Exhibit B
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") is made as of this 30th day of
November, 2000, by and among SystemOne Technologies Inc. (f/k/a Xxxxxx
Industries Inc.), a Florida corporation (the "Borrower"), Hanseatic Americas LDC
("Hanseatic"), Environmental Opportunities Fund II, LP ("Environmental II") and
Environmental Opportunities Fund II (Institutional), LP ("Environmental
Institutional", collectively with Environmental II, the "Environmental Funds"
and collectively with Hanseatic and Environmental II, the "Lenders").
Recitals
WHEREAS, the Borrower and the Lenders have entered into a Loan Agreement
dated August 7, 2000, as amended by the terms of a First Amendment to the Loan
Agreement dated as of November 10, 2000 (as amended, the "Loan Agreement"), and
in connection therewith the Borrower issued to the Lenders, among other things,
promissory notes in the aggregate principal amount of $3,300,000 (the
"Substituting Notes");
WHEREAS, the Borrower desires to refinance its obligations to Guaranty
Business Credit Corporation ("GBCC"), as assignee of Capital Business Credit, a
division of Capital Factors, Inc. and otherwise establish a revolving credit
facility (the "Credit Facility") with Hansa Finance Limited Liability Company in
an amount not to exceed the aggregate principal amount of up to $5,000,000;
WHEREAS, it is a condition to closing under the Credit Facility that the
Borrower and the Lenders amend the Loan Agreement as more fully set forth below;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Article I, Section 1.1 (xxxxviii) of the Loan Agreement is hereby
amended by deleting Article I, Section 1.1 (xxxxviii) in its
entirety and substituting therefore a new Article I, Section 1.1
(xxxxviii) to read as follows:
(xxxxviii) The term "Security Agreement" shall mean that
certain Security Agreement in the form attached hereto as
Exhibit C, dated the Closing Date, as from time to time
amended, whereby the Borrower has pledged, assigned,
hypothecated, conveyed, transferred, given and granted to the
Lenders, and each of them, a continuing pledge, of and
security interest in all of the security described therein.
2. Article I, Section 1.1 (liii) of the Loan Agreement is hereby
amended by deleting Article I, Section 1.1 (liii) in its entirety
and substituting as new Article I, Section 1.1 (liii) to read as
follows:
(1iii) the term "Subordination Agreements" shall mean
the Subordination Agreements, dated November 30, 2000,
executed by the Lenders, respectively, to Hansa Finance
Limited Liability Company.
3. Article IX, Section 9.12 of the Loan Agreement is hereby amended by
deleting Article IX, Section 9.12 in its entirety and substituting
therefor a new Article IX, Section 9.12 to read as follows:
Section 9.12 SUBORDINATION. THE RIGHTS AND REMEDIES OF
THE LENDERS HEREUNDER ARE SUBJECT AND SUBORDINATED TO THE
TERMS AND PROVISIONS OF THOSE CERTAIN SUBORDINATION
AGREEMENTS, EACH DATED NOVEMBER 30, 2000 ENTERED INTO BY THE
LENDERS, RESPECTIVELY, WITH HANSA FINANCE LIMITED LIABILITY
COMPANY.
4. Exhibit A to the Loan Agreement is hereby deleted in its entirety
and Exhibit A annexed hereto is hereby substituted therefor.
5. Except as specifically amended hereby, the Loan Agreement is and
remains unmodified and in full force and effect and is hereby
ratified and confirmed.
6. Contemporaneously with the execution of this Amendment: (a) Lenders
shall deliver the Substitute Notes to the Borrower; (b) Borrower
shall cancel the Substitute Notes; (c) Borrower shall deliver to
each Lender, in substitution for the Substitute Note held thereby, a
new promissory note, in the form of Exhibit A hereto, which shall be
registered in the name of such Lender and have a principal sum equal
to the aggregate amounts advanced by such Lender to the Borrower
(the dates of each such advance, and the amount of each, to be
appropriately inserted therein); and (d) the parties hereto shall
execute and deliver an Amendment to the Security Agreement (as
defined in the Loan Agreement) in the form of Exhibit B annexed
hereto. For purposes of the Loan Documents (as defined in the Loan
Agreement) and each of them, the notes issued and delivered pursuant
to this Amendment shall for all purposes substitute for the
Substitute Notes, respectively.
