EXHIBIT 10(ii) 21.
-----------------
CONFORMED COPY
SECOND AMENDMENT TO
CREDIT AGREEMENT,
MASTER COLLATERAL AND INTERCREDITOR AGREEMENT AND
NOTE PURCHASE AGREEMENTS
AMENDMENT AND CONSENT, dated as of October 30, 1996 (the
"Amendment"), to (i) the Credit Agreement, dated as of October 24, 1995,
as amended by Amendment No. 1 to Credit Agreement, dated as of January 5,
1996 (as amended, supplemented or otherwise modified from time to time,
the "Agreement") among IT CORPORATION, a California corporation (the
"Borrower"), the several banks and other financial institutions from time
to time parties thereto (the "Lenders") and The Chase Manhattan Bank
(formerly known as Chemical Bank), as administrative agent for the Lenders
(in such capacity, the "Agent"), (ii) the Master Collateral and
Intercreditor Agreement, dated as of October 24, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement"), among the Lenders and the holders of the outstanding Senior
Notes (collectively, the "Participating Creditors") and The Chase
Manhattan Bank (formerly known as Chemical Bank), as collateral agent for
the Participating Creditors and (iii) the several Note Purchase
Agreements, each dated as of October 24, 1995, as amended by Amendment No.
1 to Note Purchase Agreements, dated as of January 5, 1996 (as amended,
supplemented or otherwise modified from time to time, collectively, the
"Note Agreements") between the Borrower and the respective Purchasers
party thereto (the Agreement, the Intercreditor Agreement and the Note
Agreements, collectively, the "Agreements").
W I T N E S S E T H :
WHEREAS, the parties hereto wish to amend or waive certain
provisions of the Agreements on the terms set forth herein;
NOW, THEREFORE, in consideration of the premise contained
herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in
the Agreements as amended hereby.
2. Consent. Notwithstanding anything to the contrary
contained in the Loan Documents (as defined in the Credit Agreement), the
Note Agreements, the Senior Notes or the Intercreditor Agreement, the
parties hereto hereby agree that the Carlyle Transaction shall not
constitute a Change of Control under the Agreements, provided that the
aggregate net cash proceeds received by the Borrower upon consummation of
the Carlyle Transaction is at least $40,000,000.00.
3. Amendment to Section 1.1 of the Credit Agreement
(Definitions). The definition of "Applicable Margin" is hereby amended by
2
(i) deleting the word "and" before the word "(b)" and substituting
therefor "," and (ii) deleting the clause beginning"; and provided,
further," and substituting therefor the following to read in its entirety:
"(c) in addition, for each day from the Second
Amendment Effective Date to and including June 30, 1997, an
additional 0.75% shall be added to the applicable rate per
annum for any outstanding Alternate Base Rate Loans or
Eurodollar Loans in clauses (a) or (b) above; and
(d) in addition, for each day of each calendar quarter
following the calendar quarter ending June 30, 1997, the
applicable rate set forth below opposite the Leverage Ratio
(in each case calculated as of the last day of the
Borrower's fiscal quarter ending on or about the beginning
of such calendar quarter and based upon the Borrower's
financial statement for such fiscal quarter delivered to the
Lenders pursuant to Section 21 of Schedule III) shall be
added to the applicable rate per annum for any outstanding
Alternate Base Rate Loans or Eurodollar Loans in clauses (a)
or (b) above:
Leverage Ratio
--------------
< 2.99 None
-
3.00 < 3.49 + 0.25%
-
3.50 < 3.99 + 0.50%
-
4.00 < 4.49 + 0.75%
-
4.50 < 4.99 + 1.00%
-
> 5.00 + 1.25%".
-
4. Amendment to Subsection 4.3 of the Credit Agreement
(Purpose of Loans). Subsection 4.3 is hereby amended by:
(i) deleting the word "and" appearing at the end of
clause (iii);
(ii) deleting the period at the end of clause (iv)
thereof and substituting the word "; and" in lieu thereof;
and
(iii) inserting a new clause at the end thereof to read
in its entirety "(v) Investments, subject to the limitations
contained in Section 13 of Schedule II.".
5. Amendment to Schedule I (Uniform Definitions). (a)
Schedule I is hereby amended by adding in the appropriate alphabetical
order the following new definitions:
"'Carlyle 6% Preferred Stock' shall mean the 6%
convertible participating preferred stock issued by the
Parent, $100.00 par value per share, which are convertible
into shares of the Parent's common stock."
3
"'Carlyle Transaction' shall mean the acquisition of
(i) up to 45,000 shares of Carlyle 6% Preferred Stock (and
the distribution of additional shares of Carlyle 6%
Preferred Stock as a dividend on the Carlyle 6% Preferred
Stock, to be distributed at a rate of 3% for a period not
exceeding one year during the second year after the date of
issue) and (ii) warrants to purchase 5,000,000 shares of
common stock, $1.00 par value per share, of the Parent and
the exercise of such warrants, in each case, by certain
limited partnerships of which TC Group, L.L.C. is the
general partner, pursuant to the Securities Purchase
Agreement (without any material amendments or waivers to the
terms thereof, including, without limitation, the
Certificate of Designation, attached as Exhibit A thereto)."
"'Leverage Ratio' shall mean, on the last day of any
fiscal quarter, the ratio of (i) an amount equal to the
average month-end Total Debt for each month ended in such
fiscal quarter to (ii) EBITDA for the period of four
consecutive fiscal quarters ending on such day."
"'Second Amendment' shall mean the Second Amendment to
the Credit Agreement, the Master Collateral and
Intercreditor Agreement and the Note Purchase Agreements,
dated as of October 30, 1996, by and among the Borrower, the
Agent, the Lenders and the Noteholders."
"'Second Amendment Effective Date' shall mean the date
upon which (i) the Second Amendment is (a) executed by the
Borrower, the Majority Creditors, the Agent and each
Noteholder and (b) acknowledged by the Borrower, the Parent,
IT-Tulsa Holdings, Inc., IT Hanford, Inc., Universal
Professional Insurance Company, Gradient Corporation, Zentox
Corporation, (ii) the Agent receives a non-refundable
amendment fee in the amount equal to $300,000.00 (the
"Amendment Fees") for the ratable benefit of each Lender, in
immediately available funds and (iii) each Noteholder
receives its ratable share (based on such Lender's
percentage of the outstanding principal amount of the Senior
Notes) of a non-refundable fee in the aggregate amount of
$325,000.00 (each, a "Noteholder's Fee") in immediately
available funds."
"'Securities Purchase Agreement' shall mean the
Securities Purchase Agreement, dated as of August 28, 1996,
by and among the Parent and certain limited partnerships of
which TC Group, L.L.C. is the general partner."
(b) The definition of "Capital Expenditures" is hereby amended
by (i) deleting the word "," following the words "and equipment" and
substituting therefor the words ", other than in connection with
acquisitions of assets comprising a business unit or Capital Stock of any
Person, and" and (ii) deleting the clause (c) in its entirety.
(c) The definition of "Consolidated Net Worth" is hereby
amended by deleting it in its entirety and substituting therefor the
following new definition in its entirety:
"shall mean, without duplication, (a) the capital stock (but
excluding treasury stock and capital stock subscribed but
unissued and preferred stock of the Parent or any of its
4
Subsidiaries redeemable prior to October 31, 2003) and
surplus accounts of the Parent and its Restricted
Subsidiaries appearing on a consolidated balance sheet of
the Parent and its Restricted Subsidiaries prepared in
accordance with GAAP, provided that the investment in
Quanterra represented in such accounts and surplus shall be
included only to the extent of such investment existing at
the Second Amendment Effective Date at all times valued at
its book value (such amount on the Second Amendment
Effective Date being $13,925,000.00) plus the book value of
up to $3,575,000.00 of additional investment in Quanterra,
plus (b) non-cash charges arising from the writing off of
the asset values for deferred taxes and the investment in
Quanterra in an amount no greater than $30,000,000.00,
provided to the extent that the non-cash charges referred to
in this clause (b) are less than $30,000,000.00, any other
non-cash charges in an amount no greater than $5,000,000.00,
in any case taken during the period from the Second
Amendment Effective Date to and including the fiscal year
ending on or before March 31, 1998 minus (c) Restricted
Investments, and minus:
(d)(i) (A) the net book amount of all assets,
after deducting any reserves applicable thereto, which
would be treated as intangibles under GAAP, including,
without limitation, such items as good will,
trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with
respect to the foregoing, unamortized debt discount and
expense (other than the capitalized expenses related to
the Credit Agreement and the Note Agreements and
amendments and waivers thereto up to and including the
Second Amendment, but not any subsequent amendments,
refinancings or waivers relating thereto),
organizational expenses and the excess of cost of
purchased Subsidiaries over equity in the net assets
thereof at the date of acquisition (collectively,
"Intangible Assets") reflected on the Parent's
consolidated balance sheet up to and including
September 27, 1996, and, (B) either (1) only 50% of any
Intangible Assets acquired after September 27, 1996,
subject to the consummation of the Carlyle Transaction
or (2) 100% of any Intangible Assets acquired after
September 27, 1996 if the Carlyle Transaction is not
consummated;
(ii) any write-up in the book value of any asset
on the books of the Parent or any Restricted Subsidiary
resulting from a revaluation thereof subsequent to the
Closing Date;
(iii) the amounts, if any, at which any shares of
stock of the Parent or any Restricted Subsidiary appear
on the asset side of such balance sheet; and
(iv) all deferred charges (other than deferred
taxes and prepaid expenses).".
(d) The definition of "Guaranty" is hereby amended by inserting
at the end thereof the following sentence in its entirety:
5
"For clarification purposes, all Debt of a Permitted Joint
Venture guaranteed by the Parent or any of its Restricted
Subsidiaries or which is recourse to the Parent or any of
its Restricted Subsidiaries, as the case may be, shall be a
Guaranty.".
(e) The definition of "Make-Whole Amount" is hereby amended by
deleting the definition of "Remaining Scheduled Payments" thereto in its
entirety and substituting in lieu thereof the following new definition in
its entirety:
"'Remaining Scheduled Payments' means, with respect to
the Called Principal of any Senior Note, all payments of
such Called Principal and interest thereon (assuming for
such purposes that interest (computed on the basis on a 360-
day year of twelve 30-day months) shall be deemed to accrue
at a rate of 8.67% per annum, payable semi-annually on each
April 30 and October 30) that would be due after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is
not a date on which interest payments are due to be made
under the terms of the Senior Notes, then the amount of the
next succeeding scheduled interest payment will be reduced
by the amount of interest accrued to such Settlement Date
and required to be paid on such Settlement Date pursuant to
Section 7 or 10 of the Note Agreements.".
(f) The definition of "Permitted Joint Ventures" is hereby
amended by (i) deleting clause (ii) in its entirety and renumbering the
subsequent clauses accordingly and (ii) deleting the word "$15,000,000"
in clause (iii) thereto and substituting therefor the word "$20,000,000".
(g) The definition of "Senior Notes" is hereby amended by
deleting it in its entirety and substituting in lieu therefor the
following new definition in its entirety:
"'Senior Notes' shall mean $65,000,000 aggregate
principal amount of the Company's Guaranteed Senior Secured
Notes due October 30, 2003 (including any such notes issued
in substitution therefor pursuant to Section 11 of the Note
Agreements or pursuant to the Second Amendment) originally
issued pursuant to the Note Agreements, to be substantially
in the form of the Senior Note set out in Exhibit A to the
Note Agreements, with such changes therefrom, if any, as may
be approved by the Noteholders and the Company.".
6. Amendment to Schedule II (Uniform Representations
and Warranties).
(a) Section 5 is hereby amended by (i) deleting the words
"March 31, 1995" and substituting therefor the words "June 28, 1996" and
(ii) inserting immediately after the words "Exchangeable Preferred Stock"
in clause (c) thereto the words "and the Carlyle 6% Preferred Stock.".
6
(b) Section 13 is hereby amended by (i) deleting the word "and"
following the words "other existing Debt" and substituting therefor ","
and (ii) deleting the period at the end thereof and substituting therefor
the following new clause in its entirety:
"and, subject to the consummation of the Carlyle
Transaction, to make Investments, provided that with respect
to any Investment made with the proceeds of any Loan (i)
such Investment shall not be made on or before September 30,
1997, (ii) the aggregate amount of Loans used by the Company
for such Investments shall not exceed $20,000,000.00 for any
consecutive four-quarter period, (iii) such Investments
shall not be an acquisition that has not been approved by
the Board of Directors of the Person being acquired, (iv)
such Investments shall not be of an entity organized under
the laws of any jurisdiction other than the United States of
America or any state thereof or Canada, (v) such Investments
(whether pursuant to a single transaction or a series of
related transactions) shall not be made for consideration
greater than $10,000,000.00 unless EBITDA minus capital
expenditures (each as defined under GAAP) for the Person
being acquired shall be positive in the aggregate for no
less than two fiscal years immediately preceding such
purchase, (vi) after giving effect to such Loans, the
Available Commitment of all Lenders is at least $5,000,000
and (vii) Borrowing Base excess on a pro forma basis after
taking into account the inclusion of such assets being
acquired shall be at least $20,000,000.00 until September
30, 1998, and at least $15,000,000.00 thereafter.".
7. Amendment to Schedule III (Uniform Covenants). (a)
Subsection 1(a)(v) is hereby amended by inserting at the end thereof the
following in its entirety:
", and, subject to the consummation of the Carlyle
Transaction, an additional amount of Debt comprised of
unsecured debt incurred or assumed in connection with any
acquisition not prohibited hereunder in an aggregate
principal amount outstanding not to exceed (A)
$10,000,000.00 or (B) from and after the first date on which
the ratio of Total Debt to EBITDA, as calculated pursuant to
clause (viii) hereof, as at the last day of the most recent
fiscal quarter for which financial statements have been
delivered hereunder is less than 3.50:1.00,
$20,000,000.00.".
(b) Section 3 is hereby amended by deleting it in its entirety
and substituting therefor the following in its entirety:
"The Parent will not, as at the end of each fiscal
quarter, permit the Leverage Ratio to be greater than the
ratios specified below for the fiscal quarters ending in the
periods specified below:
Period Ratio
------ -----
Beginning September 28, 1996
through and including March 28, 1997 7.00:1.00
Beginning March 29, 1997
through and including December 26, 1997 6.00:1.00
7
Beginning December 27, 1997
through and including June 26, 1998 5.00:1.00
Beginning June 27, 1998
through and including December 25, 1998 4.50:1.00
Beginning December 26, 1998
through and including December 31, 1999 4.00:1.00
Thereafter 3.50:1.00".
(c) Section 4 is hereby amended by deleting it in its entirety
and substituting therefor the following new paragraph in its entirety:
"The Parent will not, as at the end of any fiscal
quarter beginning with the fiscal quarter commencing on
September 28, 1996, permit Consolidated Net Worth to be less
than the sum of (a) $112,400,000, plus (b) 50% of the
cumulative Net Income (without reduction for loss during any
fiscal quarter) for all fiscal quarters ending after
September 27, 1996, plus (c) 50% of (i) the net cash
proceeds from the sale or issuance of any of the Parent's
common stock directly or through the conversion of
convertible debt and (ii) any cash proceeds received from
the exercise of any warrants and rights to purchase the
Parent's common stock, plus (d) 60% of the net cash proceeds
from the issuance and sale of any Carlyle 6% Preferred
Stock.".
(d) Section 5 is hereby amended by deleting it in its entirety
and substituting therefor the following in its entirety:
"The Parent will not, as at the end of each fiscal
quarter specified below, permit the ratio of (i) EBIT for
the period specified below, to (ii) an amount equal to (A)
Interest Expense for such period minus any fees paid
pursuant Section 13 of to the Second Amendment amortized or
required to be amortized in the determination of Net Income
for such period, plus (B) all cash dividends on Preferred
Stock paid during such period, including, without
limitation, all cash dividends paid on Carlyle 6% Preferred
Stock during such period, plus (C) on and after March 26,
1999, the current maturities of long term debt, to be less
than the ratios specified below:
Fiscal Quarter Ending Ratio
--------------------- -----
Quarter Ended March 28, 1997 0.75:1.00
Two Quarter Period
Ended June 27, 1997 1.00:1.00
Three Quarter Period
Ended September 26, 1997 1.00:1.00
Four Quarter Period
Ended December 26, 1997 1.25:1.00
Four Quarter Periods
Ended March 27, 1998
and June 26, 1998 1.50:1.00
Four Quarter Period
Ended September 25, 1998 1.75:1.00
8
Rolling Four Quarter Periods
Ended December 25, 1998
and thereafter 2.00:1.00".
(e) Section 6(b) is hereby amended by inserting immediately
after the word "35%" the clause "(or, in the case of the Carlyle
Transaction, 20%)".
(f) Section 7(g) is hereby amended by (i) deleting the
word "$15,000,000" and substituting therefor the word "$20,000,000" and
(ii) inserting at the end of Section 7(g) the following in its entirety:
", provided that no such Permitted Joint Venture may owe or
incur any Debt with recourse against the Parent or its
Restricted Subsidiaries, as the case may be, nor shall the
Parent or any of its Restricted Subsidiaries guarantee such
Debt of a Permitted Joint Venture, unless such Debt or
guarantee is permitted to be made by Section 1
hereunder.".
(g) Section 7 is hereby amended by (i) deleting the period at
the end of clause (k) thereto and substituting therefor the word "," and
(ii) inserting the following new clause in its entirety at the margin:
", provided that with respect to any Investment pursuant to
this Section 7, (A) the Agent shall have the option to
perform an audit of assets directly or indirectly being
acquired thereby, at the Borrower's expense, prior to the
inclusion in the Borrowing Base of such assets if the value
of such assets is less than 10% of the Borrowing Base for
the immediately preceding month and (B) the Agent shall
perform an audit of assets directly or indirectly being
acquired thereby, at the Borrower's expense, prior to such
assets inclusion in the Borrowing Base if the value of such
assets is (i) equal to or greater than 10% of the Borrowing
Base for any single acquisition or (ii) equal to or greater
than 25% of the Borrowing Base in the aggregate for the
immediately preceding four quarters (it being understood
that the foregoing proviso is not intended to limit or
restrict any other inspection or evaluation rights of the
Agent set forth in the Loan Documents).".
(h) Section 8(c) is hereby amended by (i) deleting the word
"or" appearing before the word "(ii)" and substituting therefor the word
"," and (ii) inserting at the end of Section 8(c) the following new
clause (iii) "or (iii) to enable the Parent to pay dividends on the
Carlyle 6% Preferred Stock, provided that at no time shall the dividend
rate per annum on the Carlyle 6% Preferred Stock exceed 6%".
(i) Section 8 is hereby further amended by:
(i) deleting the word "or" at the end of clause
(d)(ii)(D) thereto;
(ii) deleting the word "." at the end of clause (f)
thereto and substituting therefor the words "; or"; and
9
(iii) inserting the following new paragraph (g) in its
entirety:
"(g) so long as no Default or Event of Default
shall have occurred and is continuing, the Company may
redeem its capital stock out of the net cash proceeds
of the issuance of any other new capital stock,
provided that the new capital stock being issued is (i)
either pari passu or junior in right to receive
dividends and (ii) has no additional or improved
economic terms than the capital stock being redeemed
and that such redemption and issuance occur within a
reasonable period of time.".
(j) Schedule III is hereby further amended by adding the
following new Section 27 in its entirety:
"Section 27. Use of Proceeds of Senior Notes.
Neither the Parent or any of its Affiliates will, directly
or indirectly, use any of the proceeds of the sale of the
Senior Notes for the purpose, whether immediate, incidently
or ultimate, of buying a "margin stock" or of maintaining,
reducing or retiring any indebtedness originally incurred to
purchase a stock that is currently a "margin stock", or for
any other purpose which might constitute this transaction a
"purpose credit", in each case within the meaning of
Regulation G of the Board of Governors of the Federal
Reserve System (12 C.F.R. 207, as amended) or Regulation U
of such Board (12 C.F.R. 221, as amended), or otherwise take
or permit to be taken any action which would involve a
violation of such Regulation G or Regulation U or of
Regulation T (12 C.F.R. 220, as amended) or Regulation X (12
C.F.R. 224, as amended) or any other regulation of such
Board. No indebtedness being reduced or retired out of the
proceeds of the sale of the Senior Notes was incurred for
the purpose of purchasing or carrying any such "margin
stock", and neither the Company or any of its Affiliates
owns or has any intention of acquiring such "margin
stock".".
8. Limited Waiver. Compliance with Sections 2, 4 and 5 of
Schedule III is hereby waived for the quarters ended June 28, 1996 and
September 27, 1996.
9. Amendment to Section 1 of the Note Agreements. Section 1
of each Note Agreement is hereby amended by deleting it in its entirety
and substituting therefor the following paragraph in its entirety:
"SECTION 1. AUTHORIZATION OF SENIOR NOTES.
The Company will authorize the issue and sale of
$65,000,000 aggregate principal amount of its 8.67%
Guaranteed Senior Secured Notes due October 30, 2003
(including any such notes issued in substitution therefor
pursuant to Section 11 or pursuant to the Second Amendment),
to be substantially in the form of the Senior Note set out
in Exhibit A, with such changes therefrom, if any, as may be
approved by you and the Company. Certain capitalized terms
used in this Agreement are defined in Schedule I; references
10
to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this
Agreement.
The Senior Notes will be guaranteed by the Parent and
the Subsidiary Guarantors pursuant to the Guarantees and
will be secured as provided in the Security Documents.".
10. Amendment to Section 8 of the Note Agreements. Section 8
of each Note Agreement is hereby amended by deleting it in its entirety
and substituting therefor the following paragraph in its entirety:
"SECTION 8. COVENANTS OF THE COMPANY
The Company covenants that from the date of this
Agreement through the Closing and thereafter so long as any
of the Senior Notes are outstanding, (a) it will observe and
comply with the "Uniform Covenants" set forth in Schedule
III, which Schedule III is incorporated herein as if set
forth herein in full, and (b) commencing on the Second
Amendment Effective Date, the Company will pay interest on
the unpaid balance of the principal amount of the Senior
Notes outstanding until the unpaid balance shall become due
and payable (whether at stated maturity or at a date fixed
for prepayment or by declaration or otherwise) at the rate
calculated below (the "Rate"), in cash, on each April 30 and
October 30 after the Second Amendment Effective Date, and
with interest on any overdue principal (including any
overdue prepayment of principal) and premium, if any, and
(to the extent permitted by law) on any overdue interest, at
the Rate plus 2.00%, payable semi-annually as aforesaid or,
at the option of the holder of its respective Senior Note,
on demand.
The interest shall be calculated by the Company on a
daily basis (each such day, a "Determination Date") based on
the principal amount of the Senior Notes outstanding on such
Determination Date. Daily interest shall be calculated,
based on actual days elapsed in a 365-day year, at a rate
per annum equal to 9.42% for the period commencing on the
Second Amendment Effective Date to and including June 30,
1997, and for each day of each calendar quarter following
the calendar quarter ending June 30, 1997, at a rate per
annum equal to the sum of (i) 8.67% plus (ii) the applicable
rate set forth below opposite the Leverage Ratio (in each
case calculated as of the last day of the Company's fiscal
quarter ending on or about the beginning of such calendar
quarter and based upon the Company's financial statement for
such fiscal quarter delivered to the Noteholders pursuant to
Section 21 of Schedule III):
Leverage Ratio Rate
-------------- ----
< 2.99 None
-
3.00 < 3.49 0.25%
-
3.50 < 3.99 0.50%
-
11
4.00 < 4.49 0.75%
-
4.50 < 4.99 1.00%
-
> 5.00 1.25%
-
The Senior Notes are hereby amended to the extent of the
foregoing provisions, and, within 10 Business Days of the
Second Amendment Effective Date, the Company shall issue and
deliver to the Noteholders revised Senior Notes, in form and
substance satisfactory to the holders of the Senior Notes
reflecting the payment of interest specified above and shall
obtain for such notes a Private Placement Number issued by
Standard & Poor's CUSIP Service Bureau (in cooperation with
the Securities Valuation Office of the National Association
of Insurance Commissions). Each such revised Senior Note,
shall be a "Senior Note".".
11. Amendment to the Intercreditor Agreement. The
Intercreditor Agreement is hereby amended by deleting the words "(the
"Senior Notes")" in clause (B) thereto.
12. Representations and Warranties. On and as of the date
hereof, the Borrower hereby represents and warrants that after giving
effect to the waivers and amendments contained herein, no Default or Event
of Default has occurred or is continuing.
13. Fees. The Borrower shall pay (i) to the Agent, a
non-refundable amendment fee in the amount equal to $300,000.00 (the
"Amendment Fee") for the ratable benefit of each Lender, in immediately
available funds and (ii) to each Noteholder, its ratable share (based on
such Noteholder's percentage of the outstanding principal amount of the
Senior Notes) of a non-refundable fee in the aggregate amount of
$325,000.00 (each, a "Noteholder's Fee") in immediately available funds.
14. Effective Date. This Amendment will become effective on
the Second Amendment Effective Date.
15. Continued Effect. Except as expressly amended as provided
for herein, the Agreements shall continue to be, and shall remain, in full
force and effect in accordance with its terms. This Amendment shall be
limited solely for the purposes and to the extent expressly set forth
herein and nothing herein express or implied shall constitute an
amendment, supplement, modification or waiver to or of any other term,
provision or condition of the Agreements.
16. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
12
17. Counterparts. This Amendment may be executed by the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their properly and
duly authorized officers as of the day and year first above written.
IT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: VP, Finance & Treasurer
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Administrative Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
-------------------------
Title: Vice President
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxxxx
-------------------------
Title: First Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ J. Xxx Xxxxxx
-------------------------
Title: Vice President
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Title: Investment Officer
XXXX XXXXXXX LIFE INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Title: Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Title: Senior Investment Manager
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Title: Managing Director
MONY LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Title: Authorized Agent
The undersigned hereby acknowledge and affirm their respective obligations
pursuant to the Security Agreements and the Guarantees as of the day and
year first above written.
INTERNATIONAL TECHNOLOGY
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: VP, Finance & Treasurer
IT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: VP, Finance & Treasurer
IT-TULSA HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Treasurer
IT HANFORD, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Assistant Treasurer
UNIVERSAL PROFESSIONAL INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Treasurer
GRADIENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Assistant Treasurer
