GUARANTY AGREEMENT
Exhibit 10.7
THIS GUARANTY AGREEMENT (this
"Guaranty") is
made as of the 15th day of October, 2008 by J. XXXXX X'XXXXX, (individually
"Guarantor") in
favor of NL INDUSTRIES, INC., a New Jersey corporation (“NL
Industries”) and NL ENVIRONMENTAL MANAGEMENT SERVICES, INC. (“NLEMS” and,
collectively with NL Industries, “Lender”) and their
respective successors and assigns. Capitalized terms not otherwise
defined herein shall have the definitions ascribed to them in that certain
Reinstated and Amended Settlement Agreement and Release dated June 26, 2008
among Lender, Borrower, the Sayreville Economic and Redevelopment Agency
(“SERA”) and the County of Middlesex, New Jersey (the “County”), as amended by
that Amendment to Reinstated and Amended Settlement Agreement and Release dated
as of September 25, 2008 (as amended, the “Settlement Agreement and
Release”).
PRELIMINARY
STATEMENTS
(1) Sayreville
Seaport Associates, L.P., a Delaware limited partnership ("Borrower"), has
delivered a Mortgage Note (the “Note”) to Lender of
even date herewith in the original principal amount of $15,000,000.00 which Note
has been accepted by Lender as a credit against the Initial Payment (as defined
in the Settlement Agreement and Release).
(2) The
Note is or will be secured by a Leasehold Mortgage, Assignment, Security
Agreement and Fixture Filing dated of even date herewith executed by Borrower in
favor of Lender covering the Property as described in the Mortgage (such
mortgage, as it may hereafter be renewed, extended, supplemented, increased or
modified and in effect from time to time, and any other mortgage or other
document given in substitution therefor, or in modification, renewal, or
extension thereof, in whole or in part, are herein called the "Mortgage").
(3) A
condition precedent to Lender accepting the Note from Borrower at the Initial
Closing is Guarantor's execution and delivery to Lender of this
Guaranty.
STATEMENT OF
AGREEMENTS
For good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and as a material
inducement to Lender to accept the Note from Borrower, Guarantor hereby
guarantees to Lender and agrees to act as surety for the prompt and full payment
and performance of the indebtedness and obligations described below in this
Guaranty, this Guaranty being upon the following terms and
conditions:
Section
1 Payment
Obligations.
(a) Interest
Obligations. Guarantor hereby,
unconditionally and irrevocably guarantees to Lender the punctual payment when
due, whether by lapse of time, by acceleration of maturity, or otherwise, of all
interest (including any related fees, late charges and interest accruing at the
Past Due Rate and/or after the commencement of any bankruptcy or insolvency
proceeding by or against Borrower, whether or not allowed in such proceeding)
now or hereafter due and owing, or which Borrower is obligated to pay, pursuant
to the terms of the Note or the Mortgage.
(b) Amounts not included in
Prudential Obligations to Lender. Guarantor hereby,
unconditionally and irrevocably guarantees to Lender the payment of any and all
amounts due under and pursuant to the Note and which amounts are not included as
a part of the Loan Pay-Off Capital Contribution (as such term is defined in the
Multi-Party Agreement) payable to Lender by PICA (The Prudential Insurance
Company of America, Inc.) under and pursuant to the terms of that certain
Multi-Party Agreement of even date herewith by and among Mortgagor, Sayreville
Seaport Associates Acquisition Company, LLC, OPG Participation, LLC, J. Xxxxx
X’Xxxxx, Mortgagee, Sayreville PRISA II LLC and The Prudential Insurance Company
of America, an insurance company organized under the laws of the State of New
Jersey acting solely on behalf of, for the benefit of, and with its liability
limited to the assets of its insurance company separate account known as PRISA
II, except as expressly provided in Section 18 of the Multi-Party
Agreement.
The
liability and obligations under this Section 1 shall not
be limited or restricted by the existence of, or any terms of, the guaranty of
specific obligations under Section 2
below
Section
2 Guaranty of Specific
Obligations.
