Exhibit 10.111
AQUAGENIX, INC.
AMENDMENT NO. 4
12.50% Senior Secured Notes due October 31, 2003
AMENDMENT NO. 4 (this "Amendment"), dated as of March 31, 1998, 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 (as in effect
immediately prior to the date hereof, the "Original Notes" and as amended
hereby, the "Amended Notes").
1.2 The Company has requested further amendment to Sections 7.4 and 7.5
of the Existing Note Purchase Agreement and the Original Notes.
1.3 Capitalized terms used herein and not defined herein have the
meanings specified by the Existing Note Purchase Agreement.
2. AMENDMENTS
2.1 Amendments to the Existing Notes Purchase Agreement.
Subject to Section 4.7 hereof, the Existing Note Purchase Agreement is
hereby amended as follows:
(a) 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 March 31, 1999.
(b) 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 March 31, 1999, calculated at the end of each
fiscal period of the Company set forth in the chart below, to be not less than
the amount set forth opposite such period:
Fiscal Quarter Ending Amount
===================== ==========
March 31, 1997 $4,000,000
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June 30, 1997 $4,000,000
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September 30, 1997 $4,000,000
--------------------- ----------
December 31, 1997 $4,000,000
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December 31, 1998 $1,500,000
--------------------- ----------
March 31, 1999 $1,500,000
===================== ==========
There shall be no minimum Consolidated Net Worth requirement for each of the
fiscal quarters ending March 31, 1998, June 30, 1998 and September 30, 1998.
2.2 Amendments to the Original Notes.
(a) The first paragraph of the Original Notes is hereby amended as
follows:
"AQUAGENIX, INC. (together with its successors and assigns, the
"Company"), a Delaware corporation, for value received, hereby promises to pay
to THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES or registered
assigns the principal sum of FIVE MILLION DOLLARS ($5,000,000) on October 31,
2003 and to pay interest (computed on the basis of a 360-day year of twelve
30-day months) on the unpaid principal balance thereof from the date of this
Note at the rate of twelve and one-half percent (12.50%) per annum, payable (i)
quarterly on the last day of each January, April, July and October in each year,
commencing on January 31, 1996 and ending on April 30, 1998 and (ii) monthly on
the last day of each month commencing May 31, 1998, until the principal amount
hereof shall be due and payable; and to pay on demand interest on any overdue
principal (including any overdue payment of principal) and (to the extent
permitted by applicable law) on any overdue installment of interest, at a rate
equal to the lesser of (i) the highest rate allowed by applicable law or (ii)
fourteen and one-half percent (14.50%) per annum."
(b) All Original Notes outstanding as of the date hereof, without
any further action being required on the part of the Company or the Noteholder
(or on the part of any other Person), are deemed to be conformed to the form of
Amended Note as set forth in Section 2.2(a) hereof. The outstanding Amended
Notes shall be and are entitled to all the rights and benefits provided therefor
in the Amended Note Purchase Agreement.
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.
AQUAGENIX, INC. 2 AMENDMENT N0. 4
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 or the Original Notes 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 Original Note
Purchase Agreement, for the periods other than those set forth in Section 2.1(a)
and Section 2.1(b) hereof, shall remain as set forth in the Original Note
Purchase Agreement, and
(c) the terms and provisions of the Existing Note Purchase
Agreement and the Original Notes 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, the Amended
Notes 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 or Default under the Amended Note Purchase Agreement.
4.2 Payment of Consent Fee.
In the event that 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, the Company hereby
agrees to pay to the Noteholder by wire transfer of
AQUAGENIX, INC. 3 AMENDMENT N0. 4
immediately available funds as directed by the Noteholder on Schedule 4.2 hereto
(i) a quarterly consent fee equal to one quarter of one percent (0.25%) of the
outstanding principal balance of the Amended Notes as of the final day of the
most recently ended fiscal quarter prior to the due date of such payment (the
"Quarterly Consent Fee"), such Quarterly Consent Fee, if any, shall be due on or
before January 31, 1998 and April 30, 1998 and (ii) a monthly consent fee equal
to Five Thousand Dollars ($5,000) (the "Monthly Consent Fee" and together with
the Quarterly Consent Fee, the "Consent Fees"), such Monthly Consent Fee, if
any, shall be due on the last day of each month beginning May 31, 1998 through
and including March 31, 1999. Failure of the Company to pay the Consent Fees
when due shall result in an Event of Default under Section 9.1(b) of the
Existing Note Purchase Agreement.
4.3 References to Note Purchase Agreements.
Upon the effectiveness of this Amendment, each reference to the "Note
Purchase Agreement" and the "Notes" 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 and the Amended Notes.
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 the Amended 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, expressed 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
AQUAGENIX, INC. 4 AMENDMENT N0. 4
(b) the delivery of such counterparts to special counsel for the
Noteholder, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, (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. 5 AMENDMENT N0. 4
IN WITNESS WHEREOF, this Amendment No. 4 has been duly executed as of
the date first written above.
AQUAGENIX, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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 ▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman
FLORIDA UNDERGROUND PETROLEUM
TANK CONTRACTORS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
AMERAQUATIC, INC. (f/k/a ▇▇▇▇
Environmental Services, Inc.)
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
AQUAGENIX, INC. 6 AMENDMENT N0. 4
Schedule 4.2
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # 021-000089
Credit: Alliance Corporate Finance Group Inc.
Account #: 3026-3303
Reference: Aquagenix, Inc. Consent Fee
AQUAGENIX, INC. Schedule 4.2-1 AMENDMENT N0. 4
