SECURED CREDIT AGREEMENT
AGREEMENT by and between SUMMIT BANK ("BANK") and 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"), dated as set forth.
1. DEFINITIONS
The terms set forth below shall be defined as follows:
1.1 "Date of 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: 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 as to Environmental Waste Management Associates,
L.L.C.; Integrated Analytical Laboratories, L.L.C.; and
Environmental Waste Management Associates, Inc.; and 000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 as to Integrated
Analytical Laboratories, Inc.
1.4 "Bank's Address" is: 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000.
1.5 "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 the cash and noncash
proceeds thereof.
1.6 "Event of Default" means each and every event specified in
Section 6 of this Agreement.
1.7 "Facility A" means that certain revolving line of credit
facility from Bank to Borrower as hereinafter more
particularly described in Section 2.1 below and as evidenced
by a Master Advance Note in the original principal amount of
$1,000,000.00 dated the Date of Agreement
1.8 "Facility A Termination Date" means April 30, 2001 unless
such date is extended on one or more occasions by Bank in
its sole and absolute discretion.
1.9 "Facility B" means that certain equipment line of credit
facility from Bank to Borrower as hereinafter more
particularly described in Section 2.2 below and as evidenced
by a Master Advance Note in the original principal amount of
$750,000.00 dated the Date of Agreement.
1.10 "Facility B Termination Date" means April 30, 2001 unless such
date is extended on one or more occasions by Bank in its sole
and absolute discretion, but shall not apply to the term of
any individual promissory notes ( as hereinafter provided)
which evidence advances under the terms of Facility B and
shall terminate in accordance with their individual terms.
1.11 "Guarantor" means: Menlo Acquisition Corp. which has executed
a Guaranty Agreement dated as of the Date of Agreement.
1.12 "Loan Document(s)" means any Credit Agreement, Note,
Security Agreement, Master Agreement or any other document
heretofore, now or hereafter executed by Borrower to Bank,
together with all modifications, extensions and/or renewals
thereof.
1.13 "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 Agreement, or any other document or instrument
delivered in connection herewith or therewith.
1.14 "Security Interest" means any transaction which creates or
provides for a lien or security interest by agreement.
To the extent not defined in Section 1 (or any other Loan Document), unless the
context otherwise requires, all other terms contained in this 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 Agreement, to the extent that same
are used or defined therein.
To the extent not defined in Section 1 (or any other Loan Document), unless the
context otherwise requires, all accounting terms in this Agreement shall be
construed in accordance with Generally Accepted Accounting Principles as of
the Date of Agreement, to the extent that same are used or defined therein.
2. COMMITMENTS
2.1 Facility A
Subject to the terms and conditions of the Loan Documents, Bank agrees
to lend to Borrower and Borrower agrees to borrow from Bank an
aggregate principal amount at any one time outstanding not to exceed
$1,000,000.00 from the Date of Agreement to the Facility ATermination
Date. Within such limits the Borrower may borrow, repay and re-borrow
at any time or from time to time. Any such sums borrowed or reborrowed
must be in multiples of 5% of the aggregate principal amount. The face
amount of all commercial or standby letters of credit issued by Bank
and drafts accepted by Bank for the account of Borrower is included in
the aggregate principal amount. The purpose of this Facility A is to
finance the working capital needs of Borrower and for no other purpose.
2.2 Facility B - Equipment Line of Credit
Subject to the terms and conditions of the Loan Documents, Bank agrees
to lend to Borrower and Borrower agrees to borrow from Bank an
aggregate principal amount at any one time outstanding not to exceed
$750,000.00 from the Date of Agreement to the Facility B Termination
Date (an "Equipment Line of Credit"). Each advance under the Equipment
Line of Credit shall reduce the aggregate amount available to borrow
hereunder by the amount of such advance and once repaid may not be
re-borrowed. The Equipment Line of Credit is to be used by Borrower
exclusively for the purchase of equipment related to Borrower's
business (each an "Equipment Advance").
Bank and Borrower agree that with respect to each Equipment Advance
requested, the following conditions precedent shall exist:
(1) Borrower shall deliver to Bank such documents,
certificates, bills of sale or title: (a) evidencing that: (i)
the Equipment has been delivered to and accepted by Borrower,
and (ii) such Equipment is owned by Borrower free and clear of
all liens, claims and encumbrances consistent with Section
3.1.12 of this Agreement; and (b) establishing the purchase
price and the location of the Equipment;
(2) Borrower shall deliver to Bank a completed and
executed copy of a "Supplement to Security Agreement" in
form and substance acceptable to Bank, a form copy of which
is attached hereto as Exhibit A;
(3) Each Equipment Advance shall not exceed the actual
purchase price of the Equipment, as evidenced by the
documentation submitted under section (1)(b) above, for which
the Equipment Advance is requested;
(4) Borrower shall deliver to Bank such documents and
instruments as Bank may deem necessary to perfect the
security interest of Bank in such Equipment including, but
not limited to, UCC-1 financing statements or motor vehicle
financing statements required by the New Jersey Motor
Vehicle Certificate of Ownership law, N.J.S.A. Section
39:10-1 et seq.; and
(5) Bank shall have received UCC and other search results,
information and documents as are necessary, in the sole
discretion of Bank, to ensure that its interest in the
Equipment from the proceeds of the Equipment Advance will be
a valid first priority and exclusive security interest.
Provided that there is no Event of Default as of the date such
Equipment Advance may be approved by Bank (the "Equipment Advance
Date") Borrower shall repay such Equipment Advance in accordance with
the terms of a Promissory Note (the "Promissory Note") substantially in
the form of Exhibit B attached hereto and any and all such other
documents that Bank may require (in Bank's sole discretion) which
evidence Borrower's obligation to repay the Equipment Advance plus
interest in accordance with the terms of the Promissory Note. The
Promissory Note shall provide for equal monthly payments of principal
(such principal payments to be equal to the amount which is derived by
dividing the amount of the Equipment Advance by a number no greater
than 60) with such payments commencing within one (1) month after the
Equipment Advance Date and continuing on the same day of each
successive month thereafter until no later than April 30, 2006 when a
final payment of all then outstanding principal shall be due and
payable in full. The Promissory Note shall also provide for payments of
monthly interest in arrears at the then applicable Prevailing Base Rate
of Bank minus .50% (as set forth in Exhibit B hereto) with such
payments to be made on the same day of the month as each monthly
principal payment with a final payment of all outstanding interest on
any such Equipment Advance to occur no later than April 30, 2006. The
Promissory Note shall also include all other terms of the Bank's
standard form of promissory note. Bank and Borrower agree that all of
Borrower's obligations under the Promissory Note shall be Obligations
as defined above and in the Security Agreement of even date herewith
between Bank and Borrower and that all Collateral pledged under said
Security Agreement or otherwise shall, without the necessity of
modifying or replacing said Security Agreement, any UCC-1 financing
statement filed in connection therewith or any other Loan Document,
secure all of Borrower's Obligations under the Promissory Note until
such time as such Obligations under the Promissory Note are paid in
full. Upon Borrower's execution of a Promissory Note related to an
Equipment Advance hereunder, all Loan Documents shall continue in full
force and effect until such time as all Obligations under each
Promissory Note are paid in full.
3. REPRESENTATIONS AND WARRANTIES
3.1 Borrower represents and warrants to Bank, and such
representations and warranties shall be continuing so long as
any Obligations shall remain outstanding, as follows:
3.1.1 Borrower has the power and authority to own the
Collateral, to enter into and perform the Loan Documents
and to incur the Obligations. If a corporation,
Borrower 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 qualified 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,
Borrower 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 of its properties requires
qualification. If a partnership or a limited
partnership, Borrower 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 the State of New
Jersey and in those jurisdictions where the conduct
of its business or ownership of its properties
requires qualification, is not incorporat d, and has
never changed its name or used any other name and has
filed all tradename certificates as required or
appropriate. If a proprietorship, Borrower is validly
existing, is legally authorized to transact business
in the State of 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 Borrower is the sole
owner of the business.
3.1.2 Borrower 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.
3.1.3 This Agreement and any other Loan Documents
constitute valid and legally binding Obligations of
Borrower and are enforceable against Borrower in
accordance with their respective terms.
3.1.4 Borrower 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.
3.1.5 All property owned or utilized by Borrower is in
compliance and will continue to be in compliance
with all requirements of all applicable
environmental laws, including, without limitation,
th 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").
3.1.6 Borrower has good and marketable title to all of its
properties and assets. The execution and
performance of this Agreement and any Loan
Document will not violate or result in a defaul or
in the creation or imposition of any lien or
encumbrance upon any of the assets of Borrower
(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 Borrower is a party or by which Borrower
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
Borrower 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
Borrower is subject.
3.1.7 Borrower incurs the Obligations herein from Bank for
business purposes only and shall not incur the
Obligations for personal, household or family
purposes.
3.1.8 There is no claim, loss, contingency, litigation, or
proceeding whether or not pending, threatened or
imminent against or otherwise affecting Borrower 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 Borrower.
3.1.9 Borrower 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.
3.1.10 Borrower 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 Borrower 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 Borrower 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 Borrower.
3.1.11 With respect to each Employee Benefit Plan maintained
by Borrower, 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; Borrower is not
subject to thirty (30) days notice to the Pension
Benefit Guaranty Corporation, and Borrower 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.
3.1.12 Borrower is the owner of the Collateral free and
clear of all Security Interests, encumbrances or
liens, except liens which arise by operation of law
with respect to Obligations of Borrower which are not
yet due and payable; and Borrower will defend the
Collateral against all claims and demands of all
persons or entities at any time claiming an interest
therein.
3.1.13 Borrower 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.
3.1.14 Borrower is not a "foreign person" within the meaning
of Section 1445(f)(3) of the Internal Revenue Code of
1986 as amended and the related Treasury Department
regulations, including temporary regulations.
3.1.15 The advent of the year 2000 shall not adversely
affect Borrower's operations or the performance
of its information technology. Without limiting the
generality of the foregoing, (i) the hardware and
software utilized by Borrower 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 Borrower will not abnormally end or
provide invalid or incorrect results as a result of
date data, and (iii) the hardware and software
utilized by Borrower 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.
4. GENERAL COVENANTS
4.1 Borrower covenants and agrees that so long as any Obligations shall
remain outstanding:
4.1.1 Borrower shall not permit any further mortgage,
pledge, grant, Security Interest in or lien or
encumbrance upon any of the property, assets or
rights of Borrower, except in favor of Bank.
4.1.2 Borrower shall not merge or consolidate with or sell,
assign, lease or otherwise transfer or dispose of
(whether in one transaction or in a series of
transactions) all or substantially all of its assets
(whether now owned or hereafter acquired or arising)
to, any person or entity or acquire all or
substantially all the assets or the business of any
person or entity;
4.1.3 Borrower shall continue to engage in an efficient and
economical manner in a business of the same general
type as conducted by it on the Date of Agreement.
4.1.4 Borrower shall furnish to Bank:
4.1.4.1 Within ninety (90) days after the last day
of each fiscal year of Borrower, 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,
including but not limited to X.X. Xxxxx;
4.1.4.2 Within forty-five (45) days after the close
of each quarter of each fiscal year of
Borrower, financial statements similar to
those required under paragraph 4.1.4.1,
prepared by Borrower and certified by the
chief financial officer of Borrower;
4.1.4.3 Together with the financial statements set
forth in Section 4.1.4.1, a letter executed
by the aforesaid accountant acknowledging
Bank's reliance on said financial statements
and Borrower's knowledge of such reliance;
4.1.4.4 Or cause to be furnished 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;
4.1.4.5 Or cause to be furnished 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 paragraph 4.1.4.1, prepared
by Guarantor and certified by the chief
financial officer of Guarantor;
4.1.4.6 Within twenty (20) days after the end of
each calendar quarter, if Inventory and/or
Equipment are part of the Collateral,
information concerning quantities, costs and
fair market value with respect to Inventory
and/or Equipment, as applicable; and if
Receivables are part of the Collateral, an
aged analysis of all outstanding Receivables
in form and substance satisfactory to Bank;
and
4.1.4.7 Promptly and in form satisfactory to Bank,
such other information as Bank may
reasonably request from time to time.
4.1.5 Borrower shall comply with all present and future
laws, rules and regulations applicable to Borrower in
the operation of its business and the ownership of
its assets, and all material agreements to which it
is subject.
4.2 Borrower further covenants and agrees to:
4.2.1 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
under this Agreement or any Loan Document and
promptly inform Bank of any events or change in the
financial condition of Borrower occurring since the
date of the last financial statement of Borrower
delivered to Bank, which individually or cumulatively
when viewed in light of prior financial statements,
could result in a material adverse change in the
business, properties, prospects, operation or
condition (financial or otherwise) of Borrower;
4.2.2 If a corporation, maintain in good standing its
corporate existence in its jurisdiction of
incorporation and its status as a foreign corporation
qualified to do business in those jurisdictions where
Borrower is required to be qualified; if a
partnership or a limited partnership, maintain in
good standing its partnership existence in its
jurisdiction of formation and its status as a
foreign limited partnership qualified to do business
in those jurisdictions where Borrower is required
to be qualified; if a limited liability company,
maintain in good standing its limited liability
company existence in its jurisdiction of formation
and its status as a foreign limited liability
company qualified to do business in those
jurisdictions where Borrower is required to be
qualified.
4.2.3 Pay or deposit promptly when due all sales, use,
excise, personal property, income, withholding, corporate,
franchise and other taxes, assessments and governmental charges
and, when requested by Bank, submit to Bank proof satisfactory to
Bank that such payments and/or deposits have been made;
4.2.4 Maintain casualty insurance coverage with an insurance
company on the Collateral in such amounts and of such types as
may be requested by Bank, and in any event, as are ordinarily
carried by similar businesses; and, in the case of all policies
insuring property in which Bank shall have a Security Interest of
any kind whatsoever all such insurance policies shall contain
standard lender's loss payable clauses in favor of Bank and
provide that the proceeds thereof shall be payable to Bank, as
its interest may appear. Borrower shall produce proof of payment
of premiums for said insurance policies as Bank may reasonably
request. All said policies or certificates thereof,including all
endorsements thereof and those required hereunder, shall be
deposited with Bank; and such policies shall contain provisions
that no such insurance may be canceled or decreased or amended in
such manner and to such extent as prudent business judgment would
dictate. If Borrower shall at any time or times hereafter fail to
obtain and/or maintain any of the policies of insurance required
herein, or fail to pay any premium in whole or in part relating
to any such policies, Bank shall be notified within thirty (30)
days of any such failure to obtain and/or maintain said policies
of insurance or the failure to pay any premium when due. The Bank
may, but shall not obliged to,obtain and/or cause to be
maintained insurance coverage with respect to the Collateral,
including, at Bank's option, the coverage provided by all or any
of the policies of Borrower and pay all or any part of the
premium any Event of Default by Borrower, and any sums, including
reasonable attorney fees, court costs, expenses and other charges
related thereto, so disbursed by Bank shall be payable, on
demand, by Borrower to Bank and shall be an additional
Obligation;
4.2.5 Notify Bank in writing within ten (10) days, of any
claim, litigation, action or proceeding filed or commenced by or
against Borrower that could result in a material adverse change
in the business, properties, prospects, operation or condition
(financial or otherwise) of Borrower; or a material adverse
occurrence, in each case, together with a complete description of
the action taken or proposed to be taken with respect thereto;
4.2.6 Permit Bank, at Borrower's expense, through Bank's
authorized attorneys, accountants or representatives, to inspect
the Collateral and inspect, examine and audit the books,
accounts, records, ledgers and assets of every kind and
description of Borrower with respect thereto at reasonable times;
4.2.7 At any time and from time to time upon request of Bank,
execute and deliver to Bank, in form and substance satisfactory
to Bank, such documents as Bank shall deem necessary or desirable
to perfect or maintain perfected the Security Interest of Bank in
the Collateral or which may be necessary to comply with the
provisions of the law of the State of New Jersey or the law of
any other jurisdiction in which Borrower may then be conducting
business or in which any of the Collateral may be located; and
4.2.8 Notify Bank in writing immediately of any amendments
or other changes to any by-laws, articles of incorporation,
certificates of formation, operating agreements, partnership
agreements, limited partnership agreements or any other document
(or other arrangement, whether or not in writing) governing the
organization or operation of Borrower or the respective interests
of its shareholders, members or partners, provided, however, that
if Borrower is a limited liability company, no amendments to the
Operating Agreement will be made without the prior written
consent of Bank.
5. FINANCIAL COVENANTS
5.1 Borrower covenants and agrees that so long as any
Obligations shall remain outstanding Borrower shall:
5.1.1 Not incur any indebtedness from any source other than
Bank, except normal trade debts and accruals in the ordinary
course of business;
5.1.2 Maintain a ratio of debt to tangible capital funds of
not more than 1.25:1 which ratio is defined as total liabilities
divided by tangible net worth on a consolidated basis and tested
no less than quarterly; and
5.1.3 Not permit its Debt Service Coverage Ratio to be less
than 1.30:1. "Debt Service Coverage Ratio" shall mean earnings
before interest, taxes, depreciation and amortization divided by
the sum of current maturities of long term debt, capital leases,
interest expense and distributions. All calculations of Debt
Service Coverage Ratio shall be on a consolidated basis and
tested no less than annually.
6. EVENTS OF DEFAULT AND ACCELERATION
6.1 The occurrence of any one or more of the following
events shall constitute an Event of Default hereunder:
6.1.1 Failure to pay any principal, interest or any of the
Obligations within ten (10) days of the date due;
6.1.2 Failure to perform or observe any covenant, term or
agreement herein set forth or set forth in any Loan Document
within any applicable grace period;
6.1.3 Any representation or warranty made or deemed made by
the Borrower herein or in any Loan Document or which is contained
in any certificate, document, opinion or other statement
furnished now or at any time shall prove to be incorrect in any
material respect on or as of the date made or deemed to be made;
6.1.4 Failure to pay or perform any Obligation of any
Borrower to Bank, whether by maturity or acceleration, set forth
herein or in any Loan Document;
6.1.5 Any change in ownership in Borrower or the death of
any Borrower [if an individual(s)] or of any of Borrower's
principals, members, or key employees [if not an individual];
6.1.6 A proceeding being filed or commenced against Borrower
for dissolution or liquidation; or any Borrower voluntarily or
involuntarily terminating or dissolving or being terminated or
dissolved; insolvency of Borrower, or Borrower 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,
Borrower 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 Borrower
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 other
party liable for the Obligations except that in such cases where
the filing or commencement of the action or appointment of the
receiver is involuntary, Borrower shall have a period of sixty
(60) days to have such filings or appointment withdrawn or
terminated, however during such period no drawdowns under either
Facility A or Facility B shall be permitted;
6.1.7 Any attachments, liens or additional Security
Interests being placed upon any of the Collateral;
6.1.8 Acquisition at any time or from time to time of title
to the whole or any part of the Collateral by any person,
partnership or corporation other than Borrower;
6.1.9 Any final judgment, order or decree rendered against
Borrower exceeding $25,000 and remaining undischarged, unstayed
or outstanding against Borrower for a period of thirty (30) days;
6.1.10 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 Borrower for which forfeiture of any of the
property or assets of Borrower is a penalty;
6.1.11 Any Reportable Event occurs or if any Employee
Benefit Plan is terminated or Bank reasonably believes that such
plan may be terminated pursuant to and as defined in the Employee
Retirement Income Security Act of 1974, as amended;
6.1.12 Bank reasonably deems itself insecure; the occurrence
of a material adverse change in the business, properties,
prospects, operation or condition (financial or otherwise) of
Borrower; or a material adverse occurrence; or
6.1.13 Any member of Borrower that is a limited liability
company resigns or any such member's interest terminates.
6.2 If any Event of Default shall occur, then or at any
time thereafter, while such Event of Default shall continue,
Bank may declare all Obligations to be due and payable,
without notice, protest, presentment, dishonor or demand,
all of which are hereby expressly waived by Borrower.
7. RIGHTS AND REMEDIES
Bank shall have the following rights and remedies at any time:
7.1 Bank, and any officer or agent of Bank is hereby constituted
and appointed as true and lawful attorney-in-fact of Borrower
with power:
7.1.1 To endorse the name of Borrower 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
Obligation;
7.1.2 To sign and endorse the name of Borrower upon any
invoice, freight or express xxxx, xxxx of lading,
storage or warehouse receipt, drafts against account
debtors or other obligors;
7.1.3 To notify the post office authorities to change the
address for delivery of mail of Borrower to an
address designated by Bank and to receive, open and
dispose of all mail addressed to Borrower;
7.1.4 To sign the name of Borrower upon any Local, State or
Federal agency information release form including but
not limited to Tax Information Authorization Form
8821 of the Internal Revenue Service;
7.1.5 To sell, assign, xxx for, collect or compromise
payment of all or any part of the Collateral in the
name of Borrower, 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;
7.1.6 To do any and all things necessary to exercise its
rights and remedies as fully and effectually as
Borrower might or could do but for this appointment,
together with full power of substitution (Borrower
hereby ratifying all that said attorney-in-fact shall
lawfully do or cause to be done by virtue hereof).
Neither Bank nor its agents shall be liable for any
acts or omissions or for any error of judgment or
mistake of fact or law in its capacity as such
attorney-in-fact. This power of attorney is coupled
with an interest and shall be irrevocable so long as
any Obligations shall remain outstanding.
7.1.7 To appraise or reappraise any property, assets, or
rights of Borrower, at Borrower's expense, in any
Federally regulated transaction as defined under
Title XI of the Financial Institution, Reform,
Recovery and Enforcement Act of 1989 ("FIRREA") and
such fee (whether or not such appraiser is a salaried
employee of Bank) shall be part of the Obligations
herein, secured by the Collateral and payable on
demand.
7.2 Bank shall have the right to setoff, without notice to
Borrower, any and all deposits or other sums at any time or
times credited by or due from Bank to Borrower, 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 may be set-off against all or
any part of the Obligations at any time. Borrower 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 a security interest in and to
such deposits or other sums.
7.3 Bank shall have, in addition to any other rights and remedies
contained herein, and in any Loan Document, all of the rights
and remedies of a secured party under the Uniform Commercial
Code in force in the State of New Jersey, as of the Date of
Agreement, and all rights and remedies available at law or in
equity, all of which rights and remedies shall be cumulative
and non-exclusive, to the extent permitted by law.
7.4 Any notice required to be given by Bank of a sale or other
disposition of the Collateral or other intended action by Bank
made in accordance with the terms herein or any Loan Document
at least ten (10) days prior to such proposed action, shall
constitute fair and reasonable notice to Borrower 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 Borrower, 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 attorney's fees and any other
expenses incurred by Bank, shall be applied toward
satisfaction of the Obligations hereunder. Bank shall account
to Borrower for any surplus realized upon such sale or other
disposition and Borrower 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 are fully paid.
7.5 If at any time Bank determines that any applicable law,
regulation, condition or directive, or the interpretation of
any thereof, relating to capital adequacy (including but not
limited to, any request, guideline or policy, whether or not
having the force of law and including but not limited to, any
regulation promulgated by the Board of Governors of the
Federal Reserve System as now or from time to time hereafter
in effect) by any authority charged with the administration or
interpretation thereof, or any change in any of the foregoing,
has or would have the effect of reducing the rate of return on
Bank's capital as a consequence of Bank's obligations under
this Agreement to a level below that which Bank would have
achieved but for such law, regulation, condition, directive,
interpretation or change (taking into consideration Bank's
policies with respect to capital adequacy) by an amount deemed
by Bank to be material, then from time to time Borrower shall
pay to Bank on demand such additional amount(s) as will
compensate Bank for such reduction.
7.5.1 Bank will promptly notify Borrower of any event of
which it has knowledge, occurring after the date
hereof, which will entitle Bank to compensation
pursuant to Section 7.5. A certificate or notice
from Bank claiming compensation under Section 7.5
and setting forth the additional amount(s) to be
paid to it hereunder shall be conclusive in the
absence of manifest xxxxx.Xx determining such amount,
Bank may use any reasonable averaging and attribution
methods.
7.5.2 Borrower's failure to pay such additional amount(s),
shall result in Borrower becoming liable for the
difference between the actual return achieved and
what Bank had expected to achieve and shall become a
part of Borrower's Obligations herein secured by the
Collateral.
7.6 In the event that Borrower's credit relationship with Bank is
rated substandard or lower on Bank's rating system(s), all of
which ratings shall be in Bank's absolute and sole discretion,
Borrower shall pay to Bank, upon receipt of notice from Bank
to such effect, an additional 1% per annum in excess of each
payment to be made under this Agreement and any other Loan
Document until such rating is upgraded to above substandard.
Borrower's failure to pay such additional amount(s) shall
become a part of Borrower's Obligations payable on demand and
secured by the Collateral.
8. GENERAL PROVISIONS
8.1 The failure of Bank at any time or times hereafter to require
strict performance by Borrower of any of the provisions,
warranties, terms and conditions contained herein or in any
Loan Document shall not waive, affect or diminish any right of
Bank at any time or times thereafter to demand strict
performance thereof. No rights of Bank hereunder or in any
Loan Document 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 Borrower
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.
8.2 Any demand or notice required or permitted to be given
hereunder or in any Loan Document shall 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 Borrower at Borrower'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.
8.3 Any notice required to be given by Bank made in accordance
with the terms herein or any Loan Document at least ten (10)
days prior to such proposed action, shall constitute fair and
reasonable notice to Borrower of any such action.
8.4 This Agreement and the Loan Documents contain 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.
8.5 Borrower 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 Agreement or any Loan
Document and the repayment in full of Borrower's Obligations.
8.6 Wherever possible, each provision herein or in any Loan
Document shall be interpreted in such manner as to be
effective and valid under applicable law. Should any portion
of this Agreement or any Loan Document be declared invalid for
any reason in any jurisdiction, such declaration shall have no
effect upon the remaining portions of this Agreement or any
Loan Document. Furthermore, the entirety of this Agreement or
any Loan Document shall continue in full force and effect in
all other jurisdictions and said remaining portions herein or
in any Loan Document shall continue in full force and effect
in the subject jurisdiction as if this Agreement or any Loan
Document had been executed with the invalid portions thereof
deleted.
8.7 In the event Bank seeks to take possession of any or all of
the Collateral by court process, Borrower 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.
8.8 The provisions of this Agreement or any Loan Document shall be
binding upon and shall inure to the benefit of the heirs,
personal representatives, administrators, successors and
assigns of Bank and Borrower; provided, however, Borrower may
not assign any of its rights or delegate any of its
Obligations hereunder or in any Loan Document without the
prior written consent of Bank.
8.9 This Agreement or any Loan Document 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.
8.10 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
Loan Document 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
Agreement or any Loan Document, or to enforce any rights of
Bank hereunder or in any Loan Document, whether before or
after the occurrence of any Event of Default, or to collect
any of the Obligations then, in any of such events, Borrower
agrees to pay attorney 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.
8.11 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 Borrower
hereby authorizes Bank to release all or part of any financial
or credit information provided by Borrower to Bank to any
other bank or financial institution without notice.
8.12 Each reference herein or in any Loan Document to Bank shall be
deemed to include its successors and assigns, and each
reference to Borrower 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 the heirs, personal
representatives, administrators, successors and assigns of
Borrower, all of whom shall be bound by the provisions hereof
or in any Loan Document. The term "Borrower" as used herein
shall, if this Agreement or any Loan Document is signed by
more than one Borrower, mean, unless this Agreement or any
Loan Document otherwise provides or unless the context
otherwise requires, the "Borrower" 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
Borrower in and to its several respective properties.
8.13 The section headings herein are included for convenience only
and shall not be deemed to be a part of this Agreement or any
Loan Document.
9. ASSIGNMENT BY BANK
Bank may from time to time without notice to Borrower, sell, assign,
transfer or otherwise dispose of all or any part of the Obligations
and/or the Collateral therefor. In such event, each and every immediate
and successive purchaser, assignee, transferee or holder of all or any
part of the Obligations and/or the Collateral therefor shall have the
right to enforce this 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 rights. Bank shall
have an unimpaired right to enforce this Agreement for its benefit to
that portion of the Obligations as Bank has not sold, assigned,
transferred or otherwise disposed of.
===============================================================================
10. WAIVER OF JURY TRIAL
BORROWER 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 BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
===============================================================================
WITNESS: BORROWER
------- --------------------------
ENVIRONMENTAL WASTE MANAGEMENT ASSOCIATES, LLC
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
WITNESS: BORROWER
INTEGRATED ANALYTICAL LABORATORIES, LLC
------- ----------------------
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: BORROWER
ENVIRONMENTAL WASTE MANAGEMENT ASSOCIATES,INC.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- ---------------------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
ATTEST: BORROWER
INTEGRATED ANALYTICAL LABORATORIES, INC.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ----------------------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: SUMMIT BANK
------------------------------ /s/ Xxxx Xxxxxxx
----------------------------------
Bank Officer Name: ----------- Xxxx Xxxxxxx, Vice President
Bank Officer Title: ----------
NJMM0202(3/97)
EXHIBIT A TO SECURED CREDIT AGREEMENT
SUPPLEMENT TO SECURITY AGREEMENT
Supplement dated August 14, 2000 to Security Agreement dated August 14, 2000,
2000 (the "Security Agreement") by 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") to Summit Bank ("Bank").
Borrower hereby agrees to supplement the Security Agreement so as to add the
property described below as additional Equipment constituting a portion of the
Collateral in which a security interest is granted to Bank under and subject to
all of the terms and conditions of the Security Agreement and a certain Secured
Credit Agreement by and between Borrower and Bank dated August 14, 2000 (the
"Secured Credit Agreement").
[Enter Description of Equipment in this Space]
Borrower hereby reaffirms, as of the date hereof, each and every representation
set forth in the Security Agreement and the Secured Credit Agreement.
Capitalized terms not defined herein but defined the in the Security Agreement
or the Secured Credit Agreement shall have the same meaning ascribed to such
terms in the Security Agreement or the Secured Credit Agreement. Except as
supplemented hereby, each of the Security Agreement and the Secured Credit
Agreement remains in full force and effect.
IN WITNESS WHEREOF Borrower has caused this Supplement to be executed and
delivered by it duly authorized officer on the date first above written
W
WITNESS: BORROWER Environmental Waste Management
------- -------- Associates, L.L.C.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
WITNESS: BORROWER Integrated Analytical Laboratories,
------- -------- L.L.C.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: BORROWER Environmental Waste Management
------ -------- Associates, Inc.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
ATTEST: BORROWER Integrated Analytical Laboratories,
------ -------- Inc.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
EXHIBIT B TO SECURED CREDIT AGREEMENT
FACILITY B
FORM OF PROMISSORY NOTE
$
------------------
================================================================================
LOAN
FOR VALUE RECEIVED, the Undersigned ("BORROWER"), unconditionally (and jointly
and severally, if more than one) promise(s) to pay to SUMMIT BANK ("BANK"), or
order, at its offices at , New Jersey, or at such other place as may be
designated in writing by Bank, the principal sum of ($ ) Dollars together with
interest from the date hereof on the unpaid principal balance hereunder,
computed daily, at the RATE per annum indicated below, payable in accordance
with the particular PAYMENT SCHEDULE indicated below.
Borrower authorizes Bank to effect payment of the sums due under the Note by
means of debiting Borrowers' checking account.
================================================================================
RATE [To be determined in accordance with Section 2 of the related Secured
Credit Agreement]
A RATE based on the "Prevailing Base Rate" of Bank will change each time and as
of the date that the Prevailing Base Rate of Bank changes.
The Prevailing Base Rate of Bank means the fluctuating Base Rate of
interest established by Bank from time to time whether or not such rate
shall be otherwise published. The Prevailing Base Rate is established for
the convenience of Bank. It is not necessarily Bank's lowest rate. In the
event that there should be a change in the Prevailing Base Rate of Bank,
such change shall be effective on the date of such change without notice to
Borrower or any Guarantor, Endorser or Surety. Any such change will not
effect or alter any other terms or conditions of this Note.
Interest will be calculated on the basis of the actual number of days
elapsed over a year of 360 days, unless otherwise prohibited by law.
To the extent permitted by law, whenever there is any Event of Default
under this Note, or non-payment upon demand, the RATE of interest on the
unpaid principal balance shall, at the option of the Bank, be 5% in excess
of the RATE of interest provided herein. Borrower acknowledges that: (i)
such additional rate is a material inducement to Bank to make the loan;
(ii) Bank would not have made the loan in the absence of the agreement of
the Borrower to pay such additional rate; (iii) such additional rate
represents compensation for increased risk to Bank that the loan will not
be repaid; and (iv) such rate is not a penalty and represents a reasonable
estimate of (a) the cost to Bank in allocating its resources (both
personnel and financial) to the on-going review, monitoring, administration
and collection of the loan and (b) compensation to Bank for losses that are
difficult to ascertain.
Notwithstanding any other limitations contained in this Note, Bank does not
intend to charge and Borrower shall not be required to pay any interest or
other fees or charges in excess of the maximum permitted by applicable law.
Any payments in excess of such maximum shall be refunded to Borrower or
credited against principal.
The RATE shall be Prevailing Base Rate minus .50%.
Interest shall accrue on the unpaid principal balance of this Note at the
Rate until the entire principal balance of this Note has been paid in full
notwithstanding any demand for payment, acceleration and/or the entry of
any judgment against Borrower, any Guarantor or Endorser.
================================================================================
PAYMENT SCHEDULE
In the event that any payment due under the Loan shall not be received by Bank
within TEN (10) days of the due date, Borrower shall, to the extent permitted by
law, pay Bank a late charge of five percent (5%) of the overdue payment (but in
no event to be less than $25.00 nor more than $2,500.00) as compensation to
Bank. Any such late charge shall be in addition to all other rights and remedies
to which Bank may be entitled and shall be immediately due and payable. Borrower
acknowledges that (i) such late charge is a material inducement to Bank to make
the loan, (ii) Bank would not have made the loan in the absence of the agreement
of the Borrower to pay such late charge, and (iii) such late charge is not a
penalty and represents a reasonable estimate of the cost to Bank in allocating
its resources (both personnel and financial) to the additional review,
monitoring, administration and collection of the loan.
All payments received hereunder may be applied first to the payment of any
expenses or charges payable hereunder and accrued interest, and the balance
only applied to principal.
Principal shall be paid:
In equal monthly installments of $ each, commencing on , , and continuing
on the same day of each successive month thereafter, with a final payment
of all unpaid principal on April 30, 2006.
Interest shall be paid: monthly commencing on , , and continuing on the
same day of each successive month thereafter, with a final payment of all
unpaid interest at the time of the final payment of the unpaid principal.
(a) PREPAYMENT
Borrower shall pay to Bank a prepayment fee on any payment of principal which is
paid prior to the date on which such payment is due. The fee due on prepayment
shall be the present value of the difference between the yield on the loan (or
the portion of the loan) being prepaid and the yield, as determined by Bank in
its sole and absolute discretion, on a U.S. Treasury security having the coupon
and maturity (or, in the case of a loan with a maturity of one year or less, a
U.S. Treasury xxxx with a maturity) closest to the loan (or portion of the loan)
being prepaid, calculated over the remaining term of the loan, but not less than
zero (the "Treasury Yield"). The Treasury Yield will be adjusted to take into
account any differences in interest payment calculation, interest payment
frequency or other relevant characteristics, if any, between the loan (or
portion of the loan) being prepaid and the U.S. Treasury security or xxxx. The
discount rate for calculating the present value will be the Treasury Yield, as
adjusted. In the case of prepayment, Bank must receive notice from Borrower of
at least one banking day (or longer if specified by Bank) prior to any
prepayments. The prepayment fee is unconditionally due and payable whether the
prepayment is voluntary or involuntary, such as by reason of operation of law or
acceleration of the loan upon an Event of Default.
(b) LATE PAYMENT
In the event that any payment due under the loan shall not be received by Bank
within TEN (10) days of the due date, Borrower shall, to the extent permitted by
law, pay Bank a late charge of five percent (5%) of the overdue payment (but in
no event to be less than $25.00 nor more than $2,500.00) as compensation to
Bank. Any such late charge shall be in addition to all other rights and remedies
to which Bank may be entitled and shall be immediately due and payable.
(c) BORROWER ACKNOWLEDGMENT
Borrower acknowledges that (i) the fees and charges described under sections (a)
and (b) above are a material inducement to Bank to make the loan evidenced
hereby, (ii) Bank would not have made the loan in the absence of the agreement
of Borrower to pay such fees and charges, (iii) the fee and charges in (a) and
(b) are not a penalty and represent a reasonable estimate of the cost to
compensate Bank for: (x) in the case of (a) above, its funding losses, and (y)
in the case of (b) above, the cost to Bank in allocating its resources (both
personnel and financial) to the additional review, monitoring, administration
and collection of the loan.
================================================================================
SECURITY
As security for this Note, or any modifications, extensions and/or renewals,
Borrower 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, under the control of or in transit to Bank which belong to Borrower, any
Guarantor or Endorser hereof.
X
------- If this line is checked, this Note and any subsequent
modification, extension and/or renewal hereof are also secured
by and/or entitled to the benefit of a Security Agreement
dated July ----, 2000 (or any subsequent modification,
extension or renewal thereof.)
================================================================================
WAIVER OF JURY TRIAL
BORROWER 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 BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY .
================================================================================
THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN
THIS NOTE ARE A PART OF THIS NOTE
================================================================================
WITNESS: BORROWER Environmental Waste Management
------- -------- Associates, L.L.C.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
WITNESS: BORROWER Integrated Analytical Laboratories,
------- -------- L.L.C.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: BORROWER Environmental Waste Management
------ -------- Associates, Inc.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
ATTEST: BORROWER Integrated Analytical Laboratories,
------ -------- Inc.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
with its place of business or chief executive office (if it has more than one
place of business) at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
==============================================================================
ADDITIONAL TERMS AND CONDITIONS
1. Waivers; Consents; Costs and Expenses.
---------------------------------------
Borrower and any Co-Borrowers, or Guarantor, or any Endorser hereof
(collectively "Obligors") and each of them: (i) waive(s) presentment,
dishonor, demand, notice of demand, protest, notice of protest and notice
of nonpayment and any other notice required to be given under law to any
Obligors in connection with the delivery, acceptance, performance, default
or enforcement of this Note, of any endorsement or guaranty of this Note or
of any document or instrument evidencing any security for payment of this
Note; (ii) consent (s) to any and all delays, extensions, renewals or other
modifications of this Note or waivers of any term hereof or release or
discharge by Bank of any Obligors or release, substitution or exchange of
any security for the payment hereof or the failure to act on the part of
Bank or any indulgence shown by Bank from time to time and in one or more
instances, (without notice to or further assent from any of Obligors) and
agree(s) that no such action, failure to act or failure to exercise any
right or remedy on the part of the Bank shall in any way affect or impair
the obligations of any Obligors or be construed as a waiver by Bank of, or
otherwise affect, any of the Bank's rights under this Note, under any
endorsement or guaranty of this Note or under any document or instrument
evidencing any security for payment of this Note; and (iii) (jointly and
severally, if more than one) agree(s) to pay, on demand, all costs and
expenses of collection of this Note or of any endorsement or any guaranty
hereof and/or the enforcement of Bank's rights with respect to, or the
administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof (including any costs and
expenses incurred in any bankruptcy or other insolvency proceedings of any
Obligors), including reasonable 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 all liabilities hereunder, which shall be
deemed reasonable.
2. Governing Law.
--------------
This Note is delivered in and shall be construed under
the laws of the State of New Jersey and in any litigation in connection
with, or enforcement, of this Note or of any endorsement or guaranty of
this Note or any security given for payment hereof. The term "Bank" as used
in this Note shall include Bank's successors, endorsers and assigns.
3. Events of Default.
-----------------
The occurrence of any one or more of the following events shall constitute
an Event of Default hereunder: (i) failure to pay any principal, interest
or any of the Obligations within ten (10) days of the date due; (ii)
failure to pay or perform any Obligation of any of the Obligors to Bank,
whether by maturity or acceleration, set forth in this Note or in any Loan
Document within any applicable grace period; (iii) any change in ownership
in any Obligor or the death of any Obligor (if an individual); or of any of
the principals or key employees of any Obligor (if not an individual); (iv)
a proceeding being filed or commenced against any Obligor for dissolution
or liquidation; or any of the Obligors voluntarily or involuntarily
terminating or dissolving or being terminated or dissolved; (v) insolvency
of any Obligor or any Obligor 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 any Obligor, or any Obligor 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 any Obligor; or
any Obligor 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 Obligor except in such cases where the filing or
commencement of the action or appointment of the receiver are involuntary,
Borrower shall have a period of sixty (60) days to have such filing or
appointment withdrawn or terminated, however during such period no
drawdowns under either Facility A or Facility B shall be permitted; (vi)
any attachments, liens or additional security interests being placed upon
any of the Collateral; (vii) acquisition at any time or from time to time
of title to the whole or any part of the Collateral by any person,
partnership, limited liability company or corporation other than any of the
Obligors; (viii) any final judgment, order or decree rendered against any
Obligor exceeding $25,000.00 and remaining undischarged, unstayed or
outstanding against any Obligor for a period of thirty (30) days; (ix) 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 Obligor for which forfeiture
of any of the property or assets of such Obligor is a penalty; (x) any
Reportable Event occurs or if any Employee Benefit Plan is terminated or
Bank reasonably believes such plan may be terminated pursuant to and as
defined in the Employee Retirement Income Security Act of 1974, as amended;
(xi) Bank reasonably deems itself insecure; the occurrence of a material
adverse change in the business, properties, prospects, operation or
condition (financial or otherwise) of any Obligor; or a material adverse
occurrence; (xii) any member of an Obligor that is a limited liability
company resigns or any such member's interest terminates.
4. Acceleration.
------------
If any Event of Default shall occur, then or any time thereafter, while
such Event of Default shall continue, Bank may declare all Obligations to
be due and payable, without notice, protest, presentment, dishonor or
demand, all of which are hereby expressly waived by Obligors. Failure of
Bank to declare all Obligations due and payable upon the occurrence of an
Event of Default shall not be deemed a waiver, and no rights of Bank
hereunder shall be deemed to have been waived by an 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
Borrower 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.
5. Severability.
------------
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any respect, or in the event that any one or more of the provisions
of this Note operate or would prospectively operate to invalidate this
Note, then and in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of
this Note and the remaining provisions of this Note shall remain operative
and in full force and effect and shall in no way be affected, prejudiced or
discharged thereby.
6. Section Headings.
-----------------
The section headings herein are included for convenience only and shall not
be deemed to be part of this Note or any other Loan Document.
NJMM0301(10/96)
SUMMIT BANK
MASTER ADVANCE NOTE
FACILITY A
$1,000,000.00
July ____, 2000
===============================================================================
LOAN
FOR VALUE RECEIVED, the Undersigned, ("BORROWER"), unconditionally (and jointly
and severally, if more than one) promise(s) to pay to SUMMIT BANK ("BANK"), or
order, at its offices at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, or at
such other place as may be designated in writing by Bank, the principal
aggregate sum of One Million Dollars and No Cents ($1,000,000.00) or such lesser
amount of advances as may have been borrowed, repaid and reborrowed (or for such
other financial accommodations as may have been made) together with interest
from the date hereof on the unpaid principal balance hereunder, computed daily,
at the RATE per annum indicated below, payable in accordance with the particular
PAYMENT SCHEDULE indicated below. Any advance(s) shall be conclusively presumed
to have been made to and for the benefit and at the request of Borrower when (1)
deposited or credited to an account of Borrower with Bank, notwithstanding that
such advance was requested, orally or in writing, by someone other than Borrower
or that someone other than Borrower is authorized to draw on such account and
may or does withdraw the whole or any part of such advance, or (2) made in
accordance with the oral or written instructions of Borrower, or of any one of
them if more than one, or of any one signing below for or on behalf of Borrower.
================================================================================
RATE
A RATE based on the "Prevailing Base Rate" of Bank will change each time and as
of the date that the Prevailing Base Rate of Bank changes. The Prevailing Base
Rate of Bank means the fluctuating Base Rate of interest established by Bank
from time to time whether or not such rate shall be otherwise published. The
Prevailing Base Rate is established for the convenience of Bank. It is not
necessarily Bank's lowest rate. In the event that there should be a change in
the Prevailing Base Rate of Bank, such change shall be effective on the date of
such change without notice to Borrower or any Guarantor, Endorser or Surety. Any
such change will not affect or alter any other terms or conditions of this Note.
Interest will be calculated on the basis of the actual number of days elapsed
over a year of 360 days, unless otherwise prohibited by law. To the extent
permitted by law, whenever there is any Event of Default under this Note, or
non-payment upon demand, the RATE of interest on the unpaid principal balance
shall, at the option of Bank, be 5% over the RATE otherwise provided herein.
Borrower acknowledges that (i) such additional rate is a material inducement to
Bank to make the loan, (ii) Bank would not have made the loan in the absence of
the agreement of the Obligors (as defined in Section 1 of the Additional Terms
and Conditions hereto) to pay such additional rate; (iii) such additional rate
represents compensation for increased risk to Bank that the loan will not be
repaid; and (iv) such rate is not a penalty and represents a reasonable estimate
of (a) the cost to Bank in allocating its resources (both personnel and
financial) to the on-going review, monitoring, administration and collection of
the loan and (b) compensation to Bank for losses that are difficult to
ascertain. Notwithstanding any other limitations contained in this Note, Bank
does not intend to charge and Borrower shall not be required to pay any interest
or other fees or charges in excess of the maximum permitted by applicable law.
Any payments in excess of such maximum shall be refunded to Borrower or credited
against principal. Interest shall accrue on the unpaid principal balance of this
Note at the Rate until the entire principal balance of this Note has been paid
in full notwithstanding any demand for payment, acceleration and/or the entry of
any judgment against Borrower, any Guarantor or Endorser.
Borrower shall, subject to the terms and conditions of Section 6 of the
Additional Terms and Conditions hereto, have the option to (i) elect (an)
interest rate(s) determined by reference to LIBOR (as defined in Section 6 of
the Additional Terms and Conditions hereto), (ii) convert all or part of its
outstanding Prevailing Base Rate Loans (as defined in Section 6 of the
Additional Terms and Conditions hereto) to LIBOR Loans (as defined in Section 6
of the Additional Terms and Conditions hereto) and (iii) convert all or part of
its LIBOR Loans to Prevailing Base Rate Loans, all in accordance with, and
subject to, all of the terms and conditions of Section 6 of the Additional Terms
and Conditions hereto.
The Rate for Prevailing Base Rate Loans (as defined in Section 6 of the
Additional Terms and Conditions hereto) shall be the Prevailing Base Rate of
Bank minus.50%. The Rate for LIBOR Loans (as defined in Section 6 of the
Additional Terms and Conditions hereto) shall be LIBOR (as defined in Section 6
of the Additional Terms and Conditions hereto) plus 2.25%.
The RATE shall be Prevailing Base Rate of Bank minus .5% or LIBOR + 225 basis
points.
===============================================================================
PAYMENT SCHEDULE
In the event that any payment due under the loan shall not be received by Bank
within TEN (10) days of the due date, Borrower shall, to the extent permitted by
law, pay Bank a late charge of 5% of the overdue payment (but in no event to be
less than $25.00 nor more than $2,500.00) as compensation to Bank. Any such late
charge shall be in addition to all other rights and remedies to which Bank may
be entitled and shall be immediately due and payable. Borrower acknowledges that
(i) such late charge is a material inducement to Bank to make the loan; (ii)
Bank would not have made the loan in the absence of the agreement of the
Borrower to pay such late charge, and (iii) such late charge is not a penalty
and represents a reasonable estimate of the cost to Bank in allocating its
resources (both personnel and financial) to the additional review, monitoring,
administration and collection of the loan.
All payments received hereunder may be applied first to the payment of any
expenses or charges payable hereunder and accrued interest, and the balance only
applied to principal.
Principal shall be paid in a single payment on April 30, 2001.
Interest shall be paid monthly commencing on August ___, 2000 and continuing on
the same day of each successive month thereafter with a final payment of all
unpaid interest at the time of the final payment of the unpaid principal.
================================================================================
SECURITY
As security for this Note, or any modifications, extensions and/or renewals,
Borrower 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, under the control of or in transit to Bank which belong to Borrower, any
Guarantor or Endorser hereof. This Note and any subsequent modification,
extension and/or renewal hereof are also secured by and/or entitled to the
benefit of a Security Agreement (Equipment and/or Inventory and/or Accounts),
dated July ____, 2000.
================================================================================
WAIVER OF JURY TRIAL
BORROWER 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 BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
================================================================================
THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS NOTE ARE A PART OF THIS
NOTE.
================================================================================
WITNESS: BORROWER Environmental Waste Management
------- -------- Associates, L.L.C.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
WITNESS: BORROWER Integrated Analytical Laboratories,
------- -------- L.L.C.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: BORROWER Environmental Waste Management
------ -------- Associates, Inc.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
ATTEST: BORROWER Integrated Analytical Laboratories,
------ -------- Inc.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
WITNESS:
with its place of business or chief executive office (if it has more than one
place of business) at 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 as to
Environmental Waste Management Associates, L.L.C.; Integrated Analytical
Laboratories, L.L.C.; and Environmental Waste Management Associates, Inc.; and
000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 as to Integrated Analytical
Laboratories, Inc.
================================================================================
ADDITIONAL TERMS AND CONDITIONS
1. Waivers; Consents; Costs and Expenses.
---------------------------------------
Borrower and any Co-Borrowers, or Guarantor, or any Endorser hereof
(collectively "Obligors") and each of them: (i) waive(s) presentment,
dishonor, demand, notice of demand, protest, notice of protest and notice
of nonpayment and any other notice required to be given under law to any
Obligors in connection with the delivery, acceptance, performance, default
or enforcement of this Note, or any endorsement or guaranty of this Note or
any document or instrument evidencing any security for payment of this
Note; (ii) consent(s) to any and all delays, extensions, renewals or other
modifications of this Note or waivers of any term hereof or release or
discharge by Bank of any Obligors or release, substitution or exchange of
any security for the payment hereof or the failure to act on the part of
Bank or any indulgence shown by Bank from time to time and in one or more
instances, (without notice to or further assent from any Obligors) and
agree(s) that no such action, failure to act or failure to exercise any
right or remedy on the part of Bank shall in any way affect or impair the
obligations of any Obligors or be construed as a waiver by Bank of, or
otherwise affect, any of Bank's rights under this Note, under any
endorsement or guaranty of this Note or under any document or instrument
evidencing any security for payment of this Note; and (iii) (jointly and
severally, if more than one) agree(s) to pay, on demand, all costs and
expenses of collection of this Note or of any endorsement or any guaranty
hereof and/or the enforcement of Bank's rights with respect to, or the
administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof, (including any costs and
expenses incurred in any bankruptcy or other insolvency proceedings of any
Obligors), including reasonable 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 all liabilities hereunder, which shall be
deemed reasonable.
2. Governing Law.
--------------
This Note is delivered in and shall be construed under the laws of the
State of New Jersey and in any litigation in connection with, or
enforcement of, this Note or of any endorsement or guaranty of this Note or
any security given for payment hereof. The term "Bank" as used in this Note
shall include Bank's successors, endorsers and assigns.
3. Events of Default.
-----------------
The occurrence of any one or more of the following events shall constitute
an Event of Default hereunder: (i) failure to pay any principal, interest
or any of the Obligations within ten (10) days of the date due; (ii)
failure to pay or perform any Obligation of any of the Obligors to Bank,
whether by maturity or acceleration, set forth in this Note or in any Loan
Document within any applicable grace period; (iii) any change in ownership
in any Obligor or the death of any Obligor (if an individual); or of any of
the principals or key employees of any Obligor (if not an individual); (iv)
a proceeding being filed or commenced against any Obligor for dissolution
or liquidation; or any of the Obligors voluntarily or involuntarily
terminating or dissolving or being terminated or dissolved; (v) insolvency
of any Obligor, or any Obligor 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 any Obligor, or any Obligor 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 any Obligor; or
any Obligor 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 Obligor except in such cases where the filing or
commencement of the action or appointment of the receiver are involuntary,
Borrower shall have a period of sixty (60) days to have such filing or
appointment withdrawn or terminated, however during such period no
drawdowns under either Facility A or Facility B shall be permitted; (vi)
any attachments, liens or additional security interests being placed upon
any of the Collateral; (vii) acquisition at any time or from time to time
of title to the whole or any part of the Collateral by any person,
partnership, limited liability company or corporation other than any of the
Obligors; (viii) any final judgment, order or decree rendered against any
Obligor exceeding $25,000.00 and remaining undischarged, unstayed, or
outstanding against any Obligor for a period of thirty (30) days; (ix) 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 Obligor for which forfeiture
of any of the property or assets of such Obligor is a penalty; (x) any
Reportable Event occurs or if any Employee Benefit Plan is terminated or
Bank reasonably believes such plan may be terminated pursuant to and as
defined in the Employee Retirement Income Security Act of 1974, as amended;
(xi) Bank reasonably deems itself insecure; the occurrence of a material
adverse change in the business, properties, prospects, operation or
condition (financial or otherwise) of any Obligor; or a material adverse
occurrence; (xii) any member of an Obligor that is a limited liability
company resigns or any such member's interest terminates.
4. Acceleration.
------------
If any Event of Default shall occur, then or any time thereafter, while
such Event of Default shall continue, Bank may declare all Obligations to
be due and payable, without notice, protest, presentment, dishonor or
demand, all of which are hereby expressly waived by Obligors. Failure of
Bank to declare all Obligations due and payable upon the occurrence of an
Event of Default shall not be deemed a waiver, and no rights of Bank
hereunder shall be deemed to have been waived by an 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
Borrower 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.
5. Severability.
------------
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any respect, or in the event that any one or more of the provisions
of this Note operate or would prospectively operate to invalidate this
Note, then and in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of
this Note and the remaining provisions of this Note shall remain operative
and in full force and effect and shall in no way be affected, prejudiced or
discharged thereby.
6. LIBOR Loans.
------------
THIS SECTION 6 SHALL APPLY IF BORROWER HAS THE OPTION TO (i) ELECT (AN)
INTEREST RATE(S) DETERMINED BY REFERENCE TO LIBOR, (ii) CONVERT ALL OR PART
OF ITS OUTSTANDING PREVAILING BASE RATE LOANS TO LIBOR LOANS AND (iii)
CONVERT ALL OR PART OF ITS OUTSTANDING LIBOR LOANS TO PREVAILING BASE RATE
LOANS.
6.1 Definitions: For purposes of this Note, the terms set
forth below shall be defined as follows:
(a) "Banking Day" means any day on which Bank is
open for business and on which commercial
banks in London, England are open for
dealings in U.S. dollar deposits in the
London Interbank Market, provided, however,
that during any period of time during which
the entire principal balance of this Note
bears interest at the Prevailing Base Rate
in accordance with the provisions of this
Note, the term "Banking Day" shall mean any
day on which Bank is open for business.
(b) "Interest Period" means the period of time
during which a LIBOR Loan is outstanding, it
being agreed that (i) each Interest Period
shall be of a duration of either one month,
two months or three months, (ii) no Interest
Period shall extend beyond the maturity date
of this Note, and (iii) the portion of the
principal balance of this Note with respect
to which a particular Interest Period is
applicable will bear interest at the LIBOR
rate pertaining to such Interest Period from
and including the first day of such Interest
Period to, but not including, the last day
of such Interest Period.
(c) "LIBOR" means with respect to any Interest
Period for a LIBOR Loan, the rate per annum
(rounded upward, if necessary, to the
nearest one-sixteenth (1/16th) of 1% )
quoted at approximately 11 A.M. London time,
by Bank one Banking Day prior to the first
day of such Interest Period for the offering
to leading banks in the London interbank
market of Dollar deposits for a period, and
in an amount, comparable to the Interest
Period and principal amount of the LIBOR
Loan which shall be made by Bank and
outstanding during such Interest Period.
(d) "LIBOR Loan" means any portion of the
principal balance of this Note for which
Borrower has elected to pay interest at a
rate determined by reference to LIBOR for a
specified Interest Period.
(e) "Prevailing Base Rate Loan" means any
portion of the principal balance of this
Note which is not subject to an interest
rate determined by reference to LIBOR.
(f) "LIBOR Lock-In Date" means the date one (1)
Banking Day before the commencement of any
Interest Period upon which Bank shall
determine LIBOR for a requested Interest
Period for a requested LIBOR Loan.
6.2 Interest Periods: In connection with each LIBOR Loan,
Borrower shall elect an Interest Period to be
applicable to such LIBOR Loan, provided that:
(a) the Interest Period of each LIBOR Loan shall
commence on the date (or conversion date) of
such LIBOR Loan;
(b) if an Interest Period would otherwise expire
on a day which is not a Banking Day, such
Interest Period shall expire on the
preceding Banking Day;
(c) no Interest Period shall extend beyond
the applicable maturity date of this Note;
(d) Borrower shall select Interest Periods so as
not to require a payment or prepayment of
any LIBOR Loan during the Interest Period of
such LIBOR Loan; and
(e) there shall be no more than 4 Interest
Periods relating to LIBOR Loans outstanding
at any time.
6.3 Conversion or Continuation: (a) Borrower shall have
the option to convert, upon one Banking Day's prior
notice to Bank and, otherwise in accordance with the
notice provisions of Section 6.4(a) hereof, all or
part of its outstanding Prevailing Base Rate Loans to
LIBOR Loans up to an aggregate of One Million Dollars
($1,000,000.00) of LIBOR Loans outstanding at any
time, provided each LIBOR Loan shall be not less than
One Hundred Thousand Dollars ($100,000.00) and in
integral multiples of Fifty Thousand Dollars
($50,000.00); to convert at the end of any Interest
Period all or part of its outstanding LIBOR Loans to
Prevailing Base Rate Loans; or upon the expiration of
any Interest Period applicable to LIBOR Loans, to
continue all or any portion of such Loans equal to
One Hundred Thousand Dollars ($100,000.00) and in
integral multiples of Fifty Thousand Dollars
($50,000.00), and succeeding Interest Period(s) of
such continued Loans shall commence on the last day
of the Interest Period of the Loans to be continued.
(b) Unless Borrower shall have given the Bank a
timely written notice of
conversion/continuation with respect to
LIBOR Loans outstanding, or written notice
of Borrower's intent to repay LIBOR Loans,
furnished not later than 11:00 a.m. (Eastern
Standard Time) at least one (1) Banking Day
prior to the last day of the Interest Period
with respect to such LIBOR Loans, Borrower
shall be deemed to have requested that such
LIBOR Loans be converted into Prevailing
Base Rate Loans on such day. Such Prevailing
Base Rate Loans shall be in an aggregate
principal amount equal to the aggregate
principal amount of such LIBOR Loans not
intended to be continued or converted.
6.4 Special Provisions: Notwithstanding any other
provisions of this Note, the following provisions
shall govern with respect to LIBOR Loans as to the
matters covered:
(a) Notice and Manner of Borrowing:
------------------------------
Borrower shall give Bank notice of any LIBOR
Loans hereunder at least one (1) Banking Day
before each LIBOR Loan, specifying: (1) the
date of such LIBOR Loan; (2) the amount of
such LIBOR Loan; and (3) the duration of the
Interest Period applicable thereto. Any such
notice shall be irrevocable and shall be
given no later than 11 A.M. London Time at
least one (1) Banking Day prior to the
initiation, conversion or continuation of
the LIBOR Loan.
(b) Determination of Interest Rate:
------------------------------
As soon as practicable after 11 a.m (Eastern
Standard Time) on a LIBOR Lock-In Date, Bank
shall determine (which determination shall,
absent manifest error, be final, conclusive
and binding upon all parties) the LIBOR
which shall apply to the LIBOR Loans for
which an interest rate is then being
determined for the applicable Interest
Period and shall promptly give notice
thereof (in writing or by telephone) to
Borrower.
(c) Increased Costs, Illegality, etc: If
---------------------------------
(x) on any LIBOR Lock-In-Date that, by
reason of any changes arising after
the date hereof affecting the London
Interbank Eurodollar market, adequate
and fair means do not exist for as
certaining the applicable interest
rate on the basis provided for in the
definition of LIBOR; or
(y) at any time, that the Bank shall
incur increased costs or reductions
in the amounts received or
receivable with respect to any LIBOR
Loan because of any change since the
date hereof in any applicable law or
governmental rule, regulation,
order, guideline or request (whether
or not having the force of law)
or in the interpretation or
administration thereof and including
the introduction of any law or
governmental rule, regulation,
order, guideline or request, such
as, for example, but not limited to:
(AA)a change in the basis of taxation
or payments to Bank of the
principal of or interest on the
LIBOR Loans or any other amounts
payable hereunder (except for
changes in the rate of tax on, or
determined in reference to, the net
income or profits of Bank pursuant
to the laws of the jurisdiction in
which it is organized or in which
its principal office or applicable
lending office is located or any
subdivision thereof or therein); or
(BB) a change in official reserve
requirements, and/or (CC) other
circumstances since the date hereof
affecting Bank or the London
Interbank Eurodollar market or the
position of Bank in such market; or
(z) at any time, that the making or
continuance of any LIBOR Loan
becomes (AA) unlawful by any law or
governmental rule, regulation or
order, (BB) impossible by compliance
by Bank in good faith with any
governmental requirement or request
(whether or not having force of
law), or (CC) impracticable as a
result of a contingency occurring
after the date hereof which
materially and adversely affects the
London Interbank Eurodollar market;
then, and in any event, Bank shall
notify Borrower of such
determination. Thereafter (aa) in
the case of clause (x) above, LIBOR
Loans shall no longer be available
until such time as this circumstance
no longer exists, and any requested
advance under a revolving loan or
line of credit or notice of
conversion/continuation given by
Borrower with respect to LIBOR Loans
which have not yet been incurred
(including by way of conversion)
shall be deemed rescinded by
Borrower, (bb) in the case of clause
(y) above, Borrower shall pay to
Bank, upon written demand therefor,
such additional amounts (in the form
of an increased rate of, or a
different method of calculating
interest or otherwise, as Bank in
its sole discretion shall determine)
as shall be required to compensate
Bank for such increased costs or
reductions in amounts received or
receivable hereunder (a written
notice as to the additional amounts
owed to Bank showing the basis for
the calculation thereof, submitted
to Borrower, absent manifest error,
shall be final and conclusive and
binding), and (cc) in the case of
clause (z) above, Borrower shall
take one of the actions specified as
follows as promptly as possible and,
in any event, within the time period
required by law. At any time that
any LIBOR Loan is affected by the
circumstances described above (and
in the case of a LIBOR Loan affected
by the circumstances described in
Subsection (z) above) Borrower shall
either (AA) if the affected LIBOR
Loan is then being made initially or
pursuant to a conversion, by giving
Bank telephone notice (confirmed in
writing) on the same date that
Borrower was notified by Bank, or
(BB) if the affected LIBOR Loan is
then outstanding, by giving Bank at
least three (3) Banking Days'
written notice, require Bank to
convert such LIBOR Loan into a
Prevailing Base Rate Loan.
6.5 Compensation: Borrower shall compensate Bank, upon
its written request, for all losses, expenses and
liabilities (including, without limitation, any
interest paid by Bank to lenders of funds borrowed by
it to make or carry its LIBOR Loans and any loss
sustained by Bank in connection with the
re-deployment of such funds, but excluding any loss
of margin) which Bank may sustain with respect to
LIBOR Loans:
(a) if for any reason (other than a default or
error by Bank) a borrowing of any LIBOR Loan
does not occur on a date specified thereof
in a notice of borrowing or a notice of
conversion/continuation, or a successive
Interest Period does not commence after
notice thereof is given (whether or not
withdrawn by Borrower or deemed withdrawn);
or
(b) if any prepayment or repayment (as required
hereunder or by acceleration or otherwise)
or conversion of any LIBOR Loan occurs on a
date which is not the last day of the
Interest Period applicable to that Loan; or
(c) as a consequence of any failure by Borrower
to repay such LIBOR Loans when required by
the terms of this Agreement.
It is understood that compensation owing under this subsection 6.5
shall be equal to the amount of interest that would have accrued on the
amount of principal prepaid or repaid or converted or not borrowed for
the period from the date of such prepayment or repayment or conversion
or failure to borrow or prepay or repay to the last day of the then
current Interest Period for the relevant LIBOR Loan (or, in the case of
a failure to borrow, the Interest Period for such LIBOR Loan which
would have commenced on the date of such failure to borrow) at the
applicable rate of interest for such LIBOR Loan provided for herein
minus any amount Bank, in good faith and in its sole discretion,
determines is realizable upon re-deployment of such funds. A
certificate as to the amount of such losses, expenses and liabilities
submitted to Borrower by Bank shall, absent manifest error, be final,
conclusive and binding for all purposes.
7. Section Headings.
-----------------
The section headings herein are included for convenience and shall
not be deemed to be part of this Note or any other Loan Documents.
NJMM0302(10/96)
SUMMIT BANK
MASTER ADVANCE NOTE
FACILITY B
$750,000.00
July ____, 2000
================================================================================
LOAN
FOR VALUE RECEIVED, the Undersigned, ("BORROWER"), unconditionally (and jointly
and severally, if more than one) promise(s) to pay to SUMMIT BANK ("BANK"), or
order, at its offices at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, or at
such other place as may be designated in writing by Bank, the principal
aggregate sum of Seven Hundred Fifty Thousand Dollars and No Cents ($750,000.00)
or such lesser amount of advances as may have been borrowed (or for such other
financial accommodations as may have been made) together with interest from the
date hereof on the unpaid principal balance hereunder, computed daily, at the
RATE per annum indicated below, payable in accordance with the particular
PAYMENT SCHEDULE indicated below. This is not a revolving credit facility and,
as such, no reborrowing is permitted hereunder. Any advance(s) shall be
conclusively presumed to have been made to and for the benefit and at the
request of Borrower when (1) deposited or credited to an account of Borrower
with Bank, notwithstanding that such advance was requested, orally or in
writing, by someone other than Borrower or that someone other than Borrower is
authorized to draw on such account and may or does withdraw the whole or any
part of such advance, or (2) made in accordance with the oral or written
instructions of Borrower, or of any one of them if more than one, or of any one
signing below for or on behalf of Borrower.
================================================================================
RATE
A RATE based on the "Prevailing Base Rate" of Bank will change each time and as
of the date that the Prevailing Base Rate of Bank changes.
The Prevailing Base Rate of Bank means the fluctuating Base Rate of interest
established by Bank from time to time whether or not such rate shall be
otherwise published. The Prevailing Base Rate is established for the convenience
of Bank. It is not necessarily Bank's lowest rate. In the event that there
should be a change in the Prevailing Base Rate of Bank, such change shall be
effective on the date of such change without notice to Borrower or any
Guarantor, Endorser or Surety. Any such change will not affect or alter any
other terms or conditions of this Note. Interest will be calculated on the basis
of the actual number of days elapsed over a year of 360 days, unless otherwise
prohibited by law.
To the extent permitted by law, whenever there is any Event of Default under
this Note, or non-payment upon demand, the RATE of interest on the unpaid
principal balance shall, at the option of Bank, be 5% over the RATE otherwise
provided herein.
Borrower acknowledges that (i) such additional rate is a material inducement to
Bank to make the loan, (ii) Bank would not have made the loan in the absence of
the agreement of the Obligors (as defined in Section 1 of the Additional Terms
and Conditions hereto) to pay such additional rate; (iii) such additional rate
represents compensation for increased risk to Bank that the loan will not be
repaid; and (iv) such rate is not a penalty and represents a reasonable estimate
of (a) the cost to Bank in allocating its resources (both personnel and
financial) to the on-going review, monitoring, administration and collection of
the loan and (b) compensation to Bank for losses that are difficult to
ascertain.
Notwithstanding any other limitations contained in this Note, Bank does not
intend to charge and Borrower shall not be required to pay any interest or other
fees or charges in excess of the maximum permitted by applicable law. Any
payments in excess of such maximum shall be refunded to Borrower or credited
against principal. Interest shall accrue on the unpaid principal balance of this
Note at the Rate until the entire principal balance of this Note has been paid
in full notwithstanding any demand for payment, acceleration and/or the entry of
any judgment against Borrower, any Guarantor or Endorser.
The RATE shall be the Prevailing Base Rate of Bank minus .5%.
================================================================================
PAYMENT SCHEDULE
In the event that any payment due under the loan shall not be received by Bank
within TEN (10) days of the due date, Borrower shall, to the extent permitted by
law, pay Bank a late charge of 5% of the overdue payment (but in no event to be
less than $25.00 nor more than $2,500.00) as compensation to Bank. Any such late
charge shall be in addition to all other rights and remedies to which Bank may
be entitled and shall be immediately due and payable.
Borrower acknowledges that (i) such late charge is a material inducement to Bank
to make the loan; (ii) Bank would not have made the loan in the absence of the
agreement of the Borrower to pay such late charge, and (iii) such late charge is
not a penalty and represents a reasonable estimate of the cost to Bank in
allocating its resources (both personnel and financial) to the additional
review, monitoring, administration and collection of the loan.
All payments received hereunder may be applied first to the payment of any
expenses or charges payable hereunder and accrued interest, and the balance only
applied to principal.
Principal shall be paid in a single payment on April 30, 2001.
Interest shall be paid monthly commencing on August ___, 2000 and continuing on
the same day of each successive month thereafter with a final payment of all
unpaid interest at the time of the final payment of the unpaid principal.
================================================================================
SECURITY
As security for this Note, or any modifications, extensions and/or renewals,
Borrower 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, under the control of or in transit to Bank which belong to Borrower, any
Guarantor or Endorser hereof. This Note and any subsequent modification,
extension and/or renewal hereof are also secured by and/or entitled to the
benefit of a Security Agreement (Equipment and/or Inventory and/or Accounts),
dated July ____, 2000.
================================================================================
WAIVER OF JURY TRIAL
BORROWER 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 BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
================================================================================
THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS NOTE ARE A PART OF THIS
NOTE.
================================================================================
WITNESS:
WITNESS: BORROWER Environmental Waste Management
------- -------- Associates, L.L.C.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
WITNESS: BORROWER Integrated Analytical Laboratories,
------- -------- L.L.C.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: BORROWER Environmental Waste Management
------ -------- Associates, Inc.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
-------------------- -----------------------
Xxxxxx Xxxxxxxxx, Secretary Xxxxxxxx X. Xxxxxxx, President
ATTEST: BORROWER Integrated Analytical Laboratories,
------ -------- Inc.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxx Xxxxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
ATTEST: SUMMIT BANK
------------------------------ /s/ Xxxx Xxxxxxx
----------------------------------
Bank Officer Name: ----------- Xxxx Xxxxxxx, Vice President
Bank Officer Title: ----------
NJMM0202(3/97)
with its place of business or chief executive office (if it has more than one
place of business) at 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 as to
Environmental Waste Management Associates, L.L.C.; Integrated Analytical
Laboratories, L.L.C.; and Environmental Waste Management Associates, Inc.; and
000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 as to Integrated Analytical
Laboratories, Inc.
================================================================================
ADDITIONAL TERMS AND CONDITIONS
1. Waivers; Consents; Costs and Expenses. Borrower and any Co-Borrowers, or
Guarantor, or any Endorser hereof (collectively "Obligors") and each of them:
(i) waive(s) presentment, dishonor, demand, notice of demand, protest, notice of
protest and notice of nonpayment and any other notice required to be given under
law to any Obligors in connection with the delivery, acceptance, performance,
default or enforcement of this Note, or any endorsement or guaranty of this Note
or any document or instrument evidencing any security for payment of this Note;
(ii) consent(s) to any and all delays, extensions, renewals or other
modifications of this Note or waivers of any term hereof or release or discharge
by Bank of any Obligors or release, substitution or exchange of any security for
the payment hereof or the failure to act on the part of Bank or any indulgence
shown by Bank from time to time and in one or more instances, (without notice to
or further assent from any Obligors) and agree(s) that no such action, failure
to act or failure to exercise any right or remedy on the part of Bank shall in
any way affect or impair the obligations of any Obligors or be construed as a
waiver by Bank of, or otherwise affect, any of Bank's rights under this Note,
under any endorsement or guaranty of this Note or under any document or
instrument evidencing any security for payment of this Note; and (iii) (jointly
and severally, if more than one) agree(s) to pay, on demand, all costs and
expenses of collection of this Note or of any endorsement or any guaranty hereof
and/or the enforcement of Bank's rights with respect to, or the administration,
supervision, preservation, protection of, or realization upon, any property
securing payment hereof, (including any costs and expenses incurred in any
bankruptcy or other insolvency proceedings of any Obligors), including
reasonable 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 all liabilities
hereunder, which shall be deemed reasonable.
2. Governing Law. This Note is delivered in and shall be construed under the
laws of the State of New Jersey and in any litigation in connection with, or
enforcement of, this Note or of any endorsement or guaranty of this Note or any
security given for payment hereof. The term "Bank" as used in this Note shall
include Bank's successors, endorsers and assigns.
3. Events of Default. The occurrence of any one or more of the following events
shall constitute an Event of Default hereunder: (i) failure to pay any
principal, interest or any of the Obligations within ten (10) days of the date
due; (ii) failure to pay or perform any Obligation of any of the Obligors to
Bank, whether by maturity or acceleration, set forth in this Note or in any Loan
Document within any applicable grace period; (iii) any change in ownership in
any Obligor or the death of any Obligor (if an individual); or of any of the
principals or key employees of any Obligor (if not an individual); (iv) a
proceeding being filed or commenced against any Obligor for dissolution or
liquidation; or any of the Obligors voluntarily or involuntarily terminating or
dissolving or being terminated or dissolved; (v) insolvency of any Obligor, or
any Obligor 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 any
Obligor, or any Obligor 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 any Obligor; or any Obligor 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 Obligor except in such cases where
the filing or commencement of the action or appointment of the receiver are
involuntary, Borrower shall have a period of sixty (60) days to have such filing
or appointment withdrawn or terminated, however during such period no drawdowns
under either Facility A or Facility B shall be permitted; (vi) any attachments,
liens or additional security interests being placed upon any of the Collateral;
(vii) acquisition at any time or from time to time of title to the whole or any
part of the Collateral by any person, partnership, limited liability company or
corporation other than any of the Obligors; (viii) any final judgment, order or
decree rendered against any Obligor exceeding $25,000.00 and remaining
undischarged, unstayed, or outstanding against any Obligor for a period of
thirty (30) days; (ix) 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 Obligor for which
forfeiture of any of the property or assets of such Obligor is a penalty; (x)
any Reportable Event occurs or if any Employee Benefit Plan is terminated or
Bank reasonably believes such plan may be terminated pursuant to and as defined
in the Employee Retirement Income Security Act of 1974, as amended; (xi) Bank
reasonably deems itself insecure; the occurrence of a material adverse change in
the business, properties, prospects, operation or condition (financial or
otherwise) of any Obligor; or a material adverse occurrence; (xii) any member of
an Obligor that is a limited liability company resigns or any such member's
interest terminates.
4. Acceleration. If any Event of Default shall occur, then or any time
thereafter, while such Event of Default shall continue, Bank may declare all
Obligations to be due and payable, without notice, protest, presentment,
dishonor or demand, all of which are hereby expressly waived by Obligors.
Failure of Bank to declare all Obligations due and payable upon the occurrence
of an Event of Default shall not be deemed a waiver, and no rights of Bank
hereunder shall be deemed to have been waived by an 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 Borrower
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.
5. Severability. In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of this
Note and the remaining provisions of this Note shall remain operative and in
full force and effect and shall in no way be affected, prejudiced or discharged
thereby.
6. Section Headings. The section headings herein are included for convenience
and shall not be deemed to be part of this Note or any other Loan Documents.
NJMM0302(10/96)
