Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 1
TO
ASSET PURCHASE AND CONSIGNMENT AGREEMENT
AMENDMENT NO. 1 TO ASSET PURCHASE AND CONSIGNMENT AGREEMENT (this
"Amendment"), is made and entered into as of January 29, 1998, by and among MCM
LIMITED PARTNERSHIP, an Illinois limited partnership ("MCM"), ART RENAISSANCE,
INC., a Delaware corporation ("ARI"), ART RENAISSANCE CHICAGO, INC., a Delaware
corporation and wholly-owned subsidiary of ARI ("Sub"), and Xxxxxx X. Xxxxxxxx,
a resident of the State of Michigan ("Xxxxxxxx").
W I T N E S S E T H:
WHEREAS, MCM, ARI and Sub are parties to that certain Asset Purchase and
Consignment Agreement, dated as of May 31, 1997 (the "Original Agreement");
WHEREAS, MCM, ARI and Sub desire to amend certain provisions of the
Original Agreement as more particularly set forth herein; and
WHEREAS, in consideration of, and a material inducement for, MCM's
execution of this Amendment, Xxxxxxxx has agreed to execute and deliver a
Personal Guaranty in favor of MCM guaranteeing the full payment and performance
of all debts and obligations of each of ARI and Sub under the Original
Agreement, as amended hereby, and all agreements, instruments and documents
contemplated thereby or hereby.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms which are used but not otherwise
defined herein shall have the meanings specified in the Original Agreement.
2. Agreement Regarding TBO's. Section 1.7 of the Original Agreement is
hereby deleted in its entirety and the following shall be inserted in lieu
thereof (provided, however, that all references to schedules shall refer to the
corresponding schedules attached to the Original Agreement):
1.7 Agreement Regarding TBO's. With respect to TBO's, the parties
hereby agree as follows:
(a) Sub shall assume and retain responsibility for the
administration and completion of each of the TBO's listed on
Schedule 1.2(d) hereto, including, without limitation, remitting any
remaining amounts due to vendors and/or artists, collecting
amounts due from customers, paying any commissions due sales
personnel, paying any Taxes, expenses or other charges related
thereto, and providing, in a professional manner, any and all
framing, shipping and related services as may be necessary to
complete such TBO; and
(b) as soon as reasonably practicable hereafter, Sub shall pay
to MCM $25,000 in immediately available federal funds in full
satisfaction of any payment obligations of Sub to MCM in respect of
TBO's, including, without limitation, any obligations under Section
1.7(c) of the Original Agreement.
3. Agreement Regarding Consigned Inventory. With respect to the Consigned
Inventory and the Consignment Fee and other payments payable by Sub to MCM
pursuant to Section 2.2 of the Original Agreement, the parties hereby agree as
follows:
(a) Sub shall pay, or cause to be paid, to MCM in respect of the
Consigned Inventory the amount of $350,000 less any amounts actually
received by MCM from Sub during the period from November 1, 1997 through
December 31, 1997, which amount shall be payable in immediately available
federal funds as soon as reasonably practicable following the execution of
this Amendment.
(b) Section 2.1 of the Original Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof (provided,
however, that all references to schedules shall refer to the corresponding
schedules attached to the Original Agreement):
2.1. Grant of Rights. Effective upon the date hereof and,
except as provided in Sections 2.2(c) and (d), through August 31,
1999 (the "Consignment Period"), MCM hereby grants to Sub the sole
and exclusive right, throughout the world, to offer and sell all or
any item of inventory listed on Schedule 2.1 hereto (collectively,
the "Consigned Inventory"). The Consigned Inventory shall remain in
the possession of Sub, as consignee, on a consignment basis in
accordance with the provisions of this Article II.
