AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT is dated as of the day of
29, March, 1996, by and between FLORIDA UNDERGROUND PETROLEUM
TANK CONTRACTORS, INC., a Florida corporation ("Borrower") and
SUNTRUST BANK, MIAMI, N.A., a national banking association. f/k/a
SunBank/Miami, N.A. ("Lender").
RECITALS
A. Borrower and Lender entered into a Loan Agreement dated as
of the 10th day of February, 1995 (the "Agreement").
B. Borrower and Lender have agreed to certain modifications
to such Agreement.
NOW, THEREFORE, in consideration of the recitals, and of the
mutual covenants and agreements set forth below, Borrower and
Lender agree as follows:
1. The above recitals are true and correct and are incorporated herein by
reference.
2. The Agreement is amended as follows:
A. Section 1 Recitals, sub paragraph (b) is amended to read
as follows:
(b) Lender has issued its commitment letter to Borrower
dated October 12, 1994 and has further amended the same by letter
dated March 11, 1996 (collectively the "Commitment Letter"), the
terms and conditions of which to the extent not modified hereby are
incorporated herein by reference.
B. Section 2. Definitions is amended in part as follows:
(j) Guarantors. Aquagenix, Inc., a Delaware corporation,
Alan Chesler, Andrew Chesler, Robert Radler, Environmental Waterway
Management, Inc., a Florida corporation, Haas Environmental
Services, Inc., a New Jersey corporation and any future subsidiary
of Aquagenix, Inc.
(l) Note. The Renewal and Amended Promissory Note of
even date herewith from Borrower to the order of Lender in the
principal amount of $760,000.00 evidencing the Loan.
C. Section 12, is amended to add the following sub
paragraph:
(n) Income Tax Returns. Within thirty (30) days of
filing, Borrower shall provide to Lender a complete copy of its
corporate tax return, or, if extended, a copy of the extension
request.
D. Section 15, is amended to add the following sub-
paragraph:
(s) Release. While the receivables of Borrower and Haas
Environmental Services, Inc. ("Haas") are pledged to Lender as
collateral for the loan, it is understood, that in the event of
sale of Borrower and or sale of Haas by its parent Aquagenix, such
receivables of Borrower shall be released as collateral upon
receipt by Lender of a principal reduction of $380,000.00.
3. Defined Terms. All capitalized terms used in this
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 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 this
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 Amendment
will not impair the lien of the Security Agreement dated as of
February 10, 1995 or any Financing Statement incident thereto;
(iii) the execution of this 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 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 this Amendment, the
Agreement is hereby confirmed and shall remain in full force and
effect.
8. LENDER AND 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 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 AMENDMENT.
IN WITNESS WHEREOF, the parties have hereunto caused this
Amendment to be executed by their respective officers thereunto
duly Authorized as of the date above first written.
/s/Rose Edens Florida Underground Petroleum Tank
Witness Rose Edens Contractors, Inc.
/s/Bruce C.Blaise By /s/Andrew Chesler
Witness Bruce C. Blaise Print Andrew Chesler
As its Exec. Vice President
Corporate seal
/s/Bruce C. Blaise SunTrust Bank, Miami, N.A.
Witness Bruce C. Blaise
By /s/John Thompson
/s/Rose Edens Print John Thompson
Witness Rose Edens As its Vice President
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 29 day March,
1996, by Andrew Chesler as Executive Vice President of Florida
Underground Petroleum Tank Contractors, Inc., a Florida corporation who
has produced FL Drivers Licencse 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.:
RENEWED AND AMENDED PROMISSORY NOTE
The capitalized and defined terms used in this Promissory Note
(hereinafter referred to as this "Note") shall have the following
meanings:
HOLDER: SunTrust Bank, Miami, N.A., f/k/a SunBank/Miami, N.A., a
national banking association, its successors and/or assigns, having
an address at 1111 Lincoln Road, Miami Beach, Florida 33139, Attn:
Commercial Loans Department.
MAKER: Florida Underground Petroleum Tank Contractors, Inc., a
Florida corporation, whose address is 6500 N.W. 1 5th Avenue, Ft.
Lauderdale, Florida 33309.
