exv10w3







Exhibit 10.3




FIRST AMENDMENT TO CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered
into as of April 26, 2006, by and between SWISHER INTERNATIONAL, INC., a Nevada corporation
(the “Borrower”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association with its principal office in Charlotte, North Carolina (the “Bank”).



BACKGROUND STATEMENT




     A. The Borrower and the Bank are parties to a Credit Agreement, dated as of November 14,
2005 (as amended, modified, supplemented, or restated from time to time, the “Credit
Agreement”), pursuant to which the Bank has made available to the Borrower a revolving
credit facility in the aggregate principal amount of up to $5,000,000 (the “Original
Revolving Credit Commitment”), which amount may vary depending on the Borrower’s
compliance with certain covenants set forth therein. Capitalized terms used in this Amendment
that are not otherwise defined shall have the meanings given to such terms in the Credit
Agreement.



     B. The Borrower has requested that the Credit Agreement be amended in order to provide
for a letter of credit subfacility pursuant to which an aggregate principal amount of up to
$400,000 of the Original Revolving Credit Commitment will be available for the issuance of
letters of credit for the benefit of the Borrower.



     C. The Bank has agreed to amend the Credit Agreement as requested by the
Borrower as set forth herein.



STATEMENT OF AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Bank hereby agree as follows:



ARTICLE I




AMENDMENTS TO CREDIT AGREEMENT


  1.1 Amendments to Definitions.





   (a) Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in appropriate alphabetical order:




     “Letter of Credit Exposure” shall mean the sum of (i) the
aggregate Stated Amount of all Letters of Credit outstanding at such
time and (ii) the aggregate amount of all Reimbursement Obligations
outstanding at such time.



 









 






     “Letters of Credit” shall mean any letter of credit issued by
the Bank pursuant to the terms hereof, as such Letters of Credit may be
amended, extended, renewed or replaced from time to time.




     “Reimbursement Obligation” shall have the meaning given to such term
in Section 2.12(c).




     “Stated Amount” shall mean, with respect to any Letter of Credit at
any time, the aggregate amount available to be drawn thereunder at such time
(regardless of whether any conditions for drawing could then be met).




(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the following
definitions in their entirety and substituting the following therefor:




     “Credit Documents” shall mean and collectively refer to this
Agreement, the Note, the Letters of Credit, the Security Documents and any and all
other agreements, instruments and documents, including, without limitation, notes,
guaranties, mortgages, deeds to secure debt, deeds of trust, chattel mortgages,
pledges, powers of attorney, consents, assignments, contracts, notices, security
agreements, trust account agreements and all other written matters whether
heretofore, now or hereafter executed by or on behalf of the Borrower or delivered
to the Bank with respect to this Agreement or with respect to the transactions
contemplated by this Agreement, and in each case, together with any amendments,
modifications and supplements thereto, any replacements, renewals, extensions and
restatements thereof, and any substitutes therefor, in whole or in part.




     “Obligations” shall mean and include (i) the Reimbursement Obligations, the
Loans and all other loans, advances, indebtedness, liabilities, obligations, covenants
and duties owing, arising, due or payable from the Borrower to the Bank of any kind or
nature, present or future, arising under this Agreement, the Note or the other Credit
Documents or any Hedge Agreement, whether direct or indirect (including those acquired
by assignment), absolute or contingent, primary or secondary, due or to become due, now
existing or hereafter arising and however acquired; and (ii) all interest (including to
the extent permitted by law, all post-petition interest), charges, expenses, fees,
attorneys’ fees and any other sums payable by the Borrower to the Bank under this
Agreement or any of the other Credit Documents.



