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NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND LOAN DOCUMENTS
THIS NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND LOAN DOCUMENTS (this
"Amendment"), dated as of August 27, 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 (as
amended, the "Loan Agreement"), providing for the Revolving Loans,
Equipment Loans, a Term Loan and Letters of Credit in the aggregate
amended maximum available amount not to exceed $6,000,000. 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
(i) extend the Maturity Date from August 27, 1999 to September 3, 1999,
and (ii) amend the interest rate on all Loans.
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 3, 1999" for the date "August 27,
1999" in Subsection (i) in the second line of the Section.
2. Interest Rate. From and after September 1, 1999, all Loans shall bear
interest at a rate equal to the Reference Rate plus 2.00%.
3. 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. Without
limiting in any way the foregoing, Borrower understands and agrees that
in no event shall the total amount outstanding under all Loans exceed
$6,000,000.
4. 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.
5. 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.
6. 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
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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.
7. 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.
8. 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.
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.
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EXECUTED as of the date first set forth above.
BORROWER:
CET ENVIRONMENTAL SERVICES,
INC., a California corporation
By:
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Name:
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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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