EXECUTION COPY
--------------
--------------------------------------------------------------------------------
AMENDED AND RESTATED
GUARANTEE AND PLEDGE AGREEMENT
made by
BROOKDALE SENIOR LIVING INC.
and certain of its Subsidiaries
in favor of
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of November 15, 2006
--------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1 . DEFINED
TERMS.....................................................2
1.1
Definitions.....................................................2
1.2 Other Definitional
Provisions...................................4
SECTION 2 .
GUARANTEE.........................................................5
2.1
Guarantee.......................................................5
2.2 Right of
Contribution...........................................6
2.3
Subrogation.....................................................6
2.4 Amendments, etc.
with respect to the Borrower Obligations.......7
2.5 Guarantee Absolute
and Unconditional............................7
2.6
Reinstatement...................................................9
2.7
Payments........................................................9
SECTION 3 . GRANT OF SECURITY
INTEREST........................................9
SECTION 4 . REPRESENTATIONS AND
WARRANTIES....................................9
4.1 Representations in
Credit Agreement............................10
4.2 Title; No Other
Liens..........................................10
4.3 Perfected First
Priority Liens.................................10
4.4 Jurisdiction of
Organization; Chief Executive Office...........10
4.5 Pledged
Equity.................................................10
SECTION 5 .
COVENANTS........................................................10
5.1 Delivery of
Certificated Securities............................11
5.2 Maintenance of
Perfected Security Interest;
Further
Documentation..........................................11
5.3 Changes in Name,
etc...........................................11
5.4
Notices........................................................11
5.5 Pledged
Equity.................................................12
SECTION 6 . REMEDIAL
PROVISIONS..............................................13
6.1 Pledged
Equity.................................................13
6.2 Proceeds to be
Turned Over To Administrative Agent.............14
6.3 Application of
Proceeds........................................14
6.4 Code and Other
Remedies........................................14
6.5 Private
Sale...................................................15
6.6
Deficiency.....................................................15
SECTION 7 . THE ADMINISTRATIVE
AGENT.........................................15
7.1 Administrative
Agent's Appointment as Attorney-in-Fact, etc....15
7.2 Duty of
Administrative Agent...................................17
7.3 Authorization to
File Financing Statements.....................17
7.4 Authority of
Administrative Agent..............................17
SECTION 8 .
MISCELLANEOUS....................................................18
8.1 Amendments in
Writing..........................................18
8.2
Notices........................................................18
8.3 No Waiver by
Course of Conduct; Cumulative Remedies............18
-i-
<PAGE>
8.4 Enforcement
Expenses; Indemnification..........................18
8.5 Successors and
Assigns.........................................18
8.6
Set-Off........................................................19
8.7
Counterparts...................................................19
8.8
Severability...................................................19
8.9 Section
Headings...............................................19
8.10
Integration....................................................19
8.11 GOVERNING
LAW..................................................19
8.12 Submission To Jurisdiction;
Waivers............................19
8.13
Acknowledgments................................................20
8.14 Additional Pledgors or
Guarantors..............................20
8.15
Releases.......................................................20
8.16 WAIVER OF JURY
TRIAL...........................................21
Schedules
---------
Schedule 1
Guarantors
Schedule 2 Pledgors
and Description of Pledged Equity
Schedule 3 Notice
Addresses of Grantors
Schedule 4 Filings
and Other Actions Required to Perfect Security Interests
Schedule 5
Jurisdiction of Organization, Identification Number and
Location
of Chief Executive Office
Annexes
-------
Annex I
Assumption Agreement
Annex II
Acknowledgment and Consent
-ii-
<PAGE>
AMENDED AND RESTATED GUARANTEE AND PLEDGE AGREEMENT, dated as
of
November 15, 2006, made by each of the signatories hereto (together
with any
other entity that may become a party hereto as provided herein,
each, a
"Grantor" and collectively, the "Grantors"), in favor of LEHMAN
COMMERCIAL PAPER
INC., as administrative agent (in such capacity, the
"Administrative Agent") for
the banks and other financial institutions (the "Lenders") from
time to time
parties to the Amended and Restated Credit Agreement, dated as of
the date
hereof (as amended, supplemented or otherwise modified from time to
time, the
"Credit Agreement"), among BROOKDALE SENIOR LIVING INC., a Delaware
corporation
(the "Borrower"), the several banks and other financial
institutions or entities
from time to time parties to the Credit Agreement (the "Lenders"),
LEHMAN
BROTHERS INC. and CITIGROUP GLOBAL MARKETS INC., as joint lead
arrangers and as
joint bookrunners (in such capacity, the "Joint Lead Arrangers"),
GOLDMAN SACHS
CREDIT PARTNERS L.P., LASALLE BANK NATIONAL ASSOCIATION and BANC OF
AMERICA
SECURITIES LLC, as co-arrangers (the "Co-Arrangers"), LASALLE BANK
NATIONAL
ASSOCIATION and BANK OF AMERICA, N.A., as co-syndication agents (in
such
capacity, the "Co-Syndication Agents"), GOLDMAN SACHS CREDIT
PARTNERS L.P. and
CITICORP NORTH AMERICA, INC., as co-documentation agents (in such
capacity, the
"Co-Documentation Agents") and the Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally
agreed to make extensions of credit to the Borrower upon the terms
and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies
that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit
Agreement will be used in part to enable the Borrower to make
valuable transfers
to one or more of the other Grantors in connection with the
operation of their
respective businesses;
WHEREAS, certain of the Qualified Counterparties may enter into
Specified Hedge Agreements with one or more of the Grantors;
WHEREAS, the Borrower and the other Grantors are engaged in
related
businesses, and each Grantor will derive substantial direct and
indirect benefit
from the extensions of credit under the Credit Agreement and from
the Specified
Hedge Agreements;
WHEREAS, it is a condition precedent to the obligation of the
Lenders
to make their respective extensions of credit to the Borrower under
the Credit
Agreement that each of the Subsidiaries of the Borrower listed on
Schedule 1
(each, a "Guarantor") guarantee the obligations and liabilities of
the Borrower
under the Credit Agreement and the other Loan Documents; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders
to make their respective extensions of credit to the Borrower under
the Credit
Agreement that each of the Subsidiaries of the Borrower listed on
Schedule 2
pledge in favor of the Administrative Agent for the benefit of the
Secured
Parties the Pledged Equity (as hereinafter defined) in accordance
with the terms
and conditions hereof to secure the obligations and liabilities of
the Borrower
under the Credit Agreement and the other Loan Documents;
<PAGE>
2
NOW, THEREFORE, in consideration of the premises and to induce
the
Administrative Agent and the Lenders to enter into the Credit
Agreement and to
induce the Lenders to make their respective extensions of credit to
the Borrower
thereunder, each Grantor hereby agrees with the Administrative
Agent, for the
benefit of the Secured Parties, as follows:
SECTION 1 . DEFINED TERMS
1.1 Definitions. Unless otherwise defined herein, terms defined in
the
Credit Agreement and used herein shall have the meanings given to
them in the
Credit Agreement and the following terms are used herein as defined
in the New
York UCC: Certificated Security, Instrument and Supporting
Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Guarantee and Pledge
Agreement,
as the same may be amended, supplemented or otherwise modified from
time to
time.
"Borrower Credit Agreement Obligations": the collective reference
to
the unpaid principal of and interest on the Loans and Reimbursement
Obligations
and all other obligations and liabilities of the Borrower
(including, without
limitation, interest accruing at the then applicable rate provided
in the Credit
Agreement after the maturity of the Loans and Reimbursement
Obligations and
interest accruing at the then applicable rate provided in the
Credit Agreement
after the filing of any petition in bankruptcy, or the commencement
of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether
or not a claim for post-filing or post-petition interest is allowed
in such
proceeding) to the Administrative Agent or any Lender, whether
direct or
indirect, absolute or contingent, due or to become due, or now
existing or
hereafter incurred, which may arise under, out of, or in connection
with, the
Credit Agreement, this Agreement, or the other Loan Documents, or
any Letter of
Credit, or any other document made, delivered or given in
connection therewith,
in each case whether on account of principal, interest,
reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without
limitation, all fees and disbursements of counsel to the
Administrative Agent or
to the Lenders that are required to be paid by the Borrower
pursuant to the
terms of any of the foregoing agreements).
"Borrower Hedge Agreement Obligations": the collective reference to
all
obligations and liabilities of the Borrower (including, without
limitation,
interest accruing at the then applicable rate provided in any
Specified Hedge
Agreement after the filing of any petition in bankruptcy, or the
commencement of
any insolvency, reorganization or like proceeding, relating to the
Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in
such proceeding) to any Qualified Counterparty, whether direct or
indirect,
absolute or contingent, due or to become due, or now existing or
hereafter
incurred, which may arise under, out of, or in connection with, any
Specified
Hedge Agreement or any other document made, delivered or given in
connection
therewith, in each case whether on account of principal, interest,
reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without
limitation, all fees and disbursements of counsel to the relevant
Qualified
Counterparty that are required to be paid by the Borrower pursuant
to the terms
of any Specified Hedge Agreement).
"Borrower Obligations": the collective reference to (i) the
Borrower
Credit Agreement Obligations, (ii) the Borrower Hedge Agreement
Obligations, but
only to the extent that, and only so long as, the Borrower Credit
Agreement
Obligations are secured and guaranteed pursuant hereto, and (iii)
all other
obligations and liabilities of the Borrower, whether direct or
indirect,
absolute or contingent, due or to become due, or now existing or
hereafter
incurred, which may arise under, out of, or in connection
<PAGE>
3
with, this Agreement (including, without limitation, all fees and
disbursements
of counsel to the Administrative Agent or to the Secured Parties
that are
required to be paid by the Borrower pursuant to the terms of this
Agreement).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.2.
"Excluded Assets": the Capital Stock of any Issuer in excess of
the
Pledged Equity Percentage of the Capital Stock of such Issuer.
"Foreign Subsidiary": with respect to any Pledgor, any
Subsidiary
organized under the laws of any jurisdiction outside the United
States of
America.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of
any
Foreign Subsidiary.
"Guarantor Hedge Agreement Obligations": the collective reference
to
all obligations and liabilities of a Guarantor (including, without
limitation,
interest accruing at the then applicable rate provided in any
Specified Hedge
Agreement after the filing of any petition in bankruptcy, or the
commencement of
any insolvency, reorganization or like proceeding, relating to such
Guarantor,
whether or not a claim for post-filing or post-petition interest is
allowed in
such proceeding) to any Qualified Counterparty, whether direct or
indirect,
absolute or contingent, due or to become due, or now existing or
hereafter
incurred, which may arise under, out of, or in connection with, any
Specified
Hedge Agreement or any other document made, delivered or given in
connection
therewith, in each case whether on account of principal, interest,
reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without
limitation, all fees and disbursements of counsel to the relevant
Qualified
Counterparty that are required to be paid by such Guarantor
pursuant to the
terms of any Specified Hedge Agreement).
"Guarantor Obligations": with respect to any Guarantor, the
collective
reference to (i) any Guarantor Hedge Agreement Obligations of such
Guarantor,
but only to the extent that, and only so long as, the other
Obligations of such
Guarantor are secured and guaranteed pursuant hereto, and (ii) to
all
obligations and liabilities of such Guarantor which may arise under
or in
connection with this Agreement (including, without limitation,
Section 2) or any
other Loan Document to which such Guarantor is a party, in each
case whether on
account of guarantee obligations, reimbursement obligations, fees,
indemnities,
costs, expenses or otherwise (including, without limitation, all
fees and
disbursements of counsel to the Administrative Agent or to any
Secured Party
that are required to be paid by such Guarantor pursuant to the
terms of this
Agreement or any other Loan Document).
"Guarantors": the collective reference to each Subsidiary of
the
Borrower listed on Schedule 1, together with any other entity that
may become a
guarantor hereto in accordance with the Credit Agreement.
"Hedge Agreements": as to any Person, all interest rate swaps,
currency
exchange agreements, commodity swaps, caps or collar agreements or
similar
arrangements entered into by such Person providing for protection
against
fluctuations in interest rates, currency exchange rates or
commodity prices or
the exchange of nominal interest obligations, either generally or
under specific
contingencies. For avoidance of doubt, Hedge Agreements shall
include any
interest rate swap or similar agreement that provides for the
payment by the
Borrower or any of its Subsidiaries of amounts based
<PAGE>
4
upon a floating rate in exchange for receipt by the Borrower or
such
Subsidiary of amounts based upon a fixed rate.
"Issuers": the collective reference to each issuer of any
Pledged
Equity.
"New York UCC": the Uniform Commercial Code as from time to time
in
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Pledged Equity": with respect to each Pledgor, the Capital
Stock
listed opposite such Pledgor's name on Schedule 2, together with
any other
shares, certificates, options or rights of any nature whatsoever in
the Issuers
that may be issued or granted to, or held by, such Pledgor while
this Agreement
is in effect; provided that in no event shall Capital Stock in
excess of the
Pledged Equity Percentage of the total outstanding Capital Stock of
such Issuer
be pledged hereunder or be included in the term "Pledged
Equity".
"Pledged Equity Percentage": the percentage listed opposite each
Issuer
on Schedule 2.
"Pledgors": the collective reference to the Borrower, FEBC-ALT
Investors LLC and FEBC-ALT Holdings Inc., together with any other
entity that
may become a pledgor hereunder in accordance with the Credit
Agreement.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Uniform Commercial Code in effect in the State
of New York
on the date hereof.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such
Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a
Lender.
"Secured Parties": the collective reference to the
Administrative
Agent, the Joint Lead Arrangers, the Co-Arrangers, the
Co-Syndication Agents,
the Co-Documentation Agents, the Lenders (including any Issuing
Lender in its
capacity as Issuing Lender) and any Qualified Counterparties;
provided that,
solely for the purposes of Section 8.6, "Secured Parties" shall
also include any
Affiliate of a Lender.
"Securities Act": the Securities Act of 1933, as amended.
"Specified Hedge Agreement": any Hedge Agreement entered into by
(i)
the Borrower or any Guarantor and (ii) any Qualified
Counterparty.
1.2 Other
Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in
this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of
this Agreement, and Section and Schedule references are to this
Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
<PAGE>
5
(c) Where the context requires, terms relating to the Collateral or
any
part thereof, when used in relation to a Pledgor, shall refer to
such Pledgor's
Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (i) The Guarantors hereby, jointly and
severally,
unconditionally and irrevocably, guarantee to the Administrative
Agent, for the
ratable benefit of the Secured Parties and their respective
successors,
indorsees, transferees and assigns, the prompt and complete payment
and
performance by the Borrower when due (whether at stated maturity,
by
acceleration or otherwise) of the Borrower Obligations (other than,
in the case
of each Guarantor, Borrower Obligations arising pursuant to clause
(ii) of this
Section 2.1(a) in respect of Guarantor Hedge Agreement Obligations
in respect of
which such Guarantor is a primary obligor).
(ii) The Borrower hereby unconditionally and irrevocably
guarantees to the
Administrative Agent, for the ratable benefit of the
Secured Parties and their respective successors, endorsees,
transferees and assigns, the prompt and complete payment and
performance by each Guarantor when due (whether at stated maturity,
by
acceleration or otherwise) of the Guarantor Hedge Agreement
Obligations of such Guarantor.
(b) Anything herein or in any other Loan Document to the
contrary
notwithstanding, (i) the maximum liability of each Guarantor
hereunder and under
the other Loan Documents shall in no event exceed the amount which
can be
guaranteed by such Guarantor under applicable federal and state
laws relating to
fraudulent conveyances or transfers or the insolvency of debtors
(after giving
effect to the right of contribution established in Section 2.2) and
(ii) the
maximum liability of the Borrower under this Section 2 shall in no
event exceed
the amount which can be guaranteed by the Borrower under applicable
federal and
state laws relating to fraudulent conveyances or transfers or the
insolvency of
debtors (after giving effect to the right of contribution
established in Section
2.2).
(c) (i) Each Guarantor agrees that the Borrower Obligations may at
any
time and from time to time exceed the amount of the liability of
such Guarantor
hereunder without impairing the guarantee of such Guarantor
contained in this
Section 2 or affecting the rights and remedies of the
Administrative Agent or
any Secured Party hereunder.
(ii)
The Borrower agrees that the Guarantor Hedge Agreement
Obligations may at any time and from time to time exceed the amount
of
the
liability of the Borrower under this Section 2 without
impairing
the
guarantee of the Borrower contained in this Section 2 or
affecting
the
rights and remedies of the Administrative Agent or any Secured
Party hereunder.
(d) Subject to Section 8.15 hereof, the guarantee contained in
this
Section 2 shall remain in full force and effect until all the
Borrower
Obligations (other than Borrower Obligations arising under Section
2.1(a)(ii)
hereof) and the obligations of each Guarantor under the guarantee
contained in
this Section 2 (other than Guarantor Obligations in respect of
Borrower
Obligations arising under Section 2.1(a)(ii) hereof) shall have
been fully and
finally paid in cash, no Letter of Credit shall be outstanding
(except to the
extent the same is cash collateralized in accordance with the terms
of the
Credit Agreement) and the Commitments shall be terminated,
notwithstanding that
from time to time during the term of the Credit Agreement the
Borrower may be
free from any Borrower Obligations and any or all of the Guarantors
may be free
from their respective Guarantor Hedge Agreement Obligations
(e) No payment made by the Borrower, any of the Guarantors, any
other
guarantor or any other Person or received or collected by the
Administrative
Agent or any Secured Party from the Borrower, any of the
Guarantors, any other
guarantor or any other Person by virtue of any action or
<PAGE>
6
proceeding or any set-off or appropriation or application at any
time or from
time to time in reduction of or in payment of the Borrower
Obligations or the
Guarantor Hedge Agreement Obligations shall be deemed to modify,
reduce,
release or otherwise affect the liability of the Borrower or any
Guarantor
under this Section 2 which shall, notwithstanding any such payment
(other than
any payment made by the Borrower or such Guarantor in respect of
the Borrower
Obligations or the Guarantor Hedge Agreement Obligations or any
payment
received or collected from the Borrower or such Guarantor in
respect of the
Borrower Obligations or the Guarantor Hedge Agreement Obligations),
remain
liable for the Borrower Obligations and the Guarantor Hedge
Agreement
Obligations up to the maximum liability of the Borrower or such
Guarantor
hereunder until the Borrower Obligations and the Guarantor Hedge
Agreement
Obligations are fully and finally paid in cash, no Letter of Credit
shall be
outstanding (except to the extent the same is cash collateralized
in
accordance with the terms of the Credit Agreement) and the
Commitments are
terminated.
2.2
Right of Contribution. (a) Each Guarantor hereby agrees that to
the
extent that a Guarantor shall have paid more than its proportionate
share of any
payment made hereunder or the Guarantor Hedge Agreement
Obligations, such
Guarantor shall be entitled to seek and receive contribution from
and against
any other Guarantor hereunder which has not paid its proportionate
share of such
payment.
(b) The Borrower and each Guarantor agrees that to the extent that
the
Borrower or any Guarantor shall have paid more than its
proportionate share of
any payment made hereunder in respect of any Guarantor Hedge
Agreement
Obligation of any other Guarantor, the Borrower or such Guarantor,
as the case
may be, shall be entitled to seek and receive contribution from and
against the
Borrower and any other Guarantor which has not paid its
proportionate share of
such payment.
(c) The Borrower's and each Guarantor's right of contribution
under
this Section 2.2 shall be subject to the terms and conditions of
Section 2.3.
The provisions of this Section 2.2 shall in no respect limit the
obligations and
liabilities of the Borrower or any Guarantor to the Administrative
Agent and the
Secured Parties, and the Borrower and each Guarantor shall remain
liable to the
Administrative Agent and the Secured Parties for the full amount
guaranteed by
the Borrower or such Guarantor hereunder.
2.3 Subrogation. Notwithstanding any payment made by the Borrower
or
any Guarantor hereunder or any set-off or application of funds of
the Borrower
or any Guarantor by the Administrative Agent or any Secured Party,
neither the
Borrower nor any Guarantor shall be entitled to be subrogated to
any of the
rights of the Administrative Agent or any Secured Party against the
Borrower or
any other Guarantor or any collateral security or guarantee or
right of offset
held by the Administrative Agent or any Secured Party for the
payment of the
Borrower Obligations or the Guarantor Hedge Agreement Obligations,
nor shall the
Borrower or any Guarantor seek or be entitled to seek any
contribution or
reimbursement from the Borrower or any other Guarantor in respect
of payments
made by the Borrower or such Guarantor hereunder, until all amounts
owing to the
Administrative Agent and the Secured Parties by the Borrower on
account of the
Borrower Obligations are fully and finally paid in cash, no Letter
of Credit
shall be outstanding (except to the extent the same is cash
collateralized in
accordance with the terms of the Credit Agreement) and the
Commitments are
terminated. If any amount shall be paid to the Borrower or any
Guarantor on
account of such subrogation rights at any time when all of the
Borrower
Obligations shall not have been fully and finally paid in cash,
such amount
shall be held by the Borrower or such Guarantor in trust for the
Administrative
Agent and the Secured Parties, segregated from other funds of the
Borrower or
such Guarantor, and shall, forthwith upon receipt by the Borrower
or such
Guarantor, be turned over to the Administrative Agent in the exact
form received
by the Borrower or such Guarantor (duly indorsed by the Borrower or
such
Guarantor to the Administrative
<PAGE>
7
Agent, if required), to be applied against the Borrower Obligations
or the
Guarantor Hedge Agreement Obligations, whether matured or
unmatured, in
accordance with Section 6.3.
2.4 Amendments, etc. with Respect to the Borrower Obligations.
The
Borrower and each Guarantor shall remain obligated hereunder
notwithstanding
that, without any reservation of rights against the Borrower or any
Guarantor
and without notice to or further assent by the Borrower or any
Guarantor, any
demand for payment of any of the Borrower Obligations or Guarantor
Hedge
Agreement Obligations made by the Administrative Agent or any
Secured Party may
be rescinded by the Administrative Agent or such Secured Party and
any of the
Borrower Obligations or Guarantor Hedge Agreement Obligations
continued, and the
Borrower Obligations or Guarantor Hedge Agreement Obligations, or
the liability
of any other Person upon or for any part thereof, or any collateral
security or
guarantee therefor or right of offset with respect thereto, may,
from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated,
compromised, waived, surrendered or released by the Administrative
Agent or any
Secured Party (with the consent of such of the Borrower and the
Guarantor as
shall be required thereunder), and the Specified Hedge Agreements,
the Credit
Agreement and the other Loan Documents and any other documents
executed and
delivered in connection therewith may be amended, modified,
supplemented or
terminated, in whole or in part, as the Administrative Agent (or
the Required
Lenders or all Lenders, as the case may be) may (with the consent
of such of the
Borrower and the Guarantor as shall be required thereunder) deem
advisable from
time to time, and any collateral security, guarantee or right of
offset at any
time held by the Administrative Agent or any Secured Party for the
payment of
the Borrower Obligations or Guarantor Hedge Agreement Obligations
may (with the
consent of such of the Borrower and the Guarantor as shall be
required
thereunder) be sold, exchanged, waived, surrendered or released.
Neither the
Administrative Agent nor any Secured Party shall, except to the
extent set forth
in, and for the benefit of the parties to, the agreements and
instruments
governing such Lien or guarantee, have any obligation to protect,
secure,
perfect or insure any Lien at any time held by it as security for
the Borrower
Obligations or Guarantor Hedge Agreement Obligations or for the
guarantees
contained in this Section 2 or any property subject thereto.
2.5
Guarantee Absolute and Unconditional. (a) Each Guarantor waives
any
and all notice of the creation, renewal, extension or accrual of
any of the
Borrower Obligations (other than any notice with respect to any
Guarantor Hedge
Agreement Obligation with respect to which such Guarantor is a
primary obligor
and to which it is entitled pursuant to the applicable Specified
Hedge
Agreement) and notice of or proof of reliance by the Administrative
Agent or any
Secured Party upon the guarantee contained in this Section 2 or
acceptance of
the guarantee contained in this Section 2; the Borrower
Obligations, and any of
them, shall conclusively be deemed to have been created, contracted
or incurred,
or renewed, extended, amended or waived, in reliance upon the
guarantee
contained in this Section 2; and all dealings between the Borrower
and any of
the Guarantors, on the one hand, and the Administrative Agent and
the Secured
Parties, on the other hand, likewise shall be conclusively presumed
to have been
had or consummated in reliance upon the guarantee contained in this
Section 2.
Each Guarantor waives diligence, presentment, protest, demand for
payment and
notice of default or nonpayment to or upon the Borrower or any of
the Guarantors
with respect to the Borrower Obligations (other than any diligence,
presentment,
protest, demand or notice with respect to any Guarantor Hedge
Agreement
Obligation with respect to which such Guarantor is a primary
obligor and to
which it is entitled pursuant to the applicable Specified Hedge
Agreement). Each
Guarantor understands and agrees that the guarantee of such
Guarantor contained
in this Section 2 shall be construed as a continuing, absolute and
unconditional
guarantee of payment without regard to (a) the validity or
enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower
Obligations or
any collateral security therefor or guarantee or right of offset
with respect
thereto at any time or from time to time held by the Administrative
Agent or any
Secured Party, (b) any defense, set-off or counterclaim (other than
a defense of
payment or performance) which may at any time be available to or be
asserted by
the Borrower or any other Person against the Administrative Agent
or any Secured
Party, (c) any law or regulation of any jurisdiction, or
<PAGE>
8
any other event, affecting any term of any Borrower Obligation or
the
Administrative Agent's or any Secured Party's rights with respect
thereto or
(d) any other circumstance whatsoever (with or without notice to or
knowledge
of the Borrower or such Guarantor) which constitutes, or might be
construed to
constitute, an equitable or legal discharge of the Borrower for the
Borrower
Obligations, or of such Guarantor under the guarantee of such
Guarantor
contained in this Section 2, in bankruptcy or in any other
instance. When
making any demand hereunder or otherwise pursuing its rights and
remedies
hereunder against any Guarantor, the Administrative Agent or any
Secured Party
may, but shall be under no obligation to, make a similar demand on
or
otherwise pursue such rights and remedies as it may have against
the Borrower,
any other Guarantor or any other Person or against any collateral
security or
guarantee for the Borrower Obligations or any right of offset with
respect
thereto, and any failure by the Administrative Agent or any Secured
Party to
make any such demand, to pursue such other rights or remedies or to
collect
any payments from the Borrower, any other Guarantor or any other
Person or to
realize upon any such collateral security or guarantee or to
exercise any such
right of offset, or any release of the Borrower, any other
Guarantor or any
other Person or any such collateral security, guarantee or right of
offset,
shall not relieve any Guarantor of any obligation or liability
under this
Section 2, and shall not impair or affect the rights and remedies,
whether
express, implied or available as a matter of applicable law, of
the
Administrative Agent or any Secured Party against any Guarantor.
For the
purposes hereof "demand" shall include the commencement and
continuance of any
legal proceedings.
(b) The Borrower waives any and all notice of the creation,
renewal,
extension or accrual of any of the Guarantor Hedge Agreement
Obligations and
notice of or proof of reliance by the Administrative Agent or any
Secured Party
upon the guarantee by the Borrower contained in this Section 2 or
acceptance of
the guarantee by the Borrower contained in this Section 2; the
Guarantor Hedge
Obligations, and any of them, shall conclusively be deemed to have
been created,
contracted or incurred, or renewed, extended, amended or waived, in
reliance
upon the guarantee by the Borrower contained in this Section 2; and
all dealings
between the Borrower and any of the Guarantors, on the one hand and
the
Administrative Agent and the Secured Parties, on the other hand,
with respect to
any Guarantor Hedge Agreement Obligations likewise shall be
conclusively
presumed to have been had or consummated in reliance upon the
guarantee by the
Borrower contained in this Section 2. The Borrower waives
diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to
or upon the Borrower with respect to the Guarantor Hedge Agreement
Obligations.
The Borrower understands and agrees that the guarantee by the
Borrower contained
in this Section 2 shall be construed as a continuing, absolute and
unconditional
guarantee of payment without regard to (a) the validity or
enforceability of the
Guarantor Hedge Agreement Obligations or any other collateral
security therefor
or guarantee or right of offset with respect thereto at any time or
from time to
time held by the Administrative Agent or any Secured Party, (b) any
defense,
set-off or counterclaim (other than a defense of payment or
performance) which
may at any time be available to or be asserted by any Person
against the
Administrative Agent or any Secured Party, (c) any law or
regulation of any
jurisdiction, or any other event, affecting any term of any
Guaran
