GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 13th day of August,
1999, by and among each of OPTICARE HEALTH SYSTEMS, INC., a Delaware corporation
(the "Parent"), OPTICARE EYE HEALTH CENTERS, INC., a Connecticut corporation
("Opticare"), PRIMEVISION HEALTH, INC., a Delaware corporation ("PVH"),
CONSOLIDATED EYE CARE, INC., a North Carolina corporation ("CEC" and, together
with Opticare and PVH, the "Borrowers"), and each of the other subsidiaries and
affiliates of the Parent and the Borrowers parties listed on the signature pages
hereto (collectively, and together with the Parent and the Borrowers, the
"Guarantors" and each, a "Guarantor"), in favor of THE Lenders and the LC Issuer
referred to below, and BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC., in
its capacity as agent for the Lenders and the LC Issuer (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, the Borrowers and the Parent are parties to that certain
Amended and Restated Loan and Security Agreement, dated as of even date herewith
(as the same may be further amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement"), with the financial
institutions from time to time party thereto (the "Lenders"), Bank Austria, AG,
as LC Issuer (in such capacity, the "LC Issuer") and the Agent, pursuant to
which, among other things, and subject to the terms and conditions contained
therein, the Lenders will make available to the Borrowers term loans in an
aggregate original principal amount of Twenty One Million Five Hundred Thousand
($21,500,000) and a revolving credit facility providing for revolving loans of
up to Twelve Million Seven Hundred Thousand Dollars ($12,700,000) (collectively,
the "Loans"); and
WHEREAS, as a condition to their entry into the Loan Agreement and to
the making of the Loans and other extensions of credit thereunder, the Lenders,
the LC Issuer and the Agent have required that each of the Guarantors enter into
this Guaranty; and
WHEREAS, the Borrowers desire to obtain the Loan and/or other
extensions of credit under the Loan Agreement, and each of the Guarantors has
determined that it is and will be in the best interest and to the direct
advantage of such Guarantor to assist the Borrowers in borrowing money and
obtaining other extensions of credit from the Lenders and the LC Issuer in order
to further the business of the Guarantors, and each Guarantor has therefore
agreed to make and execute this Guaranty in favor of the Agent, the LC Issuer
and the Lenders to induce them to enter into the Loan Agreement and to extend to
the Borrowers the credit contemplated thereby;
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, each Guarantor hereby
agrees with the Agent, the
LC Issuer and the Lenders as follows:
1. DEFINITIONS
All capitalized terms used herein without definition shall have the
respective meanings given to such terms in the Loan Agreement.
2. GUARANTY
2.1. CONTINUING GUARANTY OF PAYMENT. In consideration of the Loans and
other extensions of credit now and hereafter made by the Lenders, the LC Issuer
and the Agent, each Guarantor, jointly and severally, hereby irrevocably,
absolutely and unconditionally guarantees to the Lenders, the LC Issuer and the
Agent the prompt and complete payment when due of (a) all of the obligations of
each Guarantor under this Guaranty and under the other Loan Documents to which
such Guarantor is a party; (b) all "Obligations" of the Borrowers, and each of
them, under and as such term is defined in the Loan Agreement, whether for
principal, interest (including interest accruing after the commencement of any
proceeding under any bankruptcy or insolvency law of any jurisdiction with
respect to any Borrower, whether or not allowable as a claim thereunder),
premium (if any), contingent and fixed liabilities with respect to letters of
credit, expenses, fees, indemnities, commissions, reimbursements, charges,
penalties and other liabilities or amounts payable thereunder or with respect
thereto; and (c) all other indebtedness, liabilities and obligations of each
Guarantor to the Agent, the LC Issuer and the Lenders, or any of them, of every
kind and description, whether direct, indirect or contingent, now or hereafter
existing, due or to become due, whether otherwise secured or unsecured and
howsoever evidenced, incurred or arising under or in connection with this
Agreement, the Loan Agreement or any other Loan Document (collectively, the
"Guaranteed Obligations"). For purposes of this Guaranty, the Guaranteed
Obligations shall be due on the earliest of:
(i) the due date thereof (by acceleration or otherwise);
(ii) with respect to any obligation due on demand, upon demand
therefor made by the Lenders, the LC Issuer and the Agent, or any of
them, upon any of the Borrowers or any of the Guarantors;
(iii) the giving of notice by the Lenders and the Agent to any
Borrower or any Guarantor of the occurrence of any default by any
Guarantor hereunder (including any material misrepresentation by any
such Guarantor made herein or in connection herewith) or any Event of
Default; or
(iv) the commencement of any bankruptcy, insolvency or similar
proceeding brought by or against any Borrower or any Guarantor and, in
the case of any such proceeding instituted against any Borrower or any
Guarantor, either such Borrower or such Guarantor consents to such
proceeding, an order granting the relief requested in such
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proceeding is entered or such proceedings continues unstayed and
undismissed for a period of 60 days.
