AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT
This Amendment and Joinder to Loan and Security Agreement (the
"Amendment") made and entered into as of this 27th day of May, 1999,
by and between Perma-Fix Environmental Services, Inc. ("Perma-
Fix"), a Florida corporation, and its direct and indirect
subsidiaries named on the signature pages hereof, jointly and
severally (the "Borrowers"; all references to "Borrowers" shall
mean each Borrower and all of the Borrowers, individually and
collectively, jointly and severally), and CONGRESS FINANCIAL
CORPORATION (FLORIDA), a Florida corporation ("Lender").
WITNESSETH:
WHEREAS, Lender and the Borrowers (other than the Additional
Borrowers referred to below) entered into a Loan and Security
Agreement dated as of January 15, 1998 (the "Original Loan
Agreement"; the Original Loan Agreement, as the same may
hereafter be amended, including by this Amendment, is hereinafter
referred to as the "Loan Agreement"; all capitalized terms used
but not defined in this Amendment shall have the respective
meanings set forth in the Original Loan Agreement);
WHEREAS, Perma-Fix is acquiring all of the issued and
outstanding shares of stock of Chem-Met Services, Inc. ("Chem-
Met"), a Michigan corporation, Chemical Conservation of Georgia,
Inc. ("Chem Con-Georgia"), a Georgia corporation, and Chemical
Conservation Corporation ("Chem Con"), a Florida corporation
(collectively, the "Additional Borrowers");
WHEREAS, in connection with the foregoing transactions, the
Borrowers have requested that Lender consent to such transactions
and agree to extend credit to the Additional Borrowers under the
Loan Agreement; and
WHEREAS, in connection with the foregoing, the Lender has
required that certain terms and conditions of the Original Loan
Agreement be amended, and the joinder to the Loan Agreement of
the Additional Borrowers, as more fully set forth hereinbelow.
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and
sufficiency whereof is hereby acknowledged, the parties hereto
agree that the foregoing recitals are true and correct and
incorporated herein, and as follows:
I. Amendments to Loan Agreement. As used in this Amendment, all
references to sections and headings contained in Section I of this
Amendment are to those contained in the Original Loan Agreement.
The Original Loan Agreement is hereby amended, modified and
supplemented as follows:
1. Section 1. "Definitions" is hereby amended by:
(a) adding the following definitions:
"Additional Borrowers", Chem-Met, Chem Con, and Chem
Con-Georgia shall have the meanings set forth in the
recitals to the Amendment.
"Amendment" shall mean the Amendment and Joinder to
Loan and Security Agreement dated as of May 27, 1999, by
and between Lender and Borrowers.
"Certification Invoice" shall mean as to any Account
arising under a contract with the United States or any
subdivision, the invoice therefor containing the
certification by the applicable Borrower to the
applicable U.S. governmental unit that, inter alia, the
services giving rise to such Account have been performed
in accordance with the related contract.
"Claims Act" shall have the meaning set forth in
Subsection 1.6(k).
"Purchased Stock" shall mean all of the issued and
outstanding shares of the Additional Borrowers.
"Seller" shall mean, collectively, the ALS Trust,
the TPS Trust, TPS and ALS.
"Subordination Agreement" shall mean that certain
Subordination Agreement dated of even date of the
Amendment, by and among the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Living
Trust ("TPS Trust"), the ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Living Trust
("ALS Trust") and Perma-Fix Environmental Services, Inc.
"Subordinated Indebtedness" shall mean the
Subordinated Debt (as defined in the Subordination
Agreement).
"▇▇▇▇▇▇▇▇ Mortgage" shall mean that certain Mortgage
dated on or about the date of the Amendment, made by
Chem-Met Services, Inc. in favor of the TPS Trust and the
ALS Trust.
"Transaction Documents" shall mean, collectively,
those certain Stock Purchase Agreements (the "Stock
Purchase Agreements"), dated May 27, 1999, the first by
and among Perma-Fix, Chem-Met, the TPS Trust, the ALS
Trust, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("TPS") and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("ALS"), and the second by and among Perma-Fix, Chem Con,
Chem Con-Georgia, the TPS Trust, the ALS Trust, TPS and
ALS, all other agreements of transfer as are referred to
therein and all side letters with respect thereto and all
documents, instruments, and agreements executed or
delivered in connection therewith, as all of the
foregoing now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated, or
replaced; and
(b) by amending and restating the following definitions
in their entireties:
* * *
1.11 "Existing Unencumbered Real Property"
shall mean all Real Property of any Borrower not
subject of the Mortgages, including the Real
Property described on Composite Exhibit "C" to this
Agreement owned by Perma-Fix of Memphis, Inc., and
Perma-Fix of Ft. Lauderdale, Inc. and Perma-Fix
Treatment Services, Inc. located in Tulsa,
Oklahoma, respectively, as supplemented by Exhibit
"C" to this Amendment with respect to Real Property
respectively owned by Chem-Met Services, Inc.,
Chemical Conservation Corporation, and Chemical
Conservation of Georgia, Inc., as indicated on
Exhibit "C", but excluding the Real Property
located at ▇▇▇▇▇▇ Street in Memphis, Tennessee
owned by Perma-Fix of Memphis, Inc. (the "▇▇▇▇▇▇
Street Property"), the real property located in
▇▇▇▇▇ County, Michigan owned by Chem-Met Services,
Inc., but solely to the extent such property is
encumbered by the ▇▇▇▇▇▇▇▇ Mortgage, and the real
property located in Orange County, Florida owned by
Chemical Conservation Corporation, but solely, to
the extent such properties are encumbered by the
mortgage by Sun Trust securing the Sun Trust Debt
and the Carrier Debt, as replaced by Sun Trust.
* * *
1.20 "Maximum Credit " shall mean, on any
date of determination, the amount of $11,000,000.
(c) by amending and restating part (k) of Section 1.6,
Eligible Accounts, as follows:
* * *
(k) The account debtors with respect to such
Accounts are not any foreign government, the United
States of America, any State, political
subdivision, department, agency or instrumentality
thereof, unless, if the account debtor is the
United States of America, any State, political
subdivision, department, agency or instrumentality
thereof, (i) the Federal Assignment of Claims Act
of 1940, as amended (the "Claims Act") or any
similar State or local law, if applicable, has been
complied with in a manner satisfactory to Lender;
(ii) on any date of determination by Lender, such
Accounts do not exceed twenty percent (20%) of all
otherwise Eligible Accounts on such date of
determination; and (iii) as to each such Account,
the Certification Invoice has been submitted by the
applicable Borrower to the applicable governmental
unit.
* * *
2. Section 2, Credit Facilities is hereby amended as follows:
(a) Subsection (c) of Section 2.1 Revolving Loans, is
hereby amended and restated in its entirety as follows:
(c) Except in Lender's discretion, the
aggregate amount of the Loans outstanding at any
time shall not exceed the Maximum Credit. In the
event that the outstanding amount of any component
of the Loans, or the aggregate amount of the
outstanding Loans exceed the amounts available
under the lending formulas or the Maximum Credit,
such event shall not limit, waive or otherwise
affect any rights of Lender in that circumstance or
on any future occasions and Borrowers shall, upon
demand by Lender, which may be made at any time or
from time to time, immediately repay to Lender the
entire amount of any such excess(es) for which
payment is demanded.
* * *
(b) Section 2.3 Term Loan is hereby amended and restated
in its entirety:
Section 2.3 Term Loan. On the date of the
Amendment, Lender is making a Term Loan to Borrowers in
the original principal amount of $3,750,000, which
constitutes a renewal of the Term Loan originally
extended on or about January 15, 1998, of which the
principal amount of $1,666,667 is outstanding as of the
date of the Amendment, and an increase thereto in the
principal amount of $,2,083,333. The Term Loan is: (a)
evidenced by a Term Promissory Note in the original
principal amount of $3,750,000 (the "Renewal Term Note")
duly executed and delivered by Borrowers to Lender
concurrently with the Amendment, which Renewal Term Note
renews and increases, but does not satisfy, the
Obligations evidenced by the Term Promissory Note in the
original principal amount of $2,500,000 outstanding as of
the date of this Amendment; (b) to be repaid, together
with interest and other amounts, in accordance with this
Agreement, the Renewal Term Note, and the other Financing
Agreements; and (c) secured by all of the Collateral.
3. Subsection 3.1(a) of Section 3.1 Interest is amended and
restated as follows:
Borrowers shall pay to Lender interest on the
outstanding principal amount of the Obligations at the
rate of one and three-quarters percent (1?%) per annum in
excess of the Prime Rate (subject to reduction as
provided hereinbelow), except that, at Lender's option,
without notice, Borrowers shall pay to Lender interest at
the rate of three and three-quarters percent (3?%) per
annum in excess of the Prime Rate: (i) on the
Obligations for (A) the period from and after the date
of termination hereof until such time as Lender has
received full and final payment of all such Obligations
(notwithstanding entry of any judgment against
Borrowers), and (B) the period from and after the date of
the occurrence of an Event of Default for so long as such
Event of Default is continuing as determined by Lender
and (ii) on the Revolving Loans at any time outstanding
in excess of the amounts available to Borrowers under
Section 2 (whether or not such excess(es), arise or are
made with or without Lender's knowledge or consent and
whether made before or after an Event of Default);
provided, however, that if no Event of Default shall have
occurred, if "net income/loss applicable to common stock"
for Borrowers is at least a positive $1,500,000, for
fiscal year 1999 or, if less in such year, for fiscal
year 2000, in either case as reflected in Borrowers'
applicable annual audited financial statements furnished
to Lender pursuant to Section 9.6 of this Agreement, from
and after the date of receipt by Lender of such financial
statements, this Section 3.1(a) shall be deemed amended
in part by substituting above the phrase . . . "one and
one-half percent (1 1/2%) in respect of the principal of
Revolving Loans and one and three-quarters percent (1?%)
in respect of the Term Loan" . . . for the phrase . . .
"one and three-quarters percent (1?%)" . . . . .
4. Section 3.4 Servicing Fee is amended by substituting
therein the amount of $2,000 wherever the amount of $1,500 appears,
which increased amount shall be effective commencing the next
calendar month after the month containing the date of this
Amendment.
5. Section 3.5 Unused Line Fee is amended by (a) substituting
the term "Maximum Credit" wherever the amount of $4,500,000 appears
and (b) deleting the word "Revolving" from Section 3.5.
6. (a) The preamble to Section 5, Grant of Security
Interest, is hereby amended and restated as follows:
To secure payment and performance of all
Obligations, each Borrower hereby grants and regrants, as
appropriate, to Lender a continuing security interest in,
a lien upon, and a right of set off against, and hereby
assigns to Lender as security, the following property and
interests in property of such Borrower, whether now owned
or hereafter acquired or existing, and wherever located
(collectively, the "Collateral"):
* * *
(b) The Borrowers agree that Section 5.2 is supplemented
by the following:
..., including, without limitation, all of Perma-
Fix's right, title and interest in, to, and under, the
Transaction Documents, including, without limitation, all
of the benefits of any representations and warranties
provided by the Seller, and any and all of Perma-Fix's
rights to indemnification from the Seller or any other
person contained therein. Borrowers agree that no
provision contained in this Agreement shall impose on
Lender any of the obligations or liabilities of Perma-Fix
under the Transaction Documents. In addition, Borrowers
hereby indemnify Lender and hold it harmless from any and
all claims, actions, suits, losses, damages, costs,
expenses, fees, obligations and liabilities which may be
incurred by or imposed upon Lender by Seller or any other
third party by virtue of Lender's lien on Perma-Fix's
right, title and interest in, to, and under the
Transaction Documents. The foregoing shall survive
payment of the Obligations in full and termination of the
Agreement. Borrowers further acknowledge and agree that
following the occurrence of an Event of Default, Lender
shall be entitled, at its option, to enforce any and all
Perma-Fix's rights and remedies under the Transaction
Documents and/or under applicable law.
7. Section 8 Representations and Warranties, is hereby
supplemented by the following:
* * *
8.13 Acquisition of Purchased Stock.
(a) The Transaction Documents and the
transactions contemplated thereunder have been duly
executed, delivered and performed in accordance with
their terms by the respective parties thereto in all
material respects, including the fulfillment (not merely
the waiver, except as may be disclosed to Lender and
consented to in writing by Lender) of all material
conditions precedent set forth therein and giving effect
to the terms of the Transaction Documents and the
assignments to be executed and delivered by Seller
thereunder, Perma-Fix acquired and has good and
marketable title to the Purchased Stock, free and clear
of all claims, liens, pledges and encumbrances of any
kind, except as disclosed in writing to Lender.
(b) All actions and proceedings required by
the Transaction Documents, applicable law or regulation
(including, but not limited to, compliance with the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as
amended) have been taken and the transactions required
thereunder have been duly and validly taken and
consummated.
(c) No court of competent jurisdiction has
issued any injunction, restraining order or other order
which prohibits consummation of the transactions
described in the Transaction Documents and no
governmental or other action or proceeding has been
threatened or commenced, seeking any injunction,
restraining order or other order which seeks to void or
otherwise modify the transactions described in the
Transaction Documents.
(d) Borrower has delivered, or caused to be
delivered, to Lender true, correct and complete copies of
the Transaction Documents.
8.14 Capitalization.
All of the issued and outstanding shares of
capital stock of each of the Additional Borrowers are
directly and beneficially owned and held by Perma-Fix and
all of such shares have been duly authorized and are
fully paid and non-assessable, free and clear of all
claims, liens, pledges and encumbrances of any kind,
except as disclosed in writing to Lender.
8. Section 9.9 Indebtedness is hereby supplemented by the
following:
* * *
; and (e) the Subordinated Indebtedness which
indebtedness is subject and subordinate in right of
payment to the right of Lender to receive the prior final
payment and satisfaction in full of all of the
Obligations; provided, that: (i) the principal amount of
indebtedness evidenced by the Notes (as defined in the
Subordination Agreement) shall not exceed $4,700,000,
less the aggregate amount of all repayments, repurchases
or redemptions, whether optional or mandatory in respect
thereof, plus interest thereon at the rate provided for
in such agreement or instrument as in effect on the date
hereof, nor shall any other Subordinated Indebtedness be
increased over the amounts contemplated in the
Transaction Documents in effect concurrently with this
Amendment (ii) Borrower shall not, directly or
indirectly, make any payments in respect of the
Subordinated Indebtedness (other than the distribution of
common stock permitted under Section II(v) of the
Amendment), including, but not limited to, any
prepayments or other non-mandatory payments, except that
until an Event of Default, or event which with notice or
passage of time or both would constitute an Event of
Default, shall exist or have occurred and be continuing,
Borrower may make regularly scheduled payments of
principal and interest in accordance with the terms of
such agreement or instrument as in effect on the date
hereof, (iii) Borrower shall not, directly or indirectly,
(A) amend, modify, alter or change any terms of the
Subordinated Indebtedness, including, without limitation,
the ▇▇▇▇▇▇▇▇ Mortgage, or (B) redeem, retire, defease,
purchase or otherwise acquire such indebtedness, or set
aside or otherwise deposit or invest any sums for such
purpose except as permitted under the Subordination
Agreement and this Agreement, and (iv) Borrower shall
furnish to Lender all notices, demands or other materials
concerning such indebtedness either received by Borrower
or on its behalf, promptly after receipt thereof, or sent
by Borrower or on its behalf, concurrently with the
sending thereof, as the case may be.
* * *
9. Section 9.11 Dividends and Redemptions is hereby amended
and restated in its entirety as follows:
Section 9.11 Dividends and Redemptions. No Borrower
shall, directly or indirectly, declare or pay any
dividends (except for dividends declared and paid from
time to time in respect of preferred stock issued and
outstanding on the date of this Amendment as set forth on
Schedule 9.11 hereto and dividends to Perma-Fix from its
subsidiaries or to or from subsidiaries of any other
Borrower for the purpose of ultimately dividending a like
amount to Perma-Fix), on account of any shares of class
of capital stock of any Borrower now or hereafter
outstanding, or set aside or otherwise deposit or invest
any sums for such purpose, or redeem, retire, defease,
purchase or otherwise acquire any shares of any class of
capital stock (or set aside or otherwise deposit or
invest any sums for such purpose) (other than the
redemption of various series of preferred stock of Perma-
Fix existing as of the date of this Amendment in an
aggregate amount not to exceed $750,000) for any
consideration other than common stock or apply or set
apart any sum, or make any other distribution (by
reduction of capital or otherwise) in respect of any such
shares or agree to do any of the foregoing.
10. (a) Section 10.1 Events of Default is amended as
follows:
(a) In Subsection (a), by substituting the phrase "five
(5)" wherever the phrase "ten (10)" appears; and
(b) by adding Subsection (n):
(n) any party to the Subordination Agreement
shall breach any term thereof, or revoke or
contest or attempt to revoke or contest any terms
or conditions thereof.
