**EXHIBIT 10(b)**

 

SIXTH MODIFICATION IN TERMS AGREEMENT 

 

THIS SIXTH MODIFICATION IN TERMS AGREEMENT (the “Modification”), dated as of May 12, 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, (iv) a Fourth Modification In TermsAgreement, dated as of February 11, 2005, and (v) a Fifth Modification In Terms Agreement, dated as of March 31, 2005 (such credit agreement, as so amended, the “Agreement”). 

 

B. Lenders have (i) agreed to extend Revolving Loans to Borrowers in the maximum principal amount of $35,000,000, and (ii)extended Term Loans to Borrowers in the original principal amount of $6,000,000, pursuant to the Agreement. 

 

C. Borrowers have requested that (i) the Facility Termination Date (which is the termination date of the Commitments of the Lenders to extend RevolvingLoans to Borrowers) be extended from January 1, 2006 to April 1, 2006, and (ii) the Term Loan Maturity Date be extended from January 1, 2006 to April 1, 2006, and the Lenders are willing to consent to the same, pursuant to the terms and conditionsas set forth herein. 

 

Provisions

 

NOW, THEREFORE, in consideration of their mutual agreements hereunder andunder 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. 

 

(a) The Facility Termination Date shall be extended from January 1, 2006 to April 1, 2006, and in that connection the definition of “Facility Termination Date” set forth in Article I of the Agreement is hereby amended in itsentirety to provide as follows: 

 

““Facility Termination Date” means April 1, 2006 or any later date as may be specified as the Facility Termination Date in accordance with Section 2.20 or any earlier date on which the Aggregate Revolving Commitment isreduced to zero or otherwise terminated pursuant to the terms hereof.” 

(b) The Term Loan Maturity Date shall be extended from January 1, 2006 to April 1, 2006, and in thatconnection the definition of “Term Loan Maturity Date” set forth in Article I of the Agreement is hereby amended in its entirety to provide as follows: 

 

““Term Loan Maturity Date” means April 1, 2006.” 

 

(c) The quarterly principal installment payable on March 31, 2006 withrespect to the Term Loans shall not be required because of such extension of the Term Loan Extension Date, and in that connection Section 2.3(ii) of the Agreement is hereby amended in its entirety to provide as follows: 

 

“(ii) The principal of Term Loans shall be payable ininstallments of $300,000 each, which shall be due and payable on each Payment Date (but excluding March 31, 2006), commencing with the first such date to occur after the date of this Agreement, and all remaining outstanding principal of the TermLoans shall be due and payable on the Term Loan Maturity Date.” 

 

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

 

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

 

(b) Representations and Warranties. Therepresentations and warranties made by Borrowers in this Modification shall be true and correct 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 istrue, accurate and complete as of the date hereof. 

 

5.Representations and Warranties; No Defaults. Each Borrower hereby represents 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 Borrower contained 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 aspecific earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date; 

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

 

(c) neither this Modification nor any otherdocument, certificate or written statement furnished to Administrative Agent and/or Lenders or to special counsel to Administrative Agent by or on behalf of any Borrower in connection with the transactions contemplated hereby contains any untruestatement 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 obligationsprovided 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

the Revolving Loans and the Term Loans (collectively, the “Bank Documents”). Without limiting the generality ofthe foregoing, each Borrower reaffirms all of its payment obligations, including with respect to the Revolving Loans and the Term Loans under the Agreement and the Notes and with respect to the LC Obligations. In addition, each Borrower agrees thatAdministrative Agent, each Lender and LC Issuer have performed all of their obligations under the Bank Documents and that none of Administrative Agent, any Lender or LC Issuer is in default under any obligation any of them has or ever did have toany Borrower under the Bank Documents or any other agreement. As a specific inducement and consideration to Lenders, Administrative Agent and LC Issuer to enter into this Modification and agree to the transactions contemplated hereby, each Borrowerhereby 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 date hereof and arisingout 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 Agent or LC Issuer or anyof 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 employees of Administrative Agent and Lenders) paid or incurredby 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 to the conflict of lawsprovisions) 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 morecounterparts, each of which shall 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.**

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, Senior 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.