Guarantor
hereby unconditionally and irrevocably guarantees the payment of, and agrees to
protect, defend, indemnify and hold harmless Lender for, from and against, any
and all losses, damages or liability which may be suffered or incurred by,
imposed on or awarded against Lender as a result of:
(a) Fraud
by Borrower or Guarantor in connection with (i) the acquisition of the
Borrower's interest in the Property (as defined in the Mortgage) or the
management, leasing or operation thereof or (ii) the making or disbursement of
the Loan or any certificates or documents provided in connection
therewith;
(b) Material
misrepresentation or breach of warranty by Guarantor in connection with the
acquisition of Borrower's interest in the Property or the management, leasing or
operation thereof; (ii) the remediation and/or redevelopment Property or (iii)
the making or disbursement of the Loan or any certificates or documents provided
in connection therewith;
(c) Material
misrepresentation or breach of warranty by Borrower in connection with the
acquisition of Borrower's interest in the Property or the management, leasing or
operation thereof; (ii) the remediation and/or redevelopment of the Property or
(iii) the making or disbursement of the Loan or any certificates or documents
provided in connection therewith;
(d) After
the occurrence and during the continuance of a Default, distributions to the
members, partners or shareholders of Borrower or Guarantor (or to any
beneficiary or trustee if Borrower or Guarantor is a trust) of any Rents,
security deposits, or other income arising with respect to any property covered
by the Mortgage which should have been applied against costs and expenses
associated with such property or paid to Lender pursuant to the Note and the
Mortgage;
(e) The
misapplication by Borrower or Guarantor of any insurance proceeds or
condemnation awards attributable to any property covered by the Mortgage which,
under the terms thereof, should have been applied otherwise or paid to
Lender;
(f) Any
filing by Borrower or any general partner of Borrower of a bankruptcy petition,
or the making by Borrower or any general partner of Borrower of an assignment
for the benefit of creditors, or the appointment of a receiver of any property
of Borrower or any general partner of Borrower in any action initiated by, or
consented to by, Borrower or such general partner; or
(g) Any
acts of Borrower or Guarantor taken in bad faith with the intent to hinder,
delay or interfere with the exercise by Lender of any rights and remedies under
the Note or the Mortgage after the occurrence of and during the continuance of a
Default.
The
obligations guaranteed under Section 1 and this
Section 2 are
collectively referred to herein as the "Guaranteed
Obligations". In addition to the Guaranteed Obligations,
Guarantor hereby agrees to pay to Lender all costs and expenses incurred by
Lender in seeking to enforce Lender's rights and remedies with respect to such
Guarantee Obligations or any of them, including, without limitation, court
costs, costs of alternative dispute resolution and reasonable attorneys' fees,
whether or not suit is filed or other proceedings are initiated
thereon. The guaranty of Guarantor as set forth in Section 1 and this Section 2 is a
continuing guaranty of payment and not a guaranty of collection.
Notwithstanding
anything set forth in this Section 2, the terms
of this Section 2 shall in no way amend, modify or waive any rights or
obligations of Borrower or Lender under the Settlement Agreement and
Release.
Section
3 Primary Liability of
Guarantor.
(a) This
Guaranty is an absolute, irrevocable and unconditional guaranty of payment and
performance, and Guarantor shall be liable for the payment and performance of
the Guaranteed Obligations as a primary obligor. This Guaranty shall
be effective as a waiver of, and Guarantor hereby expressly waives, any right to
which Guarantor may otherwise have been entitled, whether existing under
statute, at Law or in equity, to require Lender to take prior recourse or
proceedings against any collateral, security or person. It shall not
be necessary for Lender, in order to enforce such payment or performance by
Guarantor, first to institute suit or pursue or exhaust any rights or remedies
against Borrower or other person liable on such indebtedness or for such
performance, or to enforce any rights against any security given to secure such
indebtedness or performance, or to join Borrower or any other person liable for
the payment or performance of the Guaranteed Obligations or any part thereof in
any action to enforce this Guaranty, or to resort to any other means of
obtaining payment or performance of the Guaranteed Obligations; provided,
however, that nothing herein contained shall prevent Lender from suing on the
Note or foreclosing the Mortgage.
(b) It
shall not be necessary for Lender, in order to enforce such payment or
performance by Guarantor, first to institute suit or pursue or exhaust any
rights or remedies against Borrower or other person liable on such indebtedness
or for such performance, or to enforce any rights against any security given to
secure such indebtedness or performance, or to join Borrower or any other Person
liable for the payment or performance of the Guaranteed Obligations or any part
thereof in any action to enforce this Guaranty, or to resort to any other means
of obtaining payment or performance of the Guaranteed Obligations; provided,
however, that nothing herein contained shall prevent Lender from suing on the
Note or foreclosing the Mortgage and if such foreclosure or other remedy is
availed of, only the net proceeds therefrom, after deduction of all charges and
expenses of every kind and nature whatsoever, shall be applied in reduction of
the amount due on the Note and the Mortgage, and Lender shall not be required to
institute or prosecute proceedings to recover any deficiency as a condition of
payment hereunder or enforcement hereof. At any sale of Borrower's
interest in the Property or other collateral given for the indebtedness due
under the Note (the “Indebtedness”) or any
part thereof, whether by foreclosure or otherwise, Lender may at its discretion
purchase all or any part of Borrower's interest in the Property or collateral so
sold or offered for sale for its own account and may, in payment of the amount
bid therefor, deduct such amount from the balance due it pursuant to the terms
of the Note.
(c) Suit may
be brought or demand may be made against Borrower or against any or all parties
who have signed this Guaranty or any other guaranty covering all or any part of
the Guaranteed Obligations, or against any one or more of them, separately or
together, without impairing the rights of Lender against any party hereto. Any
time that Lender is entitled to exercise its rights or remedies hereunder, it
may in its discretion elect to demand payment and/or performance. If
Lender elects to demand performance, it shall at all times thereafter have the
right to demand payment until all of the Guaranteed Obligations have been paid
and performed in full. If Lender elects to demand payment, it shall
at all times thereafter have the right to demand performance until all of the
Guaranteed Obligations have been paid and performed in full.
Section
4. Certain Agreements and
Waivers by Guarantor.
(a) Guarantor
agrees that neither Lender’s rights or remedies nor Guarantor’s obligations
under the terms of this Guaranty shall be released, diminished, impaired,
reduced or affected by any one or more of the following events, actions, facts,
or circumstances, and the liability of Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
i. any limitation on the liability of, or
recourse against, any other person in the Note or the Mortgage or arising under
any Law;
ii. any claim or defense that this Guaranty
was made without consideration or is not supported by adequate consideration or
that the obligations of Guarantor hereunder exceed or are more burdensome than
those of Borrower under the Note or the Mortgage;
iii. the taking or accepting of any other
security or guaranty for, or right of recourse with respect to, any or all of
the Guaranteed Obligations;
iv. the operation of any statutes of
limitation or other laws regarding the limitation of actions, all of which are
hereby waived as a defense to any action or proceeding brought by Lender against
Guarantor, to the fullest extent permitted by Law;
v. any homestead exemption or any other
exemption under applicable law;
vi. any release, surrender, abandonment,
exchange, alteration, sale or other disposition, subordination, deterioration,
waste, failure to protect or preserve, impairment, or loss of, or any failure to
create or perfect any lien or security interest with respect to, or any other
dealings with, any collateral or security at any time existing or purported,
believed or expected to exist in connection with any or all of the Guaranteed
Obligations, or any impairment of Guarantor’s recourse against any person or
collateral;
vii. whether express or by operation of law,
any partial release of the liability of Guarantor hereunder (except to the
extent expressly so released) or any complete or partial release of Borrower or
any other person liable, directly or indirectly, for the payment or performance
of any or all of the Guaranteed Obligations;
viii. the death, insolvency, bankruptcy,
disability, dissolution, liquidation, termination, receivership, reorganization,
merger, consolidation, change of form, structure or ownership, sale of all
assets, or lack of corporate, partnership or other power of Borrower or any
other person at any time liable for the payment or performance of any or all of
the Guaranteed Obligations;
ix. either with or without notice to or
consent of Guarantor, any renewal, extension, modification, supplement,
subordination or rearrangement of the terms of any or all of the Guaranteed
Obligations and/or the Note or the Mortgage, including without limitation,
material alterations of the terms of payment (including changes in maturity
date(s) and interest rate(s)) or performance or any other terms thereof, or any
waiver, termination, or release of, or consent to departure from, the Note or
the Mortgage or any other guaranty of any or all of the Guaranteed Obligations,
or any adjustment, indulgence, forbearance, or compromise that may be granted
from time to time by Lender to Borrower or any other person at any time liable
for the payment or performance of any or all of the Guaranteed
Obligations;
x. any neglect, lack of diligence, delay,
omission, failure, or refusal of Lender to take or prosecute (or in taking or
prosecuting) any action for the collection or enforcement of any of the
Guaranteed Obligations, or to foreclose or take or prosecute any action to
foreclose (or in foreclosing or taking or prosecuting any action to foreclose)
upon any security therefor, or to exercise (or in exercising) any other right or
power with respect to any security therefor, or to take or prosecute (or in
taking or prosecuting) any action in connection with the Note or the Mortgage,
or any failure to sell or otherwise dispose of in a commercially reasonable
manner any collateral securing any or all of the Guaranteed
Obligations;
xi. any failure of Lender to notify
Guarantor of any creation, renewal, extension, rearrangement, modification,
supplement, subordination, or assignment of the Guaranteed Obligations or any
part thereof, or of the Note or Mortgage, or of any release of or change in any
security, or of the occurrence or existence of any default, or of any other
action taken or refrained from being taken by Lender against Borrower or any
security or other recourse, or of any new agreement between Lender and Borrower,
it being understood that Lender shall not be required to give Guarantor any
notice of any kind under any circumstances with respect to or in connection with
the Guaranteed Obligations, any and all rights to notice Guarantor may have
otherwise had being hereby waived by Guarantor, and Guarantor shall be
