EXHIBIT 10.109
Aquagenix, Inc.
Amendment No. 2 Dated as of April 1, 1997
12.50% Senior Secured Notes Due October 31, 2003
AMENDMENT NO. 2 (this "Amendment"), dated as of April 1, 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 (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 Section 5.2(a), Section
7.4 and Section 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 4.6 hereof, the Existing Note Purchase Agreement is
hereby amended as follows:
2.1 Optional Prepayments with Premium (Section 5.2 of the Note
Purchase Agreement).
Section 5.2(a) of the Existing Note Purchase Agreement is amended to
read in its entirety as follows:
"(a) Optional Prepayments. The Company may prepay the Note in
whole or in part, on the last day of each January, April, July or
October, together with interest on the principal amount then being
prepaid accrued and unpaid to the prepayment date, and together with an
amount equal to the Premium at such time in respect of the principal
amount of the Notes being so prepaid; provided, however, that the
Company may, at its option, prepay up to an aggregate principal amount
of Five Hundred Thousand Dollars ($500,000) without Premium but
together with interest accrued and unpaid on the principal amount then
being prepaid, at any time after the Effective Date."
2.2 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 an Interest Expense Coverage Ratio of not less than
1.25 for the period from and including January 1, 1997 to and including December
31, 1997 is hereby amended to permit the Interest Expense Coverage Ratio for the
period from and including April 1, 1997 to and including December 31, 1997 to be
not less than 0.10.
AQUAGENIX, INC. 1 AMENDMENT NO. 2 DATED AS OF APRIL 1, 1997
2.3 Minimum Consolidated Net Worth (Section 7.5 of the Note
Purchase Agreement).
The requirement in Section 7.5 of the Existing Note Purchase Agreement
that the Company maintain a Consolidated Net Worth of not less than $6,000,000
for the 1997 fiscal year is hereby amended to permit the Consolidated Net Worth
for the 1997 fiscal year 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.
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 2.2 and Section 2.3 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.
AQUAGENIX, INC. 2 AMENDMENT NO. 2 DATED AS OF APRIL 1, 1997
4.2 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.
4.3 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.
4.4 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.
4.5 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.
4.6 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. 2 DATED AS OF APRIL 1, 1997
IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed as of
the date first written above.
AQUAGENIX, INC.
By /s/ Xxxxxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxx
Title: President
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ Xxxxxxx Xxxxx, Xx.
---------------------------
Name: Xxxxxxx Xxxxx
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/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
FLORIDA UNDERGROUND PETROLEUM
TANK CONTRACTORS, INC.
By /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
AMERAQUATIC, INC.(f/k/a Xxxx
Environmental Services, Inc.)
By /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
AQUAGENIX, INC. 4 AMENDMENT NO. 2 DATED AS OF APRIL 1, 1997
