95
SECOND AMENDMENT
TO
AMENDED AND RESTATED FINANCING AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") dated as of March 23,
1998 is entered into by and among Keller Graduate School of Management, Inc.,
a Delaware corporation (the "Borrower"), the financial institutions who are
party to the Credit Agreement referred to below (the "Lenders") and Bank of
America National Trust and Savings Association (as successor by merger to Bank
of America Illinois), as Agent for the Lenders (herein, in such capacity, the
"Agent").
W I T N E S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to a certain Amended and Restated Financing Agreement dated as of June 12,
1996 (as heretofore amended, called the "Credit Agreement"; terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement);
WHEREAS, the Borrower desires, among other things, to extend
the Termination Date of the Credit Agreement by one year; and
WHEREAS, subject to the terms and conditions set forth herein
the Agent and the Lenders are willing to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises, and intending
to be legally bound hereby, the Borrower, the Agent and the Lenders hereby
agree as follows:
SECTION 1. AMENDMENTS.
Upon receipt of the documents to be delivered by the Borrower
pursuant to Section 2 below, and in reliance on the Borrower's warranties set
forth in Section 3 below, as of the date hereof the Credit Agreement shall be
hereby amended as follows:
1.1 The title page and the preamble to the Credit Agreement
are hereby amended by deleting each reference therein to "Bank of America
Illinois" and in its place substituting "Bank of America National Trust and
Savings Association (as successor by merger to Bank of America Illinois)".
1.2 The Credit Agreement is hereby amended by deleting each
reference therein to "BAI" and in its place substituting "BofA".
1.3 Paragraph 1(A) of the Credit Agreement is hereby amended
by deleting the definition of "BAI".
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1.4 Paragraph 1(A) of the Credit Agreement is hereby amended
by adding the following new definitions in their appropriate alphabetical
order:
"Adjusted Consolidated Net Income" shall mean, for any period,
the consolidated net income (or loss) of DeVry and the Subsidiaries for such
period plus the consolidated net income (or loss) for such period attributable
to the assets or capital stock acquired pursuant to any Permitted Transaction
during such period; provided, however, that any write-off or other charge
against income relating to (i) an intangible or other assets excluded from the
calculation of Consolidated Tangible Net Worth, (ii) deferred financing costs
in connection with indebtedness hereunder and (iii) repurchase of interest
rate protection agreements, currency exchange agreements or similar agreements,
shall not be charged against consolidated net income for such period.
"BofA" means Bank of America National Trust and Savings
Association (as successor by merger to Bank of America Illinois).
"Permitted Transaction" shall mean any acquisition by DeVry or
any Subsidiary of all or substantially all of the assets of any Person or any
Investment by DeVry in a Subsidiary which becomes a Subsidiary after the
Restatement Date; provided, that (i) in the case of any Investment, if such
Investment involves the acquisition of capital stock, such Investment must be
approved by the Board of Directors of the issuer of such capital stock, (ii)
any such acquisition or Investment shall involve assets or a Subsidiary, as
the case may be, in the same general line of business as that previously
conducted by Borrower, DeVry or any existing Subsidiary, (iii) prior to such
acquisition or any Investment involving the acquisition of capital stock, the
Borrower shall have submitted to the Agent (a) four fiscal quarters of
financial statements for the assets acquired or Investment made and (b) a
compliance certificate, in the form of Exhibit C, calculated as of the last
day of the most recent Fiscal Quarter for which the Agent has received
financial statements pursuant to Paragraph 11(A), which calculation shall be
consistent in the Agent's reasonable opinion with the financial statements
referenced in the preceding clause (a) and shall demonstrate compliance with
the covenants set forth in Paragraph 16, and (iv) at the time of such
acquisition or Investment, the aggregate consideration paid for such
acquisition or Investment when added to the aggregate consideration paid for
any other Permitted Transactions since the Restatement Date shall not exceed
25% of the consolidated shareholders' equity of DeVry and its Subsidiaries as
of the last day of the most recent Fiscal Quarter for which the Agent has
received financial statements pursuant to Paragraph 11(A).
