SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-1)
ENVIRONMENTAL MONITORING & TESTING CORPORATION
(Name of Issuer)
Common Stock, $.01 Par Value
(Title of Class of Securities)
294062 10 4
(CUSIP Number)
Dennis Jacoby, 412 Capri I, Delray Beach, Florida 33484, (561) 638-7338
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 3, 1999
(Date of Event Which Requires Filing of This Statement)
<PAGE>
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box.
1 NAMES OF REPORTING PERSONS
IRS IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Dennis Jacoby
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) X
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS
SC, AF, PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
7 SOLE VOTING POWER Vincent A. Ferri: 0 0%
Martin Jacoby: 0 0%
Dennis Jacoby: 0 0%
Juleen Pump: 0 0%
WFD Partnership: 1,900,000 49.9%
8 SHARED VOTING POWER Vincent A. Ferri: 280,000 7.3%
Martin Jacoby: 160,000 4.2%
Dennis Jacoby: 280,000 7.3%
Juleen Pump: 280,000 7.3%
WFD Partnership: 1,900,000 49.9%
9 SOLE DISPOSITIVE POWER Vincent A. Ferri: 0 0%
Martin Jacoby: 0 0%
Dennis Jacoby: 0 0%
Juleen Pump: 0 0%
WFD Partnership: 1,900,000 49.9%
10 SHARED DISPOSITIVE POWER Vincent A. Ferri: 280,000 7.3%
Martin Jacoby: 160,000 4.2%
Dennis Jacoby: 280,000 7.3%
Juleen Pump: 280,000 7.3%
WFD Partnership: 1,900,000 49.9%
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Dennis Jacoby: 1,900,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Dennis Jacoby: 49.9%
14 TYPE OF REPORTING PERSON
IN
Item 1. Security and Issuer.
This Statement relates to shares of common stock, par value $.01, of
Environmental Monitoring & Testing Corporation, a Delaware corporation (the
"Issuer"), whose principal executive offices are located at 825 Main Street
South, New Ellenton, South Carolina 29809. At present, there are issued and
outstanding 3,810,183 shares of the Issuer's common stock.
Item 2. Identity and Background.
a. Mr. Jacoby is a general partner of WFD Partnership (the
"Partnership"), a Florida general partnership of which Vincent
Ferri, Martin Jacoby, and Juleen Pump are the other general
partners.
The Partnership is the record owner of 1,000,000 shares of the
Issuer's common stock which it purchased from George J. Georges,
pursuant to a Stock Purchase Agreement dated August 1, 1999.
(See Exhibit 1, attached hereto.)
In addition, by virtue of a Stock Purchase and Voting Rights
Agreement dated August 1, 1999, between the Partnership and Mr.
Georges, the Partnership is obligated to buy, and Mr. Georges
is obligated to sell, an additional 900,000 shares of the
Issuer's common stock on or before December 3, 2000. This
Agreement also gives the Partnership the right to vote the
shares in the meantime. (See Exhibit 2, attached hereto.)
By virtue of the Partnership's right to vote these additional
900,000 shares, these shares have been included in the
computation of the beneficial ownership of the filing person.
b. The principal business and principal office address of the
Partnership is 10721 St. Andrews Road, Boynton Beach, Florida
33436. Mr. Jacoby's residence address is 412 Capri I, Delray
Beach, Florida 33484.
c. Mr. Jacoby is retired and has no employment address.
d. During the past five years, Mr. Jacoby has not been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
e. During the past five years, Mr. Jacoby has not been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which proceeding he was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws, or finding any
violation with respect to such laws.
f. Mr. Jacoby is an American citizen.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a Stock Purchase Agreement dated August 1, 1999, between
the Partnership and Mr. Georges, the Partnership paid $277,500 to Mr. Georges to
acquire 1,000,000 shares of the common stock, par value $.01, of the Issuer
owned by Mr. Georges. Of this amount, $175,000 was borrowed by the Partnership
from the Issuer and $100,000 was borrowed by the Partnership from Dennis Jacoby,
one of the Partnership's general partners. (See Exhibits 3 and 4, attached
hereto.)
The balance of the purchase price, i.e., $2,500, was provided by
Mr. Sydney Pump, husband of Juleen Pump.
From personal funds, Messrs. Ferri and Martin Jacoby have, and will,
from time-to-time, make advances to the Issuer on behalf of the Partnership to
reduce the loan from the Issuer to the Partnership. This arrangement is
memorialized by a Loan Agreement which is attached as Exhibit 5.
Item 4. Purpose of Transaction.
The purpose of the transactions was to acquire a significant position
in the Issuer with a view to having the Issuer engage in a new business or
acquire, or be acquired by, another corporation in a merger or other business
combination involving the issuer. No such transaction has been identified as
of the date of this Report.
Mr. Jacoby anticipates that the Issuer may materially change its
present capitalization through an increase in the number of authorized shares, a
reverse split of the authorized shares outstanding, or both, and that the Issuer
will sell all of its assets for cash or securities.
In addition, there has been, and Mr. Jacoby anticipates that there
will be a change in the present board of directors of the Issuer.
Item 5. Interest in Securities of the Issuer.
a. At present, the Issuer has outstanding 3,810,183 shares of common
stock, of which the Partnership is presently the record owner of 1,000,000
shares. In addition, the Partnership has the right to acquire an additional
900,000 shares from Mr. Georges, as set forth in Item 2.a. The following
table indicates the number of shares beneficially owned by each person named
in Item 2 reflecting total ownership by the Partnership of 1,900,000 shares.
Name of Person Number of Shares Percent Outstanding
Vincent A. Ferri 1,900,000 49.9%
Martin Jacoby 1,900,000 49.9%
Dennis Jacoby 1,900,000 49.9%
Juleen Pump 1,900,000 49.9%
b. The following table indicates the number of shares as to which
there is sole power to vote or to direct the vote, shared power to vote or to
direct the vote, sole power to dispose or to direct the disposition, or shared
power to dispose or to direct the disposition.
<PAGE>
Sole Voting Power
Name of Person Number of Shares Percent Outstanding
Vincent A. Ferri 0 0%
Martin Jacoby 0 0%
Dennis Jacoby 0 0%
Juleen Pump 0 0%
WFD Partnership 1,900,000 49.9%
Shared Voting Power
Name of Person Number of Shares Percent Outstanding
Vincent A. Ferri 280,000 7.3%
Martin Jacoby 160,000 4.2%
Dennis Jacoby 280,000 7.3%
Juleen Pump 280,000 7.3%
WFD Partnership 1,900,000 49.9%
Sole Dispositive Power
Name of Person Number of Shares Percent Outstanding
Vincent A. Ferri 0 0%
Martin Jacoby 0 0%
Dennis Jacoby 0 0%
Juleen Pump 0 0%
WFD Partnership 1,900,000 49.9%
Shared Dispositive Power
Name of Person Number of Shares Percent Outstanding
Vincent A. Ferri 280,000 7.3%
Martin Jacoby 160,000 4.2%
Dennis Jacoby 280,000 7.3%
Juleen Pump 280,000 7.3%
WFD Partnership 1,900,000 49.9%
c. Not applicable.
d. None.
e. Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Stock Purchase Agreement dated August 1, 1999, between the
Partnership and Mr. Georges, whereby the Partnership paid $277,500
to Mr. Georges to acquire 1,000,000 shares of the common stock, par
value $.01, of the Issuer owned by Mr. Georges. (See Exhibit 1,
attached hereto.)
Stock Purchase and Voting Rights Agreement dated August 1, 1999,
between the Partnership and Mr. Georges, whereby the Partnership is
obligated to buy, and Mr. Georges is obligated to sell, an additional
900,000 shares of the Issuer's common stock. (See Exhibit 2, attached
hereto.)
Loan Agreement dated January 21, 2000, between the Partnership and
the Issuer evidencing the transaction which occurred November 3,
1999, whereby the Issuer lent the Partnership the sum of $175,000 to
be used as a part of the purchase price to acquire the original
1,000,000 shares from Mr. Georges. (See Exhibit 3, attached hereto.)
Loan Agreement dated January 21, 2000, between the Partnership and
Dennis Jacoby evidencing the transaction which occurred October 31,
1999, whereby Mr. Jacoby lent the Partnership the sum of $100,000 to
be used as a part of the purchase price to acquire the original
1,000,000 shares from Mr. Georges. (See Exhibit 4, attached hereto.)
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Stock Purchase Agreement dated August 1, 1999, between
George J. Georges and WFD Partnership.
Exhibit 2 A Stock Purchase and Voting Rights Agreement dated August
1, 1999, between George J. Georges and the WFD Partnership.
Exhibit 3 Loan Agreement between WFD Partnership and Environmental
Monitoring & Testing Corporation dated January 21, 2000.
Exhibit 4 Loan Agreement between WFD Partnership and Dennis Jacoby
dated January 21, 2000.
Exhibit 5 Loan Agreement between WFD Partnership and Vincent Ferri
and Martin Jacoby dated January 21, 2000.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we
each certify that the information set forth in this statement is true, complete
and correct.
January 21, 2000
(Date)
/s/ Dennis Jacoby
Dennis Jacoby
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of
August, 1999, by and between George J. Georges. hereinafter
called the "Seller' and WFD Partnership and/or assigns,
hereinafter called the "Buyer".
WITNESSETH:
WHEREAS, Seller owns, of record 2,000,000 of the issued and
outstanding shares of stock of Environmental Monitoring & Testing
Corporation; and
WHEREAS, the Seller desires to sell to the Buyer, and the
latter desires to purchase from Seller, 1,000,000 shares of stock
of Corporation, and
WHEREAS. the parties desire to stipulate all the terms.
conditions and covenants of such purchase and sale;
NOW, THEREFORE, in consideration of the premises, the
representations, warranties and mutual covenants contained
herein, IT IS AGREED:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents, warrants, covenants and agrees that
the following are true and correct on the date hereof and will
continue true and correct on each day through the closing date as
though made as and of such date:
1.1 Organization and Qualification. Corporation is duly
organized and existing under the laws of the State of Delaware
and is entitled to carry on its business at and in the place
where such business is now conducted.
