Exhibit 4.11
Amended and Restated Guaranty Agreement
This Amended and Restated Guaranty Agreement (the "Guaranty") dated as of
this 15 day of May, 1997, 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, the Guarantors are direct or indirect subsidiaries of Everest
Healthcare Services Corporation, a Delaware corporation ("Company"); and
Whereas, the Company and Harris Trust and Savings Bank ("HTSB"),
individually and as agent (HTSB acting as such agent and any successor or
successors to HTSB in such capacity being hereinafter referred to as the
"Agent") have entered into an Amended and Restated Credit Agreement dated as of
even date herewith (such Amended and Restated Credit Agreement as the same may
from time to time hereafter be modified, amended or restated being hereinafter
referred to as the "Credit Agreement") pursuant to which HTSB and such other
lenders from time to time parties thereto (HTSB and such other lenders being
hereinafter referred to collectively as the "Lenders" and individually as a
"Lender") have extended various credit facilities to the Company (the Agent and
the Lenders being hereinafter referred to collectively as the "Guaranteed
Creditors" and individually as a "Guaranteed Creditor"); and
Whereas, the Company 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 for the purpose of hedging or otherwise
protecting the Company against changes in interest rates (the liability of the
Company in respect of such agreements with such Lenders being hereinafter
referred to as the "Hedging Liability"); and
Whereas, the Company 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 Company
under the Credit Agreement, the Lenders 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 Lenders to
the Company because, among other things, the Company will reloan all or most of
such credit to the Guarantors; 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 Company by
the Lenders 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:
1. All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
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 owing to the Guaranteed Creditors, and
any of them, by the Company under or in connection with or evidenced by (w) the
Credit Agreement or (x) all notes issued by the Company under the Credit
Agreement and any and all notes issued in extension or renewal thereof or in
substitution or replacement therefor (collectively, the "Notes") or (y) any
instrument or document executed by the Company granting to the Agent a lien on
or security interest in any assets or property of the Company or any Guarantor
in order to secure repayment of all or any part of the indebtedness, obligations
and liabilities owing by the Company or any Guarantor under or in connection
with or evidenced by the Credit Agreement or any of the Notes, Applications,
Letters of Credit, or Hedging Agreements (the "Collateral Documents,") or (z)
any Hedging Liability or any instrument or document executed by the Company in
connection therewith (herein, the "Hedging Agreements"), in each case whether
now existing or hereafter arising (and whether arising before or after the
filing of a petition in bankruptcy), due or to become due, direct or indirect,
absolute or contingent, and howsoever evidenced, held or acquired, (ii) the
obligations of the Company to reimburse the Guaranteed Creditors, and any of
them, for the amount of all drawings on all letters of credit (the "Letters of
Credit") issued for the account of the Company pursuant to the Credit Agreement,
and all other obligations, whether now existing or hereafter arising (and
whether arising before or after the filing of a petition in bankruptcy), of the
Company under any and all applications for such Letters of Credit (each an
"Application"; the Notes, the Letters of Credit, the Credit Agreement, the
Applications, the Collateral Documents, the Hedging Agreements and any guaranty
or security agreement executed by another subsidiary or affiliate of the Company
in connection with any of the foregoing being hereinafter collectively referred
to as the "Credit Documents"), and (iii) any and all expenses and charges, legal
or otherwise, suffered or incurred by the Guaranteed Creditors, and any of them,
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), (ii), and (iii) are hereinafter
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referred to as the "indebtedness hereby guaranteed". In case of failure by the
Company 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 Company. Notwithstanding in this Guaranty to the contrary, the
right of recovery against any Guarantor under this Guaranty shall not exceed $1
less the amount which would render such Guarantor's Obligations under this
Guaranty void or voidable under applicable law, including fraudulent conveyance
law.
3. Each Guarantor further jointly and severally agrees to pay all
reasonable 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,
and in protecting, defending or enforcing this Guaranty in any litigation,
bankruptcy or insolvency proceedings or otherwise.
4. Each Guarantor agrees that upon demand, such Guarantor will then pay
to the Agent for the benefit of the Guaranteed Creditors the full amount of the
indebtedness hereby guaranteed then due 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.
5. Each of the Guarantors 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
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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.
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 19 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 19 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.
7. This Guaranty is a continuing, absolute and unconditional Guaranty,
and shall remain in full force and effect until written notice of its
discontinuance executed by the Company and all the Guarantors shall be actually
received by the Guaranteed Creditors, and also until any and all of the
indebtedness hereby guaranteed which was created or existing before receipt of
such notice 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 dissolution of any Guarantor shall not
terminate this Guaranty as to such Guarantor until notice of such dissolution
shall have been actually received by the Guaranteed Creditors, nor until all of
the indebtedness hereby guaranteed, created or existing or committed to be
extended in each case before receipt of such notice shall be fully paid and
satisfied. 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.
8. In case of the dissolution, liquidation or insolvency (howsoever
evidenced) of, or the institution of bankruptcy or receivership proceedings
against the Company or any Guarantor, all of the indebtedness hereby guaranteed
which is then existing shall, at the option of the Required Lenders (as defined
in the Credit Agreement), immediately become due or accrued and payable from the
Guarantors. All payments received from the Company 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.
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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, indulgence, alteration,
substitution, exchange, change in, modification or other disposition of any of
the indebtedness hereby guaranteed, either express or implied, or of any Credit
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, or to
exercise any lien upon or right of appropriation of any moneys, credits or
property of the Company 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 Company 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.
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.
11. All diligence in collection or protection, and all presentment,
demand, protest and/or notice, as to any and everyone, whether or not the
Company 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.
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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.
13. The Guarantors waive any and all defenses, claims and discharges of
the Company, or any other obligor, 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 Company 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 Company 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 Company or any other obligor for such deficiency is
discharged pursuant to statute or judicial decision.
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 Company 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.
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 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.
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.
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17. Each of the Guarantors jointly and severally agrees to pay to the
Agent for the benefit of the Guaranteed Creditors all reasonable costs and
expenses (including court costs and reasonable attorneys' fees) suffered or
incurred by the Guaranteed Creditors in enforcing or endeavoring to enforce the
Guarantors' obligations hereunder, or any part thereof, and in protecting,
defending or enforcing the Guarantors' obligations hereunder in any litigation,
bankruptcy or insolvency or proceedings or otherwise.
18. 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, five (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.
19. No Lender 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 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 and for the benefit of the Lenders.
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
Guaranteed Creditors. 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.
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21. Upon the execution of this Guaranty by the Guarantors and the Agent,
this Guaranty shall supersede all provisions of that certain Guaranty Agreement
dated as of April 16, 1996, as supplemented, among certain of the Guarantors and
the Agent (the "Prior Guaranty"). The Guarantors agree that, notwithstanding
the execution and delivery of this Guaranty, the obligations of such Guarantors
created and provided for under the Prior Guaranty continue in effect (without
duplication) under and pursuant to the terms of this Guaranty for the benefit of
all of the indebtedness hereby guaranteed.
22. 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 the City of Chicago for purposes of all
legal proceedings arising out of or relating to this Guaranty, the other Credit
Documents or the transactions contemplated hereby or thereby. 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, the Agent and
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 any
other Credit Document or the transactions contemplated hereby or thereby.
[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"
WSKC Dialysis Services, Inc.
/s/ John B. Bourke
By____________________________________
Asst. Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Ohio Valley Dialysis Center, Inc.
/s/ John B. Bourke
By____________________________________
Secretary/Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Northwest Indiana Dialysis, Inc.
/s/ John B. Bourke
By____________________________________
Asst. Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
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New York Dialysis Management, Inc.
/s/ John B. Bourke
By____________________________________
Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Mercy Dialysis Center, Inc.
/s/ John B. Bourke
By____________________________________
Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
DuPage Dialysis, Ltd.
/s/ John B. Bourke
By____________________________________
Asst. Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
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Lake Avenue Dialysis Center, Inc.
/s/ John B. Bourke
By____________________________________
Asst. Treasurer
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Home Dialysis of America, Inc.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Amarillo Acute Dialysis Specialists,
L.L.C.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
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Dialysis Specialists of Corpus Christi,
L.L.C.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Home Dialysis of Eastagate, Inc.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Dialysis Services of Cincinnati, Inc.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
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Dialysis Specialists of Marietta, Ltd.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Saint Margaret Mercy Dialysis
Centers, L.L.C.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Everest Management, Inc.
/s/ John B. Bourke
By____________________________________
CFO
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
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The Extracorporeal Alliance, L.L.C.
By: Everest Management, Inc., as Manager
/s/ John B. Bourke
By____________________________________
Secretary
Its_________________________________
Address:
101 North Scoville
Oak Park, Illinois 60302
Attention: Mr. John B. Bourke
Telephone: (708) 386-9076
Telecopy: (708) 386-1711
Accepted and agreed to in Chicago, Illinois as of the date first above written.
Harris Trust and Savings Bank, as Agent
/s/ Michael W. Lewis
By____________________________________
Senior Vice President
Its_________________________________
Address:
111 West Monroe Street, 4E
P.O. Box 755
Chicago, Illinois 60690
Attention: Ms. Gloria Compean
Telephone: (312) 461-2324
Telecopy: (312) 461-7365
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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 ____________, 199___, made by [new guarantor], a
___________ corporation (the "New Guarantor");
Witnesseth that:
Whereas, certain parties have executed and delivered to the Guaranteed
Creditors that certain Amended and Restated Guaranty Agreement dated as of May
15, 1997, (such Amended and Restated Guaranty Agreement, as the same may from
time to time be modified or amended, 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 Everest
Healthcare Services Corporation (the "Company") arising under or relating to the
Credit Agreement and the other Credit Documents described therein; and
Whereas, the Company provides the New Guarantor with substantial financial,
managerial, administrative, technical and design support and the New Guarantor
will directly and substantially benefit from credit and other financial
accommodations extended and to be extended by the Lenders to the Company;
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 Company by
the Lenders 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 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 otherwise 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
Its____________________________________
Acknowledged and agreed to in Chicago, Illinois as of the date first above
written.
Harris Trust and Savings Bank, as
Agent
By
Its____________________________________
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