EXHIBIT D
GUARANTY OF PAYMENT
This GUARANTY OF PAYMENT (as the same may from time to time be amended,
restated, supplemented or otherwise modified, this "Guaranty") is entered
into as of October 24, 2005 by each of the undersigned and any other Person,
as defined in the Credit Agreement, as hereinafter defined, that becomes a
party hereto by joinder supplement or otherwise after the date hereof
(collectively, "Guarantors" and, individually, "Guarantor"), in favor of
KEYBANK NATIONAL ASSOCIATION (the "Lender").
Recitals:
A. DIALYSIS CORPORATION OF AMERICA, a Florida corporation (together with
its successors and assigns, "Borrower"), is entering into the Credit
Agreement, dated as of the date hereof (as the same may from time to time be
amended, restated or otherwise modified, the "Credit Agreement"; except as
specifically defined herein, capitalized terms used herein that are defined
in the Credit Agreement have the respective meanings ascribed to such terms
in the Credit Agreement), by and between Borrower and the Lender.
B. Each Guarantor is a Subsidiary of Borrower whose financing is
provided by the Loans and each Guarantor deems it to be in its direct
business interests that Borrower obtain from the Lender the Revolving
Commitment and the Loans provided for in the Credit Agreement.
C. Each Guarantor understands that the Lender is willing to enter into
the Credit Agreement with Borrower only upon certain terms and conditions,
one of which is that the Guarantors guarantee the payment of the Obligations
and this Guaranty is being executed and delivered in consideration of the
Lender entering into the Credit Agreement and for other valuable
considerations.
Agreement:
In consideration of the premises and the covenants hereinafter
contained, each of the Guarantors agrees as follows:
Section 1. Guaranty. Each Guarantor, jointly and severally, hereby
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absolutely and unconditionally guarantees the prompt payment in full of all
of the Obligations, as and when the respective parts thereof become due and
payable (whether at the stated maturity, by acceleration or otherwise). If
the Obligations, or any part thereof, is not paid in full when due and
payable (whether at the stated maturity, by acceleration or otherwise), the
Lender, in each case, has the right to proceed directly against any Guarantor
under this Guaranty to collect the payment in full of the Obligations,
regardless of whether the Lender, has theretofore proceeded or is proceeding
against Borrower or any other Guarantor. The Lender, in its sole discretion,
may proceed against Borrower or any Guarantor, and may exercise each right,
power or privilege that the Lender may then have, either simultaneously or
separately, and, in any event, at such time or times and as often and in such
order as the Lender, in its sole discretion, may from time to time deem
expedient to collect the payment in full of the Obligations.
Section 2. Payments Conditional. Whenever the Lender credits any
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payment to the Obligations or any part thereof, whatever the source or form
of payment, the credit shall be conditional as to each Guarantor unless and
until the payment is final and valid as to all the world. Without limiting
the generality of the foregoing, each Guarantor agrees that if any check or
other instrument so applied is
dishonored by the drawer or any party thereto, the Lender, in each case, may
reverse any entry relating thereto on its books and such Guarantor shall
remain liable therefor, even if the Lender may no longer have in its
possession any evidence of the Obligations to which the payment in question
was applied.
Section 3. Guarantors' Obligations Absolute and Unconditional.
