AMENDMENT TO LOAN AND SECURITY AGREEMENT AND LOAN DOCUMENTS
THIS AMENDMENT TO LOAN AND SECURITY AGREEMENT AND LOAN DOCUMENTS (this
"Amendment"), dated as of August 29, 1997, 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 (the "Loan Agreement"), providing for the Revolving Loans,
Equipment Loans, Term Loan and Letters of Credit in the aggregate maximum
available amount not to exceed $9,000,000. 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. The Borrower and Lender desire to enter into this Amendment in order to
increase the amount of Letters of Credit that may be issued pursuant to
the Loan Agreement.
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:
1. AMENDMENT TO LOAN AGREEMENT. In order to increase to the maximum amount of
Letters of Credit that may be issued, subsection (i) of Section 2(c) of the
Loan Agreement is hereby amended by replacing the phrase "FIVE HUNDRED
THOUSAND DOLLARS ($500,000)" with the phrase "ONE MILLION FIVE HUNDRED
THOUSAND DOLLARS ($1,500,000)".
2. TERM LOAN ADVANCE. Lender may agree to advance all or a portion of the
Term Loan to Borrower prior to Lender having a perfected first priority
lien on all vehicles owned by Borrower. However, Lender is not waiving
the requirement that Borrower provide Lender a valid, perfected first
priority lien on all vehicles owned by Borrower. Accordingly, if Lender
elects to make an advance of the Term Loan, Lender hereby agrees that
Borrower shall have twenty (20) days following the advance of the Term
Loan to deliver to Lender the vehicle titles required pursuant to
Section 4(j) of the Loan Agreement and take all other actions required
in order to grant Lender a valid perfected first priority lien on all
vehicles owned by Borrower. If such vehicle titles have not been delivered
to Lender within twenty (20) days after such advance or Borrower fails to
take all other actions requested by Lender in order to grant Lender a valid,
perfected first
priority lien on all vehicles owned by Borrower, such failure shall, at
the Lender's option, be an Event of Default under Section 13 of the Loan
Agreement.
3. 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.
4. CONDITIONS PRECEDENT. The obligations of Lender under this Amendment are
subject to the satisfaction of the following conditions:
a. Borrower shall have executed and delivered this Amendment; and
b. No Event of Default or Unmatured Event of Default shall have occurred
as of the date hereof.
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 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 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 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, the terms of this Amendment shall control.
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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. Time is of the essence hereof with respect to the dates, terms and
conditions of this Amendment and the documents to be delivered
pursuant hereto.
e. 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.
f. If any provision of this Amendment shall be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this Amendment shall not be impaired thereby.
g. The section headings herein are for convenience only and shall not
affect the construction hereof.
h. Execution of this Amendment is not intended to and shall not
constitute a waiver by the Lender of any Event of Default.
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EXECUTED as of the date first set forth above.
BORROWER:
CET ENVIRONMENTAL SERVICES,
INC., a California corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx
Executive Vice President
LENDER:
NATIONAL BANK OF CANADA, a
Canadian chartered bank
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxx X. Xxxxxxx, Xx.
Vice President
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