Exhibit 10.5
AMENDED AND RESTATED SUBSIDIARY GUARANTY
This AMENDED AND RESTATED SUBSIDIARY GUARANTY is entered into as of
July 14, 2000 by THE UNDERSIGNED (together with any future Domestic Subsidiaries
executing this Guaranty, being collectively referred to herein as the
"Guarantors") in favor of and for the benefit of THE BANK OF NEW YORK, as agent
for and representative of (in such capacity herein called "Collateral Agent")
the REVOLVING LENDERS (as hereinafter defined), the TERM LENDERS (as hereinafter
defined), the REVOLVING AGENT (as hereinafter defined), the TERM AGENT (as
hereinafter defined), and the ACKNOWLEDGING INTEREST RATE EXCHANGERS (as
hereinafter defined) (as hereinafter defined).
RECITALS
A. Total Renal Care Holdings, Inc., a Delaware corporation ("Borrower"), has
entered into that certain Revolving Credit Agreement dated as of October 24,
1997, with the financial institutions parties thereto, DLJ Capital Funding Inc.,
as Syndication Agent, First Union National Bank, as Documentation Agent, and The
Bank of New York, as administrative agent (said Revolving Credit Agreement, as
amended, being the "First Revolving Credit Agreement").
B. The Borrower has entered into that certain Term Loan Agreement dated as
of October 24, 1997, with the financial institutions parties thereto, DLJ
Capital Funding Inc., as Syndication Agent, and The Bank of New York, as
administrative agent (said Term Loan Agreement, as amended, being the "First
Term Loan Agreement").
C. Pursuant to the First Revolving Credit Agreement and the First Term Loan
Agreement, Borrower caused its First-Tier wholly owned Domestic Subsidiaries and
certain other Subsidiaries to execute and deliver to the Collateral Agent that
certain Subsidiary Guaranty dated as of October 24, 1997 (said Subsidiary
Guaranty, as amended to the date hereof, being the "Existing Subsidiary
Guaranty") pursuant to which the Subsidiary Guarantors named therein guarantied
the obligations of the Borrower under the First Revolving Credit Agreement, the
First Term Loan Agreement, and certain other agreements executed by the
Borrower.
D. The First Revolving Credit Agreement was amended and restated by that
certain Amended and Restated Revolving Credit Agreement, dated as of April 30,
1998, by and among the Borrower, the lenders parties thereto, DLJ Capital
Funding Inc., as Syndication Agent, First Union National Bank, as Documentation
Agent, and The Bank of New York, as administrative agent, which agreement was
amended by that certain Amendment No. 1 and Consent No. 1, dated as of August 5,
1998, that certain Amendment No. 2, dated as of November 12, 1998, that certain
Amendment No. 3 and Waiver, dated as of August 9, 1999, that certain Amendment
No. 4 and Waiver, dated as of November 8, 1999, and that certain Amendment No. 5
and Consent, dated as of February 18, 2000 (said Amended and Restated Revolving
Credit Agreement, as so amended, being the "Existing Revolving Credit
Agreement").
E. The First Term Loan Agreement was amended and restated by that certain
Amended and Restated Term Loan Agreement, dated as of April 30, 1998, by and
among the Borrower, the lenders parties thereto, DLJ Capital Funding Inc., as
Syndication Agent, and The Bank of New York, as administrative agent, which
agreement was amended by that certain First
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Amendment to Amended and Restated Term Loan Agreement dated as of August 5,
1998, that certain Limited Waiver and Second Amendment to Amended and Restated
Term Loan Agreement dated as of August 9, 1999, and that certain Limited Waiver
and Third Amendment to Amended and Restated Term Loan Agreement dated as of
November 8, 1999 (said Amended and Restated Term Loan Agreement, as so amended,
being the "Existing Term Loan Agreement").
F. The Borrower, the several lenders from time to time parties thereto (the
"Revolving Lenders"), DLJ Capital Funding Inc., as Syndication Agent, First
Union National Bank, as Documentation Agent, and The Bank of New York, as
Revolving Agent (the "Revolving Agent"), have entered into that certain Second
Amended and Restated Revolving Credit Agreement dated as of the date hereof
(such agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being the "Revolving Credit Agreement"), which
amends and restates the Existing Revolving Credit Agreement in its entirety,
pursuant to which the Revolving Lenders have made certain commitments, subject
to the terms and conditions set forth in the Revolving Credit Agreement, to
continue certain credit facilities extended to the Borrower under the Existing
Revolving Credit Agreement and to extend certain other credit facilities to the
Borrower.
