FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, is made and
entered into as of the 29 day of March , 1996, by and between
AQUAGENIX, INC., a Delaware corporation (the "Borrower") and
SUNTRUST BANK, MIAMI, N.A., f/k/a SunBank/Miami, N.A. (the
"Lender").
RECITALS:
A. Borrower and Lender have heretofore as of August 11, 1995
entered into a Credit Agreement (the "Agreement").
B. Subject to the terms of the Agreement, the Lender agreed
to make Revolving Credit Loans (as defined in the Agreement) up to
the amount of $3,000,000.00 to the Borrower for a period as defined
in the Agreement. As a result, Borrower did execute and deliver to
Lender a Revolving Credit Note dated August 11, 1995 in the amount
of $3,000,000.00 (the "Note").
C. Borrower and Lender have agreed to modify and amend the
Agreement.
NOW THEREFORE, in consideration of good and valuable
consideration, the receipt of which is expressly acknowledged, the
parties agree as follows.
1. The above recitals are true and correct and are
incorporated herein verbatim.
2. The Agreement is hereby modified and amended as follows:
A. The first paragraph of Section 2.1. The Revolving Credit
Loans. is amended to read as follows:
"The Lender agrees, on the terms of this Agreement, to
make Revolving Credit Loans up to the amount of
$750,000.00 to the Borrower for a period terminating on
the earlier of the Termination Date or the termination in
full of the Revolving Credit Commitment of the Lender
pursuant to Section 7 hereof, on a revolving basis, at
such times and, subject to the next paragraph and Section
2.2 below, in such amounts as the Borrower may request
solely for the purposes of providing Revolving Credit
Loans to Environmental Waterway Management, Inc., a
Florida corporation ("EWM") which is a wholly owned
Subsidiary of Borrower. No Revolving Credit Loans shall
be made to Borrower for the benefit of Borrower or any
other Subsidiary of Borrower now in existence or
hereinafter created and Borrower may borrow, repay and
re-borrow from time to time for the benefit of EWM for a
period from the date of this First Amendment to and
including the earlier of the Termination Date or the
termination in full of the Revolving Credit Commitment
pursuant to Section 7 hereof."
B. The fourth paragraph of Section 2.1 of the Agreement is
hereby deleted.
C. The first sentence of the fifth paragraph of Section 2.1
of the Agreement is hereby amended to read as follows:
"The proceeds of the Revolving Credit Loans shall be used
exclusively for the short term working capital needs of
EWM to financing the inventory and accounts of EWM and
for no other purpose."
All other provisions of this fifth paragraph shall remain in
full force and effect as if set forth herein verbatim.
D. The following sentence is added to the end of Section 2.2
of the Agreement:
"No proceeds of any Revolving Credit Loan(s) made
hereunder shall be used for the benefit of Borrower
and/or any Subsidiary of Borrower other than EWM."
E. Section 2.5 Guidance Facility Loans. is hereby deleted.
F. Section 4.1.1. is modified to read as follows:
"The executed Renewal Note in the principal amount of
$750,000.00 dated of even date herewith.
G. Section 5.4 of the Agreement is modified to read as
follows:
"5.4 Furnish to Lender within 14 days after the 15th and
the end of each month, (i) Borrowing Base Certificates,
in form acceptable to Lender; and, (ii) an Accounts
Receivable Aging from each Subsidiary."
H. Section 5 of the Agreement is amended to add a
subparagraph 5.9 which shall read as follows:
"5.9 The Borrower as well as any Subsidiary shall
maintain throughout the term of this Agreement, pollution
insurance in the minimum amount of $1,000,000.00 per
occurrence."
I. Section 6.9 of the Agreement is modified to read as
follows:
"6.9 Pay total annual compensation to Robert Radler,
Alan Chesler, or Andrew Chesler, not to exceed
$168,000, $158,000.00 or $175,000.00 respectively. No
other executive or employee may be paid total annual
compensation exceeding $175,000.00. Such compensation
includes salary, cash bonus and insurance."
J. The Defined Terms as contained in Annex I to Credit
Agreement are in part amended as follows:
(i) "Guidance Facility Commitment" Deleted.
(ii) "Lender" shall mean SunTrust Bank, Miami, N.A., a
national banking association.
(iii) "Prime Rate" shall mean the annual interest rate
announced by SunTrust Banks of Florida, Inc. from time to time, as
the prime rate (which interest rate is only a bench mark, is purely
discretionary and is not necessarily the best or lowest rate
charged borrowing customers of any subsidiary of SunTrust Banks of
Florida, Inc.). Any change in the Prime Rate shall be effective at
the beginning of the Business Day on which such change is
announced.
