GUARANTY
EXHIBIT 10.16
Loan Number 10004868054
THIS GUARANTY (“Guaranty”) is made and entered into as of this 12th day of
November, 2008, by PURE EARTH, INC., a Delaware corporation (the “Guarantor”), in favor of
SUSQUEHANNA BANK, a Pennsylvania chartered bank (the “Bank”) to secure the obligations of XXXXX
ECOLOGY OIL SALVAGE, INC., a New Jersey corporation, MIDATLANTIC RECYCLING TECHNOLOGIES, INC., a
Delaware corporation, and REZULTZ, INCORPORATED, a New Jersey corporation (collectively
hereinafter “Borrower”).
BACKGROUND
A. The Borrower has on or about the date hereof entered into loan documents with Bank
evidencing a Term Mortgage Loan in the principal sum of EIGHT MILLION DOLLARS ($8,000,000.00) (the
“Loan”), made by Bank to Borrower pursuant to a certain Term Loan Note of even date herewith (the
“Note”), and more particularly described in that certain Term Loan Agreement of even date herewith
between Borrower and Bank (the “Loan Agreement”).
B. As a condition to entering into the Note and Loan Agreement and making the Loan, the Bank
has requested additional credit support and the Guarantor has agreed to execute and deliver to the
Bank an instrument guaranteeing the Obligations of the Borrower under the Loan Agreement, the Note,
and the other loan documents referred to in the Loan Agreement (collectively the “Loan Documents”).
C. The Guarantor has determined that the extension of credit to the Borrower under the Loan
Agreement directly benefits, and that its execution, delivery and performance of this Guaranty is
within the business purposes and in the best interests of, the Guarantor and has offered this
Guaranty to induce the Bank to provide the Loan to Borrower.
D. Capitalized terms used herein without definition shall have the meanings ascribed to them
in the Loan Agreement.
COVENANTS
NOW, THEREFORE, incorporating the Background Section herein, in consideration of the
undertakings of the Bank pursuant to the Loan Agreement and intending to be legally bound,
Guarantor hereby agrees as follows:
Section 1. Guaranty. The Guarantor hereby irrevocably, absolutely and unconditionally
guarantees as a primary obligor and not merely as a surety for prompt payment of the following
obligations and liabilities (hereinafter collectively referred to as the “Obligations”):
(a) any and all indebtedness of the Borrower to the Bank in connection with the Loan
Documents, as and when due and payable, whether by acceleration or otherwise of all amounts now or
hereafter owing by the Borrower in connection with the Loan Agreement, the Note, and the other Loan
Documents, whether for principal of or interest on (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding) the Loan, and the due
performance and observance by the Borrower of its other Obligations now or hereafter existing in
respect of any of the Loan Documents and any renewals, extensions and modifications thereof; and
(b) any and all indebtedness of the Borrower to the Bank in connection with the Environmental
Indemnification Agreement between Borrower and Bank, dated of even date herewith, as and when due
and payable, whether by acceleration or otherwise of all amounts now or hereafter owing by the
Borrower, and any renewals, extensions and modifications thereof, and Guarantor hereby agrees that
the representations, warranties and covenants herein shall survive the payment of the indebtedness
to Bank and the satisfaction and release of any mortgage and shall not be affected by Lender’s
acquisition of any interest in the property, whether by foreclosure or otherwise;
(c) any and all reasonable expenses, including, without limitation, reasonable arbitration,
attorneys’ and experts’ fees and expenses, incurred by the Bank in enforcing its rights under this
Guaranty whether incurred without the commencement of a suit, in any suit, arbitration or
administrative proceeding or in any appellate or bankruptcy proceeding.
Section 2. Guarantor’s Obligations Unconditional.
(a) The Guarantor hereby guarantees that the Obligations will be paid in accordance with the
terms of the Loan Documents. The liability of the Guarantor hereunder shall be absolute and
unconditional, irrespective of: (i) any lack of validity or enforceability of any such Loan
Document or any agreement or instrument relating thereto, including, without limitation, the lack
of validity or enforceability of all or any portion of the liens or security interests granted
thereby; (ii) any change in the time, manner or place of payment of, or in any other non-material
term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent
to any non-material departure from the terms of any such Loan Document; (iii) any exchange or
release of, or non-perfection of any lien on or security interest in, any Collateral, or any
release or amendment or waiver of or consent to any departure from the terms of any other guaranty
for all or any of the Obligations; (iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor or obligor in respect
of the Obligations or the Guarantor in respect hereof; or (v) the absence of any action on the part
of the Bank to obtain payment of the Obligations from the Borrower or from the Guarantor or from
any other guarantor or obligor.