11. Section 12.1 Term is amended by:
(a) deleting the word ". . . hereof . . ." in the second
line and substituting the words ". . . of the Amendment . . ."
therefor in Subsection 12.1(a); and
(b) by deleting Parts (i), (ii) and (iii) of Subsection
12.1(c) and substituting the following therefor:
* * *
Amount Period
______ ______
(i) 1.5% of Maximum Credit From the date of the Amendment to and
including January 14, 2000; and
(ii) 1.0% of Maximum Credit From January 15, 2000 to and including
January 14, 2001.
* * *
12. Exhibit "A", Information Certificate, to the Original
Loan Agreement is hereby replaced by Exhibit "A" to this Amendment.
II. Consent. Subject to the terms and conditions of this
Amendment and all of the Financing Agreements, Borrower has
requested that Lender consent, and Lender hereby consents, to the
acquisitions of the Shares (as respectively defined in the Stock
Purchase Agreements) and notwithstanding the provisions of Section
9.7 of the Original Loan Agreement, that (i) shares of Common Stock
of Perma-Fix shall be issued to the ALS Trust pursuant to the terms
of the Stock Purchase Agreements, (ii) Chem-Met, Chem Con and Chem
Con-Georgia will hereafter be subsidiaries of Perma-Fix; (iii) the
payments to resolve the litigations referred to in Section IV(K) of
this Amendment, (iv) the repayment of Charter Bank and the Michigan
Strategic Fund of all amounts due such entities set forth on payoff
letters heretofore provided to Lender, (v) the continuation of the
Sun Trust Debt and an increase thereto to repay all amounts due
under the Carrier Debt (as such terms are defined in and as
required by the Stock Purchase Agreements) (as which Borrowers
agree that they shall not increase the amount thereof from that
outstanding on the date of this Amendment, and shall upon execution
thereof, deliver to Lender true and complete copies of the Sun
Trust loan documents, and (vi) the issuance of the Guarantees under
the Stock Purchase Agreements (but not to the payment of cash or
any other consideration thereunder other than the issuance of
shares of common stock of Perma-Fix so long as a change of control
as provided in 10.(j) does not occur thereby). The foregoing
consents shall be effective in this specific instance only.
Accordingly, except for such transactions set forth in the
Transaction Documents, Lender shall have no obligation to (i)
consent to any departure from the terms and conditions of the Loan
Agreement or any other Financing Agreements whether heretofore or
hereafter occurring, or (ii) waive any Event of Default occurring
under the Loan Agreement or any other Financing Agreement now
existing or hereafter occurring, including, without limitation,
pursuant to 10.1(j) of the Loan Agreement, in either case, whether
arising out of similar or dissimilar transactions to the
transactions contemplated in the Transaction Documents, or
otherwise.
III. Joinder to Loan Agreement and Other Financing Agreements.
1. (a) Each Additional Borrower agrees that from and after
the date of this Amendment, it shall be joined in the Loan
Agreement as a "borrower" with joint and several liability with
each of the other Borrowers and, accordingly, all references to the
term "Borrowers" in the Loan Agreement shall have the meaning set
forth in this Amendment.
(b) Each Additional Borrower acknowledges that it has
received and reviewed the Original Loan Agreement, a copy of which
is annexed to this Amendment as Exhibit "1", and all other
Financing Agreements, and agrees to be bound by all of the terms
and conditions of the Loan Agreement and all of the other Financing
Agreements applicable to the "Borrowers." To this effect, each of
the Additional Borrowers acknowledges and agrees that pursuant to
Section 5 of the Agreement, as of the date of this Amendment, it is
granting to the Lender a first priority security interest in and to
the Collateral described in the Loan Agreement, whether now owned
by it or in which it has an interest, or hereafter acquired,
created, or arising, subject only to those liens and security
interests expressly permitted by the Loan Agreement.
(c) Each Additional Borrower acknowledges and agrees
that by execution of this Amendment, as of the date of this
Amendment and hereafter, it is and shall be making all of the
representations and warranties of a Borrower, whether in the Loan
Agreement, the other Financing Agreements, or otherwise. To this
effect, annexed to this Amendment are Exhibits "A", "B", and "C",
and Schedules 8.4, 8.8, 8.9, 8.9, and 9.10, which Exhibits and
Schedules are hereby made a part of the sections of the Loan
Agreement referencing such Exhibits and Schedules. The Exhibits and
Schedules supplement but do not replace the Exhibits and Schedules
heretofore delivered to Lender in connection with the Original Loan
Agreement.