1.2 Amendments to Amounts and Terms of Loans (Article II).




(a) Section 2.1(a) of the Credit Agreement is hereby amended by deleting the first
sentence in its entirety and substituting the following therefor:




(a) The Bank agrees, on the terms and conditions set forth herein, to make
loans (each, a “Revolving Loan,” and collectively, the “Revolving
Loans”) to the Borrower, from time to time before the Revolving Credit



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Termination Date; provided that, immediately after each Revolving Loan
is made, the sum of the aggregate outstanding principal amount of the Revolving Loans
and the Letter of Credit Exposure shall not exceed the lesser of (x) $5,000,000 (as
such figure may be reduced from time to time as provided in this Agreement, the
“Revolving Credit Commitment”) and (y) the Threshold Amount.




(b) Section 2.3(a)(iii) of the Credit Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:




(iii) In part, immediately in the event that the sum of the aggregate
outstanding principal amount of the Revolving Loans and the Letter of Credit Exposure
exceeds the lesser of (x) the Revolving Credit Commitment or (y) the Threshold
Amount, in the amount of such excess.




(c) Section 2.5 of the Credit Agreement is hereby further amended by adding a new clause (c) which
shall read as follows:




(c) The Borrower agrees to pay to the Bank (i) a letter of credit fee equal to the
Applicable Percentage at the time of issuance and on each successive anniversary date if
such letter of credit is renewed or extended, and (ii) such commissions, transfer fees and
other fees and charges incurred in connection with the issuance and administration of each
Letter of Credit as are customarily charged from time to time by the Bank for the
performance of such services in connection with similar letters of credit, or as may be
otherwise agreed to by the Bank.




(d) Article II of the Credit Agreement is hereby amended by adding a new Section 2.12 which shall read as follows:




Section 2.12 Letter of Credit Subfacility.




     (a) Issuance. Subject to and upon the terms and conditions hereof, so
long as no Default or Event of Default has occurred and is continuing, at any time
before the seventh day prior to the Revolving Credit Termination Date, the Bank will
issue Letters of Credit for the account of the Borrower from time to time upon request
in a form acceptable to the Bank to be submitted at least [five (5)] Business Days prior
to the requested date of issuance; provided, however, that (i) the aggregate
amount of Letter of Credit Exposure shall not at any time exceed $400,000 and (ii) the
sum of the aggregate outstanding principal amount of the Revolving Loans and the Letter
of Credit Exposure shall not at any time exceed the lesser of (x) the Revolving Credit
Commitment or (y) the Threshold Amount. All Letters of Credit shall be denominated in
Dollars.



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     (b) Term; Extension. No Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided, however, that so long as no Default
or Event of Default has occurred and is continuing and subject to the other terms and conditions to
the issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit may be extended
annually or periodically from time to time on the request of the Borrower or by operation of the
terms of the applicable Letter of Credit to a date not
 more than twelve (12) months from the date
of extension. Notwithstanding the foregoing, no Letter of Credit as originally issued or as
extended shall have an expiry date extending beyond the Revolving Credit Termination Date.




     (c) Reimbursement. The Borrower agrees to reimburse the Bank in immediately available
funds (with the proceeds of a Revolving Loan obtained hereunder or otherwise) for any payment made
by the Bank under any Letter of Credit (each such amount so paid until reimbursed, together with
any interest payable thereon, a “Reimbursement Obligation”) no later than the next Business
Day after such payment is made by the Bank. Any Reimbursement Obligation shall be deemed timely
satisfied (but still subject to the payment of interest) if satisfied pursuant to a Borrowing of
Revolving Loans made no later than one Business Day after the date of such payment by the Bank.
Interest on Reimbursement Obligations shall accrue at a rate equal to the Adjusted LIBOR Rate to
the extent not reimbursed prior to [2:00] p.m. Charlotte, North Carolina time, on the date of such
payment is made by the Bank. The Bank shall provide the Borrower with prompt notice of any payment
or disbursement made or to be made under any Letter of Credit, although the failure to give, or any
delay in giving, such notice shall not release, diminish or otherwise affect the Borrower’s
obligations under this Section 2.12(c) or any other provision of this Agreement. The Borrower’s
reimbursement obligations hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or defense to payment the Borrower may claim or
have against the Bank, the beneficiary of the Letters of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or unenforceability of the Letter of Credit.