G. The Borrower, the several lenders from time to time parties thereto (the
"Term Lenders"), DLJ Capital Funding Inc., as Syndication Agent, and The Bank of
New York, as Term Agent (the "Term Agent"), have entered into that certain
Second Amended and Restated Term Loan Agreement dated as of the date hereof
(such agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being the "Term Loan Agreement"), which amends and
restates the Existing Term Loan Agreement in its entirety, pursuant to which the
Term Lenders have made certain commitments, subject to the terms and conditions
set forth in the Term Loan Agreement, to continue certain credit facilities
previously extended to the Borrower under the Existing Term Loan Agreement
H. The Borrower has heretofore entered into, and it is contemplated that the
Borrower may from time to time hereafter enter into, one or more Interest Rate
Agreements with one or more persons that are Revolving Lenders or Term Lenders
or their respective Affiliates at the time such agreements are entered into
(collectively, the "Interest Rate Exchangers") and it is desired that the
obligations of the Borrower under such Interest Rate Agreements, including the
obligation to make payments in the event of early termination thereunder, be
guarantied by this Guaranty; provided that any Interest Rate Exchanger desiring
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the benefit of such guaranty shall deliver to the Collateral Agent an
acknowledgement to the Intercreditor Agreement executed by such Interest Rate
Exchanger and the Borrower, pursuant to which such Interest Rate Exchanger
agrees to be bound by the terms thereof. Each Interest Rate Exchanger that has
executed and delivered to the Collateral Agent an acknowledgement to the
Intercreditor Agreement, together with each Interest Rate Exchanger that was a
party to the Existing Intercreditor Agreement (as defined in the Intercreditor
Agreement) immediately before the effectiveness of the Intercreditor Agreement,
is referred to herein as an "Acknowledging Interest Rate Exchanger," and each
Interest Rate Agreement with an Acknowledging Interest Rate Exchanger is
referred to herein as a "Guarantied Interest Rate Agreement".
I. A portion of the proceeds of the Revolving Credit Loans and Term Loans
were advanced to Guarantors under the First Revolving Credit Agreement, the
First Term Loan
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Agreement, the Existing Revolving Credit Agreement, and the Existing Term Loan
Agreement, and thus the Guarantied Obligations (as hereinafter defined) were
being incurred for and inured to the benefit of Guarantors (which benefits are
hereby acknowledged).
J. In addition to the Guarantors as of the date hereof, the terms of the
Revolving Credit Agreement and the Term Loan Agreement require that each
Domestic Subsidiary formed or acquired by the Borrower after the date hereof
guaranty the Guarantied Obligations.
K. Collateral Agent has been appointed as agent for the other Beneficiaries
pursuant to the Intercreditor Agreement by the Revolving Agent on behalf of the
Revolving Lenders, the Term Agent on behalf of the Term Lenders, and each
Acknowledging Interest Rate Exchanger.
L. Guarantors are willing irrevocably and unconditionally to guaranty such
obligations of the Borrower.
M. It is a condition precedent to the effectiveness of the Revolving Credit
Agreement and the Term Loan Agreement that the Subsidiary Guarantors listed on
the signature pages hereof shall have executed and delivered this Guaranty to
the Collateral Agent.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Guarantor hereby agrees for the benefit of the Collateral Agent and the
other Beneficiaries as follows:
SECTION I. DEFINITIONS
1.1 Certain Defined Terms. Capitalized terms used herein without
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definition shall have the meanings assigned thereto in the Revolving Credit
Agreement and, if not defined in the Revolving Credit Agreement, the Term Loan
Agreement, in each case as in effect on the date hereof. In addition, as used
in this Guaranty, the following terms shall have the following meanings unless
the context otherwise requires:
"Beneficiaries" means Collateral Agent, Revolving Agent, Term Agent,
Letter of Credit Issuer, Revolving Lenders, Term Lenders, and
Acknowledging Interest Rate Exchangers.
"Default" means any "Default" as defined in the Term Loan Agreement or
the Revolving Credit Agreement.
"Event of Default" means (i) any event defined as an Event of Default
in either the Term Loan Agreement or the Revolving Credit Agreement,
provided that any requirement set forth therein for the giving of
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notice, the lapse of time, or any other condition has been satisfied
and (ii) following the payment in full of all obligations under the
Revolving Loan Documents and the Term Loan Documents, any breach or
violation of any Secured Interest Rate Agreement.
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"Financing Documents" means the Revolving Loan Documents, the Term
Loan Documents, the Guarantied Interest Rate Agreements, and all other
documents and agreements executed and issued in connection with the
foregoing.
"Guarantied Obligations" has the meaning assigned to that term in
subsection 2.1.
"Guaranty" means this Amended and Restated Subsidiary Guaranty dated
as of July 14, 2000, as it may be amended, supplemented or otherwise
modified from time to time.
"payment in full", "paid in full" or any similar term means payment in
full of the Guarantied Obligations, including without limitation all
principal, interest, costs, fees and expenses (including, without
limitation, reasonable legal fees and expenses) of Beneficiaries as
required under the Financing Documents.
"Revolving Loan Documents" means the Loan Documents, as such term is
defined in the Revolving Credit Agreement.
"Term Loan Documents" means the Loan Documents, as such term is
defined in the Term Loan Agreement.
1.2 Interpretation.
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(a) References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Guaranty unless
otherwise specifically provided.
