EXHIBIT 4.4
AMENDMENT NO. 2
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 ("Amendment") is entered into as of May__, 2003 by and
among PERMA-FIX ENVIRONMENTAL SERVICES, INC., a corporation organized under the
laws of the State of Delaware ("Borrower"), PNC BANK, NATIONAL ASSOCIATION
("PNC"), the various other financial institutions (together with PNC,
collectively the "Lenders") named in or which hereafter become a party to the
Loan Agreement (as hereafter defined) and PNC as agent for Lenders (in such
capacity, "Agent") and as Issuing Bank.
BACKGROUND
Borrower, Agent and Lenders are parties to a Revolving Credit, Term Loan
and Security Agreement dated as of December 22, 2000 (as amended, supplemented
or otherwise modified from time to time, the "Loan Agreement") pursuant to which
Lenders provides Borrower with certain financial accommodations.
Borrower has requested that Lenders amend certain provisions of the Loan
Agreement and Agent, on behalf of Lenders is willing to do so on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrower by Lenders, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 of the Loan Agreement is hereby amended by inserting
the following defined terms in their appropriate alphabetical order:
"Amendment No. 2" shall mean Amendment No. 2 to Revolving Credit, Term
Loan and Security Agreement dated as of May _, 2003.
"Amendment No. 2 Effective Date" shall mean the date when the
conditions of effectiveness set forth in Section 3 of Amendment No. 2 have been
met to Agent's satisfaction.
(b) Section 1.2 of the Loan Agreement is hereby amended by amending
the following defined terms to provide as follows:
"Amortizing Availability" shall mean $4,000,000, less $66,666.67, on
the fifteenth (15th) day of each month commencing with July 15, 2003 and
reducing to $0 upon the end of the Term. In the event any Equipment of East
Tennessee Materials & Energy Corporation is sold on or after the Amendment
No. 2 Effective Date, the Amortizing Availability shall be further reduced
by the greater of (i) 75% of the fair market value of such Equipment or
(ii) 45% of the liquidation in place value of such Equipment, in each case
as set forth in the appraisal dated March 2, 2002 conducted by Marshall and
Stevens Valuation Consulting.
"Documentary L/C" means any commercial documentary letter of credit
issued by the Issuing Bank pursuant to Section 2.14.
"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 part of the Revolving Commitment Facility,
rather than a separate independent commitment.
"Letter of Credit" shall mean and include Documentary L/Cs and Standby
L/Cs.
"Standby L/C" means any commercial standby letter of credit issued by
the Issuing Bank pursuant to Section 2.14.
(c) Section 2.14(i)(i) of the Loan Agreement is hereby amended by
amending the first sentence thereof in its entirety to provide as follows:
"Borrower shall pay to the Agent for the account of the Lenders a
letter of credit fee with respect to Letters of Credit equal to the
rate per annum equal to three percent (3%) per annum, (which rate
shall be increased by 2% per annum at any time when an Event of
Default shall have occurred and be continued) of the average daily
maximum amount available to be drawn of the outstanding Letters of
Credit, computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon the applicable Letters of
Credit outstanding for that quarter as calculated by Agent, such
computation be made on the basis of actual days elapsed in a 360-day
year."
(d) Section 2.14(k) of the Loan Agreement is hereby amended in its
entirety to provide as follows:
(a) "Uniform Customs and Practice and International Standby
Practices. Each Documentary L/Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No.
500 and any amendments or revision thereof adhered to by the
Issuing Bank. Each Standby L/C shall be subject to the
International Standby Practices (ISP98 - International
Chamber of Commerce Publication Number 590) (the "ISP98
Rules") and, as to matters not governed by the ISP98 Rules
or UCP500, the laws of the State of New York."
3. Conditions of Effectiveness. This Amendment shall become effective upon
satisfaction of the following conditions precedent: Agent shall have received
(i) four (4) copies of this Amendment executed by Borrower and consented and
agreed to by Guarantors, (ii) an amendment fee of $25,000 (which fee shall be
charged to Borrower's Account), and (iii) such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Agent or its
counsel, each of which shall be in form and substance satisfactory to Agent and
its counsel.
4. Representations and Warranties. Borrower hereby represents and warrants
as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective
terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the
Loan Agreement to the extent the same are not amended hereby and
agrees that all such covenants, representations and warranties shall
be deemed to have been remade as of the effective date of this
Amendment, except that such representations and warranties shall be
qualified by the matters set forth on Schedule A attached hereto and
made a part hereof.
(c) No Event of Default or Default has occurred and is continuing
or would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect
to the Loan Agreement.
(e) Borrower is incorporated in the State of Delaware.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Agent or any Lender,
nor constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first written above.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
By: /s/ Richard T. Kelecy
-------------------------------------
Name: Richard T. Kelecy
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Agent and Lender
By: /s/ Alex M. Council IV
-------------------------------------
Name: Alex M. Council IV
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CONSENTED AND AGREED TO:
SCHREIBER, YONLEY AND ASSOCIATES, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX TREATMENT SERVICES, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF NEW MEXICO, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF FLORIDA, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF MEMPHIS, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF DAYTON, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF FT. LAUDERDALE, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF ORLANDO, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF SOUTH GEORGIA, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
PERMA-FIX OF MICHIGAN, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
DIVERSIFIED SCIENTIFIC SERVICES, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
INDUSTRIAL WASTE MANAGEMENT, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
MINTECH, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
RECLAMATION SYSTEMS, INC.
By: /s/ Richard T. Kelecy
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Name: Richard T. Kelecy
Title: Vice President
EAST TENNESSEE MATERIALS & ENERGY
CORPORATION
By: /s/ Richard T. Kelecy
----------------------------------
Name: Richard T. Kelecy
Title: Vice President