1.2 Capital Stock The authorized capital stock of
Corporation consists solely of 30,000,000 shares of $ .01 par
value common stock of which 6,184,000 shares are issued and
outstanding, and of which the Corporation holds 2,373,817 as
treasury stock and 3,810,183 shares are held by the public
including Seller. All of said issued shares are duly and validly
issued, fully paid and non assessable. Sellers shares are free
and clear of any pledge, lien, encumbrance or agreement of any
kind restricting transfer or sale. Seller is not subject to any
disability restricting the transfer contemplated by this
agreement, and Seller has valid and marketable title to the
shares held by Seller, with full legal right, power and authority
to execute, deliver and perform Seller's obligations under this
agreement and to transfer and deliver Sellers shares of
Corporation to Buyer in the manner provided by this agreement.
1.3 Options, Etc. There are no outstanding options,
warrants, rights, contracts or agreements of any kind for the
issuance (upon conversion, exercise or otherwise) or sale of any
additional capital stock of Corporation or for the issuance or
sale of any other securities or obligations of Corporation or for
the purchase by Corporation of any of its shares. There are no
other securities of Corporation issued and outstanding other than
those set forth in Paragraph 1.2 hereof.
1.4 No Affiliates. Corporation has no subsidiaries and does
not own a majority of the outstanding securities of, nor control
or have the power to control, through an ownership interest, any
corporation or other business entity.
1.5 Financial Statements. Attached hereto as Exhibit "A" is
an audited Balance Sheet of Corporation, certified by its
President, and dated September 30, 1998. together with an
unaudited Balance Sheet of Corporation, certified by its
President and dated June 30, 1999. Attached hereto as Exhibit "B"
is an audited Income Statement of Corporation, certified by its
President, and covering the period September 30, 1997 to
September 30, 1998, together with an unaudited Income Statement
of Corporation, certified by its President, covering the period
October 1, 1998 to and through June 30, 1999. To the best of
Seller's knowledge, said Balance Sheets and Income Statements are
true, correct and complete, has been prepared in accordance with
generally accepted accounting principles, applied on a consistent
basis, and correctly presents the financial position of
Corporation as of the date of the Balance Sheets and income and
expenses of Corporation for the period referenced.
1.6 Liabilities. At the closing date Corporation shall have
only liabilities which are current and normal liabilities
incurred in the ordinary course of business.
1.7 Taxes. The Federal Income tax returns of Corporation
(including any amendments thereto contemplated by Corporation)
have been filed for all prior fiscal years to and including
September 30, 1998, and all taxes shown on said returns have been
paid or provided for in the Balance Sheet. Any and all
assessments and deficiencies or, increases proposed as a result
of any and all examinations or audits of such returns concluded
by the Internal Revenue Service have either been paid or are
included in the liabilities or accruals for taxes provided for in
the Balance Sheet. Corporation is not delinquent in the filing of
any other Federal or any State or Local tax returns or reports
and all taxes shown on said returns have been paid or provided
for in the Balance Sheet; and, with regard to such returns or
reports, the examination of which has been concluded by the
appropriate governmental authority, all assessments and
deficiencies or increases proposed have either been paid or are
included in the liabilities or accruals for taxes provided for in
the Balance Sheet. No waivers or extensions have been signed or
agreed to by Corporation with regard to waiving or extending any
statute of limitations relating to Federal, State or Local taxes.
1.8 Litigation and Proceedings. There are no actions, suits,
proceeding or investigations pending against Corporation at law
or in equity or before any governmental department, commission,
board, agency or instrumentality, which involves the likelihood
of any judgment or liability not fully covered by insurance, or
which may result in any materially adverse change in the
business, operations, properties or assets, or in the condition
(financial or otherwise) of Corporation. Corporation is not in
default with respect to or bound by any order, injunction or
decree of any court, governmental department, commission, board,
agency or instrumentality. Seller had no knowledge or reasonable
basis for knowledge of any threatened actions, suits, proceedings
or investigations pending against Corporation at law or in equity
or before any governmental department, commission, board, agency
or instrumentality which involve the likelihood of any judgment
or in any materially adverse change in the business, operations,
properties or assets, or in the condition (financial or
otherwise) of Corporation.
1.9 Adverse Agreements. Neither corporation nor the Seller
is a party to any contract or agreement, or subject to any
charter provision or other legal restriction that prevents or
restricts complete fulfillment of all the terms and conditions of
this agreement or compliance herewith or which materially and
adversely affects the business, property, assets or condition
financial or otherwise, of Corporation and which have not been
disclosed to Buyer.
1.10 Absence of Certain Changes or Events. Since the Balance
Sheet Date, Corporation has not (i) borrowed or agreed to borrow
any funds or incurred, or become subject to, any obligation or
liability, absolute or contingent, except liabilities and
obligations incurred in the ordinary course of business; (ii)
paid any obligation or liability (absolute or contingent) other
than current liabilities reflected as shown in the Balance Sheet
and current liabilities incurred since that date in the ordinary
course of business; (iii) mortgaged, pledged or subjected to
lien, charge or encumbrance of any of its assets, real or
personal, tangible or intangible, or canceled any of its debts or
claims, except in such case, in the ordinary course of business;
(iv) suffered any losses or waived or released any rights of
value; (v) issued or delivered or contracted to issue or deliver
any stocks, bonds or other corporate securities, or granted or
agreed to grant any options (including employee stock options) or
warrants calling for the issue thereof; (vi) increased, decreased
or reclassified its capital stock or amended its Articles or
Bylaws; (vii) declared or made or agreed to declare or make any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders, or redeemed or purchased or agreed to
purchase or redeem, any shares of their stock; (viii) except in
the ordinary course of business made or permitted any amendment
or termination of any contract, agreement, and license to which
it is a party; (ix) made any accrual or arrangement for a payment
of bonuses or special compensation of any kind or any severance
or termination pay to any present or former officer or employee;
(x) increased the rate of compensation payable or to become
payable by it to any of its officers or employees over the rate
being paid on the Balance Sheet Date, or adopted any profit
sharing bonus, deferred compensation, insurance provision,
retirement or any other employee benefit plan, payment or
arrangement for or with any such officers or employees; or (xi)
entered into any other transaction, except in the ordinary course
of business; (xii) there has not been any change in Corporation's
business or in its condition, financial or otherwise, other than
changes in the ordinary course of business, none of which is
materially adverse; (xiii) there has not been any damage,
destruction or loss whether or not covered by insurance,
materially and adversely affecting the ability of Corporation to
conduct its business, or any other damage destruction or loss of
any material nature; (xiv) there has not been any labor dispute
or any event or condition of any character materially and
adversely affecting the business of Corporation; (xv) Any event
or condition of any character, materially and adversely affecting
Corporation's business or prospects
1. 11 Scheduled Property Exhibit "C" attached hereto
includes the following property: all real property owned by
Corporation (including any improvements located thereon); all
trade names and trademarks owned by Corporation or applications
for registration thereof,* all motor vehicles owned by
Corporation; and all other tangible assets (including without
limitation, furniture fixtures, equipment and inventory located
in Corporation's business locations owned by Corporation.
1.12 Title to Property. (i) Real Property. Corporation owns
outright the fee simple title in and to the real property
described in said Exhibit "C" free and clear of all liens,
mortgages, charges, encumbrances of any nature whatsoever, expect
the lien of current state and local property taxes not in
default; and; (ii) Other Assets. Corporation has and on the
closing date will have (subject to any changes in properties and
assets occurring in the ordinary course of business or consented
to by Buyer) good and marketable title to all of its other
properties and assets (the "other assets"), including without
limitation all personal property and equipment necessary to carry
on the business operations. All other assets reflected in the
Balance Sheet or acquired since the Balance Sheet Date and all
those other assets set forth in Exhibit "C", free and clear of
all defects, liens, encumbrances, claims or rights of third
parties, except (a) for current taxes not delinquent.
1.13 Insurance. All physical properties and assets of
Corporation are covered by insurance in reasonable amounts and
Corporation carries public liability, workmen's compensation and
other usual types of insurance as required under law and/or
dictated by customary and prudent practice, in reasonable
amounts. Attached as Exhibit "E" is a list of each insurance
policy maintained by Corporation setting forth the name of the
insurance carried, the annual premium and the amount and type of
coverage. Such insurance policies shall not be changed or
modified between the date hereof and the closing without the
consent of Buyer. Corporation is not and at closing shall not be
in default in relation to any such policies.
1.14 Contracts, Leases, Etc. Attached hereto as Exhibit "D"
is a list of certain valid and existing contracts, leases,
licenses and agreements to which the Corporation is a party.
Seller has delivered to Buyer a true and correct copy of each
such instrument in effect on the date hereof. Except only as
stated in said Exhibit "D", or any other Exhibit to this
agreement, Corporation is not a party to any written or oral (i)
contract for employment which may not be terminated on not more
than seven (7) days' notice without liability to Corporation;
(ii) contract with any labor union; (iii) continuing contract or
agreement for the future purchase of materials, supplies,
services or equipment; (iv) lease. and license agreement (v)
pension or profit sharing plan, retirement plan, bonus agreement
or plan, stock purchase or stock option plan, severance pay plan
or vacation plan with respect to its employees or others; (vi)
chattel mortgage, equipment lease, security agreement or
conditional sales agreement; (vii) partnership, joint venture or
other business enterprise agreement; or (viii) any other contract
not made in the ordinary course of business. Corporation has
performed in all material respects all obligations required to be
performed by it and is not in default in any material respect,
under any agreement, obligation or other commitment (oral or
written), leases or license agreements or any other agreements to
which it is a party or to which it is bound. Corporation is not a
guarantor or secondarily liable for the payment of any debt
liability or dividend, other than checks and similar items in the
ordinary course of business.