This is a guaranty of payment rather than of collection; this is also a
continuing guaranty and all liabilities to which this Guaranty applies, or may
apply, under the terms hereof shall be presumed to have been created in reliance
hereon.
2.2. NATURE OF OBLIGATIONS. The obligations of each Guarantor to make
payment to the Lenders, the LC Issuer and the Agent, or any of them, hereunder
are direct and primary obligations which shall not be discharged for any reason
until the Commitments under the Loan Agreement have been terminated and the
Guaranteed Obligations have been paid in full. Without limiting the generality
of the foregoing, the obligations of each Guarantor hereunder shall remain in
force irrespective of:
(a) any invalidity, illegality or unenforceability of, or any
defect in, any of the Loan Documents or the Guaranteed Obligations or
any defense which any Borrower, any Guarantor or any of their
respective Subsidiaries may have with respect thereto;
(b) the existence or absence of any legal action to enforce
the Guaranteed Obligations or the Loan Documents or any security
therefor, the issuance of any judgment therefor or the execution of any
such judgment; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a guarantor or surety of any
type.
This Guaranty is several and independent of, and may be enforced
regardless of, any other obligation (direct or contingent) of any Guarantor or
any other Person with respect to the Guaranteed Obligations.
2.3. MAXIMUM GUARANTEED AMOUNT. Anything in this Guaranty or in any
other Loan Document to the contrary notwithstanding, in any action or proceeding
involving any state corporate law or any state or federal bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Guarantor hereunder would otherwise be held
or determined to be void, invalid or unenforceable on account of the amount of
its liability hereunder, then notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by such
Guarantor or any other Person, be automatically limited and reduced to the
highest amount which is valid and enforceable as determined in such action or
proceeding.
2.4. PAYMENTS. All payments required hereunder shall be payable in
Dollars. Each such payment shall be made to the Lenders, the LC Issuer or the
Agent, as applicable, without set-off or counterclaim and in freely transferable
and immediately available funds at such place as the Agent may direct and for
the account of the Lenders, the LC Issuer or the Agent, as applicable, and
shall:
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(a) be exempt from, and be made without reduction by reason
of, any Taxes; or
(b) to the extent that any such payment shall be subject to
any Taxes, be accompanied by an additional payment by the Guarantors
of such amount as may be necessary so that the net amount realized by
any such Lender, the LC Issuer or the Agent, as applicable (after
taking into account all applicable Taxes) is the same as such Person
would have realized had such payment not been subject to such Taxes.
"Taxes" shall mean and include any and all present or future taxes,
levies, imposts, deductions, charges or withholding, and all liabilities with
respect thereto excluding, (i) income and franchise taxes imposed by the
jurisdiction under the laws of which such Lender, the LC Issuer or the Agent,
as applicable, is organized or is or should be qualified to do business or any
political subdivision thereof and (ii) income and franchise taxes imposed by
the jurisdiction of the Lender's Office or any political subdivision thereof. A
certificate of such Lender, the LC Issuer or the Agent, as applicable, as to
additional amounts due under this Section 2.4 shall be conclusive absent
manifest error. Upon any payment of Taxes by any Guarantor, such Guarantor
shall promptly (and in any event within thirty (30) days) furnish to any such
Person such tax receipts, certificates and other evidence of such payment as
such Guarantor may have or such Lender, the LC Issuer or the Agent may
reasonably request.