IV. Conditions Precedent.
1. (a) Borrower acknowledges and agrees that as a condition
precedent to the effectiveness of the consent of Lender pursuant to
Part II of this Amendment or the increase in the amount of the
Loans contemplated herein:
(b) all requisite corporate action and proceedings in
connection with this Loan Agreement and the other Financing
Agreements shall be satisfactory in form and substance to Lender,
and Lender shall have received all information and copies of all
documents, including, without limitation, records of requisite
corporate action and proceedings which Lender may have requested in
connection therewith, such documents where requested by Lender or
its counsel to be certified by appropriate corporate officers or
governmental authorities;
(c) no material adverse change shall have occurred in
the assets, business or prospects of the Additional Borrowers or
the other Borrowers since the date of Lender's latest field
examination and no change or event shall have occurred which would
impair the ability of Borrowers or any Obligor to perform its
obligations hereunder or under any of the other Financing
Agreements to which it is a party or of Lender to enforce the
Obligations or realize upon the Collateral;
(d) Lender shall have received, in form and substance
satisfactory to Lender, all consents, waivers, acknowledgments and
other agreements from third persons which Lender may deem necessary
or desirable in order to permit, protect and perfect its security
interests in and liens upon the Collateral or to effectuate the
provisions or purposes of this Agreement and the other Financing
Agreements, including, without limitation, acknowledgments by
lessors, mortgagees and warehousemen of Lender's security interests
in the Collateral, waivers by such persons of any security
interests, liens or other claims by such persons to the Collateral
and agreements permitting Lender access to, and the right to remain
on, the premises to exercise its rights and remedies and otherwise
deal with the Collateral;
(e) Lender shall have received, in form and substance
satisfactory to Lender, such opinions of counsel to Borrowers and
the Seller with respect to the Financing Agreements, the
Transaction Documents, and such other matters as Lender may
request;
(f) Lender shall have been named loss payee upon
endorsements satisfactory to the Lender under the policies of
insurance required to be maintained by each Borrower pursuant to
the Loan Agreement and all such policies of insurance shall be
reviewed by and be satisfactory to Lender;
(g) such other Financing Agreements and all instruments
and documents hereunder and thereunder as Lender may require shall
have been duly executed and delivered to Lender, in form and
substance satisfactory to Lender;
(h) Lender shall have received, in form and substance
satisfactory to Lender, evidence that the Transaction Documents
have been duly executed and delivered by and to the appropriate
parties thereto and the transactions contemplated under the terms
of the Transaction Documents have been consummated prior to or
contemporaneously with the execution of this Amendment;
(i) Lender shall have received, in form and substance
satisfactory to Lender, a pro-forma balance sheet of Borrower
reflecting the initial transactions contemplated hereunder,
including, without limitation, (i) the consummation of the
acquisition of the Purchased Stock by Perma-Fix from Seller and the
other transactions contemplated by the Transaction Documents and
(ii) the Loans provided by Lender to Borrower on the date of this
Amendment and the use of the proceeds of the initial Loans as
provided herein, accompanied by a certificate, dated of even date
herewith, of the chief financial officer of Borrower, stating that
such pro-forma balance sheet represents the reasonable, good faith
opinion of such officer as to the subject matter thereof as of the
date of such certificate;
(j) Lender shall have received, in form and substance
satisfactory to Lender, the agreement of Seller consenting to the
collateral assignment by Borrower or any Obligor to Lender of all
of Borrower's and such Obligor's rights and remedies and claims for
damages and other relief under the Transaction Documents and
granting Lender such other rights as Lender may require, duly
authorized, executed and delivered by Seller;
(k) Evidence deemed satisfactory to Lender of the
concurrent final settlement of the litigation in respect of the
"Four County Landfill Site," pursuant to the terms of the Stock
Purchase Agreements and the payoff and settlement of Chemfix
Technologies, Inc. litigation.
2. This Amendment constitutes a part of, and shall be
construed in connection with, the Original Loan Agreement, and all
terms, covenants, conditions, representations and warranties shall
remain in full force in effect and are incorporated herein by
reference as if fully set forth herein. In the event of any
inconsistencies between the provisions of this Amendment and
elsewhere in the Loan Agreement, the provisions of this Amendment
shall in all respects govern and control.
V. Other Matters.
1. Borrowers are paying Lender a closing fee of $40,000 on or
before the date of this Amendment, which fee shall be deemed to be
fully earned by Lender upon execution of this Amendment by Lender
and Borrowers.
2. As to contracts with the United States or any subdivision
which are in existence as of the date of this Amendment or which
may hereafter arise, so long as copies of such contracts have
heretofore been delivered to Lender, Lender agrees that Accounts
arising thereunder shall be deemed to be Eligible Accounts if such
Accounts would otherwise be deemed to be Eligible Accounts but for
the fact that the applicable Claims Act provisions have not been
complied with, for a period of one hundred and eighty (180) days
after the date of this Amendment as to such existing contracts and
ninety (90) days from the date of delivery of any hereafter arising
contracts. In any event, Borrower agrees to use its best efforts
to cause compliance with the Claims Act as soon as practicable.
Notwithstanding anything contained herein or otherwise to the
contrary, none of the Accounts arising under any such contract
shall be Eligible Accounts unless Lender and Borrowers are in
compliance with the applicable Claims Act at all times after the
applicable ninety (90) or one hundred and eighty (180) day period,
as applicable, provided above for compliance with the Claims Act .
3. Each Borrower certifies to Lender that (after giving
effect to this Amendment) all representations and warranties of
such Borrower contained in the Loan Agreement are, true and correct
as of the date of this Amendment, except to the extent such
representations and warranties relate solely to an earlier date.
4. Each Borrower certifies to Lender that (after giving
effect to this Amendment) no Event of Default under the Loan
Agreement, or event which with the passage of time or the giving of
notice, or both, would constitute an event of default under the
Loan Agreement, has occurred and is continuing.
5. (a) In no way in limitation of the provisions of Section
9.15 of the Loan Agreement, Borrower will pay all out-of-pocket
expenses incurred by Lender in connection with the preparation of
this Amendment and of the other Financing Agreements, including,
all amendments, supplements or modifications hereafter made to any
of the foregoing after the date of this Amendment, and the closing
of the transactions contemplated herein and therein, including,
without limitation, the reasonable fees and expenses of counsel for
Lender. In addition, Borrower agrees to pay all documentary stamp
taxes, intangible taxes, filing or recording fees required in
connection with the borrowings hereunder and creating, perfecting
and preserving Lender's security interest in the Collateral.
6. (a) EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AMENDMENT, THE LOAN AGREEMENT, ALL DOCUMENTS AT ANY TIME
MADE IN CONNECTION WITH THIS AMENDMENT, THE LOAN AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN. FURTHER, EACH
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
LENDER NOR THE LENDER'S COUNSEL HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE LENDER WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. FINALLY, EACH BORROWER ACKNOWLEDGES THAT THE LENDER HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS PARAGRAPH.
7. Each Borrower agrees that it has no off-sets, defenses or
counterclaims to the payment of the Obligations or the performance
by it under the Loan Agreement or the other Financing Agreements.
Further, each Borrower agrees that it has no claims of any nature
whatsoever against the Lender, its parent, subsidiaries,
affiliates, divisions, officers, directors, employees, agents,
stockholders, successors, or assigns arising out of or related to
the Obligations, the other Financing Agreements, or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed, sealed and delivered the day and
year first above written.
BORROWERS:
PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
INDUSTRIAL WASTE MANAGEMENT, INC.,
a Missouri corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ASSOCIATES
(formerly known as ▇▇▇▇▇▇▇▇▇, Grana
& Yonley, Inc.), a Missouri
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX TREATMENT SERVICES, INC.,
an Oklahoma corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX, INC., an Oklahoma
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
MINTECH, INC., an Oklahoma
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
RECLAMATION SYSTEMS, INC., an
Oklahoma corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX OF NEW MEXICO, INC.,
a New Mexico corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX OF FLORIDA, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX OF MEMPHIS, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA-FIX OF DAYTON, INC.,
an Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
PERMA FIX OF FT. LAUDERDALE, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Financial Officer
CHEM-MET SERVICES, INC.,
a Michigan corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CHEMICAL CONSERVATION OF GEORGIA,
INC., a Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CHEMICAL CONSERVATION CORPORATION,
INC., a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
LENDER:
CONGRESS FINANCIAL CORPORATION
(FLORIDA)
By:
______________________________
Name:
Title:
30060595v6
