AMENDMENT TO THE
POSTPONEMENT AND SUBORDINATION AGREEMENT
This Amendment to the Postponement and Subordination Agreement (this
"Amendment") is made and entered into as of May 03, 2011, by and among CANADIAN
IMPERIAL BANK OF COMMERCE (the "Senior Lender"), ORCHARD INVESTMENTS, LLC,
XXXXXXX X. XXXXXXX, BLACK FAMILY 1997 TRUST, XXXX X. XXXXX UAD 11/30/92 FBO
XXXXXXXXX XXXXX, XXXX X. XXXXX UAD 11/30/92 FBO XXXXXXXX XXXXX, XXXX X. XXXXX
UAD 11/30/92 FBO XXXXXX XXXXX, XXXX X. XXXXX UAD 11/30/92 FBO XXXXXXXX XXXXX,
XXXX X. XXXXX and XXXX X. XXXXXX (collectively, the "Subordinate Lender"), and
ESW CANADA INC., ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC. ("Worldwide"), ESW
TECHNOLOGIES INC., ESW AMERICA INC. AND BBL TECHNOLOGIES INC. (collectively, the
"Obligors").
RECITALS
WHEREAS, on or about February 17, 2011, Worldwide issued to the Subordinate
Lender unsecured subordinated promissory notes in the aggregate principal amount
of USD $3,000,000, which issuance was subject to the Postponement and
Subordination Agreement dated as of February 16, 2011, by and among the Senior
Lender, the Subordinate Lender and the Obligors (the "Original Agreement");
WHEREAS, Worldwide desires to issue to the Subordinate Lender additional
unsecured subordinated promissory notes in the aggregate principal amount of USD
$1,000,000; and
WHEREAS, in furtherance of the foregoing, the parties hereto desire to
amend the Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. DEFINED TERMS. All capitalized terms used herein, and not otherwise
defined, shall have the meanings ascribed to them in the Original Agreement.
2. AMENDMENTS TO THE ORIGINAL AGREEMENT.
(a) The definition of "Subordinate Credit Agreement" is hereby amended in
its entirety as follows:
""SUBORDINATE CREDIT AGREEMENT" means the unsecured subordinated promissory
note or notes in the aggregate principal amount of USD$4,000,000 issued by
Worldwide to the Subordinate Lender from time to time, as the same may, subject
to the provisions hereof, be amended, modified, restated, replaced, supplemented
or renewed from time to time."
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(b) Section 3(b)(i) of the Original Agreement is hereby amended by
replacing "USD$3,000,000" with "USD$4,000,000".
(c) Section 10 of the Original Agreement is hereby amended by deleting the
words "as of the date hereof" in clause (ii).
3. EFFECTIVNESS. This Amendment will become effective immediately upon
execution by the parties hereto (the "Effective Date").
4. REFERENCES TO THE AGREEMENT. From and after the Effective Date, all
references to the Original Agreement (including for purposes of incorporation by
reference into any and all existing or future riders and/or schedules to the
Original Agreement) will be deemed to be references to the Original Agreement
after giving effect to this Amendment.
5. NO OTHER AMENDMENTS. Except as expressly set forth herein, the Original
Agreement remains in full force and effect in accordance with its terms and
nothing contained herein will be deemed to (a) be a waiver, amendment,
modification or other change of any provision of the Original Agreement or any
other document, (b) be a consent to any transaction or (c) prejudice any rights
which any party may have under the Original Agreement and/or any other document.
6. FURTHER ASSURANCES. The parties agree that they shall at all times do,
execute, acknowledge and deliver all such acts, deeds and agreements as may be
reasonably necessary or desirable to give effect to the terms and provisions of
this Amendment, including any and all acts, deeds or agreements as may be
necessary for the purpose of registering or filing notice of the terms and
provisions of this Amendment.
7. GOVERNING LAW. This Amendment shall be exclusively (without regard to
any rules or principles relating to conflicts of laws) governed by and
interpreted in accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein and shall be treated in all respects as an Ontario
contract and the parties hereto hereby submit to the exclusive jurisdiction of
the courts of the Province of Ontario. Time shall be in all respects of the
essence herein.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts or by facsimile or PDF, each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument, and it shall not be necessary in making proof of this
Amendment to produce or account for more than one such counterpart.
* * * * *
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IN WITNESS WHEREOF the parties have duly executed this Amendment as of the
date written above.
SENIOR LENDER:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
------------------------------------------
Name:
Authorized Signing Officer
By:
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Name:
Authorized Signing Officer
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SUBORDINATE LENDER:
BLACK FAMILY 1997 TRUST,
by its authorized trustee
By:
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Xxxx X. Xxxxxx
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SUBORDINATE LENDER CONTINUED:
XXXX X. XXXXX TRUST UAD 11/30/92
FBO XXXXXXXXX XXXXX,
by its authorized trustee
By:
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Xxxx X. Xxxxxx
XXXX X. XXXXX TRUST UAD 11/30/92
FBO XXXXXXXX XXXXX,
by its authorized trustee
By:
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Xxxx X. Xxxxxx
XXXX X. XXXXX TRUST UAD 11/30/92
FBO XXXXXX XXXXX,
by its authorized trustee
By:
-------------------------------------------------
Xxxx X. Xxxxxx
XXXX X. XXXXX TRUST UAD 11/30/92
FBO XXXXXXXX XXXXX,
by its authorized trustee
By:
-------------------------------------------------
Xxxx X. Xxxxxx
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SUBORDINATE LENDER CONTINUED:
)
)
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WITNESS ) XXXX X. XXXXX l/s
Name: )
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Address: )
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)
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)
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)
)
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WITNESS ) XXXX X. XXXXXX l/s
Name: )
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Address: )
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)
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)
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)
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SUBORDINATE LENDER CONTINUED:
)
)
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WITNESS ) XXXXXXX X. XXXXXXX l/s
Name: )
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Address: )
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)
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)
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)
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SUBORDINATE LENDER CONTINUED:
ORCHARD INVESTMENTS, LLC,
by its authorized manager, Orchard Capital Corporation
By:
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Xxxxxxx X. Xxxxxxx
President
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OBLIGORS:
ESW CANADA INC.
By:
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Name:
Title:
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC.
By:
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Name:
Title:
ESW TECHNOLOGIES INC.
By:
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Name:
Title:
ESW AMERICA INC.
By:
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Name:
Title:
BBL TECHNOLOGIES INC.
By:
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Name:
Title:
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