EXHIBIT 4.1(e)
--------------------------------------------------------------------------------
SEVENTH 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 31, 1998
--------------------------------------------------------------------------------
SEVENTH AMENDMENT AND MODIFICATION AGREEMENT
THIS SEVENTH AMENDMENT AND MODIFICATION AND AGREEMENT (including all
amendments, modifications and supplements is hereinafter referred to as the
"Seventh Modification Agreement"), is made this as of this 31st day of May,
1998, 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 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 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 referred to as the "Revolving Note"); and
WHEREAS, pursuant to 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") and 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
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
2
future obligations or liabilities of any kind of the Borrower owing to the
Lender, including, without limitation, repayment in full of the Revolving Credit
Loan (hereinafter referred to as the "Individual Guaranty"); and
WHEREAS, as of February 20, 1991, each Original Corporate Guarantor,
collectively as the 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, repayment in
full of the Revolving Credit Loan (hereinafter 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 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 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 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 referred to as the "Extension Agreement #1"); and
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 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 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
3
the Revolving Credit Loan from the then current maturity date of "January 31,
1994" to a new maturity date of "March 31, 1994" (hereinafter 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
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 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 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
existing interest rate of "Base Rate plus one and one-half percent (1.5%) per
4
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 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) providing
for a new section of the Loan Agreement, 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 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
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 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 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,
5
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 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 a new section of Article II of the Loan
Agreement, Section 2.11, providing for the Borrower's payment of an unused
commitment fee; and (xiv) in a new section of Article II of the Loan Agreement,
Section 2.12, providing 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 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
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
6
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
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
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 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 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 existing maturity date of "May 31, 1997" and inserting a new
maturity date of "May 31, 1998" in its place and stead and (vii) in the Loan
Documents, amending and modifying the Lender's address from the 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 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 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 even date herewith, 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
7
Note for the purposes of (i) extending the maturity date of the Revolving Note
from the 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 even date herewith, the Borrower, the Corporate Guarantors
and the Lender have agreed to enter into this 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, Fifth
Modification Agreement, the Fifth Allonge, the Sixth Modification Agreement, the
Sixth Allonge, the Seventh Allonge and this Seventh Modification Agreement; (ii)
in Article I, Section 1.1 of the Loan Agreement, extending the Termination Date
of the Revolving Note from the existing Termination Date of "May 31, 1998" to a
new Termination Date of "May 31, 1999"; (iii) in Article I, Section 1.1 of the
Loan Agreement, providing for the new definitions of "Sixth 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 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 existing maturity date of "May 31, 1998" and inserting a
new maturity date of "May 31, 1999" in its place and stead; (vii) in Article V
of the Loan Agreement, providing for a new Section 5.23; (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 this Seventh
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 Seventh 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 Modification Agreement and
this Seventh 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
8
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 May 31, 1998, presently due and owing on the Revolving
Note the principal sum $3,150,000.00, 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) $3,150,000.00 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 Seventh
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 Seventh 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 represent that the liens on the
Collateral granted to the Lender under the Loan Agreement, as amended and
modified up through and including this Seventh 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 (cc) shall be amended and modified by inserting a
reference to "Seventh Allonge" and "Seventh Modification Agreement".
(ii) Subsection (ll) shall be amended and modified by deleting
the existing Termination Date of "May 31,1998" and inserting a new
Termination Date of "May 31, 1999" in its place and stead.
9
(iii) The following new definitions shall have the meaning
assigned to each respective document in the Seventh Modification
Agreement: 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, Fifth
Modification Agreement, the Fifth Allonge, the Sixth Modification
Agreement, the Sixth Allonge, the Seventh Allonge and the Seventh
Modification Agreement.
(b) Article II, Section 2.4 shall be amended and modified by deleting
the existing interest rate options and inserting the following new interest
rate options:
"Interest Rate Options for Advances.
(1) Base Rate: A fluctuating interest rate per annum equal to
the Base Rate of the Lender for such day, in effect from
time to time (such interest rate to change immediately upon
any change in the Base Rate) minus one quarter percent
(0.25%).
(2) Eurodollar Rate: A fixed rate per annum for the applicable
Eurodollar Interest Period equal to one and one-half percent
(1.5%) over the Eurodollar Rate for such day. The Lender
shall give prompt notice to the Borrower of the Eurodollar
Rate determined or adjusted in accordance with the
provisions hereof, which determination or adjustment shall
be conclusive if made in good faith."
(c) Article II, Section 2.11 shall be deleted in its entirety.
(d) Article V shall be amended and modified by inserting the following
new section:
"5.23 Computer Systems. The advent of the year 2000 shall not
adversely affect the Borrower's operations or the performance of
its information technology. Without limiting the generality of
the foregoing, (i) the hardware and software utilized by Borrower
are designed to be used prior to, during, and after calendar year
2000 A.D. and such hardware and software will operate during each
such time period without error relating to date data,
specifically including any error relating to, or the conduct of,
date data which represents or references different centuries or
more than one century, (ii) the hardware and software utilized by
Borrower will not abnormally end or provide invalid or incorrect
results as a result of date data, and (iii) the hardware and
software utilized by Borrower have been designed to ensure year
2000 A.D. compatibility, including date data, century
recognition, leap year, calculations which accommodate same
10
century and multicentury formulas and date values, and date data
interface values that reflect the century."
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 maturity date of "May 31,
1998" shall be deleted and a new maturity date of "May 31, 1999" shall be
inserted in its 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 Seventh 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 the Seventh Modification Agreement.
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 Seventh 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 Seventh 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 Seventh Modification
Agreement.
9. It is the intention of the parties hereto that this Seventh 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 Seventh
Modification Agreement, or any portion 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 Seventh
Modification Agreement are prejudiced hereby, if any, this Seventh 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
11
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 Seventh 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;
(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 and the Revolving Credit Loan, or any waiver 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.
12
IN WITNESS WHEREOF, the parties have caused this Seventh 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.
ATTEST:
___________________________ By: ____________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary President
[SEAL] JOULE MAINTENANCE ATTEST:
CORPORATION
___________________________ By: ____________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary President
[SEAL] JOULE TECHNICAL
ATTEST: SERVICES, INC.
___________________________ By: ____________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary President
[SEAL] JOULE TECHNICAL
ATTEST: STAFFING, INC.
___________________________ By: ____________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Secretary President
SUMMIT BANK
By: ____________________________
Xxxxxx Xxxxxxx
Vice President
00
XXXXX XX XXX XXXXXX :
: ss.
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this ____ day of June, 1998, 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 Xxxxxx
Xxxxxxx, 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 him the contents thereof, he did thereupon acknowledge
that the said Instrument made by the said corporation and sealed with its
corporate seal and delivered by him 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 June, 1998, 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 President 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
14
