SECOND AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT
This Second Amendment and Joinder to Loan and Security
Agreement (the "Second Amendment") made and entered into as of this
31st day of August, 2000, 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 certain of the Borrowers entered into a
Loan and Security Agreement dated as of January 15, 1998, as
amended by a letter agreement dated September 22, 1999, and by that
certain Amendment and Joinder to Loan and Security Agreement dated
as of May 27, 1999 to which all Borrowers (other than DSSI (as
defined below)) are parties thereto (the "Original Loan Agreement";
the Original Loan Agreement, as the same may hereafter be amended,
including by this Second 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, inter alia, acquiring all of the issued
and outstanding shares of stock of Diversified Scientific Services,
Inc., a Tennessee corporation ("DSSI");
WHEREAS, in connection with the foregoing transactions, the
Borrowers have requested that Lender consent to such transactions
and related transactions, as more fully set forth in this Second
Amendment, and agree to extend credit to DSSI under the Loan
Agreement; and
WHEREAS, in connection with the foregoing, the Lender has
required certain terms and conditions of the Original Loan
Agreement to be amended and the joinder to the Loan Agreement of
DSSI, 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 Second 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:
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement dated of even date with the
Second Amendment, by and between New Seller and Lender.
"New Seller" shall mean Waste Management Holdings,
Inc., a Delaware corporation and its successor and
assigns.
"New Transaction Documents" shall mean,
collectively, that certain Stock Purchase Agreement
(the "Stock Purchase Agreement"), dated May 16, 2000,
by and among Perma-Fix and New Seller, as amended by
that certain First Amendment to Stock Purchase
Agreement, dated August 31, 2000, the Seller Notes, the
RBB Note, all other agreements of transfer as are
referred to therein and all side letters with respect
thereto, and all agreements and warrants for the
issuance of Perma-Fix common stock entered into on or
before the date of the Second Amendment in connection
with the RBB Note 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.
"Purchased Stock" shall mean all of the issued and
outstanding shares of DSSI.
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"RBB Note" shall mean that certain unsecured
Promissory Note in the original principal sum of
$3,000,000, issued by Perma-Fix to RBB Bank, dated
August 29, 2000.
"Second Amendment" shall mean the Second Amendment
and Joinder to Loan and Security Agreement dated as of
August ___, 2000, by and between Lender and Borrowers.
"Seller Collateral" shall have the meaning set
forth in the Intercreditor Agreement.
"Seller Notes" shall mean Seller Note No. 1 and
Seller Note No. 2, and all documents, instruments, and
agreements relating to either of the foregoing,
including, without limitation, that certain Non-
Recourse Guaranty of Payment of Promissory Note dated
the date of the Seller Notes, made by DSSI in favor of
the New Seller.
"Seller Note No. 1" shall mean that certain
Promissory Note dated August 31, 2000, in the original
principal amount of $3,500,000, made by Perma-Fix in
favor of New Seller.
"Seller Note No. 2" shall mean that certain
Guaranteed Promissory Note dated August 31, 2000, in
the original principal amount of $2,500,000, made by
Perma-Fix in favor of the New Seller.
(b) by amending and restating the following
definitions:
* * *
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
(including the supplements thereto annexed to
the Amendment and the Second Amendment) 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, the Real Property
described on the supplements to Exhibit "C"
annexed to the Amendment and the Second
Amendment with respect to Real Property owned
by Perma-Fix of Michigan, Inc., Chemical
Conservation Corporation, Chemical
Conservation of Georgia, Inc., and DSSI (but
excluding the Real Property located at Xxxxxx
Street in Memphis, Tennessee owned by Perma-
Fix of Memphis, Inc.; the "Xxxxxx Street
Property," the Real Property located in Xxxxx
County, Michigan owned by Perma-Fix of
Michigan, Inc., but solely to the extent such
property is encumbered by the Xxxxxxxx
Mortgage, and the Real Property located in
Orange County, Florida owned by Chemical
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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
$12,000,000.
* * *
"Term Note" or "Renewal Note" shall mean the
Renewal Term Note (as defined in the Second Amendment),
and all subsequent renewals, amendments, extensions,
and supplements thereto.
