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EXHIBIT 99.5
GUARANTY
THIS GUARANTY ("Guaranty"), dated as of this 31st day of December
1995, is made by Nytest Environmental Inc. (the "Guarantor"), a Delaware
corporation, having a principal place of business located at 00 Xxxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx, in favor of GTEL Environmental
Laboratories, Inc. ("GTEL"), a Delaware corporation having a principal place of
business located at Xxxxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000.
WHEREAS, the Guarantor is the parent corporation and sole shareholder
of NEI/GTEL Environmental Laboratories, Inc., a Delaware corporation ("Buyer");
WHEREAS, pursuant to an Asset and Business Purchase Agreement (the
"Purchase Agreement") dated December 28, 1995, by and among, the Buyer,
Groundwater Technology, Inc. and GTEL, Buyer issued to GTEL a convertible
promissory note of even date herewith in the original principal amount of
$1,254,000 (the "Note"); and
WHEREAS, it is a condition to the consummation of the transactions
contemplated under the Purchase Agreement that the Guarantor guarantee all of
the obligations of Buyer under the Note.
NOW, THEREFORE, in consideration of the foregoing and for other and
further consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor agrees as follows:
1. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees to GTEL the full and prompt payment of all amounts which
may be presently due and owing and all sums which shall in the future become
due and owing to GTEL (or its permitted endorsees, successors or assigns) under
the Note including, without limitation, the payment of principal, interest and
expenses thereunder (collectively, the "Guaranteed Obligations").
2. Authority. The Guarantor has determined that the execution
and delivery of this Guaranty is in its best interests, will create a direct
benefit to the Guarantor, is within its powers, and is in furtherance of its
business purposes and objectives. The execution of this Guaranty by the
undersigned person has been authorized by all necessary corporate action and
will not violate the Guarantor's charter or by-laws or any material agreement,
instrument, order, judgment or decree to which it is a party or by which it is
bound.
3. Guarantee of Payment. This Guaranty constitutes a guarantee
of payment, and not of collection. The liability of the Guarantor hereunder is
direct and unconditional, and may be enforced without requiring GTEL first to
resort to any other right, remedy or security. The Guarantor shall not have
any right of subrogation, contribution, reimbursement or indemnity whatsoever,
until all of the Guaranteed Obligations shall have been indefeasibly paid in
full.
4. No Impairment. This Guaranty shall not be released, impaired
or affected by any modification, extension, amendment, release or other
alteration of any of the Guaranteed
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Obligations or of any security therefor, nor by any agreements or arrangements
whatever with Buyer or any one else, and the liability of the Guarantor
hereunder shall apply to the Guaranteed Obligations as so altered, modified.
5. Primary Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor (including, without limitation, as a result of Buyer's
bankruptcy, reorganization or insolvency, or pursuant to any assignment for the
benefit of creditors, receivership, or similar proceeding under any law or with
respect to any party, or by any actions of a trustee in any said proceeding)
shall affect, impair or be a defense to this Guaranty, and this Guaranty shall
be a primary obligation of the Guarantor and nothing shall discharge or satisfy
the liability of the Guarantor hereunder except the full payment and
performance of the Guaranteed Obligations.
6. Termination of Guaranty. This Guaranty is a continuing
Guaranty which shall remain effective until the Guaranteed Obligations have
been satisfied in full.
7. Default. If the Guarantor should at any time become insolvent
or make a general assignment for the benefit of creditors, or if a petition in
bankruptcy or any insolvency or reorganization proceedings shall be filed or
commenced by, against (and not removed within 30 days) or in respect of the
Guarantor, or if the Guarantor should at any time liquidate, dissolve, wind up
its affairs or cease doing business, or contest, cancel or otherwise terminate
the obligations under this Guaranty, then and in any such event, any and all
obligations of the Guarantor (including the Guaranteed Obligations, whether or
not then due) shall, at the option of GTEL forthwith become due and payable
without notice or other action of any kind by GTEL or any other party.
