GUARANTY
--------
THIS GUARANTY, dated as of October 7, 2003 (the "Guaranty") is executed
in favor of LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent, and the
Lender Parties referred to below.
R E C I T A L S
- - - - - - - -
A. Akorn, Inc., ("Akorn") and Akorn (New Jersey), Inc. ("Akorn New
Jersey" and together with Akorn, the "Companies" and each, a "Company") have
entered into a Credit Agreement dated as of October 7, 2003 (as amended,
restated, modified or supplemented from time to time, the "Credit Agreement";
terms used but not defined herein are used as defined in the Credit Agreement)
with various financial institutions and LaSalle Bank National Association, as
agent (in its capacity as agent, together with any successor in such capacity,
the "Administrative Agent"), pursuant to which such financial institutions have
agreed to make loans to, and issue or participate in letters of credit for the
account of, the Companies.
B. Each of the undersigned is a significant shareholder of Akorn and
will benefit from the making of loans and issuance of letters of credit pursuant
to the Credit Agreement and is willing to guaranty the Guaranteed Obligations
(as defined below) as hereinafter set forth.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the undersigned hereby jointly and
severally, unconditionally and irrevocably, as primary obligor and not merely as
surety, guarantees the full and prompt payment when due, whether by acceleration
or otherwise, and at all times thereafter, of all obligations (monetary or
otherwise) of the Companies (including all Obligations) to each of the
Administrative Agent and each Lender Party (as defined below) under or in
connection with the Credit Agreement, the Notes, any other Loan Document and any
other document or instrument executed in connection therewith and all Hedging
Obligations of the Companies to any Lender Party, in each case howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due (all such
obligations being herein collectively called the "Guaranteed Obligations"), plus
all costs and expenses paid or incurred by the Administrative Agent or any
Lender Party in enforcing this Guaranty against such undersigned. As used
herein, "Lender Party" means each Lender under and as defined in the Credit
Agreement and any Affiliate of such a Lender which is a party to a Hedging
Agreement with either Company.
Each of the undersigned agrees upon the occurrence of (a) any Event of
Default under Section 13.1.4 of the Credit Agreement or (b) the death of Xx.
Xxxx X. Xxxxxx, in either case at a time when any of the Guaranteed Obligations
may not then be due and payable, such undersigned will pay to the Administrative
Agent for the account of the Lender Parties forthwith the full amount which
would be payable hereunder by such undersigned if all Guaranteed Obligations
were then due and payable.
To secure all obligations of each of the undersigned hereunder, the
Administrative Agent and each Lender Party shall have a lien on and security
interest in and may, without demand or
notice of any kind, at any time and from time to time when any Event of Default
exists, appropriate and apply toward the payment of such amount, in such order
of application as the Administrative Agent and the Lender Parties may elect, any
and all balances, credits, deposits, accounts or moneys of or in the name of
such undersigned now or hereafter with the Administrative Agent or such Lender
Party and any and all property of every kind or description of or in the name of
such undersigned now or hereafter, for any reason or purpose whatsoever, in the
possession or control of, or in transit to, the Administrative Agent or such
Lender Party or any agent or bailee for the Administrative Agent or such Lender
Party.
To further secure all obligations of each of the undersigned hereunder,
the undersigned shall cause to be delivered to the Administrative Agent one or
more unconditional stand-by letters of credit (collectively, the "Letter of
Credit") issued by a bank reasonably satisfactory to the Administrative Agent
with a stated amount of not less than $5,500,000 (the "L/C Collateralized
Guaranty Amount"), in form and substance reasonably satisfactory to the
Administrative Agent. The Letter of Credit shall name the Administrative Agent
and the Lenders as beneficiaries thereof and shall be subject to drawing by the
Administrative Agent if an Event of Default occurs and is continuing under the
Credit Agreement. The Letter of Credit shall remain in full force and effect
during the term of the Credit Agreement and this Guaranty. The difference
between (a) the aggregate principal amount of all Guaranteed Obligations minus
(b) the L/C Collateralized Guaranty Amount shall be hereafter referred to as the
"Uncollateralized Guaranty Amount".