1.15 Compliance With Laws. Corporation has made every
effort, to the best of its knowledge and ability, to comply with
all laws, regulations, ordinances and orders applicable to its
business and property, and no notice has been given to
Corporation claiming any violation thereof.
1.16 Directors and Officers, Compensation, Banks. Attached
hereto as Exhibit "F" is a true and complete list as of the date
of this agreement, showing (i) the names of all Corporation's
directors and officers; (ii) the names of all persons whose
compensation from Corporation for the year 1999 will equal or
exceed Forty Thousand Dollars ($40,000.00), together with a
statement of the full amount paid or payable to each such persons
for services rendered or to be rendered in 1999; (iii) the name
of each bank in which Corporation has an account, or safe deposit
box, and the names of all persons authorized to draw thereon, or
to have access thereto.
1.17 Condition of Buildings and Equipment The buildings,
furniture, fixtures, vehicles, machinery and equipment owned or
leased by Corporation are all in good operating condition and
in a state of good maintenance and repair, including, without
limitation, the structural, mechanical, electrical and plumbing
systems of said buildings, the roofs thereof, and the fixtures
and equipment in said building.
1.18 Conduct of Business. Pending closing and except as
shall first be approved by Buyer in writing, or as is otherwise
permitted by this Agreement (i) The business of Corporation will
be conducted only in its ordinary course and the character of
such business shall not be changed nor any different business
undertaken; (ii) No material contract commitment or understanding
of any kind will be entered into by and on behalf of Corporation,
except commitments for the purchase of materials or supplies
required in daily operation for no more than a thirty (30) day
period, and no contract for the acquisition or sale of real
estate or lease, license agreement shall be entered into; (iii)
No material business decision or action outside the ordinary
course of business, whether by way of hiring or firing key
employees, or increasing the compensation of key employees, or
paying or authorizing the payment of bonuses or commissions to
key employees, or ordering or buying large quantities of
inventory or materials, or otherwise, shall be made or taken;
(iv) Corporation and the Seller will duly comply and act in
accordance with the provisions of the representations and
warranties contained in this agreement.
1. 19 Consents. Seller will, or will cause Corporation to
use its best efforts to secure, prior to the closing date, the
written consent of all persons whose consents may be required
with respect to licenses, and agreements held by Corporation,
wherever such consents may be necessary under the terms of such
licenses, and agreements in order effectively to preserve to
Corporation the rights and benefits thereunder after closing.
1.20 Preserve Organization. Seller will, or will cause
Corporation to use its best reasonable efforts to preserve intact
the business organization of Corporation and to keep available to
Corporation the services of its employees, and to preserve for
Corporation the present relationship between it and its customers
and others having business relationships with it.
1.21 Governmental Authorization. Corporation has all
licenses, permits and other governmental authorizations that are
required in connection with its business as conducted on the
date hereof. The real property owned by Corporation is properly
zoned for its existing uses, the existing uses do not violate any
law, ordinance or government order, and to the best of Seller's
knowledge based on reasonable inquiry, there are no threatened
violations of or notices with respect to any of the foregoing.
1.22 Environmental Matters. The use and operation of the
property utilized by Corporation for the operation of its
business comply with all applicable environmental laws, rules and
regulations and Seller shall continue to cause Corporation to
comply therewith at all times to and through the date of closing.
Specifically, and without limiting the generality of the
foregoing, there not now, nor shall there be, to and through the
date of closing, any Hazardous Waste located or stored in, upon
or at the property utilized by Corporation for its business
purposes; and there are not now, nor shall there be, to and
through the date of closing, at any time any releases or
discharges from the property utilized by Corporation for its
business purposes. "Hazardous Waste" shall mean and include those
elements or compounds which are contained in the list of
hazardous substances adopted by the United States Environmental
Protection Agency (EPA) and the list of toxic pollutants
designated by Congress or the EPA or defined by any other
Federal, State or local statute, law, ordinance, code, rule,
regulation, order or decree regulating relating to or imposing
liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material as now or at any time
in effect.
1.23 Disclosure. No statement of fact by Seller in this
agreement or in any statement furnished or to be furnished to
Buyer pursuant hereto or in connection with any transaction
contemplated hereby contains or will contain any untrue statement
of a material fact or will omit to state a material fact
necessary to make the statements herein or therein not
misleading.
1.24 Public Company. Seller warrants and represents that
Corporation is a publicly traded company, currently trades over
the counter under the symbol "EVMT", has met and complied with
all requirements for a publicly trading company under the Federal
Securities Law, is currently in good standing with the United
States Securities; and Exchange Commission, subject to no notices
of violation, investigations, or other inquiries (including those
of State regulatory authorities). Attached hereto as Exhibit "G"
and Exhibit "H" respectively, as the most recent 10K and 10Q
reports filed by Corporation with the United States Securities
and Exchange Commission, which Seller represents are to the best
of his knowledge and belief, true and correct.
ARTICLE II
SALE OF STOCK
Subject to and in reliance upon the representations,
warranties, covenants and agreements herein contained and subject
to the terms and conditions herein stated.
2.1 Agreement to Sell. Seller agrees to sell, transfer and
deliver to Buyer on the closing date 1,000,000 of the issued and
outstanding capital stock of Corporation and Buyer agrees to
purchase from Seller on the closing date said stock at and for a
total purchase price of Two Hundred Seventy-Seven Thousand Five
Hundred ($277,500.00) Dollars. The total purchase price shall be
payable at closing by cashier's check or wire transfer.
2.2 Closing Date. The closing of the sale provided by this
agreement shall be made at the office of Buyer or at a mutually
designated place at 1:00 o'clock P.M., on or before the 3rd day
of November, 1999 (the "closing date"), unless accelerated or
extended by mutual agreement of the parties.
2.3 Closing. At the closing Seller shall deliver to Buyer
1,000,000 shares of the issued and outstanding shares of stock of
Corporation duly endorsed for transfer or accompanied by duly
executed stock powers with medallion signatures guaranteed by a
commercial bank, in exchange for the payment and delivery to
Seller of the purchase price represented by a cashier's or
certified check or wire transfer, all as provided in Paragraph 2.
1. In addition Seller shall deliver to Buyer (I) Corporation's
statement of net current assets; (ii) the minute books, stock
books, stock transfer books, corporate seal, files, ledgers,
books of account, leases, licenses, franchises, contract and
other valuable papers and assets of Corporation; (iii) the
written resignations of each director and officer of Corporation;
(iv) all policies of insurance issued to or for the benefit of
Corporation currently in effect, and all policies expired but
covering claims not barred by any Statute of Limitations; (v) a
Certificate of Good Standing of Corporation from the Secretary of
State of Delaware, dated not more than ten (10) days prior to the
closing; (vi) the parties shall deliver or cause to be delivered
any other certificates, opinions or other documents required as
provided for under this agreement.
ARTICLE III
MISCELLANEOUS
3.1 Governing Law. This agreement shall be construed and
enforced under the laws of the state of Florida.
3.2 Successors and Assigns. This agreement shall be binding
upon and inure to the benefit of the Buyer, his heirs, personal
representatives and assigns, and to Seller, his heirs, personal
representatives and assigns.
3.3 Legal and Accounting Fees. Since this agreement is for
the exchange by Seller of his stock in Corporation, Corporation
shall not be charged with any legal or accounting fees for
services rendered relating to this agreement, negotiation
therefor, or consummation thereof.
3.4 Notice. All notices necessary or desired to be given
hereunder shall be in writing and sent by certified or registered
mail, postage prepaid, if for Seller addressed to 6445 Via Rosa,
Boca Raton, FL 33433 and if for Buyer addressed to 4811 NW 98th
Way Coral Springs, FL 33076 or to such other address as any of
the parties hereto may designate by certified mail, as above
provided, will be deemed given when deposited in the United
States mails.
3.5 Representations and Warranties to Survive Closing. All
representations, warranties and agreements made by any party
hereto in this agreement or pursuant hereto shall survive the
closing date of this agreement. All statements contained herein
or in any certificate, exhibit list or other document shall be
deemed to be representations and warranties.
3.6 Headings. The various headings used in this agreement
are for convenience only and shall not be used in interpreting
the text of the agreement.
3.7 Counterparts. This agreement may be executed in any
number of counterparts, each of which shall be deemed an original
and all of which together shall constitute together one and the
same instrument. A faxed signature shall, for the purpose of this
agreement, be deemed an original.
IN WITNESS WHEREOF, the undersigned have executed this Stock
Purchase Agreement on the day and year first above written.
In the Prescence of
Seller
/s/ unreadable /s/ George J. Georges
Buyer
/s/ unreadable /s/ unreadable
INDEX TO EXHIBITS
Exhibit A Balance Sheet
Exhibit B Income Statement
Exhibit C Scheduled Property
Exhibit D Contracts, Equipment Leases, Licenses, etc.
Exhibit E Insurance
Exhibit F Directors, Officers, Highly Paid Employees, Banks
Exhibit G Most Recent 10 K Report
Exhibit H Most Recent 10 Q Report
STOCK PURCHASE AND VOTING RIGHTS AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of August
1999, by and between George J. Georges. hereinafter called the
"Seller" and WFD Partnership and/or assigns, hereinafter called
the "Buyer'.
WITNESSETH:
WHEREAS, Seller owns, of record 1,000,000 of the issued and
outstanding shares of stock of Environmental Monitoring & Testing
Corporation; and
WHEREAS, the Seller desires to sell to the Buyer, and the
latter desires to purchase from Seller, 900,000 shares of stock
of Corporation, and
WHEREAS. the parties desire to stipulate all the terms,
conditions and covenants of such purchase and sale;
NOW, THEREFORE, in consideration of the premises, the
representations, warranties and mutual covenants contained
herein, IT IS AGREED:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents, warrants, covenants and agrees that
the following are true and correct on the date hereof and will
continue true and correct on each day through the closing date as
though made as and of such date:
1.1 Organization and Qualification. Corporation is duly
organized and existing under the laws of the State of Delaware
and is entitled to carry on its business at and in the place
where such business is now conducted.
1.2 Capital Stock The authorized capital stock of
Corporation consists solely of 30,000,000 shares of $ .01 par
value common stock of which 6,184,000 shares are issued and
outstanding, and of which the Corporation holds 2,373,817 as
treasury stock and 3,810,183 shares are held by the public
including Seller. All of said issued shares are duly and validly
issued, fully paid and non assessable. Sellers shares are free
and clear of any pledge, lien, encumbrance or agreement of any
kind restricting transfer or sale. Seller is not subject to any
disability restricting the transfer contemplated by this
agreement and Seller has valid and marketable title to the shares
held by Seller, with full legal right power and authority to
execute, deliver and perform Sellers obligations under this
agreement and to transfer and deliver Seller's shares of
Corporation to Buyer in the manner provided by this agreement.
1.3 Options, Etc. There are no outstanding options,
warrants, rights, contracts or agreements of any kind for the
issuance (upon conversion, exercise or otherwise) or sale of any
additional capital stock of Corporation or for the issuance or
sale of any other securities or obligations of Corporation
or for the purchase by Corporation of any of its shares. There
are no other securities of Corporation issued and outstanding
other than those set forth in Paragraph 1.2 hereof.
1.4 Disclosure. No statement of fact by Seller in this
agreement or in any statement furnished or to be furnished to
Buyer pursuant hereto or in connection with any transaction
contemplated hereby contains or will contain any untrue statement
of a material fact or will omit to state a material fact
necessary to make the statements herein or therein not
misleading.
ARTICLE II
SALE OF STOCK
Subject to and in reliance upon the representations,
warranties, covenants and agreements herein contained and subject
to the terms and conditions herein stated.
2.1 Agreement to Sell. Seller agrees to sell, transfer and
deliver to Buyer on the closing date 900,000 of the issued and
outstanding capital stock of Corporation and Buyer agrees to
purchase from Seller on the closing date said stock at and for a
total purchase price of Two Hundred Forty-Seven Thousand Five
Hundred ($247,500.00) Dollars. The total purchase price shall be
payable at closing by cashier's check or wire transfer.
2.2 Voting Rights. From the date of this contract until the
date of closing, Seller hereby transfers to Buyer an irrevocably
proxy to all voting rights pertaining to the 900,000 shares
provided for herein.
2.3 Closing Date. The closing of the sale provided by this
agreement shall be made at the office of Buyer or at a mutually
designated place at 1:00 o'clock P.M., on or before the 3rd day
of December, 2000 (the "closing date"), unless accelerated or
extended by mutual agreement of the parties.
2.4 Closing. At the closing Seller shall deliver to Buyer
900.000 shares of the issued and outstanding shares of stock of
Corporation duly endorsed for transfer or accompanied by duly
executed stock powers wit medallion signatures guaranteed by a
commercial bank, in exchange for the payment and delivery to
Seller of the purchase price represented by a cashier's or
certified check or wire transfer, all as provided in Paragraph
2.1.
ARTICLE III
MISCELLANEOUS
3.1 Governing Law. This agreement shall be construed and
enforced under the laws of the state of Florida.
3.2 Successors and Assigns. This agreement shall be binding
upon and inure to the benefit of the Buyer, his heirs, personal
representatives and assigns, and to Seller, his heirs, personal
representatives and assigns.
3.3 Legal and Accounting Fees. Since this agreement is for
the exchange by Seller of his stock in Corporation, Corporation
shall not be charged with any legal or accounting fees for
services rendered relating to this agreement negotiation
therefor, or consummation thereof.
3.4 Notice. All notices necessary or desired to be given
hereunder shall be in writing and sent by certified or registered
mail, postage prepaid, if for Seller addressed to 6445 Via Rosa,
Boca Raton, FL 33433 and if for Buyer addressed to 4811 NW 98th
Way Coral Springs, FL 33076 or to such other address as any of
the parties hereto may designate by certified mail, as above
provided, will be deemed given when deposited in the United
States mails.
3.5 Representations and Warranties to Survive Closing. All
representations, warranties and agreements made by any party
hereto in this agreement or pursuant hereto shall survive the
closing date of this agreement All statements contained herein or
in any certificate, exhibit list or other document shall be
deemed to be representations and warranties.
3.6 Headings. The various headings used in this agreement
are for convenience only and shall not be used in interpreting
the text of the agreement
3.7 Counterparts. This agreement may be executed in any
number of counterparts, each of which shall be deemed an original
and all of which together shall constitute together one and the
same instrument A faxed signature shall, for the purpose of this
agreement be deemed an original.
IN WITNESS WHEREOF, the undersigned have executed this Stock
Purchase Agreement on the day and year first above written.
In the Presence of
Seller
/s/ unreadable /s/ George J. Georges
/s/ unreadable
/s/ unreadable
LOAN AGREEMENT
This Loan Agreement (the "Agreement") entered into this 21st
day of January, 2000, by and between WFD Partnership, a Florida
general partnership, with its principal place of business at
10721 St. Andrews Road, Boynton Beach, Florida 33436 (the
"Partnership") and Environmental Monitoring & Testing
Corporation, a Delaware corporation, with its principal place of
business at 825 Main Street South, New Ellenton, South Carolina
29809 (the "Corporation").
W I T N E S S E T H:
WHEREAS, By an agreement dated August 1, 1999, the
Partnership undertook and did purchase 1,000,000 shares of common
stock, par value $.01, of the Corporation from George J. Georges
(the "Georges Shares");
WHEREAS, The Partnership wished to borrow the sum of
$175,000 (the "Subject Loan") to be used to pay a portion of the
purchase price of the Georges Shares;
WHEREAS, the Corporation was willing to, and did, on
November 3, 1999, lend to the Partnership the sum of $175,000 to
be used to pay a portion of the purchase price of the Georges
Shares; and
WHEREAS, the Parties now wish to memorialize this
transaction.
NOW, THEREFORE, In consideration of the premises, the
parties agree as follows:
1. Even though a promissory note was never
contemporaneously executed by the Partnership and delivered to
the Corporation to evidence the Subject Loan, the Partnership
hereby acknowledges that it is indebted to the Corporation in the
principal sum of $175,000.
2. The Partnership hereby agrees that it will pay to the
Corporation the principal sum of $175,000, together with interest
by no later than November 5, 2002, in accordance with the terms
of that Promissory Note dated November 3, 1999, from the
Corporation to First Union National Bank, a copy of which is
attached as Exhibit A. This debt shall be evidenced by a Secured
Promissory Note, secured by the pledge of the Georges Shares by
the Partnership to the Corporation. Copies of the form of
Secured Promissory Note and Stock Pledge Agreement are attached
hereto as Exhibits B and C, respectively.
ENVIRONMENTAL MONITORING &
TESTING CORPORATION
By: /s/ Vincent A. Ferri
Vincent A. Ferri,
President
WFD PARTNERSHIP
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By:
__________________________
Juleen Pump, General
Partner, not individually
Exhibit "A" to Loan Agreement
PROMISSORY NOTE
$175,000.00 November 3, 1999
Environmental Monitoring & Testing Corporation
825 Main Street South
New Ellington, South Carolina 29809
(Individually and collectively "Borrower")
First Union National Bank
214 North Hogan Street - FL0070
Jacksonville, Florida 32202
(Hereinafter referred to as ("Bank")
Borrower promises to pay to the order of Bank, in lawful money of
the United States of America, at its office Indicated above or
wherever else Bank may specify, the sum of One Hundred
Seventy-Five thousand and No/100 Dollars ($175,000.00) or such
sum as may be advanced and outstanding from time to time, with
interest on the unpaid principal balance at the rate and on the
terms provided in this Promissory Note (including all renewals,
extensions or modifications hereof, this "Note").
SECURITY. Borrower has granted Bank a security Interest In the
collateral described In the Loan Documents including, but not
limited to. personal property collateral described In that
certain Security Agreement of even date herewith.
INTEREST RATE. Interest shall accrue on the unpaid principal
balance of this Note from the date hire; of at the rate of Bank's
Prime Rate plus 0.00%, as that rate may change from time to time
with changes to occur on the date Bank's Prime Rate changes
("Interest Rate"). Bank's Prime Rate shall be that rate announced
by Bank from time to time as its prime rate and is one of several
Interest rate bases used by Bank. Bank [ends at rates both above
and below Bank's Prime Rate, and Borrower acknowledges that
Bank's Prime Rate is not represented or Intended to be the lowest
or most favorable Fite of interest offered by Bank.
DEFAULT RATE. In addition to all other rights contained In this
Note, If a Default (as defined herein) occurs and as long as a
Default continues, all outstanding Obligations shall bear
Interest at the-interest Rate plus 3% ("Default Rate"). The
Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon Is paid in full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees,
If any, shall be computed on the basis of a 360-day year for the
actual number of days In the applicable period ("Actual/360
Computation"). The Actual/360 Computation determines the annual
effective yield by taking the stated (nominal) rate for a year's
period and then dividing said rate by 360 to determine the daily
periodic rate be applied for each day In the applicable period.
Application of the Actual/360 Computation produces an annualized
effective rate exceeding the nominal rate.
PREPAYMENT ALLOWED. This Note may be prepaid In whole or In part
at any time. Any prepayment shall Include accrued interest and
ail other sums then due under any of the Loan Documents. No
partial prepayment shall affect the obligation of Borrower to
make any payment of principal or Interest due under this Note on
the date specified above In the Repayment Terms paragraph of this
Note until this Note has been paid in full.
ACCURATE FINANCIAL INFORMATION. Borrower represents and covenants
to Bank that on and after the date of this Note: (i) all
financial statements of Borrower furnished to Bank are correct
and accurately reflect the financial conditions of Borrower as of
the respective dates thereof; and (ii) at such times as Bank
requests, Borrower will furnish Bank with such financial
information as Bank may request.
REPAYMENT TERMS. This Note shall be due and payable in
consecutive monthly payments of principal and interest in the
amount of $2.352.75 commencing on December 5, 1999, and
continuing on the same day of each month thereafter until fully
paid. In any event, all principal and accrued interest shall be
due and payable on November 5, 2002. Scheduled Payment
Adjustment. At Bank's option and with notice to Borrower, the
scheduled payment amount will increase as is necessary (i) to pay
all accruals of interest for the period and previous periods and
(ii) to maintain principal repayment according to the
amortization that would have occurred if the Interest Rate in
effect on the date of this Note had remained constant. The
increased payment amount shall remain in effect for as long as
the original scheduled payment amount is insufficient to pay
accrued interest and principal and shall be further adjusted
upward or downward to reflect changes in the variable interest
rate. The scheduled payment amount will not be reduced below the
original scheduled payment amount.
AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower
authorizes Bank to debit demand deposit account number
020000453143 or any other account with Bank (routing number
067006432) designated in writing by Borrower, beginning December
5, 1999 for any payments due under this Note. Borrower further
certifies that Borrower holds legitimate ownership of this
account and preauthorizes this periodic debit as part of its
right under said ownership.
APPLICATION OF PAYMENTS. Monies received by Bank from any source
for application toward payment of the Obligations shall be
applied to accrued interest and then to principal. If a Default
occurs, monies may be applied to the Obligations in any manner or
order deemed appropriate by Bank. If any payment received by Bank
under this Note or other Loan Documents is rescinded, avoided or
for any reason returned by Bank because of any adverse claim or
threatened action, the returned payment shall remain payable as
an obligation of all persons liable under this Note or other Loan
Documents as though such payment had not been made.
DEFINITIONS. Loan Documents. The term "Loan Documents" used in
this Note and the other Loan Documents refers to all documents
executed in connection with the loan evidenced by this Note and
any prior. notes which evidence all or any portion of the loan
evidenced by this Note, and any letters of credit issued pursuant
to any loan agreement to which this Note is subject, any
applications for such letters of credit and any other documents
executed in connection therewith, and may include, without
limitation, a commitment letter that survives closing, a loan
agreement, this Note, guaranty agreements, security agreements,
security instruments, financing statements, mortgage instruments,
any renewals or modifications, whenever any of the foregoing are
executed, but does not include swap agreements (as defined in 11
U.S.C. 101). Obligations. The term *Obligations" used in this
Note refers to any and all indebtedness and other obligations
under this Note, all other obligations under any other Loan
Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. 101) between Borrower and Bank whenever
executed. Certain Other Terms. All terms that are used but not
otherwise defined in any of the Loan Documents shall have the
definitions provided in the Uniform Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall
also pay to Bank a late charge equal to 5% of each payment past
due for 10 or more days. Acceptance by Bank of any late payment
without an accompanying late charge shall not be deemed a waiver
of Bank's right to collect such late charge or to collect a late
charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay
all of Bank's reasonable expenses incurred to enforce or collect
any of the Obligations including, without limitation, reasonable
arbitration, paralegals', attorneys' and experts' fees and
expenses, whether incurred without the commencement of a suit, in
any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note
would, but for this paragraph, exceed the maximum lawful rate,
the effective interest rate under this Note shall be the maximum
lawful rate, and any amount received by Bank in excess of such
rate shall be applied to principal and then to fees and expenses,
or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default")
under this Note shall exist: Nonpayment; Nonperformance. The
failure of timely payment or performance of the Obligations or
Default under this Note or any other Loan Documents. False
Warranty. A warranty or representation made or deemed made in the
Loan Documents or furnished Bank in connection with the loan
evidenced by this Note proves materially false, or if of a
continuing nature, becomes materially false. Cross Default. At
Bank's option, any default in payment or performance of any
obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower. any general
partner of or the holder(s) of the majority ownership interests
of Borrower with Bank or its affiliates ("Affiliate" shall have
the meaning as defined in 11 U.S.C. 101, except that the term
"Borrower" shall be substituted for the term "Debtor" therein;
"Subsidiary" shall mean any business in which Borrower holds,
directly or indirectly, a controlling interest). Cessation;
Bankruptcy. The death of, appointment of a guardian for,
dissolution of,. termination of existence of, loss of good
standing status by, appointment of a receiver for, assignment for
the benefit of creditors of, or commencement of any bankruptcy or
insolvency proceeding by or against Borrower, its Subsidiaries or
Affiliates, if any, or any general partner of or the holder(s) of
the majority ownership interests of Borrower, or any party to the
Loan Documents. Material Capital Structure or Business
Alteration. Without prior written consent of Bank, (i) a material
alteration in the kind or type of Borrower's business or that of
Borrower's Subsidiaries or Affiliates, if any; (ii) the sale of
substantially all of the business or assets of Borrower, any of
Borrower's Subsidiaries or Affiliates or any rantor, or a
material portion (10% or more) of such business or assets if such
a sale is outside the ordinary course of business of Borrower, or
any of Borrower's Subsidiaries or Affiliates or any guarantor, or
more than 50% of the outstanding stock or voting power of or in
any such entity in a single transaction or a series of
transactions; (iii) the acquisition of substantially all of the
business or assets or more than 50% of the outstanding stock or
voting power of any other entity; or (iv) should any Borrower or
any of Borrower's Subsidiaries or Affiliates or any guarantor
enter into any merger or consolidation.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any
Loan Documents, Bank may it any time thereafter, take the
following actions: Bank Lien. Foreclose its security interest or
lien against Borrower's accounts without notice. Acceleration
Upon Default. Accelerate the maturity of this Note and, at Bank's
option, any or all other Obligations, whereupon this Note and the
accelerated Obligations shall be immediately due and payable.
Cumulative. Exercise any rights and remedies as provided under
the Note and other Loan Documents, or as provided by law or
equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank
such Information as Bank may reasonably request from time to
time, including without limitation, financial statements and
information pertaining to Borrower's financial condition. Such
information shall be true, complete, and accurate.
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary
to assure that Borrower's computer based systems are able to
operate and effectively process data including dates on and after
January 1. 2000. At the request of Bank, Borrower shall provide
Bank assurance acceptable to Bank of Borrower's Year 2000
compatibility.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications
of this Note and other Loan Documents shall be valid unless in
writing and signed by an officer of Bank. No waiver by Bank of
any Default shall operate as a waiver of any other Default or the
same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or
remedy under this Note and other Loan Documents shall operate as
a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. Each Borrower or any person
liable under this Note waives presentment, protest, notice of
dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and
all other notices of any kind. Further, each agrees that Bank may
extend, modify or renew this Note or make a novation of the loan
evidenced by this Note for any period, and grant any releases,
compromises or indulgences with respect to any collateral
securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all
without notice to or consent of each Borrower or each person who
may be liable under this Note or any other Loan Document and
without affecting the liability of Borrower or any person who may
be liable under this Note or any other Loan Document.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other
Loan Documents shall inure to 1 the benefit of and be binding
upon the parties and their respective heirs, legal
representatives, successors and assigns. Bank's interests in and
rights under this Note and the other Loan Documents are freely
assignable, in whole or in part, by Bank. In addition, nothing in
this Note or any of the other Loan Documents shall prohibit Bank
from pledging or assigning this Note or any of the other Loan
Documents any interest therein to any Federal Reserve Bank.
Borrower shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by
Borrower to assign without Bank's prior written consent is null
and void. Any assignment shall not release Borrower from the
Obligations. Applicable Law;' Conflict Between Documents. This
Note and the other Loan Documents shall be governed by and
construed under the laws of the state named in Bank's address
shown above without regard to that state's conflict of laws
principles. If the terms of this Note should .i flict with the
terms of the Loan Agreement or any commitment letter that
survives closing, the terms con of this Note shall control.
Borrower's Accounts. Except as prohibited by law, Borrower grants
Bank a security interest in all of Borrower's accounts with Bank
and any of its affiliates. Jurisdiction. Borrower irrevocably
agrees to non-exclusive personal jurisdiction in the state named
in Bank's address shown above. Severability. If any provision of
this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective
but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Note or other such document. Notices. Any
notices to Borrower shall be sufficiently given, if in writing
and rnailed or delivered to the Borrower's address shown above or
such other address as provided hereunder and to Bank, if in
writing and mailed or delivered to Bank's office address shown
above or such other address as Bank may specify in writing from
time to time. In the event that Borrower changes Borrower's
address at any time prior to the date the Obligations are paid in
full, Borrower agrees to promptly give written notice of said
change of address by registered or certified mail, return receipt
requested, all charges prepaid. Plural; Captions. All references
in the Loan Documents to Borrower, guarantor, person, document or
other nouns of reference mean both the singular and plural form,
as the case may be, and the term "person" shall mean any
Individual, person or entity. The captions contained in the Loan
Documents are inserted for convenience only and shall not affect
the meaning or interpretation of the Loan Documents. Advances.
Bank may, in its sole discretion, make other advances which shall
be deemed to be advances under this Note, even though the stated
principal amount of this Note may be exceeded as a result
thereof. Posting of Payments. All payments received during normal
banking hours after 2:00 p.m. local time at the office of Bank
first shown above shall be deemed received at the opening of the
next banking day. Joint and Several Obligations. Each person who
signs this Note is a Borrower and is jointly and severally
obligated. Fees and Taxes. Borrower shall promptly pay all
documentary, intangible recordation and/or similar taxes on this
transaction whether assessed at closing or arising from time to
time.
ARBITRATION. Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any claim or
controversy arising out of or relating to the Loan Documents
between parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of
the American Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include, without limitation, tort
claims, counterclaims, a dispute as to whether a matter is
subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction.
Notwithstanding the foregoing, this arbitration provision does
not apply to disputes under or related to swap agreements.
Special Rules. All arbitration hearings shall be conducted in the
city named in the address of Bank first stated above. A hearing
shall begin within 90 days of demand for arbitration and all
hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total
of 60 days. The expedited procedures set forth in Rule 51 et seg.
of the Arbitration Rules shall be applicable to claims of less
than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel
of the AAA. The parties do not waive applicable Federal or state
substantive law except as provided herein. Preservation and
Limitation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve without
diminution, certain remedies that any party may exercise before
or after an arbitration proceeding is brought. The parties shall
have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as
applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale
or under applicable law by judicial foreclosure including a
proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute. Waiver of Exemplary
Damages. The parties agree that they shall not have a remedy of
punitive or exemplary damages against other parties in any
Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the future
in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially. Waiver of Jury Trial.
THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION
THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY
TRIAL WITH REGARD TO A DISPUTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above
written, has caused this Note to be executed under seal.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that
this Note and the Loan Documents were executed in the State of
Florida and delivered to Bank in the State of Florida.
Environmental Monitoring & Testing
Corporation
Taxpayer Identification Number:
62-1265486
CORPORATE By: /s/ Vincent A. Ferri
SEAL Vincent A. Ferri, President
By: /s/ Sidney Pump
Sidney Pump, Secretary
<PAGE>
EXHIBIT B TO LOAN AGREEMENT
SECURED PROMISSORY NOTE
Dated: January 21, 2000 $175,000.00
For value received, the undersigned (hereinafter referred to
as "Borrower") promises to pay to the order of Environmental
Monitoring & Testing Corporation, 825 Main Street South, New
Ellenton, South Carolina 29809, or at such other place as it may
designate from time to time, the principal sum of ONE HUNDRED
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($175,000).
This Note is meant to mirror and to be paid pursuant to the
same terms and conditions of that certain Promissory Note dated
November 3, 1999, executed by Environmental Monitoring & Testing
Corporation in favor of First Union National Bank in the amount
of $175,000 (the "First Union Note"), as if the language of the
First Union Note were set forth herein in its entirety; provided,
however, that to the extent language in the First Union Note
refers to matters peculiar to a lender-borrower relationship
where the lender is a National Bank and the borrower is a
corporation, or to matters unique to the relationship between
First Union and Environmental Monitoring & Testing Corporation,
not relevant to the debt evidenced by this Note, said language
shall be deemed to be surplusage.
This Note is secured by 1,000,000 shares of the common stock
of Environmental Monitoring & Testing Corporation, all as more
particularly set forth in a Security Agreement of even date
herewith.
ADDRESS OF BORROWER: WFD PARTNERSHIP, a Florida
10721 St. Andrews Road general partnership
Boynton Beach, FL 33436
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By: __________________________
Juleen Pump, General
Partner, not individually
EXHIBIT C TO LOAN AGREEMENT
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (hereinafter referred to as
"Agreement") made January 21, 2000, between Environmental
Monitoring & Testing Corp. (hereinafter "Lender") and WFD
Partnership, a Florida general partnership (hereinafter
"Borrower").
W I T N E S S E T H :
WHEREAS, Borrower has entered into a Stock Purchase
Agreement dated August 1, 1999, with George J. Georges
("Georges") pursuant to which Borrower has agreed to purchase
1,000,000 shares of Lender's common stock owned by Georges for a
purchase price of $277,500;
WHEREAS, Borrower has borrowed the sum of $175,000 from
Lender, evidenced by a Promissory Note of even date herewith
("Promissory Note") to be used to pay for a portion of the
purchase price of said 1,000,000 shares; and
WHEREAS, Borrower has agreed to pledge to, and give a
security interest in, said 1,000,000 shares (the "Pledged
Shares") to Lender to secure the payment of the Promissory
Note.
NOW THEREFORE, for and in consideration of the sum of Ten
Dollars ($10.00) and of the mutual promises contained herein, the
parties hereto agree as follows:
1. Borrower has executed the Promissory Note of even date
herewith in favor of Lender, and a copy of said Promissory Note
is attached hereto, made a part hereof, and designated as Exhibit
"A" to this Stock Pledge Agreement.
2. Borrower hereby pledges and grants a security interest
in, and hereby delivers to Lender certificates for, the Pledged
Stock to secure the repayment of all sums due to the Lender
pursuant to the Promissory Note described herein.
3. Borrower represents and warrants that:
3.1 Borrower is the lawful owner of record and the
beneficial owner of the Pledged Stock as described herein and
that the pledge and delivery of the certificates representing the
pledged stock to the Lender as security pursuant to the
provisions of this Agreement will grant to the Lender a legal and
valid security interest in the Pledged Stock, free and clear of
all prior claims, liens, charges and encumbrances of any kind and
nature whatsoever.
3.2 No approval, consent, or authorization of any
governmental or public body or authority is required in
connection with the valid execution and delivery and performance
of this Agreement.
3.3 Borrower will, at the request of the Lender,
execute and deliver to Lender all such further assignments,
endorsements and other documents as Lender may reasonably request
in order to perfect the granting of the security interest
described herein, including but not limited to the delivery at
closing of all of the certificates representing the Pledged
Stock, together with appropriate stock powers properly signed in
blank by the Borrower.
4. Borrower covenants and agrees that, until payment of
the Promissory Note in full, it shall not convey, transfer,
assign or pledge any interest in or any lien or encumbrance upon
the Pledged Stock.
5. During the term of this Agreement, Borrower shall
continue to have the right to vote the Pledged Stock. However,
Borrower shall not be entitled to collect and receive any
distributions for amounts that may be, or become, due to the
holder of the Pledged Stock.
6. The occurrence of any of the following shall constitute
an event of default under this Agreement:
6.1 Borrower's failure to pay, when and as due, any
amounts due under the Promissory Note; or
6.2 The failure to comply with or perform any
agreement or covenant contained in this Agreement; or
6.3 The entry of any judgement, judgements or similar
liens against the Borrower aggregating at any one time in excess
of Ten Thousand Dollars ($10,000) which shall remain unsatisfied,
undischarged or unbonded for a period of thirty (30) days or as
to which a stay of execution shall not have been obtained; or
6.4 The filing of any petition under the Bankruptcy
Code or any similar federal or state statute by or against the
Borrower or an application for the appointment of a custodian or
receiver or the making of a general assignment for the benefit of
creditors by or the insolvency of the Borrower; provided,
however, that notwithstanding the foregoing, the Borrower shall
have thirty (30) days to obtain the dismissal of any involuntary
petition under the Bankruptcy Code filed against him; or
6.5 Any representation, warranty, covenant or other
statement by the Borrower contained in any Loan Document (which
term shall include this Agreement, the Promissory Note and the
Stock Purchase Agreement) executed in connection with the loan
described herein shall be false or misleading in any material
respect at the time such warranty, representation, covenant,
statement or instrument is made.
7. Upon the occurrence of a default hereunder as described
in Paragraph 6 above, Lender shall return the Pledged Stock to
its treasury and shall mark the Pledged Stock "canceled" on the
face of the certificates evidencing the Pledged Stock and on its
stock transfer records, and the Borrower shall have no right
whatsoever with respect to the Pledged Stock. All rights and
remedies permitted or granted in any of the Loan Documents shall
be cumulative and concurrent and may be pursued singularly,
successively or together, at Lender's sole discretion, and such
remedies may be exercised as often as occasion therefor shall
occur. Lender may waive any default or remedy, any default in
any reasonable manner without waiving a default and without
waiving any prior or subsequent default.
8. Upon repayment of the Promissory Note, the Lender shall
forthwith return the Pledged Stock to the Borrower.
9. This Agreement shall not be amended by the parties
hereto except in writing, signed by all the parties hereto.
10. This Agreement shall be binding upon the heirs,
personal representatives, successors and assigns of the parties
hereto.
11. Unless notified in writing to the contrary, notices to
be given hereunder to the parties shall be hand-delivered or sent
by United States mail, certified, return-receipt requested,
postage pre-paid, to the following addresses:
Lender: Environmental Monitoring & Testing Corp.
825 Main Street South
New Ellenton, SC 29809
Borrower: WFD Partnership
10721 St. Andrews Road
Boynton Beach, FL 33436
12. This Agreement shall not be construed more strongly
against any party, regardless of who is responsible for its
preparation.
13. This Agreement shall be construed and interpreted in
accordance with Florida law, and venue for enforcement of this
Agreement shall be exclusively in Palm Beach County, Florida.
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands and seals the day and year first written above.
WITNESS/ATTEST: ENVIRONMENTAL MONITORING
& TESTING CORP.
_________________________
By: /s/ Vincent A. Ferri
Vincent A. Ferri, President
WFD PARTNERSHIP
___________________________
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By:
_________________________
Juleen Pump, General
Partner, not individually
LOAN AGREEMENT
This Loan Agreement (the "Agreement") entered into this 21st
day of January, 2000, by and between WFD Partnership, a Florida
general partnership, with its principal place of business at
10721 St. Andrews Road, Boynton Beach, Florida 33436 (the
"Partnership") and Dennis Jacoby, with his principal place of
business at 412 Capri I, Delray Beach, Florida 33484 ("Jacoby").
WITNESSETH:
WHEREAS, By an agreement dated August 1, 1999, the
Partnership undertook and did purchase 1,000,000 shares of common
stock, par value $.01, of Environmental Monitoring & Testing
Corporation from George J. Georges (the "Georges Shares");
WHEREAS, The Partnership wished to borrow the sum of
$100,000 (the "Jacoby Loan") to also be used to pay a portion of
the purchase price of the Georges Shares;
WHEREAS, Jacoby was willing to, and did, on October 31,
1999, lend to the Partnership the sum of $100,000 to be used to
pay a portion of the purchase price of the Georges Shares; and
WHEREAS, the Parties now wish to memorialize this
transaction.
NOW, THEREFORE, In consideration of the premises, the
parties agree as follows:
1. Even though a promissory note was never
contemporaneously executed by the Partnership and delivered to
Jacoby to evidence the Jacoby Loan, the Partnership hereby
acknowledges that it is indebted to Jacoby in the principal sum
of $100,000.
2. The Partnership hereby agrees that it will pay to
Jacoby the principal sum of $100,000, together with interest on
the unpaid principal balance at the rate of 10% per annum, by no
later than November 5, 2002. This principal sum, together with
any accrued, and unpaid interest, may be prepaid at any time
without penalty, and this debt shall be evidenced by an Unsecured
Promissory Note in the form attached hereto as Exhibit A.
WFD PARTNERSHIP
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By:
_________________________
Juleen Pump, General
Partner, not individually
/s/ Dennis Jacoby
Dennis Jacoby, individually
EXHIBIT "A" TO LOAN AGREEMENT
UNSECURED PROMISSORY NOTE
Dated: January 21, 2000
$100,000.00
For value received, the undersigned (hereinafter referred to
as "Borrower") promises to pay to the order of Dennis Jacoby, 412
Capri I, Delray Beach, Florida 33484, or at such other place as
it may designate from time to time, the principal sum of ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000), with interest at
a rate of ten percent (10%) per annum. Principal and any accrued
interest shall be payable on or before November 5, 2002.
(1) This Note shall be in default when any payment is not
paid within ten (10) days of its due date. While in default,
this Note shall bear interest at the rate of fifteen percent
(15%) per annum. If this Note is in default, the aggregate
unpaid indebtedness shall, at the option of the Note holder,
become immediately due and payable.
(2) The Borrower waives demand, notice and protest, and any
defense by reason of extension of time for payment or other
indulgence granted by the Note holder, and further agrees to pay
all costs, charges and expenses of collection, including
reasonable attorneys' fees, if this Note is in default and is
placed in the hands of an attorney for collection or if it
becomes necessary to protect the security hereof, whether or not
a complaint is filed, including, but not limited to, such
attorneys' fees incurred prior to the institution of litigation
or in litigation, including trial and appellate review, and in
arbitration, bankruptcy or other administrative or judicial
proceedings.
(3) If the effect of any part of the loan transaction
evidenced by this Note results in interest (or charges deemed to
be interest) paid or to be paid to the Note holder being in
excess of the permissible civil usury limits as established by
the laws of Florida, then such excess will be promptly refunded.
(4) This Note may be prepaid in part or in full at any time
without penalty.
(5) Any notice to the Borrower provided for in this Note
shall be given by mailing such notice by first class mail,
addressed to the Borrower at the address stated below, or to such
other address as Borrower may designate by notice in writing to
the Note holder. Any notice to the Note holder shall be given
by mailing such notice by certified mail, return-receipt-
requested, to the Note holder at the address stated in the first
paragraph of this Note, or at such address as may have been
designated by notice to Borrower.
ADDRESS OF BORROWER: WFD PARTNERSHIP, a Florida
10721 St. Andrews Road general partnership
Boynton Beach, FL 33436
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By:
________________________
Juleen Pump, General
Partner, not individually
LOAN AGREEMENT
This Loan Agreement (the "Agreement") entered into this 21st
day of January, 2000, by and between WFD Partnership, a Florida
general partnership, with its principal place of business at
10721 St. Andrews Road, Boynton Beach, Florida 33436 (the
"Partnership"), Vincent A. Ferri, whose address is 10721 St.
Andrews Road, Boynton Beach, Florida 33436 ("Ferri"), and Martin
Jacoby, whose address is 9866 NW 17th Street, Coral Springs,
Florida 33071 ("Jacoby").
W I T N E S S E T H:
WHEREAS, By an agreement dated August 1, 1999, the
Partnership undertook and did purchase 1,000,000 shares of common
stock, par value $.01, of Environmental Monitoring & Testing
Corporation (the "Corporation") from George J. Georges (the
"Georges Shares");
WHEREAS, The Partnership wished to borrow the sum of
$175,000 (the "Subject Loan") to be used to pay a portion of the
purchase price of the Georges Shares;
WHEREAS, the Corporation was willing to, and did, on
November 3, 1999, lend to the Partnership the sum of $175,000 to
be used to pay a portion of the purchase price of the Georges
Shares;
WHEREAS, from time-to-time, Ferri and Jacoby have, and will,
from personal funds, make advances ("Ferri/Jacoby Advances") to
the Partnership to be used to repay the $175,000 Subject Loan;
and
WHEREAS, the Parties wish to memorialize this arrangement.
NOW, THEREFORE, In consideration of the premises, the
parties agree as follows:
1. Even though the Partnership itself did not formally
approve the request for, and acceptance of, the proceeds of the
Subject Loan, and even though the Partnership did not formally
approve the arrangement pursuant to which it would be liable to
Ferri and Jacoby for the Ferri/Jacoby Advances made by Ferri to
the Partnership, the Partnership hereby acknowledges that, it is
and will become indebted to Ferri and Jacoby in the amount of
$175,000, and the Partnership agrees to repay to Ferri and Jacoby
for the Ferri/Jacoby Advances made by them on behalf of the
Partnership to repay the Subject Loan.
2. To evidence its obligation to Ferri and Jacoby, the
Partnership will, each time a Ferri/Jacoby Advance is made, make
a notation of the amount paid by them, and owed by the
Partnership, on the Unsecured Promissory Note of even date
attached hereto as Exhibit A, and the amounts so entered shall be
binding obligations of the Partnership as if set forth in a
series of individual promissory notes.
WFD PARTNERSHIP
By: /s/ Vincent A. Ferri
Vincent A. Ferri, General
Partner, not individually
By: /s/ Martin Jacoby
Martin Jacoby, General
Partner, not individually
By: /s/ Dennis Jacoby
Dennis Jacoby, General
Partner, not individually
By:
__________________________
Juleen Pump, General
Partner, not individually
/s/ Vincent A. Ferri
Vincent A. Ferri, individually
/s/ Martin Jacoby
Martin Jacoby, individually
Exhibit "A" to Loan Agreement
PROMISSORY NOTE
$175,000.00 November 3, 1999
Environmental Monitoring & Testing Corporation
825 Main Street South
New Ellington, South Carolina 29809
(Individually and collectively "Borrower")
First Union National Bank
214 North Hogan Street - FL0070
Jacksonville, Florida 32202
(Hereinafter referred to as ("Bank")
Borrower promises to pay to the order of Bank, in lawful money of
the United States of America, at its office Indicated above or
wherever else Bank may specify, the sum of One Hundred
Seventy-Five thousand and No/100 Dollars ($175,000.00) or such
sum as may be advanced and outstanding from time to time, with
interest on the unpaid principal balance at the rate and on the
terms provided in this Promissory Note (including all renewals,
extensions or modifications hereof, this "Note").
SECURITY. Borrower has granted Bank a security Interest In the
collateral described In the Loan Documents including, but not
limited to. personal property collateral described In that
certain Security Agreement of even date herewith.
INTEREST RATE. Interest shall accrue on the unpaid principal
balance of this Note from the date hire; of at the rate of Bank's
Prime Rate plus 0.00%, as that rate may change from time to time
with changes to occur on the date Bank's Prime Rate changes
("Interest Rate"). Bank's Prime Rate shall be that rate announced
by Bank from time to time as its prime rate and is one of several
Interest rate bases used by Bank. Bank [ends at rates both above
and below Bank's Prime Rate, and Borrower acknowledges that
Bank's Prime Rate is not represented or Intended to be the lowest
or most favorable Fite of interest offered by Bank.
DEFAULT RATE. In addition to all other rights contained In this
Note, If a Default (as defined herein) occurs and as long as a
Default continues, all outstanding Obligations shall bear
Interest at the-interest Rate plus 3% ("Default Rate"). The
Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon Is paid in full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees,
If any, shall be computed on the basis of a 360-day year for the
actual number of days In the applicable period ("Actual/360
Computation"). The Actual/360 Computation determines the annual
effective yield by taking the stated (nominal) rate for a year's
period and then dividing said rate by 360 to determine the daily
periodic rate be applied for each day In the applicable period.
Application of the Actual/360 Computation produces an annualized
effective rate exceeding the nominal rate.
PREPAYMENT ALLOWED. This Note may be prepaid In whole or In part
at any time. Any prepayment shall Include accrued interest and
ail other sums then due under any of the Loan Documents. No
partial prepayment shall affect the obligation of Borrower to
make any payment of principal or Interest due under this Note on
the date specified above In the Repayment Terms paragraph of this
Note until this Note has been paid in full.
ACCURATE FINANCIAL INFORMATION. Borrower represents and covenants
to Bank that on and after the date of this Note: (i) all
financial statements of Borrower furnished to Bank are correct
and accurately reflect the financial conditions of Borrower as of
the respective dates thereof; and (ii) at such times as Bank
requests, Borrower will furnish Bank with such financial
information as Bank may request.
REPAYMENT TERMS. This Note shall be due and payable in
consecutive monthly payments of principal and interest in the
amount of $2.352.75 commencing on December 5, 1999, and
continuing on the same day of each month thereafter until fully
paid. In any event, all principal and accrued interest shall be
due and payable on November 5, 2002.
Scheduled Payment Adjustment. At Bank's option and with notice to
Borrower, the scheduled payment amount will increase as is
necessary (i) to pay all accruals of interest for the period and
previous periods and (ii) to maintain principal repayment
according to the amortization that would have occurred if the
Interest Rate in effect on the date of this Note had remained
constant. The increased payment amount shall remain in effect for
as long as the original scheduled payment amount is insufficient
to pay accrued interest and principal and shall be further
adjusted upward or downward to reflect changes in the variable
interest rate. The scheduled payment amount will not be reduced
below the original scheduled payment amount.
AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower
authorizes Bank to debit demand deposit account number
2020000453143 or any other account with Bank (routing number
067006432) designated in writing by Borrower, beginning December
5, 1999 for any payments due under this Note. Borrower further
certifies that Borrower holds legitimate ownership of this
account and preauthorizes this periodic debit as part of its
right under said ownership.