     (d) Payment by Revolving Loans. In the event that the Bank makes any payment under any
Letter of Credit and the Borrower shall not have timely satisfied in full its Reimbursement
Obligation to the Bank pursuant to Section 2.12(c) hereof and to the extent that any amounts then
held as cash collateral pursuant to Section 2.12(e) hereof shall be insufficient to satisfy such
Reimbursement Obligation in full, each such payment by the Bank shall constitute a Revolving Loan
to the Borrower (the Borrower being deemed to have given a timely Notice of Borrowing therefor) and
shall be treated as such for all purposes of this Agreement.



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     (e) Cash Collateralization. In the event that the aggregate
Letter of Credit Exposure exceeds the lesser of (x) the Revolving Credit
Commitment and (y) the Threshold Amount, the Borrower shall pay to the Bank cash
collateral equal to the amount of such excess irrespective of whether the Bank
shall have paid any amount to a beneficiary of a Letter of Credit. The Bank shall
have exclusive control over such cash collateral and in the event of a drawing and
subsequent payment by the Bank under any Letter of Credit, the Bank may satisfy
such Reimbursement Obligation with such cash collateral and its proceeds.



     1.3 Amendment to Conditions to Loans. Section 3.2 of the Credit Agreement is
hereby amended by deleting the introductory sentence and substituting the following therefor:




     The obligation of the Bank to make any Loan or issue any Letter of Credit
hereunder (including any Loans made on or after the Closing Date), is subject to the
continued validity of all Credit Documents and the satisfaction of the following
conditions



     1.4 Amendment to Remedies. Section 8.2 of the Credit Agreement is hereby
amended by deleting the introductory clause and clause (a) and substituting the following
therefor:



     Upon the occurrence and during the continuance of any Event of Default:




(a) Termination of Revolving Credit Commitment: Acceleration of
Indebtedness. The Bank may, in its sole discretion, (i) terminate the Revolving
Credit Commitment, which shall thereupon terminate; (ii) declare all or any part of
the Obligations immediately due and payable, whereupon such Obligations shall
become immediately due and payable without presentment, demand, protest, notice or
legal process of any kind, all of which are hereby expressly waived by the
Borrower; provided, however,that all Obligations shall automatically
become due and payable upon the occurrence of an Event of Default under Sections
8.1(g) or (i); (iii) require the Borrower to pay to the Bank cash collateral in an
amount equal to the Letter of Credit Exposure then outstanding, which cash
collateral shall immediately become due and payable; and (iv) pursue all other
remedies available to it by contract, at law or in equity, including but not
limited to its rights under the Security Documents.



     1.5 Amendment to Controlling Law. Section 9.7 of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:




This Agreement and the other Credit Documents shall (except as may be expressly
otherwise provided in any Credit Document) be governed by, and construed in
accordance with, the law of the State of North Carolina (without regard to the
conflicts of law provisions thereof); provided that each Letter of Credit
shall be governed by, and construed in accordance with, the laws or rules



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designated in such Letter of Credit, or if no such laws or rules are
designated, the International Standby Practices of the International Chamber of
Commerce, as in effect from time to time (the “ISP”), and, as to matters not
governed by the ISP, the laws of the State of North Carolina (without regard to the
conflicts of law provisions thereof).



ARTICLE II




REPRESENTATIONS AND WARRANTIES



     The Borrower hereby represents and warrants that:



     2.1 Representations in Credit Agreement. The representations and warranties of the
Borrower set forth in the Credit Agreement are true and correct in all material respects as of the
date hereof, except to the extent such representations and warranties relate solely to or are
specifically expressed as of a particular date or period.



     2.2 Compliance with Credit Agreement. After giving effect to this Amendment, the
Borrower is in compliance with all covenants, terms and provisions set forth in the Credit
Agreement to be observed or performed by it.



     2.3 Due Authorization. This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and each of this Amendment, and the
Credit Agreement, as amended hereby, constitutes the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms and each of the other Credit
Documents constitutes the legal, valid and binding obligation of the Borrower enforceable against
it in accordance with its terms.



     2.4 No Event of Default. No Default or Event of Default under any of the Credit
Agreement has occurred or is continuing.



     2.5
Continuing Security Interests. All obligations of the Borrower under the Credit
Agreement, as amended by this Amendment, continue to be or will be secured by the Bank’s security
interests in all of the collateral granted under the Credit Agreement and the Security Documents,
and nothing herein will affect the validity, enforceability, perfection or priority of such
security interests.



     2.6
No Defenses. The Borrower does not have any right of setoff, counterclaim, or
defense to payment of its respective liabilities or obligations under the Credit Agreement. The
Bank hereby expressly reserves all rights and remedies it may have against the Borrower and all
other Persons who may be or may hereafter become secondarily liable for the repayment of the
obligations under the Credit Agreement.







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ARTICLE III




ACKNOWLEDGEMENT



     The Subsidiary Guarantors hereby acknowledge that the Borrower and the Bank have agreed to
amend the Credit Agreement as provided herein. Each Subsidiary Guarantor hereby approves and
consents to the transactions contemplated by this Amendment and agrees that its obligations under
the Guaranty and the other,Credit Documents to which it is a party shall not be diminished as a
result of the execution of this Amendment. This acknowledgement by the Subsidiary Guarantors is
made and delivered to induce the Bank to enter into this Amendment, and the Subsidiary Guarantors
acknowledge that the Bank would not enter into this Amendment in the absence of the
acknowledgements contained herein.



ARTICLE IV




GENERAL



     4.1 Full Force and Effect. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of any of the Credit
Agreement. Except as expressly amended hereby, the Credit Agreement shall continue in full force
and effect in accordance with the provisions thereof on the date hereof. From and after the date
hereof, any reference to the Credit Agreement in any of the Security Documents or other Credit
Documents shall mean the Credit Agreement, as amended by this Amendment, and as may be further
amended, modified, restated, or supplemented from time to time.



     4.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North Carolina.



     4.3 Counterparts; Execution. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument. The exchange of copies of this Amendment and of signature
pages by facsimile transmission shall constitute effective execution and delivery of this Amendment
and such copies may be used in lieu of the original Amendment for all purposes. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.



     4.4 Expenses. The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Bank in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, all reasonable attorneys’ fees.



     4.5 Further Assurances. The Borrower shall execute and deliver to the Bank such
documents, certificates, and opinions as the Bank may reasonably request to effect the amendments
contemplated by this Amendment and to continue the existence, perfection and first priority of the
Bank’s security interests in the collateral securing the obligations under the Credit Agreement,
as amended by this Amendment.



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     4.6 Headings. The headings of this Amendment are for the purposes of reference
only and shall not affect the construction of this Amendment.



[The remainder of this page is left blank intentionally.]




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     IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Credit
Agreement to be executed and delivered by their duly authorized officers all as of the date first
above written.



	 	 	 	 	 
	 	SWISHER INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	 	Hugh H. Cooper    	 
	 	 	Senior Vice President 	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Cavan J. Harris
 	 
	 	 	Cavan J. Harris 	 
	 	 	Vice President 	 
	 
	 	SUBSIDIARY GUARANTORS:

(For purposes of Article III only)



SWISHER HYGIENE FRANCHISE CORP. 

SWISHER PEST CONTROL CORP. 

SWISHER MAIDS, INC.

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	 	Hugh H. Cooper    	 
	 	 	Vice President 	 
	 
	 	SHFC BUFFALO, LLC 

SHFC MINNEAPOLIS, LLC 

SHFC OKLAHOMA, LLC 

SHFC OPERATIONS, LLC

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	 	Hugh H. Cooper    	 
	 	 	Manager 	 
	 




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