(c) Section 2.2 of the Original Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof (provided,
however, that all references to schedules shall refer to the corresponding
schedules attached to the Original Agreement):
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2.2 Consignment Fee: Take Down of Consigned Inventory
(a) Amount of Fee. In consideration for the rights granted by
MCM to Sub in Section 2.1, MCM shall be entitled to receive an
aggregate consignment fee of $2,150,000 (the "Consignment Fee"),
which amount shall be payable in equal weekly installments (each, a
"Weekly Payment") at the rate of $100,000 per month; provided,
however, that the aggregate Weekly Payments for three (3) of the
first six (6) months of calendar year 1998 shall be in the amount of
$150,000 per month (such three (3) months to be selected in Sub's
discretion). Each Weekly Payment shall be due and payable in
immediately available federal funds during the Consignment Period
until such time as the aggregate amount of Weekly Payments paid by
Sub to MCM is equal to the Consignment Fee. Any Weekly Payment that
is not paid when due shall bear interest from the date when due
until such amount is paid in full, at an interest rate per annum,
compounded monthly, which is equal to the lesser of (i) ten percent
(10%) per annum and (ii) the highest rate allowable under applicable
law.
(b) Take-Down of Consigned Inventory. Subject to the
provisions of this Section 2.2(b), Sub shall have the right (but not
the obligation) at any time after January 1, 1998, but not more than
once per calendar quarter, to submit to MCM a written list (the
"Take Down List") identifying all items of Consigned Inventory that
Sub has either (i) sold since the date of the last Take Down List
(or, with respect to the first Take Down List, since the date of the
Original Agreement), or (ii) desires to acquire for its own account.
Each Take Down List shall identify items of Consigned Inventory sold
by Sub and/or which Sub desires to acquire for its own account as
specifically as possible, including, as applicable, the artist's
name, title, serial or other inventory tracking number, and the
"Total Original Cost" (as listed on Schedule 2.1 hereto) of each
item (it being agreed that the "Total Original Cost" for any item of
Consigned Inventory purchased by MCM prior to January 1, 1996 shall
be discounted by 35.12% (the "Aging Discount")). In addition, each
Take Down List shall comply with the following provisions: (i) the
aggregate Total Original Cost (after giving effect to the Aging
Discount) for all items of Consigned Inventory included on such Take
Down List shall not exceed the aggregate amount of Weekly Payments
paid by Sub to MCM since the date of the prior Take Down List (or,
with respect to the first Take Down List, the aggregate amount of
payments actually received by MCM from Sub during the period from
November 1, 1997 through the date hereof); (ii) at least two-thirds
of the aggregate Total Original Cost
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(after giving effect to the Aging Discount) for all items of
Consigned Inventory included on such Take Down List shall be
attributable to items of Consigned Inventory sold by Sub and/or ARI
to unaffiliated third party purchasers; and (iii) at least one-third
of the aggregate Total Original Cost (after giving effect to the
Aging Discount) for all items of Consigned Inventory included on
such Take Down List shall be attributable to Consigned Inventory
purchased by MCM prior to January 1, 1995; provided, however, that
in the event that none of the remaining Consigned Inventory was
purchased by MCM prior to January 1, 1995, then this clause (iii)
shall cease to be applicable. To the extent that each Take Down List
complies with the provisions of this Section 2.2(b), then the items
of Consigned Inventory listed thereon shall cease to be Consigned
Inventory hereunder and, as applicable, shall be deemed transferred
to Sub.
(c) Remedies Upon Default: Termination of Consignment. In the
event of a breach of or default by either of ARI or Sub in respect
of any of their respective covenants, representations or warranties
contained in this Agreement or in any of the other agreements,
instruments, certificates of documents contemplated hereby or a
breach of or default by Xxxxxxxx under that certain Personal
Guaranty, dated as of January 29, 1998, MCM may, in its sole
discretion, either (i) terminate the provisions of the Article II
regarding Consigned Inventory, in which event ARI and Sub agree that
they shall promptly return (at their sole cost and expense) all
Consigned Inventory to MCM and shall cooperate with MCM to effect
the orderly termination of the consignment relationship created
hereunder, or (ii) accelerate and declare the remaining unpaid
balance of the Consignment Fee immediately due and payable, in which
event Sub shall pay to MCM in full the remaining unpaid balance of
the Consignment Fee in immediately available federal funds and, upon
receipt thereof by MCM, title to all remaining Consigned Inventory
shall be transferred from MCM to Sub and the provisions of this
Article II shall terminate.
(d) Acceleration of Consignment Fee following an Organic
Transaction. In the event of an Organic Transaction (as defined
below), any remaining unpaid balance of the Consignment Fee shall
become immediately due and payable by Sub to MCM and shall be paid
in full by Sub to MCM in immediately available federal funds.
Following such payment, title to all remaining Consigned Inventory
shall be transferred from MCM to Sub and the provisions of this
Article II shall terminate. For the purposes of this Section 2.2(d).
an "Organic Transaction" means (i) the sale, lease, exchange,
transfer
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or other disposition of all or substantially all of ARI's or Sub's
assets to a person or group of persons; (ii) any merger,
consolidation, refinancing, recapitalization, or other transaction
or series of transactions that results in the holders of the issued
and outstanding voting securities of either of ARI or Sub (including
any affiliate of such holders) immediately prior to such
transaction(s) owning or controlling less than a majority of the
voting securities of the continuing or surviving entity immediately
following such transaction(s); and/or (iii) any event, occurrence,
or transaction or series of transactions following or as a result of
which Xxxxxxxx is no longer (A) a director of each of ARI and Sub,
(B) the Chairman of the Board, Chief Executive Officer or President
of each of ARI and Sub, and (C) the record and beneficial owner of
the largest aggregate number of issued and outstanding shares of the
capital stock of ARI.
(d) Section 2.5 of the Original Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof (provided,
however, that all references to schedules shall be deemed to refer to
schedules attached to the Original Agreement):
2.5 Insurance: Storage of Consigned Inventory. During the
Consignment Period the Consigned Inventory will be stored only at
the locations set forth on Schedule 2.5 hereto (collectively, the
"Permitted Locations"). At all times from the date hereof through
the later of the expiration of the Consignment Period and the full
performance by Sub of its obligations under this Article II, Sub
shall obtain and maintain, at its sole cost and expense, such
casualty and other insurance as MCM shall require from one or more
insurance carriers satisfactory to MCM, in an amount not less than
the unpaid balance of the Consignment Fee plus $50,000. Each of such
policies shall (a) name MCM as an additional named insured and loss
payee; (b) provide that it may not be terminated or amended without
thirty (30) days' prior written notice to MCM; and (c) provide that
it is primary to any other valid and collectible insurance policies
applicable to MCM and/or the Consigned Inventory and is not subject
to contribution. From time to time at MCM's request hereafter, Sub
shall deliver to MCM evidence that such insurance policies are in
full force and effect, and a certificate of insurance naming MCM as
an additional named insured and loss payee.
(e) Section 2.6(a) of the Original Agreement is hereby deleted in
its entirety and the following shall be inserted in lieu thereof:
(a) Title to the Consigned Inventory is reserved in MCM until
sale of and payment in full to MCM with respect to the Consigned
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Inventory in accordance with the terms hereof or until such
Consigned Inventory is deemed acquired and paid for by Sub pursuant
to Section 2.2(b) hereof.
4. Reaffirmation of Section 4.8. Each of Sub and ARI hereby reaffirms the
representations and warranties contained in Section 4.8 of the Original
Agreement with respect to the solvency of ARI and its Subsidiaries on and as of
the date hereof.
5. Indemnification by ARI and Sub. Section 8.2(a) is hereby deleted in its
entirety and the following shall be inserted in lieu thereof:
(a) any inaccuracy or misrepresentation in or breach of any of
the representations, warranties, covenants or agreements made by ARI
and/or Sub in this Agreement or in any agreement, instrument,
certificate or other document delivered by ARI and/or Sub pursuant
to the provisions of this Agreement, or any inaccuracy or
misrepresentation in or breach of any of the representations,
warranties, covenants or agreements made by Xxxxxxxx in that certain
Personal Guaranty, dated as of January 29, 1998;
6. Personal Guaranty of Xxxxxxxx. In consideration of, and as a material
inducement to, MCM's willingness to enter into this Amendment, Xxxxxxxx agrees
to execute and deliver concurrently herewith a Personal Guaranty, in form and
substance satisfactory to MCM, in favor of MCM pursuant to which Xxxxxxxx shall
guaranty the full payment and performance of all debts and obligations of ARI
and/or Sub under Section 2.2(a) of the Original Agreement, as amended hereby.
7. Reaffirmation of Ancillary Documents. Each of ARI and Sub hereby
reaffirms and confirms its obligations under each of the ancillary documents
delivered in connection with the Original Agreement, including, without
limitation, that certain Security Agreement, dated as of May 31, 1997, between
MCM and Sub, that certain Pledge and Security Agreement, dated as of May 31,
1997, between MCM and ARI, and that certain Guaranty, dated as of May 31, 1997,
of ARI in favor of MCM.