7. The Borrower herewith delivers to each of the Lenders such
additional financing statements, or amendments thereto, as shall be
requested by the Lenders in order to perfect the interests granted
under the Security Agreement, as amended hereby.
8. This Amendment shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
9. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SYSTEMONE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
LENDERS:
HANSEATIC AMERICAS LDC
By: Hansabel Partners LLC
By: Hanseatic Corporation
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxx
President
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P.
ENVIRONMENTAL OPPORTUNITIES FUND II (INSTITUTIONAL), L.P.
By: Fund II Mgt. Co., LLC
General Partner
By: /s/ Xxxxx XxXxxxx
-------------------------------
Xxxxx XxXxxxx
Manager
3
Exhibit A
SYSTEMONE TECHNOLOGIES INC.
PROMISSORY NOTE
$_______________________ As of August 7, 2000
New York, New York
SECTION 1. General. SYSTEMONE TECHNOLOGIES INC., a Florida corporation
(hereinafter referred to as the "Borrower"), with offices at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000, for value received, hereby promises to pay to
________, or order, the principal amount of $___________, on the Maturity Date
(as defined in the Loan Agreement hereinafter described), in such coin or
currency of the United States of America as at the time of payment shall be
legal tender therein for the payment of public and private debts and to pay
interest on such principal amount at the rates and on the dates described in
Section 2.3 of the Loan Agreement hereinafter described; provided, however, that
the interest on $__________ of the principal amount shall be calculated and
accrue from August 7, 2000 and the interest on the remaining $___________of the
principal amount shall be calculated and accrue from _______________ ___, 2000.
The Borrower further agrees to pay interest at such rates on any overdue
principal and (to the extent permitted by law) on any overdue interest, from the
due date thereof until the obligation of the Borrower with respect to the
payment thereof shall be discharged; all payments and prepayments of principal
of this Note and all payments of the interest on this Note to be made at
_____________________, or such other location as shall be specified in writing
by the holder of this Note to the Borrower.
SECTION 2. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such state.
SECTION 3. Related Agreement. This Note is issued pursuant to, and is one
of the Notes referred to in, the Loan Agreement dated as of August 7, 2000, as
amended by that First Amendment to Loan Agreement dated November 10, 2000 and
that Second Amendment to Loan Agreement dated November 30, 2000 (herein referred
to as the "Loan Agreement") among the Borrower, Hanseatic Americas LDC,
Environmental Opportunities Fund II, L.P. and Environmental Opportunities Fund
II (Institutional), L.P., and is entitled to the benefits and is subject to the
provisions thereof (including, without limitation, those providing for the
optional and mandatory prepayment of this Note and the acceleration of the
maturity hereof), and to the benefits of the Security Agreement, dated August 7,
2000, as amended by that First Amendment to Security Agreement dated November
10, 2000 and that Second Amendment to Security Agreement dated November 30,
2000, among the Borrower, Hanseatic Americas LDC, Environmental Opportunities
Fund II, L.P. and Environmental Opportunities Fund II (Institutional), L.P.
Copies of such agreements may be obtained by any holder of this Note at the
principal executive offices of the Borrower.
4
SECTION 4. SUBORDINATION. THE RIGHTS AND REMEDIES OF THE HOLDER HEREOF ARE
SUBJECT TO AND SUBORDINATED TO THE TERMS AND PROVISIONS OF A SUBORDINATION
AGREEMENT, DATED NOVEMBER 30, 2000, ENTERED INTO WITH HANSA FINANCE LIMITED
LIABILITY COMPANY.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date
first-above written.
ATTEST: SYSTEMONE TECHNOLOGIES INC.
By
---------------------------- ----------------------------
5
Exhibit B
SECOND AMENDMENT TO SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SECURITY AGREEMENT (this "Amendment") is made as
of this 30th day of November, 2000, by and among SystemOne Technologies Inc.
(f/k/a Xxxxxx Industries Inc.), a Florida corporation (the "Company"), Hanseatic
Americas LDC, Environmental Opportunities Fund II, LP and Environmental
Opportunities Fund II (Institutional), LP (collectively, the "Lenders').
Recitals
WHEREAS, the Company and the Lenders executed that certain Loan Agreement
dated August 7, 2000, as amended by the terms of the First Amendment to the Loan
Agreement dated as November 10, 2000 (as amended, the "Loan Agreement") and in
connection therewith the parties also executed that certain Security Agreement
dated August 7, 2000, as amended by the terms of a First Amendment to the
Security Agreement dated as of November 10, 2000 (as amended, the "Security
Agreement");
WHEREAS, the Company the Lenders are contemporaneously herewith amending
the Loan Agreement and now desire to amend the Security Agreement according to
the terms of this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The first recital of the Security Agreement is hereby amended by
deleting the phrase "amended on November 10, 2000" and substituting
therefore a reference to "may from time to time be amended".
2. Section 2 of the Security Agreement is hereby amended by deleting
Section 2 in its entirety and substituting therefore a new Section 2
to read as follows:
2. Creation of Security Interest. As an inducement to
the Lenders, and each of them, to enter into the Loan
Agreement, to made the Loan, and to secure prompt payment,
performance and discharge in full of all the Borrower's
obligations (hereinafter referred to as the "Obligations") on
the part of the Borrower to be performed under the Loan
Agreement and the Notes, the Borrower hereby unconditionally
and irrevocably grants to the Lenders, and each of them, a
continuing security interest, in lien upon and a right of
set-off against all of the Collateral, which shall be senior
and first-in-right with respect to all other security
interests and liens other than the interest of Hansa Finance
Limited Liability Company ("Hansa") pursuant to that certain
Revolving Credit Loan Agreement dated November 30, 2000, as
may from time to time be amended (hereinafter referred to as
the "Senior Credit Agreement"), between the Borrower and Hansa
and other Permitted Encumbrances (as defined in the Loan
Agreement). Upon the payment, performance and discharge in
full of all Obligations, the security interest granted herein
shall expire.
6
3. The third sentence of Section 4(a) of the Security Agreement is
hereby deleted in its entirety and the following two new sentences
substituted therefor:
The Borrower shall preserve the Collateral and abstain
from and not permit the commission of waste with regard
thereto; and shall not sell, lease, or transfer or otherwise
dispose of any of the Collateral except: (I) (x) sales of
inventory or dispositions of obsolete assets, (y) licensing to
third parties and (z) sales of the Royalty (as defined in that
certain Marketing and Distribution Agreement dated as of
November 13, 2000 between the Borrower and Safety-Kleen
Systems Inc. [the "Safety-Kleen Agreement"]), or part thereof,
in each case under clauses (x), (y) and (z) immediately
preceding in the ordinary course of business to third parties
not constituting Affiliates (as defined in the Loan Agreement)
of the Borrower and for consideration equal to the fair market
value thereof (the interest so conveyed to any third party to
be free of the lien of this Agreement) and (II) except as
permitted by Section 5. For purposes hereof, performance by
the Borrower of the Safety-Kleen Agreement shall not be deemed
prohibited by this Agreement, nor shall Safety-Kleen Systems
Inc. nor any Affiliate thereof be deemed an Affiliate of the
Borrower by virtue of its holding of the warrant issued by the
Borrower pursuant to the Safety-Kleen Agreement or of the
shares underlying such warrant.
4. The references to "Capital" contained in the last sentence of
Section 4(a), and in Section 4(d) and in Section 5(a), of the
Security Agreement are hereby deleted and a reference to "Hansa"
substituted in lieu thereof.
5. Section 20 of the Security Agreement is hereby amended by deleting
Section 20 in its entirety and substituting a new Section 20 to read
as follows:
20. SUBORDINATION. THE RIGHTS AND REMEDIES OF THE
LENDERS HEREUNDER ARE SUBJECT TO AND SUBORDINATED TO THE TERMS
AND PROVISIONS OF THOSE CERTAIN SUBORDINATION AGREEMENTS, EACH
DATED NOVEMBER 30, 2000 ENTERED INTO BY THE LENDERS,
RESPECTIVELY, WITH HANSA FINANCE LIMITED LIABILITY COMPANY.
6. Except as specifically amended hereby, the Security Agreement is and
remains unmodified and in full force and effect and is hereby
ratified and confirmed.
