NOTE AND SECURED REVOLVING LINE OF
CREDIT AGREEMENT MODIFICATION AGREEMENT NO. 4
THIS AGREEMENT, made this 18 day of October, 1995, by and between FLEET
BANK f/k/a FLEET BANK OF NEW YORK, a bank organized and existing under the laws
of the State of New York, and having its principal banking house located at 00
Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (herein called the "Bank") and
ENVIRONMENT-ONE CORPORATION, a New York corporation with its principal place of
business at X.X. Xxx 000, 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000
(herein called the "Borrower").
W I T N E S S E T H:
WHEREAS, the Borrower did execute and deliver to the Bank a Business
Purpose Promissory Note (Demand Line of Credit) in the face amount of Two
Million Five Hundred Thousand and no/100 Dollar ($2,500,000.00) dated as of
October 2, 1992 (herein called the "Note"); and
WHEREAS, the Note is subject to the terms and conditions of a Secured
Revolving Line of Credit Agreement also dated as of October 2, 1992 by and
between the Bank and the Borrower (the "Line of Credit Agreement"); and
WHEREAS, the Note and the Line of Credit Agreement were modified by the
parties pursuant to the terms of a Note and Line of Credit Agreement
Modification Agreement by and between the Borrower and the Bank dated the 23rd
day of March, 1994 and a Letter Agreement dated May 10, 1994 (collectively the
"Modification Agreement"); and
WHEREAS, the Note and the Line of Credit Agreement were further
modified by the parties pursuant to the terms of a Note and Line of Credit
Agreement Modification Agreement No. 2 by and between the Borrower and the Bank
dated the 20th day of March, 1995 (the "Modification Agreement No. 2"); and
WHEREAS, the Note and the Line of Credit Agreement were further
modified by the parties pursuant to the terms of a Note and Line of Credit
Agreement Modification Agreement No. 3 by and between the Borrower and the Bank
dated the 30th day of March, 1995 (the "Modification Agreement No. 3"); and
WHEREAS, the Borrower and the Bank desire to further modify certain
terms of the Note and the Line of Credit Agreement, but only pursuant to the
terms and conditions of this Note and Line of Credit Agreement Modification
Agreement No. 4.
NOW, THEREFORE, in pursuance of said agreement and in consideration of
the mutual promises, covenants and agreements herein contained and other good
and valuable consideration, receipt of which is acknowledged by the parties
hereto, the Borrower and the Bank mutually agree and covenant as follows:
1. The Note is hereby modified, replaced and restated in its entirety
by a Line of Credit Note in the face amount of $2,500,000.00 dated of even date
herewith from the Borrower to the Lender (the "New Note"), a copy of which New
Note is attached hereto as Exhibit "A" and made a part hereof. All the terms and
conditions of the Line of Credit Agreement, as previously modified by the
Modification Agreement, Modification Agreement No. 2 and Modification Agreement
No. 3, and as further modified hereunder, shall continue to apply to the New
Note.
2. The last sentence in paragraph 1. (a) of the Line of Credit
Agreement, as previously modified by the Modification Agreement, Modification
Agreement No. 2 and Modification Agreement No. 3, is hereby modified in its
entirety to read as follows:
"Advances under the Note shall be limited to (i) seventy-five
percent (75%) of the Borrower's "Acceptable Domestic Accounts
Receivable" (as hereinafter defined), plus (ii) seventy-five percent
(75%) of the Borrower's bonded municipal job retainages, plus (iii)
seventy-five percent (75%) of the Borrower's "Acceptable Foreign
Accounts Receivable" (as hereinafter defined) not to exceed Two Hundred
Fifty Thousand Dollars ($250,000.00) or ten percent of the Borrowing
Base (as hereinafter defined), whichever is less."
3. Paragraph 1. (e) of the Line of Credit Agreement, as previously
modified by the Modification Agreement, Modification Agreement No. 2 and
Modification Agreement No. 3, is hereby modified in its entirety to read as
follows:
"Advances under the Note by the Bank to the Borrower shall be
at the discretion of the Bank based upon the Aging Schedule of Accounts
Receivable referred to in subparagraph (c) and the Retainage Report
referred to in subparagraph (d); except that the total loans
outstanding at any one time made in connection with this loan shall not
exceed (i) seventy-five percent (75%) of the Borrower's "Acceptable
Domestic Accounts Receivable" (as hereinafter defined), plus (ii)
seventy-five percent (75%) of the Borrower's bonded municipal job
retainages, plus (iii) seventy-five percent (75%) of the Borrower's
"Acceptable Foreign Accounts Receivable" (as hereinafter defined) not
to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) or ten
percent of the Borrowing Base (as hereinafter defined), whichever is
less. Acceptable Domestic Accounts Receivable shall be defined as those
accounts receivable of the Borrower due from account debtors with a
billing address located within the United States of America that are
due ninety (90) days or less, whichever is less, that are free and
clear of all liens, and are unconditionally owed to the Borrower
without a defense, offset or counterclaim, and which would not be
classified as contra accounts. Acceptable Foreign Accounts Receivable
shall be defined as those accounts receivable of the Borrower that are
either (i) due from account debtors with a billing address located
outside of the United States of America or (ii) that are due from the
Borrower's subsidiaries created by sales by said subsidiaries to
unrelated third parties, and in either case, that are due ninety (90)
days or less, whichever is less, that are free and clear of all liens,
and are unconditionally owed to the Borrower without a defense, offset
or counterclaim. Borrowing Base is defined in the Loan Formula
Certificate attached to this Line of Credit Agreement as Exhibit A."
4. All the other terms and conditions of the Line of Credit Agreement,
as previously modified pursuant to the terms of the Modification Agreement, the
Modification Agreement No. 2 and the Modification Agreement No. 3, remain in
full force and effect, with the exception of the modifications set forth in
paragraphs 2 and 3 above.
5. The Borrower hereby warrants and covenants to the Bank that as of
the date of this Agreement, there are no disputes, offsets, claims or
counterclaims of any kind or nature whatsoever under the Note, the New Note, the
Line of Credit Agreement, the Modification Agreement, the Modification Agreement
No. 2, the Modification Agreement No. 3 or any of the documents executed in
connection therewith or herewith or the obligations represented or evidenced
thereby or hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Note and Line
of Credit Agreement Modification Agreement No. 4 as of the 16th day of October,
1995.
FLEET BANK ENVIRONMENT-ONE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
---------------------- ------------------------------
Xxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxxxx, President
Vice President and Chief Executive Officer
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF Schenectady )
On this 18th day of October, 1995 before me personally appeared Xxxxxx
Xxxxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 000 Xx. Xxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000, that he is the
President and Chief Executive Officer of ENVIRONMENT-ONE CORPORATION, the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxx
------------------
Notary Public
XXXXX X. XXXXX
Notary Public, State of New York
No. 5022470
Qualified in Schenectady County
Commission Expires January 10, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF Schenectady )
On this 18th day of October, 1995, before me personally appeared Xxxxxx
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00 Xxxxxxxxxx Xxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxx 00000, that he is the
Treasurer of ENVIRONMENT-ONE CORPORATION, the corporation described in and which
executed the above instrument; and that he signed his name thereto by order of
the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxx
------------------
Notary Public
XXXXX X. XXXXX
Notary Public, State of New York
No. 5022470
Qualified in Schenectady County
Commission Expires January 10, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF Albany )
On this 16th day of Xxxxxxx, 0000, before me personally appeared Xxxxx
X. Xxxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 000 Xxxxxx Xxx, Xxxxxxxxxxx, Xxx Xxxx 00000, that he is a Vice
President of FLEET BANK, the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of the Board of
Directors of said corporation.
/s/ Xxxxxx X. Xxxxxxx
-----------------------
Notary Public
XXXXXX X. XXXXXXX
Notary Public, State of New York
Qualified in Schenectady County
Commission Expires April 3, 1997
