EX-4.12 3 g68025ex4-12.txt FIRST AMENDMENT 7/31/00 1 EXHIBIT 4.12 FIRST AMENDMENT THIS FIRST AMENDMENT (this "Amendment") is made as of the 31st day of July, 2000, by and between SYSTEMONE INDUSTRIES INC. (f/k/a MANSUR INDUSTRIES INC.), a Florida corporation (the "Company"), and the undersigned holders (the "Holders"). RECITALS WHEREAS, on February 23, 1998, the Company issued (8 1/4%) Subordinated Convertible Notes due February 23, 2003 (the "Notes") to the Holders; and WHEREAS, Section 11(c) of the Notes provides that the Notes may be amended by a written instrument signed by the Company and Holders of at least 51% in principal amount of Notes at the time outstanding; and WHEREAS, the Company and the Holders of greater than 51% in principal amount of the outstanding Notes desire to amend the Notes 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. Section 2(h) of the Notes is hereby amended by deleting Section 2(h) in its entirety and substituting therefor a new Section 2(h) to read as follows: LIMITATION OF INCURRENCE OF INDEBTEDNESS. The Company will not, and will not permit any of its subsidiaries to, at any time, incur, create, assume or guarantee, or otherwise become or be liable in any manner with respect to any indebtedness (the "Incurrence") unless, after giving pro forma effect of the Incurrence thereof, the ratio of Total Debt (as defined below) to Consolidated EBITDA (as defined below) for any period of twelve months then most recently ended shall be less than 6.0:1.0; provided, however, the Company may incur up to $10,000,000 of Total Debt (excluding the Notes) at any time. "Total Debt" shall mean the principal amount of all indebtedness of the Company and its subsidiaries, determined on a consolidated basis in accordance with generally accepted accounting principals, (a) in respect of money borrowed or evidenced by a promissory note, debenture or like written obligation to pay money (including the Notes), (b) in respect of any capital lease obligation; (c) obligations incurred or assumed as part of the deferred purchase price of any assets acquired by the Company or its subsidiaries; (d) all obligations or liabilities of others secured by a lien on any asset owned by the Company or any of its subsidiaries, irrespective of whether such obligation or liability is 2 assumed, to the extent of the lesser of such obligation or liability or the fair market value of such asset; and (e) any guarantees by the Company or its subsidiaries of any indebtedness of another person or entities, provided, however, that in determining the indebtedness of the Company or any subsidiary, all liabilities of which the Company or any subsidiary is jointly and severally liable with one or more other persons or entities (including, without limitation, all liabilities of any partnership or joint venture of which the Company is a general partner or co-venturer) shall be included at the full amount thereof without regard to any right the Company or subsidiary may have against any such other person or entity for contribution or indemnity. 2. Except as specifically amended hereby, the Notes are and remain unmodified and in full force and effect and are 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. 2 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written. 3 4 SYSTEMONE TECHNOLOGIES INC. By:__________________________________ HOLDERS Morgan Guaranty Trust Company of New York, as Trustee for the Commingled Pension Trust Fund (Multi-Market Special Investment Fund II) of Morgan Guaranty Trust Company of New York c/o J.P. Morgan Investment, Inc. Attn: Joan Huggins 522 Fifth Avenue New York, New York 10036 Original principal amount $4,200,000 By:__________________________________ Morgan Guaranty Trust Company of New York, as Trustee for the Multi-Market Special Investment Trust Fund of Morgan Guaranty Trust Company of New York c/o J.P. Morgan Investment, Inc. Attn: Joan Huggins 522 Fifth Avenue New York, New York 10036 Original principal amount $900,000 By:__________________________________ Morgan Guaranty Trust Company of New York, as Agent and Investment Manager of The Alfred P. Sloan Foundation (Multi-Market Account) c/o Bost & Company Attn: David Corin 120 Broadway (13th Floor) New York, New York 10031 Original principal amount $900,000 By:__________________________________ 4 5 Gulfband & Co. c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $52,000,000 By:__________________________________ Mieksel H. & Ann V. Welles c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $15,000 By:__________________________________ Robert L & Thomasine M. Thompson c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $10,000 By:__________________________________ 5 6 Custo. FBO Peter S. Welles' IRA c/o Alex Brown & Sons Incorp 375 W. Padonia Timonium, Maryland 21203 Original principal amount $40,000 By:__________________________________ Pitt & Company c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $175,000 By:__________________________________ Gillet Welles, Jr. c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $50,000 By:__________________________________ Anne Henry Welles c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $45,000 By:__________________________________ Gillet Welles III c/o Emerging Growth Advisors, Inc. World Trade Center Baltimore 401 E. Pratt Street, Suite 211 Baltimore, Maryland 211202 Attention: Peter Welles Original principal amount $15,000 By:__________________________________ 6