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Regardless of the duration of time, regardless of whether Borrower may from
time to time cease to be indebted to the Lender and irrespective of any act,
omission or course of dealing whatever on the part of the Lender, each
Guarantor's liabilities and other obligations under this Guaranty shall
remain in full effect until the payment in full of the Obligations. Without
limiting the generality of the foregoing:
(a) the Lender shall not at any time be under any duty to any Guarantor
to grant any financial accommodation to Borrower, irrespective of any duty or
commitment of the Lender to Borrower, or to follow or direct the application
of the proceeds of any such financial accommodation;
(b) each Guarantor waives (i) notice of the granting of any Loan to
Borrower or the incurring of any other indebtedness by Borrower or the terms
and conditions thereof, (ii) presentment, demand for payment and notice of
dishonor of the Obligations or any part thereof, or any other indebtedness
incurred by Borrower to the Lender, (iii) notice of any indulgence granted to
any Borrower or any Guarantor, and (iv) any other notice to which such
Guarantor might, but for this waiver, be entitled;
(c) the Lender, in its sole discretion, may, without any prejudice to
its rights under this Guaranty, at any time or times, without notice to or
the consent of any Guarantor, (i) grant Borrower whatever financial
accommodations that the Lender may from time to time deem advisable, even if
Borrower might be in default in any respect and even if those financial
accommodations might not constitute indebtedness the payment of which is
guaranteed hereunder, (ii) assent to any renewal, extension, consolidation or
refinancing of the Obligations, or any part thereof, (iii) forbear from
demanding security, if the Lender has the right to do so, (iv) release
Borrower or any Guarantor, irrespective of the consideration, if any,
received therefor, (v) grant any waiver or consent or forbear from exercising
any right, power or privilege that the Lender may have or acquire, (vi)
assent to any amendment, deletion, addition, supplement or other modification
in, to or of any writing evidencing or securing any Obligations or pursuant
to which any Obligations are created, (vii) grant any other indulgence to
Borrower or any Guarantor, (viii) accept Borrower or any other Guarantor upon
the Obligations or any part thereof, and (ix) fail, neglect or omit in any
way to realize upon any Collateral or to protect the Obligations or any part
thereof;
(d) each Guarantor's liabilities and other obligations under this
Guaranty shall survive any dissolution of such Guarantor; and
(e) each Guarantor's liabilities and other obligations under this
Guaranty are absolute and unconditional irrespective of any lack of validity
or enforceability of the Credit Agreement, the Note, any Related Writing or
any other agreement, instrument or document evidencing the Loans or related
thereto, or any other defense available to such Guarantor in respect of this
Guaranty.
Section 4. Representations and Warranties. Each Guarantor represents
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and warrants to the Lender that (a) such Guarantor is a duly organized or
formed and validly existing entity, in good standing or full force and effect
under the laws of the state of its incorporation or formation, and is
qualified to do business in each state where a failure to so qualify would
have a Material Adverse Effect; (b) such Guarantor has legal power and right
to execute and deliver this Guaranty and to perform and observe the
provisions hereof; (c) the officer(s) executing and delivering this Guaranty
on behalf of such Guarantor have been duly authorized to do so, and this
Guaranty, when executed, is legal and binding upon such Guarantor in every
respect; (d) except for matters described or referenced in the Credit
Agreement or any
schedule thereto, no litigation or proceeding is pending or threatened
against such Guarantor before any court or any administrative agency that, in
such Guarantor's opinion, after consultation with such Guarantor's counsel,
is reasonably expected to have a material adverse effect on such Guarantor;
(e) such Guarantor has received consideration that is the reasonable
equivalent value of the obligations and liabilities that such Guarantor has
incurred to the Lender; (f) such Guarantor is not insolvent, as defined in
any applicable state or federal statute, nor will such Guarantor be rendered
insolvent by the execution and delivery of this Guaranty to the Lender; (g)
such Guarantor is not engaged or about to engage in any business or
transaction for which the assets retained by such Guarantor are or will be an
unreasonably small amount of capital, taking into consideration the
obligations to the Lender incurred hereunder; and (h) such Guarantor does not
intend to, nor does such Guarantor believe that it will, incur debts beyond
its ability to pay such debts as they mature.
Section 5. Incorporation of Credit Agreement. Each Guarantor agrees that
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all representations, warranties, and covenants contained in the Credit
Agreement that are applicable to such Guarantor as a Company and/or
Subsidiary thereunder are specifically incorporated herein as if such
statements were made by such Guarantor herein.
Section 6. Subordination.
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(a) Any Indebtedness of Borrower now or hereafter held by any Guarantor
is hereby subordinated to the Indebtedness of Borrower to the Lender; and
such Indebtedness of Borrower to any Guarantor, if the Lender, after an Event
of Default has occurred so requests, shall be collected, enforced and
received by such Guarantor as trustee for the Lender and be paid over to the
Lender, on account of the Indebtedness of Borrower to the Lender, but without
affecting or impairing in any manner the liability of such Guarantor under
the other provisions of this Guaranty. Prior to the transfer by any
Guarantor of any note or negotiable instrument evidencing any Indebtedness of
Borrower to such Guarantor, such Guarantor shall xxxx such note or negotiable
instrument with a legend that the same is subject to this subordination.
(b) If and to the extent that any Guarantor makes any payment to the
Lender or to any other person pursuant to or in respect of this Guaranty, any
reimbursement, indemnification, contribution or similar claim that such
Guarantor may have against Borrower or any other Guarantor by reason thereof
shall be subject and subordinate to the prior termination of the Revolving
Commitment and indefeasible payment in full of all Obligations owed to the
Lender.