responsible for obtaining for itself information regarding Borrower, including,
but not limited to, any changes in the business or financial condition of
Borrower, and Guarantor acknowledges and agrees that Lender shall have no duty
to notify Guarantor of any information which Lender may have concerning
Borrower;
xii. if for any reason Lender is required to
refund any payment by Borrower to any other party liable for the payment or
performance of any or all of the Guaranteed Obligations or pay the amount
thereof to someone else;
xiii. the making of advances by Lender to
protect its interest in the collateral for the Indebtedness, preserve the value
of such collateral or for the purpose of performing any term or covenant
contained in the Note or the Mortgage;
xiv. the existence of any claim,
counterclaim, set-off or other right that Guarantor may at any time have against
Borrower, Lender, or any other person, whether or not arising in connection with
this Guaranty, the Note or the Mortgage;
xv. the unenforceability of all or any part
of the Guaranteed Obligations against Borrower, whether because the Guaranteed
Obligations exceed the amount permitted by Law or violate any usury law, or
because the act of creating the Guaranteed Obligations, or any part thereof, is
ultra xxxxx, or
because the officers or persons creating the Guaranteed Obligations acted in
excess of their authority, or because of a lack of validity or enforceability of
or defect or deficiency in any of the Loan Documents, or because Borrower has
any valid defense, claim or offset with respect thereto, or because Borrower’s
obligation ceases to exist by operation of law, or because of any other reason
or circumstance, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other person be found not liable on the
Guaranteed Obligations, or any part thereof, for any reason (and regardless of
any joinder of Borrower or any other party in any action to obtain payment or
performance of any or all of the Guaranteed Obligations);
xvi. any order, ruling or plan of
reorganization emanating from proceedings under Title 11 of the United States
Code with respect to Borrower or any other Person, including any extension,
reduction, composition, or other alteration of the Guaranteed Obligations,
whether or not consented to by Lender, or any action taken or omitted by Lender
in any such proceedings, including any election to have Lender’s claim allowed
as being secured, partially secured or unsecured, any extension of credit by
Lender in any such proceedings or the taking and holding by Lender of any
security for any such extension of credit;
xvii. any other condition, event, omission,
action or inaction that would in the absence of this paragraph result in the
release or discharge of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty or any other
agreement;
xviii. any early termination of any of the
Guaranteed Obligations; or
xix. Lender’s enforcement or forbearance
from enforcement of the Guaranteed Obligations on a net or gross
basis.
(b) In
the event any payment by Borrower or any other Person to Lender is held to
constitute a preference, fraudulent transfer or other voidable payment under any
bankruptcy, insolvency or similar Law, or if for any other reason Lender is
required to refund such payment or pay the amount thereof to any other party,
such payment by Borrower or any other party to Lender shall not constitute a
release of Guarantor from any liability hereunder, and this Guaranty shall
continue to be effective or shall be reinstated (notwithstanding any prior
release, surrender or discharge by Lender of this Guaranty or of Guarantor), as
the case may be, with respect to, and this Guaranty shall apply to, any and all
amounts so refunded by Lender or paid by Lender to another person (which amounts
shall constitute part of the Guaranteed Obligations), and any interest paid by
Lender and any reasonable attorneys’ fees, costs and expenses paid or incurred
by Lender in connection with any such event.
(c) It
is the intent of Guarantor and Lender that the obligations and liabilities of
Guarantor hereunder are absolute, irrevocable and unconditional under any and
all circumstances and that until the Guaranteed Obligations are fully and
finally paid and performed, and not subject to refund or disgorgement, the
obligations and liabilities of Guarantor hereunder shall not be discharged or
released, in whole or in part, by any act or occurrence that might, but for the
provisions of this Guaranty, be deemed a legal or equitable discharge or release
of a guarantor.
(d) Guarantor’s
obligations shall not be affected, impaired, lessened or released by loans,
credits or other financial accommodations now existing or hereafter advanced by
Lender to Borrower in excess of the Guaranteed Obligations. All
payments, repayments and prepayments of the Indebtedness, whether voluntary or
involuntary, received by Lender from Borrower, any other person or any other
source (other than from Guarantor pursuant to a demand by Lender hereunder), and
any amounts realized from any collateral for the Loan, shall be deemed to be
applied first to any portion of the Note which is not covered by this Guaranty,
and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor
to the extent of any Guaranteed Obligations that may remain owing to
Lender. Lender shall have the right to apply any sums paid by
Guarantor to any portion of the Note in Lender’s sole and absolute
discretion.
(e) If
acceleration of the time for payment of any amount payable by Borrower under the
Note, the Mortgage is stayed or delayed by any Law or tribunal, all such amounts
shall nonetheless be payable by Guarantor on demand by Lender.
