REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER, ISSUING BANK AND AGENT)
WITH
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
(AS BORROWER)
Dated as of December 22, 2000
1.1 Accounting Terms 1
1.2 General Terms 1
1.3 Uniform Commercial Code Terms 16
1.4 Certain Matters of Construction 16
2. ADVANCES, PAYMENTS 17
2.1 Revolving Credit Facility 17
2.2 Advances 17
2.3 Procedure for Advances Borrowing 17
2.4 Disbursement of Advance Proceeds 19
2.5 Term Loan 19
2.6 Repayment of Advances 19
2.7 Repayment of Excess Advances 20
2.8 Statement of Account 20
2.9 Additional Payments 20
2.10 Manner of Borrowing and Payment 20
2.11 Mandatory Prepayments 22
2.12 Use of Proceeds 22
2.13 Defaulting Lender 22
2.14 Letters of Credit 23
3. INTEREST AND FEES 29
3.1 Interest 29
3.2 Facility and Other Fees 29
3.3 Computation of Interest and Fees 30
3.4 Maximum Charges 30
3.5 Increased Costs 30
3.6 Basis for Determining Interest Rate Inadequate or Unfair 30
3.7 Capital Adequacy 31
3.8 Funding Losses 31
4. COLLATERAL: GENERAL TERMS 32
4.1 Security Interest in the Collateral 32
4.2 Perfection of Security Interest 32
4.3 Disposition of Collateral 32
4.4 Preservation of Collateral 32
4.5 Ownership of Collateral 33
4.6 Defense of Agent's and Lenders' Interests 33
4.7 Books and Records 33
4.8 Financial Disclosure 33
4.9 Compliance with Laws 34
4.10 Inspection of Premises 34
4.11 Insurance 34
4.12 Failure to Pay Insurance 35
4.13 Payment of Taxes 35
4.14 Payment of Leasehold Obligations 35
4.15 Receivables 36
4.16 Inventory Held for Sale or Lease 37
4.17 Maintenance of Equipment 37
4.18 Exculpation of Liability 38
4.19 Environmental Matters 38
4.20 Collateral Reporting 39
4.21 Financing Statements 40
5. REPRESENTATIONS AND WARRANTIES 40
5.1 Authority 40
5.2 Formation and Qualification 40
5.3 Survival of Representations and Warranties 40
5.4 Tax Returns 41
5.5 Financial Statements 41
5.6 Corporate Name 41
5.7 O.S.H.A. and Environmental Compliance 41
5.8 Solvency; No Litigation, Violation, Indebtedness or Default 42
5.9 Patents, Trademarks, Copyrights and Licenses 43
5.10 Licenses and Permits 43
5.11 Default of Indebtedness 43
5.12 No Default 43
5.13 No Labor Disputes 43
5.14 Margin Regulations 43
5.15 Investment Company Act 44
5.16 Disclosure 44
5.17 Swaps 44
5.18 Conflicting Agreements 44
5.19 Application of Certain Laws and Regulations 44
5.20 Business and Property 44
5.21 Section 20 Subsidiaries 44
5.22 Landlord Waivers. 44
5.23 Bank Accounts. 44
5.24 Year 2000 Compliance. 44
5.25 Future Subsidiaries. 45
6. AFFIRMATIVE COVENANTS 45
6.1 Payment of Fees 45
6.2 Conduct of Business and Maintenance of Existence and Assets 45
6.3 Violations 45
6.4 Government Agency Receivables 46
6.5 Tangible Adjusted Net Worth 46
6.6 Fixed Charged Coverage Ratio 46
6.7 Execution of Supplemental Instruments 46
6.8 Payment of Indebtedness 46
6.9 Standards of Financial Statements 46
6.10 Hedging 46
6.11 Operating Accounts 46
6.12 Environmental Matters 46
6.13 Michigan Mortgage 46
7. NEGATIVE COVENANTS 47
7.1 Merger, Consolidation, Acquisition and Sale of Assets 47
7.2 Creation of Liens 47
7.3 Guarantees 47
7.4 Investments 47
7.5 Loans 47
7.6 Capital Expenditures 48
7.7 Dividends; Distributions 48
7.8 Indebtedness 48
7.9 Nature of Business 48
7.10 Transactions with Affiliates 48
7.11 Leases 48
7.12 Subsidiaries 48
7.13 Fiscal Year and Accounting Changes 49
7.14 Pledge of Credit 49
7.15 Amendment of Governing Documents 49
7.16 Compliance with ERISA 49
7.17 Prepayment of Indebtedness 49
7.18 Subordinated Loans 49
7.19 Other Agreements 49
8. CONDITIONS PRECEDENT. 49
8.1 Conditions to Initial Advances 49
8.2 Initial Funding and All Borrowings 53
9. INFORMATION AS TO BORROWER 53
9.1 Disclosure of Material Matters 53
9.2 Schedules 53
9.3 Environmental Reports 54
9.4 Litigation 54
9.5 Material Occurrences 54
9.6 Public Filings 54
9.7 Annual Financial Statements 54
9.8 Quarterly Financial Statements 55
9.9 Monthly Financial Statements 55
9.10 Other Reports 55
9.11 Additional Information 55
9.12 Projected Operating Budget 55
9.13 Notice of Suits, Adverse Events 56
9.14 ERISA Notices and Requests 56
9.15 Additional Documents 56
10. EVENTS OF DEFAULT 56
11. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT 58
11.1 Rights and Remedies 58
11.2 Agent's Discretion 59
11.3 Setoff 59
11.4 Rights and Remedies not Exclusive 59
12. WAIVERS AND JUDICIAL PROCEEDINGS 59
12.1 Waiver of Notice 59
12.2 Delay 59
12.3 Jury Waiver 59
13. EFFECTIVE DATE AND TERMINATION 60
13.1 Term 60
13.2 Termination 60
14. REGARDING AGENT 60
14.1 Appointment 60
14.2 Nature of Duties 60
14.3 Lack of Reliance on Agent and Resignation 61
14.4 Certain Rights of Agent 61
14.5 Reliance 61
14.6 Notice of Default 62
14.7 Indemnification 62
14.8 Agent in its Individual Capacity 62
14.9 Delivery of Documents 62
14.10 Borrower's Undertaking to Agent 62
15. MISCELLANEOUS 62
15.1 Governing Law 62
15.2 Entire Understanding 63
15.3 Successors and Assigns; Participations; New Lenders 64
15.4 Application of Payments 65
15.5 Indemnity 65
15.6 Notice 66
15.7 Survival 67
15.8 Severability 67
15.9 Expenses 67
15.10 Injunctive Relief 67
15.11 Consequential Damages 67
15.12 Captions 67
15.13 Counterparts; Telecopied Signatures 67
15.14 Construction 67
15.15 Confidentiality; Sharing Information 67
15.16 Publicity 68
List of Exhibits and Schedules
Exhibits | |
Exhibit A | Form of Borrowing Base Certificate |
Exhibit B | Form of Commitment Transfer Supplement |
Exhibit C | Form of Environmental Indemnity Agreement |
Exhibit D | Form of Landlord Waiver |
Exhibit E | Form of Mortgage |
Exhibit F | Form of Secured Subsidiary Guaranty |
Exhibit G | Form of Revolving Credit Facility Note |
Exhibit H | Form of Term Note |
Exhibit I | Form of Financial Condition Certificate |
Exhibit J | Form of Subordination Loan Documentation |
Exhibit K | Interest Rate Protection Agreements |
Exhibit L | Form of Mortgage of Copyright |
Exhibit M | Form of Trademark Security Agreement |
Exhibit N | Form of Patent Security Agreement |
Exhibit O | Form of Government Receivable -- Notice of Assignment |
Exhibit P | Form of Government Receivables -- Instrument of Assignment |
Exhibit Q | Form of Intercreditor Agreement |
Exhibit R | Form of Standstill Agreement |
Schedules | |
Schedule 1.2(a) | Acceptable Unbilled Amounts |
Schedule 1.2(b) | Subsidiary Stock |
Schedule 1.2(c) | Commercial Banker Receivables |
Schedule 1.2(d) | Leasehold Interests |
Schedule 1.2(e) | Permitted Encumbrances |
Schedule 2.12 | Indebtedness to be Discharged |