8. Disgorgement of Payments. If any claim is ever made on GTEL
for repayment or recovery of any amount or amounts received by GTEL in payment,
or on account of any of the Guaranteed Obligations, and GTEL repays all or part
of such amount(s), the Guarantor shall be and remain liable hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by GTEL, notwithstanding any termination hereof or any
cancellation of any instrument evidencing the Guaranteed Obligations.
9. Waivers By Guarantor. The Guarantor hereby waives all rights
of notice or demand including, without limitation: notice of acceptance hereof
and notice of any liability to which it may apply; presentment, demand for
payment and protest of any instrument, and notice of dishonor or nonpayment;
notice of default or nonpayment by Buyer; and all other notices to which the
Guarantor may otherwise be entitled. In addition, the Guarantor waives all
suretyship defenses it may have, whether now or in the future. The Guarantor
also waives any right to seek contribution, indemnification, subrogation or
reimbursement from Buyer, until all of the Guaranteed Obligations have been
indefeasibly paid in full.
10. No Implied Waiver By GTEL. No act, omission or delay by GTEL
or course of dealing between GTEL and the Guarantor and/or Buyer shall
constitute a waiver of the rights
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and remedies of GTEL hereunder. No single or partial waiver by GTEL of any
right or remedy which it may have hereunder shall operate as a waiver of any
other right or remedy or of the same right or remedy on a future occasion. All
rights and remedies of GTEL hereunder shall be cumulative, and no such right or
remedy shall be exclusive of any other right or remedy.
11. Amendment. No waiver of any rights hereunder and no
modification or amendment of this Guaranty shall be effective unless the same
shall be in writing, duly signed on behalf of GTEL and each such waiver,
modification or amendment, if any, shall apply only with respect to the
specific instance involved, and shall in no way impair the rights of GTEL or
the obligations of the Guarantor to GTEL in any other respect or at any other
time.
12. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) sent by reputable overnight courier by next day, priority, or (iii) sent
by registered or certified mail, return receipt requested, postage prepaid.
If to GTEL Groundwater Technology, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
with copy to: Groundwater Technology, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
If to the Guarantor: Nytest Environmental Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: President
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
13. Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Guaranty shall be unreasonable or
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unenforceable in any respect, then such provision shall be deemed limited to
the extent that such court deems it reasonable and enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Guaranty shall nevertheless remain in full force
and effect.
14. Successors and Assigns. This Guaranty and all obligations
hereunder shall be binding upon the successors and permitted assigns of the
Guarantor and shall, together with the rights and remedies of GTEL hereunder,
inure to the benefit of GTEL and its permitted successors, endorsees and
assigns. The rights and obligations of the Guarantor under this Guaranty shall
not be assigned by the Guarantor and the rights and obligations of GTEL under
this Guaranty may only be assigned to a permitted Holder (as such term is
defined in the Note) of the Note.
15. Entire Agreement. This Guaranty embodies the entire agreement
and understanding between GTEL and the Guarantor with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant, agreement, course of dealing, course of
conduct, or course of performance of any kind not expressly set forth in this
Guaranty shall affect, or be used to interpret, change or restrict, the express
terms and provisions of this Guaranty.
16. Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
(without giving effect to its conflict of laws). Any legal action or
proceeding with respect to this Guaranty may be brought in the courts of the
Commonwealth of Massachusetts or of the United States of America for the
District of Massachusetts, and, by execution and delivery of this Agreement,
the Guarantor hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Guarantor hereby knowingly, voluntarily, intentionally and irrevocably waives,
in connection with any such action or proceeding: (i) any objection, including,
without limitation, any objection to the laying of venue or based on the
grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions, and
(ii) to the maximum extent not prohibited by law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Guaranty. The Guarantor irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Guarantor at the address set forth
above, or at such other address as the Guarantor may provide to GTEL from time
to time. Nothing herein shall affect the right of GTEL to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Guarantor in any other jurisdiction.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as a
sealed instrument as of the date first set forth above.
WITNESS: NYTEST ENVIRONMENTAL INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx Xxxx Xxxxxxx, President
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