2
(b) This Guaranty (i) is a continuing and unconditional guarantee of payment and performance
and not of collection and shall remain in full force and effect until the later to occur of (x) all
of the Obligations and other expenses guaranteed pursuant to Section 1 hereof have been paid in
full and (y) no further Loans are available under the Loan Documents; and (ii) shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded, avoided or rendered void as a preferential
transfer, impermissible set-off, fraudulent conveyance or must otherwise be returned or
disgorged by the Bank upon the insolvency, bankruptcy or reorganization of either the Borrower or
the Guarantor or otherwise, all as though such rescinded, avoided or voided payment had not been
made, and notwithstanding any action or failure to act on the part of the Bank in reliance on such
payment.
Section 3. Waivers. The Guarantor hereby waives (i) promptness and diligence; (ii)
notice of the incurrence of any Obligation by the Borrower; (iii) notice of any non-material
actions taken by the Bank or the Borrower under any Loan Document or any other agreement or
instrument relating thereto; (iv) acceptance of this Guaranty and reliance thereon by the Bank; (v)
presentment, demand of payment, notice of dishonor or nonpayment, protest and notice of protest
with respect to the Obligations, and all other formalities of every kind in connection with the
enforcement of the Obligations or of the obligations of the Guarantor hereunder or of any other
guarantor, the omission of or delay in which, but for the provisions of this Section 3, might
constitute grounds for relieving the Guarantor of its obligations hereunder; (vi) any requirement
that the Bank protect, secure, perfect or insure any security interest or lien or any property
constituting Collateral or exhaust any right or take any action against the Borrower, the
Guarantor, any other person or any Collateral; and (vii) notice of any election by the Bank to sell
any of the property constituting Collateral mortgaged, assigned or pledged as security for any of
the Obligations at a public or private sale. In general and without limitation, the Guarantor
waives all legal and equitable defenses, including all defenses based on suretyship and impairment
of collateral.
Section 4. Subrogation and Similar Rights. The
Guarantor will not exercise any rights
which it may acquire by way of subrogation, indemnification or contribution, by reason of any
payment made by it hereunder or otherwise, until after the date on which all of the Obligations
shall have been satisfied in full and until such time, any such rights against the Borrower shall
be fully subordinate in lien and payment to any claim which the Bank now or hereafter has against
the Borrower. If any amount shall be paid to the Guarantor on account of such subrogation,
indemnification or contribution at any time when all of the Obligations and all other expenses
guaranteed pursuant hereto shall not have been paid in full, such amount shall be held in trust for
the benefit of the Bank, shall be segregated from the other funds of the Guarantor and shall
forthwith be paid over to the Bank to be applied in whole or in part by the Bank against the
Obligations, whether matured or unmatured, in accordance with the terms of the Loan Agreement. If
the Guarantor shall make payment to the Bank of all or any portion of the Obligations and all of
the Obligations shall be paid in full, the Bank will, at the written request of the Guarantor,
execute and deliver to the Guarantor (without recourse, representation or warranty) appropriate
documents necessary to evidence the transfer by subrogation to the Guarantor of an interest in the
Obligations resulting from such payment by the Guarantor, such subrogation to be fully subject and
subordinate, however, to the Bank’s right to collect any other amounts which may be due to the Bank
by the Borrower.
3
Section 5. Representations and Warranties. The Guarantor hereby represents and
warrants as follows:
(a) The Guarantor (i) is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation as set forth on the first page
hereof; and (ii) has all requisite corporate power and authority to execute, deliver and
perform this Guaranty.
(b) The execution, delivery and performance by the Guarantor of this Guaranty are within its
corporate power, have been duly authorized by all necessary corporate action, do not and will not
contravene (x) any law or governmental regulation (y) its certificate of incorporation and by-laws
or (z) upon receipt of the consent of Xxxxx Fargo Bank, N.A., any contractual restriction binding
on or affecting the Guarantor or any of its property, and do not and will not result in or require
the creation of any lien, security interest or other charge or encumbrance upon or with respect to
any of its property.
(c) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or other regulatory body is required for the due execution, delivery and
performance by the Guarantor of this Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms.
(e) There is no action, suit, proceeding or investigation pending or, to its actual knowledge,
threatened against or otherwise affecting the Guarantor before any court, arbitrator or
governmental department, commission, board, bureau, agency or instrumentality which is likely to
materially and adversely affect the Guarantor’s ability to perform its obligations hereunder and
Guarantor is not in violation in any material respect of any applicable statute, rule, order or
regulation of any governmental body, the failure of compliance with which would materially and
adversely affect the Guarantor’s ability to perform its obligations hereunder.
(f) The Historical Financial Statements which have been furnished to the Bank and each
financial statement of the Guarantor that shall be furnished in the future to the Bank presents
fairly the financial position of Guarantor as at the date thereof and its results of operations for
the period covered thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis, and since such date, there has been no material adverse change in
Guarantor’s financial condition or results of operations except as disclosed to the Bank in writing
prior to the date hereof.
(g) Guarantor has relied upon Guarantor’s own due diligence in making an independent appraisal
of Borrower, Borrower’s business affairs and financial condition, and any collateral. Guarantor
has not relied upon and will not hereafter rely upon Bank for information regarding Borrower or any
collateral.
4
Section 6. Notices. Every notice and communication under this Guaranty shall be in
writing and shall be given by any of (i) hand-delivery, (ii) reliable overnight commercial courier
(charges prepaid), or (iii) telecopy or other means of electronic transmission, if confirmed
promptly by any of the methods specified in clauses (i) and (ii) of this sentence, to the following
addresses:
To the Guarantor as follows:
Pure Earth, Inc.
Xxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Chairman and CFO
Facsimile No. 000-000-0000
Xxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Chairman and CFO
Facsimile No. 000-000-0000
With a copy to:
Xxxx X. Xxxxxxxxx, Esquire
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile No. 000-000-0000
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile No. 000-000-0000
If to the Bank:
Susquehanna Xxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile No. 000-000-0000
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile No. 000-000-0000
With a copy to:
Xxxxxxxx Scatchard
0000 Xxxxxxxxx Xx., Xxxxx 000X
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No. 000-000-0000
0000 Xxxxxxxxx Xx., Xxxxx 000X
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No. 000-000-0000
Notice by hand delivery shall be deemed to have been given and received upon delivery. Notice by
overnight courier shall be deemed to have been given and received on the date scheduled for
delivery. Notice given by telecopy or other means of electronic transmission shall be deemed to
have been given and received when sent. A party may change its address by giving written notice to
the other party.
5
Section 7. Reports and Financial Information. The Guarantor shall furnish to the
Bank:
(a) Within one hundred twenty (120) calendar days after the end of each fiscal year of the
Guarantor, the annual financial statement of the Guarantor consisting of a balance sheet, statement
of income and retained earnings, statement of shareholders’ equity and statement of cash flows for
the fiscal year then ended, which shall present fairly the Guarantor’s financial position and the
results of its operations and cash flows during such year, prepared in conformity with generally
accepted accounting principles, on a basis consistent with that of the
preceding fiscal year, and shall be certified by the Guarantor to the effect that such
financial statements present fairly the Guarantor’s financial position at the close of such year
and the results of its operations and cash flows, in accordance with generally accepted accounting
principles. Guarantor may satisfy the foregoing requirements by delivering to the Bank within
thirty (30) days after the filing thereof with the Securities and Exchange Commission, a true and
correct copy of Guarantor’s Annual Report on Form 10-K.
(b) Within 10 business days after the delivery to the Internal Revenue Service of each
corporate federal income tax return for the Guarantor, a true and correct copy of each such return.
In the event that Guarantor files an extension of time for filing the tax return, a copy of the
request for extension shall be delivered to the Bank within thirty (30) days of the filing of the
extension request. In the event the extension is granted, the time within which the tax return is
to be delivered to the Bank by the Guarantor shall be extended accordingly.
(c) From time to time, such other information in the Guarantor’s possession or control as the
Bank may reasonably request.
Section 8. Financial Covenant.
At all times, the Guarantor shall, on a consolidated
basis, maintain a maximum Leverage Ratio of 4.0 to 1.0, measured annually at the end of each fiscal
year of Guarantor, commencing with the fiscal year ending on December 31, 2009, and December 31 of
each subsequent year. Leverage Ratio is defined as the Guarantor’s Total Liabilities divided by
Guarantor’s Total Net Worth plus non-cash adjustments to intangible assets, with all terms defined
under Generally Accepted Accounting Principles (“GAAP”). The Guarantor shall base its calculations
on its consolidated financial statements, as audited by a certified public accountant (“CPA”).
Section 9. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful money of the United States of
America and in same day immediately available funds to the Bank at its address as set forth in the
Loan Agreement.
(b) This Guaranty contains the entire agreement of the parties hereto with respect to the
subject matter hereof. No amendment of any provision of this Guaranty shall be effective unless it
is in writing and signed by the Guarantor and the Bank, and no waiver of any provision of this
Guaranty, and no waiver or consent to any departure by the Guarantor herefrom, shall be effective
unless it is in writing and signed by the Bank, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(c) No failure on the part of the Bank to exercise, and no delay in exercising, any right
hereunder or under any other Loan Document or any right against any other guarantor of the
Obligations shall operate as a waiver hereof or thereof; nor shall any single or partial exercise
of any right preclude any other or further exercise thereof or the exercise of any other right.
The rights and remedies of the Bank provided herein and in the other Loan Documents, and in any
instrument signed by any other guarantor of the Obligations are cumulative and are in addition to,
and not exclusive of, any rights or remedies provided by law. The rights of the Bank under any of the Loan Documents, under this Guaranty and under any
other guaranty of the Obligations against any party thereto are not conditional or contingent upon
any attempt by the Bank to exercise any of its rights under any other Loan Document, under this
Guaranty or under any other guaranty of the Obligations against any such party or against any other
person.
6
(d) Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability, and such prohibition or unenforceability shall not invalidate such provision to
the extent it is not prohibited or unenforceable in any other jurisdiction, nor invalidate the
remaining provisions hereof or thereof, all of which shall be liberally construed in favor of the
Bank in order to effect the provisions hereof.
(e) The obligations of the Guarantor hereunder shall not be subject to any counterclaim,
setoff, deduction or defense based upon any related or unrelated claim which the Guarantor may now
or hereafter have against the Borrower or the Bank, except payment of the Obligations.
(f) This Guaranty shall (i) be binding on the Guarantor and its successors and assigns, and
(ii) inure, together with all rights and remedies of the Bank hereunder, to the benefit of the Bank
and its successors, transferees and assigns. Without limiting the generality of the foregoing
clause (ii), the Bank may assign or otherwise transfer any Note held by it, and the Bank may assign
or otherwise transfer its rights under any other Loan Document or under any other guaranty of the
Obligations to any other person, and such other person shall thereupon become vested with all of
the benefits in respect thereof granted to the Bank, herein or otherwise. Notwithstanding the
foregoing clause (f)(i), none of the rights or obligations of the Guarantor hereunder may be
assigned or otherwise transferred without the prior written consent of the Bank.
(g) This Guaranty shall be governed by and construed and enforced in accordance with the
internal laws of the State of New Jersey without reference to conflicts or choice of law principles
thereof.
(h) The Guarantor agrees that any action or proceeding against the Guarantor to enforce, or
arising out of, this Guaranty may be commenced in state or federal court in any county in the State
of New Jersey in which the Bank has an office, or in any other location where the Guarantor or any
of its property is located, and the Guarantor waives personal service of process and agrees that a
summons and complaint commencing an action or proceeding in any such court shall be properly served
and shall confer personal jurisdiction if served by registered or certified mail in accordance with
Section 6 hereof.
(i) The paragraph headings used herein are for convenience only and do not affect or modify
the terms and conditions hereof.
7
Section 10. Judicial Proceedings. Each party to this Guaranty agrees that any suit,
action, or proceeding, whether claim or counterclaim, brought or instituted by the Guarantor or the
Bank, or any of their successors or assigns, on or with respect to this Guaranty or the dealings
of the Guarantor or the Bank with respect hereto, shall be tried only by a court and not by a
jury. THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE GUARANTOR
ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY AND
THAT THE BANK WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVERS SET FORTH IN THIS PARAGRAPH
WERE NOT A PART OF THIS GUARANTY.
Section 11. Indemnity. The Guarantor agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any, who controls the Bank (the
“Indemnified Party”) and to hold each Indemnified Party harmless from and against any and all
claims, damages, losses, liabilities and expenses (including all reasonable fees and charges of
internal or external counsel with whom any Indemnified Party may consult and all reasonable
expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may
be asserted against Indemnified Party as a result of the execution of or performance under this
Guaranty, provided, however, that the foregoing indemnity agreement shall not apply to claims,
damages, losses, liabilities and expenses to the extent attributable to an Indemnified Party’s
gross negligence or willful misconduct. The indemnity agreement contained in this Section shall
survive the termination of this Guaranty. The Guarantor may participate at its expense in the
defense of any such claim.
Section 12. Interpretation. In this Guaranty, unless the Bank and the Guarantor
otherwise agree in writing, the singular includes the plural and the plural the singular;
references to statutes are to be construed as including all statutory provisions consolidating,
amending or replacing the statute referred to; the word “or” shall be deemed to include “and/or,”
the words “including,” “includes” and “include” shall be deemed to be followed by the words
“without limitation”; and references to sections or exhibits are to those of this Guaranty unless
otherwise indicated. Section headings in this Guaranty are included for convenience of reference
only and shall not constitute a part of this Guaranty for any other purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8
GUARANTOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS GUARANTY
INCLUDING, WITHOUT LIMITATION, THE WAIVER OF JURY TRIAL CLAUSES AND HAS BEEN ADVISED BY COUNSEL AS
NECESSARY AND APPROPRIATE
IN WITNESS WHEREOF, the undersigned hereto, intending to create an instrument under seal, has
duly executed this Guaranty the day and year aforesaid and has affixed his/her/its respective seal
or has adopted as his/her/its own the seal typed next to its own respective signature with the
intent to be legally bound hereby as of the day and year first above written.
| GUARANTOR: | ||||||
| PURE EARTH, INC. | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxx | (SEAL) | ||||
| Chairman and Chief Financial Officer | ||||||
9