(b) In the event of any conflict or inconsistency between the
terms, conditions and provisions of this Guaranty and the terms,
conditions and provisions of the Revolving Credit Agreement or the
Term Loan Agreement, the terms, conditions and provisions of this
Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 Guaranty of the Guarantied Obligations. Subject to the provisions of
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subsection 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty, as primary obligors and not merely as sureties, the
due and punctual payment in full of all Guarantied Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. (S) 362(a)). The term "Guarantied Obligations"
is used herein in its most comprehensive sense and includes:
(a) any and all obligations of Borrower in respect of notes,
advances, borrowings, loans, debts, letters of credit, bankers'
acceptances, interest, fees, costs, expenses (including, without
limitation, legal fees and expenses of counsel and allocated costs of
internal counsel), indemnities and liabilities of whatsoever nature
now or hereafter made, incurred or created, whether now existing or
hereafter arising, absolute or contingent, liquidated or unliquidated,
whether due or not due,
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and however arising under or in connection with the Financing
Documents, including those arising under successive borrowing
transactions under the Revolving Credit Agreement which shall either
continue such obligations of Borrower or from time to time renew them
after they have been satisfied and including interest which, but for
the filing of a petition in bankruptcy with respect to Borrower, would
have accrued on any Guarantied Obligations, whether or not a claim is
allowed against Borrower for such interest in the related bankruptcy
proceeding; and
(b) those expenses set forth in subsection 2.9 hereof.
2.2 Limitation on Amount Guarantied; Contribution by Guarantors. (a)
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Anything contained in this Guaranty to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guaranty, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Borrower or other
affiliates of Borrower to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of Subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this subsection 2.2(a),
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement (including without
limitation any such right of contribution under subsection 2.2(b).
(b) Guarantors under this Guaranty together desire to allocate among
themselves (collectively, the "Contributing Guarantors"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly,
in the event any payment or distribution is made on any date by any Guarantor
under this Guaranty (a "Funding Guarantor") that exceeds its Fair Share (as
defined below) as of such date, that Funding Guarantor shall be entitled to a
contribution from each of the other Contributing Guarantors in the amount of
such other Contributing Guarantor's Fair Share Shortfall (as defined below) as
of such date, with the result that all such contributions will cause each
Contributing Guarantor's Aggregate Payments (as defined below) to equal its Fair
Share as of such date. "Fair Share" means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (i) the ratio of
(x) the Adjusted Maximum Amount (as defined below) with respect to such
Contributing Guarantor to (y) the aggregate of the Adjusted Maximum Amounts with
respect to all Contributing Guarantors, multiplied by (ii) the aggregate amount
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paid or distributed on or before such date by all Funding Guarantors under this
Guaranty in respect of the obligations guarantied. "Fair Share Shortfall"
means, with respect to a Contributing Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such
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Contributing Guarantor over the Aggregate Payments of such Contributing
Guarantor. "Adjusted Maximum Amount" means, with respect to a Contributing
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty, determined as of
such date in accordance with subsection 2.2(a); provided that, solely for
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purposes of calculating the "Adjusted Maximum--------Amount" with respect to any
Contributing Guarantor for purposes of this subsection 2.2(b), any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "Aggregate Payments" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (i)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this subsection 2.2(b) minus (ii) the
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aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this subsection 2.2(b). 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. The allocation among Contributing
Guarantors of their obligations as set forth in this subsection 2.2(b) shall not
be construed in any way to limit the liability of any Contributing Guarantor
hereunder.
2.3 Payment by Guarantors; Application of Payments. Subject to the
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provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
any Beneficiary may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Borrower to pay any of the Guarantied
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. (S) 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to Collateral
Agent for the benefit of Beneficiaries, an amount equal to the sum of the unpaid
principal amount of all Guarantied Obligations then due as aforesaid, accrued
and unpaid interest on such Guarantied Obligations (including, without
limitation, interest which, but for the filing of a petition in bankruptcy with
respect to Borrower, would have accrued on such Guarantied Obligations, whether
or not a claim is allowed against Borrower for such interest in the related
bankruptcy proceeding) and all other Guarantied Obligations then owed to
Beneficiaries as aforesaid. All such payments shall be applied promptly from
time to time by Collateral Agent:
First, to the payment of the costs and expenses of any collection or
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other realization under this Guaranty, including reasonable compensation to
Collateral Agent and its agents and counsel, and all expenses, liabilities
and advances made or incurred by Collateral Agent in connection therewith;
Second, to the payment of all other Guarantied Obligations in the
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order described in Section 3 of the Intercreditor Agreement; and
Third, after payment in full of all Guarantied Obligations, to the
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payment to Guarantors, or their respective successors or assigns, or to
whomsoever may be lawfully
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entitled to receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such payments.
2.4 Liability of Guarantors Absolute. Each Guarantor agrees that its
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obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting
the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) Collateral Agent may enforce this Guaranty upon the occurrence of
an Event of Default, notwithstanding the existence of any dispute between
Borrower and any Beneficiary with respect to the existence of such Event of
Default.
(c) The obligations of each Guarantor hereunder are independent of the
obligations of Borrower under the Financing Documents and the obligations
of any other guarantor (including any other Guarantor) of the obligations
of Borrower under the Financing Documents, and a separate action or actions
may be brought and prosecuted against such Guarantor whether or not any
action is brought against Borrower or any of such other guarantors and
whether or not Borrower is joined in any such action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guarantied Obligations which
has not been paid. Without limiting the generality of the foregoing, if
Collateral Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guarantied Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to
pay the portion of the Guarantied Obligations that is not the subject of
such suit, and such judgment shall not, except to the extent satisfied by
such Guarantor, limit, affect, modify or abridge any other Guarantor's
liability hereunder in respect of the Guarantied Obligations.
(e) Any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of
this Guaranty or giving rise to any reduction, limitation, impairment,
discharge or termination of any Guarantor's liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest
on, or otherwise change the time, place, manner or terms of payment of the
Guarantied Obligations, (ii) settle, compromise, release or discharge, or
accept or refuse any offer of performance with respect to, or substitutions
for, the Guarantied Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the Guarantied
Obligations and take and hold security for the payment of this Guaranty or
the Guarantied Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any
other obligation of any Person (including any other Guarantor) with respect
to the Guarantied Obligations; (v) enforce and apply any security now or
hereafter held by or for
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the benefit of such Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against
any such security, in each case as such Beneficiary in its discretion may
determine consistent with the applicable Financing Document, the
Intercreditor Agreement and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of any Guarantor against Borrower or any security for the Guarantied
Obligations; and (vi) exercise any other rights available to it under the
Financing Documents.
(f) This Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
payment in full of the Guarantied Obligations), and the termination of the
Revolving Credit Commitments, the Swing Line Commitment, the Term Loan
Commitments and the cancellation or expiration of all Letters of Credit,
including without limitation the occurrence of any of the following,
whether or not any Guarantor shall have had notice or knowledge of any of
them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of,
any claim or demand or any right, power or remedy (whether arising under
the Financing Documents, at law, in equity or otherwise) with respect to
the Guarantied Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the
Guarantied Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or
provisions (including without limitation provisions relating to events of
default) of any Financing Document, or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guarantied
Obligations, in each case whether or not in accordance with the terms of
any Financing Document or any agreement relating to such other guaranty or
security; (iii) the Guarantied Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in
any respect; (iv) the application of payments received from any source
(other than payments received pursuant to the other Financing Documents or
from the proceeds of any security for the Guarantied Obligations, except to
the extent such security also serves as collateral for indebtedness other
than the Guarantied Obligations) to the payment of indebtedness other than
the Guarantied Obligations, even though any Beneficiary might have elected
to apply such payment to any part or all of the Guarantied Obligations; (v)
any Beneficiary's consent to the change, reorganization or termination of
the corporate or other structure or existence of Borrower or any of its
Subsidiaries and to any corresponding restructuring of the Guarantied
Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guarantied
Obligations; (vii) any defenses, set-offs or counterclaims which Borrower
may allege or assert against any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration, breach
of warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to
any extent vary the risk of any Guarantor as an obligor in respect of the
Guarantied Obligations.
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2.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit
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of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against Borrower, any other
guarantor (including any other Guarantor) of the Guarantied Obligations or
any other Person, (ii) proceed against or exhaust any security held from
Borrower, any such other guarantor (including any other Guarantor) or any
other Person, (iii) proceed against or have resort to any balance of any
deposit account or credit on the books of any Beneficiary in favor of
Borrower or any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of Borrower including, without
limitation, any defense based on or arising out of the lack of validity or
the unenforceability of the Guarantied Obligations or any agreement or
instrument relating thereto or by reason of the cessation of the liability
of Borrower from any cause other than payment in full of the Guarantied
Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) any defense based upon any Beneficiary's errors or omissions in
the administration of the Guarantied Obligations, except behavior which
amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty and any
legal or equitable discharge of such Guarantor's obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to set-
offs, recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default under any Financing
Document or any agreement or instrument related thereto, notices of any
renewal, extension or modification of the Guarantied Obligations or any
agreement related thereto, notices of any extension of credit to Borrower
and notices of any of the matters referred to in subsection 2.4 and any
right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of this Guaranty.
2.6 Certain California Law Waivers. As used in this subsection 2.6, any
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reference to "the principal" includes Borrower, and any reference to "the
creditor" includes each Beneficiary. In accordance with Section 2856 of the
California Civil Code:
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(a) each Guarantor agrees (i) to waive any and all rights of
subrogation and reimbursement against Borrower or against any collateral or
security granted by Borrower for any of the Guarantied Obligations and (ii)
to withhold the exercise of any and all rights of subrogation,
reimbursement and contribution against Borrower, against any other
guarantor of any of the Guarantied Obligations and against any collateral
or security granted by any such other guarantor for any of the Guarantied
Obligations until the Guarantied Obligations shall have been paid in full
and the Revolving Credit Commitments, the Swing Line Commitment and the
Term Loan Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled, all as more fully set forth in subsection
2.7;
(b) each Guarantor waives any and all other rights and defenses
available to such Guarantor by reason of Sections 2787 to 2855, inclusive,
2899 and 3433 of the California Civil Code, including without limitation
any and all rights or defenses such Guarantor may have by reason of
protection afforded to the principal with respect to any of the Guarantied
Obligations, or to any other guarantor (including any other Guarantor) of
any of the Guarantied Obligations with respect to any of such guarantor's
obligations under its guaranty, in either case pursuant to the
antideficiency or other laws of the State of California limiting or
discharging the principal's indebtedness or such guarantor's obligations,
including without limitation Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure; and
(c) each Guarantor waives all rights and defenses arising out of an
election of remedies by the creditor, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for
any Guarantied Obligation, has destroyed such Guarantor's rights of
subrogation and reimbursement against the principal by the operation of
Section 580d of the California Code of Civil Procedure or otherwise; and
even though that election of remedies by the creditor, such as nonjudicial
foreclosure with respect to security for an obligation of any other
guarantor (including any other Guarantor) of any of the Guarantied
Obligations, has destroyed such Guarantor's rights of contribution against
such other guarantor.
