SUMMIT BANK
GUARANTY AGREEMENT
GUARANTY AGREEMENT to SUMMIT BANK ("BANK") from Menlo Acquisition Corporation
("GUARANTOR"), dated as set forth.
1. DEFINITIONS
The terms set forth below shall be defined as follows:
1.1 "Date of Guaranty Agreement" is: August 14, 2000.
1.2 "Borrower" means jointly and severally: Environmental Waste
Management Associates, L.L.C., a New Jersey limited liability
company; Integrated Analytical Laboratories, L.L.C., a New
Jersey limited liability company; Environmental Waste
Management Associates, Inc., a New Jersey corporation; and
Integrated Analytical Laboratories, Inc., a New Jersey
corporation.
1.3 "Borrower's Address" is: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ as to Environmental Waste Management Associates,
L.L.C.; Integrated Analytical Laboratories, L.L.C.; and
Environmental Waste Management Associates, Inc.; and ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ as to Integrated
Analytical Laboratories, Inc.
1.4 "Bank's Address" is: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇.
1.5 "Guarantor" means: Menlo Acquisition Corporation, a
corporation.
1.6 "Guarantor's Address" is: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇.
1.7 "Collateral" means all property, assets or rights that secure
the payment of the Obligations, whether now owned or existing
or hereafter created or acquired and cash and noncash proceeds
thereof.
1.8 "Event of Default" means each and every event specified in
Section 7 of this Guaranty Agreement.
1.9 "Obligations" means all indebtedness, obligations and
liabilities of Borrower to Bank of every kind and description,
direct or indirect, secured or unsecured, joint or several,
absolute or contingent, due or to become due, including any
overdrafts, whether for payment or performance, now existing
or hereafter arising, whether presently contemplated or not,
regardless of how the same arise, or by what instrument,
agreement or book account they may be evidenced, or whether
evidenced by any instrument, agreement or book account,
including, but not limited to all loans (including any loan by
modification, renewal or extension), all indebtedness
including any arising from any derivative transactions, all
undertakings to take or refrain from taking any action, all
indebtedness, liabilities or obligations owing from Borrower
to others which Bank may have obtained by purchase,
negotiation, discount, assignment or otherwise, and all
interest, taxes, fees, charges, expenses and attorney's fees,
(whether or not such attorney is a regularly salaried employee
of Bank, any parent corporation or any subsidiary or affiliate
thereof, whether now existing or hereafter created) chargeable
to Borrower or incurred by Bank under this Guaranty Agreement,
or any other document or instrument delivered in connection
herewith and therewith.
To the extent not defined in Section 1, unless the context otherwise
requires, all other terms contained in this Guaranty Agreement shall
have the meanings attributed to them by the Uniform Commercial Code in
force in the State of New Jersey as of the Date of Guaranty Agreement,
to the extent that same are used or defined therein.
To the extent not defined in Section 1, unless the context otherwise
requires, all other accounting terms contained in this Guaranty
Agreement shall have the meaning attributed to them by Generally
Accepted Accounting Principles as of the Date of Guaranty Agreement, to
the extent that same are used or defined therein.
2. GUARANTOR'S OBLIGATIONS AND DUTIES
As an inducement to Bank to extend credit herewith to Borrower, or in
the future extend credit to Borrower and/or as security for payment of
the current Obligations of Borrower or any Obligations incurred by
Borrower in the future, Guarantor hereby absolutely and unconditionally
guarantees to Bank all Obligations of Borrower to Bank as and when due
whether by maturity or acceleration. Guarantor hereby acknowledges that
Bank intends to rely on this Guaranty Agreement.
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SECURITY
As security for this Guaranty Agreement, or any modifications,
extensions and/or renewals, Guarantor grants to Bank a lien on,
a continuing security interest in, and a right to set-off at any
time, without notice, all property and deposit accounts at or under the
control of or in transit to Bank which belong to Guarantor.
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3. OBLIGATIONS AND DUTIES UNAFFECTED
Guarantor hereby agrees and acknowledges that in one or more instances
and from time to time before, during or after the occurrence of any
Event of Default or any notice of termination hereof, with or without
notice to or further assent from Guarantor: (3.1) any contract or
agreement to which Borrower is a party may be modified, supplemented,
renewed, extended, amended, terminated or compromised in any manner;
(3.2) any Collateral at any time held by or available to Bank for all
or any part of the Obligations or any security at any time held by or
available to Bank may be sold, transferred or otherwise disposed,
exchanged, surrendered, compromised or released; (3.3) all or any part
of the Obligations may be changed, altered, renewed, extended,
continued, surrendered, compromised, waived, terminated or released in
whole or in part, or any default with respect thereto waived; (3.4)
Bank may refrain from setting off and may release, in whole or in part,
any deposit account or credit on its books in favor of Borrower; and
(3.5) Bank may extend further credit in any manner whatsoever to
Borrower, generally deal with Borrower or any Collateral as Bank may,
in its sole and absolute discretion, determine.