* * *
2.(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, including, DSSI, 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, and the New Transaction
Documents, including, without limitation, all of the
benefits of any representations and warranties provided
by the Seller or New Seller, as applicable, and any and
all of Perma-Fix's rights to indemnification from the
Seller or New Seller, as applicable, 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 or the New
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 New
Seller, as applicable, 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 or
the New Transaction Documents. The foregoing shall
survive payment of the Obligations in full and
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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 or the New
Transaction Documents and/or under applicable law.
3. Section 8, Representations and Warranties, is hereby
supplemented by the following:
* * *
8.14 Acquisition of Purchased Stock.
(a) The New 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), but, in the
case of the common stock and warrants issued or to be
issued in connection with the RBB Note, subject to
certain NASDAQ approvals in connection with the
issuance of Perma-Fix common stock of all material
conditions precedent set forth therein and giving
effect to the terms of the New Transaction Documents
and the assignments to be executed and delivered by New
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 New Transaction Documents, applicable law or
regulation (including, but not limited to, compliance
with the Xxxx-Xxxxx-Xxxxxx 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 New 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 New
Transaction Documents.
(d) Borrowers have delivered, or caused to
be delivered, to Lender true, correct and complete
copies of the New Transaction Documents.
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8.15 Capitalization.
All of the issued and outstanding shares of
capital stock of DSSI 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.
4.Section 9.8, Encumbrances is hereby amended by the
addition of subsection (g) as follows:
. . . ; and (g) the security interests and
liens of the New Seller in and to the Seller
Collateral of DSSI, but only to the extent permitted
under the Intercreditor Agreement.
5. Section 9.9 Indebtedness is hereby supplemented by the
following:
* * *
; (f) the Seller Notes, the RBB Note, the "RBB
Bank Bridge Loan" referred to the letter from Perma-Fix
to Lender dated July 25, 2000, and the advances from
Perma-Fix to M&EC consented to pursuant to the M&EC
Letter (as the foregoing terms are defined in the
Second Amendment); provided, that: (i) the principal
amount of indebtedness evidenced by the Seller Notes,
RBB Note and the aforesaid obligations shall not exceed
$3,500,000 in the case of Seller Note No. 1, $2,500,000
in the case of Seller Note No. 2, $3,000,000 in the
case of the RBB Note, $750,000 in the case of the RBB
Bank Bridge Loan, and $________ in the case of the
aforesaid advances to M&EC, 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, (ii)
Borrower shall not, directly or indirectly, make any
payments in respect of the Seller Notes or the RBB Note
other than regularly scheduled payments of principal
and interest in accordance with the terms of such
agreement or instrument as in effect on the date
hereof, provided, however, at any time after the date
of the Second Amendment, if Borrower maintains Excess
Availability of at least $5,000,000 for ten consecutive
Business Days, it may on the next Business Day prepay
Seller Note No. 2 in full; provided, further, that
concurrently upon any such prepayment, all liens and
security interests of the New Seller in and to the
Seller Collateral shall be terminated pursuant to Form
UCC-3 Termination Statements and other release and
termination documents satisfactory to Lender; (iii)
Borrower shall not, directly or indirectly, (A) amend,
modify, alter or change any terms of the Seller Notes
or the RBB Note; and (iv) Borrowers shall furnish to
Lender all notices, demands or other materials
concerning such indebtedness either received by any
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Borrower or on its behalf, promptly after receipt
thereof, or sent by a Borrower or on its behalf,
concurrently with the sending thereof, as the case may
be.
* * *
6.(a) Section 10.1 Events of Default is amended by
amending and restating Subsections (i) and (n) in their
entireties:
* * *
(i) any default by Borrowers, or any of them,
or any Obligor under any agreement, document
or instrument relating to any indebtedness for
borrowed money owing to any person other than
Lender, or any capitalized lease obligations,
contingent indebtedness in connection with any
guarantee, letter of credit, indemnity or
similar type of instrument in favor of any
person other than Lender, in any case in an
amount in excess of $100,000, which default
continues for more than the applicable cure
period, if any, with respect thereto,
including, without limitation, under the
Subordinated Indebtedness, the Xxxxxxxx
Mortgage, the RBB Note, or the Seller Notes,
or either of them, or any default by
Borrowers, or any of them, or any Obligor
shall default under any material contract,
lease, license or other obligation to any
person other than Lender, which default
continues for more than the applicable cure
period, if any, with respect thereto,
including, without limitation, under the other
Transaction Documents or New Transaction
Documents;
* * *
(n) any party to the Subordination Agreement
or the Intercreditor Agreement shall breach
any term thereof, or revoke or contest or
attempt to revoke or contest any of the terms
or conditions thereof.
* * *
7. Exhibit "A", Information Certificate, to the Original
Loan Agreement is hereby supplemented with respect to DSSI by
Exhibit "A" annexed to this Second Amendment.
8. Schedule 5.2 to the Loan and Security Agreement is
hereby supplemented by Exhibit "B" annexed to this Second
Amendment.
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II. Consent.
(1) Subject to the terms and conditions of this Second
Amendment and all of the Financing Agreements, Borrowers have
requested that Lender consent, and Lender hereby consents, to
(i) (A) notwithstanding the provisions of Section 9.10 of the
Loan Agreement, the acquisition of the Purchased Stock, (B)
notwithstanding the provisions of Section 9.7 of the Loan
Agreement, to DSSI hereafter becoming a subsidiary of Perma-Fix,
and (C) notwithstanding the provisions of Section 9.7 of the Loan
Agreement, the issuance of warrants for common stock of Perma-
Fix and common stock of Perma-Fix to RBB but solely to the extent
set forth in the letter agreement by Perma-Fix to RBB dated
August 29, 2000, and letter agreement by Perma-Fix to RBB issued
in connection with the RBB Bank Bridge Loan, but, further, solely
to the extent that no breach occurs under Section 10.1(j) of the
Loan Agreement, and (ii) notwithstanding the provision of
Sections 9.6 and 9.9 of the Loan Agreement, (A) the incurrence of
the respective indebtedness evidenced by the Seller Notes and the
RBB Note, in an aggregate principal amount not to exceed
$3,500,000 in the case of Seller Note No. 1, $2,500,000 in the
case of Seller Note No. 2 and $3,000,000 in the case of the RBB
Note, and in each case as otherwise subject as set forth in the
Loan Agreement and/or the Intercreditor Agreement, and (B) the
grant of security interest in favor of the New Seller in and to
certain assets of DSSI, but only to secure obligations evidenced
by Seller Note No. 2 and as otherwise subject as set forth in the
Loan Agreement and/or the Intercreditor Agreement.
(2) Borrower acknowledges and agrees that the consents set
forth in Section II(1) above and all other consents by Lender
heretofore given, including, without limitation, the consent
given pursuant to a letter dated July 25, 2000 with respect to
the "RBB Bridge Loan", and the consent to the making of advances
by Perma-Fix to East Tennessee Materials and Energy Corporation
8
"M&EC" as set forth in a letter from Perma-Fix to Lender dated
January 25, 2000 (the "M&EC letter") shall be effective in the
respective specific instance only. Accordingly, except for such
transactions set forth in the New Transaction Documents and the
aforesaid transactions, 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 default or
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
New Transaction Documents, or otherwise. Further, Borrower
acknowledges and agrees that the consent of Lender contained in
the M&EC Letter is limited to the aforesaid financing
transactions only and no consent is intended or implied with
respect to the transactions contemplated in the letter of intent
dated June 27, 2000 annexed thereto, or otherwise.
III. Joinder to Loan Agreement and other Financing
Agreements.
1. (a) DSSI agrees that from and after the date of this
Second 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, the Term Note and the other
Financing Agreements shall have the meaning set forth in this
Second Amendment.
(b) DSSI acknowledges that it has received and reviewed
the Original Loan Agreement, a copy of which is annexed to this
Second 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, DSSI
9
acknowledges and agrees that pursuant to Section 5 of the
Agreement, as of the date of this Second 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 or
the other Financing Agreements.