3. SUBORDINATION AND INDEMNITY
3.1. SUBORDINATION. Subject to the next following sentence of this
Section 3.1:
(a) all claims of any Guarantor against any Borrower or any
other Guarantor shall be subject and subordinate to the prior payment
to the Lenders, the LC Issuer and the Agent of all Guaranteed
Obligations and all obligations of each Guarantor hereunder; and
(b) no Guarantor shall be entitled to receive any payment or
exercise any set-off in respect of any such claim described in Section
3.1(a) above and, to the extent any such payment is received (whether
directly, by way of dividend in bankruptcy, set-off or otherwise),
such Guarantor will forthwith deliver the same (or the value thereof)
to the Agent, for the benefit of the Lenders, the LC Issuer and the
Agent, in precisely the form received (except for endorsement or
assignment where necessary), for application to the Guaranteed
Obligations and, until so delivered, the same shall be held in trust
as the property of the Lenders, the LC Issuer and the Agent.
Notwithstanding the foregoing, until the occurrence of any default or
Event of Default under this Guaranty, the Loan Agreement or any of the other
Loan Documents, each Guarantor may receive and retain payment in respect of any
obligation owed to it by any Borrower or any other Guarantor. If any Guarantor
fails to make any necessary endorsement or assignment on any instrument of
payment to which the Lenders, the LC Issuer and the Agent, or any of them, is
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entitled, the Agent and any of its officers or employees are hereby irrevocably
authorized to make the same on behalf of such Guarantor.
3.2. OTHER WAIVERS. Except to the extent required by law and to the
extent that such requirement cannot be waived, each Guarantor waives notice of
acceptance of this Guaranty and notice of any liability to which it may apply,
and waives diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking other action or
making any demand by the Lenders, the LC Issuer and the Agent, or any of them,
against, and any other notice to, any party liable thereon. Each Guarantor
agrees that the Lenders, the LC Issuer and the Agent, or any of them, may at
any time and from time to time, upon or without any terms or conditions and in
whole or in part (a) change the manner, place or terms of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any of the terms thereof, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and this Guaranty shall
apply to the Guaranteed Obligations so changed, extended, renewed or altered,
(b) fail to record, perfect or protect, or sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order, any
property or Person whatsoever at any time securing or guaranteeing the
Guaranteed Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against, (c) exercise or refrain from exercising any rights against any
Borrower, any Guarantor or any other Person, or otherwise act or refrain from
acting, (d) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part of the Guaranteed Obligations to the payment of any
other liability (whether due or not) of the Borrowers, or any of them, to the
creditors of such Borrowers or Borrower, (including the Lenders, the LC Issuer
and the Agent, or any of them), (e) apply any sum by whomsoever paid or
howsoever realized to any liability or liabilities of the Borrowers, or any of
them, to the Lenders, the LC Issuer and the Agent, or any of them, regardless
of what liability or liabilities of the Borrowers, or any of them, remain
unpaid, (f) consent to or waive any breach of, or any act, omission or default
under, or modify, supplement or amend any provision of, any of the Loan
Documents, (g) increase the amount of indebtedness of the Borrowers, or any of
them, to the Lenders, the LC Issuer and the Agent, or any of them, whether
under the Loan Documents or otherwise, (h) release or compromise with any other
Person obligated on the Guaranteed Obligations, or any portion thereof, without
releasing the Guarantors hereunder, (i) take any other act which injures or
increases the risk to which the Guarantors are exposed hereunder. It is
understood and agreed that the Lenders, the LC Issuer and/or the Agent may take
any such action, without the consent of, or notice to, any Guarantor, without
incurring responsibility or liability to any Guarantor, and without impairing
or releasing the obligations of the Guarantors, or any of them, hereunder. Each
Guarantor further (x) waives any right to demand that Lenders, the LC Issuer
and the Agent, or any of them, deliver any evidence of the Guaranteed
Obligations, or any security therefor, to such Guarantor upon tender of the
Guaranteed Obligations by such Guarantor, or (2) to require Lenders, the LC
Issuer and the Agent, or any of them, to proceed to collect the Guaranteed
Obligations from the Borrowers or any other Person liable thereon upon and (y)
agrees that the obligations of each Guarantor hereunder shall not be impaired
or released by reason of any failure by the Lenders, the LC Issuer and the
Agent, or any of them, to comply with any such provision.
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3.3. NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Lenders, the LC Issuer or the Agent, no Guarantor shall be entitled to be
subrogated to any of the rights of the Lenders, the LC Issuer and the Agent, or
any of them, against any Borrower, any other Guarantor or any collateral
security or guarantee or right of offset held by any Lender, the LC Issuer or
the Agent for the payment of the Guaranteed Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from
any Borrower or any other Guarantor in respect of payments made by such
Guarantor hereunder, until all amounts owing to the Lenders, the LC Issuer and
the Agent by the Borrowers, and each of them, on account of the Guaranteed
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the Lenders, the LC
Issuer and the Agent, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Agent, if required), to be applied against the Guaranteed Obligations, whether
matured or unmatured, in such order as the Lenders, the LC Issuer and the Agent
may determine.
3.4. REINSTATEMENT. This Guaranty shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned by the Lenders, the LC Issuer and the Agent, or any of them, upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or custodian, trustee or similar
officer for, any Borrower or any Guarantor or any part of their respective
property, or otherwise, all as though such payments had not been made.
3.5. INTEREST. If any Guarantor fails to pay when due to the extent
permitted by law, any obligation hereunder, then, to the extent permitted by
law, such obligation shall bear interest, payable on demand, from the due date
thereof until paid (after as well as before judgment) at a rate per annum equal
to two and three-quarters (2 3/4%) in excess of the Base Rate from time to time
in effect.
4. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby makes the following representations and
warranties to the Lenders, the LC Issuer and the Agent, which shall be true and
correct in all material respects on the date hereof and shall continue to be
true and correct at the time of the making of any Loan and until the
Commitments have been terminated and the Guaranteed Obligations have been
repaid in full (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be true in
all material respects as of such date):
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4.1. CORPORATE EXISTENCE AND QUALIFICATION. Each Guarantor is a
corporation duly organized validly existing and in good standing under the laws
of its state of organization and is duly qualified as either a foreign
corporation in good standing in each other state wherein the conduct of its
business or the ownership of its property requires such qualification and where
the failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect.
4.2. AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each
Guarantor has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance
of this Guaranty and each of the other Loan Documents to which it is a party in
accordance with their respective terms. This Guaranty and each of the other
Loan Documents have been duly executed and delivered by the duly authorized
officers of each Guaranty party thereto, and constitute the legal, valid and
binding obligation of such Guarantor, enforceable in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debtor
relief laws from time to time in effect which affect the enforcement of
creditors' rights in general and the availability of equitable remedies.
4.3. COMPLIANCE OF GUARANTY, LOAN DOCUMENTS WITH LAWS, ETC. The
execution, delivery and performance by each Guarantor of the Guaranty and the
other Loan Documents to which each such Guarantor is a party, in accordance
with their respective terms, and the transactions contemplated hereby, do not
and will not, by the passage of time, the giving of notice or otherwise, (a)
require any Governmental Approval or violate any Applicable Law relating to any
Guarantor, (b) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws, articles of organization,
operating agreement or other organizational documents of any such Guarantor or
any indenture, agreement or other instrument to which such Guarantor is a party
or by which any of its properties may be bound or any Governmental Approval
relating to such Guarantor, or (c) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Guarantor other than Liens arising under the Loan
Documents.
4.4. COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Except as described
in the Loan Agreement, each Guarantor and each of their respective Subsidiaries
(a) has all Governmental Approvals required by any Applicable Law for it to
conduct its business, each of which is in full force and effect, is final and
not subject to review on appeal and is not the subject of any pending or, to
the best of its knowledge, threatened attack by direct or collateral
proceeding, and (b) is in compliance with each Governmental Approval applicable
to it and in compliance with all other Applicable Laws relating to it or any of
its respective properties.
4.5. SOLVENCY. Giving effect to the execution and delivery of this
Guaranty and the other Loan Documents to which it is a party, each Guarantor
(a) has capital sufficient to carry on its respective business and transactions
and all respective business and transactions in which it is about to engage,
(b) is able to pay its respective debts as they mature and (c) owns property
whose fair saleable value is greater than the amount required to pay its
respective debts.
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4.6. REGULATORY MATTERS. No Guarantor is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Federal Power Act, the Interstate Commerce
Act or any other federal or state statue or regulation which materially limits
its ability to incur indebtedness or its ability to consummate the transactions
contemplated hereby.
4.7. REPRESENTATIONS AND WARRANTIES IN LOAN AGREEMENT. Each of the
representations and warranties set forth in the Loan Agreement is true and
correct to the extent such representation and warranty pertains to such
Guarantor and all such representations and warranties are, to the extent
pertaining to each Guarantor, hereby incorporated herein and made a part hereof
by this reference with the same force and effect as if set forth herein in
full.
5. MISCELLANEOUS
5.1. REMEDIES CUMULATIVE; WAIVER. Each and every right and remedy
granted to the Lenders, the LC Issuer and the Agent under this Guaranty, or any
other document delivered hereunder or in connection herewith or allowed it by
law or in equity, shall be cumulative and may be exercised from time to time.
The Lenders, the LC Issuer and the Agent shall not, by any act (except by a
written instrument pursuant to Section 5.8 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any breach of any of the terms and conditions hereof. No failure
on the part of the Lenders, the LC Issuer and the Agent, or any of them, to
exercise, and no delay in exercising, any right or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by the Lenders, the LC
Issuer and the Agent, or any of them, of any right or remedy preclude any other
or future exercise thereof or the exercise of any other right or remedy. No
waiver by the Lenders and the Agent of any Event of Default shall constitute a
waiver of any subsequent Event of Default.
5.2. SURVIVAL. All representations, warranties and covenants made
herein shall survive the execution and delivery of all of the Loan Documents.
The terms and provisions of this Guaranty shall continue in full force and
effect until all of the Guaranteed Obligations have been paid in full and the
Lenders, the LC Issuer and the Agent have terminated this Guaranty in writing,
whichever last occurs; provided, further, that each Guarantor's obligations
under Section 5.5 hereof shall survive the repayment of the Guaranteed
Obligations and the termination of this Guaranty.
5.3. ASSIGNMENTS; SUCCESSORS AND ASSIGNS. This Guaranty shall be
binding upon Guarantors and their respective successors and permitted assigns
and shall inure to the benefit of the Lenders, the LC Issuer and the Agent and
their respective successors, transferees and assigns; provided, that no
Guarantor may transfer or assign any or all of its rights or obligations
hereunder without the prior written consent of the Lenders and the Agent.
5.4. COUNTERPARTS. This Guaranty may be executed in two or more
counterparts, each of which when fully executed shall be an original, and all
of said counterparts taken together shall be deemed to constitute one and the
same agreement. Any signature page to this Guaranty
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may be witnessed by a telecopy or other facsimile of any original signature
page and any signature page of any counterpart hereof may be appended to any
other counterpart hereof to form a completely executed counterpart hereof.
5.5. EXPENSE REIMBURSEMENT. Each Guarantor agrees to reimburse the
Lenders, the LC Issuer and the Agent for the amount of all costs and expenses
actually incurred by the Lenders, the LC Issuer and the Agent (including
reasonable attorneys' fees and disbursements) in connection with: (a) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any collateral securing the Guaranteed Obligations, (b) the
exercise or enforcement of any of the rights of the Lenders, the LC Issuer and
the Agent, or any of them, hereunder or under such Loan Documents; and (c) the
failure by such Guarantor to perform or observe any of the provisions of this
Guaranty. Each Guarantor's obligations under this Section 5.5 shall survive the
termination of this Guaranty.