APPLICATION OF PAYMENTS. Monies received by Bank from any source
for application toward payment of the Obligations shall be
applied to accrued interest and then to principal. If a Default
occurs, monies may be applied to the Obligations in any manner or
order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan
Documents is rescinded, avoided or for any reason returned by
Bank because of any adverse claim or threatened action, the
returned payment shall remain payable as an obligation of all
persons liable under this Note or other Loan Documents as though
such payment had not been made.
DEFINITIONS. Loan Documents. The term "Loan Documents" used in
this Note and the other Loan Documents refers to all documents
executed in connection with the loan evidenced by this Note and
any prior notes which evidence all or any portion of the loan
evidenced by this Note, and any letters of credit issued pursuant
to any loan agreement to which this Note is subject, any
applications for such letters of credit and any other documents
executed in connection therewith, and may include, without
limitation, a commitment letter that survives closing, a loan
agreement, this Note, guaranty agreements, security agreements,
security instruments, financing statements, mortgage instruments,
any renewals or modifications, whenever any of the foregoing are
executed, but does not include swap agreements (as defined in 11
U.S.C. 101). Obligations. The term *Obligations" used in this
Note refers to any and all indebtedness and other obligations
under this Note, all other obligations under any other Loan
Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. 101) between Borrower and Bank whenever
executed. Certain Other Terms. All terms that are used but not
otherwise defined in any of the Loan Documents shall have the
definitions provided in the Uniform Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall
also pay to Bank a late charge equal to 5% of each payment past
due for 10 or more days. Acceptance by Bank of any late payment
without an accompanying late charge shall not be deemed a waiver
of Bank's right to collect such late charge or to collect a late
charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay
all of Bank's reasonable expenses incurred to enforce or collect
any of the Obligations including, without limitation, reasonable
arbitration, paralegals', attorneys' and experts' fees and
expenses, whether incurred without the commencement of a suit, in
any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note
would, but for this paragraph, exceed the maximum lawful rate,
the effective interest rate under this Note shall be the maximum
lawful rate, and any amount received by Bank in excess of such
rate shall be applied to principal and then to fees and expenses,
or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default")
under this Note shall exist: Nonpayment; Nonperformance. The
failure of timely payment or performance of the Obligations or
Default under this Note or any other Loan Documents. False
Warranty. A warranty or representation made or deemed made in the
Loan Documents or furnished Bank in connection with the loan
evidenced by this Note proves materially false, or if of a
continuing nature, becomes materially false. Cross Default. At
Bank's option, any default in payment or performance of any
obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower. any general
partner of or the holder(s) of the majority ownership interests
of Borrower with Bank or its affiliates ("Affiliate" shall have
the meaning as defined in 11 U.S.C. 101, except that the term
"Borrower" shall be substituted for the term "Debtor" therein;
"Subsidiary" shall mean any business in which Borrower holds,
directly or indirectly, a controlling interest). Cessation
Bankruptcy. The death of, appointment of a guardian for,
dissolution of,. termination of existence of, loss of good
standing status by, appointment of a receiver for, assignment for
the benefit of creditors of, or commencement of any bankruptcy or
insolvency proceeding by or against Borrower, its Subsidiaries or
Affiliates, if any, or any general partner of or the holder(s) of
the majority ownership interests of Borrower, or any party to the
Loan Documents. Material Capital Structure or Business
Alteration. Without prior written consent of Bank, (i) a material
alteration in the kind or type of Borrower's business or that of
Borrower's Subsidiaries or Affiliates, if any; (ii) the sale of
substantially all of the business or assets of Borrower, any of
Borrower's Subsidiaries or Affiliates or any rantor, or a
material portion (10% or more) of such business or assets if such
a sale is outside the ordinary course of business of Borrower, or
any of Borrower's Subsidiaries or Affiliates or any guarantor, or
more than 50% of the outstanding stock or voting power of or in
any such entity in a single transaction or a series of
transactions; (iii) the acquisition of substantially all of the
business or assets or more than 50% of the outstanding stock or
voting power of any other entity; or (iv) should any Borrower or
any of Borrower's Subsidiaries or Affiliates or any guarantor
enter into any merger or consolidation.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any
Loan Documents, Bank may it any time thereafter, take the
following actions: Bank Lien. Foreclose its security interest or
lien against Borrower's accounts without notice. Acceleration
Upon Default. Accelerate the maturity of this Note and, at Bank's
option, any or all other Obligations, whereupon this Note and the
accelerated Obligations shall be immediately due and payable.
Cumulative. Exercise any rights and remedies as provided under
the Note and other Loan Documents, or as provided by law or
equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank
such Information as Bank may reasonably request from time to
time, including without limitation, financial statements and
information pertaining to Borrower's financial condition. Such
information shall be true, complete, and accurate.
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary
to assure that Borrower's computer based systems are able to
operate and effectively process data including dates on and after
January 1. 2000. At the request of Bank, Borrower shall provide
Bank assurance acceptable to Bank of Borrower's Year 2000
compatibility.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications
of this Note and other Loan Documents shall be valid unless in
writing and signed by an officer of Bank. No waiver by Bank of
any Default shall operate as a waiver of any other Default or the
same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or
remedy under this Note and other Loan Documents shall operate as
a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. Each Borrower or any person
liable under this Note waives presentment, protest, notice of
dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and
all other notices of any kind. Further, each agrees that Bank may
extend, modify or renew this Note or make a novation of the loan
evidenced by this Note for any period, and grant any releases,
compromises or indulgences with respect to any collateral
securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all
without notice to or consent of each Borrower or each person who
may be liable under this Note or any other Loan Document and
without affecting the liability of Borrower or any person who may
be liable under this Note or any other Loan Document.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other
Loan Documents shall inure to 1 the benefit of and be binding
upon the parties and their respective heirs, legal
representatives, successors and assigns. Bank's interests in and
rights under this Note and the other Loan Documents are freely
assignable, in whole or in part, by Bank. In addition, nothing in
this Note or any of the other Loan Documents shall prohibit Bank
from pledging or assigning this Note or any of the other Loan
Documents any interest therein to any Federal Reserve Bank.
Borrower shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by
Borrower to assign without Bank's prior written consent is null
and void. Any assignment shall not release Borrower from the
Obligations. Applicable Law;' Conflict Between Documents. This
Note and the other Loan Documents shall be governed by and
construed under the laws of the state named in Bank's address
shown above without regard to that state's conflict of laws
principles. If the terms of this Note should .i flict with the
terms of the Loan Agreement or any commitment letter that
survives closing, the terms con of this Note shall control.
Borrower's Accounts. Except as prohibited by law, Borrower grants
Bank a security interest in all of Borrower's accounts with Bank
and any of its affiliates. Jurisdiction. Borrower irrevocably
agrees to non-exclusive personal jurisdiction in the state named
in Bank's address shown above. Severability. If any provision of
this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective
but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Note or other such document. Notices. Any
notices to Borrower shall be sufficiently given, if in writing
and mailed or delivered to the Borrower's address shown above or
such other address as provided hereunder and to Bank, if in
writing and mailed or delivered to Bank's office address shown
above or such other address as Bank may specify in writing from
time to time. In the event that Borrower changes Borrower's
address at any time prior to the date the Obligations are paid in
full, Borrower agrees to promptly give written notice of said
change of address by registered or certified mail, return receipt
requested, all charges prepaid. Plural Captions. All references
in the Loan Documents to Borrower, guarantor, person, document or
other nouns of reference mean both the singular and plural form,
as the case may be, and the term "person" shall mean any
Individual, person or entity. The captions contained in the Loan
Documents are inserted for convenience only and shall not affect
the meaning or interpretation of the Loan Documents. Advances.
Bank may, in its sole discretion, make other advances which shall
be deemed to be advances under this Note, even though the stated
principal amount of this Note may be exceeded as a result
thereof. Posting of Payments. All payments received during normal
banking hours after 2:00 p.m. local time at the office of Bank
first shown above shall be deemed received at the opening of the
next banking day. Joint and Several Obligations. Each person who
signs this Note is a Borrower and is jointly and severally
obligated. Fees and Taxes. Borrower shall promptly pay all
documentary, intangible recordation and/or similar taxes on this
transaction whether assessed at closing or arising from time to
time.
ARBITRATION. Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any claim or
controversy arising out of or relating to the Loan Documents
between parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of
the American Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include, without limitation, tort
claims, counterclaims, a dispute as to whether a matter is
subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction.
Notwithstanding the foregoing, this arbitration provision does
not apply to disputes under or related to swap agreements.
Special Rules. All arbitration hearings shall be conducted in the
city named in the address of Bank first stated above. A hearing
shall begin within 90 days of demand for arbitration and all
hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total
of 60 days. The expedited procedures set forth in Rule 51 et seg.
of the Arbitration Rules shall be applicable to claims of less
than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel
of the AAA. The parties do not waive applicable Federal or state
substantive law except as provided herein. Preservation and
Limitation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve. without
diminution, certain remedies that any party may exercise before
or after an arbitration proceeding is brought. The parties shall
have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as
applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale
or under applicable law by judicial foreclosure including a
proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary- remedies including
injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute. Waiver of Exemplary
Damages. The parties agree that they shall not have a remedy of
punitive or exemplary damages against other parties in any
Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the future
in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially. Waiver of Jury Trial.
THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION
THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY
TRIAL WITH REGARD TO A DISPUTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above
written, has caused this Note to be executed under seal.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that
this Note and the Loan Documents were executed in the State of
Florida and delivered to Bank in the State of Florida.
Environmental Monitoring & Testing
Corporation
Taxpayer Identification Number:
62-1265486
CORPORATE By: /s/ Vincent A. Ferri
SEAL Vincent A. Ferri, President
By: /s/ Sidney Pump
Sidney Pump, Secretary