EFFECTIVE DATE: Effective as of March 29, 1996
PLACE OF EXECUTION: Miami, Florida
PRINCIPAL AMOUNT: Seven Hundred Sixty Thousand and NO/100
Dollars (U.S. $760,000.00)
INTEREST RATE: A rate per annum of simple interest equal to one and
one half percent per annum (1.5W) in excess of the rate from time
to time published or announced by SunTrust Banks of Florida, Inc.
as its prime rate ("Prime Rate") (but not necessarily the best or
lowest rate charged borrowing customers of SunTrust Banks of
Florida, Inc.), changing when and as the Prime Rate changes.
PAYMENT DATE: Beginning on May 1, 1996 and on the 1st day of each
month thereafter, until the Due Date, as provided hereinbelow.
DUE DATE: The earlier to occur of (a) the Florida Department of
Environmental Protection ("FDEP") remits final reimbursement to the
Maker or the Holder for the environmental remediation to be
performed pursuant to that certain Remedial Action Plan Phase I,
dated March 25, 1994 (the "RAP"), as approved by the State of
Florida pursuant to that certain letter from the FDEP, dated June
10, 1994, (b) the Maker receives final payment pursuant to that
certain Environmental Services Contract (the "Environmental
Services Contract") entered into by and between Riverfront
Associates, a Florida general partnership, the Maker and Wingerter
Environmental Incorporated, a Florida corporation, (c) the
Environmental Services Contract is terminated for any reason
whatsoever, or (d) February 10, 1997.
SECURITY: All assets of Maker, including, without limitation, all
of Maker's rights under the Environrnental Services Contract, all
of Maker's rights to receive reimbursements from the FDEP regarding
environmental remediation to be perforrned pursuant to the RAP and
Borrower's lien rights on the property located at 35 S.E. Fifth
Street, Miami, Florida, all as more particularly described in the
Security Agreement and the Assignment dated of even date herewith
executed by the Maker in favor of the Holder together with all
other documents which may now or hereafter evidence and/or secure
this Note, together with all future modifications, amendments,
extensions, or renewals thereof (collectively, the "Security
Documents")
FOR VALUE RECEIVED, the undersigned Maker, jointly and severally if
more than one, hereby promises to pay to the order of Holder, in
immediately available funds of the United States of America, or in
such other manner or at such other place as the then holder of this
Note may designate, the Principal Amount of Seven Hundred Sixty
Thousand and NO/00 Dollars (U.S. $760,000.00) or so much thereof as
shall from time to time have been advanced pursuant to the Loan
Agreement dated as of February 10, 1995 and as amended by First
Amendment to Loan Agreement dated of even date herewith
(collectively, the "Loan Agreement") between the Maker and the
Holder, together with interest on the unpaid balance of said sum at
the Interest Rate and based upon a 360-day year.
Principal and interest shall be payable in lawful money of the
United States of America at the offlce of the Holder, or at such
other place as the Holder may designate in writing, as follows:
(i) Maker shall make monthly payments of interest at the
Interest Rate on the unpaid principal balance outstanding from time
to time, commencing on May 1, 1996 and on each Payment Date
thereafter through and including the Due Date;
(ii) Maker shall make monthly principal payments of at least
$5,000.00 per month at the same time it makes the payments of
interest described above; and
(iii) Notwithstanding anything contained herein to the
contrary, the outstanding Principal Amount of this Note with all
monies advanced under the Loan Agreement and all accrued and unpaid
interest, shall be due and payable on the Due Date.
The Maker may prepay this Note in whole or in part at any time
prior to maturity without premiurn or penalty. Unless expressly
specified otherwise by Maker in writing at time of remittance of
any payment due hereunder, any partial prepayment will be applied
first to the payment of interest, late charges, fees and accrued
interest thereon, and then to unpaid principal. No prepayment shall
affect Maker's obligation to timely make payments in accordance
with the terms hereof.
If any payment of interest or princlpal is not paid on or
before the fifth (5th) day after which it is due, or if any
monetary Event of Default (as defined in the Loan Agreement) has
occurred or is continuing beyond the fifth (5th) day after which it
is due under any instrument by which this Note is, or may hereafter
be, secured, the Holder, at its option, shall be entitled to
collect a late charge equivalent to five (5W) percent of the amount
then due and, further, at the option of the Holder, the entire
principal balance, and interest then accrued, whether or not
otherwise then due, shall become immediately due and payable, and,
whether or not the Holder has exercised said option, interest shall
accrue on the entire principal balance, and interest then accrued,
at the maximum rate permitted by law until fully paid or, if the
Holder has not exercised said option, for the duration of such
Event of Default. No consent or assent, express or implied, to any
monetary breach of one or more of the covenants and agreements of
this Note or the Security Documents shall be deemed to be a waiver
of any succeeding monetary breach.