5.6. SEVERABILITY. If any provision of this Guaranty or the
application thereof to any party thereto or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Guaranty and the application
of such provisions to any other party thereto or circumstance shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.7. NOTICES. All notices, requests, demands and other communications
under this Guaranty shall be in writing, and shall be deemed to have been made
or give when (a) delivered to any Guarantor in the manner and at the address
provided for in Section 14.7 of the Loan Agreement and (b) when delivered to
any Lender, the LC Issuer or the Agent in the manner and at the address as
provided in Section 14.7 of the Loan Agreement. Each Guarantor hereby
irrevocably appoints the Parent as it agent for purposes of receiving any
notice under this Guaranty or in connection with any other Loan Document.
5.8. AMENDMENT. This Guaranty and the other Loan Documents to which
each Guarantor is a party constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior
negotiations, understandings and agreements between such parties in respect of
such subject matter. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged, modified or terminated except pursuant to a
written instrument signed by each Guarantor and by the Lenders and the Agent.
5.9. TIME OF THE ESSENCE. Time is of the essence in this Guaranty.
5.10. ATTORNEY-IN-FACT. Each Guarantor hereby designates, appoints and
empowers the Agent irrevocably as its attorney-in-fact, at such Guarantor's
cost and expense, to do in the name of such Guarantor any and all actions which
the Agent may deem necessary or advisable to carry out the terms hereof upon
the failure, refusal or inability of such Guarantor to do so (provided that an
Event of Default shall have occurred and be continuing), and each Guarantor
hereby agrees to indemnify and hold the Agent harmless from any costs, damages,
expenses or liabilities arising against or incurred by the Agent in connection
therewith except to the extent that any of such costs, damages, expenses or
liabilities arise out of gross negligence or willful misconduct of
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the party to be indemnified.
5.11. INDEPENDENT APPRAISAL. Each Guarantor acknowledges and
represents that it has relied upon its own due diligence in making its own
independent appraisal of each Borrower and its business, affairs and financial
condition, will continue to be responsible for making its own independent
appraisal of such matters and has not relied upon and will not hereafter rely
upon any Lender, the LC Issuer or the Agent for information for such appraisal
or other assessment or review and, further, will not rely upon any such
information which may now or hereafter be prepared by or for the Lenders, the
LC Issuer and the Agent, or any of them, for any appraisals regarding any
Borrower.
5.12. MASTER AGREEMENT. This Guaranty is a master guaranty and it is
the intent of the parties hereto that the identity of the Guarantors hereunder
will change from time to time as new Subsidiaries or Affiliates of any of the
Guarantors or any of the Borrowers are required to join this Guaranty as
additional Guarantors (the "Additional Guarantors"). Any Person which is not a
foreign corporation within the meaning of Section 7701(5) of the Internal
Revenue Code of 1986, and the rules and regulations thereunder, each as amended
or supplemented from time to time, shall join this Guaranty as an Additional
Guarantor by executing and delivering to the Agent, or any Person designated by
the Agent, a joinder agreement, in form and substance satisfactory to Agent (a
"Joinder Agreement"). Upon execution and delivery of a Joinder Agreement by an
Additional Guarantor, such Additional Guarantor shall thereafter be regarded as
a "Guarantor" hereunder as if such Additional Guarantor had been an original
party to this Guaranty. Neither the addition of any Additional Guarantor to
this Guaranty nor the release by the Lenders and the Agent of any Guarantor
party to this Guaranty shall affect the obligations of any other Guarantor
under this Guaranty and each Guarantor waives any defenses it may have arising
out of the addition of any Additional Guarantor or the release of any Guarantor
hereunder. Each Guarantor agrees that it shall execute and deliver any
instrument, document or agreement from time to time as the Agent or any Lender
may request to evidence its acknowledgment of the terms of this Guaranty,
including, without limitation, Section 2.2 and this Section 5.12; provided,
that the failure of any Guarantor to so execute and deliver any such
instrument, document or agreement shall not in any way release such Guarantor
from its obligations hereunder.
