Exhibit 10.2


 


AMENDED AND RESTATED GUARANTY


 


Dated as of May 6, 2010


 


From


 


THE GUARANTORS NAMED HEREIN


 


And


 


THE ADDITIONAL GUARANTORS
REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE SECURED PARTIES REFERRED
TO IN

THE CREDIT AGREEMENT REFERRED TO HEREIN


 

















 


T  A  B  L  E  O  F  C  O  N  T  E  N
T  S


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.  
  Guaranty; Limitation of Liability

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.  
  Guaranty Absolute

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 3.  
  Waivers and Acknowledgments

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 4.  
  Subrogation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 5.  
  Payments Free and Clear of Taxes, Etc.

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 6.  
  Representations and Warranties

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 7.  
  Covenants

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 8.  
  Amendments, Guaranty Supplements, Etc.

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 9.  
  Notices, Etc.

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 10.  
  No Waiver; Remedies

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 11.  
  Right of Set-off

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 12.  
  Indemnification

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 13.  
  Continuing Guaranty; Assignments under the Credit Agreement

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 14.  
  Execution in Counterparts

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 15.  
  Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Exhibit A - Guaranty
  Supplement

  	
   

  	
   

  



 

















 


GUARANTY


 


AMENDED AND RESTATED GUARANTY dated as of May 6,
2010 (the “Guaranty”) made by the Persons
listed on the signature pages hereof under the caption “Guarantors” and
the Additional Guarantors (as defined in Section 8(b)) (such
Persons so listed and the Additional Guarantors being, collectively, the “Guarantors” and,
individually, each a “Guarantor”) in favor of the Secured Parties (as defined in
the Credit Agreement referred to below).


 


PRELIMINARY STATEMENTS


 


WHEREAS, UHS Holdco, Inc., a Delaware corporation (the “Parent”) entered into that certain Guaranty dated as of May 31,
2007 (the “Existing Guaranty”) guaranteeing
the obligations of Universal Hospital Services, Inc., a Delaware
corporation (the “Borrower”)
under that certain Credit Agreement dated as of May 31, 2007 (the “Existing Credit Agreement”) among the Borrower, the Parent,
the lenders and financial institutions from time to time party thereto, and GE
Business Financial Services, Inc. (formerly known as Merrill Lynch
Business Financial Services Inc.), as administrative agent.


 


WHEREAS, the parties thereto have amended and restated the Existing
Credit Agreement pursuant to the Amended and Restated Credit Agreement dated as
of May 6, 2010 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; the capitalized terms
defined therein and not otherwise defined herein being used herein as therein
defined) among the Borrower, the Parent, the Lenders party thereto, the Initial
L/C Issuer, the Initial Swing Line Lender, GE Business Financial Services Inc.,
as Administrative Agent, and GE Capital Markets, Inc. and Banc of America
Securities, LLC, as Co-Lead Arrangers and as Co-Book Runners.


 


NOW, THEREFORE, in consideration of the premises and
in order to induce the Lenders to make Loans and to issue Letters of Credit
under the Credit Agreement, and the Hedge Banks to enter into Secured Hedge
Agreements from time to time, each Guarantor, jointly and severally with each
other Guarantor, hereby agrees to amend and restate the Existing Guaranty as
follows:


 


Section 1.  Guaranty;
Limitation of Liability.  (a)  Each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of the Borrower, in its capacity as a Borrower and not as a Guarantor, each
Loan Party guaranteeing the Obligations of the Borrower and each other
Restricted Subsidiary that is an obligor with respect to the Cash Management
Obligations now or hereafter existing (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such Obligations being
the “Guaranteed Obligations”),
and agrees to pay any and all reasonable expenses (including, without
limitation, reasonable fees and reasonable out-of-pocket expenses of counsel)
incurred by the Administrative Agent or any other Secured Party in enforcing
any rights under this Guaranty or any other Loan Document in accordance with Section 10.04
of the Credit Agreement (including reasonable fees, expenses and disbursements
of any law firm or other external counsel to the Administrative Agent);  provided, however, that in no event shall the Guaranteed Obligations
of any Guarantor include any of its obligations as a Borrower under the Credit
Agreement.  Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Guarantor to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not  allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving such
other Guarantor.


 

















 


(b)                                 Each Guarantor (other than the Borrower), and by its
acceptance of this Guaranty, the Administrative Agent and each other Secured
Party, hereby confirms that it is the intention of all such Persons that this
Guaranty and the Obligations of each Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law (as
hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state Law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder.  To effectuate the foregoing
intention, the Administrative Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that the Obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance.  For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in Section 8.01(f) of
the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or
state Law for the relief of debtors.


 


(c)                                  Each Guarantor hereby unconditionally and irrevocably agrees
that in the event any payment shall be required to be made to any Secured Party
under this Guaranty or any other guaranty, such Guarantor will contribute, to
the maximum extent permitted by Law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.


 


(d)                                 To the extent that any Guarantor (other than the Parent)
shall be required hereunder to pay a portion of the Guaranteed Obligations
exceeding the greater of (a) the amount of the economic benefit actually
received by such Guarantor from the Loans and (b) the amount such
Guarantor would otherwise have paid if such Guarantor had paid the aggregate
amount of the Guaranteed Obligations (excluding the amount thereof repaid by
the Borrower) in the same proportion as such Guarantor’s net worth at the date
enforcement is sought hereunder bears to the aggregate net worth of all the
Guarantors (taken together with the aggregate net worth of all other “Guarantors” (as such term is defined in the
Credit Agreement) obligated with respect to the Guaranteed Obligations (the “Other Guarantors”)) at the date of
enforcement is sought hereunder, then each Other Guarantor shall reimburse such
other Guarantors for the amount of such excess, pro rata, based on the
respective net worths of such Other Guarantors at the date enforcement
hereunder is sought.


 


Section 2.  Guaranty
Absolute.  Each Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any Law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Secured Party with respect thereto.  The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions.  The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:


 


(a)                                  any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed


 


2

















 


Obligations
resulting from the extension of additional credit to any Loan Party or any of
its Subsidiaries or otherwise;


 


(c)                                  any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or any of
the Guaranteed Obligations;


 


(d)                                 any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed Obligations,
or any manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents or any other assets of
any Loan Party or any of its Subsidiaries;


 


(e)                                  any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;


 


(f)                                    any failure of any Secured Party to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party now or hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);


 


(g)                                 the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement (as hereinafter defined) or any other
guaranty or agreement or the release or reduction of liability of any Guarantor
or other guarantor or surety with respect to the Guaranteed Obligations; or


 


(h)                                 any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation
by any Secured Party that might otherwise constitute a defense available to, or
a discharge of, any Loan Party or any other guarantor or surety (other than
payment of the Guaranteed Obligations in full).


 


This Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is rescinded or must otherwise be
returned by any Secured Party or any other Person upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Loan Party or
otherwise, all as though such payment had not been made.


 


Section 3.  Waivers
and Acknowledgments.  (a)  Each
Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien
or any property subject thereto or exhaust any right or take any action against
any Loan Party or any other Person or any Collateral.


 


(b)                                 Each Guarantor hereby unconditionally and irrevocably waives
any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.


 


(c)                                  Each Guarantor hereby unconditionally and irrevocably waives
(i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to


 


3

















 


proceed against any of the other
Loan Parties, any other guarantor or any other Person or any Collateral and (ii) any
defense based on any right of set-off or counterclaim against or in respect of
the Obligations of such Guarantor hereunder.


 


(d)                                 Each Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage
by nonjudicial sale, and each Guarantor hereby waives any defense to the
recovery by the Collateral Agent and the other Secured Parties against such
Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable Law.


 


(e)                                  Each Guarantor hereby unconditionally and irrevocably waives
any duty on the part of any Secured Party to disclose to such Guarantor any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such Secured Party.


 


(f)                                    Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
the Loan Documents and that the waivers set forth in Section 2 and
this Section 3 are knowingly made in contemplation of such
benefits.


 


Section 4.  Subrogation.  Each Guarantor hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Borrower, any other Loan Party or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of such Guarantor’s Obligations under or in respect of this
Guaranty or any other Loan Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of any Secured Party against
the Borrower, any other Loan Party or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common Law, including, without limitation, the right
to take or receive from the Borrower, any other Loan Party or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations (other than (x) obligations
with respect to Secured Hedge Agreements, (y) Cash Management Obligations
not yet due and payable and (z) contingent indemnification obligations not
yet accrued and payable under the Loan Documents) and all other amounts payable
under this Guaranty shall have been paid in full in cash, all Letters of Credit
shall have been cash collateralized or otherwise back-stopped, in each case, on
terms required by the Credit Agreement or shall have expired or been terminated
and the Commitments shall have expired or been terminated.  If any amount shall be paid to any Guarantor
in violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Guaranty, (b) the Maturity Date
of the Revolving Credit Facility and (c) the latest date of cash
collateralization or other back-stop, in each case, on the terms required by
the Credit Agreement or the expiration or termination of all Letters of Credit,
such amounts shall be received and held in trust for the benefit of the Secured
Parties, shall be segregated from other property and funds of such Guarantor
and shall forthwith be paid or delivered to the Administrative Agent in the
same form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations (other than (x) obligations with respect to Secured Hedge
Agreements, (y) Cash Management Obligations not yet due and payable and (z) contingent
indemnification obligations not yet accrued and payable under the Loan
Documents) or other amounts payable under this Guaranty thereafter
arising.  If (i) any Guarantor shall
make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts,
if any, payable under this Guaranty shall have been paid in full in cash, (iii) the
Maturity Date of


 


4

















 


the Revolving Credit
Facility shall have occurred and (iv) all Letters of Credit shall have
been cash collateralized or otherwise back-stopped, in each case, on the terms
required under the Credit Agreement, or shall have expired or been terminated,
the Secured Parties will, at such Guarantor’s request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to such Guarantor of an interest in the Guaranteed Obligations resulting from
such payment made by such Guarantor pursuant to this Guaranty.


 


Section 5.  Payments
Free and Clear of Taxes, Etc.  Any payment made by a Guarantor
pursuant to this Guaranty which results in the imposition of Taxes which would
not have been imposed had the payment been made by the Borrower shall be made
free and clear of and without deduction for any such Taxes; provided that if a Guarantor shall be required to deduct any
such Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums paid under this section) the Administrative
Agent, Lender or L/C Issuer (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Guarantor shall make such deductions and (iii) such Guarantor shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Law. For the avoidance of doubt, this
Section 5 shall be read as an obligation of the Guarantors that is in
addition to their Guarantee of the Borrower’s obligations to indemnify for
Taxes and Other Taxes pursuant to Section 3.01 of the Credit
Agreement and shall not relieve a Guarantor of its obligations to make payments
pursuant to Section 3.01 of the Credit Agreement on the relevant
Borrower’s behalf.


 


Section 6.  Representations
and Warranties.  Each Guarantor
hereby makes each representation and warranty made in the Loan Documents by the
Borrower with respect to such Guarantor and each Guarantor hereby further
represents and warrants as follows:


 


(a)                                  There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.


 


(b)                                 Such Guarantor has, independently and without reliance upon
any Secured Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party, and
such Guarantor has established adequate means of obtaining from each other Loan
Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other
Loan Party.


 


Section 7.  Covenants.  Each Guarantor (other than
the Borrower) covenants and agrees that, so long as any part of the Guaranteed
Obligations shall remain unpaid, any Letter of Credit shall be outstanding and
not cash collateralized or otherwise back-stopped in accordance with the Cash Collateralization
or back-to-back letter of credit provisions set forth in Section 2.03(g) of
the Credit Agreement or any Lender shall have any Commitment, such Guarantor
will perform and observe, and cause each of its Subsidiaries to perform and
observe, all of the terms, covenants and agreements set forth in the Loan
Documents on its or their part to be performed or observed or that the Borrower
has agreed to cause such Guarantor or such Subsidiaries to perform or observe.


 


Section 8.  Amendments,
Guaranty Supplements, Etc.  (a)  No amendment or waiver of
any provision of this Guaranty and no consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for


 


5

















 


the specific purpose for
which given.  Upon the sale of a
Guarantor to the extent permitted in accordance with the terms of the Loan
Documents, such Guarantor (other than the Borrower) shall be automatically
released from this Guaranty.  The
Administrative Agent will, at such Guarantor’s expense, execute and deliver to
such Guarantor such documents as such Guarantor shall reasonably request to
evidence the release of such Guarantor from its Guarantee hereunder pursuant to
this Section 8; provided that
such Guarantor shall have delivered to the Administrative Agent a written
request therefor and a certificate of such Guarantor to the effect that the
transaction is in compliance with the Loan Documents.  The Administrative Agent shall be authorized
to rely on any such certificate without independent investigation.


 


(b)                                 Upon the execution and delivery by any Person of a guaranty
supplement in substantially the form of Exhibit A hereto (each, a “Guaranty
Supplement”), (i) such
Person shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each
reference in this Guaranty to a “Guarantor”
shall also mean and be a reference to such Additional Guarantor, and each
reference in any other Loan Document to a “Guarantor
“shall also mean and be a reference to such Additional Guarantor, and (ii) each
reference herein to “this Guaranty”, “hereunder”, “hereof” or words of
like import referring to this Guaranty, and each reference in any other Loan
Document to the “Guaranty”, “thereunder”, “thereof” or words of
like import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.


 


Section 9.  Notices,
Etc.  All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy, pdf or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to any Guarantor, addressed to it in care of the Borrower at the Borrower’s
address specified in Schedule 10.02 of the Credit Agreement, if to
any Agent, at its address specified in Schedule 10.02 of the Credit Agreement,
if to or any Lender, at its address specified in its Administrative
Questionnaire, if to any Hedge Bank, at its address specified in the Secured
Hedge Agreement to which it is a party, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other
party.  All such notices and other
communications shall be deemed to be given or made at such time as shall be set
forth in Section 10.02 of the Credit Agreement.  Delivery by telecopier or pdf of an executed
counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty or of any Guaranty Supplement to be executed and
delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.


 


Section 10.  No
Waiver; Remedies.  No failure on
the part of any Secured Party 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 11.  Right
of Set-off.  Upon the
occurrence and during the continuance of any Event of Default, the
Administrative Agent and, after obtaining the prior written consent of the
Administrative Agent, each other Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but
excluding payroll, tax and trust accounts) at any time held and other
indebtedness at any time owing by such Agent, such Lender or 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 the Loan
Documents, irrespective of whether such Agent or such Lender shall have made
any demand under this Guaranty or any other Loan Document provided such
Obligations shall be due and payable. 
Each Agent and each Lender agrees promptly to notify such Guarantor
after any such set-off and application; provided,
however, that the failure to give
such notice shall not affect the validity of such set-off and application.  The rights of each Agent and each


 


6

















 


Lender and their respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such
Lender and their respective Affiliates may have.


 


Section 12.  Indemnification.  (a)  Without limitation
on any other Obligations of any Guarantor or remedies of the Secured Parties
under this Guaranty, each Guarantor shall, to the fullest extent permitted by
law, indemnify, defend and save and hold harmless each Secured Party and each
of their Affiliates and their respective officers, directors, employees, agents
and advisors (each, an “Indemnified
Party”) from and against, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, Attorney Costs) (which shall be
limited to one (1) counsel to the Administrative Agent and the Secured
Parties (exclusive of one local counsel to the Administrative Agent and the
Secured Parties in each appropriate jurisdiction), unless (x) the
interests of the Administrative Agent and the Secured Parties are sufficiently
divergent, in which case one (1) additional counsel may be appointed and
(y) if the interests of any Secured Party or group of Secured Parties
(other than all of the Secured Parties) are distinctly or disproportionately
affected, one (1) additional counsel for such Secured Party or group of Secured
Parties in connection with the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby) that may be
actually incurred by or awarded against any Indemnified Party in connection
with or as a result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Loan Party enforceable against such
Loan Party in accordance with their terms.


 


(b)                                 Each Guarantor hereby also agrees that none of the
Indemnified Parties shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any of the Guarantors or any of their
respective Affiliates or any of their respective officers, directors,
employees, agents and advisors, and each Guarantor hereby agrees not to assert
any claim against any Indemnified Party on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Loans or the Letters of Credit, the Loan Documents or any of
the transactions contemplated by the Loan Documents.


 


(c)                                  Each of the Indemnified Parties hereby also agrees that none
of the Guarantors shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any of the Indemnified Parties or any of their
respective Affiliates or any of their respective officers, directors,
employees, agents and advisors, and each of the Indemnified Parties hereby
agrees not to assert any claim against any Guarantor on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Loans or the Letters of Credit, the Loan Documents or any of
the transactions contemplated by the Loan Documents.


 


(d)                                 Without prejudice to the survival of any of the other
agreements of any Guarantor under this Guaranty or any of the other Loan
Documents, the agreements and obligations of each Guarantor contained in Section 1(a) (with
respect to enforcement expenses), the last sentence of Section 2, Section 5
and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this
Guaranty.