(iv) "Revolvinq Credit Commitment" shall mean, at the
time any determination thereof is to be made, the obligation of the
Lender to make Revolving Credit Loans pursuant to Section 2 hereof,
or, where the context so requires, $750,000.00.
(v) "Termination Date" shall be March 31, 1997.
3. Defined Terms. All capitalized terms used in this First
Amendment and not otherwise defined herein shall have the meanings
given such terms in the Agreement, as such terms may be amended by
the terms of this First Amendment, and any subsequent amendments,
modifications or restatements of said Agreement.
4. Borrower represents and warrants to Lender that:
(a) It has the power and authority to execute and
deliver and to perform its obligations hereunder as well as any
obligation contained in any instrument executed incident hereto or
to the Agreement.
(b) The execution and performance by Borrower of the
First Amendment and any document incident hereto have been
authorized by all requisite corporate action and will not violate
or be in conflict or result in a breach of any indenture, agreement
or other instrument to which the Borrower is a party or by which it
or any of its property is bound, or any order, writ, injunction or
decree of any court or governmental instrumentality.
5. Borrower represents and warrants to Lender that: (i) it
has no claims or offsets arising out of the Agreement or any
document incident thereto; (ii) the execution of this First
Amendment will not impair the lien of the Security Agreement dated
August 11, 1995 or any Financing Statement incident thereto; (iii)
the execution of this First Amendment will not affect or release
the liability of any party or parties whomsoever who may now or
hereafter be liable under or on account of the Note or any
modifications, renewals or amendments thereto.
6. Should any stamp, excise or intangible taxes or levies
become payable in respect of the execution, delivery or performance
of this First Amendment or any other instrument or document to be
delivered hereunder or any modification thereof, the Borrower shall
pay the same and hold the Lender harmless with respect thereto.
7. Except as specifically amended by the terms of this First
Amendment, the Agreement is hereby confirmed and shall remain in
full force and effect.
8. THE LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS FIRST AMENDMENT AND ANY AGREEMENT CONTEMPLATED
TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING
INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereunto have caused this
First Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above written.
/s/Bruce C. Blaise Aquagenix, Inc., a Delaware
Witness Bruce C. Blaise Corporation
/s/Rose Edens By /s/Andrew Chesler
Witness Rose Edens Print Andrew Chesler
As its President
Corporate Seal
/s/Bruce C. Blaise SunTrust Bank, Miami, N.A.
Witness Bruce C. Blaise
/s/Rose Edens By John Thompson, V.P.
Witness Rose Edens Print John Thompson
As its Vice President
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 29
day of March, 1996, by Andrew Chesler as President of Aquagenix,
Inc., a Delaware corporation who has produced FL Driver's Licence
as identification and who did not take an oath.
/s/Sandra J. Baptiste Sjostrom
NOTARY PUBLIC, STATE OF FLORIDA
Name: Sandra J. Baptiste Sjostrom
Commission No.:
STATE OF FLORIDA)
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 29
day of March, 1996, by John Thompson as Vice President of SunTrust,
Miami, N.A. a national banking association who is personally known
and who did not take an oath.
/s/Sandra J. Baptiste Sjostrom_
NOTARY PUBLIC, STATE OF FLORIDA
Name: Sandra J. Baptiste Sjostrom
Commission No.:
RENEWAL
REVOLVING CREDIT NOTE
$750,000.00 Miami, Florida
March 29, 1996
For value received, AQUAGENIX, INC., a Delaware
corporation (the "Borrower"), which maintains its principal place
of business at 6500 N.W. 15th Avenue, Ft. Lauderdale, Fl. 33309,
hereby promises to pay to the order of SUNTRUST BANK, MIAMI, N.A.
(the "Lender"), on March 31, 1997, at its banking office located at
1111 Lincoln Road, Miami Beach, Florida 33139 (or at such other
address as the Lender shall designate in writing to the Borrower),
the principal sum of Seven Hundred Fifty Thousand Dollars
($750,000.00), or the aggregate unpaid principal amount of all
loans evidenced by this Revolving Credit Note made by the Lender to
the Borrower pursuant to Section 2 of the Credit Agreement (as
amended by First Amendment to Credit Agreement of even date)
hereinafter referred to, whichever is less, in lawful money of the
United States of America, and to pay interest on the unpaid
principal balance hereof in like money at such office from the date
hereof until the principal hereof shall have become due and payable
by acceleration or otherwise, at the rate per annum equal to the
Prime Rate plus one and one half percent (1.5k) per annum. "Prime
Rate" shall be defined to mean the annual interest rate announced
by SunTrust Banks of Florida, Inc., from time to time, as the prime
rate (which interest rate is only a bench mark, is purely
discretionary and is not necessarily the best or lowest rate
charged borrowing customers of any subsidiary bank of SunTrust
Banks of Florida, Inc.). Any change in the Prime Rate shall be
effective at the beginning the business day on which such change is
announced.
