Exhibit 4.1
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT AND WAIVER
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT AND WAIVER, dated as of May 9, 2013 (this “Amendment”), relating to the Credit Agreement referenced below, is by and among PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the “Borrower”), the lenders identified on the signature pages hereto (the “Lenders”), and PNC Bank, National Association, a national banking association, as agent for the Lenders (in such capacity, the “Agent”). Terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a credit facility has been extended to the Borrower pursuant to the terms of that certain Amended and Restated Revolving Credit, Term Loan and Security Agreement dated as of October 31, 2011 (as amended and modified from time to time, the “Credit Agreement”) among the Borrower, the Lenders identified therein, and PNC Bank, National Association, as agent for the Lenders;
WHEREAS, the Borrower has requested certain modifications to the Credit Agreement;
WHEREAS, the Required Lenders have agreed to the requested modifications on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment. Section 6.5(b) of the Credit Agreement is amended to read as follows:
“(b) Fixed Charge Coverage Ratio.
Cause to be maintained a Fixed Charge Coverage Ratio of not less than 1.25 to 1.0 for (i) the one quarter period ending as of June 30, 2013; (ii) the two quarter period ending as of September 30, 2013; (iii) the three quarter period ending as of December 31, 2013; and (iv) the four quarter period ending as of March 31, 2014 and as of the end of each fiscal quarter thereafter.”
2. Waiver. The Agent and the Required Lenders hereby waive the violation by the Borrower of Section 6.5(b) (Fixed Charge Coverage Ratio) for the quarter ending as of March 31, 2013.
3. Conditions Precedent. This Amendment shall be effective as of the date hereof upon satisfaction of each of the following conditions precedent:
(a) the execution of this Amendment by the Borrower, the Required Lenders and the Agent; and
(b) receipt by the Agent of a $20,000 amendment fee.
4. Representations and Warranties. The Borrower hereby represents and warrants in connection herewith that as of the date hereof (after giving effect hereto) (i) the representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects (except those which expressly relate to an earlier date), and (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement.
5. Acknowledgments, Affirmations and Agreements. The Borrower (i) acknowledges and consents to all of the terms and conditions of this Amendment and (ii) affirms all of its obligations under the Credit Agreement and the Other Documents.
6. Credit Agreement. Except as expressly modified hereby, all of the terms and provisions of the Credit Agreement remain in full force and effect.
7. Expenses. The Borrower agrees to pay all reasonable costs and expenses in connection with the preparation, execution and delivery of this Amendment, including the reasonable fees and expenses of the Agent’s legal counsel.
8. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original. It shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart.
9. Governing Law. This Amendment shall be deemed to be a contract under, and shall for all purposes be construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
BORROWER: | PERMA-FIX ENVIRONMENTAL SERVICES, INC. |
| By: | /s/Ben Naccarato | |
| Name: | Ben Naccarato | |
| Title: | CFO |
AGENT AND LENDER: | PNC BANK, NATIONAL ASSOCIATION, in its capacity as Agent and as Lender |
| By: | /s/Alex M. Council IV | |
| Name: | Alex M. Council IV | |
| Title: | Vice President |
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