**EXHIBIT 10(a)**

 

FIFTH MODIFICATION IN TERMS AGREEMENT 

 

THIS FIFTH MODIFICATION IN TERMS AGREEMENT (the “Modification”), dated as of March 31, 2005 (the “EffectiveDate”), is entered into by and among MPW Industrial Services Group, Inc. (“MPW Group”), each of the Subsidiaries of MPW Group listed on the Schedule of Subsidiary Borrowers attached hereto, the Lenders listed on the signature pages ofthis Modification, and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Columbus)), as Administrative Agent and LC Issuer. 

 

Background Information

 

A. Borrowers, Lenders, Administrative Agent and LC Issuer entered into a certain Credit Agreement, dated as of June 18, 2002, as amended by (i) aModification In Terms Agreement, dated as of April 27, 2004, (ii) a Second Modification In Terms Agreement, dated as of August 6, 2004 (iii) a Third Modification In Terms Agreement, dated as of November 12, 2004, and (iv) a Fourth Modification InTerms Agreement, dated as of February 11, 2005 (such credit agreement, as so amended, the “Agreement”). 

 

B. Lenders have agreed to extend Revolving Loans to Borrowers in the maximum principal amount of $35,000,000, including a sublimit for LC Obligations inthe maximum amount of $5,000,000 (the “Facility LC Sublimit”), pursuant to the Agreement. 

 

C. Borrowers have requested that the Facility LC Sublimit be increased to $5,500,000, and the Lenders are willing to consent to the same, pursuant to theterms and conditions as set forth herein. 

 

Provisions

 

NOW, THEREFORE, in consideration of their mutual agreementshereunder and under the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrowers, Lenders and LC Issuer hereby agree as follows: 

 

1. Capitalized Terms. Except as otherwise defined herein, thecapitalized terms used herein shall have the same meanings as set forth in the Agreement. 

 

2. Modification of Terms. The Facility LC Sublimit shall be increased from $5,000,000 to $5,500,000, and in that connection:. 

 

(a) The maximum amount of the Aggregate Outstanding Revolving Credit Exposure, including the Facility LC Sublimit as soincreased, shall remain at $35,000,000.00. 

 

(b) Section 2.19.1of the Agreement shall be amended in its entirety to provide as follows: 

“2.19.1. Issuance. The LC Issuer hereby agrees, on the terms and conditionsset forth in this Agreement, to issue documentary and standby letters of credit (each, a “Facility LC”) and to renew, extend, increase, decrease or otherwise modify each Facility LC (“Modify,” and each such action a“Modification”), from time to time from and including the date of this Agreement and prior to the Facility Termination Date upon the request of the Borrowers; *provided* that immediately after each such Facility LC is issued orModified, (i) the aggregate amount of the outstanding LC Obligations shall not exceed $5,500,000 and (ii) the Aggregate Outstanding Revolving Credit Exposure shall not exceed the Aggregate Revolving Commitment. No Facility LC shall have an expirydate later than the earlier of (x) the fifth Business Day prior to the Facility Termination Date and (y) one year after its issuance.” 

 

3. Conditions to Lender’s Obligations. The agreement of Lenders and LC Issuer to enter into this Modification, and for Lenders and LC Issuerto be bound by the terms hereof, are subject to the satisfaction of the following conditions precedent: 

 

(a) Delivery of Documents. On or prior to the Effective Date, Administrative Agent shall have received such certificates, documentsand other items as Administrative Agent, in its reasonable discretion, deems necessary or desirable. 

 

(b) Representations and Warranties. The representations and warranties made by Borrowers in this Modification shall be true andcorrect in all material respects as of the date of this Modification. 

 

4. Exhibits and Schedules. Each Borrower confirms and warrants that the information set forth in all schedules and exhibits to the Agreement is true, accurate and complete as of the date hereof. 

 

5. Representations and Warranties; No Defaults. Each Borrower herebyrepresents and warrants to Lenders, LC Issuer and Administrative Agent that the following are true and correct as of the date of this Modification: 

 

(a) except as otherwise disclosed to the Lenders, Administrative Agent and LC Issuer, the representations and warranties of each Borrowercontained in the Agreement are true and correct on and as of the date of this Modification as if made on and as of such date, unless stated to relate to a specific earlier date, in which case they were true, correct and complete in all materialrespects on and as of such earlier date; 

 

(b)except as otherwise disclosed to the Lenders, Administrative Agent and LC Issuer, all financial statements and information of Borrowers provided to Administrative Agent and Lenders are true, accurate and complete in all material respects as of thedate of, and for the periods covered by, such financial statements and information; 

 

(c) neither this Modification nor any other document, certificate or written statement furnished to Administrative Agent and/or Lenders orto special counsel to 

Administrative Agent by or on behalf of any Borrower in connection with the transactions contemplatedhereby contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading; 

 

(d) each Borrower has full power and authority (i) to execute, deliver and perform this Modification, and(ii) to incur the obligations provided for herein and therein, all of which have been duly authorized by all necessary and proper action by each Borrower; 

 

(e) no consent, waiver or authorization of, or filing with, any person, entity or governmental authority is required to be made orobtained by any Borrower in connection with the execution, delivery, performance, validity or enforceability of this Modification; 

 

(f) this Modification constitutes the legal, valid and binding obligation of Borrowers, enforceable against Borrowers in accordance withits terms; 

 

(g) giving effect to the changesto the Agreement contemplated by this Modification, no Unmatured Default nor Default has occurred and is continuing; 

 

(h) no event has occurred which would have a Material Adverse Effect; and 

 

(i) the execution and delivery by Borrowers of this Modification and the performance by Borrowers of thisModification and the transactions contemplated hereby: (i) do not and will not violate any law or regulation; (ii) do not and will not violate any order, decree or judgment by which any Borrower is bound; (iii) do not and will not violate orconflict with, result in a breach of or constitute (with notice, lapse of time, or otherwise) a default under any material agreement, mortgage, indenture or other contractual obligation to which any Borrower is a party, or by which anyBorrower’s properties are bound; or (iv) do not and will not result in the creation or imposition of any lien upon any property or assets of any Borrower. 

 

6. Reaffirmation of Liability. Subject to the terms and conditions contained herein, each Borrower hereby reaffirms its liability to Lenderunder the Agreement, the Collateral Documents, the Notes, the other Loan Documents and all other agreements and instruments executed by Borrowers for the benefit of Administrative Agent, Lenders or LC Issuer in connection with the Agreement and theRevolving Loans and the Term Loans (collectively, the “Bank Documents”). Without limiting the generality of the foregoing, each Borrower reaffirms all of its payment obligations, including with respect to the Revolving Loans and the TermLoans under the Agreement and the Notes and with respect to the LC Obligations. In addition, each Borrower agrees that Administrative Agent, each Lender and LC Issuer have performed all of their obligations under the Bank Documents and that none ofAdministrative Agent, any Lender or LC Issuer is in default under any obligation any of them has or ever did have to any Borrower under the Bank Documents or any other agreement. As a specific inducement and consideration to Lenders, AdministrativeAgent and LC Issuer to enter into this Modification and agree to the transactions contemplated hereby, each Borrower hereby waives and releases each Lender, Administrative Agent and LC Issuer, their respective officers, directors, 

employees and representatives, from any and all claims or causes of actions, if any, accruing on or before the datehereof and arising out of the past and/or present business relationship among each Borrower and each Lender, Administrative Agent or LC Issuer which any Borrower now has or may have or in the future may have against any Lender, Administrative Agentor LC Issuer or any of their respective officers, directors, employees or representatives. 

 

7. Effectiveness of Modification. All of the terms, covenants and conditions of, and the obligations of Borrowers under, the Bank Documents shall remain in full force and effect as modified hereby. 

 

8. Preservation of Existing Security Interests. Each mortgage,security interest, pledge, assignment, lien or other conveyance or encumbrance of any right, title, or interest in any property of any kind delivered to Administrative Agent for the benefit of Lenders at any time by any Borrower or any other Personin connection with the Bank Documents or to secure the performance of the obligations of Borrowers under the Bank Documents, including pursuant to the Collateral Documents, shall remain in full force and effect following the execution of thisModification. Each Borrower hereby authorizes the Lenders and the Administrative Agent to file all UCC financing statements, amendments of existing UCC financing statements and correction statements with respect to UCC financing statements and otherdocuments that the Administrative Agent deems necessary or desirable in connection with any such security interests, including to file initial financing statements and amendments thereto that (x) indicate the collateral (i) as all assets and/orpersonal property of each Borrower or words of similar effect, regardless of whether any particular asset comprised in the collateral falls within the scope of Article 9 of the Ohio Uniform Commercial Code, or (ii) as being of an equal or lesserscope or with greater detail, and (y) provide any other information required by part 5 of Article 9 of the Ohio Uniform Commercial Code, for the sufficiency or filing office acceptance of any financing statement or amendment. 

 

9. Expenses. Borrowers shall reimburse Administrative Agent for anycosts, internal charges and out-of-pocket expenses (including reasonable attorneys’ fees and time charges of attorneys for Administrative Agent and Lenders, which attorneys may be employees of Administrative Agent and Lenders) paid or incurredby Administrative Agent and Lenders in connection with the preparation, negotiation, execution, delivery, performance, review, amendment, modification, and administration of this Modification, the Agreement and the other Bank Documents. Borrowersalso agree to reimburse Administrative Agent for any costs, internal charges and out-of-pocket expenses (including reasonable attorneys’ fees and time charges of attorneys for Administrative Agent and Lenders, which attorneys may be employeesof Administrative Agent and Lenders) paid or incurred by Administrative Agent and Lenders in connection with the collection and enforcement of the Agreement and the other Bank Documents. 

 

10. Applicable Law. This Modification shall be construed in accordance with the internal laws (but without regard tothe conflict of laws provisions) of the State of Ohio, but giving effect to federal laws applicable to national banks. 

 

11. Severability. Any provision of this Modification that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, beineffective only to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 

12. Counterparts. This Modification may be executed in one or more counterparts, each of whichshall be deemed an original, but all of which together shall constitute one and the same instrument. 

 

13. Amendments and Supplements. This Modification may not be amended or supplemented except by an instrument in writing executed by Borrowers andAgent. 

 

14. Covenants to Survive, Binding Agreement.This Modification shall be binding upon and inure to the benefit of Borrowers, Lenders, Administrative Agent and LC Issuer and their respective successors or assigns; provided, however, that Borrowers may not assign or otherwise dispose of any oftheir rights or obligations hereunder. 

 

15. EntireAgreement. This Modification embodies the entire agreement and understanding among Borrowers, Administrative Agent, Lenders and LC Issuer relating to, and supersedes all prior agreements and understandings among Borrowers, Administrative Agent,Lenders and LC Issuer relating to, the subject matter hereof. 

 

16. Headings. The headings of the sections of this Modification are for convenience only and shall not affect the meaning or interpretation of this Modification. 

 

17. Interpretation. This Modification is to be deemed to have been prepared jointly by the parties hereto, and anyuncertainty or ambiguity existing herein shall not be interpreted against any party but shall be interpreted according to the rules for the interpretation of arm’s length agreements. 

 

**18. WAIVER OF JURY TRIAL. EACH BORROWER, ADMINISTRATIVE AGENT, LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BYJURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.**

 

[Signatures on following pages] 

IN WITNESS WHEREOF, the parties hereto entered into this Modification to be effective as of the EffectiveDate. 

 
BORROWERS:MPW Industrial Services Group, Inc.By: 
/s/ Robert Valentine
Name: Robert ValentineTitle: Vice President, Chief Operating Officer,  Chief Financial Officer, Secretary and TreasurerEach of the Other Borrowers Listed on the Schedule of Subsidiary BorrowersBy: 
/s/ Robert Valentine
Name: Robert ValentineTitle: Vice President, Chief Operating Officer,  Chief Financial Officer, Secretary and Treasurer
 

[Signatures ofLenders, Administrative Agent and LC Issuer on Following Pages] 

JPMorgan Chase Bank, N.A.
(successor by merger to Bank One, NA (Main Office Columbus)),

as a Lender and as Administrative Agent and LC Issuer
By: 
/s/ Geoffrey M. Eagleson
  Geoffrey M. Eagleson, First Vice President
 

 

NATIONAL CITY BANK,as a LenderBy: 
/s/ Robert C. Wolfinger
  Robert C. Wolfinger, Senior Vice President

SCHEDULE OF SUBSIDIARY BORROWERS 

 

Aquatech Environmental, Inc. 

MPW IndustrialServices, Inc. 

MPW Management Services Corp. 

MPW IndustrialWater Services, Inc. 

MPW Container Management Corp. 

MPWContainer Management Corp. of Michigan 

MPW Industrial Services of Indiana, LLC 

MPW Industrial Cleaning Corp.