Interest payments on this Note shall be paid monthly in
arrears, commencing on April 1, 1996 and continuing monthly on the
1st day of each month thereafter until this Note is paid in full,
and at maturity. Interest on this Note shall be computed on the
actual number of days elapsed over a 360-day year; i.e., l/360th of
a full year's interest shall accrue for each day any loan evidenced
by this Note is outstanding.
If the principal of this Note or any portion hereof and, to
the extent permitted by law, interest hereon shall not be paid when
due, whether by acceleration or otherwise, the same shall bear
interest for any period during which the same shall be overdue at
a rate per annum equal to the highest rate permitted by Florida law
and payable on demand.
This Note is the Note relating to the Revolving Credit Commitment
defined to in the Credit Agreement, dated as of August 11, 1995 and
as amended by First Amendment to Credit Agreement dated of even date
herewith (said Credit Agreement as amended, as heretofore and from
time to time hereafter modified and amended is referred to herein as
the "Credit Agreement"), between the Borrower and the Lender. Each
holder hereof is entitled to the benefits and security provided
thereby or referred to therein, to which Credit Agreement reference
is hereby made for a statement thereof. Reference is made to such
Credit Agreement for rights as to prepayment hereof and the
acceleration of the maturity hereof.
The Borrower hereby agrees to pay all costs incurred by any holder
hereof, including reasonable attorney's fees (Including those for appellate
proceedings), incurred in connection with any Event of Default (as defined
in the Credit Agreement), or in connection with the collection or
attempted collection or enforcement hereof, or in connection with the
protection of any collateral given as security for the payment hereof,
whether or not legal proceedings may have been instituted.
All parties to this Note, including the Borrower and any sureties,
endorsers or guarantors, hereby waive presentment for payment, demand,
protest, notice of dishonor, notice of acceleration of maturity, and all
defenses on the ground of extension of time for payment hereof, and agree
to continue and remain bound for the payment of principal, interest, and
all other sums payable hereunder, notwithstanding any change or changes by
way of release, surrender, exchange or substitution of any security for
this Note or by way of any extension or extensions of time for payment of
principal or interest; and all such parties waive all and every kind of
notice of such change or changes and agree that the same may be made
without notice to or consent of any of them. The rights and remedies of
the holder as provided herein shall be cumulative and concurrent and may
be pursued singularly, successively or together at the sole discretion of
the holder, and may be exercised as often as occasion therefor shall occur,
and the failure to exercise any such right or remedy shall in no event be
construed as a waive or release of the same.
Anything herein to the contrary notwithstanding, the obligations of
the borrower under this Note shall be subject to the limitation that
payments of interest to the Lender shall not be required to the extent that
receipt of any such payment by the Lender would be contrary to provisions
of law applicable to the Lender (if any) which limit the maximum rate of
interest which may be charged or collected by the Lender; provided,
however, that nothing herein shall be construed to limit the Lender to
presently existing maximum rates of interest, if any increased interest
rate is hereafter permitted by reason of applicable federal or state
legislation. In the event that the Borrower make any payment of interest,
fees or other charges, however dominated, pursuant to this Note, which
payment causes the interest paid to the Lender to exceed the maximum rate
of interest permitted by applicable law, any excess over such maximum shall
be applied in reduction of the principal balance owed to the Lender as of
the date of such payment, or if such excess exceeds the amount of
principal owed to the Lender as of the date of such payment, the difference
shall be paid by the Lender to the Borrower.
THE Borrower HEREBY, AND THE Lender BY ITS ACCEPTANCE OF THIS
NOTE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE OR THE CREDIT AGREEMENT AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH
OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE Lender MAKING
THE LOAN EVIDENCED BY THIS NOTE.
This Note shall be governed by and construed ln accordance
with the laws of the State of Florida.
Florida Underground Petroleum Tank Contractors, Inc. (a wholly
owned subsidiary of Borrower has this date executed and delivered
to Lender a promissory note in the principal amount of $760,000.00.
Any default in the terms of such promissory note shall be deemed a
default hereunder and Lender shall have the absolute right to
demand payment in full of all sums due and owing hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to
be executed the day and year first above written.
