MODIFICATION TO
FOURTH AMENDMENT
AND MODIFICATION TO LOAN AGREEMENT
THIS MODIFICATION TO THE FOURTH AMENDMENT AND MODIFICATION TO LOAN
AGREEMENT (the "Modification") is made effective the 22nd day of December, 2000,
among THE JPM COMPANY, a Pennsylvania corporation ("Borrower"), FIRST UNION
NATIONAL BANK (successor by merger to CoreStates Bank, N.A.) in its capacity as
agent ("Agent"), and the Lenders (hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower and the Agent have heretofore entered into that
certain Loan Agreement dated April 9, 1998 (the "Agreement") with the financial
institutions signatory thereto from time to time (the "Lenders"), as amended by
that certain Amendment and Modification to Loan Agreement dated December 17,
1998 (the "First Amendment"), as further amended by that certain Waiver and
Second Amendment and Modification to Loan Agreement dated May 15, 2000 (the
"Second Amendment"), as further amended by that certain Waiver and Third
Amendment and Modification to Loan Agreement dated September 16, 2000 (the
"Third Amendment") and as further amended by that certain Fourth Amendment and
Modification to Loan Agreement dated December 22, 2000 (the "Fourth Amendment")
(the Agreement, as amended by the First Amendment, the Second Amendment, the
Third Amendment and the Fourth Amendment, hereinafter referred to as the "Loan
Agreement"; capitalized text not otherwise defined herein shall be ascribed the
meanings set forth in the Loan Agreement); and
WHEREAS, the Borrower has requested that the Lenders make certain
modifications to the Fourth Amendment as more specifically set forth herein; and
WHEREAS, the Lenders are willing to make certain modifications to the
Fourth Amendment but only on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. MODIFICATIONS. Each of the following amendments contained in the Fourth
Amendment are hereby modified as follows:
(a) Section 8.1. Section 8.1 of the Loan Agreement is hereby amended by
deleting the same in its entirety and inserting in lieu thereof the following:
"8.1 Net Income. Borrower shall not permit the Net Income of Borrower and
its Subsidiaries for any monthly reporting period to have a negative variance of
more than $100,000 below the corresponding Net Income figure shown on the most
recent Projections for such period; provided, however, that any such negative
variance exceeding the limit set forth above shall not constitute a breach of
this Section 8.1 if: (a) the sum of (i) the negative variance for any such month
and (ii) the negative variance for the preceding month is less than $200,000 for
any such two-month period; or (b) the sum of (i) the negative variance for any
such month and (ii) the negative variance for the subsequent month is less than
$200,000 for any such two-month period.
For purposes of this calculation, the measurement period shall commence
January 1, 2001; provided, however, that in the event of a negative variance for
January, 2001, the projection for December, 2000 shall be used for purposes of
determining the calculation set forth in clause (a) above.
Further, for purposes of this calculation, non-cash accounting charges that
are based solely on GAAP accounting pronouncements or interpretations, the
application of which are unknown to the Borrower or the Agent at the time of the
Effective Date, shall be excluded from the determination of Net Income unless
the Projections provided for such non-cash accounting charges."
(b) Section 8.2. Section 8.2 of the Loan Agreement is hereby amended by
deleting the same in its entirety and inserting in lieu thereof the following:
"8.2 Cumulative EBITDA. Commencing with the period ending March 31, 2001,
Borrower shall not permit EBITDA of the Borrower and its Subsidiaries for any
consecutive three month period ending on the last day of each calendar month to
be less than ninety percent (90%) of the corresponding EBITDA figure shown on
the Projections for such period.
For purposes of this calculation, non-cash accounting charges that are
based solely on GAAP accounting pronouncements or interpretations, the
application of which are unknown to the Borrower or the Agent at the time of the
Effective Date, shall be excluded from the determination of EBITDA unless the
Projections provided for such non-cash accounting charges."
2. COSTS AND EXPENSES. Borrower shall pay upon the execution hereof all
costs and expenses in connection with the review, negotiation, documentation and
closing of this Modification and the consummation of the transactions
contemplated hereby, including, without limitation, fees, disbursements and
expenses of counsel (outside or internal) retained by Agent and all Lenders, and
all fees related to filings, recording of documents and searches.
3. ADDITIONAL DOCUMENTS. Borrower covenants and agrees to execute and
deliver, and to cause to be executed and delivered to Agent, any and all other
documents, agreements, corporate resolutions, certificates and opinions as the
Agent shall request in connection with the execution and delivery of this
Modification or any other documents in connection herewith.
4. REFERENCES. All references in the Loan Documents to the "Loan Agreement"
shall mean the Loan Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment, and the Fourth Amendment, as modified hereby.
All references in the Loan Agreement and the other Loan Documents to the "Loan
Documents" shall include, without limitation, the First Amendment, the Second
Amendment, the Third Amendment, and the Fourth Amendment, as modified hereby,
and any and all other instruments or agreements executed in connection with or
pursuant thereto.
5. EFFECTIVE DATE. Upon the Borrower's satisfaction (or the Agent's and
Lenders' waivers in writing) of each of the following conditions precedent, this
Modification shall be effective as of December 22, 2000 (the "Effective Date"):
(a) Agent shall have received this Modification duly executed by all
parties hereto;
(b) Agent shall have received payment of all fees and expenses of counsel
to Agent and each Lender payable pursuant to Paragraph 2 of this Modification;
and
(c) Agent shall have received such other documents, certificates,
instruments and opinions as Agent may reasonably request.
6. RELEASE AND COVENANT NOT TO XXX. Borrower hereby releases and forever
discharges the Agent, Lenders and all of their respective officers, directors,
employees and agents from any and all actions, causes of action, debts, dues,
claims, demands, liabilities and obligations of every kind and nature, both in
law and in equity, known or unknown, now existing, which might be asserted
against Agent or Lenders arising out of or relating to the Loan Agreement and
the other Loan Documents, the indebtedness under the Amended and Restated
Revolver Notes, and the lending, deposit and borrowing relationships between
Borrower and Agent and Lenders, including the administration, collateralization
and funding thereof. Borrower agrees never to institute or cause to be
instituted any suit or proceeding of any kind against Agent, Lenders or their
respective officers, directors, employees or agents on account of any claim,
known or unknown, now existing, arising from or relating to the Loan Agreement
and the other Loan Documents, the indebtedness under the Amended and Restated
Revolver Notes or the lending, deposit and borrowing relationships between
Borrower and Lenders.
7. FURTHER AGREEMENTS AND REPRESENTATIONS. Borrower does hereby:
(a) ratify, confirm and acknowledge that the Loan Agreement, as modified
hereby, and the other Loan Documents are valid, binding and in full force and
effect;
(b) covenant and agree to perform all obligations of Borrower contained
herein, in the Second Amended and Restated Revolver Notes, under the Loan
Agreement, as amended, and the other Loan Documents;
(c) acknowledge and agree that Borrower has no defense, set-off,
counterclaim or challenge against the payment of any sums owing under the Loan
Documents or the enforcement of any of the terms of the Loan Agreement, as
amended, the Second Amended and Restated Revolver Notes or the other Loan
Documents;
(d) acknowledge and agree that all representations and warranties of
Borrower contained in the Loan Agreement and/or the other Loan Documents, as
amended, are true, accurate and correct on and as of the date hereof as if made
on and as of the date hereof, except as previously disclosed to the Agent in
writing with respect to Section 6.6 of the Loan Agreement;
(e) represent and warrant that no Event of Default (as defined in the Loan
Agreement or any of the other Loan Documents) or event which with the giving of
notice or passage of time or both would constitute such an Event of Default
exists, and all information described in the recitals to this Modification is
true, accurate and complete;
(f) acknowledge and agree that nothing contained herein and no actions
taken pursuant to the terms hereof is intended to constitute a novation of the
Loan Agreement or any of the other Loan Documents, and does not constitute a
release, termination or waiver of any existing Event of Default or of any liens,
security interests, suretyship obligations, pledges, rights or remedies granted
to Agent and/or Lenders therein, which liens, security interests, suretyship
obligations, pledges, rights and remedies are hereby expressly ratified,
confirmed, extended and continued as security for all Lender Indebtedness,
including, without limitation, all obligations of Borrower to Agent and Lenders
under the Loan Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment and the Fourth Amendment, as modified hereby, the
Second Amended and Restated Revolver Notes and the other Loan Documents; and
(g) acknowledge and agree that Borrower's failure to comply with or perform
any of its covenants, agreements or obligations contained in this Modification
shall constitute an Event of Default under the Loan Agreement and each of the
Loan Documents.