Notwithstanding anything to the contrary set forth herein, the
Uncollateralized Guaranty Amount shall be reduced to the amounts set forth below
if EBITDA of Akorn and its Subsidiaries is at or above the level specified below
for the corresponding period (such reduction to be effective as provided below):
UNCOLLATERALIZED
PERIOD EBITDA GUARANTY AMOUNT
------- ------ ----------------
10/1/03-6/30/04 $4,600,000 $3,500,000
10/1/03-7/31/04 $4,600,000 $3,500,000
10/1/03-8/31/04 $4,600,000 $3,500,000
10/1/03-9/30/04 $6,700,000 $2,000,000
10/1/03-10/31/04 $6,700,000 $2,000,000
10/1/03-11/30/04 $6,700,000 $2,000,000
Twelve month period ending 12/31/04 and the $8,000,000 $0
twelve month period ending on the last day
of each calendar month thereafter
-2-
provided, that if after any such reduction of the Uncollateralized Guaranty
Amount, EBITDA for any twelve month period ceases to be above $6,700,000, the
Uncollateralized Guaranty Amount shall automatically and without further action
by any party increase and reinstate to the Uncollateralized Guaranty Amount
corresponding to such EBITDA (and if EBITDA for such later period falls below
$4,600,000, the Uncollateralized Guaranty Amount shall be increased back to the
full original Uncollateralized Guaranty Amount) regardless of whether the
Uncollateralized Guaranty Amount had previously been reduced to zero. All
calculations of EBITDA shall be made in accordance with the requirements of the
Credit Agreement. The effective date of any reduction of the Uncollateralized
Guaranty Amount shall be the date which is 10 Business Days after which the
Companies deliver a properly completed Compliance Certificate for the relevant
period specified in the chart above to the Administrative Agent; provided that
if the Administrative Agent disagrees with any such EBITDA calculation, the
Uncollateralized Guaranty Amount shall not be subject to reduction until Akorn's
independent auditor has confirmed such EBITDA calculation in writing as
complying with GAAP and the requirements of the Credit Agreement. The
Uncollateralized Guaranty Amount shall not be subject to reduction at any time
that a Default or an Event of Default has occurred and is continuing under the
Credit Agreement (but such Default or Event of Default shall not affect any
prior reduction in accordance with this Guaranty). No reduction of the
Uncollateralized Guaranty Amount shall affect the undersigned's obligations with
respect to the full L/C Collateralized Guaranty Amount or any costs or expenses
of collection hereunder (neither of which shall be subject to reduction).
So long as this Guaranty is continuing, each of the undersigned
covenants and agrees to furnish to the Administrative Agent or its authorized
representatives information regarding the business affairs, operations and
financial condition of each of the undersigned, including, but not limited to,
as soon as available, and in any event, within one hundred twenty (120) days of
the end of each calendar year, (i) an annual financial statement in form and
substance reasonably acceptable to the Administrative Agent, and (ii) such other
information (including nonfinancial information) as the Administrative Agent may
reasonably request, all in reasonable detail and prepared and certified jointly
and severally by each of the undersigned as true and accurate and fairly
representing the financial condition of each of the undersigned. The undersigned
jointly and severally represent and warrant that the financial statements of
each of the undersigned furnished to the Administrative Agent at or prior to the
execution and delivery of this Guaranty fairly present the financial condition
of each of the undersigned for the periods shown therein, and since the dates
covered by the most recent of such financial statements, there has been no
material adverse change in the undersigned's business operations or financial
condition. Each of the undersigned covenants and agrees that upon any material
adverse change in its financial condition, it shall promptly furnish to the
Administrative Agent or its authorized representatives written updates
concerning such change together with any additional information as the
Administrative Agent may reasonably request (including nonfinancial
information), prepared and certified by the undersigned providing such updates
as true and accurate and fairly representing the financial condition of such
undersigned. The undersigned jointly and severally represent and warrant that
except as expressly shown on the most recent of such financial statements, each
of the undersigned (a) owns all of its assets free and clear of all Liens
(except for Liens that would not in the aggregate cause the next succeeding
sentence to be violated); (b) is not a party to any litigation, nor is any
litigation threatened to the knowledge of the undersigned which would, if
adversely determined, cause any material adverse change in its business or
financial condition;
-3-
and (c) has no delinquent tax liabilities, nor have any tax deficiencies been
proposed against it. Neither of the undersigned shall sell, lease, transfer,
convey, pledge, encumber, grant a security interest in or assign (any such
action, a "Transfer") any of its assets, unless such Transfer is in an amount
which, after giving effect thereto, would leave the undersigned with
unencumbered assets, after deducting all liabilities and obligations of the
undersigned (including Contingent Liabilities), equal to at least 125% of the
Uncollateralized Guaranty Amount. Without limitation of the foregoing, The Xxxx
X. Xxxxxx Trust dated September 20, 1989 (the "Kapoor Trust") agrees to maintain
at all times cash and/or investment grade bonds and/or shares of stock listed
and traded on the New York Stock Exchange or NASDAQ in an amount not less than
the lesser of (i) $5,000,000 and (ii) the Uncollateralized Guaranty Amount (the
"Marketable Securities Reserve") (which need not be held at or with a Lender
Party but which shall be identified on the Kapoor Trust's financial statements
or supplemental schedules thereto and any updates thereof (and the lists of
account or accounts in which such cash, bonds or shares are held shall be or
shall have been provided to the Administrative Agent)). The cash, bonds and
shares of stock constituting the Marketable Securities Reserve shall at all
times be owned legally and beneficially by the Kapoor Trust free and clear of
all Liens or adverse claims: provided, that the Marketable Securities Reserve
may be held through one or more privately held partnership interests (the legal
and beneficial owner of which is the Kapoor Trust) but only if there are no
consent requirements or restrictions on the ability of the Kapoor Trust to
direct such partnerships to sell or transfer the Marketable Securities Reserve
(other than customary notice requirements (not to exceed 30 days) to cause a
distribution of assets held by such partnerships) and the liquidity of the
Marketable Securities Reserve is not otherwise restricted.
This Guaranty shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time no Guaranteed Obligations are
outstanding) until all Commitments have terminated and all Guaranteed
Obligations have been paid in full.
The undersigned further agree that if at any time all or any part of
any payment theretofore applied by the Administrative Agent or any Lender Party
to any of the Guaranteed Obligations is or must be rescinded or returned by the
Administrative Agent or such Lender Party for any reason whatsoever (including
the insolvency, bankruptcy or reorganization of either Company or any of the
undersigned), such Guaranteed Obligations shall, for the purposes of this
Guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Administrative Agent or such Lender Party, and this Guaranty shall continue
to be effective or be reinstated, as the case may be, as to such Guaranteed
Obligations, all as though such application by the Administrative Agent or such
Lender Party had not been made.
The Administrative Agent or any Lender Party may, from time to time, at
its sole discretion and without notice to the undersigned (or any of them), take
any or all of the following actions: (a) retain or obtain a security interest in
any property to secure any of the Guaranteed Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the undersigned, with respect to any of the
Guaranteed Obligations, (c) extend or renew any of the Guaranteed Obligations
for one or more periods (whether or not longer than the original period), alter
or exchange any of the Guaranteed
-4-
Obligations, or release or compromise any obligation of any of the undersigned
hereunder or any obligation of any nature of any other obligor with respect to
any of the Guaranteed Obligations, (d) release its security interest in, or
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any of the Guaranteed Obligations or any obligation
hereunder, or extend or renew for one or more periods (whether or not longer
than the original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such property, and
(e) resort to the undersigned (or any of them) for payment of any of the
Guaranteed Obligations when due, whether or not the Administrative Agent or such
Lender Party shall have resorted to any property securing any of the Guaranteed
Obligations or any obligation hereunder or shall have proceeded against any
other of the undersigned or any other obligor primarily or secondarily obligated
with respect to any of the Guaranteed Obligations.
The undersigned's liability under this Guaranty shall in no way be
modified, affected, impaired, reduced, released or discharged by any of the
following (any or all of which may be done or omitted by the Administrative
Agent and/or each Lender Party in its sole discretion, without notice to anyone
and irrespective of whether the Guaranteed Obligations shall be increased or
decreased thereby): (a) any acceptance by the Administrative Agent and/or each
Lender Party of any new or renewal note or notes of either Company, or of any
security or collateral for, or other guarantors or obligors upon, any of the
Guaranteed Obligations; (b) any compromise, settlement, surrender, release,
discharge, renewal, refinancing, extension, alteration, exchange, sale, pledge
or election with respect to the Guaranteed Obligations, or any note by either
Company, or with respect to any collateral under Section 1111 or take any action
under Section 364, or any other section of the United States Bankruptcy Code,
now existing or hereafter amended, or other disposition of, or substitution for,
or indulgence with respect to, or failure, neglect or omission to realize upon,
or to enforce or exercise any liens or rights of appropriation or other rights
with respect to, the Guaranteed Obligations or any security or collateral
therefor or any claims against any person or persons primarily or secondarily
liable thereon; (c) any failure, neglect or omission to perfect, protect, secure
or insure any of the foregoing security interests, liens, or encumbrances of the
properties or interests in properties subject thereto; (d) any change in either
Company's name or the merger of either Company into another corporation; (e) any
act of commission or omission of any kind or at any time upon the part of the
Administrative Agent and/or any Lender Party with respect to any matter
whatsoever, other than the execution and delivery by the Administrative Agent to
the undersigned of an express written release or cancellation of this Guaranty;
or (f) the payment in full of the Guaranteed Obligations unless such payment in
full is indefeasible and all Commitments have been terminated. The undersigned
hereby consent to all acts of commission or omission of the Administrative Agent
and/or any Lender Party set forth above and agrees that the standards by which
good faith, diligence, reasonableness and care shall be measured, shall be
determined and governed solely by the terms and provisions hereof.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Administrative Agent or any Lender Party of this Guaranty, (b)
notice of the existence or creation or non-payment of all or any of the
Guaranteed Obligations, (c) presentment, demand, notice of dishonor, protest,
and all other notices whatsoever, and (d) all diligence in collection or
protection of or realization upon any Guaranteed Obligations or any security for
or guaranty of any Guaranteed Obligations.