7
7. This Amendment shall be deemed a contract made under the laws of the
State of Florida and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
8. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SYSTEMONE TECHNOLOGIES INC.
By:
-----------------------------
LENDERS
HANSEATIC AMERICAS LDC
By: Hansabel Partners LLC
By: Hanseatic Corporation
By:
-----------------------------
Xxxx X. Xxxxxxxxx
President
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P.
ENVIRONMENTAL OPPORTUNITIES FUND II (INSTITUTIONAL), L.P.
By: Fund II Mgt. Co., LLC
General Partner
By:
-----------------------------
Xxxxx XxXxxxx
Manager
8
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT (this "Amendment") is made as of this 27th day of
February, 2002, by and among SystemOne Technologies Inc. (f/k/a Xxxxxx
Industries Inc.), a Florida corporation (the "Borrower"), Hanseatic Americas LDC
("Hanseatic"), Environmental Opportunities Fund II, LP ("Environmental II") and
Environmental Opportunities Fund II (Institutional), LP ("Environmental
Institutional", collectively with Hanseatic and Environmental II, the
"Lenders").
Recitals
WHEREAS, the Borrower and the Lenders are parties to that certain Loan
Agreement dated August 7, 2000, as amended by a First Amendment to Loan
Agreement dated as of November 10, 2000 and a Second Amendment to Loan Agreement
dated as of November 30, 2000 (as amended, the "Loan Agreement"); and
WHEREAS, the Borrower and the Lenders desire to amend the Loan Agreement
to (i) change the Maturity Date (as defined in the Loan Agreement) from February
7, 2002 to September 30, 2002, and (ii) change the terms upon which the Borrower
will issue the Additional Warrants (as defined in the Loan Agreement) to the
Lender;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Article I, Section 1.1 (xxxvi) of the Loan Agreement is hereby amended
by deleting Article I, Section 1.1 (xxxvi) in its entirety and substituting
therefor a new Article I, Section 1.1 (xxxvi) to read as follows:
(xxxvi) The term "Maturity Date" shall mean September 30,
2002.
2. Article II, Section 2.10 of the Loan Agreement is hereby amended by
deleting the second sentence of Article II, Section 2.10 in its entirety and
substituting therefor a new sentence to read as follows:
In addition, in the event that the Borrower does not
punctually satisfy the Note on or prior to February 28, 2002 and after such date
the Borrower (i) sells debt or equity securities, or debt securities convertible
into equity securities, or incurs debt with a final scheduled maturity date more
than twelve months after issuance or incurrence providing gross cash proceeds to
the Borrower in an amount equal to or greater than the outstanding principal
amount and accrued interest of the Notes on the date of such sale or incurrence,
or (ii) enters into a merger, consolidation, sale of all or substantially all of
its assets or other business combination transaction with a party that prior to
such transaction owns less than 25 percent of the voting power of the Borrower's
outstanding equity securities, then upon the consummation of the earliest of any
such transaction, the Borrower shall forthwith issue and deliver to each of the
original holders of the Notes a number of additional warrants (hereinafter, with
respect to all Lenders, referred to as the "Additional Warrants") to purchase
shares of Common Stock (hereinafter with respect to all
9
Lenders referred to as the "Additional Warrant Shares") equal to the number of
Initial Warrants to such original holder, such Additional Warrants to be
evidenced by warrant certificates (hereinafter referred to, collectively, as the
"Additional Warrant Certificates"), each registered in the name of such original
holder and dated the date of issuance thereof, in the form of the Initial
Warrant Certificate (except that all such Additional Warrants shall be
immediately exercisable, and provided that the terms of the Additional Warrants
as aforesaid shall, for purposes of issuance thereof and without limiting the
operation thereof, be subject to adjustment pursuant to Section 6 of the form of
Initial Warrant Certificate as if in effect from and after the Closing Date).
3. Except as specifically amended hereby, the Loan Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
4. This Amendment shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
5. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SYSTEMONE TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
LENDERS
HANSEATIC AMERICAS LDC
By: Hanseatic Corporation
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
President
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P.
ENVIRONMENTAL OPPORTUNITIES FUND II (INSTITUTIONAL), L.P.
By: Fund II Mgt. Co., LLC
General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Chief Investment Officer
11
FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT (this "Amendment") is made as of this 30th day of
September, 2002, by and among SystemOne Technologies Inc. (f/k/a Xxxxxx
Industries Inc.), a Florida corporation (the "Borrower"), Hanseatic Americas LDC
("Hanseatic"), Environmental Opportunities Fund II, LP ("Environmental II") and
Environmental Opportunities Fund II (Institutional), LP ("Environmental
Institutional", and collectively with Hanseatic and Environmental II, the
"Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lenders are parties to that certain Loan
Agreement dated August 7, 2000, as amended by a First Amendment to Loan
Agreement dated as of November 10, 2000, a Second Amendment to Loan Agreement
dated as of November 30, 2000 and a Third Amendment to Loan Agreement dated as
of February 27, 2002 (as amended, the "Loan Agreement") and in connection
therewith the Borrower issued to the Lenders promissory notes in the aggregate
principal amount of $3,300,000 (the "Outstanding Notes") and warrants
exercisable for in the aggregate 942,858 shares of the Borrower's common stock,
$.001 par value; and
WHEREAS, the Borrower and the Lenders desire to amend the Loan Agreement
to change the Maturity Date (as defined in the Loan Agreement) from September
30, 2002 to November 30, 2002.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Article I, Section 1.1 (xxxvi) of the Loan Agreement is hereby amended
by deleting Article I, Section 1.1 (xxxvi) in its entirety and substituting
therefor a new Article I, Section 1.1 (xxxvi) to read as follows:
(xxxvi) The term "Maturity Date" shall mean November 30, 2002.
2. Except as specifically amended hereby, the Loan Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
3. This Amendment shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
4. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SYSTEMONE TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
LENDERS
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P. HANSEATIC AMERICAS LDC
ENVIRONMENTAL OPPORTUNITIES FUND II
(INSTITUTIONAL), L.P. By: Hanseatic Corporation
By: Fund II Mgt. Co., LLC By: /s/ Xxxx X. Xxxxxxxxx
General Partner --------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Investment Officer
13
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT (this "Amendment") is made as of this 9th day of
December, 2002, by and among SystemOne Technologies Inc. (f/k/a Xxxxxx
Industries Inc.), a Florida corporation (the "Borrower"), Hanseatic Americas LDC
("Hanseatic"), Environmental Opportunities Fund II, LP ("Environmental II") and
Environmental Opportunities Fund II (Institutional), LP ("Environmental
Institutional", and collectively with Hanseatic and Environmental II, the
"Lenders").
Recitals
WHEREAS, the Borrower and the Lenders are parties to that certain Loan
Agreement dated August 7, 2000, as amended by a First Amendment to Loan
Agreement dated as of November 10, 2000, a Second Amendment to Loan Agreement
dated as of November 30, 2000, a Third Amendment to Loan Agreement dated as of
February 27, 2002 and a Fourth Amendment to Loan Agreement dated as of September
30, 2002 (as amended, the "Loan Agreement") and in connection therewith the
Borrower issued to the Lenders promissory notes in the aggregate principal
amount of $3,300,000 (the "Outstanding Notes") and warrants exercisable for in
the aggregate 942,858 shares of the Borrower's common stock, $.001 par value;
and
WHEREAS, as part of the recapitalization of the Borrower and pursuant to
the Exchange Agreement (the "Exchange Agreement"), dated December 9, 2002, by
and among the Borrower, the Lenders and the additional parties thereto, the
Borrower and the Lenders desire to cancel the Outstanding Notes and amend the
Loan Agreement and Loan Documents (as defined in the Loan Agreement) to (i)
increase the principal amount outstanding thereunder to include the interest
accrued from, respectively, the Closing Date and the Supplemental Closing Date
(each as defined in the Loan Agreement) to the date hereof, (ii) change the
Maturity Date (as defined in the Loan Agreement) from September 30, 2002 to
December 31, 2005, (iii) change the interest rate from sixteen percent (16%) per
annum to ten percent (10%) per annum, and (iv) issue new promissory notes (the
"New Notes"), all according to the terms of the Loan Agreement as amended by
this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Article I, Section 1.1 (xxxvi) of the Loan Agreement is hereby amended
by deleting Article I, Section 1.1 (xxxvi) in its entirety and substituting
therefor a new Article I, Section 1.1 (xxxvi) to read as follows:
(xxxvi) The term "Maturity Date" shall mean December 31, 2005.