Section
5 Subordination.
If, for
any reason whatsoever, Borrower is now or hereafter becomes indebted to
Guarantor:
(a) such
indebtedness and all interest thereon and all liens, security interests and
rights now or hereafter existing with respect to property of Borrower securing
such indebtedness shall, at all times, be subordinate in all respects to the
Guaranteed Obligations and to all liens, security interests and rights now or
hereafter existing to secure the Guaranteed Obligations;
(b) Guarantor
shall not be entitled to enforce or receive payment, directly or indirectly, of
any such indebtedness of Borrower to Guarantor until the Guaranteed Obligations
have been fully and finally paid and performed; provided, however, that so long
as no default shall have occurred and be continuing, Guarantor shall not be
prohibited from receiving such (i) reasonable management fees or reasonable
salary from Borrower as Lender may find acceptable from time to time in its sole
and absolute discretion, and (ii) distributions from Borrower in an amount equal
to any income taxes imposed on Guarantor which are attributable to Borrower’s
income from the Property;
(c) Guarantor
hereby assigns and grants to Lender a security interest in all such indebtedness
and security therefor, if any, of Borrower to Guarantor now existing or
hereafter arising, including any dividends and payments pursuant to debtor
relief or insolvency proceedings referred to below. In the event of
receivership, bankruptcy, reorganization, arrangement or other debtor relief or
insolvency proceedings involving Borrower as debtor, Lender on behalf of itself
and each and every other Lender shall have the right to prove its claim in any
such proceeding so as to establish its rights hereunder and shall have the right
to receive directly from the receiver, trustee or other custodian (whether or
not a default shall have occurred or be continuing under the Note or the
Mortgage), dividends and payments that are payable upon any obligation of
Borrower to Guarantor now existing or hereafter arising, and to have all
benefits of any security therefor, until the Guaranteed Obligations have been
fully and finally paid and performed. If, notwithstanding the
foregoing provisions, Guarantor should receive any payment, claim or
distribution that is prohibited as provided above in this Section 4, Guarantor
shall pay the same to Lender immediately, Guarantor hereby agreeing that it
shall receive the payment, claim or distribution in trust for Lender and shall
have absolutely no dominion over the same except to pay it immediately to
Lender; and
(d) Guarantor
shall promptly upon request of Lender from time to time execute such documents
and perform such acts as Lender may require to evidence and perfect its interest
and to permit or facilitate exercise of its rights under this Section 5, including,
but not limited to, execution and delivery of proofs of claim, further
assignments and security agreements, and delivery to Lender of any promissory
notes or other instruments evidencing indebtedness of Borrower to
Guarantor. All promissory notes, accounts receivable ledgers or other
evidences, now or hereafter held by Guarantor, of obligations of Borrower to
Guarantor shall contain a specific written notice thereon that the indebtedness
evidenced thereby is subordinated under and is subject to the terms of this
Guaranty.
Section
6 Other Liability of Guarantor
or Borrower.
If
Guarantor is or becomes liable, by endorsement or otherwise, for any
indebtedness owing by Borrower to Lender other than under this Guaranty, such
liability shall not be in any manner impaired or affected hereby, and the rights
of Lender hereunder shall be cumulative of any and all other rights that Lender
may have against Guarantor. If Borrower is or becomes indebted to
Lender for any indebtedness other than or in excess of the Indebtedness for
which Guarantor is liable under this Guaranty, any payment received or recovery
realized upon such other indebtedness of Borrower to Lender may be applied to
such other indebtedness. This Guaranty is independent of (and shall
not be limited by) any other guaranty now existing or hereafter
given. Further, Guarantor’s liability under this Guaranty is in
addition to any and all other liability Guarantor may have in any other
capacity, including without limitation, if applicable, its capacity as a general
partner.
Section
7 Lender
Assigns.
This
Guaranty is for the benefit of Lender and Lender’s successors and assigns, and
in the event of an assignment of the Guaranteed Obligations, or any part
thereof, the rights and benefits hereunder, to the extent applicable to the
Guaranteed Obligations so assigned, may be transferred with such Guaranteed
Obligations. Guarantor waives notice of any transfer or assignment of
the Guaranteed Obligations or any part thereof and agrees that failure to give
notice of any such transfer or assignment will not affect the liabilities of
Guarantor hereunder. Lender may sell or offer to sell the Loan or
interests therein to one or more assignees or participants. Guarantor
shall execute, acknowledge and deliver any and all instruments reasonably
requested by Lender in connection therewith, and to the extent, if any,
specified in any such assignment or participation, such assignee(s) or
participant(s) shall have the same rights and benefits with respect to the Note
and the Mortgage as such person(s) would have if such person(s) were Lender
hereunder.
Section
8 Binding Effect; Joint and
Several Liability.