1.5 Paragraph 1(A) of the Credit Agreement is hereby amended
by amending the definitions of "Debt Coverage Ratio," "EBIT," "EBITDA," "Fixed
Charge Coverage Ratio" and "Special Purpose Subsidiary" to read in their
entirety as follows:
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"Debt Coverage Ratio" shall mean the ratio, calculated as of
the last day of each Fiscal Quarter, of (i) the average daily aggregate pro
forma Indebtedness (excluding all Indebtedness to the extent consisting of
items described in clause (iii) of the definition of "Indebtedness") of DeVry
and its Subsidiaries for the then ending Fiscal Quarter calculated as if any
Indebtedness incurred in connection with a Permitted Transaction was incurred
on the first day of such period to (ii) the difference of (a) EBITDA for the
then ending and three immediately preceding Fiscal Quarters less
(b) $3,500,000.
"EBIT" shall mean, for any period, DeVry's Adjusted
Consolidated Net Income before deducting interest expense (including, without
limitation, any imputed interest attributable to capitalized leases), Fee
Expenses and taxes.
"EBITDA" shall mean, for any period, DeVry's Adjusted
Consolidated Net Income before deducting interest expense (including, without
limitation, any imputed interest attributable to capitalized leases), Fee
Expenses, taxes, depreciation and amortization and other non-cash charges.
"Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of DeVry's (i) EBIT for such period, plus lease expense included in
determining such net income (excluding, however, lease expenses for student
housing leases for terms of less than 18 months), plus the aggregate cash
proceeds of sales and other dispositions of DeVry's or Subsidiaries' assets
received during such period, plus federal income tax refunds received by DeVry
during such period arising from losses of DeVry and its Affiliates from prior
periods to (ii) pro forma interest expense and Fee Expenses accruing during
such period calculated as if any Indebtedness incurred in connection with a
Permitted Transaction was incurred on the first day of such period plus lease
expense included in determining such net income (excluding, however, lease
expenses for student housing leases for terms of less than 18 months).
"Special Purpose Subsidiary" means any Subsidiary: (1) of
which the Parent owns, directly or indirectly all of the issued and outstanding
voting stock, general partner's interests or other equity interests having
ordinary voting power to elect the board of directors or other managers of
such Subsidiary; (2) which has executed and delivered to the Agent for the
benefit of the Lenders a Guaranty; and (3) which has been designated in
writing by the Parent to the Agent and the Lenders as a "Special Purpose
Subsidiary"; it is acknowledged that DeVry Educational Products, Inc., a
Delaware corporation, and DeVry/Becker Educational Development Corp., a
Delaware corporation; are "Special Purpose Subsidiaries."
1.6 Paragraph 13 of the Credit Agreement is hereby amended
by adding at the end of such Paragraph new clauses (H) and (I) which shall
read in their entirety as follows:
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"(H) Year 2000 Compatibility. Borrower and DeVry have conducted a
comprehensive review and assessment of their computer applications and
have made inquiry of their material suppliers, vendors and customers with
respect to the computer application errors (including with respect to date-
sensitive functions) anticipated to occur in connection with the advent of
the calendar year 2000 (herein, the "Year 2000 Problem"). Based on the
foregoing reviews, assessments and inquiries, Borrower and DeVry
reasonably believe that the Year 2000 Problem will not materially
adversely affect Borrower, DeVry's or any Subsidiary's business
operations, prospects or financial condition."
"(I) Subsidiary Guaranties. Borrower and DeVry will cause each
Subsidiary within 30 days of the acquisition or creation of such Subsidiary
to (i) execute and deliver to the Agent a Guaranty, accompanied by such
supporting documentation, including resolutions, an incumbency
certificate, and an opinion of counsel, as Agent may require, and (ii) keep
such Guaranty in full force and effect; provided, that in no event shall a
Subsidiary which is organized under the laws of a jurisdiction other than
the United States or any state thereof be required to so execute a Guaranty
or keep a Guaranty in full force and effect."