Aquagenix, Inc., a Delaware
Corporation
By: Andrew Chesler______________
Andrew Chesler
President
(Corporate Seal)
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing promissory note in the principal amount of
$750,000.00 was executed before me this 29 day of March, 1996 by
Andrew Chesler as President of Aquagenix, Inc., a Delaware
corporation and has produced FL. DR. License as identification and
did not take an oath.
Sandra J. Baptiste Sjostrom________
NOTARY PUBLIC, State of Florida
Print: Sandra J. Baptiste Sjostrom
Commission #:
RE-AFFIRMATION AND RATIFICATION OF GUARANTY
AGREEMENTS
THIS RE-AFFIRMATION AND RATIFICATION OF GUARANTY
AGREEMENTS is made and entered into this 29 day of March, 1996 by
ANDREW CHESLER, ALAN CHESLER, ROBERT RADLER,
ENVIRONMENTAL WATERWAY MANAGEMENT, INC., a Florida
corporation, HASS ENVIRONMENTAL SERVICES, INC., a New Jersey
corporation, and FLORIDA UNDERGROUND PETROLEUM TANK
CONTRACTORS, INC., a Florida corporation, hereinafter collectively called
"Guarantors".
RECITALS:
A. On August 11, 1995, Guarantors each executed and
delivered to SunBank/Miami, N.A., a national banking association,
n/k/a SUNTRUST BANK, MIAMI, N.A. ("Lender") separately executed
Guaranty Agreements ("Guaranties").
B. The Guaranties guaranteed a revolving credit loan in the
principal amount of $3,000,000.00 loan dated August 11, 1995 (the
"Loan") made by Lender to Aquagenix, Inc., a Delaware corporation
("Borrower").
C. Borrower has requested Lender to agree to various
modifications of the loan documents relating to the Loan and Lender
has agreed to the same, subject to Guarantors re-affirming and
ratifying their obligations as set forth in the Guaranties.
NOW, THEREFORE, in consideration of these presents, Guarantors
agree as follows:
1. The above recitals are true and correct.
2. Guarantors have each had the opportunity to review the
(i) First Amendment to Credit Agreement (the "First Amendment");
and, (ii) the Revolving Credit Note in the amount of $750,000.00
each dated of even date herewith.
3. Guarantors hereby ratify and re-affirm the Guaranties as
if they were executed on this date and further re-affirm and ratify
that such Guaranties continue to apply to the Credit Agreement
dated as of August 11, 1995 and as amended by the First Amendment
as well as to any document executed incident thereto.
4. The corporate Guarantors named above hereby affirm that
each have the corporate power to execute this Agreement and further
that appropriate authority has been granted to the party executing
this agreement on behalf of such corporate Guarantors.
5. Guarantors represent and warrant to Lender that they have
no claims or offsets arising out of the Guaranties or any document
executed incident thereto. Guarantors represent and warrant to
Lender that the execution of this Agreement, the First Amendment or
the Renewal Revolving Credit Note will not release in any way the
Guarantors from any obligation set forth in the Guaranties.
6. GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
RE-AFFIRM THEIR WAIVER OF THE RIGHT THEY MAY HAVE TO A
TRIAL BY JURY AS SET FORTH IN THE GUARANTIES.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals to be affixed hereto on the day and year first set forth
above.
Witnesses as to all:
/s/Kimberly Floyd /s/Andrew Chesler
Witness Kimberly Floyd Andrew Chesler
/s/Robin Miller /s/Alan Chesler
Witness Robin Miller Alan Chesler
/s/Robert Radler
Robert Radler
Environmental Waterway
Management, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its President
Haas Environmental
Services, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its Vice President
Florida Underground Petroleum
Tank Contractors, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its Vice President
STATE OF FLORIDA )
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 29
day of March, 1996 by Andrew Chesler who produced (known to me)
as identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission:
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledge before me this 29
day of March, 1996 by Alan Chesler who who produced (known to me)
as identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission:
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledge before me this 29
day of March, 1996 by Robert Radler who who produced (known to me)
as identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission:
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledge before me this 29
day of March, 1996 by Andrew Chesler as President of Environmental Waterway
Management, Inc., a Florida corporation who has produced (known to me)
as identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission:
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledge before me this 29
day of March, 1996 by Andrew Chesler as Vice President of Florida Underground
Petroleum Tank Contractors, Inc., a Florida corporation who has produced
(known to me) as identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission:
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledge before me this 29
day of March, 1996 by Andrew Chesler as Vice President of Haas Environmental
Services, Inc., a New Jersey corporation who has produced (known to me) as
identification and who did not take an oath.
/s/Kirsten E. Johnson
NOTARY PUBLIC, STATE OF FLORIDA
Name: Kirsten E. Johnson
Commission: