REAFFIRMATION OF GUARANTY AGREEMENT
THIS REAFFIRMATION OF GUARANTY AGREEMENT ("Reaffirmation") dated this
_3RD__ day of __OCTOBER______________, 1997, is made by AQUAGENIX, INC., a
Delaware corporation ("Guarantor").
W I T N E S S E T H:
WHEREAS, AQUAGENIX LAND-WATER TECHNOLOGIES, INC., a Florida corporation
("Borrower"), executed and delivered that certain Promissory Note in favor of
CAPITAL BANK ("Lender"), dated April 10, 1997, in the original principal amount
of Seven Hundred Fifty Thousand Dollars ($750,000) ("Line of Credit Note") and
that certain Promissory Note in favor of Lender dated April 10, 1997, in the
original principal amount of Two Hundred Fifty Thousand Dollars ($250,000)
("Term Note") (collectively, the Line of Credit Note and the Term Note are
hereinafter the "Note"), which Note is secured by that certain Security
Agreement dated April 10, 1997, as modified by the First Amendment to Security
Agreement dated even date herewith (collectively, "Security Agreement") and that
certain UCC-1 Financing Statement filed with the Secretary of State of Florida
and bearing File No. U97000002408 ("UCC-1"); and
WHEREAS, Guarantor executed and delivered to Lender that certain
Continuing Guaranty ("Guaranty"), dated as of April 10, 1997, securing, among
other things, the payment and performance of Borrower under the Note, the
Security Agreement, the UCC-1 and all other loan documents executed in
connection therewith and more particularly described in the Guaranty
(collectively, the "Loan Documents"); and
WHEREAS, even date herewith Lender has extended to Borrower the following
additional credit facilities: (i) term loan as evidenced by the Term Promissory
Note dated even date herewith in the original principal amount of Two Hundred
Thousand Dollars ($200,000); and (ii) guidance equipment line as evidenced by
the Guidance Equipment Line Promissory Note dated even date herewith in the
original principal amount of Two Hundred Seventy Thousand Dollars ($270,000)
(collectively, the "Additional Credit Facilities"); and
WHEREAS, the Lender has, on this date, agreed to modify the terms of the
Note and Security Agreement, and in connection therewith Borrower has executed
that certain Future Advance Note in the original principal amount of Two Hundred
Fifty Thousand Dollars ($250,000) ("Future Advance Note") and that certain
Consolidated Promissory Note dated even date herewith in the original principal
amount of One Million Dollars ($1,000,000) which consolidates the Future Advance
Note and the Line of Credit Note (collectively, the "Consolidated Note"); and
WHEREAS, as a condition to Lender agreeing to modify the Note and extend
the Additional Credit Facilities, the Lender is requiring Guarantor to reaffirm
its obligations under the Guaranty and to acknowledge that the Guaranty secures
the obligations of Borrower under the Note, the Security Agreement, the
Consolidated Note, the Additional Credit Facilities and all loan documents
executed in connection therewith (collectively, the "Modification Documents").
1
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Guarantor hereby agrees as follows:
1. The foregoing recitals are true and correct and incorporated herein
by this reference.
2. Guarantor hereby reaffirms its obligation to unconditionally and
irrevocably guarantee to Lender the full and punctual payment (without set-off,
defense or any deduction), performance and observance by the Borrower of all the
terms, covenants and conditions contained in the Note, the Consolidated Note,
the Additional Credit Facilities and the Loan Documents, as more fully set forth
in the Guaranty.
3. Guarantor hereby acknowledges and agrees that the "indebtedness" as
defined in the Guaranty shall include, without limitation, all of Borrower's
obligations to Lender under the Note, the Consolidated Note, and the Additional
Credit Facilities, including without limitation, all principal, interest, fees
and expenses, including attorney's fees, evidenced by the Note, the Consolidated
Note, the Additional Credit Facilities and the other Modification Documents or
otherwise, or arising in connection with the foregoing, whether existing now or
arising hereafter, as such indebtedness may be modified, increased, extended or
renewed from time to time. Guarantor further agrees and acknowledges that
Guarantor's Unconditional Guaranty of Borrower's timely performance of all of
its obligations under all of the Loan Documents, shall include, without
limitation, Borrower's obligations under the Modification Documents.
4. Guarantor fully reaffirms all of the terms and provisions of the
Guaranty as modified hereby and confirms to Lender that, as of the date hereof,
the Guaranty, as modified hereby, is a valid obligation of the Guarantor,
enforceable in accordance with its terms, without defense or off-set whatsoever.
Guarantor further acknowledges that, except as specifically provided by this
Reaffirmation, no part of the Guaranty is in any way altered, amended or
changed.
5. Guarantor acknowledges receipt of copies of the Consolidated Note,
the Additional Credit Facilities, the First Amendment to Security Agreement and
the Modification Documents, and joins in and consents to same as if fully set
forth herein.
6. Guarantor waives any right of indemnity or subrogation against the
Borrower.
7. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY 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 THE PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER'S ENTERING INTO THE MODIFICATION EVIDENCED BY
THE MODIFICATION DOCUMENTS.
2
IN WITNESS WHEREOF, the undersigned has caused this Reaffirmation to be
signed and sealed as of the date and year set forth above.
Signed, Sealed and Delivered GUARANTOR:
in the Presence of:
WITNESSES: AQUAGENIX, INC.
/s/ Brenda Stewart By: /s/ Andrew Chesler (SEAL)
- -------------------------------- ----------------------------------
Andrew Chesler, President
Brenda Stewart
- --------------------------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgments, the
foregoing instrument was acknowledged before me by ___Andrew Chesler_____, the
__President_ of AQUAGENIX, INC., a Delaware corporation, freely and voluntarily
under authority duly vested in him/her by said corporation and that the seal
affixed thereto is the true corporate seal of said corporation. He/She is
personally known to me or who has produced ______________________ as
identification.
WITNESS my hand and official seal in the County and State last aforesaid
this _3rd_ day of __October_, 1997.
/s/ Susanna Goins Metzger
-----------------------------------------------
Notary Public
Susanna Goins Metzger
-----------------------------------------------
Typed, printed or stamped name of Notary Public
My Commission Expires:
1/4/99
3