1.7 Clause (c) of Paragraph 14(A) of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(c) so long as both immediately before and after giving effect
thereto, no Default or Event of Default shall exist, DeVry or any Subsidiary
may make additional acquisitions of all or substantially all of the assets of
any Person; provided, further, that any such acquisition shall constitute a
Permitted Transaction,"
1.8 Clause (vi) of Paragraph 14(B) of the Credit Agreement is
hereby amended to read in its entirety as follows:
(vi) so long as both immediately before and after giving effect
thereto, no Default or Event of Default shall exist, Investments by DeVry in
Subsidiaries which become Subsidiaries after the Restatement Date, provided,
that any such Investment shall constitute a Permitted Transaction,"
1.9 Paragraph 18(A) of the Credit Agreement is hereby amended
to read in its entirety as follows:
"(A) Term. This Agreement shall terminate on August 1, 2000
("Termination Date"), subject to the terms and provisions of Paragraph
22(E) and of any other provisions of this Agreement or any other Loan
Document which specifically provides for the continuation of obligations,
duties, representations and warranties beyond such termination. Upon the
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Termination Date, all of Borrower's Obligations to Agent and each
Lender, whether or not incurred under this Agreement, or any amendment
or supplement thereto, under any Revolving Note, any other Loan
Document or otherwise, shall become immediately due and payable
without notice or demand".
1.10 The attachment to Exhibit C to the Credit Agreement
(form of Compliance Certificate) is hereby amended to read in its entirety
as set forth on Annex I hereto.
SECTION 2. CERTAIN DOCUMENTS.
Concurrently herewith the Borrower has delivered the following to the
Agent, duly executed and appropriately dated and in form and substance
satisfactory to the Agent.
(1) Guaranty. A Guaranty in the form of Annex II hereto duly
executed by each of DeVry Educational Products, Inc., DeVry Educational
Development Corp. and Becker CPA Review, Inc. I. (collectively the "New
Guarantors").
(2) Certificate. A certificate of the Secretary or Assistant
Secretary of each of the New Guarantors certifying: (a) a copy of the
organizational documents of such New Guarantor, as theretofore amended; (b)
copies of all corporate action taken by such New Guarantor, authorizing the
execution, delivery and performance of such New Guarantor of each document to
be executed and delivered by such New Guarantor pursuant to this Amendment;
and (c) the names and true signatures of the officers of such New Guarantor
authorized to sign the documents to be executed and delivered by such
New Guarantor under this Amendment.
(3) Miscellaneous. Such other documents as the Agent may reasonably
request.
SECTION 3. WARRANTIES.
To induce the Agent and the Lenders to enter into this
Amendment, the Borrower warrants to the Agent and the Lenders as of the date
hereof that:
(a) The representations and warranties contained in the
Credit Agreement and Loan Documents are true and correct in all material
respects on and as of the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date); and
(b) No Default or Event of Default has occurred and is
continuing.
SECTION 4. GENERAL.
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(c) As hereby modified, the Credit Agreement shall remain
in full force and effect and is hereby ratified, approved and confirmed in all
respects.
(d) This Amendment shall be binding upon and shall inure
to the benefit of the Borrower, the Lenders and the Agent and respective
successors and assigns of the Lenders and the Agent.
(e) 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 but one and the same Amendment.
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Delivered at Chicago, Illinois, as of the date and year first above written.
KELLER GRADUATE SCHOOL OF
MANAGEMENT, INC.
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
HARRIS TRUST AND SAVINGS BANK
By:
Title:
The undersigned hereby (i) acknowledge the foregoing amendments, (ii)
acknowledge that their respective Guaranties continue to guaranty the
obligations of the Borrower arising under the Credit Agreement, as amended
hereby and (iii) and reaffirm their respective duties and obligations arising
under the Loan Documents to which each is a party.
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DEVRY, INC.