Guarantor agrees that notwithstanding any of the foregoing actions,
Guarantor shall remain bound under this Guaranty Agreement and that
Guarantor's obligations hereunder shall not be affected by the recovery
of any judgment against any Borrower or any action to enforce the same
or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of Guarantor. Guarantor agrees that this
Guaranty Agreement shall remain in full force and effect and will not
be discharged except by the complete payment and/or performance of the
Obligations in accordance with their respective terms and of the
agreements and covenants of Guarantor contained herein. Guarantor
further agrees that the invalidity, irregularity or unenforceability of
all or any part of the Loan Documents shall not affect, impair or be a
defense to this Guaranty Agreement or affect in any manner the
liability of Guarantor hereunder. If Bank receives any payment or
payments on account of the Obligations guaranteed hereby, which payment
or payments of any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy
act or code, state or Federal law, common law or equitable doctrine,
then to the extent of any sum not finally retained by Bank, Guarantor,
notwithstanding any revocation hereof or the cancellation of any Note
or other instrument evidencing any Obligation of Borrower, shall be and
remain liable to Bank for the amount so repaid to the same extent as if
such amount had never been originally received by Bank. If any action,
proceeding or claim seeking repayment is pending or, in Bank's sole
judgment, threatened, this Guaranty and any security interest therefor
shall remain in full force and effect notwithstanding that any
Obligations may or may not then be due.
4. WAIVER
4.1 This is a guaranty of payment and not of collection and
Guarantor expressly waives any right to require that any
action be brought against Borrower or to require that resort
be had to any Collateral, any other Obligor on the obligations
or to any deposit account or to any credit on the books of
Bank in favor of Borrower or to any other right or remedy
which may be available to Bank under any theory of marshaling
of assets or otherwise.
4.2 Guarantor hereby further expressly waives:
4.2.1 Notice of the acceptance of this Guaranty Agreement
and of extensions of credit or any other financial
accommodation by Bank to Borrower;
4.2.2 Presentment and demand for payment of any of the
Obligations;
4.2.3 Protest and notice of dishonor or default to
Guarantor or to any other person or entity with
respect to any of the Obligations;
4.2.4 Any demand for payment under this Guaranty Agreement;
4.2.5 Any right to interpose any counterclaim, set off or
defense of every kind and description now existing or
hereafter arising which Guarantor may have against
Bank or any Obligor; and
4.2.6 Any defenses available to a surety or guarantor under
the laws of New Jersey including, without limitation,
the following:
4.2.6.1 Any defense based upon impairment of
the rights of reimbursement,
restitution and/or subrogation;
4.2.6.2 Any defense based upon a delay in the
exercising or waiver of, or forbearance of,
any right or remedy available to Bank;
4.2.6.3 Any defense based upon impairment of
collateral including, but not limited to (i)
failure of Bank to obtain or maintain
perfection or recordation of the security
interest in any Collateral, (ii) release by
Bank of any Collateral without requiring
substitution of collateral of equal value,
or (iii) failure of Bank to perform a duty
to preserve the value of any Collateral.
5. REPRESENTATIONS AND WARRANTIES
5.1 Guarantor represents and warrants to Bank, and such
representations and warranties shall be continuing so long as
any Obligations shall remain outstanding as follows:
5.1.1 Guarantor has the power and authority to own the
Collateral pledged by Guarantor, to enter into and
perform the Guaranty and any other Loan Documents to
which it is a party and to incur its obligations
hereunder. If a corporation, Guarantor has been duly
incorporated and organized and is validly existing
as a corporation in good standing under the laws of
its jurisdiction of incorporation and is duly quali-
fied as a foreign corporation in those jurisdictions
where the conduct of its business or the ownership
of its properties requires qualification. If a
limited liability company, Guarantor has been duly
formed and organized as a limited liability company
in good standing under the laws of its jurisdiction
of formation and is duly qualified as a foreign
limited liability company in those jurisdictions
where the conduct of its business or the ownership
o its properties requires qualification. If a
partnership or a limited partnership, Guarantor has
been validly formed, is validly existing as a
partnership in good standing under the laws of its
jurisdiction, is legally authorized to transact
business in New Jersey and in those jurisdictions
where the conduct of its business or ownership of
its properties requires qualification, is not
incorporated, and has never changed its name or
used any other name and has filed all trade name
certificates as required or appropriate. If
a proprietorship, Guarantor is validly existing,
is legally authorized to transact business in New
Jersey and in those jurisdictions where the conduct
of its business or ownership of its properties
requires qualification, is not incorporated, has
never changed its name or used any other name and has
filed all tradename certificates as required or
appropriate and Guarantor is the sole owner of the
business.
5.1.2 Guarantor has not changed its name, form, identity or
structure, been the surviving entity in a merger or
acquired any business; or (if Equipment is included
as Collateral), changed the location of the
Equipment; or (if Inventory is included as
Collateral), changed the location of any of the
Inventory; or (if Receivables and/or General
Intangibles are included as Collateral), changed the
location of its place of business or chief executive
office or the location of its records with respect
thereto or the location of any returns of Inventory.
5.1.3 This Agreement and any other Loan Documents to which
it is a party constitute valid and legally binding
obligations of Guarantor and are enforceable against
Guarantor in accordance with their respective terms.
5.1.4 Guarantor has filed all Federal, state and local tax
returns and other reports it is required to file and
has paid or made adequate provision for payment of
all such taxes, assessments and other governmental
charges.
5.1.5 All property owned or utilized by Guarantor is in
compliance and will continue to be in compliance
with all requirements of all applicable
environmental laws, including, without limitation,
the Industrial Site Recovery Act f/k/a the
Environmental Cleanup Responsibility Act (N.J.S.A.
13:1K-6 et seq., as amended) and the Spill
Compensation and Control Act (N.J.S.A. 58:10-23.11
as amended) and a certain statute adopted by New
Jersey for registration of underground storage
tanks (N.J.S.A. 58:10A-21 et seq.); the Hazardous
and Solid Waste Amendments of 1984 Pub. L98-616
(42 U.S.C. 699 et seq., as amended) the Resource
Conservation and Recovery Act (42 U.S.C. 6901 et
seq., as amended) and the Comprehensive
Environmental Response, Compensation and Liability
Act (42 U.S.C. 9601 et seq., as amended); (all such
Federal, state, county, municipal or other laws,
ordinances or regulations are hereinafter
collectively referred to as the "Environmental
Laws").
5.1.6 Guarantor has good and marketable title to all of
its properties and assets. The execution and
performance of this Agreement and any loan
document to which it is a party will not violate or
result in a default or in the creation or imposition
of any lien or encumbrance upon any of the assets of
Guarantor (immediately, with the passage of time,
or with the giving of notice and the passage of
time) under any other contract, agreement, or
instrument to which Guarantor is a party or by which
Guarantor is bound, nor will it result in the
acceleration of any obligation under any mortgage,
lien, lease, franchise, license, permit,
agreement, instrument, order, arbitration award,
judgment, or decree, or in the termination of any
license, franchise, lease, or permit, to which
Guarantor is a party or by which it is bound; and it
will not violate or conflict with any other
restriction of any kind or character to which
Guarantor is subject.
5.1.7 There is no claim, loss, contingency, litigation, or
proceeding whether or not pending, threatened or
imminent against or otherwise affecting Guarantor
that involves the possibility of any judgment or
liability not fully covered by insurance or that may
result in a material adverse change in the business,
properties, prospects, operation or condition
(financial or otherwise) of Guarantor.
5.1.8 Guarantor has complied with all applicable statutes,
regulations, ordinances, court decrees, or other
directives of the United States of America, and all
states, counties, municipalities, and agencies with
respect to the manufacture and sale of its goods, the
rendition of its services and/or the conduct of its
business.
5.1.9 Guarantor has heretofore delivered to Bank current
financial statements, acceptable to Bank, which
were prepared by independent certified public
accountants. The financial statements were true,
correct and complete and were prepared in
accordance with Generally Accepted Accounting
Principles, consistently applied and present fairly
the financial position and results of operations of
Guarantor as of the date of and for the period
involved. The financial statements make full
and adequate provision for all obligations,
liabilities and commitments (fixed and
contingent) of Guarantor as of the date of the
financial statements. Since the date of the
financial statements, there has been no material
adverse change in the business, properties,prospects,
operation or condition (financial or otherwise) of
Guarantor.
5.1.10 With respect to each Employee Benefit Plan maintained
by Guarantor, no Prohibited Transaction or Reportable
Event (as defined in Title IV of the Employee
Retirement Income Security Act of 1974, as amended)
has occurred and is continuing; Guarantor is not
subject to thirty (30) days notice to the Pension
Benefit Guaranty Corporation, and Guarantor will
comply with the provisions of the Employee Retirement
Income Security Act of 1974, as amended and the
Internal Revenue Code of 1986, as amended.
5.1.11 Guarantor is the owner of all Collateral pledged by
Guarantor free and clear of all Security Interests,
encumbrances or liens, except liens which arise by
operation of law with respect to obligations of
Guarantor which are not yet due and payable; and
Guarantor will defend such Collateral against all
claims and demands of all persons or entities at any
time claiming an interest therein.
5.1.12 Guarantor is in compliance with all requirements of
the Americans With Disabilities Act of 1990, 42
U.S.C. 12101 et. seq., including but not limited to
those regulations promulgated by the Architectural
and Transportation Barrier Compliance Board at 36 CFR
1191 et. seq., and by the Department of Justice at 28
CFR 36 et. seq.
5.1.13 Guarantor is not a "foreign person" within the
meaning of ss.1445(f)(3) of the Internal Revenue Code
of 1986 as amended and the related Treasury
Department regulations, including temporary
regulations.
5.1.14 The advent of the year 2000 shall not adversely
affect Guarantor's operations or the performance
of its information technology. Without limiting
the generality of the foregoing, (i) the hardware
and software utilized by Guarantor are designed to be
used prior to, during, and after calendar year 2000
A.D. and such hardware and software will operate
during each such time period without error
relating to date data, specifically including any
error relating to, or the conduct of, date data,
which represents or references different centuries or
more than one century, (ii) the hardware and
software utilized by Guarantor will not abnormally
end or provide invalid or incorrect results as a
result of date data, and (iii) the hardware and
software utilized by Guarantor have been designed
to ensure year 2000 A.D. compatibility, including
date data, century recognition, leap year,
calculations which accommodate same century and
multicentury date values, and date data interface
values that reflect the century.
6. COVENANTS
6.1 During such times as this Guaranty Agreement shall be
effective, Guarantor agrees:(6.1.1) to deliver to Bank, within
ninety (90) days after the last day of each fiscal year of
Guarantor, a financial statement including a balance sheet and
statements of income, retained earnings and changes in
financial position, each prepared in accordance with Generally
Accepted Accounting Principles consistently applied, and
audited by an independent certified public accountant
satisfactory to Bank; (6.1.2) to deliver to Bank, within
forty-five (45) days after the close of each quarter of each
fiscal year of Guarantor, financial statements similar to
those required under the preceding clause, prepared by
Guarantor and certified by the chief financial officer of
Guarantor; (6.1.3) to promptly furnish Bank from time to time
with such additional information in such form, concerning the
financial condition of Guarantor, as Bank may reasonably
request; and (6.1.4) to promptly notify Bank of any condition
or event which constitutes, or would constitute with the
passage of time or giving of notice or both, an Event of
Default.
6.2 Guarantor further agrees: (6.2.1) that all of the present and
future indebtedness of Borrower to Guarantor shall be and
hereby is subordinated to, assigned and transferred to Bank
and pledged and made security for the payment of the
Obligations; (6.2.2) that Guarantor contemporaneously herewith
and from time to time hereafter shall on request execute such
further endorsements, assignments or other proper transfers as
Bank may request further to evidence the assignment hereby
agreed to and made; and (6.2.3) that Guarantor hereby appoints
Bank and any officer or agent of Bank the Guarantor's attorney
to demand and enforce payment in any way of the Obligations,
to prove all claims, receive all interest or dividends and
take all other action, either in the name of Bank or of
Guarantor, with respect to the Obligations in any liquidation
or any proceedings whatsoever affecting Borrower or its
property under any bankruptcy or other laws, now or hereafter
in effect for the relief of debtors, and in general to do any
act or take any action in regard to said Obligations which
Guarantor might otherwise do.
7. EVENTS OF DEFAULT AND ACCELERATION
7.1 The occurrence of any one or more of the following events
shall constitute an Event of Default hereunder: (7.1.1)
failure to pay any principal, interest or any of the
Obligations as and when due; (7.1.2) failure to pay or perform
any Obligation of Borrower or any obligation of Guarantor to
Bank, whether by maturity or acceleration, set forth in the
Note or any Loan Document or in this Guaranty Agreement;
(7.1.3) any representation or warranty made or deemed made by
Borrower or Guarantor in the Note or in any Loan Document or
in this Guaranty Agreement or which is contained in any
certificate, document, opinion or other statement furnished
now or at anytime shall prove to be incorrect in any material
respect on or as of the date made or deemed to be made;
(7.1.4) any change in ownership in Borrower or Guarantor or
the death of Borrower or Guarantor (if an individual) or of
any of Borrower's or Guarantor's key employees (if not an
individual); (7.1.5) a proceeding being filed or commenced
against any Borrower or Guarantor for dissolution or
liquidation; or any Borrower or Guarantor voluntarily or
involuntarily terminating or dissolving or being terminated or
dissolved; (7.1.6) insolvency of Borrower or Guarantor; or
Borrower or Guarantor fails to pay its debts as they become
due in the ordinary course of business; or a creditor's
committee is appointed for the business of Borrower or
Guarantor; or Borrower or Guarantor makes an assignment for
the benefit of creditors, or a petition in bankruptcy or for
reorganization or to effect a plan of arrangement with
creditors is filed by Borrower or Guarantor; or Borrower or
Guarantor applies for or permits the appointment of a receiver
or trustee for any or all of its property, assets or rights;
or any such receiver or trustee shall have been appointed for
any or all of its property, assets or rights; or any of the
above actions or proceedings whatsoever are commenced by or
against any Borrower or Guarantor; (7.1.7) any attachments,
liens or additional Security Interests being placed upon any
of the Collateral; (7.1.8) acquisition at any time or from
time to time of title to the whole or any part of the
Collateral by any person, partnership, corporation or limited
liability company, other than any Borrower or Guarantor;
(7.1.9) any final judgment, order or decree rendered against
Borrower or Guarantor, exceeding $25,000.00 and remaining
undischarged, unstayed, or outstanding against Borrower or
Guarantor for a period of thirty (30) days; (7.1.10) any
investigation undertaken by any governmental entity, or if any
indictment, charge or proceeding is filed or commenced,
whether criminal or civil, pursuant to Federal or state law
against any Borrower or Guarantor for which forfeiture of the
property or assets of such Borrower or Guarantor is a penalty;
(7.1.11) any Reportable Event occurs or if any Employee
Benefit Plan is terminated or Bank reasonably believes such
plan shall be terminated pursuant to and as defined in the
Employee Retirement Income Security Act of 1974, as amended;
(7.1.12) Bank reasonably deems itself insecure; the occurrence
of a material adverse change in the business, prospects,
operation or condition (financial or otherwise) of Borrower or
Guarantor, or a material adverse occurrence; or (7.1.13) any
member of a Borrower or Guarantor that is a limited liability
company resigns or any such member's interest terminates.
7.2 If an Event of Default shall occur, then or at any time
thereafter, while such Event of Default shall continue, Bank
may declare all Obligations, regardless of their terms, for
the purpose of this Guaranty Agreement, together with all
obligations and duties of Guarantor hereunder, to be due and
payable.
8. RIGHTS AND REMEDIES
Bank shall have the following rights and remedies:
8.1 Bank and any other officer or agent of Bank is hereby
constituted and appointed as true and lawful attorney-in-fact
of Guarantor with power:
8.1.1 To endorse the name of Guarantor upon any
instrument of payment (including payments made
under any policy of insurance)that may come into
possession of Bank in full or part payment of any
amount owing to Bank;
8.1.2 To sign and endorse the name of Guarantor upon
any invoice,freight or express ▇▇▇▇, ▇▇▇▇ of lading,
storage or warehouse receipt, drafts against account
debtors or other obligors;
8.1.3 To notify the post office authorities to change the
address for delivery of mail of Guarantor to an
address designated by Bank and to receive, open and
dispose of all mail addressed to Guarantor;
8.1.4 To sell, assign, ▇▇▇ for, collect or compromise
payment of all or any part of the Collateral in the
name of Guarantor, or in its own name, or make any
other disposition of Collateral, or any part thereof,
which disposition may be for cash, credit or any
combination thereof, and Bank may purchase all or any
part of the Collateral at public or, if permitted by
law, private sale, and in lieu of actual payment of
such purchase price, may set-off the amount of such
price against the Obligations.
8.2 Bank shall have a right to set-off, at any time without notice
to Guarantor, and as collateral security for this Guaranty
Agreement, is hereby granted a continuing lien on and Security
Interest in and to, any and all deposits or other sums at any
time or times credited by or due from Bank to Guarantor
whether in a special account or other account or represented
by a certificate of deposit (whether or not matured), which
deposits and other sums shall at all times constitute
additional security for the Obligations and the obligations of
Guarantor under this Guaranty Agreement. Guarantor does hereby
authorize Bank and any other member of Summit Bancorp on
behalf of Bank to likewise setoff without notice, any or all
deposits or other sums on behalf of Bank, hereby granting to
all such members of Summit Bancorp as necessary to effectuate
the foregoing, a lien on and security interest in and to such
deposits or other sums.