-5-
Each of the undersigned hereby expressly and irrevocably: (a) waives,
to the fullest extent possible, on behalf of itself and successors and assigns
(including any surety) and any other Person (until the Guaranteed Obligations
have been indefeasibly paid in full and the Commitments have terminated), any
and all rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification, set off or to any other rights that could accrue
to a surety against a principal, a guarantor against a maker or obligor, an
accommodation party against the party accommodated, a holder or transferee
against a maker, or to the holder of a claim against any person, and which
either of the undersigned may have or hereafter acquire against any person in
connection with or as a result of the undersigned's execution, delivery and/or
performance of this Guaranty, or any other documents to which either of the
undersigned is a party or otherwise; (b) waives any "claim" (as such term is
defined in the United States Bankruptcy Code) of any kind against the Companies,
and further agrees that it shall not have or assert any such rights against any
person (including any surety), either directly or as an attempted set off to any
action commenced against either of the undersigned by the Administrative Agent
or any other person; and (c) acknowledges and agrees (i) that the foregoing
waivers are intended to benefit the Administrative Agent and each Lender Party
and shall not limit or otherwise affect the undersigned's liability hereunder or
the enforceability of this Guaranty, (ii) that the Companies and their
successors and assigns are intended third party beneficiaries of the foregoing
waivers, and (iii) the agreements set forth in this paragraph and the
Administrative Agent and each Lender Party's rights under this paragraph shall
survive payment in full of the Guaranteed Obligations.
Each of the undersigned waives any and all defenses, claims and
discharges of the Companies, or any other obligor, pertaining to the Guaranteed
Obligations, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, each of the undersigned will not
assert, plead or enforce against the Administrative Agent and/or any Lender
Party any defense of waiver, release, discharge in bankruptcy, statute of
limitations, res judicata, statute of frauds, anti-deficiency statute, fraud,
incapacity, minority, usury, illegality or unenforceability which may be
available to either Company or any other person liable in respect of any of the
Guaranteed Obligations, or any setoff available against the Administrative Agent
and/or any Lender Party to the Borrower or any such other person, whether or not
on account of a related transaction. Each of the undersigned expressly agrees
that it shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the Guaranteed
Obligations, whether or not the liability of the Companies or any other obligor
for such deficiency is discharged pursuant to statute or judicial decision.
Notwithstanding any payment made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any right of the Administrative Agent or any Lender Party until such time as
the Administrative Agent and the Lender Parties shall have received indefeasible
payment in cash of the full amount of all Guaranteed Obligations and all
Commitments have been terminated.
Each of the undersigned further agrees to pay all expenses (including
the reasonable attorneys' fees and charges) paid or incurred by the
Administrative Agent or any Lender Party in endeavoring to collect the
Guaranteed Obligations of such undersigned, or any part thereof, and in
enforcing this Guaranty against such undersigned.
-6-
The creation or existence from time to time of additional Guaranteed
Obligations to the Administrative Agent or the Lender Parties or any of them is
hereby authorized, without notice to the undersigned (or any of them), and shall
in no way affect or impair the rights of the Administrative Agent or the Lender
Parties or the obligations of the undersigned under this Guaranty, including
each of the undersigned's guaranty of such additional Guaranteed Obligations.
The Administrative Agent and any Lender Party may from time to time
without notice to the undersigned (or any of them), assign or transfer any or
all of the Guaranteed Obligations or any interest therein; and, notwithstanding
any such assignment or transfer or any subsequent assignment or transfer
thereof, such Guaranteed Obligations shall be and remain Guaranteed Obligations
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Guaranteed Obligations or of any interest
therein shall, to the extent of the interest of such assignee or transferee in
the Guaranteed Obligations, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were an original Lender Party.
The Administrative Agent agrees that, if the Guaranteed Obligations
have been indefeasibly paid in full by the undersigned, upon the request of the
undersigned, it will take such steps as are reasonably requested by the
undersigned (at the sole expense of the undersigned) to assign the Loan
Documents to the undersigned (which assignment shall be without recourse,
representation or warranty); provided that the Administrative Agent is
reasonably satisfied at such time that such assignment will not result in any
liability or impairment on the part of the Administrative Agent or the Lender
Parties. The Companies hereby irrevocably consent to any such assignment.
No delay on the part of the Administrative Agent or any Lender Party in
the exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent or any Lender Party of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any amendment, modification or
waiver of any provision of this Guaranty be binding upon the Administrative
Agent and the Lender Parties or the undersigned, except as expressly set forth
in a writing duly signed and delivered on behalf of the Administrative Agent or
the undersigned, as the case may be. No action of the Administrative Agent or
any Lender Party permitted hereunder shall in any way affect or impair the
rights of the Administrative Agent or any Lender Party or the obligations of the
undersigned under this Guaranty. For purposes of this Guaranty, Guaranteed
Obligations shall include all obligations of the Companies to the Administrative
Agent or any Lender Party arising under or in connection with the Credit
Agreement, any Note, any other Loan Document or any other document or instrument
executed in connection therewith and all Hedging Obligations of either Company
to any Lender Party, in each case notwithstanding any right or power of either
Company or anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the obligations of any of the undersigned hereunder.
Pursuant to the Credit Agreement, (a) this Guaranty has been delivered
to the Administrative Agent and (b) the Administrative Agent has been authorized
to enforce this Guaranty on behalf of itself and each of the Lender Parties. All
payments by the undersigned
-7-
pursuant to this Guaranty shall be made to the Administrative Agent for the
benefit of the Lender Parties.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that either Company or any of
the undersigned is either a partnership or a corporation, all references herein
to the Companies and to the undersigned, respectively, shall be deemed to
include any successor or successors, whether immediate or remote, to such
partnership or corporation. The term "undersigned" as used herein shall mean all
parties executing this Guaranty and each of them, and all such parties shall be
jointly and severally obligated hereunder. The undersigned agree that they shall
be jointly and severally liable with all Guarantors of the Guaranteed
Obligations.
WHEREVER POSSIBLE, EACH PROVISION OF THIS GUARANTY SHALL BE INTERPRETED
IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS GUARANTY SHALL BE PROHIBITED BY OR INVALID UNDER SUCH LAW,
SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE
REMAINING PROVISIONS OF THIS GUARANTY.
THIS GUARANTY MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY THE
DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, AND EACH SUCH COUNTERPART
SHALL BE DEEMED TO BE AN ORIGINAL BUT ALL SUCH COUNTERPARTS SHALL TOGETHER
CONSTITUTE ONE AND THE SAME GUARANTY. AT ANY TIME AFTER THE DATE OF THIS
GUARANTY, ONE OR MORE ADDITIONAL PERSONS MAY BECOME PARTIES HERETO BY EXECUTING
AND DELIVERING TO THE ADMINISTRATIVE AGENT A COUNTERPART OF THIS GUARANTY.
IMMEDIATELY UPON SUCH EXECUTION AND DELIVERY (AND WITHOUT ANY FURTHER ACTION),
EACH SUCH ADDITIONAL PERSON WILL BECOME A PARTY TO, AND WILL BE BOUND BY ALL OF
THE TERMS OF, THIS GUARANTY.
THIS GUARANTY MAY BE SECURED BY ONE OR MORE SECURITY AGREEMENTS, PLEDGE
AGREEMENTS, MORTGAGES, LETTERS OF CREDIT, CASH COLLATERAL AGREEMENTS, DEEDS OF
TRUST OR OTHER SIMILAR DOCUMENTS.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE FULLY
PERFORMED IN SUCH STATE.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY OR
-8-
SEEKING ENFORCEMENT OF THIS GUARANTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND OR UNDERSIGNED LOCATED. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE
UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE ITS SIGNATURE HERETO
(OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE AGENT AS ITS
ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF
THE ADMINISTRATIVE AGENT AND EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS GUARANTY, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN
CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
-9-
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
XX. XXXX X. XXXXXX
By:
----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
THE XXXX X. XXXXXX TRUST DATED
SEPTEMBER 20, 1989
By:
----------------------------
Title:
-------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
-10-
Signature page for the Guaranty dated as of October 7, 2003 among Xx. Xxxx X.
Xxxxxx, and The Xxxx X. Xxxxxx Trust and LaSalle National Bank, as agent for the
Lender Parties referred to in such Guaranty
-11-
