EXHIBIT 10.30
AMENDED AND RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY ("Guaranty"), dated as of November
13, 1998, is made by each of the undersigned (each a "Guarantor" and
collectively, the "Guarantors") in favor of the Administrative and Collateral
Agent under the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Guarantors are a party to the Credit Agreement
dated as of August 9, 1996 ("Credit Agreement") between the Guarantors, each of
the financial institutions listed on Schedule I to the Credit Agreement or that,
pursuant to Section 13.4 of the Credit Agreement, shall become a "Bank" under
the Credit Agreement (individually, a "Bank" and collectively the "Banks"),
NationsBank, N.A., as the Syndication Agent, and Bank of America National Trust
and Savings Association, as the Administrative and Collateral Agent (the
"Administrative and Collateral Agent" and, collectively with the Banks, the
"Creditors"), as amended by the First Amendment to Credit Agreement, dated as of
April 22, 1997 (the "First Amendment"), the Second Amendment to Credit
Agreement, dated as of August 8, 1997 (the "Second Amendment"), the Third
Amendment to Credit Agreement and Waiver, dated as of January 30, 1998 (the
"Third Amendment"), the Fourth Amendment to Credit Agreement and Waiver, dated
as of March 13, 1998 (the "Fourth Amendment"), and the Fifth Amendment to Credit
Agreement and Waiver, dated as of April 15, 1998 (the "Fifth Amendment",
collectively with the First Amendment, the Second Amendment, the Third Amendment
and the Fourth Amendment, the "Amendments") (as amended, the "Existing Credit
Agreement");
WHEREAS, the Guarantors and the Administrative and Collateral
Agent are parties to the Guaranty, dated as of August 9, 1996 (the "Existing
Guaranty");
WHEREAS, the Borrowers previously provided notice to the
Administrative and Collateral Agent that certain Events of Default under
Sections 10.9, 10.10 and 10.11 of the Existing Credit Facility will occur on
September 30, 1998 due to the 0000 Xxxxx Xxxxxxx Charges and Reserves
("Financial Covenant Defaults");
WHEREAS, the Borrowers desire to issue at least $50,000,000 of
Senior Subordinated Convertible Debentures, the Net Available Proceeds of which
will be used to repay a portion of the Loans;
WHEREAS, the Borrowers have requested that the Banks amend and
restate the Existing Credit Facility to avoid the occurrence of such Event of
Default and to consent to the Borrowers issuance of the Senior Subordinated
Convertible Debentures;
WHEREAS, the Borrowers, the Banks and the Administrative and
Collateral Agent are parties to that certain Amended and Restated Credit
Agreement dated as of November 13, 1998 (the "Credit Agreement");
WHEREAS, each Guarantor will obtain benefits from the Credit
Agreement and, accordingly, desires to execute this Guaranty in order to satisfy
the conditions described in the preceding paragraph.
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Creditors and hereby covenants and agrees with each
Creditor as follows:
Capitalized terms used but not defined in this Guaranty shall have the
meanings assigned to them in the Credit Agreement and the rules of
interpretation set forth in Section 1.3 of the Credit Agreement shall apply to
this Guaranty. In addition, the following terms shall have the following
meanings:
"Guaranteed Obligations" shall have the meaning assigned to
such term in Section 2.
"Immaterial Subsidiaries" shall mean the Subsidiaries of Apria
set forth on Schedule XI to the Credit Agreement.
"Other Parties" shall have the meaning assigned to such term
in Section 11(c).
1. Each Guarantor irrevocably and unconditionally, and jointly and
severally, guarantees the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of (x) the principal of and
interest on the Notes issued by, and Loans made to, the Borrowers under the
Credit Agreement and all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit issued under the Credit Agreement and (y) all other
obligations and indebtedness (including, without limitation, indemnities, Fees
and interest on such obligations and indebtedness) of the Borrowers now existing
or hereafter incurred under, arising out of or in connection with the Credit
Agreement and the other Credit Documents and the due performance and compliance
by the Borrowers with the terms, conditions and agreements contained in the
Credit Documents (all such principal, interest, obligations and liabilities
being collectively referred to in this Guaranty as the "Guaranteed
Obligations"); provided, that notwithstanding any provision to the contrary
contained in this Guaranty or in any other Credit Document, the obligations of
each Guarantor under this Guaranty shall be limited to an aggregate amount equal
to the largest amount that would not render the Guaranteed Obligations of such
Guarantor under this Guaranty subject to avoidance under Section 548 of the
Bankruptcy Code or any comparable provisions of any applicable state law.
Subject to the proviso in the preceding sentence, each Guarantor understands,
agrees and confirms that the Creditors may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against any such Guarantor without
proceeding against any Borrower, against any security for the Guaranteed
Obligations, against any other Guarantor, or against any other guarantor under
any other guaranty covering the Guaranteed Obligations. All payments by each
Guarantor under this Guaranty shall be made on the same basis as payments by the
Borrowers under Sections 5.3 and 5.4 of the Credit Agreement.
2. Additionally, each Guarantor, jointly and severally, unconditionally and
irrevocably, guarantees the payment of any and all Guaranteed Obligations of the
Borrowers to the Creditors whether or not due or payable by the Borrowers upon
the occurrence of the events specified in Section 11.5 of the Credit Agreement,
and unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Creditors, or order, on demand, in lawful money of
the United States.
3. The liability of each Guarantor under this Guaranty is exclusive and
independent of any security for or other guaranty of the indebtedness of the
Borrowers whether executed by such Guarantor, any other Guarantor, any other
guarantor or by any other party, and the liability of such Guarantor under this
Guaranty shall not be affected or impaired by (a) any direction as to
application of payment by the Borrowers, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the indebtedness of the Borrowers, (c) any payment on or in reduction of
any such other guaranty or undertaking, (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrowers or (e) any payment
made to any Creditor on the indebtedness which any Creditor repays the Borrowers
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations under this Guaranty by
reason of any such proceeding.
4. The obligations of each Guarantor under this Guaranty are independent of
the obligations of any other Guarantor, any other guarantor or the Borrowers,
and a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor or the Borrowers, and whether or not any other Guarantor, any
other guarantor or the Borrowers be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability under this Guaranty or the
enforcement thereof. Any payment by the Borrowers or other circumstance which
operates to toll any statute of limitations as to the Borrowers shall operate to
toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty and
notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action taken by the Administrative and
Collateral Agent or any other Creditors against, and any other notice to, any
party liable thereon (including such Guarantor or any other Guarantor or
guarantor).
6. Any Creditor may at any time and from time to time without the consent
of, or notice to, any Guarantor, without incurring responsibility to any
Guarantor, without impairing or releasing the obligations of any Guarantor under
this Guaranty, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security for such Guaranteed Obligations, or any liability
incurred directly or indirectly in respect of such Guaranteed Obligations,
and the guaranty made in this Guaranty shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those under this Guaranty)
incurred directly or indirectly in respect thereof or in respect of this
Guaranty, or any offset there-against;
(c) exercise or refrain from exercising any rights against the
Borrowers, any Guarantor or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any
security for
such Guaranteed Obligations or any liability (including any of those under
this Guaranty) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to the
payment of any liability (whether due or not) of the Borrowers to creditors
of the Borrowers;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrowers to the Creditors regardless of
what liabilities of the Borrowers remain unpaid;
(f) consent to or waive any breach of, or any act, omission or default
under, any of the Credit Documents or any of the instruments or agreements
referred to in such Credit Documents, or otherwise amend, modify or
supplement any Credit Document or any of such other instruments or
agreements; and
(g) act or fail to act in any manner referred to in this Guaranty
which may deprive any Guarantor of its right to subrogation against the
Borrowers to recover full indemnity for any payments made pursuant to this
Guaranty.
7. No invalidity, irregularity or unenforceability of all or any part of
the Guaranteed Obligations or of any security for such Guaranteed Obligations
shall affect, impair or be a defense to this Guaranty, and this Guaranty shall
be primary, absolute and unconditional notwithstanding the occurrence of any
event or the existence of any other circumstances which might constitute a legal
or equitable discharge of a surety or guarantor except payment in full of the
Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms of this Guaranty shall be conclusively
presumed to have been created in reliance on this Guaranty. No failure or delay
on the part of any Creditor in exercising any right, power or privilege under
this Guaranty and no course of dealing between any Guarantor and any Creditor
shall operate as a waiver such right, power or privilege; nor shall any single
or partial exercise of any right, power or privilege under this Guaranty
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. The rights and remedies
expressly specified in this Guaranty are cumulative and not exclusive of any
rights or remedies which any Creditor would otherwise have. No notice to or
demand on any Guarantor in any case shall entitle such Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Creditor to any other or further action in any
circumstances without notice or demand.
9. Any indebtedness of the Borrowers now or hereafter held by any Guarantor
is hereby subordinated to the indebtedness of the Borrowers to the Creditors;
and such indebtedness of the Borrowers to any Guarantor, if the Administrative
and Collateral Agent, after an Event of Default has occurred, so requests, shall
be collected, enforced and received by such Guarantor as trustee for the
Creditors and be paid over to the Creditors on account of the indebtedness of
the Borrowers to the Creditors, but without affecting or impairing in any manner
the liability of such Guarantor under the other provisions of this Guaranty.
Prior to the transfer by such Guarantor of any note or negotiable instrument
evidencing any indebtedness of the Borrowers to such Guarantor, such Guarantor
shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination.
10.(a)Each Guarantor waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Creditors to (i) proceed
against the Borrowers, any other Guarantor, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrowers, any
other Guarantor, any other guarantor or any other party or (iii) pursue any
other remedy in the Creditors' power whatsoever. Each Guarantor waives any
defense based on or arising out of any defense of the Borrowers, any other
Guarantor, any other guarantor or any other party other than payment in full of
the Guaranteed Obligations, including without limitation any defense based on or
arising out of the disability of the Borrowers, any other Guarantor, any other
guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part of the Guaranteed Obligations from any cause, or the
cessation from any cause of the liability of the Borrowers other than payment in
full of the Guaranteed Obligations. The Creditors may, at their election,
foreclose on any security held by the Administrative and Collateral Agent or the
other Creditors by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Creditors may have against the Borrowers or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor under
this Guaranty except to the extent the Guaranteed Obligations have been paid in
full. Each Guarantor waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrowers or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrowers' financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs under this Guaranty, and agrees that the Creditors shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
(c) Until the Guaranteed Obligations have been indefeasibly paid and
performed in full, (i) each Guarantor hereby waives all rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Creditors against the Borrowers or any other guarantor of the
Guaranteed Obligations (collectively, the "Other Parties") and all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from
any Other Party which it may at any time otherwise have as a result of this
Guaranty; (ii) each Guarantor hereby further waives any right to enforce any
other remedy which the Creditors now have or may hereafter have against any
Other Party, any endorser or any other guarantor of all or any part of the
indebtedness of the Borrowers and any benefit of, and any right to participate
in, any security or collateral given to or for the benefit of the Creditors to
secure payment of the indebtedness of the Borrowers; and (iii) each Guarantor
also waives all claims (as such term is defined in the Bankruptcy Code) it may
at any time otherwise have against any Other Party arising from any transaction
whatsoever, including without limitation its right to assert or enforce any such
claims.
11. The Creditors agree that this Guaranty may be enforced only by the
action of the Administrative and Collateral Agent in each case acting upon the
instructions of the Required Banks, and that no Creditor shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
and Collateral Agent for the benefit of the Creditors upon the terms of this
Guaranty.
12. In order to induce the Banks to make Loans to the Borrowers, and to
issue, and participate in, Letters of Credit for the account of the Borrowers
pursuant to the Credit Agreement, each Guarantor hereby represents, warrants and
covenants that:
(a) Such Guarantor and each of its Subsidiaries (other than Immaterial
Subsidiaries) (i) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorporation, (ii)
has the corporate power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and is
in good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification except for failures to be so qualified which, in the
aggregate, would not have a Material Adverse Effect.
(b) Such Guarantor has the corporate power to execute, deliver and
perform the terms and provisions of this Guaranty and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of this Guaranty. Such Guarantor has duly executed and
delivered this Guaranty, and this Guaranty constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except as the
enforceability of this Guaranty may be limited by bankruptcy,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty, nor compliance by it with the terms and provisions of
this Guaranty, (i) will contravene any provision of any material applicable
Governmental Rule or any order, writ, injunction or decree of any court or
Governmental Authority (ii) will conflict with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets
of such Guarantor pursuant to the terms of any indenture, instrument,
mortgage, deed of trust, credit agreement or loan agreement, or any other
Material Contract, to which such Guarantor is a party or by which it or any
of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the Certificate of Incorporation or By-Laws
of such Guarantor or any of its Subsidiaries (other than Immaterial
Subsidiaries).
(d) No material order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have
been obtained or made prior to the Initial Borrowing Date), or exemption
by, any Governmental Authority is required (i) to authorize the execution,
delivery and performance of this Guaranty or (ii) to establish the
legality, validity, binding effect or enforceability of this Guaranty.
(e) There are no actions, suits or proceedings pending or, to the best
knowledge of the Guarantor, threatened (i) with respect to this Guaranty,
(ii) with respect to any Indebtedness of the Guarantor or any of its
Subsidiaries (other than Immaterial Subsidiaries) or (iii) that are
reasonably likely to have a Material Adverse Effect.
(f) On the date of this Guaranty and after giving effect to the
incurrence by such Guarantor of the Contingent Obligations evidenced by
this Guaranty (as limited by Section 2 of this Guaranty), (i) the assets of
such Guarantor, at a fair valuation, will exceed its debts, (ii) the
Guarantor will have sufficient capital to conduct its business and (iii)
such Guarantor will not have incurred debts, and does not intend to incur
debts, beyond its ability to pay such debts as they mature. For purposes of
this clause (f), "debt" means any liability on a claim, and "claim" means
(i) right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured.
13. Each Guarantor covenants and agrees that on and after the date of this
Guaranty and until the Total Commitments and all Letters of Credit have
terminated and all Guaranteed Obligations have been paid in full, such Guarantor
shall take, or will refrain from taking, as the case may be, all actions that
are necessary to be taken or not taken so that no violation of any provision,
covenant or agreement contained in Section 9 or 10 of the Credit Agreement, and
so that no Default or Event of Default, is caused by the actions of such
Guarantor or any of its Subsidiaries.
14. Each Guarantor hereby jointly and severally agrees to pay all
reasonable out-of-pocket costs and expenses of (x) each Creditor in connection
with the enforcement of this Guaranty and, after an Event of Default shall have
occurred and be continuing, the protection of such Creditor's rights under this
Guaranty, and (y) of the Administrative and Collateral Agent in connection with
any amendment, waiver or consent relating to this Guaranty (including, without
limitation, the reasonable fees and disbursements of counsel (including in-house
counsel) employed by the Administrative and Collateral Agent).
15. This Guaranty shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of the Creditors and their successors
and assigns.
16. Neither this Guaranty nor any provision of this Guaranty may be
changed, waived, discharged or terminated in any manner whatsoever unless in
writing duly signed by the Administrative and Collateral Agent (with the consent
of the Required Banks) and each Guarantor directly affected by such change,
waiver, discharge or termination (it being understood that the release or
addition of any Guarantor under this Guaranty shall not constitute a change or
waiver affecting any Guarantor other than the Guarantor so released or added).
17. Each Guarantor acknowledges that an executed (or conformed) copy of the
Credit Agreement has been made available to its principal executive officers and
such officers are familiar with its contents.
18.(a) In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence and
during the continuance of an Event of Default, each Creditor is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Guarantor or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by such Creditor (including, without limitation, by
branches and agencies of such Creditor wherever located) to or for the credit or
the account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Creditor under this Guaranty, irrespective
of whether or not such Creditor shall have made any demand under this Guaranty
and although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured.
(b) Each Guarantor understands that if all or any part of the Obligations
is secured by real property, such Guarantor shall be liable for the full amount
of its liability under this Guaranty notwithstanding foreclosure on such real
property by trustee sale or any other reason impairing such Guarantor's or any
Creditor's right to proceed against any Guarantor or any Subsidiary of such
Guarantor. Each Guarantor hereby waives, to the fullest extent permitted by law,
all rights and benefits under Section 2809 of the California Civil Code (or any
similar law in any other jurisdiction) purporting to reduce a guarantor's
obligation in proportion to the principal obligation. Each Guarantor hereby
waives all rights and benefits under Section 580a of the California Code of
Civil Procedure (or any similar law in any other jurisdiction) purporting to
limit the amount of any deficiency judgment which might be recoverable following
the occurrence of a trustee's sale under a deed of trust, all rights and
benefits under Section 580b of the California Code of Civil Procedure (or any
similar law in any other jurisdiction) stating that no deficiency may be
recovered on a real property purchase money obligation and all rights and
benefits under Section 580d of the California Code of Civil Procedure (or any
similar law in any other jurisdiction) stating that no deficiency may be
recovered on a note secured by a deed of trust on real property in case such
real property is sold under the power of sale contained in such deed of trust,
if such sections, or any of them, have any application to this Guaranty or any
application to such Guarantor. In addition, each Guarantor hereby waives, to the
fullest extent permitted by law, without limiting the generality of the
foregoing or any other provision of this Guaranty, all rights, defenses and
benefits which might otherwise be available to such Guarantor under California
Civil Code Sections 2809, 2810, 2819, 2821, 2839, 2845, 2846, 2847, 2848, 2849,
2850, 2855, 2899, 3275 and 3433 (or any similar law in any other jurisdiction).
19. All notices, requests, demands or other communications pursuant to this
Guaranty shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Creditor, as provided in the Credit Agreement and (ii) in
the case of any Guarantor, at its address set forth opposite its signature
below; or in any case at such other address as any of the Persons listed above
may hereafter notify the others in writing.
20. If claim is ever made upon any Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (b) any settlement
or compromise of any such claim effected by such payee with any such claimant
(including the Borrowers), then and in such event each Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon it,
notwithstanding any revocation of this Guaranty or the cancellation of any Note
or other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees under this Guaranty for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
21. Any acknowledgment or new promise, whether by payment of principal or
interest or otherwise and whether by the Borrower or other Persons liable in
respect of the Guaranteed Obligations (including any Guarantor), with respect to
any of the Guaranteed Obligations shall, if the statute of limitations in favor
of any Guarantor against any Creditor shall have commenced to run, toll the
running of such statute of limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
22. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF CALIFORNIA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE
UNITED STATES FOR THE CENTRAL DISTRICT OF CALIFORNIA AND, BY EXECUTION AND
DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS
AND EMPOWERS APRIA AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH GUARANTOR AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT FOR THE PURPOSES OF THIS PROVISION
ON TERMS SATISFACTORY TO THE ADMINISTRATIVE AND COLLATERAL AGENT. EACH GUARANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH GUARANTOR AT
ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING IN THIS GUARANTY SHALL AFFECT THE
RIGHT OF ANY OF THE CREDITORS TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR
IN ANY OTHER JURISDICTION.
(b) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
GUARANTY OR THE SUBJECT MATTER OF THIS GUARANTY, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT, IN TORT OR OTHERWISE. THE
GUARANTORS ACKNOWLEDGE THAT THEY HAVE BEEN INFORMED BY THE AGENTS AND THE BANKS
THAT THE PROVISIONS OF THIS SECTION 23(c) CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH THE AGENTS AND THE BANKS ARE RELYING IN ENTERING INTO THE CREDIT AGREEMENT
AND EACH OTHER CREDIT DOCUMENT. ANY GUARANTOR, THE ADMINISTRATIVE AND COLLATERAL
AGENT OR ANY BANK MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
23(c) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH GUARANTOR, EACH
AGENT AND EACH BANK TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
23. (a) It is the desire and intent of each Guarantor and the Creditors
that this Guaranty shall be enforced against each Guarantor to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. In furtherance of the foregoing, it
is noted that the obligations of each Guarantor has been limited as provided in
Section 2 of this Guaranty.
(b) If, however, and to the extent, that the obligations of any Guarantor
under this Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount of
the Guaranteed Obligations of such Guarantor (but not the Guaranteed Obligations
of any other Guarantor unless such other Guarantor or Guarantors are
individually subject to the circumstances covered by this Section 24) shall be
deemed to be reduced and the affected Guarantor shall pay the maximum amount of
the Guaranteed Obligations which would be permissible under applicable law.
24. This Guaranty may be executed in any number of counterparts and by the
different parties to this Guaranty 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. A set of counterparts executed by all
the parties to this Guaranty shall be lodged with Apria and the Administrative
and Collateral Agent.
25. In the event that all of the capital stock of one or more Guarantors is
sold in connection with a sale permitted by Section 10.2 of the Credit Agreement
and the proceeds of such sale or sales are applied in accordance with the
provisions of Section 5.2 of the Credit Agreement, to the extent applicable,
each Guarantor (x) all of the capital stock of which is so sold or (y) which is
a Subsidiary of a Guarantor all of the capital stock of which is so sold, shall
be released from this Guaranty and this Guaranty shall, as to each Guarantor or
Guarantors, terminate, and have no further force or effect.
26. All payments made by any Guarantor under this Guaranty will be made
without set-off, counterclaim or other defense.
27. Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Guaranty, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
Address for all Guarantors: APRIA HEALTHCARE GROUP INC.
APRIA HEALTHCARE, INC.
0000 Xxxxxx Xxxxxx APRIA NUMBER TWO, INC.
Xxxxx Xxxx, Xxxxxxxxxx 00000 APRIACARE MANAGEMENT SYSTEMS, INC.
Attn: Xxxxxx Xxxxxx APRIA HEALTHCARE OF NEW YORK
Telephone: (000) 000-0000 STATE, INC.
Facsimile: (000) 000-0000
By:
------------------------------
Name:
Title:
Accepted and Agreed to:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Administrative and Collateral Agent for the Banks
By:----------------------------------
Name:
Title:
