Exhibit No. 10(a)(1)
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment dated as of March 12, 1998 (the "Amendment") to the
Amended and Restated Credit Agreement, dated as of December 3, 1997, (the
"Credit Agreement"), is entered into by and among ICF Xxxxxx International, Inc.
("Borrower"), a Delaware corporation, each of its subsidiaries signatories
hereto (each a "Subsidiary Guarantor" and collectively the "Subsidiary
Guarantors"), the banking institutions signatories hereto (each, a "Bank" and
collectively, the "Banks") and CoreStates Bank, N.A., as agent for the Banks
under this Credit Agreement (in such capacity, the "Agent").
WITNESSETH
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WHEREAS, Borrower, each Subsidiary Guarantor, the Banks and the Agent are
parties to an Amended and Restated Credit Agreement, dated as of December 3,
1997 (the "Credit Agreement"), whereby the Banks have agreed to provide a
revolving credit facility for loans and for letters of credit;
WHEREAS, the Borrower and the Subsidiary Guarantors have requested, and the
Banks and the Agent have agreed, to amend the Credit Agreement in certain
respects, as provided herein.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment to Credit Agreement.
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a. The definition of "EBITDA" in Section 1.1 of Article I is hereby
amended in order to add a new subsection (h), and such definition, as so
amended, shall read in its entirety as follows:
"EBITDA" shall mean, for any period, Consolidated Net Income plus the
sum of (a) Consolidated Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) extraordinary or
unusual losses or other losses not incurred in the ordinary course of
business included in the calculation of net income, (f) any non-cash charge
against net income required to be recognized in connection with the
issuance of capital stock to employees (whether upon lapse of vesting
restrictions, exercise of employee options or otherwise), (g) any non-cash
charge against net income required to be recognized in connection with
employee benefit plans, and (h) for the fourth fiscal quarter of 1997, an
amount not to exceed $9.3 million in connection with the four nitric acid
projects of the Borrower or any Subsidiary set forth in Schedule 1.1(a)
hereto, less extraordinary or unusual gains or other gains not incurred in
the ordinary course of business included in the calculation of net income,
in each case to the extent such items are taken into account in determining
Consolidated Net Income.
b. The definition of "Investment" in Section 1.1 of Article I is hereby
amended in order to add a new clause to the end of subsection (v) of such
definition, and such subsection (v), as so amended, shall read in its entirety
as follows:
(v) investments in the form, or out of the net proceeds of the sale
(other than to a Subsidiary or employee stock ownership plan of Borrower)
of, Capital Stock of Borrower, subject to the conditions set forth in
Section 7.6(d).
c. Section 6.1 of Article VI is hereby amended in order to add a new
subsection (m) together with a new Schedule 6.1(m), and such new subsection (m)
shall read in its entirety as follows and the new Schedule 6.1(m) is attached
hereto:
6.1 Financial Statements and Reports. Furnish to the Agent and each
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of the Banks the following financial information:
(m) Nitric Acid Project Monthly Reports. Within 30 calendar days
after the end of any month and until all of the four nitric acid projects
of the Borrower or any Subsidiary set forth in Schedule 1.1(a) hereto are
completed, a nitric acid project monthly report for the immediately
preceding calendar month containing information with respect to the actual
cost to complete and cash flows of each nitric acid project set forth in
Schedule 1.1(a) hereto; in each such report, the actual information
required to be contained therein shall be compared to the projected cost to
complete and cash flows for each such nitric acid project as set forth in
Schedule 1.1(a).
d. Section 7.6(d) of Article VII is hereby amended in order to specify
that the dollar limitations apply to cash used for such Investments and
Acquisitions and to add four new clauses thereto, and such subsection (d) as so
amended, shall read in its entirety as follows:
7.6 Acquisitions and Investments.
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Make any Investments in any Person, except:
(d) Borrower or any Subsidiary may make and own Investments in a
Person or acquire all or substantially all of the assets or Capital Stock
of any Person (an "Acquisition") provided that the aggregate amount of all
such Acquisitions after the date hereof shall not exceed $5,000,000 cash in
the aggregate and any single Acquisition shall not exceed $2,000,000 cash;
provided, further, (i) that the Borrower shall be required to obtain the
consent of the Required Banks for all proposed Acquisitions with a Total
Consideration greater than $2,000,000 (in cash) and $4,000,000 (in cash
and/or in the form of Capital Stock or any other consideration) (each such
Acquisition a "Large Acquisition"), (ii) that no later than 30 calendar
days prior to the closing on any proposed Large Acquisition, the Borrower
shall request such consent and shall provide the Agent and the Banks with
an information package on any such proposed Large Acquisition containing a
synopsis of the proposed Large Acquisition, actual and projected financial
information for the proposed Large Acquisition (three years historical and
five years projected), and pro forma covenant compliance under the Credit
Agreement assuming closing on such Large Acquisition, (iii) that for the
purposes of this subsection (d), Total Consideration shall include the
purchase price plus assumed liabilities (including contingent liabilities)
of any Large Acquisition, and (iv) that the Agent and the Required Banks
shall act on each such request for consent within 15 calendar days from
receipt of such request from the Borrower.
2. Conditions Precedent. The amendment to the Credit Agreement contained in
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Section 1 hereof shall be effective upon satisfaction of the following
conditions precedent.
(a) Evidence of Authorization. The Banks shall have received copies
certified by the Secretary or Assistant Secretary of Borrower and each
Subsidiary Guarantor of all corporate or other action taken by such party to
authorize its execution and delivery and performance of this First Amendment and
the Loan Documents as amended hereby, together with such other related papers as
the Banks shall reasonably require.
(b) Documents. The Agent shall have received all certificates, instruments
and other documents then required to be delivered pursuant to any Loan
Documents, in each instance in form and substance reasonably satisfactory to the
Agent and the Banks.
(c) Fee. The Agent shall have received for the account of the Banks the
previously agreed to amendment fee.
(d) Other Agreements. Borrower and each Subsidiary Guarantor shall have
executed and delivered each other Loan Document required hereunder.
3. Representations and Warranties.
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(a) The Borrower confirms the accuracy of the representations and
warranties made in Article 3 of the Credit Agreement as of the date originally
given and restates to the Banks such representations and warranties on and as of
the date hereof as if originally given on such date.
(b) The Borrower confirms that as of the date of this First Amendment,
there has been no litigation, administrative proceeding, investigation, business
development, or change in financial condition which could reasonably be expected
to have a material adverse effect on the business, operations, assets or
condition (financial or otherwise) of the Borrower or its Subsidiaries taken as
a whole.
4. Covenants.
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(a) The Borrower warrants to the Banks that the Borrower is in compliance
and has complied with all covenants, agreements and conditions in each Loan
Document on and as of the date hereof, that no Potential Default or Event of
Default has occurred and is continuing on the date hereof and that, upon the
consummation of the transactions contemplated hereby, no Potential Default or
Event of Default shall have occurred and be continuing.
(b) The Borrowers shall provide to the Agent and its representatives all
requested access and assistance as shall be reasonably necessary for such due
diligence review as the Agent shall determine is necessary or advisable,
including without limitation a collateral audit.
5. Effect of Agreement.
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This Agreement amends the Loan Documents only to the extent and in the
manner herein set forth, and in all other respects the Loan Documents are
ratified and confirmed.
6. Counterparts.
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This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures hereto were upon
the same instrument.
7. Governing Law.
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This Agreement and all rights and obligations of the parties hereunder
shall be governed by and be construed and enforced in accordance with the laws
of Pennsylvania without regard to principles of conflict of law.
IN WITNESS WHEREOF, the Borrower, the Subsidiary Guarantors, and the Banks
have caused this Agreement to be executed by their proper corporate officers
thereunto duly authorized as of the day and year first above written.
CORESTATES BANK, N.A. ICF XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President Title: Executive Vice President and
Chief Financial Officer
FIRST UNION COMMERCIAL CORP. NATIONAL BANK OF CANADA
By: /s/ X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President/Manager
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BANKBOSTON, N. A.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Vice President
The Subsidiary Guarantors:
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XXXXXXX INTERNATIONAL CORPORATION
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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CYGNA CONSULTING ENGINEERS & PROJECT MANAGEMENT,
INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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CYGNA GROUP, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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EDA, INCORPORATED
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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EXCELL DEVELOPMENT CONSTRUCTION, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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GLOBAL TRADE & INVESTMENT, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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XXXXX X. XXXXXX COMPANY
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF INCORPORATED
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF INFORMATION TECHNOLOGY, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS (CALIFORNIA) CORPORATION
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS CORPORATION
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS GROUP, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS MASSCAHUSETTS, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS PACIFIC, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX ENGINEERS, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX EUROPE, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX GOVERNMENT PROGRAMS, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX XXXXXXX COMPANY
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX HOLDINGS UNLIMITED, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX NETHERLANDS B.V.
By its Managing Directors
ICF XXXXXX HOLDINGS UNLIMITED, INC.
Represented by: Xxxxxxx X. Xxxxxxx, President
By: /s/ Xxxxxxx X. Xxxxxxx
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ICF XXXXXX ENGINEERS EASTERN EUROPE, INC.
Represented by: Xxxx Xxxxx, II, Director & Secretary
By: /s/ Xxxx Xxxxx, II
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ICF XXXXXX OVERSEAS ENGINEERING, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX REMEDIATION COMPANY
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX SYSTEMS, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF XXXXXX/XXXXXXX XXXXXX, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF LEASING CORPORATION, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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ICF RESOURCES INCORPORATED
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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XXXXXX ENGINEERS AND CONSTRUCTORS, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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XXXXXX ENGINEERS INTERNATIONAL, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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XX XXXXXXXXX, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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KE SERVICES CORPORATION
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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PCI OPERATING COMPANY, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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SYSTEMS APPLICATIONS INTERNATIONAL, INC.
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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TUDOR ENGINEERING COMPANY
Name: Xxxxxxx X. X'Xxxxxx
By: /s/ Xxxxxxx X. X'Xxxxxx Title: Assistant Treasurer
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