GUARANTY
This Guaranty dated as of May 31, 1996, by the undersigned, Enterprise
Systems, Inc., formerly known as Enterprise Systems International, Inc., a
Delaware corporation (hereinafter referred to as "Guarantor"), to LaSalle
National Bank ("Bank"), has reference to the following facts and circumstances:
WHEREAS, Guarantor is the sole shareholder of Enterprise Systems,
Inc., an Illinois corporation ("Borrower") and is financially interested in
Borrower, and Borrower has accordingly solicited Guarantor's execution and
delivery of this Guaranty to Bank;
WHEREAS, by reason of the foregoing, it will be to Guarantor's direct
interest and financial advantage to enable Borrower to obtain loans, advances
and other financial assistance from Bank.
WHEREAS, Bank, as a condition precedent to making loans, advances,
extensions of credit and/or other financial accommodations to Borrower requires
that Guarantor execute and deliver this Guaranty.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as
follows:
1. Definitions.
(A) "Borrower's Liabilities": all obligations and liabilities of Borrower
to Bank (including without limitation all debts, claims and indebtedness)
whether primary, secondary, direct, contingent, fixed or otherwise, heretofore,
now and/or from time to time hereafter owing, due or payable, however evidenced,
created, incurred, acquired or owing, under the "Loan Agreements" (hereinafter
defined), and all terms, conditions, agreements, representations, warranties,
undertakings, covenants, guaranties and provisions to be performed, observed or
discharged by Borrower under the Loan Agreements.
(B) "Guarantor's Liabilities": all of Guarantor's obligations and
liabilities to Bank under this Guaranty.
(C) "Loan Agreements": all agreements, instruments and documents,
including, without limitation, a certain Loan Agreement dated as of the date
hereof, between Bank and Borrower (the "Loan Agreement"), and all security
agreements, guaranties, pledges, powers of attorney, consents, assignments,
contracts, notices, financing statements and all other written matter
heretofore, now and/or from time to time hereafter executed by and/or on behalf
of Borrower and delivered to Bank.
(D) "Person": any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity, party or
government (whether national, federal, state, county, city, municipal or
otherwise, including without limitation, any instrumentality, division, agency,
body or department thereof).
2. Guaranty. In consideration of the financial accommodations now,
or from time to time hereafter extended by Bank to Borrower, Guarantor
unconditionally, absolutely, continuingly and irrevocably guaranties to Bank,
Borrower's prompt payment in full, when due or declared due, and Borrower's
prompt performance, of Borrower's Liabilities.
As a condition to payment or performance of Guarantor's Liabilities,
Bank is not required to (i) prosecute collection or seek to enforce or resort to
any remedies against Borrower or any other party liable to Bank on account of
Borrower's Liabilities or any guaranty thereof, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, liens or
encumbrances granted to Bank by Borrower or any other party liable to Bank on
account of Borrower's Liabilities or any guaranty thereof. Bank shall have no
obligation to protect, secure or insure any of the foregoing security interests,
liens or encumbrances or the properties or interests in properties subject
thereto. Guarantor's Liabilities shall in no way be impaired, affected, reduced
or released by reason of (i) Bank's failure or delay to do or take any of the
actions or things described in this Guaranty, or (ii) the invalidity,
unenforceability, loss of or change in priority or reduction in or loss of value
of any of the aforesaid security interests, liens and encumbrances.
3. Representations and Warranties. Guarantor represents and warrants
to Bank that:
(A) The statements contained in the preamble to this Guaranty are true and
correct.
(B) Guarantor is a corporation duly organized and validly existing under
the laws of the State of Delaware.
(C) Guarantor has full corporate power and authority to enter into,
execute, deliver and perform this Guaranty and to own its property and assets
and to carry on and engage in its business as it is now conducted.
(D) This Guaranty, when duly executed and delivered, will constitute a
legal, valid and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its terms.
(E) The execution, delivery and/or performance by Guarantor of this
Guaranty shall not, by the lapse of time, the giving of notice or otherwise,
conflict with or result in a breach of the Certificate of Incorporation or
Bylaws of Guarantor or constitute a violation of any provision of applicable
law, or contained in any agreement, instrument or document
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to which Guarantor is now or may hereafter become a party or by which Guarantor
is or may become bound.
(F) Guarantor is now and at all times hereafter, shall be solvent and
generally able to pay its debts as such debts become due and Guarantor now owns
and shall at all times hereafter own property which, at a fair valuation,
exceeds the sum of Guarantor's debts.
(G) There are no actions or proceedings which are pending or to the best of
Guarantor's knowledge, threatened against Guarantor which might result in any
material and adverse change in Guarantor's financial condition or materially
affect Guarantor's ability to perform Guarantor's Liabilities.
(H) Guarantor has reviewed independently all agreements, instruments and
documents executed by Borrower, and Guarantor has made an independent
determination as to the validity and enforceability thereof upon the advice of
Guarantor's own counsel, and in executing and delivering the Guaranty to Bank,
Guarantor is not in any manner relying upon Bank as to the validity and/or
enforceability of any security interests of any kind or nature granted by
Borrower to Bank.
(I) Guarantor agrees to keep informed with respect to all pertinent facts
relating to Borrower's ability to pay and perform Borrower's Liabilities.
Guarantor acknowledges and agrees that Bank has relied and will continue to rely
upon the facts and information to be furnished to it by Guarantor. Guarantor
further acknowledges and agrees that in executing this Guaranty and at all times
hereafter, Guarantor has relied and will continue to rely upon Guarantor's own
investigation and upon sources other than Bank for all information and facts
relating to the ability of Borrower to pay and perform Borrower's Liabilities,
and Guarantor has not and will not hereafter rely upon Bank for any such
information or facts.
(J) The Guarantor has filed all federal, state, county, municipal an other
tax returns, reports and declarations which Guarantor in good faith and in the
exercise of prudent business practices believes to be required to be filed by
law, has paid all taxes, including excise taxes, assessments, penalties,
interest and other governmental charges which Guarantor in good faith and in the
exercise of prudent business practices believes are or were due and payable,
unless Guarantor is contesting in good faith, by an appropriate proceeding, the
validity, amount or imposition of the above while maintaining reserves, deemed
adequate by the Bank to cover the above, and as to which no foreclosure,
distraint, sale or similar proceedings have been commenced.
(K) The Guarantor is in material compliance with all laws, governmental
rules and regulations, and orders and decrees applicable to it and its
properties.
(L) Neither this Agreement nor any document, financial statement, credit
information, certificate or statement furnished to the Bank by the Guarantor
contains, or
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will contain, any untrue statement of a material fact or omits, or will omit, to
state a material fact necessary to make the statements made not misleading.
4. Covenants. Guarantor covenants and agrees with Bank that:
(A) The Guarantor shall cause to be paid on a timely basis all taxes and
assessments, special or otherwise, and any other such charges which are due and
payable.
(B) The Guarantor shall comply in all material respects with all laws,
ordinances, regulations, and orders of all governmental authorities applicable
to its business or the use of its properties. The Guarantor may contest, in
good faith, any such law, ordinance, regulation, or order and withhold
compliance during any proceeding, including appropriate appeals, so long as
Guarantor maintains reserves that are sufficient in accordance with prudent
business practices.
(C) Except for the lease, transfer, sale or other disposition of its assets
to Borrower, the Guarantor shall not sell, lease, transfer, or otherwise dispose
of all or any substantial part of the assets of the Guarantor or enter into any
sale and leaseback transaction or arrangement with respect to any properties of
the Guarantor, or wind up, liquidate, or dissolve, or agree to do any of the
foregoing. The Guarantor shall not create any subsidiaries other than Borrower.
(D) The Guarantor shall not (i) change its corporate name or adopt an
assumed corporate name without providing the Bank prior written notice, and such
name change shall be done in compliance with any applicable laws, (ii)
consolidate or merge with any Person, or allow any of its shares of common stock
to be sold, exchanged or otherwise transferred without the prior written consent
of Bank which consent shall not be unreasonably withheld or (iii) acquire any
stock in, or otherwise acquire all or substantially all of the assets or
properties of, any Person without the prior written consent of Bank, which
consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, Guarantor shall
have the right to merge or consolidate with any Person, acquire stock in or
otherwise acquire all or substantially all of the assets or properties of any
Person without the prior written consent of the Bank under the following terms
and conditions:
(1) in the event of any merger or consolidation, Guarantor shall be
the surviving entity;
(2) the consideration paid by Guarantor in connection with such
transaction is less than $5,000,000; or
(3) Guarantor shall use less than $5,000,000 of proceeds of loans by
Bank to Borrower (which proceeds have been distributed, loaned or
otherwise disbursed to Guarantor from Borrower) to pay the
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consideration in connection with such transaction. Guarantor
shall give Bank notice of any such proposed acquisition not less
than five (5) days prior to the proposed closing date, together
with a certificate signed by an authorized officer of Guarantor,
setting forth the financial terms of the proposed acquisition and
an analysis of the sources and use of funds to be used in
connection with said acquisition.
(E) The Guarantor shall maintain its principal deposit relationship with
the Bank.
(F) The Guarantor shall not create, incur, assume, or suffer to exist any
funded or current debt, or guarantee, endorse or otherwise be or become
contingently liable in connection with the obligations, stock, or dividends of
any person, except: (a) the guaranty of Borrower's Obligations; (b) contingent
liabilities arising out of the endorsement in the ordinary course of business of
negotiable instruments in the course of collection thereof; and (c) current
liabilities arising in the ordinary course of business of the Guarantor and
which are not incurred for money borrowed.
(G) The Guarantor shall not create, incur, grant, pledge, permit or suffer
to exist any lien, charge, mortgage, security interest, pledge or encumbrance
upon any of Guarantor's property or assets, except for (i) Liens arising out of
judgments or awards in respect of which the Guarantor shall in good faith be
prosecuting an appeal or proceedings for review and in respect of which the
Guarantor shall have secured a subsisting stay of execution pending such appeal
or proceedings for review, provided the Guarantor shall have set aside
accounting reserves which the Bank, in its sole but reasonable discretion, deems
adequate with respect to such judgment or award; (ii) Liens for taxes,
assessments or governmental charges or levies, provided payment thereof shall
not at the time be required in accordance with the provisions hereof; (iii)
deposits, Liens or pledges to secure payments of worker's compensation,
unemployment insurance or social security benefits arising in the ordinary
course of business which are not overdue or are being contested in good faith by
appropriate proceedings diligently pursued, provided that Guarantor maintains
accounting reserves on its books deemed adequate by the Bank in its sole but
reasonable discretion to cover the above, and such contest does not have or
cause a material adverse change in the Guarantor's financial condition or
operations and does not impair Borrower's ability to perform its Obligations;
(iv) statutory landlords' liens under leases to which the Guarantor is a party;
and (v) Liens directly securing appeal and release bonds, provided that adequate
provision for all such obligations has been made on the books of Guarantor in
accordance with GAAP;
(H) The Guarantor shall provide to Bank such financial reports as set forth
in the Loan Agreement;
(I) The Guarantor will maintain and preserve its corporate existence, good
standing, certificates of authority, licenses, permits, franchises, patents,
trademarks, trade
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names, service marks, copyrights, leases and all other material contracts and
rights necessary to continue its operations and business on the basis presently
conducted; and
(J) The Guarantor shall not guarantee, assume, endorse or otherwise, in any
way, become directly or contingently liable in any manner with respect to the
obligations or liabilities of any Person, except by endorsement of instruments
or items for payment or deposit or collection and the guaranty of Borrower's
Liabilities hereunder.
5. Waivers.
(A) Guarantor waives any and all right to assert against Bank any claims or
defenses based upon any failure of Bank to furnish to Guarantor any information
or facts relating to the ability of Borrower to pay and perform Borrower's
Liabilities.
(B) Guarantor waives all defenses, counterclaims and offsets of any kind or
nature, in connection with the validity and/or enforceability of this Guaranty,
arising directly or indirectly from the perfection, sufficiency, validity and/or
enforceability of any security interest granted, or any agreement, instrument or
document executed and delivered, by Borrower to Bank, or acquired by Bank from
Borrower.
(C) Guarantor waives, but only in favor of Bank, any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution, assignment,
implied contract or any other claim which it may now or hereafter have against
the Borrower or any other Person directly or contingently liable for Borrower's
Liabilities, or against or with respect to the Borrower's property (including,
without limitation, property collateralizing Borrower's Liabilities), arising
from the existence or performance of this Guaranty until all of Borrower's
Liabilities are paid in full.
(D) Guarantor waives any right to assert against Bank as a defense,
counterclaim, setoff or crossclaim to the payment or performance of Guarantor's
Liabilities, any defense (legal or equitable), setoff, counterclaim or claim
which Guarantor may now or at any time or times hereafter have against Borrower
or any other party liable to Bank in any way or manner with respect to
Borrower's Liabilities.
(E) Guarantor hereby waives notice of the following events or occurrences
and agrees that Bank may do any or all of the following in such manner, upon
such terms and at such times as Bank in its sole discretion deems advisable
without in any way impairing, affecting, reducing or releasing Guarantor from
Guarantor's Liabilities: (i) Bank's acceptance of this Guaranty; (ii) Bank's
heretofore, now or from time to time hereafter loaning monies or giving or
extending credit to or for the benefit of Borrower, whether pursuant to the Loan
Agreements or any amendments, modifications or additions thereto or alterations
or substitutions made heretofore, now or at any time or times hereafter; (iii)
Borrower's heretofore, now or at any time or times hereafter granting to Bank
security interests, liens or encumbrances in any of Borrower's assets or Bank's
heretofore, now or from time to time hereafter obtaining, substituting for,
releasing, waiving or modifying any
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such security interests, liens or encumbrances; (iv) Bank's heretofore, now or
at any time or times hereafter obtaining, releasing, waiving or modifying of any
other party's guaranty of Borrower's Liabilities or any security interest, lien
or encumbrance in any other party's assets given to Bank to secure such party's
guaranty of Borrower's Liabilities; (v) Bank's heretofore, now or at any time or
times hereafter obtaining, amending, substituting for, releasing, waiving or
modifying any of the Loan Agreements; (vi) presentment, demand, notices of
default, nonpayment, partial payment and protest, and all other notices or
formalities to which Guarantor may be entitled; (vii) Bank's heretofore, now or
at any time or times hereafter granting to Borrower (and any other party liable
to Bank on account of Borrower's Liabilities) of any indulgences or extensions
of time of payment of Borrower's Liabilities; and (viii) Bank's heretofore, now
or at any time or times hereafter accepting from Borrower or any other party any
partial payment or payments on account of Borrower's Liabilities or any
collateral securing the payment thereof or Bank's settling, subordinating,
compromising, discharging or releasing the same.
6. Subordination. Guarantor covenants and agrees with Bank that:
(a) all indebtedness, liability or liabilities owed and at any time or times
hereafter owing by Borrower to Guarantor are hereby subordinated to Borrower's
Liabilities; (b) all security interests, liens and encumbrances which Guarantor
now has and from time to time hereafter may have upon any of Borrower's assets
are hereby subordinated to all security interests, liens and encumbrances which
Bank now has and from time to time hereafter may have thereon; and (c) all
indebtedness, liability or liabilities now and at any time or times hereafter
owing to Guarantor by any party liable to Bank by reason of any security
interests, liens or encumbrances granted by Borrower to Bank are hereby
subordinated to all indebtedness, liability or liabilities owed by such party to
Bank.
7. Security. Guarantor agrees that any and all security interests,
liens and encumbrances in any collateral ("Collateral") heretofore, now or at
any time or times hereafter granted by Guarantor to Bank shall secure the prompt
payment, and the prompt, full and faithful performance, of Guarantor's
Liabilities. Regardless of the adequacy of any Collateral securing Guarantor's
Liabilities hereunder, any deposits or other sums at any time credited by or
payable or due from Bank to Guarantor, or any monies, cash, cash equivalents,
securities, instruments, documents or other assets of Guarantor in possession or
control of Bank or its bailee for any purpose may at anytime be reduced to cash
and applied by Bank to or setoff by Bank against Guarantor's Liabilities
hereunder.
8. Default. The occurrence of any one of the following events
shall, at the election of Bank, be deemed a default by Guarantor ("Event of
Default"), under this Guaranty: (a) if Guarantor fails or neglects to perform,
keep or observe any term, provision, condition, covenant, warranty or
representation contained in this Guaranty, which is required to be performed,
kept or observed by Guarantor; (b) occurrence of a default or Event of Default
under any other agreement, instrument or document heretofore, now or at any time
hereafter delivered by Guarantor to Bank; (c) if Guarantor fails to pay any of
Guarantor's Liabilities when the same are due and payable or declared due and
payable; (d) if any material portion of Guarantor's assets are seized, attached,
subjected to a
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writ or distress warrant, or are levied upon, or come within the possession of
any receiver, trustee, custodian or assignee for the benefit of creditors and
the same is not terminated or dismissed within forty-five (45) days thereafter;
(e) if a petition under the Bankruptcy Reform Act of 1978 or any similar law or
regulation shall be filed by Guarantor, or if Guarantor shall make an assignment
for the benefit of creditors; (f) if Guarantor is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of
Guarantor's business affairs or if a petition under any section or chapter of
the Bankruptcy Reform Act of 1978 or any similar law or regulation is filed
against Guarantor or if any case or proceeding is filed against Guarantor for
liquidation of Guarantor's assets and such injunction, restraint or petition is
not dismissed or stayed within forty-five (45) days after the entry or filing
thereof; (g) if an application is made by Guarantor for the appointment of a
receiver, trustee or custodian for any of Guarantor's assets; (h) if an
application is made by any person other than Guarantor for the appointment of a
receiver, trustee, custodian or conservator for any of Guarantor's assets and
the same is not dismissed within forty-five (45) days after the application
therefor; (i) if a notice of lien, levy or assessment is filed of record with
respect to all or any material portion of Guarantor's assets by the United
States or any department, agency or instrumentality thereof or by any state,
county, municipal or other governmental agency, or if any taxes or debts owing
at any time or times hereafter to any one of them becomes a lien or encumbrance
upon any material portion of Guarantor's assets; (j) if Guarantor is in default
in the payment of any material liabilities owed by Guarantor to any person for
borrowed money (other than Guarantor's Liabilities) and such default is declared
and is not cured within the time, if any, specified therefor in any agreement
governing the same; or (k) if an "Event of Default" occurs under the Loan
Agreements.
9. Remedies. Upon the occurrence of an Event of Default, and the
delivery of notice thereof to Guarantor, at the address set forth below,
Guarantor's Liabilities shall be due and payable and enforceable against
Guarantor, forthwith, at Bank's principal place of business, whether or not
Borrower's Liabilities are then due and payable and Bank may, in its sole
discretion, exercise any one or more of the following remedies which are
cumulative and non-exclusive: (a) if Guarantor's Liabilities are not paid
forthwith by Guarantor to Bank at Bank's principal place of business, proceed to
suit against Guarantor; at Bank's election, one or more successive or concurrent
suits may be brought hereunder by Bank against Guarantor, whether suit has been
commenced against Borrower, and in any such suit Borrower may be joined (but
need not be joined) as a party with Guarantor; (b) reduce to cash or the like
any of Guarantor's assets of any kind or nature in the possession, control or
custody of Bank, and, with notice to Guarantor, apply the same in reduction or
payment of Guarantor's Liabilities; or (c) exercise any other right or remedy
provided by law.
10. Costs, Fees and Expenses. If at any time or times after the
occurrence of an Event of Default Bank employs counsel for advice or other
representation (i) with respect to this Guaranty, and/or (ii) to represent Bank
in any litigation, contest, dispute, suit or proceeding or to commence, defend
or intervene or to take any other action in or with respect to any litigation,
contest, dispute suit or proceeding (whether instituted
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by Bank, Guarantor or any other person) in any way or respect relating to the
Collateral, if any, this Guaranty or Guarantor's affairs, the reasonable costs,
fees and expenses incurred by Bank in any manner or way with respect to the
foregoing shall be part of Guarantor's Liabilities, payable by Guarantor to Bank
on demand. Without limiting the generality of the foregoing, such costs, fees
and expenses include: (i) reasonable attorneys' fees, costs, and expenses; (ii)
accountants' fees, costs and expenses; (iii) court costs and expenses; and (iv)
court reporter fees, costs and expenses.
11. Jurisdiction. This Guaranty is submitted to Bank at Bank's
principal place of business and shall be deemed to have been made thereat. This
Guaranty shall be governed and controlled as to interpretation, enforcement,
validity, construction, effect and in all other respects by the laws, statutes
and decisions of the State of Illinois. Guarantor, in order to induce Bank to
accept this Guaranty, agrees that all actions or proceedings arising directly,
indirectly or otherwise in connection with, out of, related to or from this
Guaranty shall be litigated, at Bank's sole discretion and election, only in
courts having situs within the City of Chicago, State of Illinois. Guarantor
hereby consents and submits to the jurisdiction of any local, state or federal
court located within said city and state. Guarantor hereby waives any right
Guarantor may have to transfer or change the venue of any litigation brought
against Guarantor in accordance with this paragraph. Guarantor acknowledges
that the right to a trial by jury is a constitutional right, but that the right
may be waived. Guarantor knowingly, voluntarily and without coercion, waives
all rights to trial by jury.
12. Miscellaneous. If any provision of this Guaranty or the
application thereof to any party or circumstance is held invalid or
unenforceable, the remainder of this Guaranty and the application of such
provision to other parties or circumstances will not be affected thereby, the
provisions of this Guaranty being severable in any such instance.
This Guaranty shall continue in full force and effect until Borrower's
Liabilities are fully paid, performed and discharged and Bank gives Guarantor
written notice thereof at Guarantor's address or addresses specified below.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time payment of any of Guarantor's Liabilities is rescinded or
must otherwise be returned by Bank upon the insolvency, bankruptcy or
reorganization of Guarantor or Borrower or otherwise, all as though such payment
had not been made. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the Bank, its
successors and assigns. Written notice to Guarantor shall be to the address or
addresses specified below.
Bank's failure at any time hereafter to require strict performance by
Guarantor of any provision of this Guaranty shall not waive, effect or diminish
any right of Bank thereafter to demand strict compliance and performance
therewith.
ENTERPRISE SYSTEMS, INC.,
a Delaware corporation
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By: /s/ Xxxxx X. Xxx
--------------------------
Title: Treasurer
-----------------------
Address:
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
SUBSCRIBED AND SWORN TO before the
undersigned, a notary public in and for
the State of Illinois, County of Xxxx,
this 31st day of May, 1996.
Xxxx X. Xxxxx
------------------------
Notary Public
My Commission Expires:
9/13/98
------------------------
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AMENDMENT TO GUARANTY
This Amendment to Guaranty is made as of May 31, 1996 by and between
Enterprise Systems, Inc. (formerly known as Enterprise Systems International,
Inc.), a Delaware corporation ("GUARANTOR") and LaSalle National Bank ("BANK"),
has reference to the following facts and circumstances.
WHEREAS, Guarantor has made a guaranty in favor of Bank dated as of May 31,
1996 (the "GUARANTY") with respect to financial accommodations made by Bank to
Enterprise Systems, Inc., an Illinois corporation; and
WHEREAS, Guarantor and Bank desire to amend the Guaranty to correct an
ambiguity contained therein.
Now Therefore, in consideration of the foregoing Recitals, each of which is
made a part hereof, the parties hereby delete the first paragraph in Section
4(D) of the Guaranty and substitute the following therefor:
(D) THE GUARANTOR SHALL NOT (I) CHANGE ITS CORPORATE NAME OR ADOPT AN
ASSUMED CORPORATE NAME WITHOUT PROVIDING THE BANK PRIOR WRITTEN NOTICE, AND
SUCH NAME CHANGE SHALL BE DONE IN COMPLIANCE WITH ANY APPLICABLE LAWS, (II)
CONSOLIDATE OR MERGE WITH ANY PERSON, WITHOUT THE PRIOR WRITTEN CONSENT OF
BANK, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, (III) AT ANY TIME
THAT THE OUTSTANDING PRINCIPAL BALANCE UNDER THE LOAN AGREEMENT IS
$9,000,00 OR MORE, ISSUE SHARES OF STOCK IN A NEW PUBLIC OFFERING, WITHOUT
THE PRIOR CONSENT OF BANK WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,
OR (IV) ACQUIRE ANY STOCK IN, OR OTHERWISE ACQUIRE ALL OR SUBSTANTIALLY ALL
OF THE ASSETS OR PROPERTIES OF, ANY PERSON, FOR CASH OR THE ISSUANCE OR
TRANSFER OF SHARES OF STOCK OF GUARANTOR, WITHOUT THE PRIOR WRITTEN CONSENT
OF BANK, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
The parties agree that the substitute language shall be deemed to have been
in effect from and after May 31, 1996, and the deleted text shall be void ab
initio and deemed never to have taken effect. Except as expressly amended
hereby, the Guaranty shall remain in full force and effect, unamended hereby.
Guarantor hereby reaffirms and remakes the Guaranty as of the date hereof, as if
fully set forth herein. From and after the date hereof, all references to the
Guaranty in the Guaranty and the other Loan Documents, shall mean the Guaranty,
as amended hereby.
This Agreement may be signed in one or more counterparts, each of which
shall be an original, but all of which together shall constitute one agreement,
binding on all of the parties hereto notwithstanding that all of the parties
hereto are not signatories to the same counterpart. For purposes of negotiating
and finalizing this Agreement (including any subsequent amendments thereto), any
signed document transmitted by facsimile machine ("FAX") shall be treated in all
manner and respects as an original document. The signature of any party by FAX
shall be considered for these purposes as an original signature. Any such FAX
document shall
be considered to have the same binding legal effect as an original document. At
the request of either party, any FAX document subject to this Agreement shall be
re-executed by both parties in an original form. The undersigned parties hereby
agree that neither shall raise the use of the FAX or the fact that any signature
or document was transmitted or communicated through the use of a FAX as a
defense to the formation of this Agreement.
Guarantor of Bank have executed this Amendment as of the date set forth
herein.
Enterprise Systems, Inc.
By: /s/ Xxxxx X. Xxx
---------------------------------
Title: Treasurer
-------------------------------
LaSalle National Bank
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: Vice-President
-------------------------------
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