FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
_____________________________________________
THIS FIFTH AMENDMENT ("Amendment"), dated as of the 5th
day of December, 1996, by and among PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware corporation ("Parent"), each of those
direct and indirect subsidiaries of Parent whose names are inscribed
on the signature pages to the "Loan Agreement" referenced below
(Parent and such direct and indirect subsidiaries, collectively, the
"Borrowers" or, individually, a "Borrower") and XXXXXX FINANCIAL,
INC., a Delaware corporation ("Lender");
W I T N E S S E T H T H A T:
WHEREAS, Borrowers and Lender are parties to a certain
Loan and Security Agreement, dated as of January 27, 1995 (as
amended to date, the "Loan Agreement"; capitalized terms used herein
and not defined herein have the meanings assigned to them in the
Loan Agreement), pursuant to which, subject to the terms and
conditions set forth therein, Lenders have made and continue to make
certain financial accommodations available to Borrowers; and
WHEREAS, Borrowers have requested that Lender agree to
amend the Loan Agreement in certain respects as hereinafter set
forth, and, subject to the terms and conditions set forth herein,
Lender is willing to do so; and
WHEREAS, Borrowers and Lenders desire to enter into this
Amendment in order to memorialize their mutual understandings in
regard to the foregoing matters;
NOW, THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers and Lender
agree as follows:
1. Amendment to Section 7.6 of the Loan Agreement. Section
7.6 of the Loan Agreement is hereby amended by deleting the proviso
at the end of such Section (beginning with the words "provided,
however," and ending with the words "Second Offering Shares") and
substituting in lieu thereof the following:
"provided, however, that Parent may issue (i)
the Shares pursuant to the Offering; (ii) the
Second Offering Shares pursuant to the Second
Offering, (iii) the Third Offering Shares
pursuant to the Third Offering, (iv) the Third
Offering Warrants pursuant to the Third
Offering, (v) shares of common stock upon
conversion of the Shares, (vi) shares of common
stock upon conversion of the Second Offering
Shares, (vii) shares of common stock upon
conversion of the Third Offering Shares, (viii)
shares of common stock upon exercise of the
Third Offering Warrants, (ix) 133,333 shares of
common stock to Xxxxx Xxxxxxxxxx in
reimbursement for certain expenses incurred by
him in the amount of $13,971 on behalf of
Borrowers and 76,190 shares of common stock to
Xxxxx Xxxxxxxxxx in exchange for certain cash
equity contributions previously made by him to
parent, (x) up to 152,000 shares of common
stock to Xxxxxx Xxxxxx as compensation for
consulting services, up to 30,000 shares of
common stock to Xxxx Xxxxx as compensation for
consulting services, up to 40,000 shares of
common stock to Xxxxx Xxxxx as compensation for
consulting services and up to 12,000 shares of
common stock to Xxxxx Xxxxxxx as compensation
for consulting services, (xi) shares of common
stock pursuant to its 1992 Outside Directors
Stock Option Plan, its 1993 Nonqualified Stock
Option Plan and its 1991 Performance Equity
Plan, (xii) warrants to X.X. Xxxxx Enterprises,
Inc. to purchase (A) up to 195,000 shares of
Parent's common stock at an exercise price of
$.73 per share and (B) up to 100,000 shares of
Parent's common stock at an exercise price of
$1.75 per share, as compensation for investment
banking services provided to Parent, and shares
of common stock upon exercise of such warrants
in up to the amounts described hereinabove,
(xiii) warrants to X.X. Xxxxxxx Financial
Services to purchase up to 450,000 shares of
Parent's common stock at an exercise price of
$1.50 per share, as compensation for investment
banking and financial consulting services
provided to Parent, and shares of common stock
upon exercise of such warrants in up to the
amount described hereinabove, (xiv) warrants to
Search Capital Group, Inc. to purchase (A) up
to 75,000 shares of parent's common stock at an
exercise price of $1.06 per share, (B) up to
50,000 shares of Parent's common stock at an
exercise price of $1.50 per share, (C) up to
50,000 shares of Parent's common stock at an
exercise price of $1.06 per share, as
compensation for consulting services provided
to Parent, and shares of common stock upon
exercise of such warrants to Xxxxxx X. Xxxxx to
purchase up to 100,000 shares of Parent's
common stock at an exercise price of $1.75 per
share, as compensation for consulting services
provided to Parent, and shares of common stock
upon exercise of such warrants to X.X. Xxxxx
Investment Banking Corporation to purchase up
to 200,000 shares of Parent's common stock at
an exercise price of $1.75 per share, as
compensation for investment banking services
provided to Parent, and shares of common stock
upon exercise of such warrants in up to the
amounts described hereinabove, (xvii) warrants
to Xxxxx Xxxxxx to purchase up to 200,000
shares of the Parent's common stock at an
exercise price of $1.75 per share, as
compensation for certain consulting services
provided to Parent, and shares of common stock
upon exercise of such warrants and (xviii)
shares of Parent's common stock in up to the
amounts described below to certain consultants
to Parent as follows (A) up to 13,000 shares to
Xxxx Xxxxxx, (B) up to 62,500 shares to R.