8. Other Provisions Unchanged. Except as specifically amended hereby, all
other terms and conditions of the Original Agreement shall remain in full force
and effect.
9. Severability. The parties hereto expressly agree that it is not the
intention of any party hereto to violate any public policy, statutory or common
laws, rules, regulations or decisions of any court, government or agency
thereof. If any provision of this Amendment is judicially or administratively
interpreted or construed as being in violation thereof, such provision shall be
inoperative to the minimum extent necessary and the remainder of this Agreement
shall remain binding upon the parties hereto.
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10. Further Assurances. At any time on or after the date hereof, the
parties hereto shall each perform such acts, execute and deliver such
instruments, assignments, endorsements and other documents and do all such other
things consistent with the terms of this Amendment as may be reasonably
necessary to accomplish the transactions contemplated by, or otherwise carry out
the purposes of, this Amendment.
11. Law to Govern. The validity, construction and enforceability of this
Amendment shall be governed in all respects by the laws of the State of
Illinois, without regard to its conflict of laws principles. The parties hereby
irrevocable and unconditionally submit to the exclusive jurisdiction of the
courts of Xxxx County in the State of Illinois and of the United States of
America located in the City of Chicago, Illinois for any actions, suits or
proceedings arising out of or relating to this Amendment and the transactions
contemplated hereby and agree not to commence any action, suit or proceeding
relating thereto except in such courts.
12. Gender, Number and Headings. The masculine, feminine or neuter
pronouns used herein shall be interpreted without regard to gender, and the use
of the singular or plural shall be deemed to include the other whenever the
context so requires. The headings in this Amendment are inserted for convenience
of reference only and shall not be a part of or control or affect the meaning of
this Amendment.
13. Counterparts. This Amendment may be executed in separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto executed this Amendment as of the
date first written above.
MCM:
MCM LIMITED PARTNERSHIP, an Illinois
limited partnership
By: HKL Investors, Inc., its General
Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxxxx
President
ARI:
ART RENAISSANCE, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
SUB:
ART RENAISSANCE CHICAGO, INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
The undersigned hereby joins in the execution and delivery of this
Amendment solely for the purposes of binding himself to the provisions of
Section 6 hereof.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, individually
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
ASSET PURCHASE AND CONSIGNMENT AGREEMENT]
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EXECUTION COPY
PERSONAL GUARANTY
FOR VALUE RECEIVED, and in consideration of the willingness of MCM LIMITED
PARTNERSHIP, an Illinois limited partnership (together with its successors and
assigns, "MCM"), to enter into Amendment No. 1, dated as of January 29, 1998, to
that certain Asset Purchase and Consignment Agreement, dated as of May 31, 1997
(as amended, the "Purchase Agreement"), among MCM, ART RENAISSANCE CHICAGO,
INC., a Delaware corporation (together with its successors and assigns, "Sub"),
and ART RENAISSANCE, INC., a Delaware corporation (together with its successors
and assigns, "ARI"), the undersigned hereby absolutely, irrevocably and
unconditionally personally guarantees the full and prompt payment when due,
whether by acceleration or otherwise, and at all times thereafter, and the full
and prompt performance, of all of Sub's and/or ARI's obligations to MCM under
Section 2.2(a) of the Purchase Agreement, howsoever created, arising or
evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, now or hereafter existing or due or to become due
(including interest on any such amount whether accruing before or after any
bankruptcy or insolvency proceeding involving Sub and/or ARI and, if interest on
any portion of such obligations ceases to accrue by operation of law by reason
of the commencement of such proceeding, including such interest as would have
accrued on any such portion of such obligations if such proceeding had not
commenced) (all of the foregoing obligations hereinafter referred to,
collectively, as the "Liabilities"). Capitalized terms used but not defined
herein shall have the meanings specified in the Purchase Agreement, as amended.