(c) DSSI acknowledges and agrees that by execution of
this Second Amendment, as of the date of this Second 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 Second 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) Borrowers acknowledge and agree that as a
condition precedent to the effectiveness of the consent of Lender
pursuant to Part II of this Second Amendment:
(b) all requisite corporate action and proceedings in
connection with the 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;
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(c) no material adverse change shall have occurred in the
assets, business or prospects of DSSI 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 the Loan 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 New Seller with respect to the Financing Agreements, the New
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;
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(g) the Intercreditor Agreement and 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 New Transaction
Documents have been duly executed and delivered by and to the
appropriate parties thereto and the transactions contemplated
under the terms of the New Transaction Documents have been
consummated prior to or contemporaneously with the execution of
this Second Amendment, including, without limitation, all
approvals, consents and the like from any and all applicable
regulatory agencies and other governmental units to the transfer
of ownership of DSSI, and proof satisfactory to Lender that
concurrently upon the consummation of the transactions
contemplated in the New Transaction Documents, DSSI will have all
licenses, permits, and approvals and orders required by law to be
held by DSSI in respect of its business as currently being
conducted;
(i) Lender shall have received, in form and substance
satisfactory to Lender, the most recently calculated 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 New Seller and the other transactions contemplated by
the New Transaction Documents and (ii) the Loans provided by
Lender to Borrowers on the date of this Second 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 Borrowers, 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; and
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(j) Lender shall have received, in form and substance
satisfactory to Lender, the agreement of New 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 New Transaction
Documents and granting Lender such other rights as Lender may
require, duly authorized, executed and delivered by New Seller.
V. Other Matters.
1. Borrowers are paying Lender a closing fee of $20,000 on
or before the date of this Second Amendment, which fee shall be
deemed to be fully earned by Lender upon execution of this Second
Amendment by Lender and Borrowers.
2. This Second Amendment constitutes a part of, and shall
be construed in connection with, the Original Loan Agreement, and
all terms, covenants, conditions, representations and warranties
contained in the Original Loan Agreement (other than as expressly
set forth in this Second Amendment) 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 Second Amendment and elsewhere in the Loan
Agreement, the provisions of this Second Amendment shall in all
respects govern and control.
3. Each Borrower certifies to Lender that (after giving
effect to this Second Amendment) all representations and
warranties of such Borrower contained in the Loan Agreement are,
true and correct as of the date of this Second 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 Second Amendment) no Event of Default under the
Loan Agreement, or event which with the passage of time or the
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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 Second 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 Second 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, Borrowers agree 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 SECOND 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
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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
Second 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:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
INDUSTRIAL WASTE MANAGEMENT, INC.,
a Missouri corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
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XXXXXXXXX, XXXXXX & ASSOCIATES
(formerly known as Xxxxxxxxx, Grana
& Yonley, Inc.), a Missouri
corporation
By:
_____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA-FIX TREATMENT SERVICES, INC.,
an Oklahoma corporation
By:
______________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA-FIX, INC., an Oklahoma
corporation
By:
_____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
MINTECH, INC., an Oklahoma
corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
RECLAMATION SYSTEMS, INC., an
Oklahoma corporation
By:
_____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA-FIX OF NEW MEXICO, INC.,
a New Mexico corporation
By:
___________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
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PERMA-FIX OF FLORIDA, INC.,
a Florida corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA-FIX OF MEMPHIS, INC.,
a Tennessee corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA-FIX OF DAYTON, INC.,
an Ohio corporation
By:
_____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA FIX OF FT. LAUDERDALE, INC.,
a Florida corporation
By:
_____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
PERMA FIX OF MICHIGAN, INC., a
Michigan corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
CHEMICAL CONSERVATION OF GEORGIA,
INC., a Georgia corporation
By:____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
17
CHEMICAL CONSERVATION CORPORATION,
INC., a Florida corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
DIVERSIFIED SCIENTIFIC SERVICES,
INC., a Tennessee corporation
By:
____________________________________
Xxxxxxx X. Xxxxxx, Chief
Financial Officer
LENDER:
CONGRESS FINANCIAL CORPORATION
(FLORIDA)
By:
___________________________________
Name:
__________________________________
Title:
_________________________________
18