No other provision of this Guaranty shall be construed as limiting the
generality of any of the covenants and waivers set forth in this subsection 2.6.
In accordance with subsection 4.6 below, this Guaranty shall be governed by, and
shall be construed and enforced in accordance with, the internal laws of the
State of New York, without regard to conflicts of laws principles. This
subsection 2.6 is included solely out of an abundance of caution, and shall not
be construed to mean that any of the above-referenced provisions of California
law are in any way applicable to this Guaranty or to any of the Guarantied
Obligations.
2.7 Guarantors' Rights of Subrogation, Contribution, Etc. Each Guarantor
----------------------------------------------------
hereby waives any claim, right or remedy, direct or indirect, that such
Guarantor now has or may hereafter have against Borrower or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute (including without limitation under
California Civil Code Section 2847, 2848 or 2849), under common law or otherwise
and including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may
10
hereafter have against Borrower, (b) any right to enforce, or to participate in,
any claim, right or remedy that any Beneficiary now has or may hereafter have
against Borrower, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary. In addition,
until the Guarantied Obligations shall have been indefeasibly paid in full and
the Revolving Credit Commitments, the Swing Line Commitment and the Term Loan
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any
other Guarantor) of the Guarantied Obligations (including without limitation any
such right of contribution under California Civil Code Section 2848 or under
subsection 2.2(b)). Each Guarantor further agrees that, to the extent the waiver
or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against Borrower or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against Borrower,
to all right, title and interest any Beneficiary may have in any such collateral
or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time
when all Guarantied Obligations shall not have been paid in full, such amount
shall be held in trust for Collateral Agent on behalf of Beneficiaries and shall
forthwith be paid over to Collateral Agent for the benefit of Beneficiaries to
be credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.8 Subordination of Other Obligations. Any indebtedness of Borrower now
----------------------------------
or hereafter held by any Guarantor is hereby subordinated in right of payment to
the Guarantied Obligations, and any such indebtedness of Borrower to such
Guarantor collected or received by such Guarantor after an Event of Default has
occurred and is continuing shall be held in trust for Collateral Agent on behalf
of Beneficiaries and shall forthwith be paid over to Collateral Agent for the
benefit of Beneficiaries to be credited and applied against the Guarantied
Obligations but without affecting, impairing or limiting in any manner the
liability of such Guarantor under any other provision of this Guaranty.
2.9 Expenses. Guarantors jointly and severally agree to pay, or cause to
--------
be paid, on demand, and to save Beneficiaries harmless against liability for,
any and all costs and expenses (including fees and disbursements of counsel and
allocated costs of internal counsel) incurred or expended by any Beneficiary in
connection with the enforcement of or preservation of any rights under this
Guaranty.
2.10 Continuing Guaranty. This Guaranty is a continuing guaranty and shall
-------------------
remain in effect until all of the Guarantied Obligations shall have been paid in
full and the Revolving Credit Commitments, the Swing Line Commitment and the
Term Loan Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled. Each Guarantor hereby irrevocably waives any right
(including without limitation any such right arising under California Civil Code
Section 2815) to revoke this Guaranty as to future transactions giving rise to
any Guarantied Obligations.
11
2.11 Authority of Guarantors or Borrower. It is not necessary for any
-----------------------------------
Beneficiary to inquire into the capacity or powers of any Guarantor or Borrower
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
2.12 Financial Condition of Borrower. Any credit may be extended to
-------------------------------
Borrower or continued from time to time without notice to or authorization from
any Guarantor regardless of the financial or other condition of Borrower at the
time of any such grant or continuation. No Beneficiary shall have any
obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantor's assessment, of the financial condition of Borrower. Each Guarantor
has adequate means to obtain information from Borrower on a continuing basis
concerning the financial condition of Borrower and its ability to perform its
obligations under the Financing Documents, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Borrower and of all circumstances bearing upon the risk of nonpayment of the
Guarantied Obligations. Each Guarantor hereby waives and relinquishes any duty
on the part of any Beneficiary to disclose any matter, fact or thing relating to
the business, operations or conditions of Borrower now known or hereafter known
by any Beneficiary.
2.13 Rights Cumulative. The rights, powers and remedies given to
-----------------
Beneficiaries by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiaries by virtue
of any statute or rule of law or in any of the other Financing Documents or any
agreement between any Guarantor and any Beneficiary or Beneficiaries or between
Borrower and any Beneficiary or Beneficiaries. Any forbearance or failure to
exercise, and any delay by any Beneficiary in exercising, any right, power or
remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.