If any nonmonetary Event of Default has occurred or is
continuing under any Security Documents, the entire principal
balance, and interest then accrued, whether or not otherwise then
due, shall, at the option of the Holder, become immediately due and
payable within fifteen (15) days after Holder's delivery or mailing
of demand or notice to the attention of Maker, as provided in the
Loan Agreement, at the last address of Maker on the records of
Holder, and whether or not the Holder has exercised said option,
interest shall accrue on the entire principal balance, and interest
then accrued, at the maximum rate permitted by law until fully paid
or, if the Holder has not exercised said option, for the duration
of such event of default. No consent or assent, express or implied,
to any nonmonetary breach of one or more of the covenants and
agreements of this Note shall be deemed to be a waiver of any
succeeding nonmonetary breach.
Maker hereby authorizes Holder, if and to the extent payments
of principal and/or interest owing under this Note are not made
when due, to setoff and charge against the accounts of the Maker
maintained with or at Holder any payments of principal and/or
interest from any of Maker's accounts, without any need to first
notify Maker with respect thereto. Holder shall deliver Maker a
written statement indicating amounts so deducted or setoff;
provided however, that Holder's failure to give such notice shall
not affect the validity of such deduction or setoff.
In the event any payment made by Maker hereunder is not
honored or is otherwise returned by Holder to Maker because it is
incomplete, inaccurate, or deficient in any manner whatsoever, then
Maker agrees to pay Holder a fee of $25.00 for each such returned
payment, which fee shall be in addition to (and not in lieu of) any
other applicable late charges and fees, and whLch $25.00 fee shall
not constitute "interest" for purposes of computing the default
rate of interest hereunder.
No assent or consent, express or implied, to any breach
(whether monetary or nonmonetary or whether material or immaterial)
of one or more of the covenants and agreements of this Note as set
forth herein or in the Security Documents shall be deemed to be a
waiver of any succeeding or other such breach. The remedies of
Holder as provided herein and in the Security Documents shall be
cumulative and concurrent, and may be pursued singly, successively
or together, at the sole discretion of Holder, and may be exercised
as often as occasion therefor shall arise. No act of omission or
commission of Holder, including, specifically, any failure to
exercise any right, remedy or recourse, shall be effective unless
it is set forth in a written document executed by Holder and then
only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as
continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to any subsequent event.
Notwithstanding anything contained herein, or in any
instrument by which this Note may be secured, to the contrary, no
provision contained herein or therein which purports to obligate
the undersigned to pay any amount of interest or any fees, costs or
expenses which are in excess of the maximum permitted by applicable
law, shall be effective to the extent it calls for the payments of
any interest or other amount in excess of such maximum. Any such
excess shall, at the option of the Holder, either be paid to Maker
or be credited to principal, and, in the event the outstanding
principal obligation hereunder shall have been satisfied, any
excess remaining thereafter shall be returned to Maker.
Maker, and all sureties, endorsers, and guarantors of this
Note, hereby (a) waive demand, presentment for payment, notice of
nonpayment, protest, notice of protest and all other notice, filing
of suit and diligence in collecting this Note, in enforcing any of
the security rights or in proceeding against the Security; (b)
agree to any substitution, exchange, addition or release of any of
the Security or the addition or release of any party or person
primarily or secondarily liable hereon; (c) agree that Holder shall
not be required first to institute any suit, or to exhaust his,
their or its remedies against Maker or any other person or party to
become liable hereunder or against the Security in order to enforce
payment of this Note; (d) consent to any extension, rearrangement,
renewal or postponement of time of payment of this Note and to any
other indulgence with respect hereto without notice, consent or
consideration to any of the foregoing; (e) agree and promise to pay
all reasonable costs and expenses, including attorneys' fees and
disbursements (whether suit be brought or not, and at all
pre-trial, trial and appellate levels, including, without
limitation, in connection with any bankruptcy proceedings) incurred
by the Holder in connection with any default or in any proceeding
to protect or enforce any provision of this Note, the Security
Documents, or any instrument by which the Note is secured, whether
or not suit be brought; and (f) agree that, notwithstanding the
occurrence of any of the foregoing (except the express written
release by Holder of any such person), they shall be, and shall at
all times relevant hereto remain, jointly and severally, directly
and primarily, liable for all sums due under this Note and the
Security Documents.
