Exhibit 4.10
NINTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT AND WAIVER
THIS NINTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT AND WAIVER, dated as of November 17, 2016 (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; and
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. Amendments. The Credit Agreement is amended as set forth below:
(a) A new definition of “Release of Restricted Insurance Closure Fund” is added to Section 1.2 in correct alphabetical order to read as follows:
“ “Release of Restricted Insurance Closure Fund” shall mean the pending funds forthcoming to Borrower from Chartis/AIG in connection with the restructuring of its state mandated closure insurance requirements.”
(b) The definition of “Applicable Margin” in Section 1.2 is amended to read as follows:
“ “Applicable Margin” for (i) Revolving Advances that are Eurodollar Rate Loans, 3.00%, (ii) Revolving Advances that are Domestic Rate Loans, 2.00%, (iii) Equipment Loans and Term Loans that are Eurodollar Rate Loans, 3.50%, and (iv) Equipment Loans and Term Loans that are Domestic Rate Loans, 2.50%. At such time as Borrower attains a Fixed Charge Coverage Ratio of 1.15 to 1.0 on a rolling four quarter basis the Applicable Margin shall be reduced as follows: for (i) Revolving Advances that are Eurodollar Rate Loans, 2.75%, (ii) Revolving Advances that are Domestic Rate Loans, 1.75%, (iii) Equipment Loans and Term Loans that are Eurodollar Rate Loans, 3.25%, and (iv) Equipment Loans and Term Loans that are Domestic Rate Loans, 2.25%.”
(c) Section 2.1(a)(y)(a)(iii) is amended to read as follows:
“(iii) a $1,250,000 availability block established from a portion of the South Georgia Insurance Proceeds which shall be increased to $2,000,000 when Borrower receives the Release of Restricted Insurance Closure Fund, minus”.
(d) Section 6.5(b) is amended to read as follows:
“(b) Fixed Charge Coverage Ratio.
Cause to be maintained a Fixed Charge Coverage Ratio of not less than 1.15 to 1.0 for (i) the one quarter period ending as of December 31, 2016; (ii) the two quarter period ending as of March 31, 2017; (iii) the three quarter period ending as of June 30, 2017; and (iv) the four quarter period ending as of September 30, 2017 and for each fiscal quarter thereafter.”
(e) Exhibit 1.2(a) is deleted in its entirety and replaced by a new Exhibit 1.2(a) attached hereto and incorporated by reference.
2. Waiver. The Agent and the Required Lenders hereby waive the violation by the Borrower of the Fixed Charge Coverage Ratio covenant set forth in Section 6.5(b) of the Credit Agreement for the quarter ending as of September 30, 2016.
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 an amendment fee of $25,000.
4. Condition Subsequent. No later than December 31, 2016 the Borrower shall the provide Agent evidence satisfactory to the Agent that it has received the Release of Restricted Insurance Closure Fund.
5. 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.
6. 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.
7. Credit Agreement. Except as expressly modified hereby, all of the terms and provisions of the Credit Agreement remain in full force and effect.
8. 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.
9. 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.
10. 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.
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 |
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| SERVICES, INC. |
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| 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 | ||
| Title: | Vice President | ||
Ninth Amendment
Perma-Fix
Exhibit 1.2(a)
[Letterhead of Company]
COMPLIANCE CERTIFICATE __________________, 20__
PNC Bank, National Association, as Agent
One Piedmont Town Center
4720 Piedmont Row Drive
Suite 300
Charlotte, NC 28210
Attention: Alex Council
The undersigned, the[Chief Executive Officer][President][Chief Financial Officer][Controller] ofPerma-Fix Environmental Services, Inc., a Delaware corporation, gives this certificate toPNC Bank, National Association,as Agent (in such capacity, the “Agent”), in accordance with the requirements ofSection 9.7 and 9.8(Annual and Quarterly Financial Statements)of that certain Revolving Credit, Term Loan and Security Agreement dated as of October 31, 2011, among the Borrower, the financial institutions which are parties thereto as Lenders, and the Agent (the “Loan Agreement”).
Capitalized terms used in this Certificate, unless otherwise defined herein, shall have the meanings ascribed to them in the Loan Agreement.
1. Based upon my review of the financial statements of the Company for the [Fiscal Year/Quarter] ending __________________, 20__, copies of which are attached hereto, I hereby certify that:
| (a) | Section 6.5(a), the Tangible Adjusted Net Worth is [satisfied / not satisfied] at $__________ when compared to the required amount of at least $26,000,000. |
| (b) | Section 6.5(b), the Fixed Charge Coverage Ratio is [satisfied / not satisfied] at _____ to 1.0 when compared to the required1.15 to 1.0 for (a) the one quarter period ending as of December 31, 2016; (ii) the two quarter period ending as of March 31, 2017; (iii) the three quarter period ending as of June 30, 2017; and (iv) the four quarter period ending as of December 31, 2017 and as of the end of each fiscal quarter thereafter. |
| (c) | Sections 7.4, Investments are [satisfied/not satisfied] as there are $xx,xxx (if none, so state) outstanding. |
| (d) | Sections 7.5(a), Loans are [satisfied/not satisfied] as no advances, loans or extensions of credit have been made except for extensions of trade credit in connection with the sale of Inventory in the Ordinary Course of Business and Section 7.5(b), Loans to employees in the Ordinary Course of Business in the amount of $xx,xxx (if none, so state) are [less/more] than the allowable amount of $1,000,000 in the aggregate. |
| (e) | Sections 7.6, Capital Expenditures are [satisfied/not satisfied] as $xx,xxx is [less/more] than the allowable amount of $3,000,000 for any fiscal year. |
| (f) | Sections 7.7, Dividends and Distributions are [satisfied/not satisfied] as the payment of all dividends and distributions comply with the provisions of Section 7.7. |
| (g) | Sections 7.8, Create additional Indebtedness is [satisfied/not satisfied] as such additional Indebtedness complies with the provisions of Section 7.8. |
| (h) | Sections 7.11, Leases are [satisfied/not satisfied] as $xx,xxx is [less/ more] when compared to the annual rental payments for all property of $1,000,000. |
2. | No Default exists on the date hereof, other than: _______________[if none, so state]; and |
3. | No Event of Default exists on the date hereof, other than _____________ [if none, so state]. |
4. | As of the date hereof, if applicable, Borrower is current in all material respects in payment of all accrued rent, warehouse fees, and other charges to Persons who own or lease any premises where any of the Collateral is located, and there are no pending disputes or claims regarding Borrowers’ failure to pay or delay in payment of any such rent or other charges. |
5. | Additionally, as of the date hereof, as required by Section 9.3, to the best of my knowledge, Borrower is in compliance in all material respects with all federal, state and local laws relating to environmental protection and control and occupational safety and health, or if such is not the case, specifying in all areas of material non-compliance of which such officer has actual knowledge and the proposed action Borrower will implement in order to achieve compliance in all material respects unless full compliance is otherwise required. |
6. | The financial statements attached hereto are complete and accurate in all respects and were prepared in accordance with GAAP, consistently applied, except for the absence of footnotes and subject to year end audit adjustments, and except as may be disclosed in such financial statements. |
| PERMA-FIX ENVIRONMENTAL SERVICES, INC. |
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| _________________ as[Chief Executive Officer] [President] | |
| [Chief Financial Officer] [Controller] | |
| Dated ______________ |
Spreadsheet