OR ANY OF THEM WITH RESPECT TO THIS MODIFICATION
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY.
NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, IN THE EVENT THAT THE
JURY TRIAL WAIVER CONTAINED HEREIN SHALL BE HELD OR DEEMED TO BE UNENFORCEABLE,
EACH PARTY HERETO HEREBY EXPRESSLY AGREES TO SUBMIT TO JUDICIAL REFERENCE ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER FOR WHICH A JURY
TRIAL WOULD OTHERWISE BE APPLICABLE OR AVAILABLE.
PURSUANT TO SUCH JUDICIAL
REFERENCE, THE PARTIES AGREE TO THE APPOINTMENT OF A SINGLE REFEREE
2218323.3
8
AND SHALL USE THEIR BEST EFFORTS TO AGREE ON THE SELECTION OF A REFEREE.
IF THE
PARTIES ARE UNABLE TO AGREE ON A SINGLE REFEREE, A REFEREE SHALL BE APPOINTED BY
THE COURT TO HEAR ANY DISPUTES HEREUNDER IN LIEU OF ANY SUCH JURY TRIAL.
EACH
PARTY ACKNOWLEDGES AND AGREES THAT THE APPOINTED REFEREE SHALL HAVE THE POWER TO
DECIDE ALL ISSUES IN THE APPLICABLE ACTION OR PROCEEDING, WHETHER OF FACT OR
LAW, AND SHALL REPORT A STATEMENT OF DECISION THEREON; PROVIDED, HOWEVER, THAT
ANY MATTERS WHICH WOULD NOT OTHERWISE BE THE SUBJECT OF A JURY TRIAL WILL BE
UNAFFECTED BY THIS WAIVER AND THE AGREEMENTS CONTAINED HEREIN.
THE PARTIES
HERETO HEREBY AGREE THAT THE PROVISIONS CONTAINED HEREIN HAVE BEEN FAIRLY
NEGOTIATED ON AN ARM'S-LENGTH BASIS, WITH BOTH SIDES AGREEING TO THE SAME
KNOWINGLY AND BEING AFFORDED THE OPPORTUNITY TO HAVE THEIR RESPECTIVE LEGAL
COUNSEL CONSENT TO THE MATTERS CONTAINED HEREIN.
ANY PARTY TO THIS MODIFICATION
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY AND THE AGREEMENTS CONTAINED HEREIN REGARDING THE
APPLICATION OF JUDICIAL REFERENCE IN THE EVENT OF THE INVALIDITY OF SUCH JURY
TRIAL WAIVER.
JS
RZ
KC
Borrower's Initials
Guarantor's Initials
Lender's Initials
[SIGNATURE PAGE FOLLOWS]
2218323.3
9
IN WITNESS WHEREOF, the parties have executed this Modification on the date and
year first written above.
BORROWER:
AMPHASTAR PHARMACEUTICALS, INC.,
a Delaware corporation
By:
/S/Jason Shandell
Name:
Jason Shandell
Title:
President
GUARANTOR:
ARMSTRONG PHARMACEUTICALS, INC.,
a Delaware corporation
By:
/S/Rong Zhou
Name:
Rong Zhou
Title:
President
LENDER:
CATHAY BANK,
a California banking corporation,
By:
/S/Kenneth Chan
Name:
Kenneth Chan
Its:
Vice President
2218323.3
10