8. INCONSISTENCIES. To the extent of any inconsistency between the terms,
conditions and provisions of the Fourth Amendment, as modified hereby, and the
terms, conditions and provisions of the Loan Agreement or the other Loan
Documents, the terms, conditions and provisions of the Fourth Amendment, as
modified hereby, shall prevail. All terms, conditions and provisions of the Loan
Agreement and the other Loan Documents not inconsistent herewith shall remain in
full force and effect and are hereby ratified and confirmed by Borrower.
9. NO WAIVER/COUNTERPARTS. Except as expressly set forth herein, nothing
contained herein and no actions taken pursuant to the terms hereof are intended
to, nor shall they constitute a waiver by Agent or Lenders of, any rights or
remedies available to any of them at law or in equity or as provided in the Loan
Agreement or the other Loan Documents. This Modification may be executed in
multiple counterparts.
10. BINDING EFFECT. This Modification shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
11. GOVERNING LAW. This Modification shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
12. HEADINGS. The headings of the sections of this Modification are
inserted for convenience only and shall not be deemed to constitute a part of
this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Modification this
___ day of January, 2001, to be effective as of the date first above written.
THE JPM COMPANY
By
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
AGENT:
FIRST UNION NATIONAL BANK, as Agent
By
Name
Title
ISSUING BANK:
FIRST UNION NATIONAL BANK, as Issuing Bank
By
Name
Title
LENDERS:
FIRST UNION NATIONAL BANK, as Lender
By
Name
Title
MELLON BANK, N.A.
By
Name
Title
BANK OF AMERICA, N.A.
By
Name
Title
PNC BANK, NATIONAL ASSOCIATION
By
Name
Title
MODIFICATION
ACKNOWLEDGEMENT AND CONSENT
The undersigned Guarantors hereby acknowledge and consent to the foregoing
Modification and Fourth Amendment and Modification to Loan Agreement (the
"Modification") and do further agree that the foregoing Modification shall not
constitute a release or waiver of any of the obligations of the undersigned to
the Agent and/or the Lenders under any of their respective Surety Agreements
dated April 9, 1998 in favor of Agent (the "Guarantees"), all of which are
hereby ratified, confirmed and continued.
Furthermore, the undersigned Guarantors hereby release and forever
discharge the Agent, Lenders and all of their respective officers, directors,
employees and agents from any and all actions, causes of action, debts, dues,
claims, demands, liabilities and obligations of every kind and nature, both in
law and in equity, known or unknown, now existing, which might be asserted
against Agent or Lenders arising out of or relating to the Loan Agreement and
the other Loan Documents, the indebtedness under the Amended and Restated
Revolver Notes, and the lending, deposit and borrowing relationships between
Borrower and Agent and Lenders, including the administration, collateralization
and funding thereof. The undersigned Guarantors agree never to institute or
cause to be instituted any suit or proceeding of any kind against Agent, Lenders
or their respective officers, directors, employees or agents on account of any
claim, known or unknown, now existing, arising from or relating to the Loan
Agreement and the other Loan Documents, the indebtedness under the Amended and
Restated Revolver Notes, or the lending, deposit and borrowing relationships
between Borrower and Lenders.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have executed this Acknowledgment and Consent this ___ day of January, 2001,
effective as of the date of the foregoing Modification.
JPM TECHNOLOGY, INC.
By
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE JPM COMPANY OF DELAWARE, INC.
By
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DENRON, INC.
By
Name: Xxxx X. Xxxxxxx
Title: President