This
Guaranty is binding not only on Guarantor, but also on Guarantor’s heirs,
personal representatives, successors and assigns. Upon the death of
Guarantor, if Guarantor is a natural person, this Guaranty shall continue
against Guarantor’s estate as to all of the Guaranteed Obligations, including
that portion incurred or arising after the death of Guarantor and shall be
provable in full against Guarantor’s estate, whether or not the Guaranteed
Obligations are then due and payable. If this Guaranty is signed by
more than one Person, then all of the obligations of Guarantor arising hereunder
shall be jointly and severally binding on each of the undersigned, and their
respective heirs, personal representatives, successors and assigns, and the term
"Guarantor"
shall mean all of such Persons and each of them individually.
Section
9 Governing Law; Forum;
Consent to Jurisdiction.
The
validity, enforcement, and interpretation of this Guaranty, shall for all
purposes be governed by and construed in accordance with the laws of the State
of New Jersey and applicable United States federal law, and is intended to be
performed in accordance with, and only to the extent permitted by, such
laws. All obligations of Guarantor hereunder are payable and
performable at the place or places where the Guaranteed Obligations are payable
and performable. Guarantor hereby irrevocably submits generally and
unconditionally for Guarantor and in respect of Guarantor’s property to the
non-exclusive jurisdiction of any state court, or any United States federal
court, sitting in the State of New Jersey, over any suit, action or proceeding
arising out of or relating to this Guaranty or the Guaranteed
Obligations. Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, any objection that Guarantor may now or hereafter have
to the laying of venue in any such court and any claim that any such court is an
inconvenient forum. Final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon
Guarantor and may be enforced in any court in which Guarantor is subject to
jurisdiction. Guarantor hereby agrees and consents that, in addition
to any methods of service of process provided for under applicable law, all
service of process in any such suit, action or proceeding in any state court, or
any United States federal court, sitting in the state specified in the first
sentence of this Section may be made by certified or registered mail, return
receipt requested, directed to Guarantor at the address set forth at the end of
this Guaranty, or at a subsequent address of which Lender receives actual notice
from Guarantor in accordance with the notice provisions hereof, and service so
made shall be complete five (5) days after the same shall have been so
mailed. Nothing hereon shall affect the right of Lender to serve
process in any manner permitted by law or limit the right of Lender to bring
proceedings against Guarantor in any other court or
jurisdiction. Guarantor hereby releases, to the extent permitted by
applicable law, all errors and all rights of exemption, appeal, stay of
execution, inquisition, and other rights to which Guarantor may otherwise be
entitled under the laws of the United States of America or any State or
possession of the United States of America now in force or which may hereinafter
be enacted. The authority and power to appear for and enter judgment
against the Guarantor shall not be exhausted by one or more exercises thereof or
by any imperfect exercise thereof and shall not be extinguished by any judgment
entered pursuant thereto. Such authority may be exercised on one or more
occasions or from time to time in the same or different jurisdiction as often as
the Lender shall deem necessary and desirable.
Section
10 Invalidity of Certain
Provisions.
If any
provision of this Guaranty or the application thereof to any person or
circumstance shall, for any reason and to any extent, be declared to be invalid
or unenforceable, neither the remaining provisions of this Guaranty nor the
application of such provision to any other person or circumstance shall be
affected thereby, and the remaining provisions of this Guaranty, or the
applicability of such provision to other persons or circumstances, as
applicable, shall remain in effect and be enforceable to the maximum extent
permitted by applicable law.
Section
11 Costs and Expenses of
Enforcement.
Guarantor
agrees to pay to Lender on demand all costs and expenses incurred by Lender in
seeking to enforce Lender’s rights and remedies under this Guaranty, including,
without limitation, court costs, costs of alternative dispute resolution and
reasonable attorneys’ fees, whether or not suit is filed or other proceedings
are initiated hereon. All such costs and expenses incurred by Lender
shall constitute a portion of the Guaranteed Obligations hereunder, shall be
subject to the provisions hereof with respect to the Guaranteed Obligations and
shall be payable by Guarantor on demand by Lender.
Section
12 No
Usury.
It is not
the intention of Lender or Guarantor to obligate Guarantor to pay interest in
excess of that lawfully permitted to be paid by Guarantor under applicable
law. Should it be determined that any portion of the Guaranteed
Obligations or any other amount payable by Guarantor under this Guaranty
constitutes interest in excess of the maximum amount of interest that Guarantor,
in Guarantor’s capacity as guarantor, may lawfully be required to pay under
applicable law, the obligation of Guarantor to pay such interest shall
automatically be limited to the payment thereof in the maximum amount so
permitted under applicable law. The provisions of this Section shall
override and control all other provisions of this Guaranty and of any other
agreement between Guarantor and Lender.
Section
13 Representations, Warranties,
and Covenants of Guarantor.
Guarantor
hereby represents, warrants, and covenants that (a) Guarantor has a financial
interest in Borrower and will derive a material and substantial benefit,
directly or indirectly, from Lender accepting the Note from Borrower and from
the making of this Guaranty by Guarantor; (b) this Guaranty is duly authorized
and valid, and is binding upon and enforceable against Guarantor; (c) Guarantor
is not, and the execution, delivery and performance by Guarantor of this
Guaranty will not cause Guarantor to be, in violation of or in default with
respect to any law or in default (or at risk of acceleration of indebtedness)
under any agreement or restriction by which Guarantor is bound or affected; (d)
Guarantor has full power and authority to enter into and perform this Guaranty;
(e) Guarantor will indemnify the Lender from any loss, cost or expense actually
incurred as a result of any representation or warranty of the Guarantor being
false, incorrect, incomplete or misleading in any material respect; (f) after
giving effect to this Guaranty, Guarantor is solvent, and does not intend to
incur or believe that he will incur debts that will be beyond his ability to pay
as such debts mature; (g) Lender has no duty at any time to investigate or
inform Guarantor of the financial or business condition or affairs of Borrower
or any change therein, and Guarantor will keep fully appraised
of Borrower's financial and business condition; (h) Guarantor
acknowledges and agrees that Guarantor may be required to pay and perform the
Guaranteed Obligations in full without assistance or support from the Borrower
or any other person; (i) Guarantor has read and fully understands the provisions
contained in the Note and the Mortgage. Guarantor shall immediately
notify Lender of the occurrence of any material adverse change in the financial
condition of Guarantor. Guarantor's representations, warranties and
covenants are a material inducement to Lender to accept the Note from Borrower
and shall survive the execution hereof and any bankruptcy, foreclosure, transfer
of security or other event affecting Borrower, Guarantor, any other party, or
any security for all or any part of the Guaranteed Obligations.
Guarantor’s representations, warranties
and covenants are a material inducement to Lender to accept the Note from
Borrower and shall survive the execution hereof and any bankruptcy, foreclosure,
transfer of security or other event affecting Borrower, Guarantor, any other
party, or any security for all or any part of the Guaranteed
Obligations.
Section
14 Notices.
All
notices, requests, consents, demands and other communications required or which
any party desires to give hereunder or under the Note and the Mortgage shall be
in writing and, unless otherwise specifically provided in the Note or the
Mortgage, shall be deemed sufficiently given or furnished if delivered by
personal delivery, by nationally recognized overnight courier service, or by
certified United States mail, postage prepaid, addressed to the party to whom
directed at the addresses specified in this Guaranty unless changed by similar
notice in writing given by the particular party whose address is to be changed)
or by facsimile (with a confirmatory duplicate copy sent by first class United
States mail). Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
courier or mail, as of the date of first attempted delivery at the address and
in the manner provided herein, or, in the case of facsimile, upon receipt;
provided that service of a notice required by any applicable statute shall be
considered complete when the requirements of that statute are
met. Notwithstanding the foregoing, no notice of change of address
shall be effective except upon actual receipt. This Section shall not
be construed in any way to affect or impair any waiver of notice or demand
provided in this Guaranty or in the Note or the Mortgage or to require giving of
notice or demand to or upon any person in any situation or for any
reason.
Section
15 Cumulative
Rights.
All of
the rights and remedies of Lender under this Guaranty and the Note and the
Mortgage are cumulative of each other and of any and all other rights at law or
in equity, and the exercise by Lender of any one or more of such rights and
remedies shall not preclude the simultaneous or later exercise by Lender of any
or all such other rights and remedies. No single or partial exercise
of any right or remedy shall exhaust it or preclude any other or further
exercise thereof, and every right and remedy may be exercised at any time and
from time to time. No failure by Lender to exercise, nor delay in
exercising, any right or remedy shall operate as a waiver of such right or
remedy or as a waiver of any default. No notice to or demand on
Guarantor in any case shall of itself entitle Guarantor to any other or further
notice or demand in similar or other circumstances. No provision of
this Guaranty or any right or remedy of Lender with respect hereto, or any
default or breach, can be waived, nor can this Guaranty or Guarantor be released
or discharged in any way or to any extent, except specifically in each case by a
writing intended for that purpose (and which refers specifically to this
Guaranty) executed and delivered by Lender to Guarantor.
Section
16 Term of
Guaranty.
This
Guaranty shall continue in effect until all the Guaranteed Obligations and all
of the obligations of Guarantor to Lender under this Guaranty are fully and
finally paid, performed and discharged and are not subject to any bankruptcy
preference period or any other disgorgement.
Section
17 Subrogation.
Guarantor
shall not have any right of subrogation under any of the Loan Documents or any
right to participate in any security for the Guaranteed Obligations or any right
to reimbursement, exoneration, contribution, indemnification or any similar
rights, until the Guaranteed Obligations have been fully and finally paid,
performed and discharged in accordance with Section 16 above, and
Guarantor hereby waives all of such rights.
