OR IN CONNECTION WITH
THIS NOTE 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 NOTHING IN
THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.
EACH OF THE BORROWERS
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 BORROWERS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS.
EACH OF THE BORROWERS 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.
THE LENDER AND EACH OF THE BORROWERS, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE, THE LOAN AGREEMENT
OR ANY OTHER LOAN DOCUMENT, ANY OF THE OTHER OBLIGATIONS, THE COLLATERAL, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR NOTE DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING
RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR ANY COURSE OF
CONDUCT OR COURSE OF DEALING IN WHICH THE LENDER AND ANY OF THE BORROWERS ARE
ADVERSE PARTIES, AND EACH AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE BANK GRANTING ANY FINANCIAL ACCOMMODATION TO THE BORROWERS.
[signature page attached]
B-2
IN WITNESS WHEREOF, this Term Note has been duly executed as of the day and year
first written above.
LIFEWAY FOODS, INC.
By: ___________________________________
Title:__________________________________
FRESH MADE, INC.
By:
___________________________________
Title: __________________________________
LFI ENTERPRISES, INC.
By:
___________________________________
Title: __________________________________
HELIOS NUTRITION LIMITED
By:
___________________________________
Title: __________________________________
PRIDE OF MAIN STREET DAIRY, LLC
By:
___________________________________
Title: __________________________________
STARFRUIT, LLC
By:
___________________________________
Title: __________________________________
B-3
EXHIBIT C
Form of Borrowing Base Certificate
BORROWING BASE CERTIFICATE
FOR
LOAN AND SECURITY AGREEMENT
DATED FEBRUARY _, 2009 ("AGREEMENT") BY AND AMONG
LIFEWAY FOODS, INC.
FRESH MADE, INC.
LFI ENTERPRISES, INC.
HELIOS NUTRITION LIMITED
PRIDE OF MAIN STREET DAIRY, LLC
STARFRUIT, LLC
AND
THE PRIVATEBANK AND TRUST COMPANY
BORROWING BASE COMPUTATION
I.
ACCOUNTS RECEIVABLE
(a)
Billed Accounts Receivable
$__________
Less:
Over 60 days
$__________
25%Rule, +60 days
$__________
Contra accounts
$__________
Government Contracts
$__________
Foreign Accounts
$__________
Subject to other Liens
$__________
Affiliate