Section 7. Subrogation Rights. Until such time as the Obligations have
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been paid in full in cash and otherwise fully performed and the Revolving
Commitment under the Credit Agreement has been terminated, each Guarantor
hereby irrevocably waives all rights of subrogation that it may at any time
otherwise have as a result of this Guaranty (whether contractual, under
section 509 of the Bankruptcy Code, or otherwise) to the claims of the Lender
against Borrower, any other Guarantor or any other guarantor of or surety for
the Obligations.
Section 8. Notices.
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(a) All notices, requests, demands and other communications provided for
hereunder shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile
as follows:
(i) if to any Guarantor, to it at c/o Dialysis Corporation of
America, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx, Attention:
President (Facsimile No. 410-694-0596); and
(ii) if to the Lender, to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, Attention: Corporate Banking (Facsimile No. 216-689-8329).
(b) Notices and communications sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by facsimile shall be deemed to have
been given when sent and receipt has been confirmed by telephone.
(c) Any party hereto may change its address or facsimile number for
notices and other communications hereunder by notice to each of the other
parties hereto in accordance with Section 8(a).
Section 9. Miscellaneous. This Guaranty binds each Guarantor and its
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successors and assigns and inures to the benefit of the Lender and its
successors and assigns, including, without limitation, each holder of any
Note evidencing any Obligations. If, at any time, one or more provisions of
this Guaranty is or becomes invalid, illegal or unenforceable in whole or in
part, the validity, legality and enforceability of the remaining provisions
will not in any way be affected or impaired thereby. This Guaranty
constitutes a final written expression of all of the terms of this Guaranty,
is a complete and exclusive statement of those terms and supersedes all oral
representations, negotiations and prior writings, if any, with respect to the
subject matter hereof. The relationship between (a) the Guarantors and (b)
the Lender with respect to this Guaranty is solely that of debtor and
creditors, respectively, and the Lender has no fiduciary obligation toward
any Guarantor with respect to this Guaranty or the transactions contemplated
hereby. The captions herein are for convenience of reference only and shall
be ignored in interpreting the provisions of this Guaranty.
Section 10. Contribution Among Guarantors. Each Guarantor, in addition
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to the subrogation rights it shall have against Borrower under applicable law
as a result of any payment it makes hereunder, shall also have a right of
contribution against all other Guarantors in respect of any such payment pro
rata among the same based on their respective net fair value as enterprises,
provided any such right of contribution shall be subject and subordinate to
the prior payment in full of the Obligations (and such Guarantor's obligations
in respect thereof).
Section 11. Solvency. Each Guarantor represents and warrants to the
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Lender that as of the date such Guarantor has become a party to this
Guaranty, (a) such Guarantor has received consideration that is the
reasonable equivalent value of the obligations and liabilities that such
Guarantor has incurred to the Lender under this Guaranty and the other Loan
Documents to which such Guarantor is a party; (b) such Guarantor has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage and is solvent and able to pay
its debts as they mature; (c) such Guarantor owns property having a value,
both at fair valuation and at present fair salable value, greater than the
amount required to pay its debts; and (d) such Guarantor is not entering into
the Loan Documents to which it is a party with the intent to hinder, delay or
defraud its creditors.
Section 12. Full Recourse Obligations; Effect of Fraudulent Transfer
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Laws, etc. It is the desire and intent of each Guarantor and Lender that
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this Guaranty shall be enforced as a full recourse obligation of each
Guarantor to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. If and
to the extent that the obligations of any Guarantor under this Guaranty
would, in the absence of this sentence, be adjudicated to be invalid or
unenforceable because of any applicable state or federal law relating to
fraudulent conveyances or transfers, then the amount of such Guarantor's
liability hereunder in respect of the Obligations shall be deemed to be
reduced ab initio to that maximum amount that would be permitted without
causing such Guarantor's obligations hereunder to be so invalidated.
Section 13. Payments Net of Taxes. All payments on account of
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principal, if any, interest and other fees and amounts payable hereunder
shall be made without set-off or counterclaim and, unless otherwise required
by law, shall be made free and clear of and without deduction for withholding
tax or similar tax, present or future, imposed by any taxing authority in any
jurisdiction (a "Tax"). If any Guarantor shall be required to withhold or
pay any Tax, it shall make the required withholding and payment in accordance
with and within the time allowed by law, and shall nonetheless pay to the
Lender such additional amounts as shall be necessary to cause the Lender
actually to receive in full all amounts (after taking account of any further
deduction or withholding that is required to be made as a consequence of the
payment of such additional amounts) on account of principal and interest or
other fees or amounts owing to it hereunder, as if such Tax had not been
paid. As soon as practicable after the date that any Tax shall become due
and payable, (i) each Guarantor shall give to the Lender the original or a
copy of a receipt for the payment of the Tax, or, if such receipts are not
issued by or received from the taxing authority to which the Tax was paid, a
certificate of an officer of such Guarantor, confirming the date and amount
of the payment so made and reasonable details of the calculation of the
amount due; and (ii) each Guarantor shall indemnify and save the Lender
harmless from and against any claim, liability, loss, cost, expense
(including without limitation legal, accounting and other professional fees,
and interest and penalty charges or fines imposed by any taxing authority in
respect of or arising from non-payment of such Tax) to which the Lender may
be exposed or that it may incur, by reason of any Guarantor's failure to make
punctual payment of any amount required to be paid to a taxing authority
pursuant to this Section.
Section 14. Obligations and Agreement Independent. The obligations of
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each Guarantor under this Guaranty are independent of the obligations of any
other Guarantor, and a separate action or actions may be brought and
prosecuted against any Guarantor whether any action is brought against any
other Guarantor and whether any other Guarantor is joined in any such action.
This Guaranty shall be construed as a separate agreement with respect to each
of the Guarantors and may be amended, modified, supplemented, waived, or
released with respect to any Guarantor without the approval of any other
Guarantor and without affecting the obligations of any other Guarantor
hereunder.
Section 15. Release of Guarantors. If at any time all or a portion of
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the equity interests of a Guarantor are sold or transferred in accordance
with the Credit Agreement, Borrower or such Guarantor shall deliver notice to
Lender of such sale or transfer and request that such Guarantor be released
from its obligations under this Guaranty. Upon receipt of such notice by
Lender, Lender shall promptly release such Guarantor from its obligations
under this Guaranty and, if requested by Borrower or such Guarantor, shall
execute and deliver to Borrower and such Guarantor written confirmation
thereof, all at the reasonable expense of Borrower and/or such Guarantor.
From and after release, such released Guarantor shall no longer be deemed a
Guarantor or Credit Party under any of the Loan Documents.
Section 16. Governing Law; Submission to Jurisdiction. The provisions
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of this Guaranty and the respective rights and duties of each Guarantor and
the Lender hereunder shall be governed by and construed in accordance with
the laws of the State of Ohio, without regard to principles of conflict of
laws. Each Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of any Ohio state or federal court sitting in Cleveland, Ohio,
over any action or proceeding arising out of or relating to this Guaranty,
any Loan Document or any Related Writing, and such Guarantor hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such Ohio state or federal court. Each
Guarantor, on behalf of itself and its Subsidiaries, hereby irrevocably
waives, to the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any action or proceeding in any such
court as well as any right it may now or hereafter have to remove such action
or proceeding, once commenced, to another court on the grounds of FORUM NON
CONVENIENS or otherwise. Each Guarantor agrees that a final, nonappealable
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 law.
Section 17. JURY TRIAL WAIVER. THE GUARANTORS EACH WAIVE ANY RIGHT TO
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HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, AMONG BORROWER, THE GUARANTORS AND THE LENDER,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY,
ANY RELATED WRITINGS, OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED
THERETO.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each Guarantor has executed and delivered this
Guaranty in favor of the Lender as of the date first written above.
DCA Medical Services, Inc.
DCA of Adel, LLC
DCA of Xxxxxxx, LLC
DCA of Central Valdosta, LLC
DCA of Xxxxxxxxxx, LLC
DCA of Hawkinsville, LLC
DCA of So. Ga., LLC
DCA of Royston, LLC
DCA of Rockville, LLC
DCA of Xxxxxxx, LLC
DCA of Lemoyne, Inc.
DCA of Mechanicsburg, LLC
DCA of Wellsboro, Inc.
Keystone Kidney Care, Inc.
DCA of Warsaw, LLC
DCA of Aiken, LLC
DCA of Aiken II, LLC
DCA of Xxxxxxxx, LLC
DCA of Edgefield, LLC
/s/ Xxxxxxx X. Xxxxxxx
By:-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President of each of the
foregoing Guarantors
