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
00000 Xx. Xxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 (the
"Partnership"), Xxxxxxx X. Xxxxx, whose address is 00000 Xx.
Xxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 ("Xxxxx"), and Xxxxxx
Xxxxxx, whose address is 0000 XX 00xx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxx 00000 ("Xxxxxx").
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 Xxxxxx X. Xxxxxxx (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, Xxxxx and Xxxxxx have, and will,
from personal funds, make advances ("Xxxxx/Xxxxxx 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
Xxxxx and Xxxxxx for the Xxxxx/Xxxxxx Advances made by Xxxxx to
the Partnership, the Partnership hereby acknowledges that, it is
and will become indebted to Xxxxx and Xxxxxx in the amount of
$175,000, and the Partnership agrees to repay to Xxxxx and Xxxxxx
for the Xxxxx/Xxxxxx Advances made by them on behalf of the
Partnership to repay the Subject Loan.
2. To evidence its obligation to Xxxxx and Xxxxxx, the
Partnership will, each time a Xxxxx/Xxxxxx 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/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, General
Partner, not individually
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, General
Partner, not individually
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, General
Partner, not individually
By:
__________________________
Xxxxxx Pump, General
Partner, not individually
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, individually
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, individually
Exhibit "A" to Loan Agreement
PROMISSORY NOTE
$175,000.00 November 3, 1999
Environmental Monitoring & Testing Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Individually and collectively "Borrower")
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx - XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
(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 Xxxx 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
000000000) 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:
00-0000000
CORPORATE By: /s/ Xxxxxxx X. Xxxxx
SEAL Xxxxxxx X. Xxxxx, President
By: /s/ Xxxxxx Pump
Xxxxxx Pump, Secretary