Xxxxx Xxxxxx, (C) up to 12,500 shares to C. Xxx
Xxxxxx, (D) up to 45,000 shares to Xxxx
Xxxxxxxxx, (E) up to 11,000 shares to Xxx Xxxx,
(F) up to 20,000 shares to Xxxxxxx Xxxxxxx, (G)
up to 9,412 shares to Xxxx Xxxxxxxx and (H) up
to 3,500 shares to Xxxxxx Xxxxx.
2. Conditions Precedent. This Amendment shall not become
effective unless and until each of the following conditions shall
have been satisfied on or prior to August 16, 1996, as determined
by Lender in its sole discretion:
(a) No Default or Event of Default shall have occurred and be
continuing.
(b) Since December 31, 1995, there shall have occurred no
material adverse change in the business, operations,
financial conditions, profits or prospect of any Loan
Party or in the Collateral.
3. Miscellaneous.
(a) Effect of Amendment. Except as set forth expressly
herein, all terms of the Loan Agreement and the other
Loan Documents shall be and remain in full force and
effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrowers. Without limitation
of the foregoing, Parent and each Borrower hereby ratify
and reaffirm the Parent Guaranty or Cross-Guaranty, as
applicable, to which it is party, after giving effect to
this Amendment. To the extent that any terms and
conditions in any of the Loan Documents shall contradict
or be in conflict with any terms or conditions of the
Loan Agreement, after giving effect to this Amendment,
such terms and conditions are hereby deemed modified and
amended accordingly to reflect the terms and conditions
of the Loan Agreement as modified and amended hereby.
Nothing contained herein shall be construed as a consent
to any matter prohibited by the Loan Agreement (except as
expressly provided herein).
(b) Reaffirmation of Representations and Warrants. Borrowers
hereby ratify and reaffirm each and every representation
and warranty set forth in the Loan Agreement and the
other Loan Documents effective as of the date hereof.
(c) Ratification. Borrowers hereby restate, ratify and
reaffirm each and every term and condition set forth in
the Loan Agreement, as amended hereby, and the other Loan
Documents effective as of the date hereof.
(d) Estoppel. To induce Lender to enter into this Amendment
and to continue to make Revolving Loans to Borrowers
under the Loan Agreement, each Borrower hereby
acknowledges and agrees that, as of the date hereof,
there exists no Event of Default or Default and no right
of offset, defense, counterclaim or objection in favor of
any Borrower as against Lender with respect to the
Obligations.
(e) Waiver and Release. Each Borrower waives and
affirmatively agrees not to allege or otherwise pursue
any or all defenses, affirmative defenses, counterclaims,
claims, causes of action, set-offs, or other rights that
any of them may have to contest (i) any provision of the
Loan Agreement, this Amendment, or other Loan Documents;
(ii) the right of Lender to all proceeds from the
Collateral; (iii) the ownership and security interest of
Lender in any property (whether real or personal tangible
or intangible), right or other interest, now or hereafter
arising in connection with the Collateral; (iv) the
conduct of Lender in administering this Amendment, the
Loan Agreement, the other Loan Documents or otherwise.
In consideration of the terms and conditions of this
Amendment, the receipt and sufficiency of which
consideration are hereby acknowledged by each Borrower,
each Borrower hereby releases Lender, its parents and
affiliates, its agents, servants, employees, directors,
attorneys, successors, and assigns from any and all
liabilities, claims, actions, or causes of action
accruing to any Borrower or their respective affiliates,
arising out of or in any manner connected with this
Amendment, the Loan Agreement, the other Loan Documents
or Lender's activities, including, without limitation,
all actions taken or not taken by Lender in connection
with the administration of this Amendment, the Loan
Agreement, the other Loan Documents or otherwise.
(f) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of
Illinois without regard to its conflicts of law rules.
(g) Costs and Expenses. Borrowers agree to pay promptly on
demand all reasonable costs and expenses of Lender in
connection with the preparation, execution, delivery and
enforcement of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket
expenses of Lender's counsel.
(h) Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of
separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their proper and duly authorized
officers as of the day and year first above written.
"LENDER"
XXXXXX FINANCIAL, INC., a
Delaware corporation
By: /s/ Miles X. XxXxxxx
_______________________
Miles X. XxXxxxx
Senior Vice President
"PARENT" AND "BORROWER"
PERMA-FIX ENVIRONMENTAL SERVICES,
INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
"BORROWERS"
INDUSTRIAL WASTE MANAGEMENT,
INC., a Missouri corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX, INC., an Oklahoma
corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX OF DAYTON, INC.,
an Ohio corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX OF FLORIDA, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX OF FORT LAUDERDALE,
INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX OF MEMPHIS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX OF NEW MEXICO, INC.,
a New Mexico corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
PERMA-FIX TREATMENT SERVICES,
INC., an Oklahoma corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
XXXXXXXXX, GRANA & YONLEY,
INC., a Missouri corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
MINTECH, INC., an Oklahoma
corporation
By: /s/ Xxxxx Xxxxxxxxxx
________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
RECLAMATION SYSTEMS, INC., an
Oklahoma corporation
By: /s/ Xxxxx Xxxxxxxxxx
____________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: CEO
ISTE:\N-P\PESI\10k\1996\EXHIBIT4.9