2. Article I, Section 1.1 (xxxviii) of the Loan Agreement is hereby
amended by deleting Article I, Section 1.1 (xxxviii) in its entirety and
substituting therefor a new Article I, Section 1.1 (xxxviii) to read as follows:
14
(xxxviii) The term "Notes" shall mean those notes, each in the
form attached hereto as Exhibit A dated as of the Closing Date,
executed by the Borrower, as the maker, and delivered to each
Lender, as payee, in the aggregate principal amount of $4,418,373,
which Notes, collectively, evidence the Loan under this Agreement.
3. Article I, Section 1.1 (xxxxviii) of the Loan Agreement is hereby
amended by deleting Article I, Section 1.1 (xxxxviii) in its entirety and
substituting therefor a new Article I, Section 1.1 (xxxxviii) to read as
follows:
(xxxxviii) The term "Security Agreement" shall mean that
certain Security Agreement in the form attached hereto as Exhibit C,
dated the Closing Date, and amended by that certain First Amendment
dated November 10, 2000, that certain Second Amendment dated
November 30, 2000 and that certain Third Amendment dated December 9,
2002, as from time to time further amended, whereby the Borrower has
pledged, assigned, hypothecated, conveyed, transferred, given and
granted to the Lenders, and each of them, a continuing pledge, of
and security interest in all of the security described therein.
4. Article I, Section 1.1 (lviii) of the Loan Agreement is hereby amended
by deleting Article I, Section 1.1 (lviii) in its entirety and substituting
therefor a new Article I, Section 1.1 (lviii) to read as follows:
(lviii) The term "Outstanding Notes" shall mean the Borrower's
promissory notes in the aggregate principal amount of $3,300,000
issued pursuant to this Agreement to the Lenders, respectively, on
the Supplemental Closing Date.
5. The following new section is hereby added immediately following the
definition of "Supplemental Closing Date" under Article I (which, together with
the preceding clause (lviv) shall be re-designated, respectively, clause (lix)
and clause (lx) thereof):
(lxi) The term "Second Supplemental Closing Date" shall mean
December 9, 2002.
6. Article II, Section 2.2 of the Loan Agreement is hereby amended by
deleting Article II, Section 2.2 in its entirety and substituting therefor a new
Article II, Section 2.2 to read as follows:
Section 2.2 Notes. The obligation of the Borrower to repay all
monies advanced by the Lenders, and each of them, to the Borrower in
connection with the Loan shall be evidenced by the Notes, each in
the form of Exhibit A annexed hereto. On the Second Supplemental
Closing Date, the Borrower shall have duly executed and delivered to
each Lender, in substitution for the Outstanding Note held thereby,
a Note, which shall (i) be dated as of the Second Supplemental
Closing Date, (ii) be registered in the name of the Lender to whom
issued, (iii) have a principal sum equal to the aggregate amounts
advanced by such Lender to the Borrower plus all interest accrued
from the Closing Date through the Second Supplemental Closing Date,
which shall be payable in the amounts and on the dates provided for
in Section 2.4 hereof and (iv) bear interest at the rates payable on
the dates and in the manner provided for in Section 2.3 hereof.
15
7. Article II, Section 2.3 of the Loan Agreement is hereby amended by
deleting Article II, Section 2.3 in its entirety and substituting therefor a new
Article II, Section 2.3 to read as follows:
Section 2.3 Interest. Each Note shall bear interest computed
daily from the Second Supplemental Closing Date until final
repayment in full of said Note in accordance with Section 2.4 of
this Agreement. Each note shall bear interest at a rate of ten
percent per annum (10%) to be applied to the principal amount of the
Note as set forth therein until final repayment in full of said
Note. Interest on the Loan and the Notes shall be due and payable on
the Maturity Date and continuing thereafter until the Loan and Notes
are repaid in full.