 


Section 13.  Continuing
Guaranty; Assignments under the Credit Agreement.  This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until
the latest of (i) the payment in full in cash of the Guaranteed
Obligations (other than with respect to the Secured Hedge Agreement and the
Cash Management Obligations that are not yet due and payable and contingent indemnification
obligations for which no claim has been asserted) and all other amounts payable
under this Guaranty, (ii) the Maturity Date of the Revolving Credit
Facility and (iii) the latest date of cash collateralization or other
back-stop, in each case, on the terms required by the Credit Agreement, or


 


7

















 


expiration or termination of
all Letters of Credit, (b) be binding upon each Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the
Secured Parties and their successors, transferees and assigns.  Without limiting the generality of
clause (c) of the immediately preceding sentence, any Secured Party
may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Loans owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section 10.07
of the Credit Agreement.  Except as
expressly provided in the Credit Agreement, no Guarantor shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Secured Parties.


 


Section 14.  Execution
in Counterparts.  This Guaranty
and each amendment, waiver and consent with respect hereto may be executed in
any number of counterparts and by different parties thereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier or pdf
shall be effective as delivery of an original executed counterpart of this
Guaranty.


 


Section 15.  Governing
Law; Jurisdiction; Waiver of Jury Trial, Etc.  (a)  This
Guaranty shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


(b)                                 Each Guarantor and each of the Secured Parties hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Guaranty or any of the other Loan Documents to which it is or is to be
a party, or for recognition or enforcement of any judgment, and each Guarantor
and each of the Secured Parties hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court.  Each Guarantor
and each of the Secured Parties and each of the Secured Parties 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 any other Loan Document shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty or
any other Loan Document in the courts of any jurisdiction.


 


(c)                                  Each Guarantor and each of the Secured Parties irrevocably
and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty or any of the other Loan Documents to which it is or is to be a
party in any New York State or federal court.  Each Guarantor and each of the Secured
Parties hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.


 


(d)                                 EACH GUARANTOR AND EACH OF THE SECURED PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY SECURED
PARTY OR GUARANTOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.


 


[Remainder of Page Left Intentionally Blank]


 


8
















 


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.


 


 


	
   

  	
  UHS
  HOLDCO, INC., as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rex T. Clevenger

  
	
   

  	
   

  	
  Name: Rex T. Clevenger

  
	
   

  	
   

  	
  Title: CFO & Executive Vice President

  



 

















 


	
   

  	
  [OTHER
  GUARANTORS]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit A

To The

Amended and Restated Guaranty


 


FORM OF GUARANTY SUPPLEMENT


 


, 201  


 


GE Business Financial Services Inc., as
Administrative Agent


500 West Monroe Street


Chicago, IL 60661


Phone: (312) 441-6908


Fax: (866) 388-3572


 


Amended and Restated Credit
Agreement dated as of May 6, 2010 among UNIVERSAL HOSPITAL SERVICES, INC.,
a Delaware corporation (the “Borrower”), UHS
HOLDCO, INC., a Delaware corporation (the “Parent”) the
Lenders, the Initial L/C Issuer, the Initial Swing Line Lender, GE BUSINESS
FINANCIAL SERVICES INC., as Administrative Agent, and GE CAPITAL MARKETS, INC.
and BANC OF AMERICA SECURITIES, LLC, as Co-Lead Arrangers and Co-Book Runners.


 


Ladies and Gentlemen:


 


Reference is made to the above-captioned Amended and
Restated Credit Agreement and to the Guaranty referred to therein (such
Guaranty, as in effect on the date hereof and as it may hereafter be amended,
amended and restated, supplemented or otherwise modified from time to time,
together with this Guaranty Supplement, being the “Amended and
Restated Guaranty”).  The
capitalized terms defined in the Amended and Restated Guaranty or in the
Amended and Restated Credit Agreement and not otherwise defined herein are used
herein as therein defined.