By:
Its:
BECKER CPA REVIEW CORP. (f/k/a
DEVRY CPA REVIEW CORP.)
By:
Its:
DEVRY/BECKER EDUCATIONAL
DEVELOPMENT CORP. (f/k/a DEVRY
EDUCATIONAL DEVELOPMENT CORP.)
By:
Its:
DEVRY EDUCATIONAL PRODUCTS, INC.
By:
Its:
DEVRY EDUCATIONAL DEVELOPMENT
CORP.
By:
Its:
BECKER CPA REVIEW, INC. I
By:
Its:
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ANNEX I
FIXED CHARGE COVERAGE RATIO
$(000)
For the 4 Fiscal
Quarter Period Ended
--------------------
Numerator
EBIT $
+ Lease Expense*
+ Cash Proceeds From Sale of Assets
+ Federal Income Tax Refunds ______________
= Total Numerator
Denominator
Pro Forma Interest Expense
+ Agents Fee
+ Letter of Credit Fees
+ Pro Forma Revolving Loan Commitment Fees
+ Lease Expenses*
= Total Denominator
ACTUAL RATIO
VS.
ALLOWABLE MINIMUM 1.8:1
*/ To include related figures associated with Permitted Transactions.
104
DEBT COVERAGE RATIO
$(000)
For the Fiscal
Quarter Ended
--------------
Numerator
Average daily aggregate pro forma Indebtedness $
for then ending Fiscal Quarter
Denominator
EBITDA (for the then ending and
three immediately preceding
Fiscal Quarters)
- - 3,500,000
= Total Denominator
ACTUAL
VS.
ALLOWABLE MAXIMUM:
Fiscal Quarters ending between
June 30, 1996 and June 29, 1997 3.50:1
June 30, 1997 and June 29, 1998 3.25:1
June 30, 1998 and the Termination Date 3.00:1
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OTHER FINANCIAL COVENANTS
$(000)
Actual Allowable
------ ---------
Capital Expenditure $ $45,000,000 (Maximum)
Consolidated Tangible Net Worth $ Minimum of $5,000,000 +
(.75 X Consolidated Net
Income) for each Fiscal
Quarter since June 30, 1996
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Annex II
--------
GUARANTY
FOR VALUE RECEIVED and in consideration of any loan or
other financial accommodation heretofore or hereafter at any
time made or granted to Keller Graduate School of Management,
Inc., a Delaware corporation (hereinafter called the "Debtor"),
by the lenders who are or may become party to that certain
Amended and Restated Financing Agreement, dated as of June 12,
1996 (as from time to time, in whole or in part, amended,
modified, supplemented, restated, refinanced, refunded or
renewed, the "Credit Agreement"), among the Debtor, the lenders
who are or from time to time become party thereto (the
"Lenders"), and Bank of America Illinois, as agent for the
Lenders (the "Agent"), the "undersigned" hereby unconditionally
guarantees the full and prompt payment when due, whether at
stated maturity, by required prepayment, declaration, demand,
acceleration or otherwise (including amounts that would become
due but for the operation of the automatic stay under section
362(a) of the Bankruptcy Code (11 U.S.C. P 362(a)), and at all
times thereafter, of all obligations of the Debtor to the Agent
and the Lenders in their respective capacities under the Credit
Agreement, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, or now or hereafter
existing, or due or to become due (all such obligations being
hereinafter collectively called "Liabilities"), and the
undersigned further agrees to pay all expenses (including
attorneys' fees and legal expenses) paid or incurred by the
Agent and the Lenders in endeavoring to collect the Liabilities,
or any part thereof, and in enforcing this guaranty.
1. The undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or the undersigned, or
the inability of the Debtor or the undersigned to pay its debts
as they mature, or an assignment by the Debtor or the
undersigned for the benefit of creditors, or the institution of
any proceeding by or against the Debtor or the undersigned
alleging that the Debtor or the undersigned is insolvent or
unable to pay its debts as they mature, 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 the Agent for the
benefit of the Lenders forthwith the full amount which would be
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payable hereunder by the undersigned if all Liabilities were
then due and payable.