8. Annex 1 to the Loan Agreement is hereby amended by deleting Annex 1 in
its entirety and substituting therefor a new Annex 1 to read as follows:
Proportionate Amount Allocation of Initial
Lender Proportionate Share of Loan Warrants
------ ------------------- -------------------- ---------------------
Hanseatic Americas LDC
000 Xxxx Xxxxxx, Xxxxx 0000 50% $2,209,187 471,429
Xxx Xxxx, Xxx Xxxx 00000
Environmental Opportunities Fund II, L.P.
c/o Sanders Xxxxxx Xxxxxx
3100 Xxxxx Tower 10.7% $472,766 100,886
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Environmental Opportunities Fund II
(Institutional), L.P.
c/o Sanders Xxxxxx Xxxxxx
3100 Xxxxx Tower 39.3% $1,736,421 370,543
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
9. Exhibit A to the Loan Agreement is hereby deleted in its entirety and
Exhibit A annexed hereto is hereby substituted therefor.
10. Except as specifically amended hereby, the Loan Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
11. Contemporaneously with the execution of this Amendment, Lenders shall
deliver the Outstanding Notes to the Borrower. Contemporaneously with the
execution of this Amendment, the Borrower shall (i) cancel the Outstanding Notes
and (ii) deliver the New Notes to the Lenders, in the form required by the Loan
Agreement, as amended hereby and acceptable to the Lenders.
16
12. Contemporaneously herewith, the parties hereto shall execute and
deliver an Amendment to the Security Agreement in the form of Exhibit B annexed
hereto.
13. This Amendment shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
14. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SYSTEMONE TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
LENDERS
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P. HANSEATIC AMERICAS LDC
ENVIRONMENTAL OPPORTUNITIES FUND II
(INSTITUTIONAL), L.P. By: Hanseatic Corporation
By: Fund II Mgt. Co., LLC By: /s/ Xxxx X. Xxxxxxxxx
General Partner -----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Investment Officer
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EXHIBIT A
SYSTEMONE TECHNOLOGIES INC.
PROMISSORY NOTE
$______________________ As of December 9, 0000
Xxx Xxxx, Xxx Xxxx
SECTION 1. General. SYSTEMONE TECHNOLOGIES INC., a Florida corporation
(hereinafter referred to as the "Borrower"), with offices at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000, for value received, hereby promises to pay
to______________________, or registered assigns, the principal amount of
$_____________, on the Maturity Date (as defined in the Loan Agreement
hereinafter described), in such coin or currency of the United States of America
as at the time of payment shall be legal tender therein for the payment of
public and private debts and to pay interest on such principal amount at the
rates and on the dates described in Section 2.3 of the Loan Agreement
hereinafter described. The Borrower further agrees to pay interest at such rates
described in the Loan Agreement on any overdue principal and (to the extent
permitted by law) on any overdue interest, from the due date thereof until the
obligation of the borrower with respect to the payment thereof shall be
discharged; all payments and prepayments of principal of this Note and all
payments of the interest on this Note to be made at _______________, or such
other location as shall be specified in writing by the holder of this Note to
the Borrower.
SECTION 2. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be preformed entirely within such state.
SECTION 3. Related Agreements. This Note is issued pursuant to, and is one
of the Notes referred to in, the Loan Agreement dated as of August 7, 2000, as
amended by that First Amendment dated as of November 10, 2000, that Second
Amendment dated as of November 30, 2000, that Third Amendment dated as of
February 27, 2002, that Fourth Amendment dated as of September 30, 2002 and that
Fifth Amendment dated as of the date first set forth above (herein referred to
as the "Loan Agreement") among the Borrower, Hanseatic Americas LDC,
Environmental Opportunities Fund II, L.P. and Environmental Opportunities Fund
II (Institutional), L.P., and is entitled to the benefits and is subject to the
provisions thereof (including, without limitation, those providing for the
optional and mandatory prepayment of this Note and the acceleration of the
maturity hereof), and to the benefits of the Security Agreement, August 7, 2000,
as amended by that First Amendment to Security Agreement dated November 10,
2000, that Second Amendment to Security Agreement dated November 30, 2000, and
that Third Amendment to Security Agreement dated the date first set forth above,
as from time to time further amended, among the Borrower, Hanseatic Americas
LDC, Environmental Opportunities Fund II, L.P. and Environmental Opportunities
Fund II (Institutional), L.P. Copies of such agreements may be obtained by any
holder of this Note at the principal executive offices of the Borrower.
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SECTION 4. SUBORDINATION. THE RIGHTS AND REMEDIES OF THE HOLDER HEREOF ARE
SUBJECT TO AND SUBORDINATED TO THE TERMS AND PROVISIONS OF A SUBORDINATION
AGREEMENT, DATED NOVEMBER 30, 2000 ENTERED INTO WITH HANSA FINANCE LIMITED
LIABILITY COMPANY, A DELAWARE LIMITED LIABILITY COMPANY.
SECTION 5. Registration. The Borrower shall keep or cause to be kept a
note register for the Notes in which the Borrower shall provide for the
registration of the Notes and the registration of transfers of the Notes. The
Borrower shall keep this register in a manner that causes the Notes to be in
registered form within the meaning of Section 163(f) of the Internal Revenue
Code of 1986, as amended, and the applicable treasury regulations. Prior to due
presentment for registration of transfer of any Note, the Borrower may treat the
person in whose name any Note is registered (as of the day of determination) as
the holder of such Note for the purpose of receiving payments of principal of
and interest on such Note and for all other purposes, and neither the Borrower
nor any agent of the Borrower shall be affected by notice to the contrary.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date
firstabove written.
ATTEST: SYSTEMONE TECHNOLOGIES INC.
By: By:
-------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: President Title: Chief Executive Officer
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EXHIBIT B
THIRD AMENDMENT TO SECURITY AGREEMENT
THIS THIRD AMENDMENT TO SECURITY AGREEMENT (this "Amendment") is made as
of this 9th day of December, 2002, by and among SystemOne Technologies Inc.
(f/k/a Xxxxxx Industries Inc.), a Florida corporation (the "Company"), Hanseatic
Americas LDC, Environmental Opportunities Fund II, L.P. and Environmental
Opportunities Fund II (Institutional), L.P. (collectively, the "Lenders").
Recitals
WHEREAS, the Company and the Lenders are parties to that certain Loan
Agreement dated August 7, 2000, as amended by a First Amendment to Loan
Agreement dated as of November 10, 2000, a Second Amendment to Loan Agreement
dated as of November 30, 2000, a Third Amendment to Loan Agreement dated as of
February 27, 2002, and a Fourth Amendment to Loan Agreement dated as of
September 30, 2002 (as amended, the "Loan Agreement") and in connection
therewith the parties also executed that certain Security Agreement dated August
7, 2000, as amended by a First Amendment to Security Agreement dated as of
November 10, 2000 and a Second Amendment to Security Agreement dated as of
November 30, 2000 (the "Security Agreement");
WHEREAS, the Company and the Lenders are contemporaneously herewith
amending the Loan Agreement and now desire to amend the Security Agreement
according to the terms of this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The first recital of the Security Agreement is hereby amended by
deleting the first recital in its entirety and substituting therefore a new
first recital to read as follows:
WHEREAS, under the terms and conditions of a Loan Agreement
dated as of August 7, 2000 and as amended on November 10, 2000,
November 30, 2000, February 27, 2002, September 30, 2002 and
December 9, 2002, as may from time to time be amended (hereinafter
referred to as the "Loan Agreement"), among the Borrower and the
Lenders, The Borrower is indebted to the lenders in the aggregate
principal amount of $4,418,373 (hereinafter referred to as the
"Loan"), which Loan is to be evidenced by certain Notes issued
pursuant to the Loan Agreement (hereinafter referred to,
collectively, as the "Notes"), with payment of the Notes and any
other obligations of the Borrower to the Lender to be secured as
provided for in the Loan Agreement;
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2. Except as specifically amended hereby, the Security Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
3. This Amendment shall be deemed a contract made under the laws of the
State of Florida and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
4. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
SYSTEMONE TECHNOLOGIES INC.
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
LENDERS
HANSEATIC AMERCIAS LDC
By: Hanseatic Corporation
By:
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
ENVIRONMENTAL OPPORTUNITIES FUND II, L.P.
ENVIRONMENTAL OPPORTUNITIES FUND II (INSTITUTIONAL), L.P.
By: Fund II Mgt. Co., LLC
General Partner
By:
---------------------------------
Name: Xxxxx XxXxxxx
Title: Manager
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