 


Section 1. 
Guaranty; Limitation of Liability.  (a)  The
undersigned hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of the Borrower, each Loan Party guaranteeing the Obligations of the Borrower
and each other Restricted Subsidiary which is an obligor with respect to the
Cash Management Obligations now or hereafter existing under or in respect of
the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes
of action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and
agrees to pay any and all expenses (including, without limitation, reasonable
fees and reasonable out-of-pocket expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Guaranty Supplement, the Amended and Restated Guaranty or any other Loan
Document in accordance with Section 10.04 of the Amended and
Restated Credit Agreement (including reasonable fees, expenses and
disbursements of any law firm or other external counsel to the Administrative
Agent); provided, however, that in no event
shall the Guaranteed Obligations of any Guarantor include any of its
obligations as a Borrower under the Amended and Restated Credit Agreement.  Without limiting the generality of the
foregoing, the


 

















 


undersigned’s liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Loan Party to any Secured Party under or in
respect of the Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.


 


(b)                                 The
undersigned, and by its acceptance of this Guaranty Supplement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty Supplement, the Amended
and Restated Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty Supplement, the Amended and Restated Guaranty and
the Obligations of the undersigned hereunder and thereunder.  To effectuate the foregoing intention, the
Administrative Agent, the other Secured Parties and the undersigned hereby
irrevocably agree that the Obligations of the undersigned under this Guaranty
Supplement and the Amended and Restated Guaranty at any time shall be limited
to the maximum amount as will result in the Obligations of the undersigned
under this Guaranty Supplement and the Amended and Restated Guaranty not
constituting a fraudulent transfer or conveyance.


 


(c)                                  The undersigned
hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Guaranty
Supplement, the Amended and Restated Guaranty; or any other guaranty, the
undersigned will contribute, to the maximum extent permitted by applicable law,
such amounts to each other Guarantor and each other guarantor so as to maximize
the aggregate amount paid to the Secured Parties under or in respect of the
Loan Documents.


 


(d)                                 To the extent
that any Guarantor (other than the Parent) shall be required hereunder to pay a
portion of the Guaranteed Obligations exceeding the greater of (a) the
amount of the economic benefit actually received by such Guarantor from the
Loans and (b) the amount such Guarantor would otherwise have paid if such
Guarantor had paid the aggregate amount of the Guaranteed Obligations
(excluding the amount thereof repaid by the Borrower) in the same proportion as
such Guarantor’s net worth at the date enforcement is sought hereunder bears to
the aggregate net worth of all the Guarantors (taken together with the
aggregate net worth of all other “Guarantors” (as
such term is defined in the Amended and Restated Credit Agreement) obligated
with respect to the Guaranteed Obligations (the “Other
Guarantors”)) at the date of enforcement is sought hereunder, then
each Other Guarantor shall reimburse such other Guarantors for the amount of
such excess, pro rata, based on the respective net worths of such Other
Guarantors at the date enforcement hereunder is sought.


 


Section 2. 
Obligations Under the Guaranty.  The undersigned
hereby agrees, as of the date first above written, to be bound as a Guarantor
by all of the terms and conditions of the Amended and Restated Guaranty to the
same extent as each of the other Guarantors thereunder.  The undersigned further agrees, as of the
date first above written, that each reference in the Amended and Restated
Guaranty to an “Additional
Guarantor” or a “Guarantor”
shall also mean and be a reference to the undersigned, and each reference in
any other Loan Document to a “Domestic Guarantor” or a “Loan Party” shall also mean and
be a reference to the undersigned.


 


Section 3. 
Representations and Warranties.  The undersigned
hereby makes each representation and warranty set forth in Section 6
of the Amended and Restated Guaranty to the same extent as each other
Guarantor.


 


Section 4. 
Delivery by Telecopier.  Delivery of an
executed counterpart of a signature page to this Guaranty Supplement by
telecopier shall be effective as delivery of an original executed counterpart
of this Guaranty Supplement.


 


2

















 


Section 5. 
Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.  (a)  This
Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


(b)                                 The undersigned
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or any federal
court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Guaranty Supplement, the Amended and Restated Guaranty or any
of the other Loan Documents to which it is or is to be a party, or for
recognition or enforcement of any judgment, and the undersigned hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court.  The undersigned 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 Supplement
or the Amended and Restated Guaranty or any other Loan Document shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty Supplement, the Amended and Restated Guaranty or any
of the other Loan Documents to which it is or is to be a party in the courts of
any other jurisdiction.


 


(c)                                  The undersigned
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty Supplement, the Amended and Restated Guaranty or any of the other
Loan Documents to which it is or is to be a party in any New York State or
federal court.  The undersigned hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any
such court.


 


(d)                                 THE UNDERSIGNED
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF
OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY
SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ADDITIONAL GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  



 


3