EXHIBIT 10.48
GUARANTY AGREEMENT
This Guaranty Agreement (the "Guaranty") dated as of this 16th day of
April, 1998, by the parties who have executed this Guaranty (such parties, along
with any other parties who execute and deliver to the Agent hereinafter
identified and defined an agreement in the form attached hereto as Exhibit A,
being herein referred to collectively as the "Guarantors" and individually as a
"Guarantor").
WITNESSETH:
Whereas, each of the Guarantors is a direct or indirect subsidiary of
Fountain View, Inc., a Delaware corporation (the "Borrower"); and
Whereas, the Borrower and Bank of Montreal ("BOM"), individually and as
agent (BOM acting as such agent and any successor or successors to BOM in such
capacity being hereinafter referred to as the "Agent") have entered into a
Credit Agreement dated as of April 16, 1998 (such Credit Agreement as the same
may from time to time hereafter be amended, modified, or restated being
hereinafter referred to as the "Credit Agreement") pursuant to which BOM and
other banks, financial institutions and letter of credit issuer(s) from time to
time parties thereto (BOM, in its individual capacity, and such other banks and
financial institutions being hereinafter referred to collectively as the
"Lenders" and individually as a "Lender" and such letter of credit issuer(s)
being hereinafter referred to collectively as the "Letter of Credit Issuers" and
individually as a "Letter of Credit Issuer") have extended various credit
facilities to the Borrower (the Agent, the Lenders and the Letter of Credit
Issuers being hereinafter referred to collectively as the "Guaranteed Creditors"
and individually as a "Guaranteed Creditor"); and
Whereas, the Borrower may from time to time enter into one or more interest
rate exchange, cap, collar, floor or other agreements with one or more of the
Lenders party to the Credit Agreement, or their affiliates, for the purpose of
hedging or otherwise protecting the Borrower against changes in interest rates
(the liability of the Borrower in respect of such agreements with such Lenders
and their affiliates being hereinafter referred to as the "Hedging Liability");
and
Whereas, the Borrower provides each of the Guarantors with substantial
financial, management, administrative, and technical support; and
Whereas, as a condition to extending the credit facilities to the Borrower
under the Credit Agreement, the Guaranteed Creditors have required, among other
things, that the Guarantors execute and deliver this Guaranty; and
Whereas, each Guarantor will directly and substantially benefit from credit
and other financial accommodations extended and to be extended by the Guaranteed
Creditors to the Borrower; and
Now, therefore, for value received, and in consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrower by
the Guaranteed Creditors from time to time, each Guarantor hereby makes the
following representations and warranties to the Guaranteed Creditors and hereby
covenants and agrees with the Guaranteed Creditors as follows:
Section 1. All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Credit Agreement.
Section 2. Each Guarantor hereby jointly and severally guarantees to
the Guaranteed Creditors, the due and punctual payment when due of (i) any and
all indebtedness, obligations and liabilities of the Borrower and the
Guarantors, and of any of them individually, to the Guaranteed Creditors, and to
any of them individually, under or in connection with or evidenced by the Credit
Agreement, the Notes of the Borrower heretofore or hereafter issued under the
Credit Agreement and the obligations of the Borrower to reimburse the Guaranteed
Creditors, or any of them individually, for the amount of all drawings on all
Letters of Credit issued pursuant to the Credit Agreement, and all other
obligations of the Borrower under any and all applications for Letters of
Credit, and any and all liability of the Borrower and the Guarantors, and of any
of them individually, arising under or in connection with or otherwise evidenced
by agreements with any one or more of the Guaranteed Creditors or their
affiliates with respect to any Hedging Liability, in each case whether now
existing or hereafter arising (and whether arising before or after the filing of
a petition in bankruptcy and including all interest accrued after the petition
date), due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired and (ii) any and all expenses and charges,
legal or otherwise (including, without limitation, court costs and reasonable
attorneys' fees), suffered or incurred by the Guaranteed Creditors, and any of
them individually, in collecting or enforcing any of such indebtedness,
obligations and liabilities or in realizing on or protecting or preserving any
security therefor. The indebtedness, obligations and liabilities described in
the immediately preceding clauses (i) and (ii) are hereinafter referred to as
the "indebtedness hereby guaranteed". In case of failure by the Borrower
punctually to pay any indebtedness hereby guaranteed, each Guarantor hereby
jointly and severally agrees to make such payment or to cause such payment to be
made punctually as and when the same shall become due and payable, whether at
stated maturity, by acceleration or otherwise, and as if such payment were made
by the Borrower. All payments hereunder by any Guarantor shall be made in
immediately available funds in Dollars without set-off, counterclaim or other
defense or withholding or deduction of any nature. Notwithstanding anything in
this Guaranty to the contrary, the right of recovery against a Guarantor under
this Guaranty shall not exceed $1.00 less than the amount which would render
such Guarantor's obligations under this Guaranty void or voidable under
applicable law, including fraudulent conveyance law.
Section 3. Each Guarantor further jointly and severally agrees to pay
on demand all expenses, legal and/or otherwise (including court costs and
reasonable attorneys' fees), paid or incurred by any Guaranteed Creditor in
endeavoring to collect the indebtedness hereby guaranteed, or any part thereof,
or in enforcing or endeavoring to enforce any
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Guarantor's obligations hereunder, or any part thereof, or in protecting,
defending or enforcing this Guaranty in any litigation, bankruptcy or insolvency
proceedings or otherwise.
Section 4. Each Guarantor agrees that, upon demand, such Guarantor
shall pay to the Agent for the benefit of the Guaranteed Creditors the full
amount of the indebtedness hereby guaranteed then due (subject to the right of
recovery from such Guarantor pursuant to the last sentence of Section 2 above)
whether or not any one or more of the other Guarantors shall then or thereafter
pay any amount whatsoever in respect to their obligations hereunder.
Section 5. Each Guarantor agrees that such Guarantor will not
exercise or enforce any right of exoneration, contribution, reimbursement,
recourse or subrogation available to such Guarantor against any person liable
for payment of the indebtedness hereby guaranteed, or as to any security
therefor, unless and until the full amount owing to the Guaranteed Creditors of
the indebtedness hereby guaranteed has been fully paid and satisfied and each of
the commitments by the Guaranteed Creditors to extend any indebtedness hereby
guaranteed shall have expired or otherwise terminated. The payment by any
Guarantor of any amount or amounts to the Guaranteed Creditors pursuant hereto
shall not in any way entitle any such Guarantor, either at law, in equity or
otherwise, to any right, title or interest (whether by way of subrogation or
otherwise) in and to the indebtedness hereby guaranteed or any part thereof or
any collateral security therefor or any other rights or remedies in any way
relating thereto or in and to any amounts theretofor, then or thereafter paid or
applicable to the payment thereof howsoever such payment may be made and from
whatsoever source such payment may be derived unless and until all of the
indebtedness hereby guaranteed and all costs and expenses suffered or incurred
by the Guaranteed Creditors in enforcing this Guaranty have been paid and
satisfied in full and each of the commitments by the Guaranteed Creditors to
extend any indebtedness hereby guaranteed shall have expired or otherwise
terminated and unless and until such payment in full and termination, any
payments made by any Guarantor hereunder and any other payments from whatsoever
source derived on account of or applicable to the indebtedness hereby guaranteed
or any part thereof shall be held and taken to be merely payments in gross to
the Guaranteed Creditors reducing pro tanto the indebtedness hereby guaranteed.
Section 6. To the extent permitted by the Credit Agreement, each
Guaranteed Creditor may, without any notice whatsoever to any of the Guarantors,
sell, assign, or transfer all of the indebtedness hereby guaranteed, or any part
thereof, or grant participations therein, and in that event each and every
immediate and successive assignee, transferee, or holder of all or any part of
the indebtedness hereby guaranteed, shall have the right through the Agent
pursuant to Section 18 hereof to enforce this Guaranty, by suit or otherwise,
for the benefit of such assignee, transferee, or holder as fully as if such
assignee, transferee, or holder were herein by name specifically given such
rights, powers and benefits; but each Guaranteed Creditor through the Agent
pursuant to Section 18 hereof shall have an unimpaired right to enforce this
Guaranty for its own benefit, as to so much of the indebtedness hereby
guaranteed that it has not sold, assigned or transferred.
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Section 7. This Guaranty is a continuing, absolute and unconditional
Guaranty, and shall remain in full force and effect until all indebtedness
hereby guaranteed shall be fully paid and satisfied and each of the commitments
by the Guaranteed Creditors to extend any indebtedness hereby guaranteed shall
have expired or otherwise terminated. The Guaranteed Creditors may at any time
or from time to time release any Guarantor from its obligations hereunder or
effect any compromise with any Guarantor and no such release or compromise shall
in any manner impair or otherwise affect the obligations hereunder of the other
Guarantors. No release, compromise, or discharge of any one or more of the
Guarantors shall release, compromise or discharge the obligations of the other
Guarantors hereunder.
Section 8. In case of the dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institution of bankruptcy or receivership
proceedings against the Borrower or any Guarantor, all of the indebtedness
hereby guaranteed which is then existing shall in accordance with the terms of
the Credit Agreement immediately become due or accrued and payable from the
Guarantors. All payments received from the Borrower or on account of the
indebtedness hereby guaranteed from whatsoever source, shall be taken and
applied as payment in gross, and this Guaranty shall apply to and secure any
ultimate balance that shall remain owing to the Guaranteed Creditors.
Section 9. The liability hereunder shall in no way be affected or
impaired by (and the Guaranteed Creditors are hereby expressly authorized to
make from time to time, without notice to any of the Guarantors), any sale,
pledge, surrender, compromise, settlement, release, renewal, extension,
impairment, indulgence, alteration, substitution, exchange, change in,
modification or other disposition of any of the indebtedness hereby guaranteed,
either express or implied, or of any Loan Document or any other contract or
contracts evidencing any thereof, or of any security or collateral therefor or
any guaranty thereof. The liability hereunder shall in no way be affected or
impaired by any acceptance by the Guaranteed Creditors of any security for or
other guarantors upon any of the indebtedness hereby guaranteed, or by any
failure, neglect or omission on the part of the Guaranteed Creditors to realize
upon or protect any of the indebtedness hereby guaranteed, or any collateral or
security therefor (including, without limitation, impairment of collateral and
failure to perfect security interest in any collateral), or to exercise any lien
upon or right of appropriation of any moneys, credits or property of the
Borrower or any Guarantor, possessed by any of the Guaranteed Creditors, toward
the liquidation of the indebtedness hereby guaranteed, or by any application of
payments or credits thereon. The Guaranteed Creditors shall have the exclusive
right to determine how, when and what application of payments and credits, if
any, shall be made on said indebtedness hereby guaranteed, or any part of same.
In order to hold any Guarantor liable hereunder, there shall be no obligation on
the part of the Guaranteed Creditors, at any time, to resort for payment to the
Borrower or to any other Guarantor, or to any other person, its property or
estate, or resort to any collateral, security, property, liens or other rights
or remedies whatsoever, and the Guaranteed Creditors shall have the right to
enforce this Guaranty against any Guarantor irrespective of whether or not other
proceedings or steps are pending seeking resort to or realization upon or from
any of the foregoing are pending.
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Section 10. In the event the Guaranteed Creditors shall at any time
in their discretion permit a substitution of Guarantors hereunder or a party
shall wish to become Guarantor hereunder, such substituted or additional
Guarantor shall, upon executing an agreement in the form attached hereto as
Exhibit A, become a party hereto and be bound by all the terms and conditions
hereof to the same extent as though such Guarantor had originally executed this
Guaranty and in the case of a substitution, in lieu of the Guarantor being
replaced. No such substitution shall be effective absent the written consent of
the Guaranteed Creditors delivered in accordance with the terms of the Credit
Agreement, nor shall it in any manner affect the obligations of the other
Guarantors hereunder.
Section 11. All diligence in collection or protection, and all
presentment, demand, protest and/or notice, as to any and everyone, whether or
not the Borrower or the Guarantors or others, of dishonor and of default and of
non-payment and of the creation and existence of any and all of said
indebtedness hereby guaranteed, and of any security and collateral therefor, and
of the acceptance of this Guaranty, and of any and all extensions of credit and
indulgence hereunder, are expressly waived.
Section 12. No act of commission or omission of any kind, or at any
time, upon the part of the Guaranteed Creditors in respect to any matter
whatsoever, shall in any way affect or impair this Guaranty.
Section 13. The Guarantors waive any and all defenses, claims and
discharges of the Borrower, or any other obligor or guarantor, pertaining to the
indebtedness hereby guaranteed, except the defense of discharge by payment in
full. Without limiting the generality of the foregoing, the Guarantors will not
assert, plead or enforce against the Guaranteed Creditors any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata, statue
of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Borrower or any
other person liable in respect of any of the indebtedness hereby guaranteed, or
any set-off available against the Guaranteed Creditors to the Borrower or any
such other person, whether or not on account of a related transaction. The
Guarantors agree that the Guarantors shall be and remain jointly and severally
liable for any deficiency remaining after foreclosure or other realization on
any lien or security interest securing the indebtedness hereby guaranteed,
whether or not the liability of the Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision.
Section 14. If any payment applied by the Guaranteed Creditors to the
indebtedness hereby guaranteed is thereafter set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of the Borrower or any other obligor),
the indebtedness hereby guaranteed to which such payment was applied shall for
the purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such of the indebtedness hereby guaranteed as fully as if such application had
never been made.
Section 15. The liability of the Guarantors under this Guaranty is in
addition to and shall be cumulative with all other liabilities of the Guarantors
after the date hereof to the
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Guaranteed Creditors as a guarantor of the indebtedness hereby guaranteed,
without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the
contrary.
Section 16. Any invalidity or unenforceability of any provision or
application of this Guaranty shall not affect other lawful provisions and
applications hereof, and to this end the provisions of this Guaranty are
declared to be severable. Without limiting the generality of the foregoing, any
invalidity or unenforceability against any Guarantor of any provision or
application of the Guaranty shall not affect the validity or enforceability of
the provisions or application of this Guaranty as against the other Guarantors.
Section 17. Any demand for payment on this Guaranty or any other
notice required or desired to be given hereunder to any Guarantor shall be in
writing (including, without limitation, notice by telecopy) and shall be given
to the relevant party at its address or telecopier number set forth on the
appropriate signature page hereof, or such other address or telecopier number as
such party may hereafter specify by notice to the Agent given by United States
certified or registered mail, by telecopy or by other telecommunication device
capable of creating a written record of such notice and its receipt. Each such
notice, request or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopier number specified
in this Section and a confirmation of such telecopy has been received by the
sender, (ii) if given by mail, 5 days after such communication is deposited in
the mail, certified or registered with return receipt requested, addressed as
aforesaid or (iii) if given by any other means, when delivered at the addresses
specified in this Section.
Section 18. No Lender or Letter of Credit Issuer shall have the right
to institute any suit, action or proceeding in equity or at law in connection
with this Guaranty for the enforcement of any remedy under or upon this
Guaranty; it being understood and intended that no one or more of the Lenders or
Letter of Credit Issuers shall have any right in any manner whatsoever to
enforce any right hereunder, and that all proceedings at law or in equity shall
be instituted, had and maintained by the Agent in the manner herein provided for
the benefit of the Guaranteed Creditors.
Section 19. The Guarantors are concurrently herewith granting Liens
on substantially all of their assets as security for the indebtedness hereby
guaranteed, including certain real property. In consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrower by
the Guaranteed Creditors from time to time, the Guarantors hereby
unconditionally agree to forever indemnify, defend and hold harmless, and
covenant not to sue for any claim for contribution against, the Guaranteed
Creditors for any damages, costs, loss or expense, including without limitation,
response, remedial or removal costs, arising out of any of the following: (i)
any presence, release, threatened release or disposal of any hazardous or toxic
substance or petroleum by the Borrower or any Guarantor or otherwise occurring
on or with respect to their property, (ii) the operation or violation of any
environmental law, whether federal, state, or local, and any regulations
promulgated thereunder, by the Borrower or any Guarantor or otherwise occurring
on or with respect to their property, (iii) any claim for personal injury or
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property damage in connection with the Borrower or any Guarantor or otherwise
occurring on or with respect to their property, and (iv) the inaccuracy or
breach of any environmental representation, warranty or covenant by the Borrower
or any Guarantor made in any loan agreement, promissory note, mortgage, deed of
trust, security agreement or any other instrument or document evidencing or
securing any indebtedness, obligations or liabilities of the Borrower or any
Guarantor owing to the Guaranteed Creditors or setting forth terms and
conditions applicable thereto or otherwise relating thereto, except for damages
arising from the Guaranteed Creditors' willful misconduct or gross negligence.
This indemnification shall survive the payment and satisfaction of all
indebtedness, obligations and liabilities of the Borrower and the Guarantors
owing to the Guaranteed Creditors and the termination of this Guaranty, and
shall remain in force beyond the expiration of any applicable statute of
limitations and payment or satisfaction in full of any single claim under this
indemnification. This indemnification shall be binding upon the successors and
assigns of the Guarantors and shall inure to the benefit of Guaranteed Creditors
and their directors, officers, employees, agents, and collateral trustees, and
their successors and assigns.
Section 20. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE OF ILLINOIS (without regard to principles of
conflicts of laws) in which state it shall be performed by the Guarantors and
may not be waived, amended, released or otherwise changed except by a writing
signed by the Agent. This Guaranty and every part thereof shall be effective
upon delivery to the Agent, without further act, condition or acceptance by the
Guaranteed Creditors, shall be binding upon the Guarantors and upon the legal
representatives, successors and assigns of the Guarantors, and shall inure to
the benefit of the Guaranteed Creditors, their successors, legal representatives
and assigns. The Guarantors waive notice of the Guaranteed Creditors'
acceptance hereof. This Guaranty may be executed in counterparts and by
different parties hereto on separate counterparts each of which shall be an
original, but all together to be one and the same instrument.
Section 21. Each Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Northern District of
Illinois and of any Illinois State court sitting in Cook County, Illinois, for
purposes of all legal proceedings arising out of or relating to this Guaranty or
the transactions contemplated hereby. Each Guarantor 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 court has been brought in
an inconvenient forum. EACH GUARANTOR AND, BY ACCEPTING THE BENEFITS OF THIS
AGREEMENT, EACH GUARANTEED CREDITOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Pages to follow]
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In Witness Whereof, the Guarantors have caused this Guaranty to be executed
and delivered as of the date first above written.
"GUARANTORS"
FOUNTAIN VIEW HOLDINGS, INC.
LOCOMOTION HOLDINGS, INC.
FOUNTAIN VIEW MANAGEMENT, INC.
SYCAMORE PARK CONVALESCENT HOSPITAL
AIB CORP.
ELMCREST CONVALESCENT HOSPITAL
BRIER OAK CONVALESCENT, INC.
BIA HOTEL CORP.
RIO HONDO NURSING CENTER
FOUNTAINVIEW CONVALESCENT HOSPITAL
ALEXANDRIA CONVALESCENT HOSPITAL, INC.
I.'N O., INC.
SUMMIT CARE CORPORATION
SUMMIT CARE-CALIFORNIA, INC.
SUMMIT CARE-TEXAS NO. 2, INC.
SUMMIT CARE-TEXAS NO. 3, INC.
SUMMIT CARE PHARMACY, INC.
SKILLED CARE NETWORK
SUMMIT CARE TEXAS EQUITY, INC.
SUMMIT CARE MANAGEMENT TEXAS, INC.
SNF PHARMACY, INC.
FV-SCC ACQUISITION CORP.
By /s/ Robert M. Snukal
--------------------------------------
Name: Robert M. Snukal
Title: President
Address:
11900 West Olympic Blvd., Suite 680
Los Angeles, CA 90064
Attention: Robert M. Snukal
Telephone: (310) 571-0351
Telecopy: (310) 571-0365
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Locomotion Therapy, Inc.
On-Track Therapy Center, Inc.
By /s/ Robert M. Snukal
--------------------------------------
Name: Robert M. Snukal
Title: Chief Executive Officer
Address:
11900 West Olympic Blvd., Suite 680
Los Angeles, CA 90064
Attention: Robert M. Snukal
Telephone: (310) 571-0351
Telecopy: (310) 571-0365
SUMMIT CARE TEXAS, L.P.
By: Summit Care Management Texas, Inc.,
in its capacity as general partner
By:/s/ Robert M. Snukal
--------------------------------------
Robert M. Snukal, President
By: Summit Care Texas Equity, Inc.,
in its capacity as limited partner
By: /s/ Robert M. Snukal
--------------------------------------
Robert M. Snukal, President
Address:
11900 West Olympic Blvd., Suite 680
Los Angeles, CA 90064
Attention: Robert M. Snukal
Telephone: (310) 571-0351
Telecopy: (310) 571-0365
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Accepted and agreed to in Chicago, Illinois as of the date first above
written.
BANK OF MONTREAL, AS AGENT
By /s/ Mark F. Spencer
--------------------------------------
Name Mark F. Spencer
-----------------------------------
Title Managing Director
----------------------------------
Address:
601 South Figueroa Street, Suite 4900
Los Angeles, CA 90017
Attention: Ronald Launsbach
Telephone: (213) 239-0602
Telecopy: (213) 239-0680
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EXHIBIT A
TO
GUARANTY AGREEMENT
ASSUMPTION AND SUPPLEMENT TO GUARANTY AGREEMENT
This Assumption and Supplement to Guaranty Agreement (the "Agreement") is
dated as of this _____ day of ____________, _____, made by [NEW GUARANTOR], a
___________ corporation (the "New Guarantor");
WITNESSETH THAT:
Whereas, certain parties have executed and delivered to the Guaranteed
Creditors that certain Guaranty Agreement dated as of April 16, 1998 (such
Guaranty Agreement, as the same may from time to time be amended, modified, or
restated, including supplements thereto which add or substitute parties as
Guarantors thereunder, being hereinafter referred to as the "Guaranty") pursuant
to which such parties (the "Existing Guarantors") have guaranteed to the
Guaranteed Creditors the full and prompt payment of, among other things, any and
all indebtedness, obligations and liabilities of Fountain View, Inc. (the
"Borrower") arising under or relating to the Credit Agreement and the Loan
Documents as defined therein; and
Whereas, the Borrower provides the New Guarantor with substantial
financial, managerial, administrative and technical support and the New
Guarantor will directly and substantially benefit from credit and other
financial accommodations extended and to be extended by the Guaranteed Creditors
to the Borrower;
Now, therefore, for value received, and in consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrower by
the Guaranteed Creditors from time to time, the New Guarantor hereby agrees as
follows:
1. The New Guarantor acknowledges and agrees that it shall become a
"Guarantor" party to the Guaranty effective upon the date of the New Guarantor's
execution of this Agreement and the delivery of this Agreement to the Agent on
behalf of the Guaranteed Creditors, and that upon such execution and delivery,
all references in the Guaranty to the terms "Guarantor" or "Guarantors" shall be
deemed to include the New Guarantor.
2. The New Guarantor hereby assumes and becomes liable (jointly and
severally with all the other Guarantors) for the indebtedness hereby guaranteed
(as defined in the Guaranty) and agrees to pay and perform all of the
obligations of a Guarantor under the Guaranty according to, and otherwise on and
subject to, the terms and conditions of the Guaranty to the same extent and with
the same force and effect as if the New Guarantor had originally been one of the
Existing Guarantors under the Guaranty and had originally executed the same as
such an Existing Guarantor.
3. All capitalized terms used in this Agreement without definition shall
have the same meaning herein as such terms have in the Guaranty, except that any
reference to the term "Guarantor" or "Guarantors" and any provision of the
Guaranty providing meaning to such term shall be deemed a reference to the
Existing Guarantors and the New Guarantor. Except as specifically modified
hereby, all of the terms and conditions of the Guaranty shall stand and remain
unchanged and in full force and effect.
4. The New Guarantor agrees to execute and deliver such further
instruments and documents and do such further acts and things as the Agent or
the Guaranteed Creditors may deem necessary or proper to carry out more
effectively the purposes of this Agreement.
5. No reference to this Agreement need be made in the Guaranty or in any
other document or instrument making reference to the Guaranty, any reference to
the Guaranty in any of such to be deemed a reference to the Guaranty as modified
hereby.
6. This Agreement shall be governed by and construed in accordance with
the State of Illinois (without regard to principles of conflicts of law) in
which state it shall be performed by the New Guarantor.
[NEW GUARANTOR]
By_______________________
Name___________________
Title__________________
Acknowledged and agreed to as of the date first above written.
Bank of Montreal, as Agent
By_______________________
Name___________________
Title__________________
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