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5.13. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) THIS GUARANTY, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(b) EACH GUARANTOR HEREBY (A) NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY
NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY; (B) AGREES THAT
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK SHALL APPLY TO THIS GUARANTY; AND (C) IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS, THE LC ISSUER AND THE AGENT, OR
ANY OF THEM, TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION.
(c) EACH GUARANTOR AND ITS RESPECTIVE SUBSIDIARIES HEREBY
IRREVOCABLY APPOINTS OPTICARE HEALTH SYSTEMS, INC. TO SERVE AS ITS AGENT FOR
SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE LENDERS, THE LC ISSUER AND THE AGENT, OR ANY OF
THEM, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR OR ITS RESPECTIVE
SUBSIDIARIES IN ANY OTHER JURISDICTION.
5.14. WAIVER OF JURY TRIAL. AFTER REVIEWING THIS PROVISION
SPECIFICALLY WITH ITS COUNSEL, EACH GUARANTOR HEREBY KNOWINGLY, INTELLIGENTLY
AND INTENTIONALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL
PROCEEDING BASED ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING
TO THIS GUARANTY, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF
ANY BORROWER, ANY GUARANTOR, ANY LENDER, THE LC ISSUER OR THE AGENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE LC ISSUER TO ENTER
INTO THE
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LOAN AGREEMENT AND TO MAKE THE LOANS AND OTHER FINANCIAL
ACCOMMODATIONS TO THE BORROWERS THEREUNDER.
----------------
Initials
5.15. NO PUNITIVE DAMAGES.
(a) The Lenders, the LC Issuer, the Agent and each of the Guarantors
(on behalf of itself and its Subsidiaries) hereby agree that no such Person
shall have a remedy of punitive or exemplary damages against any other party to
a Loan Document and each such Person hereby waives any right or claim to
punitive or exemplary damages that they may now have or may arise in the future
in connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(b) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party in any Dispute and hereby waive any
right or claim to punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
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IN WITNESS WHEREOF, each Guarantor has caused its duly authorized
officers to set their hands and the seal of such Guarantor as of the day and
year first above written.
"Guarantors"
OPTICARE HEALTH SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Attest: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
[CORPORATE SEAL]
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Attest: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
[CORPORATE SEAL]
PRIMEVISION HEALTH, INC.,
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Acting President
Attest: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
(Signatures continued on following page.)
13
(Signatures continued from preceding page.)
CONSOLIDATED EYE CARE, INC.
By: /s/ Xxxxx X.X. Xxxxxx
------------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: President
Attest: /s/ D. Xxxxx Xxxxxxx
--------------------------------------
Name: D. Xxxxx Xxxxxxx
Title: Secretary
[CORPORATE SEAL]
PRIMEVISION EAST, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Attest: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
PRIMEVISION CENTRAL, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Attest: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
(Signatures continued on following page.)
14
(Signatures continued from preceding page.)
PRIMEVISION WEST, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Attest: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
PRIMEVISION OF NORTH CAROLINA, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Attest: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
ASSOCIATION OF EYE CARE CENTERS
TOTAL VISION HEALTH PLAN, INC.
By:
------------------------------------------
Name:
Title:
Attest:
--------------------------------------
Name:
Title:
[CORPORATE SEAL]
(Signatures continued on following page.)
15
OPTOMETRIC EYE CARE CENTER, P.A.
By: /s/ D. Xxxxx Xxxxxxx
-----------------------------------------
Name: D. Xxxxx Xxxxxxx
Title: President
Attest: /s/ Xxxxx X.X. Xxxxxx
-------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Secretary
[CORPORATE SEAL]
16