The undersigned expressly guaranties, without limitation, the payment when
due of all payments on, under or in respect of the Liabilities. The undersigned
further agrees to pay all expenses (including reasonable attorneys' fees and
legal expenses) paid or incurred by MCM in endeavoring to collect the
Liabilities, or any part thereof, and in enforcing this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all of each of Sub's and
ARI's obligations under Section 2.2(a) of the Purchase Agreement to MCM,
notwithstanding any right or power of Sub and/or ARI 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 the undersigned hereunder, provided, however, notwithstanding anything
contained herein to the contrary, the maximum amount of the obligation of the
undersigned to MCM shall not exceed $2,150,000, plus (i) interest on all amounts
not paid when due pursuant to Section 2.2(a) of the Purchase Agreement, at an
interest rate per annum, compounded monthly, which is equal to the lesser of (A)
ten percent (10%) per annum, and (B) the highest rate allowable under applicable
law, and (ii) all expenses (including reasonable attorneys' fees and legal
expenses) paid or incurred by MCM in endeavoring to collect the Liabilities, or
any part thereof, and in enforcing this Guaranty, less amounts actually received
by MCM and applied by MCM to the payment of the Liabilities.
The undersigned agrees that, in the event of the dissolution or insolvency
of any of Sub, ARI or the undersigned, or the inability or failure of any of
Sub, ARI or the undersigned to pay its or his debts as they become due, or an
assignment by any of Sub, ARI or the undersigned for the
benefit of creditors, or the commencement of any case or proceeding in respect
any of Sub, ARI or the undersigned under any bankruptcy, reorganization,
insolvency or similar laws and if such event shall occur at a time when any of
the Liabilities may not then be due and payable, the undersigned will pay to MCM
forthwith the full amount which would be payable hereunder by the undersigned if
all Liabilities were then due and payable.
The undersigned hereby represents and warrants to MCM that the undersigned
has a minimum net worth of not less than $10 million, and covenants that, so
long as any Liabilities remaining outstanding, the undersigned will maintain a
minimum net worth of not less than $10 million. This Guaranty shall in all
respects be a continuing, absolute and unconditional guaranty, and shall remain
in full force and effect (notwithstanding, without limitation, the death of the
undersigned or that, at any time or from time to time, all Liabilities may have
been paid in full), until the date on which the Liabilities (including any
extensions or renewals of any thereof) and all interest thereon and all expenses
(including attorneys' fees and legal expenses) paid or incurred by MCM in
seeking to collect the Liabilities, or any part thereof, and in enforcing this
Guaranty shall have been finally and irrevocably paid in full.
The undersigned further agrees that, if at any time all or any part of any
payment theretofore applied by MCM to any of the Liabilities is or must be
rescinded or returned by MCM for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of either of Sub or
ARI), such Liabilities 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 MCM, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such Liabilities, all as though such application by MCM had not been made.
MCM may, from time to time at its sole discretion and without notice to
the undersigned, take any or all of the following actions: (a) retain or obtain
a lien upon or a security interest in any property to secure any of the
Liabilities 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 Liabilities; (c) extend or renew for one or more
periods (regardless whether longer than the original period), alter or exchange
any of the Liabilities, or release or compromise any obligation of the
undersigned hereunder or any obligation of any nature of any other obligor
(including, without limitation, Sub and ARI) with respect to any of the
Liabilities; (d) release or fail to perfect its lien upon or security interest
in, or impair, surrender, release or permit any substitution or exchange for,
all or any part of any property securing any of the Liabilities or any
obligation hereunder, or extend or renew for one or more periods (regardless
whether 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 for payment of any of the
Liabilities, regardless whether MCM shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or shall have proceeded
against any other obligor primarily or secondarily obligated with respect to any
of the Liabilities.
The undersigned waives all defenses, offsets and counterclaims with
respect to this Guaranty and payment of the Liabilities. No act of commission or
omission of any kind, or at any
time, upon the part of MCM in respect to any matter whatsoever, shall in any way
affect or impair this Guaranty. Any amounts received by MCM from whatsoever
source on account of the Liabilities may be applied by MCM toward the payment of
such of the Liabilities, and in such order of application, as MCM may from time
to time elect.
The undersigned hereby irrevocably waives any rights which he may acquire
by way of subrogation under this Guaranty, by any payment made hereunder or
otherwise, and any right of reimbursement and any right of salvage against the
Company therefor and hereby further irrevocably waives, so long as any
Liabilities remain outstanding, any and all claims the undersigned may have
against Sub and/or ARI for any indebtedness of Sub and/or ARI to the undersigned
now existing or hereafter incurred.