2.14 Bankruptcy; Post-Petition Interest; Reinstatement of Guaranty. (a)
-------------------------------------------------------------
So long as any Guarantied Obligations remain outstanding, no Guarantor shall,
without the prior written consent of Collateral Agent and Requisite Obligees (as
such term is defined in the Intercreditor Agreement), commence or join with any
other Person in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Borrower. The obligations of Guarantors under this
Guaranty shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Borrower or by any defense which Borrower may have by reason of
the order, decree or decision of any court or administrative body resulting from
any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of Guarantors and Beneficiaries that the Guarantied Obligations which
are guarantied by Guarantors pursuant to this Guaranty should be determined
without regard to any rule of law or order which may relieve Borrower of any
portion of such Guarantied Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar
12
person to pay Collateral Agent, or allow the claim of Collateral Agent in
respect of, any such interest accruing after the date on which such proceeding
is commenced.
(c) In the event that all or any portion of the Guarantied Obligations
are paid by Borrower, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guarantied Obligations for all purposes under this Guaranty.
2.15 Notice of Events. As soon as any Guarantor obtains knowledge thereof,
----------------
such Guarantor shall give Collateral Agent written notice of any condition or
event which has resulted in (a) a material adverse change in the financial
condition of any Guarantor or Borrower or (b) a breach of or noncompliance with
any term, condition or covenant contained herein or in any Financing Document or
any other document delivered pursuant hereto or thereto.
2.16 Set Off. In addition to any other rights any Beneficiary may have
-------
under law or in equity, if any amount shall at any time be due and owing by any
Guarantor to any Beneficiary under this Guaranty, such Beneficiary is authorized
at any time or from time to time, without notice (any such notice being hereby
expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness of such Beneficiary owing to such Guarantor and any other
property of such Guarantor held by any Beneficiary to or for the credit or the
account of such Guarantor against and on account of the Guarantied Obligations
and liabilities of such Guarantor to any Beneficiary under this Guaranty.
2.17 Discharge of Guaranty Upon Sale of Guarantor. If all of the Stock (or
--------------------------------------------
equivalent ownership interest) of any Guarantor or any of its successors in
interest under this Guaranty shall be sold or otherwise disposed of (including
by merger or consolidation) in a sale or disposition permitted by Section 8.7 of
the Revolving Credit Agreement and Section 8.7 of the Term Loan Agreement or
otherwise consented to by Requisite Obligees, the Guaranty of such Guarantor or
such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such sale or disposition; provided that
--------
(i) the Person acquiring the Stock (or equivalent ownership interest) of any
Guarantor or any of its successors or merging with or consolidating with such
Guarantor is not a Subsidiary of the Borrower and (ii) either (a) the net
proceeds from such sale are used by the Borrower contemporaneously with the
receipt thereof to prepay Term Loans and/or Revolving Credit Loans (and
permanently reduce the Revolving Credit Commitments in the amount of any such
prepayment of Revolving Credit Loans) to the extent required by the Term Loan
Agreement or the Revolving Credit Agreement or (b) at the time of and
immediately after such sale, disposition, or merger, no Default or Event of
Default shall have occurred and be continuing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Beneficiaries to accept this Guaranty and to enter
into the Revolving Credit Agreement and the Term Loan Agreement, and to extend
credit thereunder, each
13
Guarantor hereby represents and warrants to Beneficiaries that the following
statements are true and correct:
3.1 Existence. Such Guarantor is duly organized, validly existing and in
---------
good standing under the laws of the state of its incorporation or formation, has
the corporate or other power to own its assets and to transact the business in
which it is now engaged and is duly qualified as a foreign corporation or entity
and in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
except in each case where such failure to be so qualified, authorized or
licensed, and, in the case of East End Dialysis Center, Inc., Elberton Dialysis
Facility, Inc., Carroll County Dialysis Facility, Inc. and RTC Texas
Acquisition, Inc., where such failure so to be in good standing under the laws
of the jurisdiction of its incorporation or formation (which such failure to be
in good standing shall be promptly remedied following the Effective Date), could
not reasonably be expected to have a Material Adverse Effect.
3.2 Power; Authorization; Enforceable Obligations. Such Guarantor has the
---------------------------------------------
corporate or other power, authority and legal right to execute, deliver and
perform this Guaranty and all obligations required hereunder and has taken all
necessary corporate or other action to authorize its Guaranty hereunder on the
terms and conditions hereof and its execution, delivery and performance of this
Guaranty and all obligations required hereunder. No consent of any other Person
including, without limitation, stockholders (or equivalent owners) and creditors
of such Guarantor, and no license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required by such Guarantor in connection with this
Guaranty or the execution, delivery, performance, validity or enforceability of
this Guaranty and all obligations required hereunder. This Guaranty has been,
and each instrument or document required hereunder will be, executed and
delivered by a duly authorized officer of such Guarantor, and this Guaranty
constitutes, and each instrument or document required hereunder when executed
and delivered by such Guarantor hereunder will constitute, the legally valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws or
equitable principles relating to or limiting creditors' rights generally.