8.3 Bank shall have, in addition to any other rights and remedies
contained herein, or in any document or instrument, all of the
rights and remedies under the Uniform Commercial Code in force
in the State of New Jersey as of the Date of Guaranty
Agreement, and all rights and remedies available at law or in
equity, all of which rights and remedies shall be cumulative,
and nonexclusive, to the extent permitted by law.
8.4 Any notice required to be given by Bank of a sale or other
disposition or other intended action by Bank made in
accordance with the terms herein or in any document or
instrument at least ten (10) days prior to such proposed
action, shall constitute fair and reasonable notice to
Guarantor of any such action. In the event that any of the
Collateral is used in conjunction with any real estate, the
sale of the Collateral in conjunction with and as one parcel
with any such real estate of Guarantor, shall be deemed to be
a commercially reasonable manner of sale. The net proceeds
realized by Bank upon any such sale or other disposition,
after deduction of the expenses of retaking, holding,
preparing for sale, selling or the like and reasonable
attorneys' fees and any other expenses incurred by Bank, shall
be applied toward satisfaction of the Obligations hereunder.
Bank shall account to Guarantor for any surplus realized upon
such sale or other disposition and Guarantor shall remain
liable for any deficiency. The commencement of any action,
legal or equitable, shall not affect the Security Interest of
Bank in the Collateral until the Obligations hereunder or any
judgment therefor is fully paid.
9. DURATION OF GUARANTY
9.1 This Guaranty Agreement may be terminated only as to future
transactions and only as to such Guarantors as give written
notice thereof to Bank, and such notice shall be effective
upon actual receipt by an officer of Bank at Bank's Address.
No such notice shall release Guarantor, whether or not giving
such notice, from any liability as to (9.1.1) any indebtedness
that may be owing to or held by Bank or in which Borrower may
have an interest or for which Borrower may be obligated at the
time of receiving such notice; or from (9.1.2) all
modifications, extensions and renewals thereof; (9.1.3) all
interest thereon; (9.1.4) and all collection expenses
therefor.
10. GENERAL PROVISIONS
10.1 The failure of Bank at any time or times hereafter to require
strict performance by Guarantor of any of the provisions,
warranties, terms and conditions contained herein or in any
document or instrument shall not waive, affect or diminish any
right of Bank at any time or times thereafter to demand strict
performance thereof; and, no rights of Bank hereunder or in
any document or instrument shall be deemed to have been waived
by any act or knowledge of Bank, its agents, officers or
employees, unless such waiver is contained in an instrument in
writing signed by an officer of Bank and directed to Guarantor
specifying such waiver. No waiver by Bank of any of its rights
shall operate as a waiver of any other of its rights or any of
its rights on a future occasion.
10.2 Any demand or notice required or permitted to be given
hereunder or in any document or instrument shall, except as
expressly set forth herein, be deemed effective when deposited
in the United States mail, and sent by certified mail, return
receipt requested, postage prepaid, addressed to Bank, ATTN:
Branch Manager, at Bank's Address or to Guarantor at
Guarantor's Address, as applicable, or to such other address
as may be provided by the party to be notified, on ten (10)
days prior written notice to the other party.
10.3 This Guaranty Agreement contains the entire understanding
between the parties hereto with respect to the transactions
contemplated herein and such understanding shall not be
modified except in writing signed by or on behalf of the
parties hereto.
10.4 Guarantor shall not hold Bank liable due to any action or
failure to act by Bank herein or in any Loan Document except
for any action or failure to act as a result of Bank's gross
negligence or willful misconduct. This provision shall survive
the termination or expiration of this Guaranty Agreement or
any Loan Document and the repayment in full of Borrower's
Obligations.
10.5 Wherever possible, each provision herein or in any document or
instrument shall be interpreted in such manner as to be
effective and valid under applicable law; should any portion
of this Guaranty Agreement or any document or instrument be
declared invalid for any reason in any jurisdiction, such
declaration shall have no effect upon the remaining portions
of this Guaranty Agreement or any document or instrument.
Furthermore, the entirety of this Guaranty Agreement or any
document or instrument shall continue in full force and effect
in all other jurisdictions and said remaining portions herein
or in any document or instrument shall continue in full force
and effect in the subject jurisdiction as if this Guaranty
Agreement or any document or instrument had been executed with
the invalid portions thereof deleted.
10.6 In the event Bank seeks to take possession of any or all of
the Collateral by court process, Guarantor hereby irrevocably
waives any bonds and any surety or security relating thereto
required by any statute, court rule or otherwise as an
incident to such possession, and waives any demand for
possession prior to the commencement of any suit or action to
recover.
10.7 The provisions of this Guaranty Agreement shall be binding
upon and shall inure to the benefit of the heirs, personal
representatives, administrators, successors and assigns of
Bank and Guarantor, provided, however, Guarantor may not
assign any of its rights or delegate any of its obligations
hereunder or in any document or instrument without the prior
written consent of Bank.
10.8 This Guaranty Agreement or any document or instrument is and
shall be deemed to be a contract entered into and made
pursuant to the laws of the State of New Jersey and shall in
all respects be governed, construed, applied and enforced in
accordance with the laws of said State.
10.9 If, prior hereto and/or at any time or times hereafter, Bank
shall employ counsel in connection with the execution and
consummation of the transactions contemplated herein or in any
document or instrument or to commence, defend or intervene,
file a petition, complaint, answer, motion or other pleadings,
or to take any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) relating to this Guaranty
Agreement or any document or instrument, or to enforce any
rights of Bank hereunder or in any document or instrument,
whether before or after the occurrence of any Event of
Default, or to collect any of the Obligations then, in any of
such events, Guarantor agrees to pay attorney's fees, (whether
or not such attorney is a regularly salaried employee of Bank,
any parent corporation or any subsidiary or affiliate thereof,
whether now existing or hereafter created) not to exceed 20%
of the Obligations, which shall be deemed reasonable and any
expenses, costs and charges relating thereto, and such shall
be part of the Obligations payable on demand and secured by
the Collateral.
10.10 With respect to all or any part of the Obligations, in the
event that Bank seeks to enter into a participation,
intercreditor and/or assignment agreement, then Guarantor
hereby authorizes Bank to release all or part of any financial
or credit information provided by Guarantor to Bank to any
other bank or financial institution without notice.
10.11 Each reference herein or in any document or instrument to Bank
shall be deemed to include its successors and assigns, and
each reference to Guarantor and any pronouns referring thereto
as used herein shall be construed in the masculine, feminine,
neuter, singular or plural as the context may require, and
shall be deemed to include heirs, personal representatives,
administrators, successors and assigns of Guarantor, all of
whom shall be bound by the provisions hereof or in any
document or instrument. The term "Guarantor" as used herein
shall, if this Guaranty Agreement or any document or
instrument is signed by more than one Guarantor, mean, unless
this Guaranty Agreement or any document or instrument
otherwise provides or unless the context otherwise requires,
"Guarantor" and each of them and each and every
representation, promise, agreement and undertaking shall be
joint and several, except that the granting of the Security
Interest, right of set-off and lien shall be by each Guarantor
in and to its several respective properties.
10.12 Guarantor agrees that the books and records of Bank showing
the amount owed by Borrower to Bank from time to time shall be
admissible in any action or proceeding against Guarantor
hereunder and shall be prima facie evidence of such amount
owed.
10.13 The section headings herein are included for convenience only
and shall not be deemed to be a part of this Guaranty
Agreement or any document or instrument.
10.14 Any notice given by Guarantor shall be effective only upon
actual receipt by an officer of Bank, at Bank's Address; any
notice Bank may elect to give hereunder shall be deemed to be
given if deposited in the United States mail, return receipt
requested, postage prepaid and addressed to Guarantor at
Guarantor's Address.
10.15 Guarantor acknowledges receipt of true copies of the Credit
Agreement, Note, Guaranty Agreement, Security Agreement and/or
Mortgage and any other Loan Document delivered in connection
herewith.
11. ASSIGNMENT BY BANK
Bank may from time to time, without notice to Guarantor, sell, assign,
transfer or otherwise dispose of all or any part of the Obligations
and/or rights under this Guaranty Agreement or any other Loan Document.
In such event, each and every immediate and successive purchaser,
assignee, transferee or holder of all or any part of the Obligations
shall have the right to enforce this Guaranty Agreement, by legal
action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given
such right. Bank shall have an unimpaired right to enforce this
Guaranty Agreement for its benefit to that portion of the Obligations
as Bank has not sold, assigned, transferred or otherwise disposed of.
