements”).
3. Certain Waivers. Each Guarantor hereby knowingly, voluntarily and expressly
waives:
(i) presentment, demand for payment, demand for performance, protest and notice of any
other kind, including, without limitation, notice of nonpayment or other
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nonperformance (including notice of default under any Credit Document with respect to
any Guaranteed Obligations), protest, dishonor, acceptance hereof, extension of additional
credit to the Borrower and of any of the matters referred to in Section 2 and of any rights
to consent thereto;
(ii) any right to require the Guaranteed Parties or any of them, as a condition of
payment or performance by such Guarantor hereunder, to proceed against, or to exhaust or
have resort to any Collateral or other security from or any deposit balance or other credit
in favor of, the Borrower, any other Guarantor or any other Person directly or indirectly
liable for any Guaranteed Obligations, or to pursue any other remedy or enforce any other
right; and any other defense based on an election of remedies with respect to any Collateral
or other security for any Guaranteed Obligations or for any guaranty or other liability in
respect thereof, notwithstanding that any such election (including any failure to pursue or
enforce any rights or remedies) may impair or extinguish any right of indemnification,
contribution, reimbursement or subrogation or other right or remedy of any Guarantor against
the Borrower, any other Guarantor or any other Person directly or indirectly liable for any
Guaranteed Obligations or any such Collateral or other security; and, without limiting the
generality of the foregoing, each Guarantor hereby specifically waives the benefits of
Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended
from time to time, and any similar statute or law of any other jurisdiction, as the same may
be amended from time to time;
(iii) any right or defense based on or arising by reason of any right or defense of the
Borrower or any other Person, including, without limitation, any defense based on or arising
from a lack of authority or other disability of the Borrower or any other Person, the
invalidity or unenforceability of any Guaranteed Obligations, any Collateral or other
security therefor or any Credit Document or other agreement or instrument delivered pursuant
thereto, or the cessation of the liability of the Borrower for any reason other than the
satisfaction of the Termination Requirements;
(iv) any defense based on any Guaranteed Party’s acts or omissions in the
administration of the Guaranteed Obligations, any guaranty or other liability in respect
thereof or any Collateral or other security for any of the foregoing, and promptness,
diligence or any requirement that any Guaranteed Party create, protect, perfect, secure,
insure, continue or maintain any Liens in any such Collateral or other security;
(v) any right to assert against any Guaranteed Party, as a defense, counterclaim,
crossclaim or set-off, any defense, counterclaim, claim, right of recoupment or set-off that
it may at any time have against any Guaranteed Party (including, without limitation, failure
of consideration, fraud, fraudulent inducement, statute of limitations, payment, accord and
satisfaction and usury), other than compulsory counterclaims and other than the payment in
full in cash of the Guaranteed Obligations; and
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(vi) any defense based on or afforded by any applicable law that limits the liability
of or exonerates guarantors or sureties or that may in any other way conflict with the terms
of this Guaranty.
4. No Subrogation. Each Guarantor hereby waives, and agrees that it will not exercise
or seek to exercise, any claim or right that it may have against the Borrower or any other
Guarantor at any time as a result of any payment made under or in connection with this Guaranty or
the performance or enforcement hereof, including any right of subrogation to the rights of any of
the Guaranteed Parties against the Borrower or any other Guarantor, any right of indemnity,
contribution or reimbursement against the Borrower or any other Guarantor (including rights of
contribution as set forth in Section 1(c)), any right to enforce any remedies of any Guaranteed
Party against the Borrower or any other Guarantor, or any benefit of, or any right to participate
in, any Collateral or other security held by any Guaranteed Party to secure payment of the
Guaranteed Obligations, in each case whether such claims or rights arise by contract, statute
(including without limitation the Bankruptcy Code), common law or otherwise; provided,
however, that a Guarantor may enforce the rights of contribution set forth in Section 1(c)
after satisfaction of the Termination Requirements. Each Guarantor further agrees that all
indebtedness and other obligations, whether now or hereafter existing, of the Borrower or any other
Subsidiary of the Borrower to such Guarantor, including, without limitation, any such indebtedness
in any proceeding under the Bankruptcy Code and any intercompany receivables, together with any
interest thereon, shall be, and hereby are, subordinated and made junior in right of payment to the
Guaranteed Obligations. Each Guarantor further agrees that if any amount shall be paid to or any
distribution received by any Guarantor (i) on account of any such indebtedness at any time after
the occurrence and during the continuance of an Event of Default, or (ii) on account of any rights
of contribution at any time prior to the satisfaction of the Termination Requirements, such amount
or distribution shall be deemed to have been received and to be held in trust for the benefit of
the Guaranteed Parties, and shall forthwith be delivered to the Administrative Agent in the form
received (with any necessary endorsements in the case of written instruments), to be applied
against the Guaranteed Obligations, whether or not matured, in accordance with the terms of the
applicable Credit Documents and without in any way discharging, limiting or otherwise affecting the
liability of such Guarantor under any other provision of this Guaranty. Additionally, in the event
the Borrower or any other Credit Party becomes a “debtor” within the meaning of the Bankruptcy
Code, the Administrative Agent shall be entitled, at its option, on behalf of the Guaranteed
Parties and as attorney-in-fact for each Guarantor, and is hereby authorized and appointed by each
Guarantor, to file proofs of claim on behalf of each relevant Guarantor and vote the rights of each
such Guarantor in any plan of reorganization, and to demand, xxx for, collect and receive every
payment and distribution on any indebtedness of the Borrower or such Credit Party to any Guarantor
in any such proceeding, each Guarantor hereby assigning to the Administrative Agent all of its
rights in respect of any such claim, including the right to receive payments and distributions in
respect thereof.
5. Representations and Warranties. Each Guarantor hereby represents and warrants to
the Guaranteed Parties that, as to itself, all of the representations and warranties relating to it
contained in the Credit Agreement are true and correct.
6. Financial Condition of Borrower. Each Guarantor represents that it has knowledge
of the Borrower’s financial condition and affairs and that it has adequate means to
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obtain from the Borrower on an ongoing basis information relating thereto and to the
Borrower’s ability to pay and perform the Guaranteed Obligations, and agrees to assume the
responsibility for keeping, and to keep, so informed for so long as this Guaranty is in effect with
respect to such Guarantor. Each Guarantor agrees that the Guaranteed Parties shall have no
obligation to investigate the financial condition or affairs of the Borrower for the benefit of any
Guarantor nor to advise any Guarantor of any fact respecting, or any change in, the financial
condition or affairs of the Borrower that might become known to any Guaranteed Party at any time,
whether or not such Guaranteed Party knows or believes or has reason to know or believe that any
such fact or change is unknown to any Guarantor, or might (or does) materially increase the risk of
any Guarantor as guarantor, or might (or would) affect the willingness of any Guarantor to continue
as a guarantor of the Guaranteed Obligations.
7. Payments; Application; Set-Off.
(a) Each Guarantor agrees that, upon the failure of the Borrower to pay any Guaranteed
Obligations when and as the same shall become due (whether at the stated maturity, by acceleration
or otherwise), and without limitation of any other right or remedy that any Guaranteed Party may
have at law, in equity or otherwise against such Guarantor, such Guarantor will, subject to the
provisions of Section 1(b), forthwith pay or cause to be paid to the Administrative Agent, for the
benefit of the Guaranteed Parties, an amount equal to the amount of the Guaranteed Obligations then
due and owing as aforesaid.
(b) All payments made by each Guarantor hereunder will be made in Dollars to the
Administrative Agent, without set-off, counterclaim or other defense and, in accordance with the
Credit Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby
agreeing to comply with and be bound by the provisions of the Credit Agreement in respect of all
payments made by it hereunder.
(c) All payments made hereunder shall be applied in accordance with the provisions of Section
2.12 of the Credit Agreement. For purposes of applying amounts in accordance with this Section,
the Administrative Agent shall be entitled to rely upon any Guaranteed Party that has entered into
a Permitted Hedge Agreement with the Borrower for a determination (which such Guaranteed Party
agrees to provide or cause to be provided upon request of the Administrative Agent) of the
outstanding Guaranteed Obligations owed to such Guaranteed Party under any such Permitted Hedge
Agreement. Unless it has actual knowledge (including by way of written notice from any such
Guaranteed Party) to the contrary, the Administrative Agent, in acting hereunder, shall be entitled
to assume that no Permitted Hedge Agreements or Guaranteed Obligations in respect thereof are in
existence between any Guaranteed Party and the Borrower. If any Lender or Affiliate thereof that
is a party to a Permitted Hedge Agreement with the Borrower (the obligations of the Borrower under
which are Guaranteed Obligations) ceases to be a Lender or Affiliate thereof, such former Lender or
Affiliate thereof shall nevertheless continue to be a Guaranteed Party hereunder with respect to
the Guaranteed Obligations under such Permitted Hedge Agreement.
(d) In the event that the proceeds of any such sale, disposition or realization are
insufficient to pay all amounts to which the Guaranteed Parties are legally entitled, the
Guarantors shall be jointly and severally liable for the deficiency, together with interest thereon
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at the highest rate specified in any applicable Credit Document for interest on overdue
principal or such other rate as shall be fixed by applicable law, together with the costs of
collection and all other fees, costs and expenses payable hereunder.
(e) Upon and at any time after the occurrence and during the continuance of any Event of
Default, each Guaranteed Party and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Guaranteed Party or any such Affiliate to or for the credit or the account of any Guarantor against
any and all of the obligations of such Guarantor now or hereafter existing under this Guaranty or
any other Credit Document to such Guaranteed Party, irrespective of whether or not such Guaranteed
Party shall have made any demand under this Guaranty or any other Credit Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Guaranteed Party different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Guaranteed Party and their respective Affiliates under this
subsection are in addition to other rights and remedies (including other rights of setoff) that
such Guaranteed Parties or their respective Affiliates may have. Each Guaranteed Party agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such setoff
and application.
8. No Waiver. The rights and remedies of the Guaranteed Parties expressly set forth
in this Guaranty and the other Credit Documents are cumulative and in addition to, and not
exclusive of, all other rights and remedies available at law, in equity or otherwise. No failure
or delay on the part of any Guaranteed Party in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of any other right, power
or privilege or be construed to be a waiver of any Default or Event of Default. No course of
dealing between any of the Guarantors and the Guaranteed Parties or their agents or employees shall
be effective to amend, modify or discharge any provision of this Guaranty or any other Credit
Document or to constitute a waiver of any Default or Event of Default. No notice to or demand upon
any Guarantor in any case shall entitle such Guarantor or any other Guarantor to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the right of
any Guaranteed Party to exercise any right or remedy or take any other or further action in any
circumstances without notice or demand.
9. Enforcement. The Guaranteed Parties agree that, except as provided in Section
7(e), this Guaranty may be enforced only by the Administrative Agent, acting upon the instructions
or with the consent of the Required Lenders as provided for in the Credit Agreement, and that no
Guaranteed Party shall have any right individually to enforce or seek to enforce this Guaranty or
to realize upon any Collateral or other security given to secure the payment and performance of the
Guarantors’ obligations hereunder. The obligations of each Guarantor hereunder are independent of
the Guaranteed Obligations, and a separate action or actions may be brought against each Guarantor
whether or not action is brought against the Borrower or any other Guarantor and whether or not the
Borrower or any other Guarantor is joined in any such action. Each Guarantor agrees that to the
extent all or part of any payment of the Guaranteed
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Obligations made by any Person is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid by or on behalf of any Guaranteed Party to a
trustee, receiver or any other party under any Insolvency Laws (the amount of any such payment, a
“Reclaimed Amount”), then, to the extent of such Reclaimed Amount, this Guaranty shall
continue in full force and effect or be revived and reinstated, as the case may be, as to the
Guaranteed Obligations intended to be satisfied as if such payment had not been received; and each
Guarantor acknowledges that the term “Guaranteed Obligations” includes all Reclaimed Amounts that
may arise from time to time.
10. Amendments, Waivers, etc. No amendment, modification, waiver, discharge or
termination of, or consent to any departure by any Guarantor from, any provision of this Guaranty,
shall be effective unless in a writing signed by the Administrative Agent and such of the Lenders
as may be required under the provisions of the Credit Agreement to concur in the action then being
taken, and then the same shall be effective only in the specific instance and for the specific
purpose for which given.
11. Addition, Release of Guarantors. Each Guarantor recognizes that the provisions of
the Credit Agreement require Persons that become Subsidiaries of the Borrower and that are not
already parties hereto to become Guarantors hereunder by executing a Guarantor Accession (subject
to certain excepts regarding Foreign Subsidiaries), and agrees that its obligations hereunder shall
not be discharged, limited or otherwise affected by reason of the same, or by reason of the
Administrative Agent’s actions in effecting the same or in releasing any Guarantor hereunder, in
each case without the necessity of giving notice to or obtaining the consent of any other
Guarantor.
12. Continuing Guaranty; Term; Successors and Assigns; Assignment; Survival. This
Guaranty is a continuing guaranty and covers all of the Guaranteed Obligations as the same may
arise and be outstanding at any time and from time to time from and after the date hereof, and
shall (i) remain in full force and effect until satisfaction of all of the Termination Requirements
(provided that the provisions of Sections 1(a)(ii) and 4 shall survive any termination of
this Guaranty), (ii) be binding upon and enforceable against each Guarantor and its successors and
assigns (provided, however, that no Guarantor may sell, assign or transfer any of
its rights, interests, duties or obligations hereunder without the prior written consent of the
Required Lenders) and (iii) inure to the benefit of and be enforceable by each Guaranteed Party and
its successors and assigns. Without limiting the generality of clause (iii) above, any Guaranteed
Party may, in accordance with the provisions of the Credit Agreement, assign all or a portion of
the Guaranteed Obligations held by it (including by the sale of participations), whereupon each
Person that becomes the holder of any such Guaranteed Obligations shall (except as may be otherwise
agreed between such Guaranteed Party and such Person) have and may exercise all of the rights and
benefits in respect thereof granted to such Guaranteed Party under this Guaranty or otherwise.
Each Guarantor hereby irrevocably waives notice of and consents in advance to the assignment as
provided above from time to time by any Guaranteed Party of all or any portion of the Guaranteed
Obligations held by it and of the corresponding rights and interests of such Guaranteed Party
hereunder in connection therewith. All representations, warranties, covenants and agreements
herein shall survive the execution and delivery of this Guaranty and any Guarantor Accession.
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13. Governing Law; Consent to Jurisdiction; Appointment of Borrower as Representative,
Process Agent, Attorney-in-Fact.
(a) This Guaranty shall be governed by, and construed and enforced in accordance with, the
laws of the State of North Carolina (without regard to the conflicts of law provisions thereof).
(b) Each Guarantor irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the courts of the State of North Carolina sitting in Mecklenburg
County and of the United States District Court of the Western District of North Carolina, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Guaranty or any other Credit Document, or for recognition or enforcement of any judgment, and each
of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such state court or, to the fullest extent
permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty or in any other Credit Document shall affect any right that any Guaranteed Party may
otherwise have to bring any action or proceeding relating to this Guaranty or any other Credit
Document against any Guarantor or its properties in the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Guaranty or any other Credit Document in
any court referred to in Section 13(b). Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each Guarantor hereby irrevocably designates and appoints the Borrower as its designee,
appointee and agent to receive on its behalf all service of process in any such action or
proceeding and any other notice or communication hereunder, irrevocably consents to service of
process in any such action or proceeding by registered or certified mail directed to the Borrower
at its address set forth in the Credit Agreement (and service so made shall be deemed to be
completed upon the earlier of actual receipt thereof or three (3) business days after deposit in
the United States mails, proper postage prepaid and properly addressed), and irrevocably agrees
that service so made shall be effective and binding upon such Guarantor in every respect and that
any other notice or communication given to the Borrower at the address and in the manner specified
herein shall be effective notice to such Guarantor. Nothing in this Section shall affect the right
of any party to serve legal process in any other manner permitted by law or affect the right of any
Guaranteed Party to bring any action or proceeding against any Guarantor in the courts of any other
jurisdiction.
(e) Further, each Guarantor does hereby irrevocably make, constitute and appoint the Borrower
as its true and lawful attorney-in-fact, with full authority in its place and stead and in its
name, the Borrower’s name or otherwise, and with full power of substitution in the premises, from
time to time in the Borrower’s discretion to agree on behalf of, and sign the name of, such
11
Guarantor to any amendment, modification or supplement to, restatement of, or waiver or
consent in connection with, this Guaranty, any other Credit Document or any document or instrument
pursuant hereto or thereto, and to take any other action and do all other things on behalf of such
Guarantor that the Borrower may deem necessary or advisable to carry out and accomplish the
purposes of this Guaranty and the other Credit Documents. The Borrower will not be liable for any
act or omission nor for any error of judgment or mistake of fact unless the same shall occur as a
result of the gross negligence or willful misconduct of the Borrower. This power, being coupled
with an interest, is irrevocable by any Guarantor for so long as this Guaranty shall be in effect
with respect to such Guarantor. By its signature hereto, the Borrower consents to its appointment
as provided for herein and agrees promptly to distribute all process, notices and other
communications to each Guarantor.
14. Arbitration; Preservation and Limitation of Remedies.
(a) Upon demand of any party hereto, whether made before or after institution of any judicial
proceeding, any dispute, claim or controversy arising out of, connected with or relating to this
Guaranty or any other Credit Document (“Disputes”) between or among the Guarantors and the
Guaranteed Parties, or any of them, shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims, counterclaims,
claims brought as class actions, claims arising from documents executed in the future, disputes as
to whether a matter is subject to arbitration, or claims arising out of or connected with the
transactions contemplated by this Guaranty, the Credit Agreement and the other Credit Documents.
Arbitration shall be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the “Arbitration Rules”) of the American Arbitration Association (the
“AAA”), as in effect from time to time, and the Federal Arbitration Act, Title 9 of the
U.S. Code, as amended. All arbitration hearings shall be conducted in the city in which the
principal office of the Administrative Agent is located. A hearing shall begin within ninety (90)
days of demand for arbitration and all hearings shall be concluded within 120 days of demand for
arbitration. These time limitations may not be extended unless a party shows cause for extension
and then for no more than a total of sixty (60) days. The expedited procedures set forth in Rule
51 et seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute. A judgment upon the
award may be entered in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted. Notwithstanding the foregoing, this arbitration provision does not
apply to Disputes under or related to any Hedge Agreement. The parties do not waive applicable
federal or state substantive law except as provided herein.
(b) Notwithstanding the preceding binding arbitration provisions, the parties hereto agree to
preserve, without diminution, certain remedies that any party hereto may employ or exercise freely,
either alone, in conjunction with or during a Dispute. Any party hereto shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any Collateral by exercising a power
of sale granted pursuant to any of the Credit Documents or under
12
applicable law or by judicial foreclosure and sale, including a proceeding to confirm the
sale; (ii) all rights of self-help, including peaceful occupation of real property and collection
of rents, set-off, and peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies, including injunctive relief, sequestration, garnishment, attachment,
appointment of a receiver and filing an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment. Any claim or controversy with regard to any
party’s entitlement to such remedies is a Dispute. Preservation of these remedies does not limit
the power of an arbitrator to grant similar remedies that may be requested by a party in a Dispute.
The parties hereto agree that no party shall have a remedy of punitive or exemplary damages
against any other party in any Dispute, and each party hereby waives any right or claim to punitive
or exemplary damages that it has now or that may arise in the future in connection with any
Dispute, whether such Dispute is resolved by arbitration or judicially. The parties acknowledge
that by agreeing to binding arbitration they have irrevocably waived any right they may have to a
jury trial with regard to a Dispute. The Guarantors agree, jointly and severally, to pay the
reasonable fees and expenses of counsel to the Guaranteed Parties in connection with any Dispute
subject to arbitration as provided herein.
15. Notices. All notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows: (a) if to any Guarantor, in care of the Borrower
and at the Borrower’s address for notices set forth in the Credit Agreement, and (b) if to any
Guaranteed Party, at its address for notices set forth in the Credit Agreement; in each case, as
such addresses may be changed from time to time pursuant to the Credit Agreement, and with copies
to such other Persons as may be specified under the provisions of the Credit Agreement. Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in the Credit Agreement
shall be effective as provided therein.
16. Severability. To the extent any provision of this Guaranty is prohibited by or
invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to
the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining provisions of this Guaranty
in any jurisdiction.
17. Construction. The headings of the various sections and subsections of this
Guaranty have been inserted for convenience only and shall not in any way affect the meaning or
construction of any of the provisions hereof. Unless the context otherwise requires, words in the
singular include the plural and words in the plural include the singular.
18. Counterparts; Effectiveness. This Guaranty may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together constitute one and the
same instrument. This Guaranty shall become effective, as to any Guarantor, upon the execution and
delivery by such Guarantor of a counterpart hereof or a Guarantor Accession.
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IN WITNESS WHEREOF, the parties have caused this Guaranty to be executed under seal by their
duly authorized officers as of the date first above written.
XXXXXXX HYGIENE INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Chief Financial Officer | ||||
GUARANTORS: |
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XXXXXXX INTERNATIONAL, INC. HB SERVICE, LLC XXXXXXX HYGIENE FRANCHISE CORP. XXXXXXX PEST CONTROL CORP. XXXXXXX MAID, INC. SHFC FINANCE, LLC SERVICE MINNEAPOLIS, LLC SHFC OPERATIONS, LLC EXPRESS RESTAURANT EQUIPMENT SERVICE, INC. SERVICE ARKANSAS, LLC SERVICE BALTIMORE, LLC SERVICE XXXXXXX HILLS, LLC SERVICE BIRMINGHAM, LLC SERVICE CALIFORNIA, LLC SERVICE CAROLINA, LLC SERVICE CENTRAL FL, LLC SERVICE CHARLOTTE LLC SERVICE CHATTANOOGA, LLC SERVICE CINCINNATI, LLC SERVICE COLUMBIA, LLC SERVICE COLUMBUS, LLC SERVICE DC, LLC SERVICE DENVER, LLC |
By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Chief Financial Officer | ||||
(Signatures continue on following page)
Signature Page to Guaranty Agreement
SERVICE FLORIDA, LLC SERVICE GAINESVILLE, LLC SERVICE GOLD COAST, LLC SERVICE GREENSBORO, LLC SERVICE GREENVILLE, LLC SERVICE GULF COAST, LLC SERVICE HAWAII, LLC SERVICE HOUSTON, LLC SERVICE LAS VEGAS, LLC SERVICE LOUISVILLE, LLC SERVICE MEMPHIS, LLC SERVICE MICHIGAN, LLC SERVICE MIDATLANTIC, LLC SERVICE MIDWEST, LLC SERVICE NASHVILLE, LLC SERVICE NEW ENGLAND, LLC SERVICE NEW MEXICO, LLC SERVICE NEW ORLEANS, LLC SERVICE NORTH, LLC SERVICE NORTH-CENTRAL, LLC SERVICE OKLAHOMA CITY, LLC SERVICE PHILADELPHIA, LLC SERVICE PHOENIX, LLC SERVICE PORTLAND, LLC SERVICE RALEIGH, LLC SERVICE SALT LAKE CITY, LLC SERVICE SEATTLE, LLC SERVICE SOUTH, LLC SERVICE ST. LOUIS, LLC SERVICE TALLAHASSEE, LLC SERVICE TAMPA, LLC SERVICE TRI-CITIES, LLC SERVICE VIRGINIA, LLC SERVICE WEST COAST, LLC SERVICE WESTERN PENNSYLVANIA, LLC FOUR-STATE HYGIENE, INC. INTEGRATED BRANDS INC. ESKIMO PIE CORPORATION |
By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Chief Financial Officer | ||||
(Signatures continue on following page)
Signature Page to Guaranty Agreement
CHOICE ENVIRONMENTAL SERVICES,
INC. CHOICE ENVIRONMENTAL SERVICES OF MIAMI, INC. CHOICE ENVIRONMENTAL SERVICES OF BROWARD, INC. CHOICE ENVIRONMENTAL SERVICES OF DADE COUNTY, INC. CHOICE ENVIRONMENTAL SERVICES OF XXXXXXX, INC. CHOICE RECYCLING SERVICES OF MIAMI, INC. CHOICE ENVIRONMENTAL SERVICES OF ST. LUCIE, INC. CHOICE RECYCLING SERVICES OF BROWARD, INC. CHOICE ENVIRONMENTAL SERVICES OF XXX COUNTY, INC. CHOICE ENVIRONMENTAL SERVICES OF HIGHLANDS COUNTY, INC. |
By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Chief Financial Officer | ||||
Signature Page to Guaranty Agreement
Accepted and agreed to: XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent |
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By: | /s/ Cavan X. Xxxxxx | |||
Cavan X. Xxxxxx | ||||
Senior Vice President |
Signature Page to Guaranty Agreement
EXECUTION VERSION
EXHIBIT A
GUARANTOR ACCESSION
THIS GUARANTOR ACCESSION (this “Accession”), dated as of _____________, ____, is
executed and delivered by [NAME OF NEW GUARANTOR], a ______________ corporation (the “New
Guarantor”), pursuant to the Guaranty Agreement referred to hereinbelow.
