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ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND LOAN DOCUMENTS
THIS ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND LOAN DOCUMENTS (this
"Amendment"), dated as of September 10, 1999, is between NATIONAL BANK OF
CANADA, a Canadian chartered bank ("Lender"), and CET ENVIRONMENTAL SERVICES,
INC., a California corporation ("Borrower").
Recitals
A. Lender and Borrower entered into a Loan and Security Agreement dated
May 29, 1997, as amended by an Amendment to Loan and Security Agreement
and Loan Documents dated as of August 29, 1997 and as further amended
by a Second Amendment to Loan and Security Agreement and Loan Documents
dated as of April 10, 1998 and as further amended by a Third Amendment
to Loan and Security Agreement and Loan Documents dated as of January
8, 1999, and as further amended by a Fourth Amendment to Loan and
Security Agreement and Loan Documents dated as of May 21, 1999, and as
further amended by a Fifth Amendment to Loan and Security Agreement and
Loan Documents dated as of June 18, 1999 and as further amended by a
Sixth Amendment to Loan and Security Agreement and Loan Documents dated
as of July 30, 1999 and as further amended by a Seventh Amendment to
Loan and Security Agreement and Loan Documents dated as of August 13,
1999, and as further amended by an Eighth Amendment to Loan and
Security Agreement and Loan Documents dated as of August 20, 1999, and
as further amended by a Ninth Amendment to Loan and Security Agreement
and Loan Documents dated as of August 27, 1999, and as further amended
by a Tenth Amendment to Loan and Security Agreement and Loan Documents
dated as of September 3, 1999 (as amended, the "Loan Agreement").
Defined terms used herein and not defined herein shall have the meaning
set forth in the Loan Agreement.
B. The Loans are secured by the Collateral.
C. Pursuant to a Notice of Suspension (the "Notice of Suspension") dated
August 10, 1999 from the United States Environmental Protection Agency
(the "EPA"), the EPA suspended Borrower under 40 C.F.R. Part 32.
D. The Borrower and Lender desire to enter into this Amendment in order
to, among other things, (i) reduce the Maximum Loan Availability from
$6,000,000 to $5,500,000, and (ii) extend the Maturity Date from
September 10, 1999 to September 17, 1999.
Agreement
IN CONSIDERATION of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
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1. Extension of Maturity Date. In order to extend the Maturity Date of the
Loans, Section 1(t) of the Loan Agreement is hereby revised by
substituting the date "September 17, 1999" for the date "September 10,
1999" in Subsection (i) in the second line of the Section.
2. Equipment Loans. The parties hereby agree that Borrower shall no longer
have the right to any Equipment Loans pursuant to paragraph 2(b) of the
Loan Agreement.
3. Collateral Reports Section 9(a) of the Loan Agreement is hereby amended
by amending and restating the first sentence of such section to read as
follows:
Borrower shall deliver to Lender, on a weekly basis, on or
before Tuesday of each week for the prior week, a collateral
report (the "Collateral Report") describing the aging of the
Accounts, all Eligible Accounts created or acquired by
Borrower subsequent to the immediately preceding Collateral
Report, information in connection with any Account which has
ceased to be an Eligible Account since the most recent
Collateral Report, and information on all amounts collected by
Borrower on Accounts subsequent to the immediately preceding
Collateral Report; provided that Lender reserves the right to
require such report on a more frequent basis at any time
requested by Lender.
4. Maximum Loan Availability. In order to decrease the Maximum Loan
Availability, Section 1(u) of the Loan Agreement is revised effective
as of September 15, 1999 by replacing the phrase "Six Million Dollars
($6,000,000)" with the phrase "Five Million Five Hundred Thousand
Dollars ($5,500,000)".
5. Letter of Credit Fee. From and after September 15, 1999, the letter of
credit fee set forth in Section 3(b) of the Loan Agreement shall be
equal to three and one-half percent (3.5%) per annum (computed on the
basis of a year of three hundred sixty (360) days for the actual number
of days elapsed) of the average undrawn face amount of the Letters of
Credit, payable monthly in arrears within 10 days after the end of each
month.
6. Advances. Without limiting in any way Lender's discretion or other
rights under the Loan Agreement, Borrower acknowledges and agrees that
advances to Borrower under the Loan Agreement are discretionary, and
Borrower understands and agrees that Lender may, in Lender's sole and
absolute discretion, discontinue the advancing of funds under Section 4
of the Loan Agreement at any time. Lender's advancing funds on the
Loans from or after the date hereof shall not act as a waiver of
Lender's right to discontinue making advances at any time.
7. Additional Reporting Requirements. In addition to all reporting
requirements set forth in the Loan Agreement (as amended by this
Amendment), Borrower covenants and agrees that Borrower shall provide
to Lender no later than September 16, 1999, a projected
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income statement and balance sheet of Borrower for each of the months
of September, October, November, and December, 1999.
8. Loan Documents.
a. Lender and Borrower agree that any and all notes or other
documents executed in connection with the Loans (collectively,
the "Loan Documents") are hereby amended to reflect the
amendments set forth herein and that no further amendments to
any Loan Documents are required to reflect the foregoing.
b. All references in any document to the Loan Agreement or any
other Loan Document shall refer to the Loan Agreement or such
Loan Document as amended pursuant to this Amendment.
9. Representations and Warranties. Borrower hereby certifies to the Lender
that as of the date of this Amendment (taking into consideration the
transactions contemplated by this Amendment), all of Borrower's
representations and warranties contained in the Loan Agreement and all
Loan Documents are true, accurate and complete in all material
respects, and no Event of Default (other than an Event of Default which
may arise out of the Notice of Suspension) or event that with notice or
the passage of time or both would constitute an Event of Default has
occurred under the Loan Agreement or any Loan Document. Without
limiting the generality of the foregoing, Borrower represents and
warrants that the execution and delivery of this Amendment has been
authorized by all necessary action on the part of Borrower, that the
person executing this Amendment on behalf of Borrower is duly
authorized to do so and that this Amendment constitutes the legal,
valid, binding and enforceable obligation of Borrower.
10. Additional Documents. Borrower shall execute and deliver to Lender at
any time and from time to time such additional amendments to the Loan
Agreement and the Loan Documents as the Lender may request to confirm
and carry out the transactions contemplated hereby or to confirm,
correct and clarify the security for the Loan.
11. Continuation of the Loan Agreement, Etc. Except as specified in this
Amendment, the provisions of the Loan Agreement and the Loan Documents
(as previously amended) shall remain in full force and effect, and if
there is a conflict between the terms of this Amendment and those of
the Loan Agreement or the Loan Documents (as previously amended), the
terms of this Amendment shall control.
12. Miscellaneous.
a. This Amendment shall be governed by and construed under the
laws of the State of Colorado and shall be binding upon and
inure to the benefit of the parties hereto and their
successors and permissible assigns.
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b. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original and all of which
together shall constitute one instrument.
c. This Amendment and all documents to be executed and delivered
hereunder may be delivered in the form of a facsimile copy,
subsequently confirmed by delivery of the originally executed
document.
d. This Amendment constitutes the entire agreement between
Borrower and the Lender concerning the subject matter of this
Amendment. This Amendment may not be amended or modified
orally, but only by a written agreement executed by Borrower
and the Lender and designated as an amendment or modification
of the Loan Agreement as amended by this Amendment.
e. Execution of this Amendment is not intended to and shall not
constitute a waiver by the Lender of any Event of Default or
event that with notice or the passage of time, or both, would
constitute an Event of Default, including, without limitation,
any Event of Default which may arise as a result of the Notice
of Suspension.
EXECUTED as of the date first set forth above.
BORROWER:
CET ENVIRONMENTAL SERVICES,
INC., a California corporation
By:
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Name:
-------------------------
Title:
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LENDER:
NATIONAL BANK OF CANADA, a
Canadian chartered bank
By:
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
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