Section
18 Time of
Essence.
Time
shall be of the essence in this Guaranty with respect to all of Guarantor’s
obligations hereunder.
Section
19 Entire Agreement;
Counterparts; Construction.
This
Guaranty embodies the entire agreement between Lender and Guarantor with respect
to the guaranty by Guarantor of the Guaranteed Obligations. This
Guaranty supersedes all prior agreements and understandings, if any, with
respect to the guaranty by Guarantor of the Guaranteed
Obligations. This Guaranty shall be effective upon execution by
Guarantor and delivery to Lender. This Guaranty may not be modified,
amended or superseded except in a writing signed by Lender and Guarantor
referencing this Guaranty by its date and specifically identifying the portions
hereof that are to be modified, amended or superseded. This Guaranty
has been executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute, collectively,
one agreement. As used herein, the words "include" and "including"
shall be interpreted as if followed by the words "without
limitation."
Section
20 Forum.
Guarantor
hereby irrevocably submits generally and unconditionally for itself and in
respect of its property to the jurisdiction of any state court or any United
States federal court sitting in the State specified in the governing law section
of this Guaranty and to the jurisdiction of any state court or any United States
federal court sitting in the state in which any of the Property is located, over
any dispute. Guarantor hereby irrevocably waives, to the fullest
extent permitted by Law, any objection that Guarantor may now or hereafter have
to the laying of venue in any such court and any claim that any such court is an
inconvenient forum. Guarantor hereby agrees and consents that, in
addition to any methods of service of process provided for under applicable law,
all service of process in any such suit, action or proceeding in any state court
or any United States federal court sitting in the state specified in the
governing law section of this Guaranty may be made by certified or registered
mail, return receipt requested, directed to Guarantor at its address for notice
set forth in this Guaranty, or at a subsequent address of which Lender received
actual notice from Guarantor in accordance with the notice section of this
Guaranty, and service so made shall be complete five (5) days after the same
shall have been so mailed. Nothing herein shall affect the right of
Lender to serve process in any manner permitted by law or limit the right of
Lender to bring proceedings against Guarantor in any other court or
jurisdiction. Guarantor hereby releases, to the extent permitted by
applicable law, all errors and all rights of exemption, appeal, stay of
execution, inquisition, and other rights to which Guarantor may otherwise be
entitled under the laws of the United States of America or of any state of
possession of the United States of America now in force and which may
hereinafter be enacted. The authority and power to appear for and
enter judgment against Guarantor shall not be exhausted by one or more exercises
thereof or by any imperfect exercise thereof and shall not be extinguished by
any judgment entered pursuant thereto. Such authority may be
exercised on one or more occasions or from time to time in the same or different
jurisdiction as often as Lender shall deem necessary and desirable, for all of
which this Guaranty shall be sufficient warrant.
Section
21 WAIVER OF JURY
TRIAL.
IT
IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY
OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING
CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY. THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND LENDER, AND
GUARANTOR AND LENDER HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION
HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE NOTE AND
MORTGAGE. GUARANTOR AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A
COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF
JURY TRIAL. GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS
BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
THE
NOTE AND MORTGAGE REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
SIGNATURE
OF GUARANTOR ON FOLLOWING PAGE
IN
WITNESS WHEREOF, Guarantor duly executed this Guaranty under seal as of the date
first written above.
GUARANTOR:
The
address of Guarantor is:
000 Xxxxx
Xxxx
Xxxxxxxxx,
Xxxxxxxxxxxx 00000 ____________________________________(SEAL)
Fax No.
(000)
000-0000
J. Xxxxx X'Xxxxx
With a
copy to:
Xxxxxxxxx,
Xxxxxxxx & Xxxxxxxx, LLC
0000
Xxxxxxxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxx xx
Xxxxxxx, XX 00000
Attn: Xxxx
X. Xxxxxxxx, Esq.
Fax
No: (000) 000-0000
Address
of Lender:
NL
Environmental Management Services, Inc.
NL
Industries, Inc.
0000 XXX
Xxxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention: General
Counsel
with a
copy to:
Xxxxxxxxxxx
X. Xxxxxx, Esq.
Xxxxxx
& Xxxxxxx, P.C.
Xxx
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
COMMONWEALTH
OF PENNSYLVANIA, COUNTY OF ______________, TO WIT:
I HEREBY
CERTIFY, that on this ______ day of ______________, 2008, before me, the
undersigned Notary Public of said State, personally appeared J. Xxxxx X'Xxxxx,
known to me (or satisfactorily proven) to be the person whose name is subscribed
to the within instrument, and acknowledged that he executed the same for the
purposes therein contained.
WITNESS
my hand and Notarial Seal.
_______________________________________________
Notary
Public
My
Commission Expires:
