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NINTH AMENDMENT AND MODIFICATION AGREEMENT
by and among
JOULE, INC.,
as the Borrower
and
JOULE MAINTENANCE CORPORATION,
JOULE TECHNICAL SERVICES, INC. and
JOULE TECHNICAL STAFFING, INC.,
collectively as the Corporate Guarantors
and
SUMMIT BANK,
as the Lender
Dated: As of May 10th, 1999
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NINTH AMENDMENT AND MODIFICATION AGREEMENT
THIS NINTH AMENDMENT AND MODIFICATION AGREEMENT (hereinafter as it may be
from time to time amended, modified, extended, renewed, refinanced and/or
supplemented referred to as this "Ninth Modification Agreement"), is made as of
the 10th day of May, 1999, by and among
JOULE, INC., a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, having its principal executive
office located at 0000 Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as the "Borrower"),
AND
JOULE MAINTENANCE CORPORATION, a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey, having
its principal executive office located at 0000 Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx
00000 (hereinafter referred to as "Joule Maintenance Corporation"),
AND
JOULE TECHNICAL SERVICES, INC., as successor-in-interest pursuant to the
merger of JOULE ENGINEERING CORP., JOULE TEMPORARIES CORPORATION, JOULE
MAINTENANCE OF MARYLAND, INC., JOULE TECHNICAL CORPORATION, JOULE MAINTENANCE OF
GIBBSTOWN, INC., JOULE MAINTENANCE OF NEW YORK, INC. AND TIGER MAINTENANCE, a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey, having its principal executive office located at
0000 Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Joule
Technical Services, Inc."),
AND
JOULE TECHNICAL STAFFING, INC., a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey, having
its principal executive office located at 0000 Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx
00000 (hereinafter referred to as "Joule Technical Staffing, Inc." and
hereinafter Joule Maintenance Corporation, Joule Technical Services, Inc. and
Joule Technical Staffing, Inc. shall be collectively be referred to as the
"Corporate Guarantors"),
AND
SUMMIT BANK, as successor-in-interest to UNITED JERSEY BANK, having an
office located at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, being a banking
institution duly organized and validly existing under the laws of the State of
New Jersey (hereinafter referred to as the "Lender").
1
W I T N E S S E T H:
WHEREAS, on or about February 20, 1991, the Borrower requested and the
Lender agreed to make a revolving credit loan in the aggregate principal amount
of up to Four Million and 00/100 ($4,000,000.00) Dollars for the purposes of (i)
refinancing certain of the Borrower's then existing indebtedness to First
Fidelity Bank, National Association and (ii) financing the general working
capital requirements of the Borrower (hereinafter as it may be from time to time
amended, modified, extended, renewed, refinanced and/or supplemented referred to
as the "Revolving Credit Loan"), all as more fully provided for in that certain
Loan and Security Agreement dated February 20, 1991, executed by and between the
Borrower and the Lender (hereinafter as it may be from time to time amended,
modified, extended, renewed, refinanced and/or supplemented referred to as the
"Loan Agreement"); and
WHEREAS, the Revolving Credit Loan is evidenced by a certain Revolving Note
dated February 20, 1991, executed by the Borrower, as the maker, and delivered
to the Lender, as the payee, in the original aggregate principal amount of the
Revolving Credit Loan (hereinafter as it may be from time to time amended,
modified, extended, renewed, refinanced and/or supplemented referred to as the
"Revolving Note"); and
WHEREAS, pursuant to the terms, conditions and provisions of the Loan
Agreement, the Borrower, Joule Maintenance Corporation, Joule Maintenance of
Gibbstown, Inc. (hereinafter referred to as "Joule Maintenance of Gibbstown,
Inc."), Joule Engineering Corp. (hereinafter referred to as "Joule Engineering
Corp."), Joule Engineering of California, Inc. (hereinafter referred to as
"Joule Engineering of California, Inc."), Joule Technical Corporation
(hereinafter referred to as "Joule Technical Corporation"), Joule Temporaries
Corporation (hereinafter referred to as "Joule Temporaries Corporation"), Joule
Maintenance of New York, Inc. (hereinafter referred to as "Joule Maintenance of
New York, Inc."), Joule Maintenance of Maryland, Inc. (hereinafter referred to
as "Joule Maintenance of Maryland, Inc."), Joule Engineering of Pennsylvania,
Inc. (hereinafter referred to as "Joule Engineering of Pennsylvania, Inc."),
Joule Constructors, Inc. (hereinafter referred to as "Joule Constructors,
Inc."), Joule Temporaries of Edison, Inc. (hereinafter referred to as "Joule
Temporaries of Edison, Inc."), Joule Temporaries of Parsippany, Inc.
(hereinafter referred to as "Joule Temporaries of Parsippany, Inc."), Joule
Operating Services, Inc. (hereinafter referred to as "Joule Operating Services,
Inc."), Tiger Maintenance, Inc. (hereinafter referred to as "Tiger Maintenance,
Inc.") and Joule Maintenance of Bayonne, Inc. (hereinafter referred to as "Joule
Maintenance of Bayonne, Inc." and hereinafter Joule Maintenance Corporation,
Joule Maintenance of Gibbstown, Inc., Joule Engineering Corp., Joule Engineering
of California, Inc., Joule Technical Corporation, Joule Temporaries Corporation,
Joule Maintenance of New York, Inc., Joule Maintenance of Maryland, Inc., Joule
Engineering of Pennsylvania, Inc., Joule Constructors, Inc., Joule Temporaries
of Edison, Inc., Joule Temporaries of Parsippany, Inc., Joule Operating
Services, Inc., Tiger Maintenance, Inc., and Joule Maintenance of Bayonne, Inc.
shall be collectively referred to as the "Original Corporate Guarantors")
granted to the Lender a valid first lien security interest in and to certain
Collateral, as more fully and accurately described in the Loan Agreement; and
2
WHEREAS, as of February 20, 1991, Xxxxxxx X. Xxxxxxxxxx, as the guarantor
(hereinafter referred to as the "Individual Guarantor"), executed and delivered
to the Lender, as the lender, a certain Individual Guaranty, pursuant to which
the Individual Guarantor agreed to guaranty the full, prompt and unconditional
payment of when due of any and all present and future obligations or liabilities
of any kind of the Borrower owing to the Lender, including, without limitation,
the repayment in full of the Revolving Credit Loan (hereinafter as it may be
from time to time amended, modified, extended, renewed, refinanced and/or
supplemented referred to as the "Individual Guaranty"); and
WHEREAS, as of February 20, 1991, each Original Corporate Guarantor, each
as a guarantor, executed and delivered to the Lender, as the lender, a separate
Corporate Guaranty, pursuant to which each Original Corporate Guarantor agreed
to guaranty the full, prompt and unconditional payment of when due of any and
all present and future obligations or liabilities of any kind of the Borrower
owing to the Lender, including, without limitation, the repayment in full of the
Revolving Credit Loan (hereinafter as each may be from time to time amended,
modified, extended, renewed, refinanced and/or supplemented collectively
referred to as the "Corporate Guaranty"); and
WHEREAS, on January 17, 1991, the Borrower, as the assignor, delivered to
the Lender, as the assignee, a certain Assignment of Life Insurance Policy as
Collateral with respect to that certain life insurance policy no. X00000000
issued by the Hartford Insurance Company upon the life of the Individual
Guarantor (hereinafter as it may be from time to time amended, modified,
extended, renewed, refinanced and/or supplemented referred to as the "Assignment
#1"), as collateral security for the Borrower's obligations under the Loan
Agreement; and
WHEREAS, on February 20, 1991, Joule Maintenance Corporation, as
successor-in-interest to Joule Maintenance Corp., as the assignor, executed and
delivered to the Lender, as the assignee, a certain Collateral Assignment of
Contract Proceeds with respect to that certain contract between Joule
Maintenance Corporation and the United States Government identified as Contract
No. DAHC21-85-C-0021 (hereinafter as it may be from time to time amended,
modified, extended, renewed, refinanced and/or supplemented referred to as the
"Assignment #2"), as collateral security for the repayment of the liabilities
and obligations of Joule Maintenance Corporation to the Lender under the Loan
Agreement and under the Corporate Guaranty; and
WHEREAS, on September 1, 1991, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Promissory Note for the purpose
of extending the term of the Revolving Credit Loan from the then current
maturity date of "September 1, 1991", to a new maturity date of "January 15,
1992" (hereinafter as it may be from time to time amended, modified, extended,
renewed, refinanced and/or supplemented referred to as the "Extension Agreement
#1"); and
3
WHEREAS, on January 15, 1992, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Master Advance Note for the
purpose of extending the term of the Revolving Credit Loan from the then current
maturity date of "January 15, 1992" to a new maturity date of "January 31, 1993"
(hereinafter as it may be from time to time amended, modified, extended,
renewed, refinanced and/or supplemented referred to as the "Extension Agreement
#2"); and
WHEREAS, on January 31, 1993, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Master Advance Note for the
purpose of extending the term of the Revolving Credit Loan from the then current
maturity date of "January 31, 1993" to a new maturity date of "January 31, 1994"
(hereinafter as it may be from time to time amended, modified, extended,
renewed, refinanced and/or supplemented referred to as the "Extension Agreement
#3"); and
WHEREAS, on January 31, 1994, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Master Advance Note for the
purpose of extending the term of the Revolving Credit Loan from the then current
maturity date of "January 31, 1994" to a new maturity date of "March 31, 1994"
(hereinafter as it may be from time to time amended, modified, extended,
renewed, refinanced and/or supplemented referred to as the "Extension Agreement
#4"); and
WHEREAS, on March 31, 1994, the Borrower, the Original Corporate
Guarantors, the Individual Guarantor and the Lender entered into a certain First
Modification and Extension Agreement for the purposes of (i) in Article I,
Section 1.1 of the Loan Agreement, extending the Termination Date of the
Revolving Note from the then current Termination Date of "March 31, 1994" to a
new Termination Date of "January 31, 1995"; (ii) amending and modifying the
Lender's address from the old address of "630 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000" to "4365 Xxxxx 0 Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000"; (iii)
providing for a mutual waiver of jury trial; and (iv) providing for semi-annual
audits of Collateral (hereinafter referred to as the "First Modification
Agreement"); and
WHEREAS, on March 31, 1994, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain First Allonge to $4,000,000.00
Revolving Note for the purposes of (i) extending the maturity date of the
Revolving Note from the then current maturity date of "March 31, 1994" to a new
maturity date of "January 31, 1995" and (ii) amending and modifying the Lender's
address from the old address of "630 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx
00000" to "4365 Xxxxx 0 Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000" (hereinafter
referred to as the "First Allonge"); and
WHEREAS, Joule Engineering of California, Inc., Joule Engineering of
Pennsylvania, Inc., Joule Constructors, Inc., Joule Temporaries of Edison, Inc.,
Joule Temporaries of Parsippany, Inc. and Joule Operating Services, Inc. each
had their respective charters revoked and are no longer doing business; and
4
WHEREAS, as of January 31, 1995, the Borrower, the Original Corporate
Guarantors, the Individual Guarantor and the Lender entered into a certain
Second Modification and Extension Agreement (hereinafter referred to as the
"Second Modification Agreement") for the purposes of (i) in Article I, Section
1.1 of the Loan Agreement, extending the Termination Date of the Revolving Note
from the then current Termination Date of "January 31, 1995" to a new
Termination Date of "January 31, 1996"; (ii) in Article II, Section 2.4 of the
Loan Agreement, decreasing the interest rate from the then existing interest
rate of "Base Rate plus one and one-half percent (1.5%) per annum" to a new
interest rate of "Base Rate plus one percent (1.0%) per annum"; (iii) amending
and modifying the Lender's audits of Collateral from semi-annual audits of
Collateral to annual audits of Collateral; and (iv) amending and modifying the
Lender's name from the then existing name of "United Jersey Bank/Central, N.A."
to the new name of "United Jersey Bank"; and
WHEREAS, as of January 31, 1995, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Second Allonge to $4,000,000.00
Revolving Note for the purposes of (i) extending the maturity date of the
Revolving Note from the then current maturity date "January 31, 1995" to a new
maturity date of "January 31, 1996"; (ii) decreasing the interest rate from the
then existing interest rate of "Base Rate plus one and one-half percent (1.5%)
per annum" to the new interest rate of "Base Rate plus one percent (1.0%) per
annum"; and (iii) amending and modifying the name of the Lender from the
Lender's existing name of "United Jersey Bank/Central, N.A." to the Lender's new
name of "United Jersey Bank" (hereinafter referred to as the "Second Allonge");
and
WHEREAS, on August 23, 1995, the Borrower, the Original Corporate
Guarantors and the Lender entered into a certain Third Modification and
Extension Agreement (hereinafter referred to as the "Third Modification
Agreement") for the purposes of (i) in Article I, Section 1.1 of the Loan
Agreement, increasing the original aggregate principal amount of the Revolving
Credit Loan from the then existing aggregate principal amount of "$4,000,000.00"
to the new increased aggregate principal amount of "$4,500,000.00"; (ii) in
Article I, Section 1.1 of the Loan Agreement, extending the Termination Date of
the Revolving Note from the then current Termination Date of "January 31, 1996"
to a new Termination Date of "May 31, 1996"; (iii) in Article II, Section 2.2 of
the Loan Agreement, providing for the issuance of Letters of Credit; (iv) in
Article V of the Loan Agreement, providing for a new section, Section 5.23,
which provides for the Borrower's Maximum Debt to Tangible Net Worth Ratio of
2.0 -to- 1.0; (v) in Article V of the Loan Agreement, providing for a new
section, Section 5.24, which provides for the Borrower's Maximum Debt Service
Coverage Ratio of 1.5 -to- 1.0; (vi) providing for a release of the Individual
Guarantor from the Individual Guaranty; and (vii) amending and modifying the
Lender's address from the then existing address of "4365 Xxxxx 0 Xxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000" to a new address of "Raritan Xxxxx XX, Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000"; and
5
WHEREAS, on August 23, 1995, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Third Allonge to $4,000,000.00
Revolving Note for the purposes of (i) increasing the original aggregate
principal amount of the Revolving Credit Loan from the then existing aggregate
principal amount of "$4,000,000.00" to a new increased aggregate principal
amount of "4,500,000.00"; (ii) extending the maturity date of the Revolving Note
from the then current maturity date of "January 31, 1996" to a new maturity date
of "May 31, 1996"; and (iii) amending and modifying the Lender's address from
the then existing address of "4365 Xxxxx 0 Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000"
to a new address of "Raritan Xxxxx XX, Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000" (hereinafter referred to as the "Third Allonge"); and
WHEREAS, Joule Maintenance Corp. and Joule Maintenance of Bayonne, Inc.
were merged and consolidated and Joule Maintenance Corporation is the
successor-in-interest to both companies; and
WHEREAS, on February 6, 1996, the Borrower, the Original Corporate
Guarantors and the Lender entered into a certain Fourth Modification and
Extension Agreement (hereinafter referred to as the "Fourth Modification
Agreement") for the purposes of (i) in Article I, Section 1.1 of the Loan
Agreement, providing for the definition of "Borrowing"; (ii) in Article I,
Section 1.1 of the Loan Agreement, providing for the definition of "Eurodollar
Affiliate"; (iii) in Article I, Section 1.1 of the Loan Agreement, providing for
the definition of "Eurodollar Interest Period"; (iv) in Article I, Section 1.1
of the Loan Agreement, providing for the definition of "Eurodollar Interest
Payment Date"; (v) in Article I, Section 1.1 of the Loan Agreement, providing
for the definition of "Eurodollar Interest Rate Determination Date"; (vi) in
Article I, Section 1.1 of the Loan Agreement, providing for the definition of
"Eurodollar Portion"; (vii) in Article I, Section 1.1 of the Loan Agreement,
providing for the definition of "Eurodollar Rate"; (viii) in Article I, Section
1.1 of the Loan Agreement, providing of the definition of "Eurodollar Rate
Loans"; (ix) in Article I, Section 1.1 of the Loan Agreement, providing for the
definition of "Eurodollar Rate Taxes"; (x) in Article I, Section 1.1 of the Loan
Agreement, providing for the definition of "Eurodollar Reserve Percentage"; (xi)
in Article I, Section 1.1 of the Loan Agreement, providing for the definition of
"Funding Segment"; (xii) in Article II, Section 2.4 of the Loan Agreement,
deleting the then existing Section 2.4 and inserting a new Section 2.4 which
provides that the Borrower may select an interest rate from the interest rate
options between either (1) the Base Rate option or (2) the Eurodollar Rate
Option; (xiii) in Article II of the Loan Agreement, providing for a new section,
Section 2.11, which provides for the Borrower's payment of an unused commitment
fee; and (xiv) in Article II of the Loan Agreement, providing for a new section,
Section 2.12, which provides for the special provisions governing Eurodollar
Rate Loans; and
WHEREAS, on February 6, 1996, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Fourth Allonge to $4,000,000.00
Revolving Note for the purpose of deleting the then existing Paragraph 2 of the
Revolving Note and inserting a new Paragraph 2 which provides that the interest
rate to be charged on the outstanding aggregate principal amount of the Loan
shall be set forth in Article II, Section 2.4 of the Loan Agreement (hereinafter
referred to as the "Fourth Allonge"); and
6
WHEREAS, as of May 31, 1996, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Fifth Allonge to $4,000,000.00
Revolving Note for the purpose of extending the maturity date of the Revolving
Note from the then existing maturity date of "May 31, 1996" to a new maturity
date of "May 31, 1997" (hereinafter referred to as the "Fifth Allonge"); and
WHEREAS, as of May 31, 1996, the Borrower, the Original Corporate
Guarantors and the Lender entered into a certain Fifth Modification and
Extension Agreement (hereinafter referred to as the "Fifth Modification
Agreement") for the purpose of, in Article I, Section 1.1 of the Loan Agreement,
extending the Termination Date of the Revolving Note from the then existing
Termination Date of "May 31,1996" to a new Termination Date of "May 31, 1997";
and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Engineering Corp. was merged with Joule Technical Services, Inc.; and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Temporaries Corporation was merged with Joule Technical Services, Inc.; and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Maintenance of Maryland, Inc. was merged with Joule Technical Services, Inc.;
and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Technical Corporation was merged with Joule Technical Services, Inc.; and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Maintenance of Gibbstown, Inc. was merged with Joule Technical Services, Inc.;
and
WHEREAS, pursuant to a certain Certificate of Merger from the Office of the
Secretary of State of the State of New Jersey dated February 3, 1997, Joule
Maintenance of New York, Inc. was merged with Joule Technical Services, Inc.;
and
WHEREAS, Tiger Maintenance is no longer doing business and its charter has
been revoked; and
7
WHEREAS, as of May 31, 1997, the Borrower, the Corporate Guarantors and the
Lender entered into a certain Sixth Modification and Extension Agreement
(hereinafter referred to as the "Sixth Modification Agreement"), for the
purposes of (i) in Article I, Section 1.1 of the Loan Agreement, deleting the
then existing definition of "Corporate Guarantors" and inserting a new
definition of "Corporate Guarantors" in its place and stead; (ii) in Article I,
Section 1.1 of the Loan Agreement, extending the Termination Date of the
Revolving Note from the then existing Termination Date of "May 31, 1997" to a
new Termination Date of "May 31,1998"; (iii) in Article V, Section 5.8(d) of the
Loan Agreement providing for the consolidated balance sheet of the Obligors;
(iv) in the Loan Agreement, amending and modifying the Lender's address from the
then existing address of "Raritan Xxxxx XX, Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx 00000" to a new address of "210 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000"; (v) in the "Loan Documents" (as such term is hereinafter defined),
providing that any and all references to the "Corporate Guarantors" shall be
deemed to refer to the Corporate Guarantors; (vi) in the Loan Documents,
deleting any and all references to the then existing maturity date of "May 31,
1997" and inserting a new maturity date of "May 31, 1998" in their place and
stead and (vii) in the Loan Documents, amending and modifying the Lender's
address from the then existing address of "Raritan Xxxxx XX, Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxx 00000" to a new address of "210 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000"; and
WHEREAS, as of May 31, 1997, the Borrower as the maker, executed and
delivered to the Lender, as the payee, a certain Sixth Allonge to $4,000,000.00
Revolving Note for the purposes of (i) extending the maturity date of the
Revolving Note from the then existing maturity date of "May 31, 1997" to a new
maturity date of "May 31, 1998" and (ii) amending and modifying the Lender's
address from the then existing address of "Raritan Xxxxx XX, Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxx 00000" to a new address of "210 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000" (hereinafter referred to as the "Sixth Allonge"); and
WHEREAS, as of May 31, 1998, the Borrower, as the maker, has executed and
delivered to the Lender, as the payee, a certain Seventh Allonge to
$4,000,000.00 Revolving Note Dated February 21, 1991 for the purposes of (i)
extending the maturity date of the Revolving Note from the then existing
maturity date of "May 31, 1998" to a new maturity date of "May 31, 1999"
(hereinafter referred to as the "Seventh Allonge"); and
WHEREAS, as of May 31, 1998, the Borrower, the Corporate Guarantors and the
Lender entered into a certain Seventh Modification and Extension Agreement
(hereinafter referred to as the "Seventh Modification Agreement") for the
purposes of (i) in Article I, Section 1.1 of the Loan Agreement, amending and
modifying the definition of "Loan Documents" to provide for the Extension
Agreement #1, the Extension Agreement #2, the Extension Agreement #3, the
Extension Agreement #4, the First Modification Agreement, the First Allonge, the
Second Modification, the Second Allonge, the Third Modification Agreement, the
Third Allonge, the Fourth Modification Agreement, the Fourth Allonge, the Fifth
Modification Agreement, the Fifth Allonge, the Sixth Modification Agreement, the
Sixth Allonge, the Seventh Allonge and the Seventh Modification Agreement; (ii)
in Article I, Section 1.1 of the Loan Agreement, extending the Termination Date
of the Revolving Note from the then existing Termination Date of "May 31, 1998"
to a new Termination Date of "May 31, 1999"; (iii) in
8
Article I, Section 1.1 of the Loan Agreement, providing for the new definitions
of: "Extension Agreement #1", "Extension Agreement #2", "Extension Agreement
#3", "Extension Agreement #4", "First Modification Agreement", "First Allonge",
"Second Modification", "Second Allonge", "Third Modification Agreement", "Third
Allonge", "Fourth Modification Agreement", "Fourth Allonge", "Fifth Modification
Agreement", "Fifth Allonge", "Sixth Modification Agreement", "Sixth Allonge",
"Seventh Allonge" and "Seventh Modification Agreement"; (iv) in Article II,
Section 2.4 of the Loan Agreement, amending and modifying the interest rate
options from the then existing interest rate options of (a) Base Rate or (b) two
and one-quarter percent (2.25%) over the Eurodollar Rate to the new interest
rate options of (1) Base Rate minus one quarter percent (0.25%) or (2) one and
one-half percent (1.5%) over the Eurodollar Rate; (v) in Article II, Section
2.11 of the Loan Agreement, deleting the unused commitment fee; (vi) in the Loan
Documents, deleting any and all references to the then existing maturity date of
"May 31, 1998" and inserting a new maturity date of "May 31, 1999" in their
place and stead; (vii) in Article V of the Loan Agreement, providing for a new
Section 5.23 with respect to the year 2000; (viii) in the Loan Documents,
providing that any and all references to the "Revolving Note" shall be deemed to
refer to the Revolving Note as amended and modified up through and including the
Seventh Allonge; and (ix) in the Loan Documents, providing that any and all
references to the "Loan Agreement" shall be deemed to refer to the Loan
Agreement as amended and modified up through and including the Seventh
Modification Agreement; and
WHEREAS, on February 5, 1999, the Borrower, as the maker, executed and
delivered to the Lender, as the payee, a certain Eighth Allonge to $4,000,000.00
Revolving Note Dated February 21, 1991 for the purposes of (i) amending and
modifying the aggregate principal amount of the Revolving Credit Loan from the
then existing aggregate principal amount of "$4,500,000.00" to a new, increased
aggregate principal amount of "$6,000,000.00"; (ii) extending the maturity date
of the Revolving Note from the then existing maturity date of "May 31, 1999" to
a new maturity date of "May 31, 2000"; and (iii) in Paragraph 5 of the Revolving
Note, deleting the then existing Paragraph 5 and inserting a new Paragraph 5 in
its place and stead (hereinafter referred to as the "Eighth Allonge"); and
WHEREAS, on February 5, 1999, the Borrower, the Corporate Guarantors and
the Lender entered into a certain Eighth Modification and Extension Agreement
(hereinafter referred to as the "Eighth Modification Agreement") for the
purposes of (i) in Article I, Section 1.1 of the Loan Agreement, increasing the
Commitment amount of the Revolving Credit Loan from the then existing Commitment
amount of "$4,500,000.00" to a new, increased Commitment amount of
"$6,000,000.00"; (ii) in Article I, Section 1.1 of the Loan Agreement, amending
and modifying the definition of "Loan Documents" to provide for the Eighth
Allonge and the Eighth Modification Agreement; (iii) in Article I, Section 1.1
of the Loan Agreement, extending the Termination Date of the Revolving Note from
the then existing Termination Date of "May 31, 1999" to a new Termination Date
of "May 31, 2000"; (iv) in Article I, Section 1.1 of the Loan Agreement,
providing for the new definitions of "Eighth Allonge" and "Eighth Modification
Agreement"; (v) in the Loan Documents, deleting any and all references to the
then existing Termination Date / maturity date of "May 31, 1999" and inserting a
new Termination Date / maturity date of "May 31, 2000" in their place and stead;
(vi) in the Loan Documents, providing that any and all references to the
"Revolving Note" shall be deemed to refer to the Revolving
9
Note as amended and modified up through and including the Eighth Allonge; and
(vii) in the Loan Documents, providing that any and all references to the "Loan
Agreement" shall be deemed to refer to the Loan Agreement as amended and
modified up through and including the Eighth Modification Agreement; and
WHEREAS, as of even date herewith, the Borrower, as the maker, has executed
and delivered to the Lender, as the payee, a certain Ninth Allonge to
$4,000,000.00 Revolving Note Dated February 21, 1991 for the purposes of
amending and modifying the aggregate principal amount of the Revolving Credit
Loan from the existing aggregate principal amount of "$6,000,000.00" to a new,
increased aggregate principal amount of "$8,500,000.00" (hereinafter referred to
as the "Ninth Allonge"); and
WHEREAS, as of even date herewith, the Borrower, the Corporate Guarantors
and the Lender have agreed to enter into this Ninth Modification Agreement for
the purposes of (i) in Article I, Section 1.1 of the Loan Agreement, increasing
the Commitment amount of the Revolving Credit Loan from the existing Commitment
amount of "$6,000,000.00" to a new, increased Commitment amount of
"$8,500,000.00"; (ii) in Article I, Section 1.1 of the Loan Agreement, amending
and modifying the definition of "Loan Documents" to provide for the Ninth
Allonge and this Ninth Modification Agreement; (iii) in Article I, Section 1.1
of the Loan Agreement, providing for the new definitions of "Ninth Allonge" and
"Ninth Modification Agreement"; (iv) in the Loan Documents, providing that any
and all references to the "Revolving Note" shall be deemed to refer to the
Revolving Note as amended and modified up through and including the Ninth
Allonge; and (v) in the Loan Documents, providing that any and all references to
the "Loan Agreement" shall be deemed to refer to the Loan Agreement as amended
and modified up through and including this Ninth Modification Agreement; and
WHEREAS, all words and terms not defined here shall have the meaning as
contained in the Loan Agreement, as amended and modified up through and
including the Eighth Modification Agreement; and
WHEREAS, the aforesaid Revolving Note, the Loan Agreement, the Corporate
Guaranty, the Assignment #1, the Assignment #2, the Extension Agreement #1, the
Extension Agreement #2, the Extension Agreement #3, the Extension Agreement #4,
the First Allonge, the First Modification Agreement, the Second Allonge, the
Second Modification Agreement, the Third Allonge, the Third Modification
Agreement, the Fourth Allonge, the Fourth Modification Agreement, the Fifth
Allonge, the Fifth Modification Agreement, the Sixth Allonge, the Sixth
Modification Agreement, the Seventh Allonge, the Seventh Modification Agreement,
the Eighth Allonge, the Eighth Modification Agreement, the Ninth Allonge, this
Ninth Modification Agreement and any and all of the documents, agreements,
certificates and instruments executed in connection herewith shall be
hereinafter collectively referred to as the "Loan Documents"; and
10
NOW, THEREFORE, in consideration of these premises and the mutual
representations, covenants and agreements of the Borrower, the Corporate
Guarantors and the Lender, each party binding itself and its successors and
assigns does hereby promise, covenant and agree as follows:
1. There is, as of April 28,1999, presently due and owing on the Revolving
Note the principal sum $4,300,000.15, without defense, offset or counterclaim,
all of which are hereby expressly waived by the Borrower and the Corporate
Guarantors as of the date hereof. The foregoing principal balance is allocated
as follows: (a) $4,300,000.15 for outstanding Advances of direct loans under the
Note and (b) $0 for Letters of Credit.
2. By execution hereof, the Borrower and the Corporate Guarantors
acknowledge and agree that the Lender's consent to enter into this Ninth
Modification Agreement is contingent upon the following:
(a) the payment by the Borrower of all costs, expenses and fees of the
transaction contemplated by this Ninth Modification Agreement, including,
but not limited to (i) all search costs and expenses, (ii) all fees and
expenses of the Lender's attorneys and (iii) all accrued and unpaid
interest up to and including the date hereof; and
(b) the continued delivery by the Borrower to the Lender of copies of
all valid insurance certificates with respect to worker's compensation,
general liability, umbrella liability and other insurance required pursuant
to the Loan Agreement, as previously amended and modified, all of which
name the Lender as lender and/or loss payee with respect to Accounts
Receivable, Inventory, Equipment and other corporate assets.
3. To the best of the Borrower's and each Corporate Guarantor's knowledge,
the Borrower and each Corporate Guarantor hereby represent that the lien on the
Collateral granted to the Lender under the Loan Agreement, as amended and
modified up through and including this Ninth Modification Agreement, continue to
be valid and enforceable first lien on the Collateral.
4. The Loan Agreement, as previously amended and modified, is hereby
further amended and modified, as follows:
(a) Article I, Section 1.1 shall be amended and modified as follows:
(i) Subsection (m) shall be amended and modified by deleting the
existing Commitment amount of "Six Million and 00/100 ($6,000,000.00)
Dollars" and inserting a new increased Commitment amount of "Eight
Million Five Hundred Thousand and 00/100 ($8,500,000.00) Dollars" in
its place and stead.
(ii) Subsection (cc) shall be amended and modified by inserting a
reference to "Ninth Allonge" and "Ninth Modification Agreement".
11
(iii) The following new definitions shall be inserted:
""Ninth Allonge" shall mean that certain Ninth Allonge to
$4,000,000.00 Revolving Note Dated February 20, 1991 dated as of
May 10th, 1999 pursuant to which the Borrower and the Lender
agreed to further amend and modify the terms of the Note for the
purposes of amending and modifying the aggregate principal amount
of the loan from the then existing aggregate principal amount of
"$6,000,000.00" to a new, increased aggregate principal amount of
"$8,500,000.00"."
""Ninth Modification Agreement" shall mean that certain Ninth
Amendment and Modification Agreement dated as of May 10th, 1999,
pursuant to which the Borrower, the Corporate Guarantors and the
Lender agreed to further amend and modify the terms of this
Agreement and the other Loan Documents, all as previously amended
and modified for the purposes of (i) in Article I, Section 1.1 of
this Agreement, increasing the Commitment amount from the then
existing Commitment amount of "$6,000,000.00" to a new, increased
Commitment amount of "$8,500,000.00"; (ii) in Article I, Section
1.1 of this Agreement, amending and modifying the definition of
"Loan Documents" to provide for the Ninth Allonge and the Ninth
Modification Agreement; (iii) in Article I, Section 1.1 of this
Agreement, providing for the new definitions of "Ninth Allonge"
and "Ninth Modification Agreement"; (iv) in the Loan Documents,
providing that any and all references to the "Note" shall be
deemed to refer to the Note as amended and modified up through
and including the Ninth Allonge; and (v) in the Loan Documents,
providing that any and all references to the "Loan Agreement"
shall be deemed to refer to the Loan Agreement as amended and
modified up through and including the Ninth Modification
Agreement."
5. The Loan Documents, as previously amended and modified, are hereby
further amended and modified as follows:
(a) Any and all references to the existing Commitment amount of "Six
Million and 00/100 ($6,000,000.00) Dollars" shall be deleted and the new
increased Commitment amount of "Eight Million Five Hundred Thousand and
00/100 ($8,500,000.00) Dollars" shall be inserted in their place and stead.
(b) Any and all references to the "Revolving Note" shall be deemed to
refer to the Revolving Note as amended and modified up through and
including the Ninth Allonge.
(c) Any and all references to the "Loan Agreement" shall be deemed to
refer to the Loan Agreement as amended and modified up through and
including this Ninth Modification Agreement.
12
6. To the best of the Borrower's and each of the Corporate Guarantors'
knowledge, all representations and warranties contained in the Loan Documents,
as amended and modified through this Ninth Modification Agreement are true,
accurate and complete as of the date hereof and shall be deemed continuing
representations and warranties so long as the Revolving Credit Loan shall remain
outstanding.
7. The Borrower and the Corporate Guarantors expressly confirm and affirm
that the Corporate Guaranty remains in full force and effect as a continuing
guaranty of the full, prompt and unconditional payment of all present and future
obligations and/or liabilities of any kind of the Borrower due and owing to the
Lender, including, without limitation, the repayment in full of the Revolving
Credit Loan.
8. All other terms and conditions of the Loan Documents, as amended and
modified through this Ninth Modification Agreement, remain in full force and
effect, except as amended and modified herein, and the parties hereto hereby
expressly confirm and reaffirm all of their respective liabilities, obligations,
duties and responsibilities under and pursuant to said Loan Documents,
including, without limitation, the obligations of the Corporate Guarantors under
the Corporate Guaranty, as amended and modified by this Ninth Modification
Agreement.
9. It is the intention of the parties hereto that this Ninth Modification
Agreement shall not constitute a novation and shall in no way adversely affect
or impair the lien priority of the Loan Documents. In the event this Ninth
Modification Agreement, or any portion hereof in any of the instruments executed
in connection herewith shall be construed or shall operate to affect the lien
priority of the Loan Documents, then to the extent such instrument creates a
charge upon the Loan Documents in excess of that contemplated and permitted
thereby, and to the extent third parties acquiring an interest in the Loan
Documents between the time of recording of the Loan Documents and the recording
of this Ninth Modification Agreement are prejudiced hereby, if any, this Ninth
Modification Agreement shall be void and of no force and effect; provided,
however, that notwithstanding the foregoing, the parties hereto, as between
themselves, shall be bound by all terms and conditions hereof until all
indebtedness evidenced by the Revolving Note shall have been paid in full and
the Revolving Credit Loan terminated.
10. The Borrower and the Corporate Guarantors do hereby:
(a) ratify, confirm and acknowledge that, as amended and modified
hereby, the Loan Documents continue to be valid, binding and in full force
and effect;
(b) covenant and agree to perform all of their respective obligations
contained in the Loan Documents, as amended and modified hereby;
(c) represent and warrant that, after giving effect to the
transactions contemplated by this Ninth Modification Agreement, no "Event
of Default" (as such term is defined in the Loan Agreement), exists or will
exist upon the delivery of notice, passage of time, or both;
13
(d) acknowledge and agree that nothing contained herein and no actions
taken pursuant to the terms hereof are intended to constitute a novation of
the Revolving Note or of the Revolving Credit Loan, or any waiver of any of
the other Loan Documents, and do not constitute a release, termination or
waiver of any of the liens, security interests or rights or remedies
granted to the Lender under the Loan Documents, all of which liens,
security interests, rights or remedies are hereby ratified, confirmed and
continued as security for the Revolving Credit Loan, as amended and
modified hereby; and
(e) acknowledge and agree that the failure by the Borrower and/or the
Corporate Guarantors to comply with or perform any of their respective
covenants, agreements or obligations contained herein shall constitute an
Event of Default under the Loan Agreement.
14
IN WITNESS WHEREOF, the parties have caused this Ninth Modification
Agreement to be duly executed, sealed and attested and/or witnessed, as
appropriated, and delivered, all as of the day and year first above written.
[SEAL] JOULE, INC., a Delaware
ATTEST: corporation
By:
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary Chairman
[SEAL] JOULE MAINTENANCE
ATTEST: CORPORATION, a New Jersey
corporation
By:
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary Chairman
[SEAL] JOULE TECHNICAL
ATTEST: SERVICES, INC., a New Jersey
corporation
By:
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary Chairman
[SEAL] JOULE TECHNICAL
ATTEST: STAFFING, INC., a New Jersey
corporation
By:
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary Chairman
SUMMIT BANK
By:
-----------------------------
Xxxx X. Xxxxxx
Vice President
15
STATE OF NEW JERSEY :
: ss.
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this ____ day of ________, 1999, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgments for use in the State of New Jersey, personally appeared Xxxx X.
Xxxxxx, who, I am satisfied is the person who executed the within Instrument, as
the Vice President of Summit Bank, the corporation named therein, and I having
first made know to her the contents thereof, she did thereupon acknowledge that
the said Instrument made by the said corporation and sealed with its corporate
seal and delivered by her as such officer, is the voluntary act and deed of said
corporation, made by virtue of authority from its Board of Directors, for the
uses and purposes therein expressed.
Notary Public of the State of New Jersey
STATE OF NEW JERSEY :
: ss.
COUNTY OF XXXXXX :
BE IT REMEMBERED, that on this ____ day of _________, 1999, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgments for use in the State of New Jersey, personally appeared Xxxxxxx
X. Xxxxxxxxxx, who, I am satisfied is the person who executed the within
Instrument, as the Chairman of Joule, Inc., Joule Maintenance Corporation, Joule
Technical Services, Inc. and Joule Technical Staffing, Inc., the corporations
named therein, and I having first made know to him the contents thereof, he did
thereupon acknowledge that the said Instrument made by said corporations and
sealed with their corporate seals and delivered by him as such officer, is the
voluntary act and deed of said corporations, made by virtue of authority from
their respective Boards of Directors, for the uses and purposes therein
expressed.
Notary Public of the State of New Jersey
