EXHIBIT 4.5
AMENDMENT NO. 3
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of October 31, 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. 3" shall mean Amendment No. 3 to Revolving Credit,
Term Loan and Security Agreement dated as of October 31, 2003.
(b) Section 2.1 of the Loan Agreement is hereby amended in its
entirety to provide as follows.
"2.1 Revolving Credit Facility. Subject to the terms and conditions
set forth in this Agreement, each Lender, severally and not jointly,
agrees to make available
to Borrower a sum equal to such Lender's Commitment Percentage of a
revolving line of credit (the "Revolving Credit Facility") in the
maximum principal amount outstanding at any one time of EIGHTEEN
MILLION AND NO/100 DOLLARS ($18,000,000) (the "Revolving Credit
Limit"), which revolving line of credit shall be evidenced by one or
more secured promissory notes (collectively, the "Revolving Credit
Facility Note") substantially in the form attached hereto as Exhibit
G."
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 $30,000 (which fee shall be
charged to Borrower's Account), (iii) a copy of the resolutions, in form and
substance reasonably satisfactory to Agent, of the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Amendment
and (iv) 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.
(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
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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: V.P.
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]
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CONSENTED AND AGREED TO:
SCHREIBER, YONLEY AND ASSOCIATES, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX TREATMENT SERVICES, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF NEW MEXICO, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF FLORIDA, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF MEMPHIS, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
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PERMA-FIX OF DAYTON, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF FT. LAUDERDALE, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF ORLANDO, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF SOUTH GEORGIA, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
PERMA-FIX OF MICHIGAN, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
DIVERSIFIED SCIENTIFIC SERVICES, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
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INDUSTRIAL WASTE MANAGEMENT, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
MINTECH, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
RECLAMATION SYSTEMS, INC.
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
EAST TENNESSEE MATERIALS & ENERGY
CORPORATION
By: /s/ Richard T. Kelecy
-------------------------------------------
Name: Richard T. Kelecy
Title: V.P.
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