3.3 No Legal Bar to this Guaranty. The execution, delivery and performance
-----------------------------
of this Guaranty and the documents or instruments required hereunder, and the
use of the proceeds of the borrowings under the Financing Documents, will not
violate any provision of any existing law or regulation binding on such
Guarantor, or any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on such Guarantor, or the certificate of
incorporation or bylaws or other organizational documents of such Guarantor or
any securities issued by such Guarantor, or any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which such Guarantor
is a party or by which such Guarantor or any of its assets may be bound, the
violation of which would have a material adverse effect on the business,
operations, assets or financial condition of such Guarantor and will not result
in, or require, the creation or imposition of any Lien on any of its property,
assets or revenues pursuant to the provisions of any such mortgage, indenture,
lease, contract or other agreement, instrument or undertaking.
14
SECTION 4. MISCELLANEOUS
4.1 Survival of Warranties. All agreements, representations and warranties
----------------------
made herein shall survive the execution and delivery of this Guaranty and the
other Financing Documents and any increase in the Commitments under the
Revolving Credit Agreement.
4.2 Notices. Any communications between Collateral Agent and any Guarantor
-------
and any notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by telex, facsimile transmission or cable to each
such party at its address set forth below (in the case of Collateral Agent) and
on the signature pages hereof (in the case of Guarantors) or to such other
addresses as each such party may in writing hereafter indicate. Any notice,
request or demand to or upon Collateral Agent or any Guarantor shall not be
effective until received.
The Bank of New York, as Collateral Agent
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Kalyani Bose
Telephone: (212) 635-4693
Fax: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York, as Collateral Agent
10990 Wilshire Blvd., Suite 1125
Los Angeles, California 90024
Attention: Rebecca K. Levine
Vice President
Telephone: (310) 996-8659
Fax: (310) 996-8667
4.3 Severability. In case any provision in or obligation under this Guaranty
-------------
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
4.4 Amendments and Waivers. No amendment, modification, termination or
----------------------
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Collateral Agent and, in the case of any such amendment or
modification, each Guarantor against whom enforcement of such amendment or
modification is sought. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
15
4.5 Headings. Section and subsection headings in this Guaranty are
--------
included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive effect.
4.6 Applicable Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
--------------
GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.7 Successors and Assigns. This Guaranty is a continuing guaranty and
----------------------
shall be binding upon each Guarantor and its respective successors and assigns.
This Guaranty shall inure to the benefit of Beneficiaries and their respective
successors and assigns. No Guarantor shall assign this Guaranty or any of the
rights or obligations of such Guarantor hereunder without the prior written
consent of Requisite Obligees. Any Beneficiary may, without notice or consent,
assign its interest in this Guaranty in whole or in part. The terms and
provisions of this Guaranty shall inure to the benefit of any transferee or
assignee of any Loan or Letter of Credit Exposure, and in the event of such
transfer or assignment the rights and privileges herein conferred upon such
Beneficiary shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
4.8 Consent to Jurisdiction and Service of Process. ALL JUDICIAL
----------------------------------------------
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS GUARANTY, EACH GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SUBSECTION 4.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT;
16
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 4.8 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-
1402 OR OTHERWISE.
Each Guarantor further designates and appoints CT Corporation System, and such
other Persons as may hereafter be selected by such Guarantor irrevocably
agreeing in writing to so serve, as its agent to receive on its behalf service
of all process in any such proceedings in any such court, such service being
hereby acknowledged by each Guarantor to be effective and binding service in
every respect.
4.9 Waiver of Trial by Jury. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
-----------------------
BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY. The scope of this waiver is intended to be all encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
Each Guarantor and, by its acceptance of the benefits hereof, each Beneficiary,
(i) acknowledges that this waiver is a material inducement for such Guarantor
and Beneficiaries to enter into a business relationship, that such Guarantor and
Beneficiaries have already relied on this waiver in entering into this Guaranty
or accepting the benefits hereof, as the case may be, and that each will
continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 4.9 AND EXECUTED
BY COLLATERAL AGENT AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
In the event of litigation, this Guaranty may be filed as a written consent to a
trial by the court.
4.10 No Other Writing. This writing is intended by Guarantors and
----------------
Beneficiaries as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or
trade usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
17
4.11 Further Assurances. At any time or from time to time, upon the
------------------
request of Collateral Agent, Guarantors shall execute and deliver such further
documents and do such other acts and things as Collateral Agent may reasonably
request in order to effect fully the purposes of this Guaranty.
4.12 Additional Guarantors. The initial Guarantors hereunder shall be such
---------------------
of the Domestic Subsidiaries of Borrower as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, additional Domestic
Subsidiaries of Borrower may become parties hereto, as additional Guarantors
(each an "Additional Guarantor"), by executing a counterpart of this Guaranty.
Upon delivery of any such counterpart to Collateral Agent, notice of which is
hereby waived by Guarantors, each such Additional Guarantor shall be a Guarantor
and shall be as fully a party hereto as if such Additional Guarantor were an
original signatory hereof. Each Guarantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or release
of any other Guarantor hereunder, nor by any election of Collateral Agent not to
cause any Subsidiary of Borrower to become an Additional Guarantor hereunder.
This Guaranty shall be fully effective as to any Guarantor that is or becomes a
party hereto regardless of whether any other Person becomes or fails to become
or ceases to be a Guarantor hereunder.
