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EXHIBIT 10.38
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of April 14, 2000 (this "Amendment") is
to the Guaranty dated as of February 15, 2000 (the "Guaranty") made by Xxxxxx X.
Xxxxxxxxx, Xx. and Xxxxxxx X. Xxxx in favor of Bank of America, N.A., as Agent,
and the Lender Parties referred to in the Guaranty. Unless otherwise defined
herein, terms defined in the Subordination Agreement are used herein as defined
in the Guaranty.
WHEREAS, the parties hereto desire to amend the Guaranty in certain
respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS.
1.1 The figure "$10,000,000" in the paragraph in the Guaranty that
begins "NOW, THEREFORE" is hereby deleted and the figure "$20,000,000" is hereby
inserted in lieu thereof.
1.2 The fifth paragraph in the Guaranty following the paragraph that
begins "NOW, THEREFORE" is hereby amended in its entirety to read as follows:
The undersigned jointly and severally agree that: (i) if the
Company has not completed the Equity Offering on or before September
30, 2000, the undersigned will deliver to the Agent cash collateral, or
other collateral reasonably satisfactory to the Agent, in an amount
(with the value of any non-cash collateral being determined by the
Agent in its discretion) not less than $10,000,000; (ii) if the Company
has not completed the Equity Offering on or before December 31, 2000,
the undersigned will deliver to the Agent cash collateral, or other
collateral reasonably satisfactory to the Agent, in an amount (with the
value of any non-cash collateral being determined by the Agent in its
discretion) not less than $10,000,000; and (iii) during the existence
of any Event of Default, the undersigned will, within 30 days after
demand therefor by the Agent or the Required Lenders, deliver to the
Agent cash collateral, or other collateral reasonably satisfactory to
the Agent, in an amount (with the value of any non-cash collateral
being determined by the Agent in its discretion) not less than
$10,000,000; provided that the aggregate amount of collateral delivered
pursuant to this sentence (valued as aforesaid) shall not exceed
$20,000,000. Such collateral shall be held by the Agent as security for
the obligations of the undersigned hereunder pursuant to documentation
reasonably satisfactory to the Agent. Upon any demand by the Agent
hereunder, the Agent may immediately apply such collateral (or the
proceeds thereof in the case of non-cash collateral) to the payment of
the Liabilities.
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SECTION 2 MISCELLANEOUS.
2.1 Continuing Effectiveness, etc. As herein amended, the Guaranty
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the date hereof, all references in any document to the
"Guaranty" or similar terms shall refer to the Guaranty, as amended hereby.
2.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties 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 Amendment.
2.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
Delivered as of the day and year first above written.
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Xxxxxx X. Xxxxxxxxx, Xx.
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Xxxxxxx X. Xxxx
Accepted:
BANK OF AMERICA, N.A., as Agent
By:
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Its:
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