Exhibit 10.4
--------------------------------------------------------------------------------
SUBSIDIARY GUARANTEE
Dated April 26, 2002
made by
EACH OF THE SUBSIDIARIES OF DAVITA INC.
LISTED ON THE SIGNATURE PAGES HEREOF,
as Guarantors,
--------------
in favor of
THE LENDER PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
--------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. Guarantee; Limitation of Liability ............................ 1
SECTION 2. Guarantee Absolute ............................................ 2
SECTION 3. Waivers and Acknowledgments ................................... 4
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 Finance Documents ... 8
SECTION 8. Amendments; Supplements, Etc .................................. 8
SECTION 9. Notices, Etc .................................................. 9
SECTION 10. No Waiver; Remedies ........................................... 9
SECTION 11. Right of Setoff ............................................... 9
SECTION 12. Indemnification ............................................... 10
SECTION 13. Continuing Guarantee; Assignments under the Credit Agreement .. 10
SECTION 14. Release of Guarantors ......................................... 11
SECTION 15. Execution in Counterparts ..................................... 11
SECTION 16. Governing Law; Jurisdiction; Etc. ............................. 11
SECTION 17. WAIVER OF JURY TRIAL .......................................... 1
EXHIBIT
-------
Exhibit A - Form of Guarantee Supplement
APPENDICES
----------
Appendix A
Appendix B
SUBSIDIARY GUARANTEE
GUARANTEE dated April 26, 2002 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 Guaranteed Parties
(as defined below).
PRELIMINARY STATEMENTS
(1) DaVita Inc., a Delaware corporation (the "Borrower"), has entered into
a Credit Agreement dated as of May 3, 2001 (as amended) with the banks,
financial institutions and other institutional lenders party thereto, Bank of
America, N.A. ("BofA") as administrative agent for the lender parties thereunder
(the "Existing Credit Agreement").
(2) The Borrower proposes to terminate the Existing Credit Agreement with
advances made pursuant to a Credit Agreement dated as of April 26, 2002 (as
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among the Borrower, the banks, financial institutions and
other institutional lenders from time to time party thereto, BofA, as the
Syndication Agent, Credit Suisse First Boston, Cayman Islands Branch ("CSFB")
and Banc of America Securities LLC ("BAS"), as the Book Managers, The Bank of
New York, The Bank of Nova Scotia and Wachovia Bank, National Association, as
Documentation Agents, and CSFB 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.
(3) The Borrower may from time to time hereafter enter into Hedge
Agreements with the Hedge Banks to the extent such Hedge Agreements are
expressly permitted under Section 5.02(b)(iii) of the Credit Agreement
(collectively the "Guaranteed Hedge Agreements").
(4) It is a condition precedent to the effectiveness of the Credit
Agreement that each of the Guarantors shall have executed and delivered this
Guarantee. Collectively, the Administrative Agent, the Lender Parties and the
Hedge Banks are referred to in this Guarantee as the "Guaranteed Parties" and
the Loan Documents and the Guaranteed Hedge Agreements are collectively referred
to as the "Finance Documents."
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lenders to make Advances, the Issuing Bank to issue Letters of Credit from time
to time under the Credit Agreement and the Hedge Banks to enter into the Hedge
Agreements, each of the Guarantors hereby agrees as follows:
SECTION 1. Guarantee; Limitation of Liability. (a) Each of the 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 Finance
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
2
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or any of the Guaranteed 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 Guaranteed
Parties under or in respect of the Finance 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.
(a) Each of the Guarantors, and by its acceptance of this Guarantee, the
Administrative Agent and each of the Guaranteed 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 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 Guaranteed 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.
(b) Each of the Guarantors hereby unconditionally and irrevocably agrees
that, in the event any payment shall be required to be made to the Guaranteed
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 Guaranteed Parties under or in respect of the
Finance Documents.
SECTION 2. Guarantee Absolute. (a) Each of the Guarantors jointly and
-----------------
severally guarantees that all of the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Finance 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
Guaranteed 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 Finance 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 Finance
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
Finance Documents, or any other amendment or waiver of or any consent to
departure from any of the Finance Documents (including, without limitation,
any
3
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 the Finance 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 Guaranteed 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 Guaranteed 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 Guaranteed
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
Guaranteed 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 Guaranteed 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 Guaranteed
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 Guaranteed
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
4
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 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 Guaranteed 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.
(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 Guaranteed 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 Guaranteed
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 Guaranteed 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
Finance 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 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 Finance 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 Guaranteed 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, all of the Guaranteed
Hedge Agreements shall have expired or been terminated 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
5
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, (c) the expiration
or termination of all of the Guaranteed Hedge Agreements and (d) the Termination
Date for all of the Facilities, such amount shall be received and held in trust
for the benefit of the Administrative Agent and the Guaranteed 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 Finance
Documents, or to be held in escrow (in an account to be established at CSFB, 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 CSFB'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) 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, (iv) all of the Guaranteed Hedge
Agreements shall have expired or been terminated and (v) the Termination Date
for all of the Facilities shall have occurred, the Administrative Agent and
Guaranteed 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 payments
--------------------------------------
by any of the Guarantors under or in respect of this Guarantee or any of the
other Finance 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 Finance Documents to which such Guarantor is a
party to any of the Agents or any of the Guaranteed 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 Guaranteed 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 Guaranteed 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 Guaranteed 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 Guaranteed Party seeking such indemnification shall take all
reasonable actions (consistent with its internal policy and
6
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 Guaranteed 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 Finance 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 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 Guaranteed Parties organized under the laws of a
jurisdiction outside the United States shall, (x) 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, (y) on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party, in the case of each of the other Lender Parties and (z) in the case of
the Hedge Banks, on the date of each Guaranteed Hedge Agreement to which it
becomes 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 Guaranteed
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 Guaranteed Party delivers a
form W-8BEN, a certificate representing that such Guaranteed 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
Finance Documents or, in the case of a Guaranteed Party delivering a form
W-8BEN, certifying that such Guaranteed 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 this 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, on the date of the Assignment and Assumption
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) of this Section
2.13 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.
If any of the forms,
7
certificates or other documents referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or the related certificate described above), that
a Lender Party reasonably considers to be confidential, such Lender Party shall
give notice thereof to the Borrower and the Administrative Agent and shall not
be obligated to include in such form, certificate or document such confidential
information. 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 Guaranteed 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 Guaranteed Parties become subject to Taxes because of its failure to
deliver a form, certificate or other document required hereunder, each of the
Guarantors shall take such steps as such Guaranteed Party shall reasonably
request to assist such Guaranteed Party in recovering such Taxes.
SECTION 6. Representations and Warranties. Each of the Guarantors 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 Finance 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 Finance 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.
8
(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 Guaranteed Party of its
rights under the Finance 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 Guaranteed 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 Finance
Documents to which it is a party, and such Guarantor has established adequate
means of obtaining 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 Finance Documents.
-----------------------------------------------------------
Each of the Guarantors hereby confirms to the Administrative Agent and the
Guaranteed Parties that each of the representations and warranties set forth in
the Finance 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
Finance 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 or any of the Guaranteed Hedge Agreements shall remain in
effect, 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 Finance 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 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"
9
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 Finance 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;
(c) if to any of the Hedge Banks, at its address set forth in the
Guaranteed Hedge Agreement to which it is party (a copy of which Guaranteed
Hedge Agreement shall have been provided to the Administrative Agent); or
(d) 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 Guaranteed 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 Finance 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 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
Guaranteed 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 Guaranteed 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 Guaranteed Party, irrespective of whether such Guaranteed Party shall
have made any demand under this Guarantee and although such obligations may be
unmatured. Each of the Guaranteed Parties hereby agrees to notify the applicable
Guarantor promptly after any such setoff and application
10
shall be made by such Guaranteed 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 Guaranteed 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 Guaranteed 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 Guaranteed
Parties under this Guarantee, each of the Guarantors hereby agrees to indemnify
and hold harmless the Administrative Agent and each of the Guaranteed 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 Guaranteed 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 Guaranteed 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 Finance Documents or any of the other
transactions contemplated thereby.
(c) Without prejudice to the survival of any other agreement of any of the
Guarantors under this Guarantee or any of the other Finance 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, (iii) the expiration or termination of all of the Guaranteed Hedge
Agreements and (iv) 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 Guaranteed 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.
11
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 Finance 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 Guaranteed Parties, and upon notice to the
Administrative Agent and the Hedge Banks, be fully released and discharged from
all its Obligations under or in respect of the Finance 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 Finance 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 Finance 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 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 Guaranteed Parties may otherwise have to bring any action or
proceeding relating to this Guarantee or any of the other Finance 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 Finance 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.
12
[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 GUARANTEED 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 FINANCE DOCUMENTS, THE ADVANCES,
THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
GUARANTEED 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
S-4
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 - 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
DaVita - West, LLC
Houston Kidney Center/Total Renal Care Integrated Service Network
Limited Partnership
Nephrology Medical Associates of Georgia, LLC
Renal Treatment Centers - Southeast, LP
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
EXHIBIT A TO THE
SUBSIDIARY GUARANTEE
FORM OF GUARANTEE SUPPLEMENT
[Date of Guarantee Supplement]
Credit Suisse First Boston
(as the Administrative Agent
under the Credit Agreement referred to below)
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Credit Agreement dated as of April 26, 2002 (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, Credit Suisse
First Boston, Cayman Islands Branch ("CSFB"), as the Swing Line Bank thereunder,
Bank of America, N.A. ("BofA"), as the Syndication Agent therefor, CSFB and Banc
of America Securities LLC, as the Joint Lead Arrangers and Joint Book Managers
therefor, The Bank of New York, The Bank of Nova Scotia and Wachovia Bank,
National Association, as Documentation Agents therefor, and CSFB 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 Finance 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 Guaranteed 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 Guaranteed Parties under or in respect of the
Finance 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 Guaranteed 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
Guaranteed 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 Guaranteed 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 Guaranteed Parties under or in respect
of the Finance 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 Finance 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 Finance 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 Finance 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 FINANCE DOCUMENTS, ANY DOCUMENTS
DELIVERED PURSUANT TO THE FINANCE DOCUMENTS, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY OR THE ACTIONS OF ANY OF THE ADMINISTRATIVE AGENT OR ANY OF
THE OTHER GUARANTEED PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By
-----------------------------------------
Name:
Title:
Address: