EXHIBIT 4.1k
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THIRTEENTH AMENDMENT AND MODIFICATION AGREEMENT
by and among
JOULE, INC.,
as the Borrower
and
JOULE TECHNICAL SERVICES, INC.,
JOULE TECHNICAL STAFFING, INC. and
JOULE STAFFING SERVICES, INC.,
collectively as the Corporate Guarantors
and
FLEET NATIONAL BANK,
as successor by merger to Summit Bank,
as the Lender
Dated: September 15, 2001
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THIRTEENTH AMENDMENT AND MODIFICATION AGREEMENT
THIS THIRTEENTH AMENDMENT AND MODIFICATION AGREEMENT (hereinafter referred
to as this "Thirteenth Amendment"), is made this ____ day of September, 2001, 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 place of
business located at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the "Borrower"),
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., TIGER MAINTENANCE 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 place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (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 place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Joule Technical Staffing, Inc."),
AND
JOULE STAFFING SERVICES, INC., a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey, having
its principal place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Joule Staffing Services" and
hereinafter Joule Technical Services, Inc., Joule Technical Staffing, Inc. and
Joule Staffing Services shall be collectively referred to as the "Corporate
Guarantors"),
AND
FLEET NATIONAL BANK, as successor by merger to Summit Bank, a national
banking association duly organized and validly existing under the laws of the
United States of America, having an office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes referred to as "Fleet" and
sometimes 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 that Summit
Bank (as predecessor-in-interest to Fleet, and in such capacity hereinafter
referred to as "Summit"), and Summit 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 available to the Borrower for the purposes of: (i) refinancing certain
of the Borrower's then existing indebtedness owed to First Fidelity Bank,
National Association and (ii) financing the general working capital requirements
of the Borrower (hereinafter referred to as the "Original Revolving Credit
Loan"), all as more fully provided for in that certain Loan and Security
Agreement dated February 20, 1991 (hereinafter referred to as the "Original Loan
Agreement"), executed by and among the Borrower, the "Obligors" (as such term is
defined in the Original Loan Agreement) and the Lender; and
WHEREAS, the Original Revolving Credit Loan is evidenced by a certain
Revolving Note dated February 20, 1991, executed by the Borrower, as the maker,
and delivered to Summit, as the payee, in the original aggregate principal
amount of the Original Revolving Credit Loan (hereinafter referred to as the
"Original Revolving Note"); and
WHEREAS, pursuant to the terms, conditions and provisions of the Original
Loan Agreement, the Borrower, Joule Maintenance Corporation (hereinafter
referred to as "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 Summit a valid
first lien security interest in and to certain Collateral, as more fully and
accurately described in the Original Loan Agreement; and
2
WHEREAS, as of February 20, 1991, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual, as
the guarantor (hereinafter referred to as the "Individual Guarantor"), executed
and delivered to Summit, as the lender, a certain Individual Guaranty, pursuant
to which the Individual Guarantor agreed to guaranty the full, prompt and
unconditional payment when due of any and all present and future obligations or
liabilities of any kind of the Borrower owing to Summit, including, without
limitation, the repayment in full of the Original Revolving Credit Loan
(hereinafter referred to as the "Original Individual Guaranty"); and
WHEREAS, as of February 20, 1991, each Original Corporate Guarantor, each
as a guarantor, executed and delivered to Summit, 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 Summit, including, without limitation, the repayment in full of the
Original Revolving Credit Loan (hereinafter collectively referred to as the
"Original Corporate Guaranty"); and
WHEREAS, on January 17, 1991, the Borrower, as the assignor, delivered to
Summit, as the assignee, a certain Assignment of Life Insurance Policy as
Collateral with respect to that certain life insurance policy no. ▇▇▇▇▇▇▇▇▇
issued by the Hartford Insurance Company upon the life of the Individual
Guarantor (hereinafter referred to as the "Original Assignment #1"), as
collateral security for the Borrower's obligations under the Original 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 Summit, 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 "Original Assignment #2"),
as collateral security for the repayment of the liabilities and obligations of
Joule Maintenance Corporation to Summit under the Original Loan Agreement and
under the Original Corporate Guaranty; and
WHEREAS, on September 1, 1991, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Promissory Note for the purpose of
extending the term of the Original 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 Summit, as the payee, a certain Master Advance Note for the purpose
of extending the term of the Original 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
3
WHEREAS, on January 31, 1993, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Master Advance Note for the purpose
of extending the term of the Original 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 Summit, as the payee, a certain Master Advance Note for the purpose
of extending the term of the Original 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 Summit entered into a certain First
Modification and Extension Agreement (hereinafter referred to as the "First
Amendment") for the purposes of (i) in Article I, Section 1.1 of the Original
Loan Agreement, extending the Termination Date of the Original 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 Summit's address from
the old address of "630 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to "4365
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇"; (iii) providing for a mutual waiver
of jury trial; and (iv) providing for semi-annual audits of the Collateral; and
WHEREAS, on March 31, 1994, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain First Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "First Allonge") for the purposes
of (i) extending the maturity date of the Original 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 Summit's address from the old address of
"630 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to a new address of "4365
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇"; 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 Summit entered into a certain Second
Modification and Extension Agreement (hereinafter referred to as the "Second
Amendment") for the purposes of (i) in Article I, Section 1.1 of the Original
Loan Agreement, extending the Termination Date of the Original 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
Original 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 Summit's audits of the Collateral from semi-annual audits
of the Collateral to annual audits of the Collateral; and (iv) amending and
4
modifying Summit'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 Summit, as the payee, a certain Second Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "Second Allonge") for the
purposes of (i) extending the maturity date of the Original 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 Summit from Summit's then existing name
of "United Jersey Bank/Central, N.A." to Summit's new name of "United Jersey
Bank"; and
WHEREAS, on August 23, 1995, the Borrower, the Original Corporate
Guarantors and Summit entered into a certain Third Modification and Extension
Agreement (hereinafter referred to as the "Third Amendment") for the purposes of
(i) in Article I, Section 1.1 of the Original Loan Agreement, increasing the
original aggregate principal amount of the Original 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 Original Loan Agreement, extending the Termination Date of
the Original 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 Original Loan Agreement, providing for the issuance of
Letters of Credit; (iv) in Article V of the Original 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 Original
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 Original Individual
Guaranty; and (vii) amending and modifying Summit's address from the then
existing address of "4365 ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to a new
address of "Raritan ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇"; and
WHEREAS, on August 23, 1995, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Third Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "Third Allonge") for the purposes
of (i) increasing the original aggregate principal amount of the Original
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 Original 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 Summit's address from the then existing
address of "4365 ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to a new address of
"Raritan ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇"; and
WHEREAS, Joule Maintenance Corporation and Joule Maintenance of Bayonne,
Inc. were merged and consolidated with and into Joule Maintenance Corporation
with Joule Maintenance Corporation being the surviving entity; and
5
WHEREAS, on February 6, 1996, the Borrower, the Original Corporate
Guarantors and Summit entered into a certain Fourth Modification and Extension
Agreement (hereinafter referred to as the "Fourth Amendment") for the purposes
of (i) in Article I, Section 1.1 of the Original Loan Agreement, providing for
the definition of "Borrowing"; (ii) in Article I, Section 1.1 of the Original
Loan Agreement, providing for the definition of "Eurodollar Affiliate"; (iii) in
Article I, Section 1.1 of the Original Loan Agreement, providing for the
definition of "Eurodollar Interest Period"; (iv) in Article I, Section 1.1 of
the Original Loan Agreement, providing for the definition of "Eurodollar
Interest Payment Date"; (v) in Article I, Section 1.1 of the Original Loan
Agreement, providing for the definition of "Eurodollar Interest Rate
Determination Date"; (vi) in Article I, Section 1.1 of the Original Loan
Agreement, providing for the definition of "Eurodollar Portion"; (vii) in
Article I, Section 1.1 of the Original Loan Agreement, providing for the
definition of "Eurodollar Rate"; (viii) in Article I, Section 1.1 of the
Original Loan Agreement, providing of the definition of "Eurodollar Rate Loans";
(ix) in Article I, Section 1.1 of the Original Loan Agreement, providing for the
definition of "Eurodollar Rate Taxes"; (x) in Article I, Section 1.1 of the
Original Loan Agreement, providing for the definition of "Eurodollar Reserve
Percentage"; (xi) in Article I, Section 1.1 of the Original Loan Agreement,
providing for the definition of "Funding Segment"; (xii) in Article II, Section
2.4 of the Original 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 Original
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 Original 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 Summit, as the payee, a certain Fourth Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "Fourth Allonge") for the purpose
of deleting the then existing Paragraph 2 of the Original 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 Original Loan Agreement; and
WHEREAS, as of May 31, 1996, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Fifth Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "Fifth Allonge") for the purpose
of extending the maturity date of the Original Revolving Note from the then
existing maturity date of "May 31, 1996" to a new maturity date of "May 31,
1997"; and
WHEREAS, as of May 31, 1996, the Borrower, the Original Corporate
Guarantors and Summit entered into a certain Fifth Modification and Extension
Agreement (hereinafter referred to as the "Fifth Amendment") for the purpose of
extending the Termination Date of the Original Revolving Note in Article I,
Section 1.1 of the Original Loan Agreement from the then existing Termination
Date of "May 31,1996" to a new Termination Date of "May 31, 1997"; 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
Engineering Corp., Joule Temporaries Corporation, Joule Maintenance of Maryland,
Inc., Joule Technical Corporation, Joule Maintenance of Gibbstown, Inc. and
Joule Maintenance of New York, Inc. were all merged with and into Joule
Technical Services, Inc. with Joule Technical Services, Inc. being the surviving
entity; and
WHEREAS, Tiger Maintenance is no longer doing business and has had its
charter revoked; and
WHEREAS, as of May 31, 1997, the Borrower, Joule Technical Services, Inc.,
Joule Technical Staffing, Inc., Joule Maintenance Corporation and Summit entered
into a certain Sixth Modification and Extension Agreement (hereinafter referred
to as the "Sixth Amendment"), for the purposes of (i) in Article I, Section 1.1
of the Original 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 Original Loan
Agreement, extending the Termination Date of the Original 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 Original Loan
Agreement providing for the consolidated balance sheet of the Obligors; (iv) in
the Original Loan Agreement, amending and modifying Summit's address from the
then existing address of "Raritan ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇" to a new address of "210 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇"; (v) in the "Loan Documents" (as such term is defined in the Original
Loan Agreement, hereinafter referred to as the "Original Loan Documents"),
providing that any and all references to the "Corporate Guarantors" shall be
deemed to refer to Joule Technical Services, Inc., Joule Technical Staffing,
Inc. and Joule Maintenance Corporation; (vi) in the Original 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 Original Loan Documents, amending and modifying Summit's
address from the then existing address of "Raritan ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to a new address of "210 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇"; and
WHEREAS, as of May 31, 1997, the Borrower as the maker, executed and
delivered to Summit, as the payee, a certain Sixth Allonge to $4,000,000.00
Revolving Note (hereinafter referred to as the "Sixth Allonge") for the purposes
of (i) extending the maturity date of the Original 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 Summit's address from the then existing
address of "Raritan ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" to a
new address of "210 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇"; and
7
WHEREAS, as of May 31, 1998, the Borrower, as the maker, has executed and
delivered to Summit, as the payee, a certain Seventh Allonge to $4,000,000.00
Revolving Note Dated February 21, 1991 (hereinafter referred to as the "Seventh
Allonge") for the purpose of extending the maturity date of the Original
Revolving Note from the then existing maturity date of "May 31, 1998" to a new
maturity date of "May 31, 1999"; and
WHEREAS, as of May 31, 1998, the Borrower, Joule Technical Services, Inc.,
Joule Technical Staffing, Inc., Joule Maintenance Corporation and Summit entered
into a certain Seventh Amendment and Modification Agreement (hereinafter
referred to as the "Seventh Amendment") for the purposes of (i) in Article I,
Section 1.1 of the Original 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 Amendment, the First Allonge, the Second Modification, the Second
Allonge, the Third Amendment, the Third Allonge, the Fourth Amendment, the
Fourth Allonge, the Fifth Amendment, the Fifth Allonge, the Sixth Amendment, the
Sixth Allonge, the Seventh Allonge and the Seventh Amendment; (ii) in Article I,
Section 1.1 of the Original Loan Agreement, extending the Termination Date of
the Original Revolving Note from the then 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 Original Loan Agreement, providing for the new definitions of:
"Extension Agreement #1", "Extension Agreement #2", "Extension Agreement #3",
"Extension Agreement #4", "First Amendment", "First Allonge", "Second
Modification", "Second Allonge", "Third Amendment", "Third Allonge", "Fourth
Amendment", "Fourth Allonge", "Fifth Amendment", "Fifth Allonge", "Sixth
Amendment", "Sixth Allonge", "Seventh Allonge" and "Seventh Amendment"; (iv) in
Article II, Section 2.4 of the Original 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 Original Loan Agreement, deleting the unused commitment
fee; (vi) in the Original 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 Original
Loan Agreement, providing for a new Section 5.23 with respect to the year 2000;
(viii) in the Original Loan Documents, providing that any and all references to
the "Revolving Note" shall be deemed to refer to the Original Revolving Note as
amended and modified up through and including the Seventh Allonge; and (ix) in
the Original Loan Documents, providing that any and all references to the "Loan
Agreement" shall be deemed to refer to the Original Loan Agreement as amended
and modified up through and including the Seventh Amendment; and
WHEREAS, on February 5, 1999, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Eighth Allonge to $4,000,000.00
Revolving Note Dated February 21, 1991 (hereinafter referred to as the "Eighth
Allonge") for the purposes of (i) amending and modifying the aggregate principal
amount of the Original 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 Original
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 Original
Revolving Note, deleting the then existing Paragraph 5 and inserting a new
Paragraph 5 in its place and stead; and
WHEREAS, on February 5, 1999, the Borrower, Joule Technical Services,
Inc., Joule Technical Staffing, Inc., Joule Maintenance Corporation and Summit
entered into a certain
8
Eighth Amendment and Modification Agreement (hereinafter referred to as the
"Eighth Amendment") for the purposes of (i) in Article I, Section 1.1 of the
Original Loan Agreement, increasing the Commitment amount of the Original
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 Original Loan Agreement, amending and modifying
the definition of "Loan Documents" to provide for the Eighth Allonge and the
Eighth Amendment; (iii) in Article I, Section 1.1 of the Loan Agreement,
extending the Termination Date of the Original 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 Original Loan Agreement,
providing for the new definitions of "Eighth Allonge" and "Eighth Amendment";
(v) in the Original 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 Original Loan Documents, providing that any and all references to the
"Revolving Note" shall be deemed to refer to the Original Revolving Note as
amended and modified up through and including the Eighth Allonge; and (vii) in
the Original Loan Documents, providing that any and all references to the "Loan
Agreement" shall be deemed to refer to the Original Loan Agreement as amended
and modified up through and including the Eighth Amendment; and
WHEREAS, as of May 10, 1999, the Borrower, as the maker, executed and
delivered to Summit, as the payee, a certain Ninth Allonge to $4,000,000.00
Revolving Note Dated February 21, 1991 (hereinafter referred to as the "Ninth
Allonge") for the purpose of amending and modifying the aggregate principal
amount of the Original Revolving Credit 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"; and
WHEREAS, as of May 10, 1999, the Borrower, Joule Technical Services, Inc.,
Joule Technical Staffing, Inc., Joule Maintenance Corporation and Summit entered
into a certain Ninth Amendment and Modification Agreement (hereinafter referred
to as the "Ninth Amendment"), for the purposes of (i) in Article I, Section 1.1
of the Original Loan Agreement, increasing the Commitment amount of the Original
Revolving Credit Loan 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 the Original Loan Agreement, amending and modifying
the definition of "Loan Documents" to provide for the Ninth Allonge and the
Ninth Amendment; (iii) in Article I, Section 1.1 of the Loan Agreement,
providing for the new definitions of "Ninth Allonge" and "Ninth Amendment"; (iv)
in the Original Loan Documents, providing that any and all references to the
"Revolving Note" shall be deemed to refer to the Original Revolving Note as
amended and modified up through and including the Ninth Allonge; and (v) in the
Original Loan Documents, providing that any and all references to the "Loan
Agreement" shall be deemed to refer to the Original Loan Agreement as amended
and modified up through and including the Ninth Amendment; and
WHEREAS, as of November 15, 1999, the Borrower, as the maker, has executed
and delivered to Summit, as the payee, a certain Tenth Allonge to $4,000,000.00
Revolving Note Dated February 21, 1991 (hereinafter referred to as the Tenth
Allonge") for the purpose of
9
amending and modifying the aggregate principal amount of the Original Revolving
Credit Loan from the then existing aggregate principal amount of "$8,500,000.00"
to a new, increased aggregate principal amount of "$9,000,000.00"; and
WHEREAS, as of November 15, 1999, the Borrower, Joule Technical Services,
Inc., Joule Technical Staffing, Inc., Joule Maintenance Corporation and Summit
entered into a certain Tenth Amendment and Modification Agreement (hereinafter
referred to as the "Tenth Amendment"), for the purposes of (i) in Article I,
Section 1.1 of the Original Loan Agreement, increasing the Commitment amount of
the Original Revolving Credit Loan from the then existing Commitment amount of
"$8,500,000.00" to a new, increased Commitment amount of "$9,000,000.00"; (ii)
in Article I, Section 1.1 of the Original Loan Agreement, amending and modifying
the definition of "Loan Documents" to provide for the Tenth Allonge and the
Tenth Amendment; (iii) in Article I, Section 1.1 of the Original Loan Agreement,
providing for the new definitions of "Tenth Allonge" and "Tenth Amendment"; (iv)
in the Original Loan Documents, providing that any and all references to the
"Revolving Note" shall be deemed to refer to the Original Revolving Note as
amended and modified up through and including the Tenth Allonge; and (v) in the
Original Loan Documents, providing that any and all references to the "Loan
Agreement" shall be deemed to refer to the Original Loan Agreement as amended
and modified up through and including the Tenth Amendment; and
WHEREAS, on May 26, 2000, the Borrower, Joule Technical Services, Inc.,
Joule Technical Staffing, Inc., and Joule Maintenance Corporation executed and
delivered to Summit a certain Letter Amendment (hereinafter referred to as the
"Eleventh Amendment") for the purpose of extending the term of the Original
Revolving Credit Loan from the then current maturity date of "May 31, 2000" to a
new maturity date of "May 31, 2001"; and
WHEREAS, pursuant to a certain Certificate of Merger filed with the Office
of the New Jersey Department of the Treasury, Division of Revenue on November
22, 2000, Joule Maintenance Corporation was merged with and into Joule Technical
Services, Inc. with Joule Technical Services, Inc. being the surviving entity;
and
WHEREAS, on or about March 1, 2001, Summit merged into Fleet, with Fleet
being the surviving entity; and
WHEREAS, on May 31, 2001, the Borrower, Joule Technical Services, Inc.,
Joule Technical Staffing, Inc. and Joule Maintenance Corporation executed and
delivered to the Lender a certain Letter Amendment (hereinafter referred to as
the "Twelfth Amendment") for the purposes of (i) extending the term of the
Original Revolving Credit Loan from the then current maturity date of "May 31,
2001" to a new maturity date of "May 31, 2002", and (ii) in Article II of the
Original Loan Agreement, deleting the existing Section 2.4(1) and inserting a
new Section 2.4(1) in its place and stead; and
WHEREAS, for the purposes of this Thirteenth Amendment, (i) the Original
Loan Agreement, as amended and modified up through and including the Twelfth
Amendment, shall be hereinafter referred to as the "Loan Agreement", (ii) the
Original Revolving Note, as amended and
10
modified up through and including the Tenth Allonge and the Twelfth Amendment,
shall be hereinafter referred to as the "Revolving Note", (iii) the Original
Revolving Credit Loan, as amended and modified up through and including the
Tenth Allonge and the Twelfth Amendment, shall be hereinafter referred to as the
"Revolving Credit Loan", (iv) the Original Corporate Guaranty, as amended and
modified up through and including the Twelfth Amendment, shall be hereinafter
referred to as the "Corporate Guaranty"); and (v) all of the Original Loan
Documents, as amended and modified up through and including the Tenth Allonge
and the Twelfth Amendment, shall be hereinafter collectively referred to as the
"Loan Documents"; and
WHEREAS, the Borrower, the Corporate Guarantors and the Lender have agreed
to enter into this Thirteenth Amendment for the purposes (i) in Article I,
Section 1.1 of the Loan Agreement, amending and modifying the definition of
"Loan Documents" to provide for the Eleventh Amendment, the Twelfth Amendment
and this Thirteenth Amendment; (ii) 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;
(iii) in Article I, Section 1.1 of the Loan Agreement, providing for the new
definitions of "Eleventh Amendment", "Twelfth Amendment" and "Thirteenth
Amendment"; (iv) in the Loan Agreement and all of the other Loan Documents,
providing for the merger of Joule Maintenance Corporation with and into Joule
Technical Services, Inc., with Joule Technical Services, Inc. being the
surviving entity; (v) in the Loan Agreement and all of the other Loan Documents,
amending and modifying the terms of the Loan Agreement and the other Loan
Documents to provide for the addition of Joule Staffing Services as an
additional Corporate Guarantor, guarantying, on a joint and several basis with
the other Corporate Guarantors, the full, prompt and unconditional payment and
performance of all of the Obligations of the Borrower, and as an additional
Obligor, pledging all of its personal property assets to the Lender as
additional collateral security for the Loan Facility; (vi) in the Loan Agreement
and the other Loan Documents, providing that any and all references to the "Loan
Agreement" or to any of the other "Loan Documents" shall be deemed to refer to
the Loan Agreement or such other Loan Document as amended and modified up
through and including this Thirteenth Amendment; (vii) in the Loan Documents,
providing that any and all references to the "Corporate Guarantors" shall be
deemed to refer collectively to Joule Technical Services, Inc., Joule Technical
Staffing, Inc., and Joule Staffing Services, on a joint and several basis;
(viii) in the Loan Agreement, providing for additional representations,
warranties, and covenants required by the changes to Article 9 of the Uniform
Commercial Code; and (ix) in the Loan Agreement and all of the other Loan
Documents, amending and modifying all references to the name of the Lender as
"Summit" and "Summit Bank" to be references to "Fleet" and "Fleet National
Bank", respectively; and
WHEREAS, defined terms used but not expressly defined herein shall have the
same meanings when used herein as set forth in the Loan Agreement.
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:
11
1. Accuracy of Recitals. The Borrower, the Corporate Guarantors, and the
Lender each hereby represent and warrant that all of the recitals contained in
this Thirteenth Amendment are true, correct and accurate and such recitals are
hereby incorporated herein by reference as part of the substantive provisions of
this Thirteenth Amendment.
2. Revolving Note. There is, as of September 15, 2001, presently due and
owing on the Revolving Note the principal sum $5,550,000.00, 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) $5,550,000.00 for outstanding Advances of
direct loans under the Revolving Note and (b) -$0- for Letters of Credit.
3. Conditions Precedent to Thirteenth Amendment. By their execution hereof,
the Borrower and the Corporate Guarantors hereby acknowledge and agree that the
Lender's consent to enter into this Thirteenth Amendment is contingent upon the
following:
(a) the payment by the Borrower of all costs, expenses and fees of
the transaction contemplated by this Thirteenth Amendment, 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, all of which name the Lender as lender, secured party and/or loss
payee with respect to all of the Collateral.
4. Security Interest; Collateral. The Borrower, Joule Technical Staffing,
Inc. and Joule Technical Services, Inc. hereby affirm and confirm that the
security interests granted to the Lender in Section 3.1 of the Loan Agreement,
as amended and modified by this Thirteenth Amendment, continue to be valid first
liens on the Collateral.
5. Loan Agreement. 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 (o) shall be deleted in its entirety and the
following new subsection (o) shall be inserted in its place and stead:
"(o) "Corporate Guarantors" shall mean each subsidiary of
the Borrower now or hereafter existing, including, without
limitation (i) Joule Technical Services, 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 ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, (ii) Joule Technical Staffing, Inc., a
corporation duly organized, validly existing and in
12
good standing under the laws of the State of New Jersey,
having its principal executive offices located at ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and (iii) Joule Staffing
Services, Inc., a corporation duly organized, validly
existing and in good standing under the laws of the State of
New Jersey, having its principal executive offices located
at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇."
(ii) Subsection (cc) shall be amended and modified by inserting
a reference to the Eleventh Amendment, the Twelfth Amendment and this Thirteenth
Amendment.
(iii)The following new definitions shall be inserted:
""Eleventh Amendment" shall mean that certain Letter Amendment
dated May 26, 2000, pursuant to which the Borrower, Joule
Technical Services, Inc., Joule Technical Staffing, Inc., Joule
Maintenance Corporation 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 more fully set forth and described therein."
""Twelfth Amendment" shall mean that certain Letter Amendment
dated May 31, 2001, pursuant to which the Borrower, Joule
Technical Services, Inc., Joule Technical Staffing, Inc., Joule
Maintenance Corporation 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 more fully set forth and described therein."
""Thirteenth Amendment" shall mean that certain Thirteenth
Amendment and Modification Agreement dated September 15, 2001,
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 more fully set forth and described
therein."
(b) Article III shall be amended and modified as follows:
(i) The following new Section 3.3 shall be added:
"3.3 Additional Representations and Warranties. The Borrower and each
of the Obligors hereby represents and warrants to the Bank that (a)
neither the Borrower nor any Obligor has ever changed, altered,
amended and/or modified its state of organization, whether through or
as a result of any merger, acquisition, consolidation, or otherwise;
(b) the exact full name of (i) the Borrower as filed with the Office
of the Secretary of State of the State of Delaware is "Joule, Inc.",
(ii) Joule Technical Services, Inc. as filed with the Office of the
New Jersey
13
Department of the Treasury, Division of Revenue is "Joule Technical
Services, Inc.", (iii) Joule Technical Staffing, Inc. as filed with
the Office of the New Jersey Department of the Treasury, Division of
Revenue is "Joule Technical Staffing, Inc.", and (iv) Joule Staffing
Services, Inc. as filed with the Office of the New Jersey Department
of the Treasury, Division of Revenue is "Joule Staffing Services,
Inc.", and that neither the Borrower nor any of the Obligors has ever
changed, altered, amended and/or modified its exact full name, whether
through or as a result of any merger, acquisition, consolidation, or
otherwise, (c) neither the Borrower nor any of the Obligors is now, or
has ever been, known by any tradename, alternate or fictitious name or
any other name, other than the exact full names referred to in clause
(b) above; (d) each of the Borrower and the Obligors has a principal
place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ and neither the Borrower nor any of the Obligors has ever
changed, altered or modified its principal place of business, except
as expressly set forth in the recitals to the Thirteenth Amendment;
(e) (i) the Borrower's employer identification number is ▇▇-▇▇▇▇▇▇▇
and the Borrower's organizational identification number is 2097190;
(ii) Joule Technical Services, Inc.'s employer identification number
is ▇▇-▇▇▇▇▇▇▇ and Joule Technical Services, Inc.'s organizational
identification number is 0100537551, (iii) Joule Technical Staffing,
Inc.'s employer identification number is ▇▇-▇▇▇▇▇▇▇ and Joule
Technical Staffing, Inc.'s organizational identification number is
204493, and (iv) Joule Staffing Services, Inc.'s employer
identification number is ▇▇-▇▇▇▇▇▇▇ and Joule Staffing Services,
Inc.'s organizational identification number is 0100835019; and (f)
neither the Borrower nor any of the Obligors currently holds any
"commercial tort claims" (as such term is defined in Section 9-101 of
the Code)."
(ii) The following new Section 3.4 shall be added:
"3.4 Additional Covenants. The Borrower and each of the Obligors
hereby covenants and agrees to give written notice to the Bank in the
event that the Borrower or any of the Obligors, whether as a result of
any merger, acquisition, consolidation or otherwise, (a) changes its
exact full name, (b) changes its state of organization, (c) changes
its type of organization, (d) uses, establishes or otherwise does
business under any tradename, alternate or fictitious name or any
other name, (e) changes its principal place of business; and/or (f)
changes its employer identification number and/or its organizational
identification number, which notice, in any event, shall be given not
less than fifteen (15) Business Days prior to such change taking place
or such tradename, alternate or fictitious name or other name being
used."
14
(iii)The following new Section 3.5 shall be added:
"3.5 Authorization to File Financing Statements. The Borrower and
each of the Obligors hereby specifically and irrevocably authorizes
the Bank, at any time and from time to time, to file in any Code
jurisdiction any initial financing statements and/or amendments
thereto that contain any information required by part 5 of Article 9
of the Code, as adopted and enacted and as in effect from time to
time, of the applicable State or States, for the sufficiency or
filing office acceptance of any financing statement or amendment,
including, without limitation, whether the Borrower or any of the
Obligors is an organization, the type of organization and any
organization identification number issued to the Borrower or such
Obligor. The Borrower and each of the Obligors hereby covenants and
agrees to furnish any such information to the Bank promptly upon
request."
(iv) The following new Section 3.6 shall be added:
"3.6 Additional Provisions Addressing Revised Article 9.
(a) Concerning Revised Article 9 of the Uniform Commercial Code.
The Borrower and each of the Obligors hereby consents and agrees to
the following provisions in anticipation of the possible application,
in one or more jurisdictions to the transactions contemplated hereby,
of the revised Article 9 of the Code in the form or substantially in
the form approved by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws and contained in
the 1999 Official Text of the Uniform Commercial Code (hereinafter
referred to as "Revised Article 9").
(b) Collateral; Attachment. In applying the law of any
jurisdiction in which Revised Article 9 is in effect, the Collateral
is all assets of the Borrower and of the Obligors, whether or not
within the scope of Revised Article 9. The Collateral shall include,
without limitation, the following categories of assets, each as
defined in Revised Article 9: goods (including inventory, equipment
and any accessions thereto), instruments (including promissory
notes), documents, accounts (including health care insurance
receivables), chattel paper (whether tangible or electronic), deposit
accounts, letter-of-credit rights (whether or not the letter of
credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, general intangibles (including
payment intangibles and software), supporting obligations and any and
all proceeds of any thereof, wherever located, whether now owned or
hereafter acquired. If the Borrower or any of the Obligors shall at
any time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, acquire a "commercial tort claim" (as such
term is defined in Revised Article 9), the Borrower or such Obligor
shall immediately notify the Bank in a writing signed by the Borrower
or such Obligor, such writing to be in form and substance acceptable
to the Bank in its sole and absolute discretion, of the details
thereof and grant to the Bank a security interest therein
15
and in the proceeds thereof, all upon and subject to the terms,
conditions, and provisions of this Agreement.
(c) Additional Grant of Security Interest in Specified Property.
(i) Each of the Borrower and the Obligors hereby covenants
and agrees that, in anticipation of the possible application, in one
or more jurisdictions, of Revised Article 9, each of the Borrower and
the Obligors, in addition to the items previously described as
constituting Collateral, hereby gives, grants, bargains, assigns and
confirms that it has granted to the Bank, a security interest in the
following items of its properties, assets and rights, whether now
owned or hereafter acquired and wherever located:
All other goods, rights to payment of money, insurance
refund claims and all other insurance claims and proceeds, tort
claims, electronic chattel paper, securities and other
investment property, rights to proceeds of letters of credit,
letter of credit rights, supporting obligations of every nature,
all tax refund claims, license fees, rights to ▇▇▇ and recover
for past infringement of patents, trademarks and copyrights,
computer programs, computer software, engineering drawings,
customer lists, goodwill and all licenses, permits, agreements
of any kind or nature pursuant to which (A) the Borrower or such
Obligor operates or has authority to operate, (B) the Borrower
or such Obligor possesses, uses or has authority to possess or
use property (whether tangible or intangible) of others, or (C)
others possess, use or have authority to possess or use property
(whether tangible or intangible) of the Borrower or such
Obligor, and all recorded data of any kind or nature, regardless
of the medium of recording, including without limitation, all
software, writings, plans, specifications and schematics.
(ii) Nothing herein contained in this Agreement shall be
construed to narrow the scope of Bank's security interest in any of
the Collateral or in the perfection or priority thereof or to impair
or otherwise limit any of the rights, powers, privileges or remedies
of the Bank hereunder except (and then only to the extent) as
mandated by Revised Article 9 and then only to the extent applicable.
(iii)The Borrower and the Obligors hereby further
acknowledge and agree that the grant of Collateral in this Agreement
covers, and is intended to cover, all assets of the Borrower and the
Obligors.
(d) Perfection by Filing. The Bank may at any time and from time
to time, pursuant to the terms, conditions and provisions of this
Agreement, file financing statements, continuation statements and
amendments thereto that describe the Collateral as all assets of the
Borrower and the Obligors or words of
16
similar effect and which contain any other information required by
Part 5 of Revised Article 9 for the sufficiency or filing office
acceptance of any financing statement, continuation statement or
amendment, including whether the Borrower or any of the Obligors is
an organization, the type of organization of the Borrower or of any
Obligor and any organizational identification number issued to the
Borrower or to any Obligor. Each of the Borrower and the Obligors
hereby covenants and agrees to furnish any such information to the
Bank promptly upon request. Any such financing statements,
continuation statements or amendments may be filed at any time in any
jurisdiction whether or not Revised Article 9 is then in effect in
that jurisdiction.
(e) Other Types of Perfection. The Borrower and the Obligors
shall at any time and from time to time, whether or not Revised
Article 9 is in effect in any particular jurisdiction, take such
steps as the Bank may reasonably request for the Bank (i) to obtain
an acknowledgment, in form and substance satisfactory to the Bank, of
any bailee having possession of any of the Collateral that the bailee
holds such Collateral for the benefit of the Bank, (ii) to obtain
"control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as all such
terms are defined in Revised Article 9 with corresponding provisions
in Rev. ▇▇.▇▇. 9-104, 9-105, 9-106 and 9-107 relating to what
constitutes "control" for such items of Collateral), with any
agreements establishing control to be in form and substance
satisfactory to the Bank in its sole and absolute discretion, and
(iii) otherwise to insure the continued perfection and priority of
the Bank's security interest in any of the Collateral and of the
preservation of its rights therein, whether in anticipation and
following the effectiveness of Revised Article 9 in any
jurisdiction."
(iv) The following new Section 3.7 shall be added:
"3.7 Other Actions With Respect to the Collateral. Further to insure
the attachment, perfection and first priority of, and the ability of
the Bank to enforce, the Bank's security interest in the Collateral,
each of the Borrower and the Obligors hereby covenants and agrees, in
each case at their sole cost and expense, to take the following
actions with respect to the following Collateral:
(a) Promissory Notes and Tangible Chattel Paper. If the Borrower
or any Obligor shall at any time hold or acquire any promissory notes
or tangible chattel paper, the Borrower or such Obligor shall
forthwith endorse, assign and deliver the same to the Bank,
accompanied by such instruments of transfer or assignment, duly
executed in blank, as the Bank may from time to time specify and/or
require.
(b) Deposit Accounts. For each deposit account that the Borrower
or any Obligor at any time opens or maintains, the Borrower or such
Obligor shall, at
17
the Bank's request and sole option, pursuant to a written agreement
in form and substance satisfactory to the Bank in its sole and
absolute discretion, either (i) cause the depositary bank to agree to
comply at any time with instructions from the Bank to such depositary
bank directing the disposition of funds from time to time credited to
such deposit account, without further consent of the Borrower or such
Obligor, or (ii) arrange for the Bank to become the customer of the
depositary bank with respect to the deposit account, with the
Borrower or such Obligor being permitted, only with the express
written consent of the Bank, to exercise rights to withdraw funds
from such deposit account. The Bank hereby agrees with the Borrower
and the Obligors that the Bank shall not given any such instructions
or withhold any withdrawal rights from the Borrower or the Obligors,
unless an Event of Default shall have occurred and be continuing, or
unless, after giving effect to any withdrawal not otherwise permitted
by the Loan Documents, an Event of Default would occur. The
provisions of this Section 3.7(b) shall not apply to (A) any deposit
account for which the Borrower or the appropriate Obligor, any
depositary bank and the Bank have entered into a cash collateral
agreement specially negotiated by and among the Borrower or such
appropriate Obligor, such depositary bank and the Bank for the
specific purpose set forth therein, (B) deposit accounts for which
the Bank is the depositary bank, and (iii) deposit accounts specially
and exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of the Borrower's
and/or the Obligors' salaried employees.
(c) Investment Property. If the Borrower or any of the Obligors
shall at any time hold or acquire any certificated securities, the
Borrower or such Obligors shall forthwith endorse, assign and deliver
the same to the Bank, accompanied by such instruments of transfer or
assignment duly executed in blank as the Bank may from time to time
specify and/or require. If any securities now or hereafter acquired
by the Borrower or any of the Obligors are uncertificated and are
issued to the Borrower or one of the Obligors, or a nominee directly
by the issuer thereof, the Borrower or such Obligor shall immediately
notify the Bank thereof in writing and, at the Bank's request and
sole option, pursuant to a written agreement in form and substance
satisfactory to the Bank in its sole and absolute discretion, either
(i) cause such issuer to agree to comply with instructions from the
Lender as to such securities, without further consent of the Borrower
or such Obligor or such nominee, or (ii) arrange for the Bank to
become the registered owner of the securities. If any securities,
whether certificated or uncertificated, or other investment property
now or hereafter acquired by the Borrower or any of the Obligors are
held by the Borrower or any of the Obligors or a nominee through a
securities intermediary or commodity intermediary, the Borrower or
such Obligor shall immediately notify the Bank thereof in writing
and, at the Bank's request and sole option, pursuant to a written
agreement in form and substance satisfactory to the Bank, either (A)
cause such securities intermediary or, as the case may be, commodity
intermediary to agree to comply with entitlement orders or other
instructions from the Bank to such securities intermediary or such
18
commodity intermediary as to such securities or other investment
property, or, as the case may be, to apply any value distributed on
account of any commodity contract as directed by the Bank to such
commodity intermediary, in each case without further consent of the
Borrower or such Obligor or such nominee, or (B) in the case of
financial assets or other investment property held through a
securities intermediary, arrange for the Bank to become the
entitlement holder with respect to such investment property, with the
Borrower or such Obligor being permitted, only with the express
written consent of the Bank, to exercise rights to withdraw or
otherwise deal with such investment property. The Bank hereby agrees
with the Borrower and the Obligors that the Bank shall not given any
such entitlement orders or instructions or directions to any such
issuer, securities intermediary or commodity intermediary and shall
not withhold its consent to the exercise of any withdrawal or dealing
rights by the Borrower or any of the Obligors, unless an Event of
Default shall have occurred and be continuing, or unless, after
giving effect to any such investment and withdrawal rights not
otherwise permitted by the Loan Documents, an Event of Default would
occur. The provisions of this Section 3.7(c) shall not apply to any
financial assets credited to a securities account for which the Bank
is the securities intermediary.
(d) Collateral in the Possession of a Bailee. If any goods are
at any time in the possession of a bailee, the Borrower or the
Obligors shall promptly notify the Bank thereof in writing and, if
requested by the Bank, shall promptly obtain a written
acknowledgement from the bailee, in form and substance satisfactory
to the Bank in its sole and absolute discretion, that the bailee
holds such Collateral for the benefit of the Bank and that such
bailee shall act upon the instructions of the Bank, without the
further consent of the Borrower or any of the Obligors. The Bank
hereby agrees with the Borrower and the Obligors that the Bank shall
not give any such instructions unless an Event of Default shall have
occurred and be continuing or unless, after taking into account any
action by the Borrower or the Obligors with respect to the bailee, an
Event of Default would occur.
(e) Electronic Chattel Paper and Transferable Records. If the
Borrower or any of the Obligors at any time holds or acquires an
interest in any electronic chattel paper or any "transferable
record," as that term is defined in Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act, or in
ss.16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, the Borrower or such Obligors shall promptly
notify the Bank thereof in writing and, at the request and sole
option of the Bank, shall take such action as the Bank may request to
vest in the Bank control under UCC ss.9-105 of such electronic
chattel paper or control under Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or, as the case may
be, ss.16 of the Uniform Electronic Transactions Act, as so in effect
in such jurisdiction, of such transferable record. The Bank hereby
agrees with the Borrower and the Obligors that the Bank will arrange,
pursuant to procedures
19
satisfactory to the Bank in its sole and absolute discretion, and so
long as such procedures will not result in the Bank's loss of
control, for the Borrower and/or the Obligors to make alterations to
the electronic chattel paper or transferable record permitted under
UCC ss.9-105 or, as the case may be, Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act or ss.16 of
the Uniform Electronic Transactions Act for a party in control to
make without loss of control, unless an Event of Default shall have
occurred and be continuing or unless, after taking into account any
action by the Borrower and the Obligors with respect to such
electronic chattel paper or transferable record, an Event of default
would occur.
(f) Letter of Credit Rights. If the Borrower or any of the
Obligors is at any time a beneficiary under a letter of credit now or
hereafter issued in favor of the Borrower or such Obligor, the
Borrower or such Obligor shall promptly notify the Bank thereof in
writing and, at the request and sole option of the Bank, the Borrower
or such Obligor shall, pursuant to a written agreement in form and
substance satisfactory to the Bank in its sole and absolute
discretion, either (i) arrange for the issuer and any confirmer of
such letter of credit to consent to an assignment to the Bank of the
proceeds of any drawing under the letter of credit, or (ii) arrange
for the Bank to become the transferee beneficiary of the letter of
credit, with the Bank agreeing, in each case, that the proceeds of
any drawing under the letter to credit are to be applied to the
Obligations, in the order determined by the Bank, in its sole and
absolute discretion.
(g) Commercial Tort Claims. If the Borrower or any of the
Obligors shall at any time hold or acquire a commercial tort claim,
the Borrower or such Obligor shall immediately notify the Bank in a
writing signed by the Borrower or such Obligor of the brief details
thereof and grant to the Bank in such writing a security interest
therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance satisfactory
to the Bank in its sole and absolute discretion.
(h) Other Actions as to any and all Collateral. Each of the
Borrower and the Obligors hereby further covenants and agrees to take
any other action requested by the Bank to insure the attachment,
perfection and first priority of, and the ability of the Bank to
enforce, the Bank's security interest in any and all of the
Collateral including, without limitation, (i) executing, delivering
and, where appropriate, filing financing statements and amendments
relating thereto under the Uniform Commercial Code, to the extent, if
any, that the Borrower's or any Obligor's signature thereon is
required therefor, (ii) causing the Bank's name to be noted as
secured party on any certificate of title for a titled good if such
notation is a condition to attachment,
20
perfection or priority of, or ability of the Bank to enforce, the
Bank's security interest in such Collateral, (iii) complying with any
provision of any statute, regulation or treaty of the United States
as to any Collateral if compliance with such provision is a condition
to attachment, perfection or priority of, or ability of the Bank to
enforce, the Bank's security interest in such Collateral, (iv)
obtaining governmental and other third party consents and approvals,
including without limitation any consent of any licensor, lessor or
other person obligated on Collateral, (v) obtaining waivers from
mortgagees and landlords in form and substance satisfactory to the
Bank in its sole and absolute discretion, and (vi) taking all actions
required by any earlier versions of the Code or by other law, as
applicable in any relevant Code jurisdiction, or by other law as
applicable in any foreign jurisdiction.
(c) All references to the name of the existing name of the Lender of
"Summit Bank" shall be deleted in their entirety and new references to the
current name of the Lender of "Fleet National Bank, as successor by merger to
Summit Bank" shall be inserted in their place and stead.
6. Loan Documents. The Loan Documents are hereby further amended and
modified as follows:
(a) All references to "Joule Maintenance Corporation" shall be deemed
to refer to "Joule Technical Services, Inc.".
(b) All references to the "Corporate Guarantors" shall be deemed to
refer collectively to Joule Technical Services, Inc., Joule Technical Staffing,
Inc., and Joule Staffing Services, Inc.
(c) All references to the name of the existing name of the Lender of
"Summit Bank" shall be deleted in their entirety and new references to the
current name of the Lender of "Fleet National Bank, as successor by merger to
Summit Bank" shall be inserted in their place and stead.
(d) All references to the "Loan Agreement" shall be deemed to refer
to the Loan Agreement as amended and modified up through and including this
Thirteenth Amendment.
(e) All references to any of the "Loan Documents" shall be deemed to
refer to such Loan Document as amended and modified up through and including
this Thirteenth Amendment.
7. Uniform Commercial Code. The Borrower, the Corporate Guarantors and the
Lender hereby covenant and agree that any and all references to the terms
"Uniform Commercial Code", the "Code" and/or the "UCC" contained in the Loan
Agreement, the Corporate Guaranty and/or in any other Loan Document shall mean
and refer to the Uniform Commercial Code, as adopted and enacted and as in
effect from time to time, of the applicable State or States. To the extent that
the definition of any category or type of collateral is modified by any
amendment, modification and/or revision to the Uniform Commercial Code, such
amended, modified and/or revised definition will apply to the Loan Agreement,
the Corporate Guaranty and all of the other
21
Loan Documents automatically as of the effective date of such amendment,
modification and/or revision.
8. Addition of Joule Staffing Services as a Corporate Guarantor.
(i) In consideration of the Revolving Credit Loan being made
available to the Borrower and with knowledge that the Lender would not have made
the Revolving Credit Loan available but for the promises of Joule Staffing
Services hereunder, Joule Staffing Services, by its execution and delivery of
this Thirteenth Amendment, hereby assumes, accepts, and agrees to be subject to,
on a joint and several basis with all of the other Corporate Guarantors, all of
the rights, obligations, responsibilities and liabilities of a "Corporate
Guarantor" under the Loan Agreement and under the Corporate Guaranty and is
hereby deemed to be a "Corporate Guarantor" thereunder as if it had originally
executed the Loan Agreement and the Corporate Guaranty. Joule Staffing Services
hereby represents and warrants to the Lender that it has read, understood and
agreed to each of the terms, conditions and provisions of the Loan Agreement,
the Loan Documents and the Corporate Guaranty. The addition of Joule Staffing
Services as a "Corporate Guarantor" shall in no way affect, change, modify or
diminish the obligations, responsibilities and liabilities of any of the other
Corporate Guarantors under the Loan Agreement, the Loan Documents or the
Corporate Guaranty.
(ii) The Borrower, Joule Technical Staffing, Inc. and Joule Technical
Services, Inc. hereby expressly confirm and affirm that the addition of Joule
Staffing Services to the Corporate Guaranty does not affect the enforceability
and validity of the Corporate Guaranty with respect to Joule Technical Staffing,
Inc. and Joule Technical Services, Inc., and 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.
9. Addition of Joule Staffing Services, Inc. to the Loan Agreement as an
Obligor.
(i) In consideration of the Revolving Credit Loan being made
available to the Borrower and with knowledge that the Lender would not have made
the Revolving Credit Loan available but for the promises of Joule Staffing
Services hereunder, Joule Staffing Services, by its execution and delivery of
this Thirteenth Amendment, hereby assumes and accepts all of the rights,
obligations, responsibilities and liabilities of an "Obligor" under the Loan
Agreement and is hereby deemed to be an "Obligor" under the Loan Agreement as if
it had originally executed the Loan Agreement.
(ii) As collateral security for the prompt and complete payment and
performance when due by Joule Staffing Services of all of its obligations and
liabilities under the Loan Agreement, the Corporate Guaranty and all of the
other Loan Documents, including, without limitation, the following: (i) all
indebtedness of Joule Staffing Services owed to the Lender arising on or after
the date hereof under the Loan Agreement and/or under the Corporate Guaranty,
both principal and interest, and any extensions, renewals, refundings,
substitutions of
22
or for such indebtedness in whole or in part, (ii) all indebtedness of Joule
Staffing Services owed to the Lender for reasonable fees, costs and expenses
contemplated by the Loan Agreement and/or the Corporate Guaranty, (iii) all
obligations of Joule Staffing Services to the Lender arising under the other
Loan Documents, (iv) all other indebtedness, obligations and liabilities of
Joule Staffing Services owed to the Lender now or hereafter existing, in
connection with the Loan Agreement and/or the Corporate Guaranty or any of the
other Loan Documents whether or not contemplated by the Lender and/or Joule
Staffing Services at the date hereof and whether direct or indirect, matured or
contingent, joint or several or otherwise, (v) all future advances made by the
Lender for the protection or preservation of the Collateral, including, without
limitation, reasonable advances for storage and transportation charges, taxes,
insurance, repairs and the like when and as the same become due whether at
maturity or by declaration, acceleration or otherwise, or if not due when
payment thereof shall be demanded by the Lender, and (vi) any and all costs and
expenses, including, without limitation, all costs and expenses of collection
and post-judgment collection costs and expenses, paid or incurred by the Lender
in connection with the collection of the amounts referred to in the preceding
clauses (i), (ii), (iii), (iv) or (v), in connection with the enforcement or
realization upon any or all of the Collateral or the Lender's security interest
therein or in connection with the taking of any other action permitted by the
Loan Agreement, Joule Staffing Services hereby collaterally assigns, mortgages,
hypothecates, conveys, transfers and grants to the Lender a continuing security
interest in all of its present and future rights, title and interests in and to
all of its personal property (whether tangible or intangible and whether now
owned or hereafter acquired), including, without limitation, the personal
property described in Section 3.1 of the Loan Agreement, as amended and modified
by this Thirteenth Amendment, wherever said personal property may be located, as
such personal property may be hereafter amended and/or modified from time to
time.
(iii)Joule Staffing Services hereby represents and warrants to the
Lender that it has read, understood and agreed to each of the terms, conditions
and provisions of the Loan Agreement. The addition of Joule Staffing Services as
an "Obligor" shall in no way affect, change, modify or diminish the obligations,
responsibilities and liabilities of any of the other Obligors under the Loan
Agreement. Each of the Borrower, Joule Technical Staffing, Inc. and Joule
Technical Services, Inc. hereby regrants, recoveys and reassigns a continuing
security interest in all of its present and future rights, title and interests
in and to all of its respective personal property (whether tangible or
intangible and whether now owned or hereafter acquired), including, without
limitation, the personal property described in Section 3.1 of the Loan
Agreement, as amended and modified by this Thirteenth Amendment, wherever said
personal property may be located, as such personal property may be hereafter
amended and/or modified from time to time.
10. Remaking of Representations and Warranties. 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 Thirteenth Amendment 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.
23
11. No Amendment of Other Terms. All other terms and conditions of the Loan
Documents, as amended and modified by this Thirteenth Amendment, 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
Thirteenth Amendment.
12. No Novation. It is the intention of the parties hereto that this
Thirteenth Amendment 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 Thirteenth Amendment, 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 Thirteenth Amendment are prejudiced hereby, if any, this
Thirteenth Amendment 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 shall have been terminated.
13. Additional Covenants, Representations and Warranties of the Borrower
and the Corporate Guarantors. The Borrower and the Corporate Guarantors do
hereby:
(i) ratify, confirm and acknowledge that, as amended and modified by
this Thirteenth Amendment, the Loan Documents continue to be valid, binding and
in full force and effect;
(ii) covenant and agree to perform all of their respective
obligations contained in the Loan Documents, as amended and modified by this
Thirteenth Amendment;
(iii)represent and warrant that, after giving effect to the
transactions contemplated by this Thirteenth Amendment, 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;
(iv) 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
24
(v) 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. Additional Documents; Further Assurances. The Borrower and the
Corporate Guarantors hereby covenant and agree to execute and/or deliver to the
Lender, or to cause to be executed and/or delivered to the Lender
contemporaneously herewith, at the sole cost and expense of the Borrower and the
Corporate Guarantors, any and all other documents, agreements, statements,
resolutions, certificates, opinions, consents, searches and information as the
Lender may reasonably request in connection with the matters or actions
described herein. The Borrower and the Corporate Guarantors hereby further
covenant and agree to execute and/or deliver to the Lender, or to use their best
efforts to cause to be executed and/or delivered to the Lender, at their sole
cost and expense, from time to time, any and all other documents, agreements,
statements, certificates and information as the Lender shall reasonably request
to evidence or effect the terms of the Loan Agreement, as amended and modified
up through and including this Thirteenth Amendment, or any of the other Loan
Documents, as amended and modified up through and including this Thirteenth
Amendment, or to enforce or protect the Lender's interest in the Collateral. All
such documents, agreements, statements, etc., shall be in form and content
reasonably acceptable to the Lender.
15. Fees, Costs, Expenses and Expenditures. The Borrower shall pay all of
the Lender's reasonable expenses in connection with the review, preparation,
negotiation, documentation and closing of this Thirteenth Amendment and the
consummation of the transactions contemplated hereunder, including, without
limitation, fees, expenses and disbursements of legal counsel retained by the
Lender and all fees related to filings, recordings of documents and searches,
whether or not the transactions contemplated hereunder are consummated.
16. No Waiver. Nothing contained herein constitutes an agreement or
obligation by the Lender to grant any further amendments to any of the Loan
Documents and nothing contained herein constitutes a waiver or release by the
Lender of any rights or remedies available to the Lender under the Loan
Documents, at law or in equity, provided that the foregoing is not intended to
revoke the Lender's previous consent to the requested actions by the Borrower
and/or the Corporate Guarantors where such consent was delivered by the Lender
in writing.
17. Inconsistencies. To the extent of any inconsistency between the terms
and conditions of this Thirteenth Amendment and the terms and conditions of the
Loan Agreement or the Loan Documents, the terms and conditions of this
Thirteenth Amendment shall prevail. All terms, conditions and provisions of the
Loan Agreement and the Loan Documents not inconsistent herewith shall remain in
full force and effect and are hereby ratified and confirmed by the Borrower
and/or the Corporate Guarantors.
18. Binding Effect. This Thirteenth Amendment shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
25
19. Counterparts. This Thirteenth Amendment may be executed by one or more
of the parties to this Thirteenth Amendment in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
20. Waiver Of Jury Trial. THE BORROWER, THE CORPORATE GUARANTORS AND THE
LENDER HEREBY WAIVE ANY AND ALL RIGHTS THAT THEY MAY NOW OR HEREAFTER HAVE UNDER
THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE, TO A TRIAL BY JURY OF ANY
AND ALL ISSUES ARISING EITHER DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING
BETWEEN THE BORROWER, THE CORPORATE GUARANTORS AND THE LENDER OR THEIR
RESPECTIVE SUCCESSORS AND/OR ASSIGNS, OUT OF OR IN ANY WAY CONNECTED WITH THIS
THIRTEENTH AMENDMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION WITH
THE REVOLVING CREDIT LOAN. IT IS INTENDED THAT SAID WAIVER SHALL APPLY TO ANY
AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDING. THE
BORROWER, THE CORPORATE GUARANTORS AND THE LENDER RECOGNIZE THAT ANY DISPUTE
ARISING IN CONNECTION WITH THE REVOLVING CREDIT LOAN IS LIKELY TO BE COMPLEX AND
CONSEQUENTLY THEY WISH TO STREAMLINE AND MINIMIZE THE COST OF THE DISPUTE
RESOLUTION PROCESS BY AGREEING TO WAIVE THEIR RIGHTS TO A JURY TRIAL.
26
IN WITNESS WHEREOF, the parties have caused this Thirteenth Amendment to be
duly executed, sealed and attested and/or witnessed, as appropriated, and
delivered, all as of the day and year first above written.
JOULE, INC., a Delaware corporation
JOULE TECHNICAL SERVICES, INC., a New Jersey corporation
JOULE TECHNICAL STAFFING, INC., a New Jersey corporation
JOULE STAFFING SERVICES, INC., a New Jersey corporation
[SEAL]
ATTEST:
------------------ By:__________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Secretary In his capacity as the President and Chief Operating
Officer of each of the above-referenced corporations
FLEET NATIONAL BANK, as successor by merger to Summit Bank
By:
------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
27