Schedule 4.5 | Equipment and Inventory Locations |
Schedule 4.15(c) | Location of Executive Offices |
Schedule 4.19 | Real Property |
Schedule 5.2(a) | States of Qualification and Good Standing |
Schedule 5.2(b) | Subsidiaries |
Schedule 5.5 | Projections |
Schedule 5.6 | Prior Names |
Schedule 5.7 | Environmental |
Schedule 5.8(b) | Litigation |
Schedule 5.8(d) | Plans |
Schedule 5.9 | Intellectual Property, Source Code Escrow Agreements |
Schedule 5.10 | Licenses and Permits |
Schedule 5.14 | Labor Disputes |
Schedule 7.3 | Guarantees |
REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
Revolving Credit, Term Loan and Security Agreement, dated as of December 22, 2000 (the "Agreement"), among Perma-Fix Environmental Services, Inc., a corporation organized under the laws of the State of Delaware (" Borrower"); each of the financial institutions that is now or that hereafter becomes a party hereto (collectively, "Lenders" and each, individually, a "Lender"); and PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC"), as agent for Lenders (PNC, in such capacity, "Agent"), and as Issuing Bank.
IN CONSIDERATION of the mutual covenants and undertakings herein contained, Borrower, Lenders, Agent and Guarantors (as defined below) hereby agree as follows:
"Acceptable Government Agency Receivable" shall mean any Receivable as to which the account debtor is the United States of America, or any state thereof, or any department, agency or instrumentality of any of them which has approved the assignment to Agent of monies owing by it to a Credit Party and as to which there has been compliance with applicable statutes and ordinances with respect to such assignment, to the extent that such Receivable would otherwise be an Eligible Receivable.
"Acceptable Unbilled Amounts" shall mean amounts representing services actually rendered and which would constitute an Eligible Receivable but for the fact that required documentation for billing such amounts (in the form attached hereto asSchedule 1.2(a)) has not yet been received; provided that such amount has not remained so unbilled for a period of not more than sixty (60) days after the services were rendered.
"Accountants" shall have the meaning set forth inSection 9.7.
"Advance Rates" shall have the meaning set forth inSection 2.2(a).
"Advances" shall mean and include the Revolving Credit Facility Advances and the Term Loan.
"Affiliate" of any Person shall mean (a) any Person that, directly or indirectly, is in control of, is controlled by, or is under common control with such Person, or (b) any Person who is a director or officer (i) of such Person, (ii) of any Subsidiary of such Person, if such Person is not a Credit Party or (iii) of any Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the power, direct or indirect, (x) to vote fifteen percent (15%) or more of the securities having ordinary voting power for the election of directors of such Person, excluding the Guarantors, or (y) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the preamble to this Agreement and shall include its successors and assigns.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Alternate Base Rate" shall mean, for any day, the rate per annum equal to the higher of (i) the Base Rate in effect on such day and (ii) the Federal Funds Rate in effect on such day plus one-half of one percent (0.50%).
"Applicable Interest Rate" shall mean an interest rate per annum equal to (a) for the Revolving Credit Facility, (i) the sum of the Domestic Rateplus one percent (1.00%) with respect to Domestic Rate Loans and (ii) the sum of the Eurodollar Rateplus three and one-half percent (3.50%) with respect to Eurodollar Rate Loans and (b) for the Term Loan, (i) the sum of the Domestic Rateplus one and one-half percent (1.50%) with respect to Domestic Rate Loans and (ii) the sum of the Eurodollar Rateplus four percent (4.00%) with respect to Eurodollar Rate Loans.
"Authority" shall have the meaning set forth inSection 4.19(d).
"Base Rate" shall mean the base commercial lending rate of PNC as publicly announced to be in effect from time to time, such rate to be adjusted automatically, without notice, on the effective date of any change in such rate. This rate of interest is determined from time to time by PNC as a means of pricing some loans to its customers and is neither tied to any external rate of interest or index nor does it necessarily reflect the lowest rate of interest actually charged by PNC to any particular class or category of customers of PNC.
"Blocked Accounts" shall have the meaning set forth inSection 4.15(h).
"Borrower" shall have the meaning set forth in the preamble to this Agreement and shall extend to all successors and permitted assigns of such Person.
"Borrowing Base Certificate" shall mean a certificate duly executed by the chief executive officer, chief financial officer, secretary or assistant secretary of Borrower appropriately completed and in substantially the form ofExhibit A.
"Borrower's Account" shall have the meaning set forth inSection 2.8.
"Business Day" shall mean any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York, East Brunswick, New Jersey or Los Angeles, California and, if the applicable Business Day relates to any Eurodollar Rate Loans, such day must also be a day on which dealings are carried on in the London interbank market.
"Capital Expenditures" means the expenditures of any Person that should be capitalized on the balance sheet of such Person in accordance with GAAP (but only that portion of Capitalized Lease Obligations paid in cash during the relevant period) and that are made in connection with the purchase, construction, development or improvement of items properly classified on such balance sheet as Property, plant, equipment or other fixed assets or intangibles;provided that Capital Expenditures shall not include the portion of any such expenditures paid for with the Net Cash Proceeds of (a) any property insurance or condemnation award, (b) any sale of Property permitted hereunder to the extent used within twelve (12) months after such sale to purchase like or similar Property, (c) any purchase money Indebtedness or Capitalized Leases permitted hereunder for the purpose of financing such expenditures (provided that payments of principal amounts in respect of such purchase money Indebtedness or Capitalized Leases shall nevertheless constitute Capital Expenditures hereunder), or (d) the issuance and sale of equity securities of Borrower.
"Capitalized Lease" means any lease of Property that in accordance with GAAP should be capitalized on the balance sheet of the lessee thereunder.
"Capitalized Lease Obligation" means the amount of the liability of any Person that, in accordance with GAAP, should be capitalized or disclosed on the balance sheet of such Person in respect of a Capitalized Lease.
"Cash Collateralize" means to pledge and deposit with or deliver to Agent, for the benefit of Agent, the Issuing Bank and the ratable benefit of the other Lenders (on a ratable basis), as additional collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to Agent and the Issuing Bank. Derivatives of such term shall have corresponding meanings. Borrower hereby grants, to Agent, for the benefit of Agent, the Issuing Bank and the other Lenders (on a ratable basis), a security interest in all such cash and deposit account balances. Cash Collateral shall be maintained in blocked accounts maintained with Agent and invested solely in investments otherwise permitted hereunder, provided that all necessary steps are taken to perfect and preserve Agent's first-priority Lien in such investments.
"Cash Flow" for any period, shall mean (without duplication) the sum of (i) Earnings Before Interest and Taxes for such periodplus (ii) depreciation and amortization and all other non-cash charges, and the net after tax effect of any inventory write-down attributable to a purchase accounting write-up of inventory as of the Closing Date, that were deducted in determining net income for such period,minus (iii)(a) scheduled repayments of the Term Loan to the extent actually paid in cash during the period, (b) non cash credits that were taken into account in determining Earnings Before Interest and Taxes for such period, (c) Subordinated Debt Payments and Preferred Stock dividends paid in cash during such period to the extent otherwise permitted hereunder.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601 et seq., as amended from time to time.
"Change of Control" shall mean the occurrence of any event (whether in one or more transactions) that results in (a) Louis F. Centofanti or Richard T. Kelecy ceasing to serve as a senior executive officer of Borrower in substantially the same capacity in which such Person served as of the Closing Date or (b) Persons who are members of Borrower's board of directors on the Closing Date ceasing to constitute at least fifty percent (50%) of Borrower's board of directors,provided, however, that in any event no such director shall include Louis F. Centofanti,provided,further, however that a 50% change in Persons who are members of Borrower's Board of Directors may be permitted on a one-time only basis concurrent with a new subordinated debt or equity capital infusion to Borrower.
"Charges" shall mean all taxes, charges, fees, imposts, levies or other assessments, including, without limitation, all net income, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation and property taxes, custom duties, fees, assessments, liens, claims and charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts, imposed by any taxing or other authority, domestic or foreign (including, without limitation, the Pension Benefit Guaranty Corporation or any environmental agency or superfund), upon the Collateral, Borrower or any of its Affiliates.
"Closing Date" means the earlier of the date of the initial Advance or Issuance hereunder, in each case upon the satisfaction of the conditions set forth inSection 8.1, but in no event later than December 22, 2000. The execution and delivery of documents and the consummation of such other transactions as may be required to effect the Closing Date shall take place at the offices of Manatt, Phelps & Phillips, LLP, 11355 West Olympic Boulevard, Los Angeles, California (90064) or at such other location as Borrower and Agent may determine.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time and the regulations promulgated thereunder.
"Collateral" shall mean and include all of the following assets, properties, rights and interests of each Credit Party, whether now owned and existing or hereafter arising, acquired or created, and wherever located:
"Commercial Broker Receivable" shall mean any Eligible Receivable due from an account debtor listed onSchedule 1.2(c) who is a third party intermediary with whom a Credit Party does business but who is not the Person benefitted by the services of the Credit Party.
"Commercial Receivable" shall mean any Eligible Receivable due from an account debtor that is not a Commercial Broker Receivable or an Acceptable Government Agency Receivable.
"Commitment" means each commitment of a Lender under this Agreement to advance funds under the Revolving Loan and Term Loan to Borrower and to participate in the L/C Commitment.
"Commitment Percentage" of any Lender shall mean the percentage set forth below such Lender's name on the signature page hereto, as such percentage may be adjusted upon any assignment by a Lender pursuant toSection 15.3(b).
"Commitment Transfer Supplement" shall mean a document in the form ofExhibit B, properly completed and otherwise in form and substance satisfactory to Agent by which the Purchasing Lender purchases and assumes a portion of the obligation of Lenders to make Advances under this Agreement.
"Consents" shall mean all filings and all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and other third parties, domestic or foreign, necessary to carry on Borrower's business, including, without limitation, any Consents required under all applicable federal, state or other applicable law.
"Controlled Group" shall mean all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control that, together with Borrower, are treated as a single employer under Section 414 of the Code.
"Credit Parties" means, collectively, Borrower and the Guarantors.
"Current Assets" at a particular date, shall mean on a consolidated basis all cash, cash equivalents, accounts and inventory of Borrower and all other items that would, in conformity with GAAP, be included under current assets on a balance sheet of Borrower as at such date;provided,however, that such amounts shall not include (a) any amounts for any Indebtedness owing by an Affiliate of Borrower, unless such Indebtedness arose in connection with the sale of goods or rendition of services in the ordinary course of business and would otherwise constitute current assets in conformity with GAAP, (b) any shares of stock issued by an Affiliate of Borrower, or (c) the cash surrender value of any life insurance policy.
"Current Liabilities" at a particular date, shall mean on a consolidated basis all amounts that would, in conformity with GAAP, be included under current liabilities on a balance sheet of Borrower, as at such date, including, without limitation, the amounts as reflected on such balance sheet, of: (a) all Indebtedness of Borrower payable on demand, or, at the option of the Person to whom such Indebtedness is owed, not more than twelve (12) months after such date, (b) any payments in respect of any Indebtedness of Borrower (whether installment, serial maturity, sinking fund payment or otherwise) required to be made not more than twelve (12) months after such date, (c) all reserves in respect of liabilities or Indebtedness payable on demand or, at the option of the Person to whom such Indebtedness is owed, not more than twelve (12) months after such date, the validity of which is not contested at such date, and (d) all accruals for federal or other taxes measured by income payable within a twelve (12) month period, as long as (a), (b), (c) and (d) of this paragraph are each deemed a current liability under GAAP.
"Customer" shall mean and include the account debtor with respect to any Receivable and/or the prospective purchaser of goods, services or both with respect to any contract or contract right, and/or any party who enters into or proposes to enter into any contract or other arrangement with any Credit Party, pursuant to which it is to deliver any personal Property or perform any services.
"Default" shall mean an event that, with the giving of notice or passage of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth inSection 3.1.
"Defaulting Lender" shall have the meaning set forth inSection 2.13(a).
"Depository Accounts" shall have the meaning set forth inSection 4.15(h).
"Dollar" and the sign "$" shall mean lawful money of the United States of America.
"Domestic Rate" shall mean the rate per annum equal to the Alternate Base Rate.
"Domestic Rate Loan" shall mean any Advance that bears interest based upon the Alternate Base Rate.
"Early Termination Date" shall have the meaning set forth inSection 13.1.
"Earnings Before Interest and Taxes" shall mean, for any period, the sum of (i) net income (or loss) of Borrower on a consolidated basis for such period (excluding extraordinary gains and losses),plus (ii) all interest expense of Borrower on a consolidated basis for such period,plus (iii) all charges against income of Borrower on a consolidated basis for such period for federal, state and local income taxes actually paid.
"EBITDA" shall mean for any period the sum of (i) Earnings Before Interest and Taxes for such periodplus (ii) depreciation expenses for such period,plus (iii) amortization expenses for such period.
"Effective Balance" means, as of any date of determination, the sum of the then-outstanding balance of the Revolving Credit Facility plus the then outstanding L/C Obligations.
"Eligible Receivables" shall mean and include with respect to each Credit Party, each Receivable of such Credit Party arising in the ordinary course of such Credit Party's business and that Agent, in its reasonable credit judgment, shall deem to be an Eligible Receivable, based on such considerations as Agent may from time to time deem appropriate. A Receivable shall not be deemed eligible unless such Receivable is subject to Agent's first priority perfected security interest and no other Lien (other than Permitted Encumbrances), and is evidenced by an invoice or other documentary evidence satisfactory to Agent. In addition, no Receivable shall be an Eligible Receivable if:
"Environmental Complaint" shall have the meaning set forth inSection 4.19(d).
"Environmental Laws" shall mean (a) all federal, state and local environmental, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the protection of the environment, health and safety and/or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances, (b) the rules, regulations, policies, guidelines, interpretations, decisions, orders and directives of federal, state and local governmental agencies and authorities with respect thereto and (c) any common law or equitable doctrine that may impose material liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Hazardous Substances.
"Environmental Indemnity" shall mean an environmental indemnity agreement in form and substance ofExhibit C.
"Equipment" shall mean and include all of Borrower's goods (other than Inventory) whether now owned or hereafter acquired and wherever located including, without limitation, all equipment, machinery, apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts, accessories and all replacements and substitutions therefor or accessions thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and the rules and regulations promulgated thereunder.
"Eurodollar Rate Loan" shall mean an Advance at any time that bears interest based on the Eurodollar Rate.
"Eurodollar Rate" shall mean for any Eurodollar Rate Loan for the then current Interest Period relating thereto the interest rate per annum determined by PNC by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest determined by PNC in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the average of the London interbank offered rates for U.S. Dollars quoted by the [British Bankers' Association] as set forth on Dow Jones Markets Service (formerly known as Telrate) (or appropriate successor or, if [the British Banker's Association] or its successor ceases to provide such quotes, a comparable replacement determined by PNC) display page 3750 (or such other display page on the Dow Jones Markets Service system as may replace display page 3750) two (2) Business Days prior to the first day of such Interest Period for an amount comparable to such Eurodollar Rate Loan and having a borrowing date and a maturity comparable to such Interest Period by (ii) a number equal to 1.00minus the Reserve Percentage. The Eurodollar Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted by BBA as shown on
Eurodollar Rate =Dow Jones Markets Service display page 3750 or appropriate successor
1.00 - Reserve Percentage
"Event of Default" shall mean the occurrence and continuance of any of the events set forth inArticle X.
"Excess Cash Flow" for any fiscal year, shall mean EBITDA of Borrower on a consolidated basis for such fiscal yearminus Unfinanced Capital Expenditures made by Borrower on a consolidated basis during such fiscal yearminus federal, state and local income taxes actually paid by Borrower during such fiscal yearless scheduled Senior Debt Payments, Subordinated Debt Payments and Preferred Stock dividends paid in cash during such fiscal year.
"Federal Funds Rate" shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average of quotations for such day on such transactions received by PNC from three Federal funds brokers of recognized standing selected by PNC.
"Fee Letter"shall mean the fee letter of even date herewith, between Borrower and PNC.
"Fixed Charge Coverage Ratio" shall mean and include, with respect to any fiscal period, the ratio of (a) EBITDA to (b) the sum (without duplication) of (i) all Senior Debt Payments, Subordinated Debt Payments and Preferred Stock dividends paid during such periodplus (ii) Unfinanced Capital Expenditures made during such periodplus (iii) federal, state and local income taxes actually paid during such period.
"Foreign Receivables" shall mean those Receivables of each Credit Party that would otherwise satisfy all of the applicable criteria for Eligible Receivables but the account debtor of such Receivable is not a resident of the United States of America or Canada.
"Formula Amount" shall have the meaning set forth inSection 2.2(a).
"GAAP" shall mean generally accepted accounting principles in the United States of America in effect from time to time.
"General Intangibles" shall mean and include all of Borrower's general intangibles, whether now owned or hereafter acquired including, without limitation, all choses in action, causes of action, corporate or other business records, inventions, designs, patents, patent applications, equipment formulations, manufacturing procedures, quality control procedures, trademarks, service marks, trade names, domain names, trade secrets, goodwill, copyrights, design rights, registrations, licenses, franchises, permits, consents, customer lists, tax refunds, tax refund claims, computer programs, source code, object code, all other intellectual property or proprietary rights, all claims under guaranties, security interests or other security held by or granted to Borrower to secure payment of any of the Receivables by a Customer all rights of indemnification and all other intangible Property of every kind and nature (other than Receivables).
"Governmental Body" shall mean any nation or government, any state or other political subdivision thereof or any entity exercising the legislative, judicial, regulatory or administrative functions of or pertaining to a government.
"Guarantor" shall mean each Subsidiary of Borrower and any other Person who may hereafter guarantee payment or performance of the whole or any part of the Obligations and "Guarantors" means collectively all such Persons.
"Guaranty" shall mean any guaranty of the obligations of Borrower executed by a Guarantor in favor of Agent for its benefit and for the ratable benefit of Lenders.
"Hazardous Discharge" shall have the meaning set forth inSection 4.19(d).
"Hazardous Substance" shall mean, without limitation, any flammable explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, Hazardous Wastes, hazardous or Toxic Substances or hazardous substances as defined in CERCLA, the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), RCRA, the Clean Water Act, as amended (33 U.S.C. Sections 1251 et seq.), and in the regulations adopted pursuant thereto or any other applicable Environmental Law.
"Hazardous Wastes" shall mean all waste materials subject to regulation under CERCLA, RCRA, and any other applicable Federal and state laws now in force or hereafter enacted relating to hazardous radioactive waste handling, transportation, recycling, treatment, storage and/or disposal.
"Indebtedness" of a Person at a particular date shall mean all obligations of such Person that, in accordance with GAAP, would be classified upon a balance sheet as liabilities (except capital stock and surplus earned or otherwise) and in any event, without limitation by reason of enumeration, shall include all indebtedness, debt and other similar monetary obligations of such Person whether direct or guaranteed, and all premiums, if any, due at the required prepayment dates of such indebtedness, and all indebtedness secured by a Lien on Property owned by such Person (including, without limitation, Capitalized Leases), whether or not such indebtedness actually shall have been created, assumed or incurred by such Person. Any indebtedness of such Person resulting from the acquisition by such Person of any assets subject to any Lien shall be deemed, for the purposes hereof, to be the equivalent of the creation, assumption and incurring of the indebtedness secured thereby, whether or not actually so created, assumed or incurred.
"Ineligible Security" shall mean any security that may not be underwritten or dealt in by member banks of the Federal Reserve System under Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended .
"Intercompany Receivables" means all assets and liabilities, however arising, which are due to any Credit Party from, which are due from any Credit Party to, or which otherwise arise from any transaction by any Credit Party with any Affiliate of any Credit Party.
"Interest Period" shall mean the period provided for any Eurodollar Rate Loan pursuant toSection 2.3(b).
"Inventory" shall mean and include all of each Credit Party's now owned or hereafter acquired goods, merchandise and other personal Property, wherever located, to be furnished under any contract of service or held for sale or lease, all raw materials, work in process, finished goods and materials and supplies of any kind, nature or description that are or might be used or consumed in any Credit Party's business or used in selling or furnishing such goods, merchandise and other personal Property, and all documents of title or other documents representing them.
"Investment Account" shall have the meaning provided inSection 7.4.
"Investment Basket" shall mean a cumulative account balance measuring any additional subordinated debt or equity cash infusions to Borrower minus amounts paid for scheduled debt as permitted under this Agreement made after the Closing, deducting (i) any amounts used in connection with any acquisitions permitted underSection 7.1 plus (ii) any Capital Expenditures as permitted bySection 7.6 plus (iii) any Investments permitted underSection 7.4,provided, however, in no event shall such amount be less than zero.
"Investment Property" shall mean and include all of each Credit Party's now owned or hereafter acquired securities (whether certificated or uncertificated), securities entitlements, securities accounts, commodities contracts and commodities accounts.
"Issue" means, with respect to any Letter of Credit, to issue or to extend the expiry of, or to renew or increase the amount of, such Letter of Credit; and the terms "Issued," "Issuing" and " Issuance" have corresponding meanings.
"Issuing Bank" means Agent, in its capacity as the Letter of Credit issuing bank hereunder, and any party succeeding to the duties of such Person in that capacity hereunder.
"Landlord Waiver" means a landlord waiver executed by a landlord of any of the premises occupied by any Credit Party, substantially in the form ofExhibit D.
"L/C Advance" means each Lender's participation in any L/C Borrowing in accordance with its Commitment Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing under any Letter of Credit that shall not have been reimbursed on the date when made nor converted into an Advance underSection 2.14(d).
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and the commitment of the Lenders severally to participate in, Letters of Credit from time to time Issued or outstanding as provided herein, in an aggregate amount not to exceed on any date the sum of $500,000; provided that the L/C Commitment is a part of the Revolving Commitment Facility, rather than a separate, independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the amount of all unreimbursed drawings under all Letters of Credit, including all outstanding L/C Borrowings but excluding such drawings that have been converted into Advances underSection 2.14(d).
"L/C-Related Document" means any document or instrument executed and delivered in connection with a Letter of Credit.
"Leasehold Interests" shall mean all of any Credit Party's right, title and interest in and to the premises listed onSchedule 1.2(d).
"Lender" and "Lenders" shall have the meaning ascribed to such term in the preamble to this Agreement and shall include each Person that becomes a transferee, successor or assign of any Lender.
"Letter of Credit" means any commercial documentary letter of credit issued by the Issuing Bank pursuant toSection 2.14.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), Charge, claim or encumbrance, or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset of any kind or nature whatsoever including, without limitation, any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction.
"Loan Documents" shall mean this Agreement, the Notes, the Questionnaire, the Secured Subsidiaries Guaranty, the Mortgages, the Copyright Mortgages, Trademark Security Agreements, Patent Security Agreements and any and all other agreements, instruments and documents, including, without limitation, guaranties, pledges, powers of attorney, consents, and all other writings heretofore, now or hereafter executed by any Credit Party and delivered to Agent or any Lender in respect of the Transactions.
"Loan Year" shall mean each calendar year commencing on the day of Closing and ending on the same calendar day of the subsequent calendar year.
"Material Adverse Effect" shall mean a material adverse effect on: (a) the condition, operations, assets, business or prospects of Borrower on a consolidated or unconsolidated basis; (b) the ability of any Credit Party to pay the Obligations in accordance with the terms thereof; (c) the value of the Collateral, or Agent's Liens on the Collateral or the priority of any such Lien; or (d) the Agent's and each Lender's ability to receive the benefits intended by this Agreement and the other Loan Documents.
"Maximum Term Loan Amount" shall mean $7,000,000minus the sum (without duplication) of all actual and required repayments thereof as of the date of determination;
"Mortgage" shall mean any mortgage on the Real Property of any Credit Party securing Agent and the Lenders, together with all extensions, renewals, amendments, supplements, modifications, substitutions and replacements thereto and thereof in form and substance ofExhibit E.
"Mortgaged Property" shall mean any Credit Party's real property located at 1940 NW 67th Place, Suite A, Gainesville, Florida; 300 S. West End Avenue, Dayton, Ohio; 18550 Allen Road, Brownstown, Michigan; and 10100 Rocket Boulevard, Orlando, Florida, each as described in more detail onSchedule 4.19.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in Sections 3(37) and 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to (a) any sale, lease, transfer or other voluntary or involuntary disposition of any Property of Borrower or any of its Subsidiaries (other than sales or other dispositions of Inventory in the ordinary course of business, but including, without limitation, a sale or disposition of any capital stock of any such Subsidiary) or (b) any receipt of fire, property, casualty or similar insurance proceeds or condemnation awards in respect of Property of any Credit Party or other insurance proceeds received in respect of a loss incurred by any Credit Party (other than insurance proceeds used or to be used by a Credit Party to repair or replace damaged property as permitted herein), in each case, the aggregate amount of such cash consideration received by any Credit Party in connection with such transaction after deduction of (i) all reasonable fees, costs and expenses directly incurred by any Credit Party in connection therewith, including, without limitation, underwriting discount, brokerage or selling commissions, if any, (ii) federal, state and local income taxes actually paid or payable in cash in connection with such transaction within two (2) years thereafter (iii) in the case of any sale, lease, transfer or disposition of Property, the amount of Indebtedness secured by such Property required to be repaid in connection with such transaction, and (iv) the reasonable fees and disbursements of counsel paid by any Credit Party in connection therewith and (v) appropriate amounts to be provided by any Credit Party as a reserve, in accordance with GAAP, against any liabilities associated therewith and retained by any Credit Party after such sale, lease, transfer, or disposition, including, without limitation, pension and benefit liabilities, liabilities related to environmental matters or liabilities under any indemnification obligations associated therewith except that such reserves shall become Net Cash Proceeds when released.
"Notes" shall have mean, collectively, the Revolving Credit Facility Note and the Term Note.
"Obligations" shall mean and include any and all loans, advances, debts, liabilities, obligations, covenants and duties owing by each Credit Party to any Lender or Agent or to any other direct or indirect subsidiary or affiliate of Agent or any Lender of any kind or nature, present or future (including, without limitation, any interest accruing thereon after maturity, or after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to each Credit Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether or not evidenced by any note, guaranty or other instrument, whether arising under any agreement, instrument or document, (including, without limitation, this Agreement and the other Loan Documents) whether or not for the payment of money, whether arising by reason of an extension of credit, opening of a letter of credit, loan, equipment lease or guarantee, under any interest or currency swap, future, option or other similar agreement, or in any other manner, whether arising out of overdrafts or deposit or other accounts or electronic funds transfers (whether through automated clearing houses or otherwise) or out of Agent's or any Lender's non-receipt of or inability to collect funds or otherwise not being made whole in connection with depository transfer check or other similar arrangements, whether direct or indirect (including those acquired by assignment or participation), absolute or contingent, joint or several, due or to become due, now existing or hereafter arising, contractual or tortious, liquidated or unliquidated, regardless of how such indebtedness or liabilities arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument, including, but not limited to, any and all of each Credit Party's Indebtedness and/or liabilities under this Agreement, the other Loan Documents or under any other agreement between Agent or Lenders and each Credit Party and any amendments, extensions, renewals or increases and all costs and expenses of Agent and any Lender incurred in the documentation, negotiation, modification, enforcement, collection or otherwise in connection with any of the foregoing, including but not limited to reasonable attorneys' fees and expenses and all obligations of each Credit Party to Agent or Lenders to perform acts or refrain from taking any action.
"Parent" of any Person shall mean a corporation or other entity owning, directly or indirectly at least fifty percent (50%) of the shares of stock or other ownership interests having ordinary voting power to elect a majority of the directors of the Person, or other Persons performing similar functions for any such Person.
"Participant" shall mean each Person who, in accordance withSection 15.3(b), shall be granted the right by any Lender to participate in any of the Advances and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.
"Payment Office" shall mean initially Two Tower Center Boulevard, East Brunswick, New Jersey (08816); thereafter, such other office of Agent, if any, which it may designate by notice to Borrower and to each Lender to be the Payment Office.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" shall mean (a) Liens in favor of Agent for the benefit of Agent and Lenders; (b) Liens for taxes, assessments or other governmental charges not delinquent or being contested in good faith and by appropriate proceedings and with respect to which proper reserves have been taken by the applicable Credit Party;provided that, the Lien shall have no effect on the priority of the Liens in favor of Agent and provided that such Lien does not have a Material Adverse Effect; (c) Liens disclosed in the financial statements referred to inSection 5.5; (d) deposits or pledges to secure obligations under worker's compensation, social security or similar laws, or under unemployment insurance; (e) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of the applicable Credit Party's business; (f) judgment Liens that have been stayed or bonded and mechanics', workers', materialmen's or other like Liens arising in the ordinary course of the applicable Credit Party's business with respect to obligations that are not overdue more than 30 days or that are being contested in good faith by the applicable Credit Party; (g) Liens placed upon fixed assets hereafter acquired to secure a portion of the purchase price thereof;provided that (x) any such Lien shall not encumber any other Property of such Credit Party and (y) the aggregate amount of Indebtedness secured by such Liens incurred as a result of such purchases during any fiscal year shall not exceed the amount provided for inSection 7.6; (h) other Liens incidental to the conduct a Credit Party's business or the ownership of its Property that were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and that do not in the aggregate materially detract from Agent's or Lenders' rights in and to the Collateral or the value of any Credit Party's Property or that do not materially impair the use thereof in the operation of any Credit Party's business; (i) Liens disclosed onSchedule 1.2(e); (j) existing Liens of a Person merged into or with any Credit Party; (k) Liens arising from precautionary filings regarding operating leases entered into by any Credit Party in the ordinary course of business; and (m) purchase money security interests (including Capital Leases).
"Person" shall mean any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, institution, public benefit corporation, joint venture, entity or government (whether Federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof).
"Plan" shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of Borrower or any member of the Controlled Group or any such Plan to which Borrower or any member of the Controlled Group is required to contribute on behalf of any of its employees.
"Preferred Stock" means Borrower's Series 9 Class I Convertible Preferred Stock, Series 14 Class N Convertible Preferred Stock, Series 15 Class O Convertible Preferred Stock and Series 16 Class P Convertible Preferred Stock.
"Pro Forma Balance Sheet" shall have the meaning set forth inSection 5.5(a).
"Pro Forma Financial Statements" shall have the meaning set forth inSection 5.5(b).
"Projections" shall have the meaning set forth inSection 5.5(b).
"Property" means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal, or mixed, tangible or intangible.
"Purchasing Lender" shall have the meaning set forth inSection 15.3.
"Questionnaire" shall mean the Documentation Information Questionnaire and the responses thereto provided by Borrower and delivered to Agent.
"RCRA" shall mean the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq., as the same may be amended from time to time.
"Real Property" shall mean all of each Credit Party's right, title and interest in and to the Mortgaged Property and any other owned and leased premises identified onSchedule 4.19 hereto and shall include the Leasehold Interests.
"Receivables" shall mean and include, as to any Credit Party, all of such Credit Party's accounts, contract rights, instruments (including those evidencing indebtedness owed to such Credit Party by its Affiliates), documents, chattel paper, general intangibles relating to accounts, drafts and acceptances, and all other forms of obligations owing to such Credit Party arising out of or in connection with the sale or lease of Inventory or the rendition of services pursuant to term contracts or otherwise, all guarantees and other security therefor, whether secured or unsecured, now existing or hereafter created, and whether or not specifically sold or assigned to Agent hereunder.
"Releases" shall have the meaning set forth inSection 5.7(c)(i).
"Reportable Event" shall mean a reportable event described in Section 4043(b) of ERISA or the regulations promulgated thereunder.
"Required Lenders" shall mean Lenders holding at least sixty-six and two thirds percent (66 2/3%) of the Advances and, if no Advances are outstanding, shall mean Lenders holding at least sixty-six and two thirds percent (66 2/3%) of the Commitment Percentages.
"Reserve Percentage" shall mean the maximum effective percentage in effect on any day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding.
"Revolving Credit Facility" shall have the meaning set forth inSection 2.1.
"Revolving Credit Facility Advances" shall mean any Advances to Borrower under the Revolving Credit Facility in accordance withSection 2.2(a).
"Revolving Credit Facility Note" shall mean the secured promissory note(s) referred to inSection 2.1.
"Revolving Credit Limit" shall have the meaning set forth inSection 2.1.
"Section 20 Subsidiary" shall mean the Subsidiary of the bank holding company controlling PNC, which Subsidiary has been granted authority by the Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
"Secured Subsidiaries Guaranty" shall mean a Secured Subsidiaries Guaranty in form and substance ofExhibit F to be executed by each Subsidiary of Borrower existing now or in the future.
"Senior Debt Payments" shall mean and include all cash actually expended by any Credit Party to make (a) interest payments on any Advances hereunder,plus, (b) scheduled principal payments on the Term Loan,plu s (c) payments for all fees, commissions and charges set forth herein and with respect to any Advances,plus (d) Capitalized Lease payments, plus (e) payments with respect to any other Indebtedness for borrowed money, including purchase money indebtedness.
"Settlement Date" shall mean the Closing Date and thereafter Wednesday of each week unless such day is not a Business Day, in which case it shall be the next succeeding Business Day.
"Subordinated Debt Payments" shall mean and include all cash actually expended to make payments of principal and interest on the Subordinated Loans.
"Subordinated Loans" shall mean the Indebtedness identified onSchedule 1.2(e).
"Subordinated Loan Documentation" means each of that certain Stock Purchase Agreement and Promissory Notes and Mortgages in favor of the Borrower held by the Thomas P. Sullivan Living Trust dated September 6, 1998 and by the Ann L. Sullivan Living Trust dated September 6, 1998.
"Subordination Agreement" shall mean a Subordination Agreement in form and substance reasonably satisfactory to Agent among Agent, and each of the Thomas P. Sullivan Living Trust dated September 6, 1978 and by the Ann L. Sullivan Living Trust dated September 6, 1978.
"Subsidiary" shall mean a corporation or other entity of whose shares of stock or other ownership interests having ordinary voting power (other than stock or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the directors of such corporation, or other Persons performing similar functions for such entity, are owned, directly or indirectly, by such Person.
"Subsidiary Stock" shall mean all of the issued and outstanding shares of stock owned by Schreiber, Yonley and Associates, Inc., a Missouri corporation, Perma-Fix Treatment Services, Inc., an Oklahoma corporation, Perma-Fix, Inc., an Oklahoma corporation, Perma-Fix of New Mexico, Inc., a New Mexico corporation, Perma-Fix of Florida, Inc., a Florida corporation Perma-Fix of Memphis, Inc., a Tennessee corporation, Perma-Fix of Dayton, Inc., an Ohio corporation, Perma-Fix of Ft. Lauderdale, Inc., a Florida corporation, Perma-Fix of Orlando, Inc. fka Chemical Conservation Corporation, Inc., a Florida corporation, Perma-Fix of South Georgia, Inc. fka Chemical Conservation of Georgia, Inc., a Georgia corporation, Perma-Fix of Michigan, Inc. fka Chem-Met Services, Inc., a Michigan corporation, Diversified Scientific Services, Inc., a Tennessee corporation, Industrial Waste Management, Inc., a Missouri corporation, Mintech, Inc., an Oklahoma corporation, and Reclamation Systems, Inc., an Oklahoma corporation and any other Subsidiary of Borrower.
"Tangible Adjusted Net Worth" shall mean, at a particular date, (a) the aggregate amount of all assets of Borrower on a consolidated basis, as may be properly classified as such in accordance with GAAP consistently applied excluding such other assets as are properly classified as goodwill assets under GAAP, less (b) the aggregate amount of all liabilities of Borrower on a consolidated basis. For purposes of this definition, any amounts noted in Borrower's books and records for "Acquired Permits" shall not be deemed "goodwill."
"Termination Date" shall have the meaning set forth inSection 13.1.
"Termination Event" shall mean (i) a Reportable Event with respect to any Plan or Multiemployer Plan; (ii) the withdrawal of Borrower or any member of the Controlled Group from a Plan or Multiemployer Plan during a plan year in which such entity was a "substantial employer" as defined in Section 4001(a)(2) of ERISA; (iii) the providing of notice of intent to terminate a Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to terminate a Plan or Multiemployer Plan; (v) any event or condition that might (a) constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan or (b) result in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of Borrower or any member of the Controlled Group from a Multiemployer Plan.
"Term Loan" shall have the meaning set forth inSection 2.5.
"Term Note" shall mean the secured promissory note(s) described inSection 2.5.
"Total Financing Amount" shall mean the sum of the Revolving Credit Limitplus the Maximum Term Loan Amount.
"Toxic Substance" shall mean and include any material that has been shown to have significant adverse effect on human health or that is subject to regulation under the Toxic Substances Control Act (TSCA), 15 U.S.C. Sections 2601 et seq., applicable state law, or any other applicable Federal or state laws now in force or hereafter enacted relating to toxic substances. "Toxic Substance" includes but is not limited to asbestos, polychlorinated biphenyls (PCBs) and lead-based paints.
"Transactions" shall have the meaning set forth inSection 5.5.
"Undrawn Revolving Credit Facility Availability" at a particular date shall mean an amount equal to (a) the lesser of (i) the Formula Amount or (ii) the Revolving Credit Limit,minus (b) the sum of (i) the Effective Balanceplus (ii) all amounts due and owing to any Credit Party's trade creditors that are sixty (60) days or more past due,plus (iii) fees and expenses for which any Credit Party is liable but that have not been paid or charged to its Account.
"Unfinanced Capital Expenditures" shall mean the aggregate amount of capital expendituresminus cash amounts spent for capital expenditures that are deducted from the Investment Basket,provided, however, in no event shall such amount be less than zero.
"Week" shall mean the time period commencing with the opening of business on a Wednesday and ending on the end of business the following Tuesday.
"Working Capital" at a particular date, shall mean the difference, if any, of Current Assets minus Current Liabilities at such date, provided, however, such amount shall not include payment obligations to Agent and Lenders with respect to the Revolving Credit Facility and current subordinated debt payments made to other creditors.
(x) the Revolving Credit Limitminus such reserves as Agent may reasonably deem proper and necessary from time to time; and
(y) an amount up to the sum (without duplication) of (i) up to 85% of Commercial Receivables aged 60 days or less from invoice date, (ii) up to 85% of Commercial Broker Receivables aged up to 90 days from the due date, up to 120 days from invoice date, (iii) up to 85% of Acceptable Government Agency Receivables aged 60 days or less from the due date, up to 150 days from invoice date, and (iv) up to 50% of Acceptable Unbilled Amounts aged 60 days (the foregoing applicable percentages being referred to as the "Advance Rates") subject, in each case, to clause (b) of the definition of "Eligible Receivables",minus (v) such reserves as Agent may reasonably deem proper and necessary from time to time. The amount determined pursuant to thisSection 2.2(a)(y) at any time and from time to time shall be referred to as the "Formula Amount ".
Borrower shall elect the initial Interest Period applicable to a Eurodollar Rate Loan by its notice of borrowing given to Agent pursuant toSection 2.3(b) or by its notice of conversion given to Agent pursuant toSection 2.3(d), as the case may be. Borrower shall elect the duration of each succeeding Interest Period by giving irrevocable written notice to Agent of such duration not less than three (3) Business Days prior to the last day of the then current Interest Period applicable to such Eurodollar Rate Loan. If Agent does not receive timely notice of the Interest Period elected by Borrower, Borrower shall be deemed to have elected to convert to a Domestic Rate Loan subject toSection 2.3(d).
and the result of any of the foregoing is to increase the cost to Agent or any Lender of making, renewing or maintaining its Advances hereunder by an amount that Agent or such Lender deems to be material or to reduce the amount of any payment (whether of principal, interest or otherwise) in respect of any of the Advances by an amount that Agent or such Lender deems to be material, then, in any case Borrower shall promptly pay Agent or such Lender, upon its demand, such additional amount as will compensate Agent or such Lender for such additional cost or such reduction, as the case may be;provided that the foregoing shall not apply to increased costs that are reflected in the Eurodollar Rate, as the case may be. Agent or such Lender shall certify the amount of such additional cost or reduced amount to Borrower, and such certification shall be conclusive absent manifest error.
then Agent shall give Borrower prompt written, telephonic or telegraphic notice of such determination. If such notice is given, (i) any such requested Eurodollar Rate Loan shall be made as a Domestic Rate Loan, unless Borrower shall notify Agent no later than 10:00 a.m. (New York City time) two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of Eurodollar Rate Loan, (ii) any Domestic Rate Loan or Eurodollar Rate Loan that was to have been converted to an affected type of Eurodollar Rate Loan shall be continued as or converted into a Domestic Rate Loan, or, if Borrower shall notify Agent, no later than 10:00 a.m. (New York City time) two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of Eurodollar Rate Loan, and (iii) any outstanding affected Eurodollar Rate Loans shall be converted into a Domestic Rate Loan, or, if Borrower shall notify Agent, no later than 10:00 a.m. (New York City time) two (2) Business Days prior to the last Business Day of the then current Interest Period applicable to such affected Eurodollar Rate Loan, shall be converted into an unaffected type of Eurodollar Rate Loan, on the last Business Day of the then current Interest Period for such affected Eurodollar Rate Loans. Until such notice has been withdrawn, Lenders shall have no obligation to make an affected type of Eurodollar Rate Loan or maintain outstanding affected Eurodollar Rate Loans and Borrower shall not have the right to convert a Domestic Rate Loan or an unaffected type of Eurodollar Rate Loan into an affected type of Eurodollar Rate Loan.
Borrower hereby represents and warrants to Agent and Lenders as follows:
Borrower shall, and shall cause each of its Subsidiaries to:
Borrower shall not, and shall not permit any other Credit Party to:
Each request for an Advance by Borrower hereunder shall constitute a representation and warranty by Borrower as of the date of such Advance that the conditions contained in this subsection shall have been satisfied.
Borrower shall, until satisfaction in full of the Obligations and the termination of this Agreement:
The occurrence of any one or more of the following events shall constitute an "Event of Default":
Agent may resign on sixty (60) days' written notice to each of Lenders and Borrower and upon such resignation, the Required Lenders will promptly designate a successor Agent reasonably satisfactory to Borrower.
Any such successor Agent shall succeed to the rights, powers and duties of Agent, and the term "Agent" shall mean such successor agent effective upon its appointment, and the former Agent's rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Agent. After any Agent's resignation as Agent, the provisions of this Article XIV shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
Any such supplemental agreement shall apply equally to each Lender and shall be binding upon Borrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, Borrower, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default that was waived), or impair any right consequent thereon.
In the event that Agent requests the consent of a Lender pursuant to thisSection 15.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be deemed to have consented to the matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to thisSection 15.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or to another Lender or to any other Person designated by Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event that Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
Notwithstanding the foregoing, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Credit Facility Advances at any time to exceed the Formula Amount by up to one hundred ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Credit Facility Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Credit Facility Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Credit Facility Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
(A) | If to Agent or PNC at: | PNC Bank, National Association Attention: Mr. Wing Louie |
with copies to: | Barry Gilman, Esq. Two Tower Center East Brunswick, New Jersey 08816 Telephone: (732) 220-3136 | |
and | ||
Manatt, Phelps & Phillips, LLP | ||
(B) | If to a Lender other than Agent, as specified on the signature pages hereof | |
(C) | If to Borrower: | Perma-Fix Environmental Services, Inc. 1940 N.W. 67th Place Gainsville, Florida 32653 Attention: Dr. Louis F. Centofanti, President and CEO Telephone: (352) 395-1361 Facsimile: (352) 373-0777 |
with a copy to: | Irwin H. Steinhorn, Esq. Conner & Winters, a Professional Corporation 211 North Robinson, Suite 1700 Oklahoma City, Oklahoma 73102 Telephone: (405) 272-5750 Facsimile: (405) 232-2695 |
[remainder of page intentionally left blank; signature page follows]
Each of the parties has signed this Agreement as of the day and year first above written.
PERMA-FIX ENVIRONMENTAL SERVICES, INC. | |
ATTEST: | |
By: | |
________________________ | Richard T. Kelecy |
[SEAL] | Chief Financial Officer and Secretary |
1940 N.W. 67th Place Gainsville, Florida, 32653 | |
PNC BANK, NATIONAL ASSOCIATION, | |
By: | |
Name: | |
Title: | |
465 North Halstead, Suite 940 Pasadena, California 91107 | |
PNC BANK, NATIONAL ASSOCIATION, | |
By: | |
Name: | |
Title: | |
Address | |
Commitment Percentage: 100% |
M:\LosAngeles\ClientMatter\22096\033\JAM.a4082wt.0005c.doc
01/10/01 9:19 AM