4.13 Counterparts; Effectiveness. This Guaranty may be executed in any
---------------------------
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become
effective as to each Guarantor upon the execution of a counterpart hereof by
such Guarantor (whether or not a counterpart hereof shall have been executed by
any other Guarantor) and receipt by Collateral Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
4.14 Collateral Agent as Agent.
-------------------------
(a) Collateral Agent has been appointed to act as Collateral Agent
hereunder pursuant to the Intercreditor Agreement by the Revolving Agent on
behalf of the Revolving Lenders, the Term Agent on behalf of the Term Lenders,
and each Interest Rate Exchanger signing an acknowledgement to the Intercreditor
Agreement. Collateral Agent shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely in
accordance with this Guaranty and the Intercreditor Agreement.
(b) The Collateral Agent may resign or be removed and a successor
Collateral Agent may be appointed in the manner provided in the Intercreditor
Agreement. Resignation by the Collateral Agent pursuant to subsection 6(g) of
the Intercreditor Agreement shall also constitute notice of resignation as
Collateral Agent under this Agreement; removal of the Collateral Agent pursuant
to subsection 6(g) of the Intercreditor Agreement shall also constitute removal
as Collateral Agent under this Agreement; and appointment of a successor
Collateral Agent pursuant to subsection 6(g) of the Intercreditor Agreement
shall also constitute appointment of a successor Collateral Agent under this
Agreement. Upon the acceptance of any appointment as Collateral Agent under
subsection 6(g) of the Intercreditor Agreement by a successor Collateral Agent,
that successor Collateral Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Collateral Agent under this Agreement.
18
4.15 Designation as Designated Senior Indebtedness; Incorporation of
---------------------------------------------------------------
Defaults
--------
This Guaranty, the Financing Documents, and all monetary obligations
hereunder and thereunder, are hereby expressly designated as `Designated Senior
Indebtedness', as that term is defined in the RTC Convertible Subordinated
Indenture. The occurrence of any Default or Event of Default constitutes a
default under this Guaranty.
19
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
By:
------------------------------------
Marshal Salomon
Vice President
on behalf of each of the entities listed on
Appendix A annexed hereto
----------
TOTAL RENAL CARE, INC.
on behalf of each of the entities listed on
Appendix B annexed hereto
----------
By:
-------------------------------------
Marshal Salomon
Vice President
Notice Address for each of the Subsidiary
Guarantors set forth on Appendix A and Appendix B
---------- ----------
annexed hereto:
Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard
Suite 800
Torrance, California 90503
Attention: Marshal Salomon
Telephone: (310) 750-2135
Fax: (310) 792-9281
TRC WEST, INC.,
By:
---------------------------------------
Name:
--------------------------------
Title:
------------------------------
S-1
Notice Address:
21250 Hawthorne Blvd., Suite 800,
Torrance, CA 90503
Attention: Richard Whitney
Telephone: (310) 750-2135
Fax: (310) 792-9281
S-2
IN WITNESS WHEREOF, the undersigned Additional Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, 200_.
________________________________________
(Name of Additional Guarantor)
By _____________________________________
Title __________________________________
S-3
APPENDIX A
Carroll County Dialysis Facility, Inc.
Continental Dialysis Centers, Inc.
Continental Dialysis Center of Springfield-Fairfax, Inc.
Dialysis Specialists of Dallas, Inc.
East End Dialysis Center, Inc.
Elberton Dialysis Facility, Inc.
Flamingo Park Kidney Center, Inc.
Lincoln Park Dialysis Services, Inc.
Mason-Dixon Dialysis Facilities, Inc.
Open Access Sonography, Inc.
Peninsula Dialysis Center, Inc.
Renal Diagnostic Laboratories, Inc.
Renal Treatment Centers, Inc.
Renal Treatment Centers - California, Inc.
Renal Treatment Centers - Hawaii, Inc.
Renal Treatment Centers - Illinois, Inc.
Renal Treatment Centers - Management Acquisition, Inc.
Renal Treatment Centers - Mid-Atlantic, Inc.
Renal Treatment Centers - Northeast, Inc.
Renal Treatment Centers - Southeast, Inc.
Renal Treatment Centers - West, Inc.
RTC Holdings, Inc.
RTC Supply, Inc.
RTC - Texas Acquisition, Inc.
RTC TN, Inc.
S-4
Total Acute Kidney Care, Inc.
Total Renal Care Acquisition Corp.
Total Renal Care, Inc.
Total Renal Care of Colorado, Inc.
Total Renal Care International, Ltd.
Total Renal Care of Puerto Rico, Inc.
Total Renal Laboratories, Inc.
Total Renal Research, Inc.
Total Renal Support Services, Inc.
TRC of New York, Inc.
Tri-City Dialysis Center, Inc.
S-5
APPENDIX B
Beverly Hills Dialysis Partnership
Crescent City Dialysis Partnership
Houston Kidney Center/Total Renal Care Integrated
Service Network Limited Partnership
Kenner Regional Dialysis Partnership
Sunrise Dialysis Partnership
Total Renal Care/Peralta Renal Center Partnership
Total Renal Care/Piedmont Dialysis Partnership
Total Renal Care Texas Limited Partnership
Total Renal Care of Utah, L.L.C.
TRC - Indiana, LLC
S-6