2. To secure all obligations of the undersigned
hereunder, the Agent for the benefit of the Lenders shall have a
lien upon and security interest in (and may, without demand or
notice of any kind, at any time and from time to time when any
amount shall be due and payable by the undersigned hereunder,
appropriate and apply toward the payment of such amount, in such
order of application as the Agent may elect) any and all
balances, credits, deposits (general or special, time or demand,
provisional or final), accounts or moneys of or in the name of
the undersigned now or hereafter with the Agent or any Lender
and any and all property of every kind or description of or in
the name of the undersigned now or hereafter, for any reason or
purpose whatsoever, in the possession or control of, or in
transit to, the Agent or the Lenders or any agent or bailee for
the Agent or the Lenders.
3. 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 dissolution of the undersigned) until all of the
Liabilities have been paid in full, subject to discontinuance as
to the undersigned only upon receipt by the Agent of written
notice from the undersigned, or any person duly authorized and
acting on behalf of the undersigned, of the discontinuance
hereof as to the undersigned; provided, however, that no such
notice of discontinuance shall affect or impair any of the
agreements and obligations of the undersigned hereunder with
respect to any and all Liabilities existing prior to the time of
receipt of such notice by the Agent, any and all Liabilities
created or acquired thereafter pursuant to any previous
commitments made by the Agent or the Lenders, any and all
extensions or renewals of any of the foregoing, any and all
interest on any of the foregoing, and any and all expenses paid
or incurred by the Agent and the Lenders in endeavoring to
collect any of the foregoing and in enforcing this guaranty
against the undersigned; and all of the agreements and
obligations of the undersigned under this guaranty shall,
notwithstanding any such notice of discontinuance, remain fully
in effect until all such Liabilities (including any extensions
or renewals of any thereof) and all such interest and expenses
shall have been paid in full.
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4. The undersigned further agrees that, if at any
time all or any part of any payment theretofore applied by the
Agent or the Lenders to any of the Liabilities is or must be
rescinded or returned by the Agent or the Lenders for any reason
whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Debtor), 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
the Agent or the Lenders, 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 the Agent or the
Lenders had not been made.
5. The Agent may, from time to time, whether before
or after any discontinuance of this guaranty, at its sole
discretion and without notice to the undersigned, take any or
all of the following actions: (a) retain or obtain 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 (whether or not longer
than the original period), or 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 with respect to any of the Liabilities, (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 Liabilities 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 for payment of any of the Liabilities, whether or
not the Agent (i) shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) shall
have proceeded against any other obligor primarily or
secondarily obligated with respect to any of the Liabilities
(all of the actions referred to in preceding clauses (i) and
(ii) being hereby expressly waived by the undersigned).
6. Any amounts received by the Agent from whatsoever
source on account of the Liabilities may be applied by it toward
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the payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect.
7. No payment made by or for the account of the
undersigned pursuant to this guaranty shall entitle the
undersigned by subrogation or otherwise to any payment by the
Debtor or from or out of any property of the Debtor and the
undersigned shall not exercise any right or remedy against the
Debtor or any property of the Debtor by reason of any
performance by the undersigned of this guaranty. The
undersigned waives, to the fullest extent permitted by law, all
rights of the undersigned against the Debtor, arising out of any
payment by the undersigned under this guaranty, whether arising
by way of any subrogation, contribution, reimbursement or
otherwise and agrees that, to the extent that any such rights
may not be waived under applicable law, it will contribute such
rights to the Debtor as a capital contribution concurrently with
the arising of such rights.
8. The undersigned hereby expressly waives: (a)
notice of the acceptance by the Agent of this guaranty, (b)
notice of the existence or creation or non-payment 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.
9. The Lenders may, from time to time, 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 the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this guaranty to the
same extent as if such assignee or transferee were a Lender;
provided, however, that, unless the assigning or transferring
Lender shall otherwise consent in writing, such Lender shall
have an unimpaired right, prior and superior to that of any such
assignee or transferee, to enforce this guaranty, for the
benefit of the Lender, as to those of the Liabilities which the
Lender has not assigned or transferred.
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10. The undersigned hereby warrants to the Agent and
the Lenders that the undersigned now has and will continue to
have independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The
Agent and the Lenders shall not have any duty or responsibility
to provide the undersigned with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the Agent's or any of the Lenders'
possession.
11. The undersigned hereby warrants and agrees that:
(a) the undersigned is a corporation duly existing and in good
standing under the laws of the state of its incorporation, and
the undersigned is duly qualified and in good standing and
authorized to do business in each jurisdiction where, because of
the nature of its activities or properties, such qualification
is required, (b) the undersigned has full corporate power and
authority to execute and deliver this guaranty, (c) the
execution, delivery and performance by the undersigned of this
guaranty are within the undersigned's corporate powers, have
been duly authorized by all necessary action, have received all
necessary governmental approval (if any shall be required) and
do not and will not contravene or conflict with any provision of
law or of the organizational documents of the undersigned or of
any agreement binding upon the undersigned, (d) this guaranty is
the legal, valid and binding obligation of the undersigned
enforceable against the undersigned in accordance with its
terms, except as enforceability may be limited by bankruptcy or
other laws relating to or affecting creditors' rights generally
or by equitable principles, and (e) this guaranty will directly
or indirectly benefit the undersigned.
12. No delay on the part of the Agent in the exercise
of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Agent 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
the Agent except as expressly set forth in a writing duly signed
and delivered on behalf of the Agent for the benefit of the
Lenders. No action of the Agent permitted hereunder shall in
any way affect or impair the rights of the Agent and the
obligations of the undersigned under this guaranty. For the
purposes of this guaranty, Liabilities shall include all
111
obligations of the Debtor to the Agent and the Lenders,
notwithstanding any right or power of the Debtor 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. The obligations of the undersigned 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.
13. This guaranty shall be binding upon the
undersigned, and upon any successors and assigns of the
undersigned; and to the extent that the Debtor or any of the
undersigned is either a partnership or a corporation, all
references herein to the Debtor and to the undersigned,
respectively, shall be deemed to include any successor or
successors, whether immediate or remote, to such partnership or
corporation. If more than one party shall execute this
guaranty, 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.
14. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO,
ILLINOIS, AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING
EFFECT TO ITS PRINCIPLES OF CHOICE OF LAW. 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.
15. The undersigned hereby irrevocably agrees that
any legal action or proceeding pertaining to this guaranty may
be brought in the courts of the State of Illinois, County of
Cook, or of the United States of America for the Northern
District of Illinois. The undersigned hereby irrevocably agrees
that service of process in such action or proceeding may be made
either by mailing, by registered or certified mail, postage
prepaid, a copy of the summons or complaint, or other legal
process in such action or proceeding to the undersigned at the
112
address shown on the signature page hereof. Service of process
in any such action or proceeding, effected as aforesaid, shall
be effective upon receipt by the undersigned and shall be deemed
personal service upon the undersigned and shall be legal and
binding upon the undersigned for all purposes. The undersigned
hereby waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the laying of venue in
any such action or proceeding in any such court as well as any
right it may now or hereafter have to remove any such action or
proceeding, once commenced, to another court on the grounds of
forum non conveniens or otherwise.
16. The undersigned hereby expressly waives any right
to a trial by jury in any action or proceeding to enforce or
defend any rights (a) under this guaranty or under any
amendment, instrument, document or agreement delivered or which
may in the future be delivered in connection herewith or (b)
arising from any banking relationship existing in connection
with this guaranty, and agrees that any such action or
proceeding shall be tried before a court and not before a jury.
* * * * *
113
IN WITNESS WHEREOF, the undersigned has caused this
Guaranty to be duly executed as of this 23rd day of March, 1998.
[Name of Guarantor]
By:
Name:
Title: