Exhibit 10.21
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SUBSIDIARY GUARANTEE
Dated May 3, 2001
made by
EACH OF THE SUBSIDIARIES OF DAVITA INC.
LISTED ON THE SIGNATURE PAGES HEREOF,
as Guarantors,
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in favor of
THE LENDER PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
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TABLE OF CONTENTS
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Page
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SECTION 1. Guarantee; Limitation of Liability........................................................ 1
SECTION 2. Guarantee Absolute........................................................................ 2
SECTION 3. Waivers and Acknowledgments............................................................... 3
SECTION 4. Subrogation............................................................................... 4
SECTION 5. Payments Free and Clear of Taxes, Etc..................................................... 5
SECTION 6. Representations and Warranties............................................................ 7
SECTION 7. Confirmation of Certain Provisions of the Loan Documents.................................. 8
SECTION 8. Amendments; Supplements, Etc.............................................................. 8
SECTION 9. Notices, Etc.............................................................................. 8
SECTION 10. No Waiver; Remedies....................................................................... 9
SECTION 11. Right of Setoff........................................................................... 9
SECTION 12. Indemnification........................................................................... 9
SECTION 13. Continuing Guarantee; Assignments under the Credit Agreement.............................. 10
SECTION 14. Release of Guarantors..................................................................... 10
SECTION 15. Execution in Counterparts................................................................. 10
SECTION 16. Governing Law; Jurisdiction; Etc.......................................................... 10
SECTION 17. WAIVER OF JURY TRIAL...................................................................... 1
EXHIBIT
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Exhibit A - Form of Guarantee Supplement
APPENDICES
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Appendix A
Appendix B
SUBSIDIARY GUARANTEE
GUARANTEE dated May 3, 2001 made by each of the Persons listed on the
signature pages hereto (together with each of the Additional Guarantors (as
defined in Section 8(b)), the "Guarantors") in favor of the Administrative Agent
and the Lender Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS
(1) DaVita Inc., a Delaware corporation (the "Borrower"), has entered
into a Credit Agreement dated as of May 3, 2001 (as further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
with the banks, financial institutions and other institutional lenders from time
to time party thereto, Bank of America, N.A. ("BofA"), as the Initial Issuing
Bank and Swing Line Bank thereunder, The Bank of New York ("BONY"), as Issuing
Bank thereunder, Credit Suisse First Boston ("CSFB"), as the Syndication Agent
therefor, Banc of America Securities LLC ("BAS") and CSFB, as the Joint Lead
Arrangers and Joint Book Managers therefor, BONY, Bank of Nova Scotia and
SunTrust Bank, as Documentation Agents therefor, and BofA as the administrative
agent (together with any successor thereto appointed pursuant to Article VII of
the Credit Agreement, the "Administrative Agent") for the Lender Parties
thereunder. Capitalized terms not otherwise defined in this Guarantee shall have
the same meanings as specified therefor in the Credit Agreement. Each of the
Guarantors may receive, directly or indirectly, a portion of the proceeds of the
Advances under the Credit Agreement and will derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement.
(2) It is a condition precedent to the making of Advances by the
Lenders under the Credit Agreement and the issuance of Letters of Credit by the
Issuing Bank that each of the Guarantors shall have executed and delivered this
Guarantee.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make Advances and the Issuing Bank to issue Letters of
Credit from time to time under the Credit Agreement, each of the Guarantors
hereby agrees as follows:
SECTION 1. Guarantee; Limitation of Liability. (a) Each of the
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Guarantors jointly and severally hereby unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or at a
date fixed for prepayment or by acceleration, demand or otherwise, of all of the
Obligations of the Borrower now or hereafter existing under or in respect of the
Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnification payments, contract
causes of action, costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the Lender Parties in enforcing any rights under
this Guarantee. Without limiting the generality of the foregoing, each of the
Guarantors' liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any of the other Loan Parties to the
Administrative Agent or any of the Lender Parties under or in respect of the
Loan Documents but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
(b) Each of the Guarantors, and by its acceptance of this Guarantee,
the Administrative Agent and each of the Lender Parties, hereby confirm that it
is the intention of all such Persons that this Guarantee and the Obligations of
each of the Guarantors hereunder not constitute a
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fraudulent transfer or conveyance for purposes of the United States Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state Requirements of Law covering the
protection of creditors' rights or the relief of debtors to the extent
applicable to this Guarantee and the Obligations of each of the Guarantors
hereunder. To effectuate the foregoing intention, each of the Guarantors, the
Administrative Agent and each of the Lender Parties hereby irrevocably agree
that the Guaranteed Obligations and all of the other liabilities of each of the
Guarantors under this Guarantee shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all of the other contingent and
fixed liabilities of such Guarantor that are relevant under such Requirements of
Law, and after giving effect to any collections from, any rights to receive
contributions from, or any payments made by or on behalf of, any of the other
Guarantors in respect of the Obligations of such other Guarantor under this
Guarantee, result in the Guaranteed Obligations and all of the other liabilities
of each of the Guarantors under this Guarantee not constituting a fraudulent
transfer or conveyance.
(c) Each of the Guarantors hereby unconditionally and irrevocably
agrees that, in the event any payment shall be required to be made to the Lender
Parties under this Guarantee or any other guarantee, such Guarantor will
contribute, to the fullest extent permitted by applicable law, such amounts to
each of the other Guarantors and each other guarantor as would maximize the
aggregate amount paid to the Lender Parties under or in respect of the Loan
Documents.
SECTION 2. Guarantee Absolute. (a) Each of the Guarantors jointly and
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severally guarantees that all of the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Loan Documents, regardless of any
Requirements of Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent or any of the Lender
Parties with respect thereto. The Obligations of each of the Guarantors under
this Guarantee are independent of the Guaranteed Obligations or any other
Obligations of any of the other Loan Parties under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each of the Guarantors to enforce this Guarantee, irrespective of
whether any action is brought against any of the other Loan Parties or whether
any of the other Loan Parties is joined in any such action or actions. The
liability of each of the Guarantors under this Guarantee shall be absolute,
unconditional and irrevocable irrespective of, and each of the Guarantors hereby
irrevocably waives any defenses it may now have or may hereafter acquire in any
way relating to, any and all of the following:
(i) any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any of the other Loan Parties under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to
departure from any of the Loan Documents (including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to any of the Loan Parties or any of their respective
Subsidiaries or otherwise);
(iii) any taking, exchange, release or nonperfection of any
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guarantee, for all or any of the Guaranteed
Obligations;
(iv) any manner of application of collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any of the property and assets of any of the other Loan
Parties or any of their respective Subsidiaries for all or any of the
Guaranteed Obligations or any other Obligations of any of the Loan Parties
under or in respect of
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the Loan Documents;
(v) any change, restructuring or termination of the legal structure
or existence of any of the other Loan Parties or any of their respective
Subsidiaries;
(vi) any failure of any of the Lender Parties to disclose to any of
the Loan Parties any information relating to the business, condition
(financial or otherwise), operations, liabilities (actual or contingent),
properties or prospects of any of the other Loan Parties now or hereafter
known to such Lender Party;
(vii) the failure of any other Person to execute this Guarantee or
any other guarantee or agreement or the release or reduction of liability
of any of the other Guarantors or any other guarantor or surety with
respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the Lender Parties)
that might otherwise constitute a defense available to, or a discharge of,
such Guarantor, any of the other Loan Parties or any other guarantor or
surety.
This Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any of the Lender
Parties or by any other Person upon the insolvency, bankruptcy or reorganization
of any of the Loan Parties or otherwise, all as though such payment had not been
made, and each of the Guarantors hereby unconditionally and irrevocably agrees
that it will jointly and severally indemnify the Administrative Agent and each
of the Lender Parties, upon demand, for all of the costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Administrative Agent or such Lender Party in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, a fraudulent transfer or a similar payment under any bankruptcy,
insolvency or similar Requirements of Law.
(b) Each of the Guarantors hereby further agrees that, as between
such Guarantor, on the one hand, and the Administrative Agent and the Lender
Parties, on the other hand, (i) the Guaranteed Obligations of such Guarantor may
be declared to be forthwith due and payable as provided in Section 6.01 of the
Credit Agreement (and shall be deemed to have become automatically due and
payable in the circumstances provided in Section 6.01 of the Credit Agreement)
for all purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such declaration in respect of the Obligations of
any of the Loan Parties guaranteed hereunder (or preventing such Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations (or such Guaranteed Obligations being deemed to have
become automatically due and payable) as provided in Section 6.01 of the Credit
Agreement, such Guaranteed Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by such Guarantor for all
purposes of this Guarantee.
SECTION 3. Waivers and Acknowledgments. (a) Each of the Guarantors
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hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, protest, dishonor and any other notice with respect to any of the
Guaranteed Obligations and this Guarantee, and any requirement that the
Administrative Agent or any of the Lender Parties protect, secure, perfect or
insure any Lien or any property or assets subject thereto or exhaust any right
or take any action against any of the other Loan Parties or any other Person or
any Collateral.
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(b) Each of the Guarantors hereby waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the
Administrative Agent or the Lender Parties which in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or any
other rights of such Guarantor to proceed against any of the other Loan Parties,
any other guarantor or any other Person or any Collateral and (ii) any defense
based on any right of setoff or counterclaim against or in respect of the
Obligations of such Guarantor under this Guarantee.
(c) Each of the Guarantors hereby unconditionally and irrevocably
waives any duty on the part of the Administrative Agent or any of the Lender
Parties to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, liabilities (actual or
contingent), properties or prospects of any of the other Loan Parties or any of
their respective Subsidiaries or the property and assets thereof now or
hereafter known by the Administrative Agent or such Lender Party.
(d) Each of the Guarantors hereby unconditionally waives any right to
revoke this Guarantee, and acknowledges that this Guarantee is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(e) Each of the Guarantors acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 2
and in this Section 3 are knowingly made in contemplation of such benefits.
SECTION 4. Subrogation. Each of the Guarantors hereby unconditionally
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and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any of the other Loan Parties or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
the Obligations of such Guarantor under or in respect of this Guarantee or any
of the other Loan Documents, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Administrative Agent or any
of the Lender Parties against such other Loan Party or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute, common law or any other Requirements of
Law, including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until such time as all of the
Guaranteed Obligations and all of the other amounts payable under this Guarantee
shall have been paid in full in cash, all of the Letters of Credit shall have
expired or been fully drawn, terminated or cancelled and all Commitments shall
have expired or been terminated. If any amount shall be paid to any of the
Guarantors in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of all of the Guaranteed
Obligations and all of the other amounts payable under this Guarantee (other
than in ▇▇▇▇▇▇ reimbursement or indemnification Obligations), (b) the full
drawing, expiration, termination or cancellation of all of the Letters of Credit
and (c) the Termination Date, such amount shall be received and held in trust
for the benefit of the Administrative Agent and the Lender Parties, shall be
segregated from the other property and funds of such Guarantor and shall be
delivered forthwith to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and the other amounts payable under this Guarantee,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held in escrow (in an account to be established at BofA, in
the name and under the control of the Administrative Agent and on terms,
including the rate of interest payable with respect to the credit balance of
such account from time to time, substantially the same as BofA's standard terms
applicable to escrow accounts maintained with it) for any of the Guaranteed
Obligations or the other amounts payable under this Guarantee thereafter
arising. If (i)
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any of the Guarantors shall pay to the Administrative Agent all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations (other than
inchoate indemnification and reimbursement Obligations) and the of the other
amounts payable under this Guarantee shall have been paid in full in cash, (iii)
all of the Letters of Credit shall have expired or been fully drawn, terminated
or cancelled and (iv) the Termination Date shall have occurred, the
Administrative Agent and Lender Parties will, at such Guarantor's request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer or subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from the payment made by such Guarantor under this
Guarantee.
SECTION 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
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payments by any of the Guarantors under or in respect of this Guarantee or any
of the other Loan Documents to which such Guarantor is a party shall be made, in
accordance with Section 2.13 of the Credit Agreement, free and clear of and
without deduction for any and all present or future Taxes. If any of the
Guarantors shall be required by applicable Requirements of Law to deduct any
Taxes from or in respect of any sum payable under or in respect of this
Guarantee or any of the other Loan Documents to which such Guarantor is a party
to any of the Agents or any of the Lender Parties, (i) the sum payable by such
Guarantor shall be increased as may be necessary so that after such Guarantor
and the Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 5) such
Agent or such Lender Party, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Guarantor
shall make such deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other Governmental Authority in
accordance with the applicable Requirements of Law.
(b) In addition, each of the Guarantors hereby agrees to pay on a
joint and several basis any present or future Other Taxes.
(c) Each of the Guarantors shall jointly and severally indemnify each
of the Agents and each of the Lender Parties for, and hold each of them harmless
against, the full amount of Taxes and Other Taxes, and the full amount of taxes
of any kind imposed by any jurisdiction on amounts payable under this Section 5,
imposed on or paid by such Agent or such Lender Party, as the case may be, and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. The indemnity by each of the
Guarantors provided for in this subsection (c) shall apply and be made whether
or not the Taxes or Other Taxes for which indemnification hereunder is sought
have been correctly or legally asserted; provided, however, that such Agent or
such Lender Party seeking such indemnification shall take all reasonable actions
(consistent with its internal policy and legal and regulatory restrictions)
requested by any of the Guarantors to assist the Guarantors in recovering the
amounts paid thereby pursuant to this subsection (c) from the relevant taxation
authority or other Governmental Authority. Amounts payable by any of the
Guarantors under the indemnity set forth in this subsection (c) shall be paid
within 30 days from the date on which the applicable Agent or Lender Party, as
the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor making such payment (or on whose behalf such payment was made) shall
furnish to the Administrative Agent, at its address referred to in Section 9,
the original or a certified copy of a receipt evidencing payment thereof, to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative Agent. In the case
of any payment under or in respect of this Guarantee or any of the other Loan
Documents by or on behalf of any of the Guarantors through an account or branch
outside the United States, or on behalf of such Guarantor by a payor that is not
a United States person, if such Guarantor determines that no Taxes are payable
in respect thereof, such Guarantor shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at its address referred to in
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Section 9, an opinion of counsel reasonably acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e) of this Section 5, the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each of the Lender Parties organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of the Credit Agreement in the case of each of the
Initial Lenders, the Swing Line Bank and the Initial Issuing Bank, and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party, and from time to time thereafter as reasonably requested in writing by
any of the Guarantors or the Administrative Agent (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of such
Guarantor and the Administrative Agent with two original Internal Revenue
Service forms ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY or, in the case of any of the Lender
Parties that is claiming exemption from United States withholding tax under
Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments
of "portfolio interest", form W-8BEN (and, if such Lender Party delivers a form
W-8BEN, a certificate representing that such Lender Party is not (i) a "bank"
for purposes of Section 881(c) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of any of the Guarantors or (iii) a controlled foreign corporation related
to any of the Guarantors (within the meaning of Section 864(d)(4) of the
Internal Revenue Code), as appropriate), or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to the Credit Agreement or the other Loan Documents or, in the
case of a Lender Party delivering a form W-8BEN, certifying that such Lender
Party is a foreign corporation, partnership, estate or trust. If the forms
referred to above in this subsection (e) that are provided by a Lender Party at
the time such Lender Party first becomes a party to the Credit Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate shall be considered
excluded from Taxes solely for the periods governed by such form. However, if,
at the date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to the Credit Agreement, the Lender Party assignor was entitled
to payments under subsection (a) of this Section 5 in respect of United States
withholding tax with respect to interest paid at such date, then, to such extent
(and only to such extent), the term "Taxes" shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to such Lender Party assignee on such date. None of the Lender Parties
shall be entitled to payment pursuant to subsection (a) or (c) of this Section 5
with respect to any additional Taxes that result solely and directly from a
change in either of the Applicable Lending Offices of such Lender Party (other
than any such additional Taxes that are imposed as a result of a change in the
applicable Requirements of Law, or in the interpretation of application thereof,
occurring after the date of such change), unless such change is made pursuant to
the terms of Section 2.10(e) or 2.13(g) of the Credit Agreement or as a result
of a request therefor by the Borrower or any of the Guarantors.
(f) For any period with respect to which any of the Lender Parties
has failed to provide any of the Guarantors, following such Guarantor's request
therefor pursuant to subsection (e) of this Section 5, with the appropriate
form, certificate or other document described in subsection (e) of this Section
5 (other than if such failure is due to a change in the applicable Requirements
of Law, or in the interpretation or application thereof, occurring after the
date on which a form, certificate or other document originally was required to
be provided or if such form otherwise is not required under subsection (e) of
this Section 5), such Lender Party shall not be entitled to indemnification
under subsection (a) or (c) of this Section 5 with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should any
of the Lender Parties become subject to Taxes because of
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its failure to deliver a form, certificate or other document required hereunder,
each of the Guarantors shall take such steps as such Lender Party shall
reasonably request to assist such Lender Party in recovering such Taxes.
SECTION 6. Representations and Warranties. Each of the Guarantors
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hereby represents and warrants as follows:
(a) Such Guarantor (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (ii) is
duly qualified and in good standing as a foreign business enterprise in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where failure to
be so qualified or licensed would not have a Material Adverse Effect, and (iii)
has all requisite power and authority (including, without limitation, all
Governmental Authorizations) to enter into the Loan Documents to which it is a
party and to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by each Guarantor of each
Loan Document to which it is or is to be a party, and the consummation of the
Transaction, are within such Guarantor's corporate, partnership or limited
liability company powers, have been duly authorized by all necessary action, and
do not (i) contravene such Guarantor's Constitutive Documents, (ii) violate any
Requirements of Law, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any material
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting such Guarantor or any of its properties or
(iv) except for the Liens created under the Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of such Guarantor. No Guarantor is in violation of any such
Requirements of Law or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation or
breach of which would be reasonably likely to have a Material Adverse Effect.
(c) No Governmental Authorization, and no other authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Guarantor of this Guarantee
or any other Loan Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Guarantor of the Liens
granted by it pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents (including the
first priority nature thereof) or (iv) the exercise by any Agent or any Lender
Party of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the filings and
recordations required to perfect the security interests granted under the
Collateral Documents to which such Grantor is a party.
(d) This Guarantee has been duly executed and delivered by each
Guarantor and is the legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
(e) There are no conditions precedent to the effectiveness of this
Guarantee that have not been satisfied or waived.
(f) Such Guarantor has, independently and without reliance upon the
Administrative Agent or any of the Lender Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guarantee and all of the other Loan Documents to
which it is a party, and such Guarantor has established adequate means of
obtaining
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from each of the other Loan Parties on a continuing basis information pertaining
to, and is now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, liabilities (actual or
contingent), properties or prospects of each of the other Loan Parties.
SECTION 7. Confirmation of Certain Provisions of the Loan Documents.
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Each of the Guarantors hereby confirms to the Administrative Agent and the
Lender Parties that each of the representations and warranties set forth in the
Loan Documents that is made by such Guarantor or on behalf of such Guarantor by
the Borrower is correct in all material respects. Each of the Guarantors hereby
confirms and agrees that, so long as any of the Advances or any of the other
Obligations of any Loan Party under or in respect of any of the Loan Documents
shall remain unpaid, any of the Letters of Credit shall remain outstanding or
any of the Lender Parties shall have any Commitment under the Credit Agreement,
such Guarantor will perform and observe, and cause each of its Subsidiaries to
perform and observe, all of the terms, covenants and agreements set forth in the
Loan Documents on its part to be performed or observed or that the Borrower has
agreed to cause such Guarantor to perform or observe.
SECTION 8. Amendments; Supplements, Etc. (a) No amendment or waiver of
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any provision of this Guarantee, nor consent to any departure by any of the
Guarantors therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and, in the case of amendments, by
the Guarantors, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lender Parties required to take such
action, affect the rights or duties of the Administrative Agent under this
Guarantee.
(b) Upon the execution and delivery by any Person of a supplement to
this Guarantee (whether pursuant to Section 5.01(j) of the Credit Agreement or
otherwise), in each case in substantially the form of Exhibit A hereto or
otherwise in form and substance reasonably satisfactory to the Lender Parties
(each a "Guarantee Supplement"), such Person shall be referred to as an
"Additional Guarantor" and shall be and become a Guarantor as if such Person had
originally been party hereto in such capacity, and each reference in this
Guarantee to an "Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to such Additional Guarantor and each reference in any of the other
Loan Documents to a "Guarantor" or a "Loan Party" shall also mean and be a
reference to such Additional Guarantor.
SECTION 9. Notices, Etc. All notices and other communications provided
------------------------
for hereunder shall be in writing (including telecopy communication) and mailed,
telecopied or delivered:
(a) if to any of the Guarantors, at the address of the Borrower set
forth in Section 8.02 of the Credit Agreement; and
(b) if to the Administrative Agent, at its address set forth in
Section 8.02 of the Credit Agreement; or
(c) as to any of the Guarantors or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to each
of the other Guarantors and Lender Parties and, as to each of the other parties,
at such other address as shall be designated by such party in a written notice
to each of the Guarantors and the Administrative Agent.
Notwithstanding any of the other provisions of this Guarantee or any of the
other Loan Documents to which any of the Guarantors is a party, any notice to
the Guarantors or to any of them required to be made under this Guarantee that
is delivered to the Borrower in accordance with Section 8.02 of the Credit
Agreement shall constitute effective notice to the Guarantors or to any such
Guarantor. All such notices and communications shall, be effective three
Business Days after deposit in the mail or upon transmission
9
by telecopier or delivery, respectively, addressed as aforesaid. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Guarantee shall be effective as delivery of an originally
executed counterpart thereof.
SECTION 10. No Waiver; Remedies. No failure on the part of the
--------------------------------
Administrative Agent or any of the Lender Parties to exercise, and no delay in
exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or consent thereto; nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by applicable law.
SECTION 11. Right of Setoff. Upon (a) the occurrence and during the
--------------------------
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of Section 6.01 of the Credit Agreement, each of the Lender
Parties and each of their respective affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set
off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender Party or such affiliate to or for the credit or the
account of any of the Guarantors against any and all of the Obligations of the
Guarantors now or hereafter existing under this Guarantee, if any, held by such
Lender Party, irrespective of whether such Lender Party shall have made any
demand under this Guarantee and although such obligations may be unmatured. Each
of the Lender Parties hereby agrees to notify the applicable Guarantor promptly
after any such setoff and application shall be made by such Lender Party or any
of its affiliates; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each of
the Lender Parties and each of their respective affiliates under this Section 11
are in addition to any other rights and remedies (including, without limitation,
any other rights of setoff) that such Lender Party and its affiliates may have.
SECTION 12. Indemnification. (a) Without limiting any of the other
---------------------------
Obligations of the Guarantors or any of the other remedies of the Lender Parties
under this Guarantee, each of the Guarantors hereby agrees to indemnify and hold
harmless the Administrative Agent and each of the Lender Parties from, and hold
each of them harmless against, any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses of
counsel), joint or several, that may be incurred by or asserted or awarded
against the Administrative Agent or such Lender Party in connection with or by
reason of the failure of any of the Guaranteed Obligations to be the legal,
valid and binding obligations of any of the Loan Parties intended to be
obligated therefor, enforceable against such Loan Party in accordance with its
terms.
(b) Each of the Guarantors hereby also severally agrees that none of
the Administrative Agent or any of the Lender Parties or any of their respective
affiliates or any of their respective officers, directors, employers, agents,
representatives or advisors (each an "Indemnified Party") shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of
the Guarantors or any of their respective Affiliates or their respective
officers, directors, stockholders, partners, members, employees, agents,
representatives or advisors, except to the extent, in the case of any such
Indemnified Party, that such claim is found in a final, nonappealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. Each of the Guarantors hereby
severally agrees not to assert any claim against any of the Indemnified Parties
on any theory of liability, for special, indirect, consequential or punitive
damages, arising out of or otherwise relating to the Transaction (or any aspect
thereof), the Facilities, the actual or proposed use of the proceeds of the
Advances or the Letters of Credit, the Loan Documents or any of the other
transactions contemplated thereby.
10
(c) Without prejudice to the survival of any other agreement of any
of the Guarantors under this Guarantee or any of the other Loan Documents, the
agreements and obligations of each of the Guarantors contained in Section 1(a)
(with respect to enforcement expenses), the last sentence of Section 2(a),
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this
Guarantee.
SECTION 13. Continuing Guarantee; Assignments under the Credit
---------------------------------------------------------------
Agreement. This Guarantee is a continuing guarantee and shall (a) remain in full
---------
force and effect until the latest of (i) the payment in full in cash of all of
the Guaranteed Obligations and all other amounts payable under this Guarantee
(other than inchoate indemnification and reimbursement Obligations), (ii) the
full drawing, expiration, termination or cancellation of all of the Letters of
Credit and (iii) the Termination Date, (b) be binding upon each of the
Guarantors, their respective successors and assigns and (c) inure to the benefit
of, and be enforceable by, the Administrative Agent and the Lender Parties and
their respective successors, transferees and assigns. Without limiting the
generality of clause (c) of the immediately preceding sentence, any of the
Lender Parties may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitment or Commitments, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all of the benefits in respect thereof granted to
such Lender Party under this Guarantee or otherwise, in each case as provided in
Section 8.07 of the Credit Agreement. None of the Guarantors shall, subject to
Section 14, have the right to assign its rights hereunder or any interest herein
without the prior written consent of all of the Lender Parties.
SECTION 14. Release of Guarantors. If any of the Guarantors shall
----------------------------------
cease to be a wholly owned Subsidiary of the Borrower in accordance with the
terms of the Credit Agreement and the other Loan Documents (including, without
limitation, in connection with a transaction permitted under Section 5.02(d),
5.02(e) or 5.02(m)(iii) of the Credit Agreement), such Guarantor shall,
automatically and without any further action on the part of any of the other
Loan Parties or the Administrative Agent or any of the Lender Parties, and upon
notice to the Administrative Agent, be fully released and discharged from all
its Obligations under or in respect of the Loan Documents to which such
Guarantor is a party and, upon the request of the Borrower, the Administrative
Agent shall, at the Borrower's sole expense, execute such documents and take
such other action as is reasonably requested by the Borrower to evidence the
release and discharge of such Guarantor from all such Obligations under or in
respect of the Loan Documents.
SECTION 15. Execution in Counterparts. This Guarantee may be executed
--------------------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Guarantee by
telecopier shall be effective as delivery of an originally executed counterpart
of this Guarantee.
SECTION 16. Governing Law; Jurisdiction; Etc. (a) This Guarantee
----------------------------------------------
shall be governed by, and construed in accordance with, the laws of the State of
New York.
(b) Each of the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property and assets, to the nonexclusive
jurisdiction of any New York state court or any federal court of the United
States of America sitting in New York City, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Guarantee or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment in respect thereof, and each of the
Guarantors hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York state court or, to the fullest extent permitted by applicable law, in
any such federal court. Each of the Guarantors
11
hereby irrevocably consents to the service of copies of any summons and
complaint and any other process which may be served in any such action or
proceeding by certified mail, return receipt requested, or by delivering a copy
of such process to such party, at its address specified in Section 9, or by any
other method permitted by applicable law. Each of the Guarantors hereby agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law. Nothing in this Guarantee shall affect any
right that any of the Guarantors, the Administrative Agent or any of the Lender
Parties may otherwise have to bring any action or proceeding relating to this
Guarantee or any of the other Loan Documents in the courts of any jurisdiction.
(c) Each of the Guarantors irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Guarantee or any of the other Loan Documents
to which it is a party in any New York state court or federal court. Each of the
Guarantors hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
[the remainder of this page intentionally left blank]
SECTION 17. WAIVER OF JURY TRIAL. EACH OF THE GUARANTORS BY THEIR
--------------------------------
EXECUTION HEREOF AND EACH OF THE LENDER PARTIES BY THEIR ACCEPTANCE OF THIS
GUARANTEE IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS GUARANTEE, ANY OF THE OTHER LOAN DOCUMENTS,
THE ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT
OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee
to be duly executed and delivered by its officer thereunto duly authorized, as
of the date first above written.
DAVITA INC.
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
on behalf of each of the
entities listed on
Appendix A attached
hereto
S-2
TOTAL RENAL CARE, INC., on behalf
of each of the entities listed on
Appendix B attached hereto
By________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-3
TRC WEST, INC
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇-▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, INC., on behalf of
each of the entities listed on
Appendix C attached hereto
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-5
EXHIBIT A TO THE
SUBSIDIARY GUARANTEE
--------------------
FORM OF GUARANTEE SUPPLEMENT
[Date of Guarantee Supplement]
Bank of America, N.A.,
(as the Administrative Agent under
the Credit Agreement referred to below)
Independence Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Credit Services
Credit Agreement dated as of May 3, 2001 (as in effect on the date hereof, the
------------------------------------------------------------------------------
"Credit Agreement") among DaVita Inc. with the banks, financial institutions and
--------------------------------------------------------------------------------
other institutional lenders from time to time party thereto, Bank of America,
-----------------------------------------------------------------------------
N.A. ("BofA"), as the Initial Issuing Bank and Swing Line Bank thereunder, The
------------------------------------------------------------------------------
Bank of New York ("BONY"), as Issuing Bank thereunder, Credit Suisse First
--------------------------------------------------------------------------
Boston Corporation ("CSFB"), as the Syndication Agent therefor, Banc of America
-------------------------------------------------------------------------------
Securities LLC and CSFB, as the Joint Lead Arrangers and Joint Book Managers
----------------------------------------------------------------------------
therefor, BONY, Bank of Nova Scotia, SunTrust Bank Nashville, Inc., as
----------------------------------------------------------------------
Documentation Agents therefor, and BofA as the Administrative Agent for the
---------------------------------------------------------------------------
Lender Parties thereunder
-------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Subsidiary Guarantee referred to therein (such Subsidiary Guarantee, as in
effect on the date hereof and as it may be further amended, supplemented or
otherwise modified hereafter from time to time, the "Guarantee"). Capitalized
terms not otherwise defined in this Guarantee Supplement shall have the same
meanings as specified therefor in the Credit Agreement or the Guarantee.
SECTION 1. Guarantee; Limitation of Liability. (a) The undersigned
----------------------------------
hereby unconditionally and irrevocably guarantees on a joint and several basis
with the other Guarantors the punctual payment when due, whether at scheduled
maturity or at a date fixed for prepayment or by acceleration, demand or
otherwise, of all of the Obligations of the Borrower now or hereafter existing
under or in respect of the Loan Documents (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premium, fees, indemnification
payments, contract causes of action, costs, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or any of the Lender Parties in
enforcing any rights under this Guarantee Supplement or the Guarantee, on the
terms and subject to the limitations set forth in the Guarantee, as if it were
an original party thereto. Without limiting the generality of the foregoing, the
undersigned's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any of the other Loan Parties to the
Administrative Agent or any of the Lender Parties under or in respect of the
Loan Documents but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
(b) The undersigned, and by their acceptance of this Guarantee
Supplement, the Administrative Agent and each of the Lender Parties, hereby
confirm that it is the intention of all such Persons that this Guarantee
Supplement, the Guarantee and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for purposes of
the United States Federal Bankruptcy Code, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state
Requirements of Law covering the protection of creditors' rights or the relief
of debtors to the extent applicable to this Guarantee Supplement, the Guarantee
and the Obligations of the undersigned hereunder and thereunder. To effectuate
the foregoing intention, the undersigned, the Administrative Agent and each of
the Lender Parties hereby irrevocably agree that the Guaranteed Obligations and
all of the other liabilities of the undersigned under this Guarantee Supplement
and the Guarantee shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all of the other contingent and fixed
liabilities of the undersigned that are relevant under such Requirements of Law,
and after giving effect to any collections from, any rights to receive
contributions from, or any payments made by or on behalf of, any of the other
Guarantors in respect of the Obligations of such other Guarantor under the
Guarantee, result in the Guaranteed Obligations and all of the other liabilities
of the undersigned under this Guarantee Supplement and the Guarantee not
constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees
that, in the event any payment shall be required to be made to the Lender
Parties under this Guarantee Supplement, the Guarantee or any other guarantee,
the undersigned will contribute, to the fullest extent permitted by applicable
law, such amounts to each of the other Guarantors and each other guarantor so as
to maximize the aggregate amount paid to the Lender Parties under or in respect
of the Loan Documents.
SECTION 2. Obligations Under the Guarantee. The undersigned hereby
-------------------------------
agrees, as of the date first above written, to be bound as a Guarantor by all of
the terms and conditions of the Guarantee to the same extent as each of the
other Guarantors. The undersigned further agrees, as of the date first above
written, that each reference in the Guarantee to an "Additional Guarantor" or a
"Guarantor" shall also mean and be a reference to the undersigned, and each
reference in any other Loan Document to a "Guarantor" or a "Loan Party" shall
also mean and be a reference to the undersigned.
SECTION 3. Governing Law; Jurisdiction; Etc. (a) This Guarantee
--------------------------------
Supplement shall be governed by, and construed in accordance with, the laws of
the State of New York.
(b) The undersigned hereby irrevocably and unconditionally submits,
for itself and its property and assets, to the nonexclusive jurisdiction of any
New York state court or any federal court of the United States of America
sitting in New York City, New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guarantee
Supplement, the Guarantee or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment in respect thereof, and
the undersigned hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York state court or, to the fullest extent permitted by applicable law, in
any such federal court. The undersigned hereby irrevocably consents to the
service of copies of any summons and complaint and any other process which may
be served in any such action or proceeding by certified mail, return receipt
requested, or by delivering a copy of such process to such party, at its address
set forth below its name on the signature page to this Guarantee Supplement, or
by any other method permitted by applicable law. The undersigned hereby agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law. Nothing in this Guarantee Supplement or the
Guarantee shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guarantee Supplement, the Guarantee or any
of the other Loan Documents in the courts of any jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any action or proceeding arising
out of or relating to this Guarantee Supplement or any of the other Loan
Documents to which it is a party in any New York state court or federal court.
The undersigned hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
SECTION 4. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY WAIVES
--------------------
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
GUARANTEE SUPPLEMENT, THE GUARANTEE, ANY OF THE OTHER LOAN DOCUMENTS, ANY
DOCUMENTS DELIVERED PURSUANT TO THE LOAN DOCUMENTS, THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY OR THE ACTIONS OF ANY OF THE ADMINISTRATIVE AGENT
OR ANY OF THE OTHER LENDER PARTIES IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By _______________________________
Name:
Title:
Address:
Appendix A to the
Subsidiary Guarantee
▇▇▇▇▇▇▇ 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.
▇▇▇▇▇-▇▇▇▇▇ Dialysis Facilities, Inc.
Open Access Sonography, Inc.
Peninsula Dialysis Center, Inc.
Renal Treatment Centers, Inc.
Renal Treatment Centers - California, Inc.
Renal Treatment Centers - Hawaii, Inc.
Renal Treatment Centers - Illinois, 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 - Texas Acquisition, Inc.
RTC TN, Inc.
Total Acute Kidney Care, Inc.
Total Renal Care, Inc.
Total Renal Care of Colorado, Inc.
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.
Appendix B to the
Subsidiary Guarantee
▇▇▇▇▇▇▇ Hills Dialysis Partnership
Houston Kidney Center/Total Renal Care Integrated Service Network Limited
Partnership
Sunrise Dialysis Partnership
Total Renal Care/▇▇▇▇▇▇▇ 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
APPENDIX C TO THE
SUBSIDIARY GUARANTEE
MHS-I, LLC
MHS-III, LLC
MHS-IV, LLC
MHS-V, LLC
MHS-VI, LLC
MHS-VII, LLC
MHS-VIII, LLC
MHS-IX, LLC
MHS-X, LLC
MHS-XI, LLC
MHS-XII, LLC