This Note is secured by the Security Documents and all other
documents which may now or hereafter evidence and/or secure this
Note, together with all future modifications, amendments,extensions,
or renewals thereof.
This Note and each of the Security Documents securing the same
are to be governed by the laws of the State of Florida. Terms used
herein which are defined in the Security Documents but which are
not otherwise defined herein have the same definition as set forth
in the Security Documents. In the event of any conflict between the
terms set forth in this Note and the Security Documents, the terms
as described and set forth in this Note shall control.
If more than one, all obligations and agreements of the
undersigned Maker(s) are joint and several.
Nothing contained herein shall be deemed to limit any rights,
powers or privileges which the Holder may have by reason of it
being a national banking association pursuant to any law of the
State of Florida or of the United States, or any rule, regulation
or order of any departrnent or agency thereof, and nothing herein
shall be deemed to make unlawful any transaction or conduct by the
Holder which is lawful pursuant to, or which is permitted by, any
of the foregoing.
THIS NOTE RENEWS AND AMENDS THAT CERTAIN PROMISSORY NOTE
DATED AS OF FEBRUARY 10, 1995 IN THE PRINCIPAL AMOUNT OF $760,000.00.
AQUAGENIX, INC. (THE PARENT OF MAKER) HAS THIS DATE EXECUTED
AND DELIVERED TO HOLDER A PROMISSORY NOTE IN THE AMOUNT OF $760,000.00.
ANY DEFAULT IN SUCH NOTE SHALL BE DEEMED A DEFAULT HEREUNDER.
MAKER AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY 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, THE NOTE OR ANY OF THE SECURITY DOCUMENTS, OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF ANY KIND BY EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE HOLDER TO MARE THE LOAN EVIDENCED HEREBY.
IN WITNESS WHEREOF, the undersigned Maker(s) has executed this
Note as of the date first above written.
Florida Underground Petroleum Tank
Contractors, Inc a Florida corporation
By /s/Andrew Chesler
Print Andrew Chesler
As its Executice Vice President
Corporate Seal
RE-AFFIRMATION AND RATIFICATION OF GUARANTY
AGREEMENTS
THIS RE-AFFIRMATION AND RATIFICATION OF GUARANTY AGREEMENTS
is made and entered into this 29th 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 AQUAGENIX, INC., a Delaware Corporation, hereinafter
collectively called "Guarantors".
RECITALS:
A. As of February 10, 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 $760,000.00 loan dated as of February 10, 1995 (the
"Loan") made by Lender to Florida Underground Petroleum Tank
Contractors, Inc., a Florida 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 $760,000.00
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 February 10, 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/Alan Chesler
Alan Chesler
/s/Robin Miller
Witness Robin Miller /s/Robert Radler
Robert Radler
Environmental Waterway
Management, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its President
Hass Environmental
Services, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its Vice President
Aquagenix, Inc.
By /s/Andrew Chesler
Print Andrew Chesler
As its President
STATE OF FLORIDA )
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 29th
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 No:
STATE OF FLORIDA )
COUNTY OFBROWARD )
The foregoing instrument was acknowledged before me this 29th
day of March, 1996 by Alan 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 No:
STATE OF FLORIDA )
COUNTY OFBROWARD )
The foregoing instrument was acknowledged before me this 29th
day of March, 1996 by Robert Radler 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 No:
STATE OF FLORIDA )
COUNTY OFBROWARD )
The foregoing instrument was acknowledged before me this 29th
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 No:
STATE OF FLORIDA )
COUNTY OFBROWARD )
The foregoing instrument was acknowledged before me this 29th
day of March, 1996 by Andrew Chesler as Vice President of Aquagenix,
Inc., a Delaware 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 No:
STATE OF FLORIDA )
COUNTY OFBROWARD )
The foregoing instrument was acknowledged before me this 29th
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 No: