EXHIBIT 4(S)
THIRD AMENDMENT TO
LOAN AGREEMENT AND LOAN DOCUMENTS
THIS THIRD AMENDMENT TO LOAN AGREEMENT ("Amendment") dated as of the 15th
day of November, 1998, is made and entered into on the terms and conditions
hereinafter set forth, by and between CONSUMAT ENVIRONMENTAL SYSTEMS, INC.
("Borrower"), a Virginia corporation, and SIRROM INVESTMENTS, INC. ("Lender"), a
Tennessee corporation.
WITNESSETH:
WHEREAS, Lender has made certain loans to Borrower (the "Original Loans")
as evidenced by certain Secured Promissory Notes as more fully described herein;
and
WHEREAS, Lender and Borrower previously executed that Loan Agreement dated
March 12, 1996, (the "Loan Agreement"); and
WHEREAS, Borrower and Lender desire to amend the Loan Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined shall have the
meanings ascribed thereto in the Loan Agreement.
2. The Recitals on page one (1) of the Loan Agreement are hereby amended to
read in their entirety as follows:
WHEREAS, Borrower has requested that Lender make available to
Borrower a term loan in the original principal amount of Two Million
Five Hundred Thousand and No/100 Dollars ($2,500,000) (the "Loan") on
the terms and conditions hereinafter set forth, and for the purpose(s)
hereinafter set forth; and
WHEREAS, in order to induce Lender to make the Loan to Borrower,
Borrower has made certain representations to Lender; and
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WHEREAS, Lender, in reliance upon the representations and
inducements of Borrower, has agreed to make the Loan upon the terms and
conditions hereinafter set forth.
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3. The second sentence of Section 1.1 of the Loan Agreement is hereby
amended to read in its entirety as follows:
The Loan shall be evidenced by (i) a Consolidated, Amended and
Restated Secured Promissory Note (the "Note") in the original principal
amount of Two Million and No/100 Dollars ($2,000,000.00), dated as of
November 15, 1998, executed by Borrower in favor of Lender,
substantially in the form attached hereto as Exhibit A and incorporated
herein by this reference (the "Amended Note"), and (ii) a Secured
Promissory Note (the "Secured Note") in the original principal amount of
Five Hundred Thousand and No/100 Dollars ($500,000.00), dated as of July
17, 1997, executed by Borrower in favor of Lender, as amended by that
First Amendment to Promissory Note dated as of June 16, 1998, that
Second Amendment to Promissory Note dated as of August 16, 1998, and
that Third Amendment to Promissory Note dated as of November 15, 1998,
substantially in the form attached hereto as Exhibit A and incorporated
herein by this reference. (The Amended Note and the Secured Note are
hereinafter referred to collectively as the "Note")
4. The obligations of Lender hereunder are subject to the fulfillment of
each of the following conditions:
(a) Borrower shall have delivered to Lender this Agreement;
(b) Borrower shall have delivered to Lender a Consolidated,
Amended and Restated Secured Promissory Note executed by Borrower
in the original principal amount of $2,000,000.00;
(c) Borrower shall have delivered to Lender a Third Amendment to
Stock Purchase Warrant;
(d) Borrower shall have delivered to Lender a Third Amendment to
Secured Promissory Note;
(e) Borrower shall have delivered to Lender certified copies of
the corporate charter, bylaws and amendments for Borrower;
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(f) Borrower shall have delivered to Lender certificate of
Existence or Good Standing, as applicable, for Borrower;
(g) Borrower shall have delivered to Lender certified copies of
Resolutions of the Directors of Borrower authorizing the
execution, delivery and performance hereof and of the related
documents;
(h) Borrower shall have delivered to Lender an opinion of
Borrower's counsel in form and substance satisfactory to Lender's
counsel; and
(i) Borrower shall have paid Lender a processing fee in the
amount of $5,000.00 and all reasonable fees and expenses incurred
by Lender in connection with the preparation and negotiation of
this Agreement.
5. Borrower hereby represents and warrants to Lender that all of the
representations made in Section 2 of the Loan Agreement are true and correct as
of the date hereof, except as modified or supplemented by Exhibit A attached
hereto and incorporated herein by this reference.
6. Borrower hereby represents and warrants to Lender that the
address(es) set forth on Exhibit B attached hereto and incorporated herein by
this reference is the principal place of Borrower's business and the location of
all tangible collateral and the place where the records concerning all
intangible collateral are kept and/or maintained.
7. Borrower warrants and represents that (a) the Loan Documents are
valid, binding and enforceable against Borrower according to their terms,
subject to principles of equity and laws applicable to the rights of creditors
generally, including bankruptcy laws, (b) no default or Event of Default
presently exists under the Loan Documents and no condition presently exists
which, with the giving of notice, the passing of time, or both, would cause such
a default or Event of Default. Borrower further acknowledges that Borrower's
obligations evidenced by the Loan Documents are not subject to any counterclaim,
defense or right of setoff, and Borrower hereby releases Lender from any claim,
known or unknown, that Borrower may have against Lender as of the execution of
this Amendment.
8. The terms "Loan Document" and "Loan Documents" as defined in the Loan
Agreement are amended to include this Amendment.
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9. This Amendment may be executed in any number of counterparts and by
different parties to this Amendment in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same Amendment.
10. Except as modified and amended hereby, the Loan Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
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BORROWER:
CONSUMAT ENVIRONMENTAL SYSTEMS, INC.,
a Virginia corporation
By:______________________________
Title:________________________
LENDER:
SIRROM INVESTMENTS, INC.,
a Tennessee corporation
By:_______________________________
Title:__________________________
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EXHIBIT A
Modifications of and Supplements to
Representations and Warranties
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EXHIBIT B
Location of Principal Place
of Business and Collateral
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