Reference is made to the Credit Agreement, dated as of March 30, 2011, among Xxxxxxx Hygiene
Inc. (the “Borrower”), the Lenders party thereto, and the Administrative Agent (as amended,
modified, restated or supplemented from time to time, the “Credit Agreement”). In
connection with and as a condition to the initial and continued extensions of credit under the
Credit Agreement, the Borrower and certain of its Subsidiaries have executed and delivered a
Guaranty Agreement, dated as of March 30, 2011 (as amended, modified, restated or supplemented from
time to time, the “Guaranty Agreement”), pursuant to which such Subsidiaries have
guaranteed the payment in full of the obligations of the Borrower under the Credit Agreement and
the other Credit Documents (as defined in the Credit Agreement). Capitalized terms used herein
without definition shall have the meanings given to them in the Guaranty Agreement.
The Borrower has agreed under the Credit Agreement to cause each of its future Subsidiaries to
become a party to the Guaranty Agreement as a guarantor thereunder (subject to certain excepts
regarding Foreign Subsidiaries). The New Guarantor is a Subsidiary of the Borrower. The New
Guarantor will obtain benefits as a result of the continued extension of credit to the Borrower
under the Credit Agreement, which benefits are hereby acknowledged, and, accordingly, desire to
execute and deliver this Accession. Therefore, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to
induce the Lenders to continue to extend credit to the Borrower under the Credit Agreement, the New
Guarantor hereby agrees as follows:
1. The New Guarantor hereby joins in and agrees to be bound by each and all of the provisions
of the Guaranty Agreement as a Guarantor thereunder. In furtherance (and without limitation) of
the foregoing, pursuant to Section 1 of the Guaranty Agreement, the New Guarantor hereby
irrevocably, absolutely and unconditionally, and jointly and severally with each other Guarantor,
guarantees to the Guaranteed Parties the full and prompt payment, at any time and from time to time
as and when due (whether at the stated maturity, by acceleration or otherwise), of all of the
Guaranteed Obligations, and agrees to pay or reimburse upon demand all other obligations of the
Guarantors under the Guaranty Agreement, all on the terms and subject to the conditions set forth
in the Guaranty Agreement.
2. The New Guarantor hereby represents and warrants that after giving effect to this
Accession, each representation and warranty related to it contained in the Credit Agreement is true
and correct with respect to the New Guarantor as of the date hereof.
3. This Accession shall be a Credit Document (within the meaning of such term under the Credit
Agreement), shall be binding upon and enforceable against the New Guarantor and its successors and
assigns, and shall inure to the benefit of and be enforceable by each Guaranteed Party and its
successors and assigns. This Accession and its attachments are hereby incorporated into the
Guaranty Agreement and made a part thereof.
IN WITNESS WHEREOF, the New Guarantor has caused this Accession to be executed under seal by
its duly authorized officer as of the date first above written.
[NAME OF NEW GUARANTOR] |
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By: | ||||
Title: | ||||