AMENDMENT NO. 6 TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 6
TO
THIS
AMENDMENT NO. 6 dated as of June
12,
2007 (this
"Amendment"),
relating to the Loan Agreement referenced below, is by and among PERMA-FIX
ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the "Borrower"),
the
Lenders from time to time parties thereto, 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 Loan Agreement (defined below).
W
I T N E
S S E T H
WHEREAS,
a credit facility has been previously extended to the Borrower pursuant to
the
terms of that certain Revolving Credit, Term Loan and Security Agreement dated
as of December 22, 2000, as amended (as such may be amended, restated,
supplemented and/or modified from time to time, the "Loan
Agreement")
among
the Borrower, the Lenders identified therein, and the Agent;
WHEREAS,
the Borrower has requested that certain provisions of the Loan Agreement be
amended; and
WHEREAS,
the parties have agreed to amend the Loan Agreement as 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
Loan Agreement is amended as set forth below:
(a) New
definitions of “Acquisition”,
“Merger
Agreement”,
“Nuvotec”,
“Overadvance
Amount”
and
“PEcoS”
are
added to Section 1.2 in correct alphabetical order:
“
“Acquisition”
shall
mean the acquisition of Nuvotec and PEcoS by Borrower pursuant to the
Acquisition Agreement and the subsequent merger of Nuvotec into PESI Transitory,
Inc., a Washington corporation whose sole equity owner is Borrower, with Nuvotec
being the survivor pursuant to the terms of the Merger Agreement.
“Merger
Agreement”
shall
mean that certain Agreement and Plan of Merger dated as of 4/27, 2007 by and
among Nuvotec, PEcoS, Borrower and PESI Transitory, Inc.
“Nuvotec”
shall
mean Nuvotec USA, Inc., a Washington corporation. Subsequent to the
effectiveness of the Merger Agreement Nuvotec will change its name to Perma-Fix
Northwest, Inc.
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“Overadvance
Amount”
shall mean $2,000,000, less $83,300 on the fifteenth (15th)
day of each month commencing with July 15, 2007 but reducing to $0
upon
the end of the Term.
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“PEcoS”
shall
mean Pacific Ecosolutions, Inc., a Washington corporation.”
(b) The
definition of “Guarantor”
is
Section
1.2
is
amended to read as follows:
“
“Guarantor”
shall
mean each Subsidiary of Borrower (other than Nuvotec) and any other Person
who
may hereafter guarantee payment or performance of the whole or any part of
the
Obligations and “Guarantors”
mean
collectively all such Persons.”
(c) Section
2.2(a)(y) is amended to read as follows:
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“(y)
an amount up to the sum (without duplication) of (i) up to 85% of
Commercial Receivables aged 60 days or less from invoice date, (ii)
up to
85% of Commercial Broker Receivables aged up to 90 days from the
due date,
up to 120 days from invoice date, (iii) up to 85% of Acceptable Government
Agency Receivables aged 60 days or less from the due date, up to
150 days
from invoice date, (iv) up to 50% of Acceptable Unbilled Amounts
aged 60
days (the foregoing applicable percentages being referred to as the
“Advance Rates”) subject, in each case, to clause (b) of the definition of
“Eligible Receivables”, (v) Amortizing Availability and (vi) Overadvance
Amount minus
(vii) such reserves as Agent may reasonably deem proper and necessary
from
time to time. The amount determined pursuant to this Section
2.2(a)(y)
at
any time and from time to time shall be referred to as the “Formula
Amount.” For purposes of this Section
2.2,
reserves shall include all L/C Obligations from time to time
outstanding.”
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(d) Section
7.1 is amended to read as follows:
“7.1 Merger,
Consolidation Acquisition and Sale of Assets.
(a) Enter
into any merger, consolidation or other reorganization with or into any other
Person or acquire all or a substantial portion of the assets or stock of any
Person or permit any other Person to consolidate with or merge with it, except
with the express written consent of Agent and (i) among Credit Parties, (ii)
as
may be permitted under Section 7.4, provided, however, that any such merger,
consolidation, reorganization, acquisition of stock or assets hall be (A) for
a
person in the same line of business; (B) subsequent to delivering pro-forma
and
projected compliance for the
current
and immediately preceding fiscal quarter in compliance with the terms of this
agreement based upon financial statements prepared by an independent auditor
reasonably acceptable to Agent and in form and substance satisfactory to Agent;
(C) at such time $2,500,000 in excess availability exists under the Revolving
Credit Limited in compliance with the terms of this Agreement after giving
effect to any such transaction at Closing and after payment of any and all
fees
related thereto; and (D) that any cash applied therefore shall be subtracted
from the Investment Basket, or (iii) pursuant to the Acquisition
Agreement.”
(e)
Section
7.3 is amended to read as follows:
“7.3 Guarantees.
Become
liable upon the obligations of any Person by assumption, endorsement or guaranty
thereof or otherwise (other than to Lenders except (a) as disclosed on Schedule
7.3; (b) the endorsement of checks in the ordinary course of business; (c)
guarantees of any Credit Party for another Credit Party; and (d) the guaranty
in
favor of KeyBank National Association for the obligations of Nuvotec (Perma-Fix
Northwest, Inc.) to KeyBank National Association.”
2. Amendment
Fee.
The
Borrower agrees to pay the Agent an amendment fee of $20,000.
3.
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 Loan 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
Loan Agreement.
4. 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 Loan Agreement
and the Other Documents.
5.
Loan
Agreement.
Except
as expressly modified hereby, all of the terms and provisions of the Loan
Agreement remain in full force and effect.
6. 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.
7. 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.
8. 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.
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BORROWER:
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PERMA-FIX
ENVIRONMENTAL SERVICES, INC.,
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a
Delaware corporation
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By:
/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
Vice
President
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LENDERS:
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PNC
BANK, NATIONAL ASSOCIATION,
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in
its capacity as Agent and as Lender
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By:
/s/Alex
M
Council
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Name:
Xxxx X. Council
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Title:
Vice President
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CONSENTED
AND AGREED TO:
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XXXXXXXXX,
XXXXXX AND ASSOCIATES, INC.
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PERMA-FIX
TREATMENT SERVICES, INC.
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PERMA-FIX
OF FLORIDA, INC.
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PERMA-FIX
OF MEMPHIS, INC.
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PERMA-FIX
OF DAYTON, INC.
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PERMA-FIX
OF FT. LAUDERDALE, INC.
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PERMA-FIX
OF ORLANDO, INC.
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PERMA-FIX
OF SOUTH GEORGIA, INC.
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PERMA-FIX
OF MICHIGAN, INC.
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DIVERSIFIED
SCIENTIFIC SERVICES, INC.
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INDUSTRIAL
WASTE MANAGEMENT, INC.
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EAST
TENNESSEE MATERIALS & ENERGY CORPORATION
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PERMA-FIX
OF MARYLAND, INC.
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PERMA-FIX
OF PITTSBURGH, INC.
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By:
/s/Xxxxxx
Xxxxxxxx
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Name:
Xxxxx
Xxxxxxxx
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Title:
Vice
President
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of
each of the foregoing
entities
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