Exhibit 4.1
AMENDMENT NO. 5
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of June 29, 2005
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 provide 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
to provide as follows:
(i) The following defined terms are added in
their appropriate alphabetical order:
"Additional Mortgaged Property" shall mean any Credit Party's
Real Property located at 2010 NW 67th Place, Gainesville,
Florida; 10225 General Drive, Orlando, Florida; 1500 Carbon
Avenue, Baltimore, Maryland; and 3200 Sun Street, Baltimore,
Maryland.
"Amendment No. 5" shall mean Amendment No. 5 to Revolving
Credit, Term Loan and Security Agreement dated as of June 29,
2005.
"Amendment No. 5 Effective Date" shall mean the date when the
conditions of effectiveness set forth in Section 3 of
Amendment No. 5 have been met to Agent's satisfaction.
"Term Loan Effective Date" shall mean the date on which the
conditions of Section 8.3 have been met to the Agent's
satisfaction.
(ii) The following defined terms are amended in
their entirety to provide as follows:
"Maximum Term Loan Amount" shall mean (a) prior to the Term
Loan Effective Date, $2,583,351 minus the sum (without
duplication) of all actual and required repayments thereof
after the date of Amendment No. 5 as of the date of
determination, and (b) as of the Term Loan Effective Date,
$7,000,000 minus the sum (without duplication) of all actual
and required repayments thereof after the Term Loan Effective
Date as of the date of determination.
"Mortgaged Property" shall mean any Credit Party's Real
Property located at 657 Gallaher Road, Kingston, Tennessee;
300 S. West End Avenue, Dayton, Ohio; 1940 NW 67th Place,
Suite A, Gainesville, Florida; 2010 NW 67th Place,
Gainesville, Florida; 10100 Rocket Boulevard, Orlando,
Florida; 10225 General Drive, Orlando, Florida; 1500 Carbon
Avenue, Baltimore, Maryland; and 3200 Sun Street, Baltimore,
Maryland, each as described in more detail on Schedule 4.19.
(b) Section 2.5 of the Loan Agreement is hereby amended
in its entirety to provide as follows.
"2.5. Term Loan. Subject to the terms and conditions of this
Agreement, each Lender, severally and not jointly, made a term
loan to borrower on the Closing Date in the sum equal to such
Lender's Commitment percentage of $7,000,000 (the "Original
Term Loan"), of which the outstanding principal balance as of
the Amendment No. 5 Effective Date is $2,583,351. On the Term
Loan Effective Date, each Lender, severally and not jointly,
shall make an additional term loan to Borrower in the sum
equal to such Lender's Commitment Percentage of such amount as
is necessary to cause the Term Loan (as hereinafter defined)
to equal $7,000,000 on the Amendment No. 5 Effective Date,
which additional term loan shall be consolidated with and into
the outstanding Original Term Loan to make an aggregate term
loan in the principal amount of $7,000,000 (as so
consolidated, the "Term Loan"). The Term Loan shall be, with
respect to principal, payable as follows, subject to
acceleration upon the occurrence of an Event of Default under
this Agreement or termination of this Agreement: equal monthly
payments each in an amount equal to $83,333.33 commencing on
the first day of the month following the month in which the
Term Loan Effective Date occurs and on the first day of each
month thereafter with the final payment of the remaining
unpaid principal balance due and payable on the last day of
the Term together with accrued interest, costs and expenses.
The Term Loan shall be evidenced by one or more secured
promissory notes ("Term Note") in substantially the form
attached hereto as Exhibit 2.5.
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(c) A new Section 8.3 is hereby added to the Loan
Agreement which provides as follows:
8.3. Conditions to Additional Term Loan. The agreement of
Lenders to make the additional term loan under Section 2.5 is
subject to satisfaction of the following conditions precedent:
(a) the conditions of Section 8.2 shall have been
satisfied;
(b) Agent shall have received in form and substance
satisfactory to Lenders executed Mortgages for the Additional
Mortgaged Property and modifications of the existing Mortgages
for all other Mortgaged Property;
(c) Agent shall have received current ALTA as-built
surveys for the Additional Mortgaged Property which shall be
in form and substance satisfactory to Lenders;
(d) Agent shall have received fully paid mortgagee title
insurance polices for all Mortgaged Property (or binding
commitments to issue title insurance policies, marked to
Agent's satisfaction to evidence the form of such polices to
be delivered with respect to the applicable Mortgage), in
standard ALTA form, issued by a title insurance company
satisfactory to Agent, each in an amount equal to not less
than the fair market value of the Real Property subject to the
Mortgage, as reflected on Schedule "A" attached hereto,
insuring the Mortgagee to create a valid Lien on the Real
Property with no exceptions that Agent shall not have approved
in writing and no survey exceptions;
(e) Agent shall have received environmental studies and
reports prepared by independent environmental engineering
firms with respect to the Additional Mortgaged Property in
form and substance satisfactory to Agent; and
(f) Agent shall have received in form and substance
satisfactory to Lenders an amendment to the Environmental
Indemnification Agreement which extends the coverage of such
agreement to the Additional Mortgaged Property.
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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) 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,
(iii) an executed Amended and Restated Term Note in substantially the form of
Exhibit 2.5 hereto, 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.
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.
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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.
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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
---------------------------------
Name: Alex M. Council
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CONSENTED AND AGREED TO:
SCHREIBER, YONLEY AND ASSOCIATES, INC.
PERMA-FIX TREATMENT SERVICES, INC.
PERMA-FIX OF FLORIDA, INC.
PERMA-FIX OF MEMPHIS, INC.
PERMA-FIX OF DAYTON, INC.
PERMA-FIX OF FT. LAUDERDALE, INC.
PERMA-FIX OF ORLANDO, INC.
PERMA-FIX OF SOUTH GEORGIA, INC.
PERMA-FIX OF MICHIGAN, INC.
DIVERSIFIED SCIENTIFIC SERVICES, INC.
INDUSTRIAL WASTE MANAGEMENT, INC.
EAST TENNESSEE MATERIALS & ENERGY CORPORATION
PERMA-FIX OF MARYLAND, INC.
PERMA-FIX OF PITTSBURGH, INC.
By: /s/ Richard T. Kelecy
---------------------------------
Name: Richard T. Kelecy
Title: Vice President
of each of the foregoing entities
STATE OF GEORGIA )
) ss.:
COUNTY OF FULTON )
On the 23rd day of June in the year 2005 before me, the undersigned,
personally appeared Richard T. Kelecy, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
persons upon behalf of which the individual acted, executed the instrument.
/s/ Shirley Wise
- ----------------------------------
Signature and Office of individual
taking acknowledgement
STATE OF GEORGIA )
) ss.:
COUNTY OF FULTON )
On the 23rd day of June in the year 2005 before me, the undersigned,
personally appeared Alex M. Council, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
persons upon behalf of which the individual acted, executed the instrument.
/s/ Shirley Wise
- ----------------------------------
Signature and Office of individual
taking acknowledgement
STATE OF GEORGIA )
) ss.:
COUNTY OF ________)
On the ____ day of June in the year 2005 before me, the undersigned,
personally appeared _________________, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
persons upon behalf of which the individual acted, executed the instrument.
- ----------------------------------
Signature and Office of individual
taking acknowledgement
EXHIBITS AND SCHEDULES TO AMENDMENT NO. 5 TO REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT
Exhibit 2.5 - Amended and Restated Term Note
Schedule A - Current Fair Market Value of all Mortgaged Property