EXHIBIT 10.110
Aquagenix, Inc.
Amendment No. 3
12.50% Senior Secured Notes Due October 31, 2003
AMENDMENT NO. 3 (this "Amendment"), dated as of June 30, 1997, by and
among AQUAGENIX, INC. (the "Company"), a Delaware corporation and THE EQUITABLE
LIFE ASSURANCE SOCIETY OF THE UNITED STATES (the "Noteholder").
1. PRELIMINARY STATEMENT
1.1 The Company entered into an Amended and Restated Senior Secured
Note and Warrant Purchase Agreement (the "Original Note Purchase Agreement", as
in effect immediately prior to the date hereof, the "Existing Note Purchase
Agreement" and as amended hereby, the "Amended Note Purchase Agreement"), dated
as of December 15, 1995, with the Noteholder, pursuant to which the Company
issued and sold to the Noteholder $5,000,000 in principal amount of the
Company's 12.50% Senior Secured Notes due October 31, 2003 (the "Notes").
1.2 The Company has requested an amendment to Sections 7.4 and 7.5 of
the Existing Note Purchase Agreement.
1.3 Capitalized terms used herein and not defined herein have the
meanings specified by the Existing Note Purchase Agreement.
2. AMENDMENTS
Subject to Section 4.7 hereof, the Existing Note Purchase Agreement is
hereby amended as follows:
2.1 Interest Expense Coverage Ratio (Section 7.4 of the Note
Purchase Agreement.)
The requirement in Section 7.4 of the Existing Note Purchase Agreement
that the Company maintain a minimum Interest Expense Coverage Ratio is hereby
suspended during the period July 1, 1997 through June 30, 1998.
2.2 Minimum Consolidated Net Worth (Section 7.5 of the Note
Purchase Agreement).
Section 7.5 of the Existing Note Purchase Agreement is hereby amended
to permit Consolidated Net Worth for the period from and including January 1,
1997 to and including June 30, 1998 to be not less than $4,000,000.
3. WARRANTIES AND REPRESENTATIONS
To induce the Noteholder to enter into this Amendment, the Company
warrants and represents to the Noteholder that as of the date hereof the
representations set forth in this Section 3 are true and correct in all material
respects.
3.1 Authorization, Execution and Enforceability.
The execution and delivery of this Amendment by the Company and the
Subsidiaries set forth below has been duly authorized by all necessary action on
the part of the Company and such
Subsidiaries. The Amended Note Purchase Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms.
3.2 Existence of Defaults.
After giving effect to this Amendment, no Default or Event of Default
will exist under the Amended Note Purchase Agreement or any other agreement of
the Company evidencing or governing Debt.
3.3 Governmental Consent.
Neither the execution and delivery by the Company of this Amendment nor
the performance by the Company of its obligations under the Amended Note
Purchase Agreement is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority on
the part of the Company as a condition thereto.
4. MISCELLANEOUS
4.1. Scope of Amendment.
Except as expressly provided herein,
(a) no other terms and provisions of the Existing Note
Purchase Agreement are modified or changed by this Amendment,
(b) the Interest Expense Coverage Ratio and the Consolidated
Net Worth requirements set forth in Section 7.4 and Section 7.5 of the
Existing Note Purchase Agreement, for the periods other than those set
forth in Section 2.1 and Section 2.2 hereof, shall remain as set forth
in the Existing Note Purchase Agreement, and
(c) the terms and provisions of the Existing Note Purchase
Agreement shall continue in full force and effect.
The Company hereby acknowledges, confirms, reaffirms and ratifies all of its
obligations and duties under the Amended Note Purchase Agreement and all
agreements related thereto. This Amendment is not a limitation on the ability of
the Noteholder to exercise any of its rights and remedies due to any Default or
Event of Default under the Amended Note Purchase Agreement.
4.2 Payment of Consent Fee.
The Company hereby agrees to pay to the Noteholder a quarterly consent
fee equal to one quarter of one percent (0.25%) of the outstanding principal
balance of the Notes as of the final day of the most recently ended fiscal
quarter prior to the due date of such payment (the "Consent Fee"). The Consent
Fee, if any, shall be due on or before January 31, 1998, April 30, 1998 and July
31, 1998 if the Company has failed to comply with the Interest Expense Coverage
Ratio and the Consolidated Net Worth requirements set forth in Sections 7.4 and
7.5, respectively, of the Original Note Purchase Agreement for the most recently
ended fiscal quarter prior to such date. Failure of the Company to pay the
Consent Fee when due shall result in an Event of Default under Section 9.1(b) of
the Existing Note Purchase Agreement.
AQUAGENIX, INC. 2 AMENDMENT NO. 3
4.3 References to Note Purchase Agreements.
Upon the effectiveness of this Amendment, each reference to the "Note
Purchase Agreement" in the Amended Note Purchase Agreement and each agreement or
document referring thereto shall mean and be a reference to the Amended Note
Purchase Agreement.
4.4 Successors Bound.
This Amendment shall inure to the benefit of, be enforceable by, and be
binding upon the successors and assigns of each of the parties hereto,
including, without limitation, subsequent holders of Notes.
4.5 Governing Law.
This Amendment shall be construed and enforced in accordance with and
governed by the laws of the State of New York, including Section 5-1401 of the
New York General Obligations Law but excluding all other choice-of-law and
conflicts-of-law rules.
4.6 Final Written Expression.
This Amendment may not be contradicted by evidence of any actual or
alleged prior, contemporaneous or subsequent understandings or agreements of the
parties, written or oral, express or implied, other than a writing which
expressly amends or supersedes this Amendment or the Amended Note Purchase
Agreement, and there are no unwritten oral understandings or agreements between
the parties concerning the subject matter of this Amendment.
4.7 Effectiveness.
This Amendment may be executed in one or more counterparts and each set
of counterparts which, collectively, show execution by the Company, each of the
Subsidiaries and the Noteholder shall constitute one duplicate original. This
Amendment shall be deemed to have become effective on the date hereof, upon
(a) the execution of a counterpart hereof by the Company, each
of the Subsidiaries and the Noteholder, and
(b) the delivery of such counterparts to special counsel for
the Noteholder, Xxxxxxx X. Xxxxx, Esq., Xxxx & Xxxxxx, Xxx
Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, Fax: (000) 000-0000
(regardless of whether any or all of such executions and
deliveries occur before or after the date hereof).
[Remainder of page intentionally blank. Next page is the
signature page.]
AQUAGENIX, INC. 3 AMENDMENT NO. 3
IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of
the date first written above.
AQUAGENIX, INC.
By /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial Officer
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ Xxxxxxx Xxxxx, Xx.
--------------------------
Name: Xxxxxxx Xxxxx, Xx.
Title: Investment Officer
Aquagenix Land-Water Technologies, Inc. (f/k/a Environmental Waterway
Management, Inc.) Florida Underground Petroleum Tank Contractors, Inc., and
AmerAquatic, Inc (f/k/a Xxxx Environmental Services, Inc.) Each consent to the
foregoing amendments and reaffirm their respective obligations under the
Subsidiary Guaranties and the Subsidiary Security Agreements.
AQUAGENIX LAND-WATER
TECHNOLOGIES, INC. (f/k/a Environmental
Waterway Management, Inc.
By /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial Officer
FLORIDA UNDERGROUND PETROLEUM
TANK CONTRACTORS, INC.
By /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial Officer
AMERAQUATIC, INC.(f/k/a Xxxx
Environmental Services, Inc.)
By /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial Officer
AQUAGENIX, INC. 4 AMENDMENT NO. 3