================================================================================
12. WAIVER OF JURY TRIAL
GUARANTOR WAIVES TRIAL BY JURY AND CONSENTS TO AND CONFERS PERSONAL JURISDICTION
ON COURTS OF THE STATE OF NEW JERSEY OR OF THE FEDERAL GOVERNMENT, AND EXPRESSLY
WAIVES ANY OBJECTIONS AS TO VENUE IN ANY OF SUCH COURTS, AND AGREES THAT SERVICE
OF PROCESS MAY BE MADE ON GUARANTOR BY MAILING A COPY OF THE SUMMONS TO
GUARANTOR AT GUARANTOR'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
================================================================================
ATTEST: GUARANTOR Menlo Acquisition Corporation
---------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ --------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ATTEST: SUMMIT BANK
------ -----------
_______________________________ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Bank Officer Name: ____________ --------------------------------------
Bank Officer Title: ___________ ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
NJMM2201(11/96)
NJCM2201(1/97)
CERTIFIED COPY OF RESOLUTION OF BOARD OF DIRECTORS
(GUARANTOR)
I CERTIFY that: (a) I am the Secretary of Menlo Acquisition
Corporation, a Delaware corporation ("CORPORATION"), and as such have charge of
certain records of said Corporation, including articles of incorporation,
by-laws and the minutes of its board of directors; (b) the following Resolutions
were duly adopted at a legal meeting of the board of directors of said
Corporation duly called and held on August 14, 2000 at which meeting there was
present and acting throughout a quorum authorized to adopt said Resolutions; (c)
the proceedings of said meeting were in accordance with the articles of
incorporation and by-laws of said Corporation, neither of which contains any
provisions requiring the vote or consent of stockholders for the granting of
encumbrances on said Corporation's assets or for any other act or transaction
referred to in said Resolutions; (d) said Resolutions have not been revoked or
amended in any respect and are in full force and effect; and (e) attached hereto
is a true copy of the Loan Documents submitted to said meeting and referred to
in the following Resolutions;
RESOLVED, that the Chairman of the Board and Chief Executive Officer,
President or Chief Financial Officer of this Corporation is hereby authorized in
the name and on behalf of this Corporation:
(1) to guaranty the Obligations of Environmental Waste
Management Associates, L.L.C., Integrated Analytical Laboratories, L.L.C.,
Environmental Waste Management Associates, Inc. and Integrated Analytical
Laboratories, Inc. (jointly and severally, "BORROWER") incurred herewith or
incurred by Borrower in the future or as security for Obligations incurred
previously;
(2) to execute and deliver to Summit Bank ("BANK") a Guaranty
substantially in the form submitted to this meeting, with such modifications
thereof as the officer executing the same shall approve;
(3) to execute and deliver to Bank collateral documents with respect to
all or any part of the assets of this Corporation substantially in the form
submitted to this meeting, with such modifications thereof as the officer
executing the same shall approve;
(4) to execute and deliver to Bank from time to time such amendments to
the Guaranty and collateral documents as the officer executing the same shall
approve;
RESOLVED, FURTHER, that any officer of this Corporation is authorized
in the name and on behalf of this Corporation to execute and deliver to Bank any
document and to do any act required to be done by this Corporation including but
not limited to the execution and delivery of financing statements, certificates,
assignments, the furnishing to Bank of financial and other information and the
endorsement and delivery to Bank of checks and other instruments and
obligations;
RESOLVED, FURTHER, that approval of any collateral documents by any
officer shall be conclusively presumed from his execution thereof in the name of
this Corporation;
RESOLVED, FURTHER, that these Resolutions constitute representations
and warranties given pursuant to, and intended to be incorporated in the
Guaranty and any other collateral documents. If any such warranty or
representation herein shall prove to be false, same shall constitute an Event of
Default under the Guaranty and any other collateral documents. Upon an Event of
Default, Bank shall have all of the rights and remedies specified in the
Guaranty and the collateral documents or otherwise existing at law or in equity;
RESOLVED, FURTHER, that the Secretary or any Assistant Secretary of
this Corporation is authorized, if Bank shall so request, to seal and attest the
Guaranty and the Loan Documents, and to furnish a certified copy of these
Resolutions to Bank, who shall be entitled to assume conclusively that the
foregoing Resolutions remain in full force and effect until Bank has received
express written notice of their rescission or modification, accompanied by a
copy of the resolution effecting such rescission or modification duly certified
by the Secretary or any Assistant Secretary of this Corporation.
I FURTHER CERTIFY that the officers referred to in the foregoing
Resolutions are as follows:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman of the Board
and Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
Dated: August 14, 2000.
(Corporate Seal) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
NJMM2101(10/96)
NJCM2101(12/96)