The undersigned hereby expressly waives: (a) notice of MCM's acceptance of
this Guaranty; (b) notice of the existence or creation or nonpayment of all or
any of the Liabilities; (c) presentment, demand, notice of dishonor, protest,
and all other notices whatsoever; and (d) all diligence in collection or
protection of or realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing.
MCM may, from time to time at its sole discretion and without notice to
the undersigned, assign or transfer any or all of the Liabilities or any
interest therein; and, notwithstanding any such assignment or transfer or any
subsequent assignment or transfer thereof, such Liabilities shall be and remain
Liabilities for the purposes of this Guaranty, and each and every immediate and
successive assignee or transferee of any of the Liabilities or of any interest
therein shall, to the extent of such assignee's or transferee's interest in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were MCM provided, however, that, unless MCM
shall otherwise consent in writing, MCM shall have an unimpaired right, prior
and superior to that of any such assignee or transferee, to enforce this
guaranty for MCM's benefit as to those of the Liabilities which MCM has not
assigned or transferred.
No delay on MCM's part in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by MCM of any
right or remedy shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or waiver of any of the
provisions of this guaranty be binding upon MCM except as expressly set forth in
a writing duly signed and delivered on MCM's behalf. No action of MCM permitted
hereunder shall in any way affect or impair MCM's rights or the undersigned's
obligations under this Guaranty. The undersigned's obligations under this
Guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable discharge or defense of
the undersigned. The undersigned hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
The undersigned hereby represents and warrants to MCM that the undersigned
now has and will continue to have independent information concerning each of
Sub's and ARI's affairs, financial condition and business. MCM shall not have
any duty or responsibility to provide the undersigned with any credit or other
information concerning either of Sub's or ARI's affairs, financial condition or
business which may come into MCM's possession.
The undersigned hereby further represents and warrants to MCM that: (a)
the execution, delivery and performance of this Guaranty require no
governmental, regulatory or other approval, (b) this Guaranty has been duly
executed and delivered on the undersigned's behalf and is the legal, valid and
binding obligation of the undersigned, enforceable in accordance with its terms
except as such enforceability may be limited by (i) bankruptcy, insolvency or
other laws limiting creditors rights generally, or (ii) general principles of
equity, (c) the execution, delivery and performance of this Guaranty do not and
will not contravene or conflict with any provision of (i) law applicable to the
undersigned, or (ii) any judgment, decree or order of any court or governmental
or administrative agency binding upon the undersigned, and do not and will not
contravene or conflict with, or cause any Lien to arise under, any provision of
any agreement or instrument binding upon the undersigned or any of his
properties.
This Guaranty shall be binding upon the undersigned and upon the
undersigned's heirs, executors, administrators, representatives, successors and
assigns; and all references herein to Sub, ART and the undersigned,
respectively, shall be deemed to include any successor or successors, or
assigns, whether immediate or remote, to Sub or ARI, and any heirs,
representatives or assigns of the undersigned.
This Guaranty has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the laws of the State of Illinois,
without regard to conflict of laws principles. 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 each law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Guaranty.
The undersigned hereby submits to the nonexclusive jurisdiction of the
United States Federal and State of Illinois courts located in Xxxx County,
Illinois for all purposes of or in connection with this Guaranty, provided that
nothing in this Guaranty shall affect MCM's right to bring any action or
proceeding against the undersigned or its property in the courts of any other
jurisdiction.
The undersigned hereby consents to process being served in any suit,
action or proceeding of the nature referred to above by the mailing of a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to his address shown opposite his signature hereto. The undersigned
agrees that such service, to the fullest extent permitted by law, (i) shall be
deemed in every respect effective service of process upon him in any such suit,
action or proceeding and (ii) shall be taken and held to be valid personal
service upon and personal delivery to him. Nothing herein shall affect MCM's
right to serve process in any other manner permitted by law, or limit MCM's
right to bring proceedings against the undersigned in the courts of any other
jurisdiction.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY
RIGHTS UNDER OR IN CONNECTION WITH THIS GUARANTY, OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM ANY DISPUTE OR
CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS GUARANTY, OR ANY SUCH
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SIGNED AND DELIVERED as of January 29, 1998.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
XXXXXX X. XXXXXXXX
Address:
c/o Venture Funding, Ltd.
0000 Xxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxx, Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
