EXHIBIT 10.5
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of October 24, 1997 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), the
ACKNOWLEDGING INTEREST RATE EXCHANGERS (as hereinafter defined) and the
ACKNOWLEDGING CURRENCY EXCHANGERS (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 (the "REVOLVING LENDERS"), DLJ Capital Funding Inc., as
Syndication Agent, First Union National Bank, as Documentation Agent,
and The Bank of New York, as administrative agent (the "REVOLVING
AGENT") (said Revolving Credit Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time to time, being
the "REVOLVING CREDIT AGREEMENT") pursuant to which Revolving Lenders
have made certain commitments, subject to the terms and conditions set
forth in the Revolving Credit Agreement, to extend certain credit
facilities to the Borrower.
b. The Borrower has entered into that certain Term Loan Agreement
dated as of October 24, 1997, with the financial institutions parties
thereto (the "TERM LENDERS"), DLJ Capital Funding Inc., as Syndication
Agent, and The Bank of New York, as administrative agent (the "TERM
AGENT") (said Term Loan Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "TERM
LOAN AGREEMENT"), pursuant to which Term Lenders have extended or will
extend credit, subject to the terms and conditions set forth in the
Term Loan Agreement, to the Borrower.
c. It is contemplated that the Borrower may from time to time enter
into one or more Interest Rate Agreements with one or more Revolving
Lenders or Term Lenders or their respective Affiliates (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
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Rate Exchanger desiring 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 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".
d. It is contemplated that the Borrower may from time to time enter
into one or more Currency Agreements with one or more Revolving
Lenders or Term Lenders or their respective Affiliates (collectively,
the "CURRENCY EXCHANGERS") and it is desired that the obligations of
the Borrower under such Currency Agreements be guarantied by this
Guaranty; provided that any Currency Exchanger desiring the benefit of
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such guaranty shall deliver to the Collateral Agent an acknowledgement
to the Intercreditor Agreement executed by such Currency Exchanger and
the Borrower, pursuant to which such Currency Exchanger agrees to be
bound by the terms thereof. Each Currency Exchanger that has executed
and delivered to the Collateral Agent an acknowledgement to the
Intercreditor Agreement is referred to herein as an "ACKNOWLEDGING
CURRENCY EXCHANGER," and each Currency Agreement with an Acknowledging
Currency Exchanger is referred to herein as a "GUARANTIED CURRENCY
AGREEMENT".
e. A portion of the proceeds of the Revolving Credit Loans and Term
Loans may be advanced to Guarantors and thus the Guarantied
Obligations (as hereinafter defined) are being incurred for and will
inure to the benefit of Guarantors (which benefits are hereby
acknowledged).
f. 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 First-Tier wholly-owned Domestic Subsidiary acquired by the
Borrower after the date hereof, and certain other Domestic
Subsidiaries hereafter acquired by the Borrower, guaranty the
Guarantied Obligations.
g. 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, each Acknowledging Interest Rate Exchanger and each
Acknowledging Currency Exchanger.
h. Guarantors are willing irrevocably and unconditionally to
guaranty such obligations of the Borrower.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Revolving Lenders to make their respective loans to, and
issue Letters of Credit for the account of, the Borrower under the Revolving
Credit Agreement, and to induce the Term Lenders to make their respective loans
to the Borrower under the Term Loan Agreement, each Guarantor hereby agrees for
the benefit of the Collateral Agent and the other Beneficiaries as follows:
SECTION 1. 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, Acknowledging
Interest Rate Exchangers and Acknowledging Currency Exchangers.
"DEFAULT" means any "Default" as defined in the Term Loan Agreement or
the Revolving Credit Agreement.
"EVENT OF DEFAULT" means (i) any of the events specified in Section
9.1 of the Term Loan Agreement or Section 9.1 of the Revolving Credit
Agreement, provided that any requirement for the giving of notice, the
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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 or Secured Currency Agreement.
"FINANCING DOCUMENTS" means the Revolving Loan Documents, the Term
Loan Documents, the Guarantied Interest Rate Agreements, the Guarantied
Currency 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 Subsidiary Guaranty dated as of October 24,
1997, 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, 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 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 purposes of calculating the "Adjusted Maximum
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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 aggregate amount of all payments
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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 subsection 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 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 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.
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:
(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
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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 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.
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 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 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 for failures to be so qualified, authorized or licensed that would not in
the aggregate have a material adverse effect on the business, operations, assets
or financial condition of such Guarantor and its Subsidiaries, taken as a whole.
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.
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.
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;
(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.
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 and Currency 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.
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.
TOTAL RENAL CARE, INC.
By ______________________________
Title ___________________________
By ______________________________
Title ___________________________
Address:
Total Renal Care, Inc.
c/o Total Renal Care Holdings, Inc.
21250 Hawthorne Blvd., Ste. 800
Torrance, CA 90503-5517
Attention: John E. King
Vice President, Finance
Telephone: (310) 792-2600
Fax: (310) 792-8928
TRC WEST, INC.
By ______________________________
Title ___________________________
By ______________________________
Title ___________________________
Address:
TRC West, Inc.
c/o Total Renal Care Holdings, Inc.
21250 Hawthorne Blvd., Ste. 800
Torrance, CA 90503-5517
Attention: John E. King
Vice President, Finance
Telephone: (310) 792-2600
Fax: (310) 792-8928
TOTAL RENAL CARE ACQUISITION CORP.
By ______________________________
Title ___________________________
By ______________________________
Title ___________________________
Address:
Total Renal Care Acquisition Corp.
c/o Total Renal Care Holdings, Inc.
21250 Hawthorne Blvd., Ste. 800
Torrance, CA 90503-5517
Attention: John E. King
Vice President, Finance
Telephone: (310) 792-2600
Fax: (310) 792-8928
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 ______________, 199_.
________________________________________
(Name of Additional Guarantor)
By
________________________________
Title
____________________________