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EXECUTION COPY
THIRD AMENDMENT made as of September 3, 1996 (the "Amendment")
to FORBEARANCE AGREEMENT made as of June 7, 1996, as amended by the First
Amendment thereto, dated as of June 28, 1996 (the "First Amendment) and the
Second Amendment thereto, dated as of August 13, 1996 (the "Second Amendment")
(as so amended and as amended through the date hereof, the "Forbearance
Agreement") among SMITH ENVIRONMENTAL TECHNOLOGIES CORPORATION, BCM ENGINEERS
INC., a Pennsylvania corporation, BCM ENGINEERS INC., an Alabama corporation,
RIEDEL ENVIRONMENTAL SERVICES INC., each of the Lenders which are parties to
the Loan Agreement, and CHEMICAL BANK, as Agent for the Lenders. Terms which
are capitalized herein and not otherwise defined shall have the meanings
ascribed to them in the Forbearance Agreement.
WHEREAS, pursuant to the Second Amendment, the Current
Forbearance Period automatically terminates on September 6, 1996; and
WHEREAS, the Borrowers have requested the Lenders to consider
extending the Current Forbearance Period to September 30, 1996 and the Lenders
have so agreed, on the terms and subject to the fulfillment of the conditions
contained in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. EXTENSION OF CURRENT FORBEARANCE PERIOD. The Current
Forbearance Period is hereby extended to September 30, 1996. Accordingly, the
First Amendment is hereby modified by deleting the third sentence of Section 2
thereof and by substituting the following in lieu thereof:
"However, for the period commencing on the date hereof and
terminating on September 30, 1996 (the "Current Forbearance
Period"), so long as none of the events described in the
following clauses (a), (b) or (c) shall have occurred during
the Current Forbearance Period, the Lenders shall not demand
payment of the Liabilities, nor shall the Lenders otherwise
seek to exercise any of their rights or remedies under the
Loan Agreement, any of the Other Agreements or applicable law
with respect to the Designated Default (and the Forbearance
Agreement is hereby amended to so provide): (a) any Event of
Default (other than the Designated Default) shall have
occurred or other event which, with the giving of notice or
passage of time would constitute an Event of Default shall
have arisen, (b) the Gould Award shall have been paid by any
Borrower in whole or in part or shall have been entered as a
judgment in any court of competent jurisdiction and the
enforcement of such judgment shall not have been stayed or (c)
any default by any Borrower in the performance of the terms of
this Agreement shall have occurred."
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SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This
Amendment shall not be effective unless and until each of the following
conditions shall have been satisfied in the sole discretion of the Lenders or
waived by the Lenders, for whose sole benefit such conditions exist:
(a) The Agent and each of the Lenders shall have
received a fully executed counterpart or original of this Amendment.
(b) Upon the effectiveness of this Amendment, all
representations and warranties set forth in the Loan Agreement shall be true
and correct in all material respects on and as of the effective date hereof,
except for (x) such inducing representations and warranties that were only
required to be true and correct as of a prior date, (y) such representations
and warranties as relate to the defaults described in clause (ii) hereof and
(z) such representations and warranties as relate to the occurrence of an event
which has had or is reasonably likely to have a Material Adverse Effect, but
only to the extent that such event constitutes the Gould Event, and no Default
or Event of Default shall have occurred and be continuing, other than (i) the
Designated Default and (ii) defaults under agreements made in the ordinary
course of business between or among any of the Borrowers and Persons other than
the Agent, the Lenders, or any Affiliate of the Borrowers, such as lease
agreements, none of which agreements is material to the business of such
Borrower and none of which defaults, singly or in the aggregate, has had or is
reasonably likely to have, a Material Adverse Effect.
(c) Except for the collectibility of the
Referenced Account and the occurrence of the Gould Event, no event or
development shall have occurred since the date of delivery to the Lenders of
the Borrowers' most recent financial statements which event or development has
had or is reasonably likely to have a Material Adverse Effect.
(d) All corporate and legal proceedings and all
documents and instruments executed or delivered in connection with this
Amendment shall be satisfactory in form and substance satisfactory to the
Lenders and their counsel, and the Lenders and their counsel shall have
received all information and copies of all documents which the Lenders and
their counsel may have requested in connection herewith and the matters
contemplated hereunder, such documents, when requested by them, to be certified
by appropriate corporate authorities.
(e) The Lenders shall have received such further
agreements, consents, instruments and documents as may be necessary or proper
in the reasonable opinion of the Lenders, the Agent and their counsel to carry
out the provisions and purposes of this Amendment.
SECTION 3. GENERAL PROVISIONS.
(a) Nothing contained in this Amendment shall be
deemed to be a waiver of any Defaults or Events of Default, whether or not the
Agent or any of the Lenders shall have any knowledge thereof, nor shall
anything contained in this Amendment be deemed to be a waiver of any future
Default or Event of Default whatsoever.
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(b) Except as herein expressly amended, the
Forbearance Agreement, the First Amendment thereto, the Second Amendment
thereto and the Loan Agreement and all other agreements, documents, instruments
and certificates executed in connection therewith, are ratified and confirmed
in all respects and shall remain in full force and effect in accordance with
their respective terms.
(c) All references in any document or agreement
to the Forbearance Agreement shall mean the Forbearance Agreement as amended as
of the effective date hereof.
(d) This Amendment may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all which shall constitute one and the same
agreement.
(e) The Third Amendment is hereby modified by
deleting the date "June 28, 1996" set forth in Section 7(a) thereof and by
substituting in lieu thereof the date "September 30, 1996".
(f) This Amendment shall be governed and
controlled by the laws of the State of New York without reference to its choice
of law principles.
IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the
Lenders and the Agent have caused this Amendment to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above written.
SMITH ENVIRONMENTAL TECHNOLOGIES RIEDEL ENVIRONMENTAL SERVICES INC.
CORPORATION
By: /s/ John Poling By: /s/ John Poling
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(Title) Vice President (Title) Executive Vice President
BCM ENGINEERS INC., CHEMICAL BANK, as a Lender and as
a Pennsylvania corporation Agent
By: /s/ John Poling By: /s/ E. J. Hess
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(Title) Vice President (Title) Vice President
BCM ENGINEERS INC., BTM CAPITAL CORPORATION, formerly
Alabama corporation known as BOT Financial Corporation
By: /s/ John Poling By: /s/ William York
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(Title) Vice President Senior Vice President